Madhya Pradesh High Court
Roopa vs State Of M.P. on 16 December, 2022
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
CRIMINAL APPEAL NO. 668 of 2003
BETWEEN:-
1. RAGHUVIR DHAKAD S/O SHYAM LAL, AGED
ABOUT 30 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE CHHIPON
DISTRICT GUNA (MADHYA PRADESH)
2. BAHADUR SINGH DHAKAD (KIRAR) S/O SHYAM
LAL, AGED ABOUT 35 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE CHHIPON
DISTRICT GUNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ANOOP NIGAM - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAJRANG GARH DISTRICT GUNA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI B.M. SHRIVASTAVA - PUBLIC PROSECUTOR)
CRIMINAL APPEAL NO. 695 of 2003
BETWEEN:-
1. RAJU S/O SITARAM, AGED ABOUT 24 YEARS, R/O
VILLAGE CHURAI POLICE STATION BAJRANG
GARH DISTRICT GUNA (MADHYA PRADESH)
2. SITARAM S/O GANPAT SINGH, AGED ABOUT 45
YEARS, R/O VILLAGE CHURAI POLICE STATION
BAJRANG GARH DISTRICT GUNA (MADHYA
2
PRADESH)
3. BABA S/O SITARAM, AGED ABOUT 19 YEARS, R/O
VILLAGE CHURAI POLICE STATION BAJRANG
GARH DISTRICT GUNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI D.R. SHARMA AND SHRI ANOOP NIGAM FROM LEGAL AID
SERVICES - ADVOCATES)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAJRANG GARH DISTRICT GUNA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI B.M. SHRIVASTAVA - PUBLIC PROSECUTOR)
CRIMINAL APPEAL NO. 700 of 2003
BETWEEN:-
ROOPA S/O KANNA BANJARA, AGED ABOUT 35
YEARS, R/O VILLAGE KARONDIYA DISTRICT
GUNA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRABAL SOLANKI- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAJRANG GARH DISTRICT GUNA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI B.M. SHRIVASTAVA - PUBLIC PROSECUTOR)
3
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Reserved on : 16-06-2022
Delivered on : 16-12-2022
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JUDGMENT
1. Regard being had to the similitude of controversy, all the criminal appeals referred above were heard analogously and decided by this common judgment. All the criminal appeals arise out of the common judgment of conviction and order of sentence dated dated 20-11-2021 passed by the First Additional Sessions Judge, Guna in S.T. No.196/1996 whereby appellants of all the criminal appeals have been convicted as under:
S.No. Offence u/s Imprisonment Fine Default
Stipulation
1 148 of IPC 1 year's RI Rs.500/- ---
2 307/149 of IPC 5 years' RI Rs.500/- 3 months' RI
2. Precisely stated facts of the case are that on 03-08-1993 at about 10-11 am complainant Radhamohan had gone to graze his cattle in agriculture field. Accused persons were also there and while realizing his presence, all the accused persons namely, Raghuveer, Raju, Sitaram, Bahadur, Rupa and Baba armed with axe and Lathi came to him and told why he favoured Jhagna Banjara in lodging FIR. Thereafter, appellants Raju and Sitaram gave axe blows over victim Radhamohan's head and other co-appellants namely, Baba, Bahadur, Raghuveer and Rupa also caused injuries to him over different parts of his body. When Punna Harijan, Mahendra and Shivraj came to rescue him, they were also beaten by the accused persons. On the complaint, FIR Ex-P/1 was registered on 03-08- 1993 at Crime No.110/1993 for the offence under Sections 307, 4 147, 148, 149 of IPC. Appellants were arrested and MLCs of Radhmohan (PW-1), Punna Harijan and Mahendra were conducted in which complainant Radhamohan (PW-1) was shown to have been received nine injuries. Matter was investigated and challan was filed in the matter before the concerned Magistrate.
3. Thereafter, case was committed to the Sessions Court. Trial Court framed the charges and proceeded with trial. Before the trial Court, appellants abjured their guilt and prayed for trial. On behalf of prosecution, 10 witnesses were examined whereas defence has not examined any witness. After recording of evidence, ocular as well as documentary and hearing the submissions of counsel for the parties, the trial Court convicted and sentenced the appellants as referred above. Therefore, appellants through different appeals are before this Court.
