Madhya Pradesh High Court
Mahendra Singh & Ors vs The State Of M.P on 22 November, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.2633/1997
Mahendra Singh & another
VERSUS
State of Madhya Pradesh
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Shri Narendra Nikhare, counsel for the appellant.
Shri G.S.Thakur, Panel Lawyer for the State/respondent.
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J U D G M E N T
(Delivered on the 22nd day of November, 2012) The appellants have preferred this appeal against the judgment dated 9.12.1997 passed by the learned 6th Additional Sessions Judge, Jabalpur in S.T.No.368/1994, whereby the appellant No.1 was convicted for the offence punishable under section 326 of IPC and the appellant No.2 was convicted for the offence punishable under section 326 read with section 34 of IPC. Both the appellants were sentenced for 3 years' rigorous imprisonment with fine of Rs.1,000/- each for the aforesaid crime and 2 months' additional rigorous imprisonment was directed in default of payment of fine.
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Criminal Appeal No.2633 of 1997
2. The prosecution's case, in short, is that, on 28.7.1985, at about 8.15 p.m., the victim Kiran Rai (P.W.3) was standing at a road situated near his house at Gulawa Chowk, Jabalpur. He was accompanied by his daughter Kavita and his friend Mohan along with Mohan's sister Kalpana. The appellants came by a scooter, driven by the appellant Rajendra. The appellant Rajendra instructed the appellant Mahendra Singh to pour some acid upon the victim Kiran Rai and thereafter, the appellant Mahendra Singh poured some acid from a china clay pot on the face of the victim Kiran Rai. The victim Kiran Rai sustained injuries on his face, chest and knees. Some acid was also dropped upon his daughter Kavita. Ravishankar Kewat (P.W.2) took the victim to the hospital and thereafter, he had lodged an FIR, Ex.P/2 at Police Station Garha. Dr.Nagpal (P.W.3) examined the victim Kiran Rai at Medical College, Jabalpur and gave his report, Ex.P/3. He found that the victim sustained burn injuries on his face, neck, chest and both the thighs. Cornea of both the eyes of the victim became blurred due to acid and therefore, eye sight of the victim in both the eyes was highly affected. After due investigation, a charge- sheet was filed before the Chief Judicial Magistrate, Jabalpur, who committed the case to the Sessions Court,
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Criminal Appeal No.2633 of 1997 Jabalpur and ultimately, it was transferred to the learned 6 th Additional Sessions Judge, Jabalpur.
3. The appellants abjured their guilt. They did not took any specific plea in the case but, they have stated that they were falsely implicated in the matter. However, no defence evidence was adduced.
4. The learned Additional Sessions Judge, after considering the evidence adduced by the prosecution, acquitted the co-accused Munni @ Laxminarayan and Sadanand Soni from all the charges but, convicted the appellant Mahendra for the offence punishable under section 326 of IPC and the appellant Rajendra for the offence punishable under section 326 read with section 34 of IPC and sentenced them as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants has submitted that it was no where mentioned that the appellant Rajendra Singh provoked the appellant Mahendra Singh to throw acid upon the victim. Acid was brought in a very small china pot and therefore, it is possible that it was not in the knowledge of the appellant Rajendra Singh that the co-
accused had some acid with him. Under such circumstances, no common intention of the appellant Rajendra is established. Similarly, no doctor was examined
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Criminal Appeal No.2633 of 1997 to show that the victim lost his eyes or his face was disfigured and therefore, the trial Court could not convict the appellant Mahendra for the offence punishable under section 326 of IPC. At the most, offence punishable under section 324 of IPC could be constituted. The appellant remained in the custody for more than 3 months, whereas the incident took place 28 years ago and therefore, the appellants who were the first offenders in the case may not be sent to the jail again.
7. On the other hand, the learned Public Prosecutor has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and there is no basis by which any interference can be done in the judgment passed by the trial Court.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be accepted?
And whether the sentence directed against the appellants can be reduced?
9. Ravishankar (P.W.2), Kiran Rai (P.W.3), Ashok Bajpai (P.W.6), Rajendra Singh Thakur (P.W.7) etc. were examined as eye witnesses, whereas Narbada Prasad (P.W.8) has stated that he poured some water on the face of the
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Criminal Appeal No.2633 of 1997 victim Kiran Rai, who had informed that the appellant Mahendra poured some acid upon his face. The eye witnesses have stated that the appellant Mahendra had a pot in his hand by which he threw some acid upon the face of the victim Kiran Rai. The testimony of these witnesses is duly corroborated by the FIR, Ex.P/2 lodged by the complainant Ravishankar Kewat (P.W.2). Dr.A.C.Nagpal has proved the corresponding injuries to the victim and therefore, medical report, Ex.P/3 also corroborates the testimony of the victim. It is proved beyond doubt that the appellant Mahendra Singh threw some acid upon the face of the victim Kiran Rai causing him some injuries.