4. It is submitted by learned counsel for the appellants that the trial Court erred in convicting the appellants for the offence referred above. There is material contradictions and omissions between the statements of prosecution witnesses and such aspect has not been considered by the trial Court. Independent eye-witnesses examined by the prosecution did not support the story of prosecution. Since the injuries received by the injured complainant Radhamohan (PW-1) were not opined by the doctor to be dangerous to life in ordinary course of nature, therefore, trial Court committed grave error in convicting the appellants under Section 307 of IPC.
5. It is further submitted that looking to the nature of offence and the period of incarceration suffered by the appellants during trial, in 5 view of provisions of Section 357 of Cr.P.C. compensation/fine at higher side be directed to be paid, which appellants are ready to pay and jail sentence of appellants be reduced to the sentence already undergone by them.
6. On the other hand, learned counsel for the respondent/State opposed the prayer and prayed for dismissal of the appeals. It is further submitted that since specific role of causing axe blows to the injured complainant Radhamohan (PW-1) is attributed to the appellants namely, Sitaram and Raju and injuries are duly corroborated with the medical evidence, therefore, trial Court did not err in convicting them under Sections 307 of IPC. However, for remaining accused persons also, he opposed the prayer but fairly submitted that evidence against them is different than as that of Sitaram and Raju.
7. Heard learned counsel for the parties and perused the record.
8. This is a case where all the appellants have suffered conviction and awarded jail sentence for the allegations referred above. Respective roles of appellants can be deciphered from the evidence of injured witness Radhamohan (PW-1). This witness in his examination-in-chief stood firm to his earlier statement. Course of events and respective roles of appellants are narrated in paras 3 and 4 of his examination-in-chief which reads as under:
"3- eSa mldksa nksigj dks [kkuk [kkus ds fy;s Hkst fn;k Fkk ogka ij lHkh vkjksihx.k cSBs gq;s FksA vkjksihx.k cSBs FksA fQj esjs ikl vk;s vkSj cksys fdrq >xuk catkjs dk i{k ysrk gS vkSj gekjs f[kykQ djokrk gSA blds ckn >xM+k vkjksihx.k us djuk 'kq: dj fn;k FkkA eq>s lhrkjke us dqYgkMh flj ds 6 ck;ha rjQ ekjh vkSj jktq us Hkh dqYgkM+h ls okj fd;k tks eSaus ykBh ij cpk fy;kA fQj 'ks"k vkjksihx.k cgknqj]ckck ]j?kqohj vkSj jktq ykfB;kas ls ekjus yxsaA eq>s ck;ha Hkqtk ij ij pksVa vkbZ FkhA ck;sa iSj esa pksV vkbZ FkhA nkfgus ihB esa ]nkfgus cktq esa pksVa vkbZ FkhA 4- esjs dks fiaMyh esa j?kqohj us ]:ik us nkfgus gkFk esa vkSj mlds ckn lHkh yksxksa us lkFk esa ykfB;ka ekjhA eSa ogka ij iM+k jgk vkSj eq>s [kfV;k ij mBkdj ys x;s FksA eq>s cpkus ds fy;s f'kojkt] egsUnzflag] ]iqUuk gfjtu vk;s FksA iqUuk gfjtu dks Hkh vkjksihx.k us ykBh ekjh FkhA e>s [kkVdj ij j[kdj ?kj yk;s vkSj ?kj ls fjiksVZ djkus ds fy;s ctjax<+ Fkkus ij ys x;s FksA ctjax<+ Fkkus ij eSaus fjiksVZ fy[kkbZ FkhA tks iz-ih-A gS ftl ij v ls v esjs gLrk{kj gSaA^^
9. Duty doctor, Dr. R.K. Jain (PW-6) also deposed before the trial Court and narrated the injuries sustained by the injured witness Radhamohan (PW-1). Dr. R.K. Jain (PW-6) referred the injuries in following manner:
",& ,d dVk gqvk ?kko flj ds ck;ha vksj QzsUVy jhtu ds chp ds Hkkx ij Fkk ftldk vkdkj 2x4 bap x gM~Mh rd xgjk FkkA [kwu ekStwn Fkk fdukjs jsX;wyj FksA ?kko V~zkalQj Mk;jsD'ku eas Fkk bl pksVa dks eSaus ,Dljs gsrq fy[kk FkkA ch& ,d dVk gqvk ?kko flj ds ck;ha vksj isjkbVy Hkkx ij FkkA ftldk vkdkj 3 bap x1@4 bap x gM~Mh rd xgjk FkkA [kwu ekStwn Fkk fdukjs jsX;wyj Fks rFkk ?kko frjNh fn'kk esa FkkA bl pksVa dks Hkh eSaus ,Dljs gsrq fy[kk FkkA lh& ,d dVk gqvk ?kko ck;sa iSj ds fupys Hkkx ij Fkk 7 ftldk vkdkj 1 x1@4x1@4 bap FkkA fdukjs jsX;wyj Fks [kwu ekStwn Fkk rFkk ;g ?kko frjNh fn'kk esa Fkk bl pksaV dks eSaus ,Dljs gsrq fy[kk FkkA Mh& ,d uhy dk fu'kku ck;ha vxz Hkqtk ds Åijh rFkk chp ds Hkkx ij Fkk ftldk vkdkj 4 bap x2 bap Fkk tks ykyh fy;s gq;s FkkA bl pksVa dks eSaus ,Dljs gsrq fy[kk FkkA bZ& ,d uhy dk fu'kku ck;ha Åijh Hkqtk ds fupys 1x3 Hkkx ij Fkk ftldk vkdkj 3x2 bap Fkk tks ykyh fy;s gq;s Fkk ml pksaV dks Hkh eSus ,Dljs gsrq fy[kk FkkA ,Q& ,d uhy dk fu'kku ck;ha da/ks ij Fkk ftldk vkdkj 2x1 bap Fkk tks ykyh fy;s gq;s Fkk bl pksV dks eSus ,Dljs gsrq fy[kk FkkA th& ,d [kjksp a dk fu'kku nkfgus gkFk dh baMsDl fQaxj ds fMLVy Hkkx ij Fkk ¼esVkdkjiy ds fMLVy Hkkx ij Fkk½ ftldk vkdkj 4xvk/kk bap FkkA ,p& ,d [kjksp sa dk fu'kku nkfgus gkFk ds chp dh vaxqyh esa esVkdkjiy ij FkkA ftldk vkdkj vk/kk bapx4 FkkA vkbZ& ,d uhy dk fu'kku nkfgus iSj ds chp ds vkSj fupys Hkkx ij Fkk ftldk vkdkj 4x2 bap Fkk tks ykyh fy;s gq;s Fkk ml pksaV dks eSus ,Dljs gsrq fy[kk FkkA pksVa ua- 1]2]3] l[r ,oa /kkj/kkj l[r ,oa eksFkjs gfF;kj }kjk igqpakbZ tkuk izrhr gksrh FkhA^^
10. Perusal of testimony of Radhamohan (PW-1) indicates that Radhamohan sustained total nine injuries out of which two were grievous in nature; one on left frontal region and another on left parietal region. Appellants Sitaram and Raju both while wielding 8 axe, gave blows (single blow each) over the head of Radhamohan (PW-1). This version of injured witness -Radhamohan (PW-1) is duly supported by medical evidence. In the cross-examination of said witness Radhamohan (PW-1) no contradiction surfaced so far as roles of appellants Sitaram and Raju are concerned. He narrated the story throughout qua these appellants.
11. Not only this, but the brother of complainant namely Mahendra Singh (PW-4) also referred the course of events in such fashion where roles of appellants Sitaram and Raju are established, therefore, oral testimony of witnesses established the respective roles of appellants Sitaram and Raju. In FIR as well as in statement under Section 161 of Cr.P.C. injured witness Radhamohan (PW-1) stood to his version throughout. In FIR, police statement and court statement, he referred the roles of both these appellants in almost same vein. Since narration of events is supported by injuries therefore, roles of the appellants Sitaram and Raju are established.
12. It is true that treating doctor must indicate nature of injuries in specific term and/or nature of injuries which may cause death or which endangers life. Although counsel for the appellants referred Merambhai Punjabbhai khachar Vs. State of Gujrat, 1997 SCC (Cri) 1078 and Shiv Kumar Singh Vs. State of M.P. Thr. P.S. Mehgaon, District Bhind, 2016(3) Cr.L.R. (M.P.) 834 but in the present set of facts, trial Court elaborately dealt the issue and after discussing the respective roles and oral evidence, came to the conclusion about the culpability of appellants. Therefore, even if the duty doctors have not referred nature of injuries any specific term in MLC but FIR and statement of witness under Section 161 of Cr.P.C. and Court statement are to be read in tandem.