10. The learned counsel for the appellant has submitted that the injuries caused to the victim were not grave. The learned Additional Sessions Judge after considering the report given by Dr.A.C.Nagpal (P.W.4) found that the injury was grave and therefore, convicted the appellants for the offence punishable under section 326 and 326 read with section 34 of IPC. If evidence given by Dr. Nagpal (P.W.4) is considered then, it would be clear that he has stated that vision in both the eyes of the victim Kiran Rai was reduced because his cornea turned blurred but, he did not say that the victim Kiran Rai lost any of his eyes and therefore, injury does not fall in the purview of second part of
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Criminal Appeal No.2633 of 1997 section 320 of IPC. The statements made by the learned counsel for the appellant is also acceptable that it is no where proved that any permanent disfiguration was caused to the victim because after first examination, no doctor was examined that after recovery of the wounds, disfiguration was there, on the face of the victim. Kiran Rai (P.W.3) who was examined before the trial Court has stated in the Court that he lost his right eye and right part of his nose had became useless but, no such certificate has been submitted that the victim sustained privation of eye sight in the right eye. Similarly, the victim did not say that he sustained disfiguration and therefore, it is not proved that the victim sustained disfiguration due to the injuries caused by the appellants.
11. However, Dr.Nagpal found that 50% of the body of the victim was found burnt and therefore, in his opinion, commutated affect of the injuries was fatal. Therefore, the injuries as stated by Dr.Nagpal falls within 8th part of section 320 of IPC and therefore, the injuries caused to the victim were grave in nature. Therefore, it is established that the appellant Mahendra Singh had committed an offence punishable under section 326 of IPC and the learned Additional Sessions Judge has rightly convicted him for that offence.
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Criminal Appeal No.2633 of 1997
12. So far as the overt-act of the appellant Rajendra Singh is concerned, it is told by the victim Kiran Rai that Rajendra Singh directed the appellant Mahendra Singh to pour some acid on his face. It is also established that there was a dispute of property between Kiran Rai and the appellant Rajendra Singh and therefore, Kiran Rai could implicate the appellant Rajendra Singh falsely in the matter.
Ravishankar Kewat has accepted that the appellants came to the spot on a scooter and Mahendra Singh had a pot in his hand. Suddenly he threw acid on the face of the victim Kiran Rai. He did not corroborate that the appellant Rajendra Singh either provoked the appellant Mahendra Singh or participated in the crime. Similarly, in FIR, Ex.P/2, no overt-act of the appellant Rajendra Singh is mentioned and therefore, the testimony of the victim in that respect cannot be accepted. It is established that the appellant Rajendra Singh did not say anything to the appellant Mahendra Singh at the time of the incident. In that respect, statement of the witness Ashok Bajpai, Rajendra Singh Thakur and Narbada Prasad are not acceptable because such statements are contradictory to the FIR. It is true that there was an enmity between the appellant Rajendra Singh and the complainant and Rajendra Singh took his co- accused Mahendra Singh on a scooter but, by these overt-
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Criminal Appeal No.2633 of 1997 acts, it cannot be presumed that Rajendra Singh was aware that his brother had some acid in a pot and therefore, by such overt-act as proved by the prosecution, common intention of the appellant Rajendra Singh cannot be presumed. This possibility cannot be ruled out that the appellant Rajendra Singh had no knowledge about the action done by his co-accused Mahendra Singh. Under such circumstances, common intention of the appellant Rajendra Singh is no where established beyond doubt and if any doubt is created then, benefit of doubt is to be given to the concerned co-accused. Under such circumstances, it is not proved beyond doubt that the appellant Rajendra Singh had any common intention with his co-accused in assaulting the victim.
13. On the basis of the aforesaid discussion, the appellant Rajendra Singh cannot be convicted for the offence punishable under section 326 of IPC or any inferior offence of the same nature either directly or with help of section 34 of IPC. The learned Additional Sessions Judge has committed an error in convicting the appellant Rajendra Singh for the offence punishable under section 326 read with section 34 of IPC.
14. So far as the sentence is concerned, it is apparent that the appellant Mahendra Singh was the first offender,
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Criminal Appeal No.2633 of 1997 who remained in the custody for more than 3 months. He has faced the trial and appeal for the last 28 years. Under such circumstances, though offence committed by the appellant appears to be a grave offence but, looking to the other circumstances as mentioned above, it is not a case, in which the appellant Mahendra Singh be punished with a harsh jail sentence in such an old case. Looking to his crime, his sentence may be reduced to the period, which he has already undergone in the custody with a heavy fine.
15. On the basis of the aforesaid discussion, the appeal filed by the appellant Rajendra Singh is hereby allowed. The conviction as well as the sentence directed against him for the offence punishable under section 326 read with section 34 of IPC is hereby set aside. The appellant Rajendra Singh is acquitted from the charges of offence punishable under section 326 read with section 34 of IPC. The appeal filed by the appellant Mahendra Singh is hereby partly allowed. His conviction for the offence punishable under section 326 of IPC is maintained but, his sentence is reduced to the period, which he has already undergone in the custody but, fine amount is enhanced from a sum of Rs.1,000/- to a sum of Rs.20,000/-. The appellant Mahendra Singh is directed to deposit the remaining fine amount before the trial Court within two months from today,
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Criminal Appeal No.2633 of 1997 failing which he shall undergo for one year's rigorous imprisonment. If fine is deposited then, a sum of Rs.15,000/- be provided out of that fine to the victim Kiran Rai by way of a compensation.
16. At present the appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.
17. A copy of the judgment be sent to the trial Court along with its record for information and compliance.
(N.K.GUPTA) JUDGE 22/11/2012 Pushpendra