913. The MLC of injured Radhamohan (PW-1) conducted by Dr. R.K. Jain (PW-6) nowhere refers whether injuries are dangerous to life in ordinary course of nature or no. To attract the rigours of Section 307 of IPC motive assumes importance and right from FIR, it has been referred that accused persons came to the field of victim Radhamohan (PW-1) with intention to kill him where he was sitting and his cattle were grazing. In FIR, motive of the appellants have been referred in specific term by the victim Radhamohan (PW-1). In his police statement also he referred this fact therefore, motive of the appellants was clear to cause death of the victim Radhamohan. This aspect has rightly been dealt with by the trial Court.
14. So far as appellants Sitaram and Raju are concerned, it is true that no repetition of blows was caused by them, therefore, trial Court convicted them for offence under Sections 307 of IPC but sentenced them to 5 years' RI only. On close scrutiny, it appears that the trial Court rightly found the appellants Sitaram and Raju responsible for causing injuries dangerous to life to the victim Radhamohan (PW-1) and sentenced them to 5 years' RI. Such conclusion regarding conviction under Section 307 of IPC is to be deciphered from the evidence and when evidence established the act of appellants Sitaram and Raju who caused injuries over the head by sharp cutting weapon (axe) which is duly corroborated by the medical evidence and statement of Dr. R.K. Jain (PW-6), coupled with the fact that victim Radhamohan (PW-1) also suffered some other injuries over different parts of his body by hard and blunt object, thus, inference is rightly arrived at by the trial Court. Further the weapons used in commission of offence were seized from the possession of appellants Raju and Sitaram 10 vide seizure memo Ex-P/16 and Ex.P/19 respectively. This corroborates involvement of appellants Sitaram and Raju in causing injuries to the victim.
15. Another witness Mahendra Singh (PW-4) who was brother of the complainant Radhamohan (PW-1) also narrated the events in same fashion as that of Radhamohan (PW-1). He assigned the role of appellants Sitaram and Raju in the same manner as of Radhamohan (PW-1). Although another prosecution witness Ramprasad (PW-2) did not assign respective role of accused persons but established the occurrence of incident. He referred the fact that victim Radhamohan (PW-1) was beaten by axe and sticks and he sustained injuries over his head. Ramanarayan (PW-
3) and Shivraj Singh (PW-5) did not support the story of prosecution but that does not make the case of prosecution vulnerable because other prosecution witnesses supported the case of prosecution. From the evidence available on record and the oral statements of prosecution witnesses, it is clear that appellants Sitaram and Raju caused axe blows to the victim Radhamohan (PW-1) over his vital parts of the body which are duly corroborated with the medical evidence. Thus, the trial Court did not err in convicting the appellants Sitaram and Raju under Section 307 of IPC and awarding jail sentence of 5 years' RI.
Resultantly, the appeal preferred by the appellants Sitaram and Raju (Cr.A.No.695/2003) so far as these appellants is concerned is hereby dismissed.
16. Court has to rely the testimony of witness Mahendra Singh (PW-
4) but perusal of judgment of trial Court indicates that testimony 11 of Mahendra Singh (PW-4) so far as infliction of injuries to him and another injured Punna is concerned, are not relied upon and trial Court acquitted all the accused persons from the charge of causing injuries to Mahendra Singh and Punna. Since no appeal has been preferred by the State Government against such findings and acquittal, therefore, this Court does not find any ground to deviate from the discussions and conclusion arrived at by the trial Court.
17. So far as appellant -Rupa is concerned he caused injuries over metacarpal of index finger and middle finger to the complainant Radhamohan (PW-1). Such injuries were neither grievous hurt nor sufficient to cause death. Although in FIR he did not refer this fact in specific term about role of the appellant Rupa but FIR is not encyclopedia and in his statement under Section 161 of Cr.P.C. he referred the role of appellant Rupa. Therefore, appellant Rupa caused injuries over his right hand but since they are not dangerous to life, therefore, trial Court erred in convicting the appellant Rupa for the offence under Section 307 of IPC. When respective roles were assigned by the victim then respective role of appellants is to be seen and here appellant Rupa did not cause any injury which was sufficient to cause death, therefore, he is entitled to be released for offence under Section 307 of IPC but certainly deserves conviction for offence under Section 323 of IPC and since maximum punishment which can be awarded under Section 323 of IPC is one year and appellant Rupa already suffered almost five months of incarceration, therefore, while confirming his conviction under Section 323 of IPC his sentence 12 is reduced to the sentence already undergone by him. However, fine amount is raised to Rs.5,000/- which shall have to be paid within two months before the trial Court while giving undertaking immediately before the trial Court that if he failed to pay Rs.5,000/- (inclusive of the fine amount imposed by the trial Court), then trial Court would proceed against him to serve remaining part of jail sentence. Thus, if the appellant
-Rupa does not deposit the amount as directed by this Court within the stipulated time then he shall have to serve the remaining jail sentence as awarded by this Court.
Resultantly, the appeal preferred by the appellant -Rupa (Cr.A.No.700/2003) stands disposed of while convicting him under Section 323 of IPC and sentencing him to 1 year's RI and his sentence is reduced to the sentence already undergone by him with further direction to pay compensation of Rs.5,000/- (inclusive of the fine imposed by the trial Court) payable to the complainant. The compensation amount shall be paid to the complainant after due verification. Appellant -Rupa is on bail. His bail bonds stand discharged.
18. So far as appellant Raghuveer is concerned, his role is referred by Radhamohan (PW-1) of causing Lathi blow over his calf of left leg and same is supported by the evidence of Dr. R.K. Jain (PW-
6), therefore, this injury can be attributed to the appellant Raghuveer but that injury is also simple in nature, therefore, his role is also at par with the appellant -Rupa. Therefore, he is also entitled to be released for offence under Section 307 of IPC and deserves conviction under Section 323 of IPC and since 13 maximum punishment which can be awarded under Section 323 of IPC is one year and appellant Raghuveer already suffered almost three months of incarceration, therefore, while confirming the conviction under Section 323 of IPC his sentence is reduced to the sentence already undergone by him. However, fine amount is raised to Rs.5,000/- which shall have to be paid within two months before the trial Court while giving undertaking immediately before the trial Court that if he failed to pay Rs.5,000/- (inclusive of the fine amount imposed by the trial Court), then trial Court would proceed against him to serve remaining part of jail sentence. Thus, if the appellant -Raghuveer does not deposit the amount as directed by this Court within the stipulated time then he shall have to serve the remaining jail sentence as awarded by this Court.
Resultantly, the appeal preferred by the appellant
-Raghuveer (Cr.A.No.668/2003) is concerned stands disposed of while convicting him under Section 323 of IPC and sentencing him to 1 year's RI and his sentence is reduced to the sentence already undergone by him with further direction to pay compensation of Rs.5,000/- (inclusive of fine imposed by the trial Court) payable to the complainant. The compensation amount shall be paid to the complainant after due verification. Appellant -Raghuveer is on bail. His bail bonds stand discharged.
19. So far as appellants Baba and Bahadur are concerned, in FIR and statement under Section 161 of Cr.P.C. and in Court statement, no specific act has been referred, only omnibus allegations were 14 levelled that these accused persons caused Lathi blows to the victim over his person. From perusal of MLC Ex-P/4, statement of complainant Radhamohan (PW-1) and statement of Dr. R.K. Jain (PW-6), injuries No.(d),(e),(f) and (i) appear to be caused by other accused persons through Lathi blows. Injured witness Radhamohan (PW-1) nowhere stated any specific role of other accused, therefore, they caused simple injuries to the victim Radhamohan (PW-1). Therefore, appellants Baba and Bahadur are entitled to be released for offence under Section 307 of IPC and deserve conviction under Section 323 of IPC and since maximum punishment which can be awarded under Section 323 of IPC is one year and appellants Baba and Bahadur already suffered almost five months and more than two months of respective incarcerations, therefore, while confirming the conviction under Section 323 of IPC their respective sentences are reduced to the sentence already undergone by them. However, fine amount is raised to Rs.5,000/- each (total Rs.10,000/-) which shall have to be paid within two months before the trial Court while giving undertaking before the trial Court that if they failed to pay Rs.5,000/- each (inclusive of the fine amount imposed by the trial Court), then trial Court would proceed against them to serve remaining part of jail sentence. Thus, if the appellants
-Baba and Bahadur do not deposit the amount as directed by this Court within the stipulated time then they shall have to serve the remaining jail sentence as awarded by this Court.
Resultantly, the appeal preferred by the appellants -Baba and Bahadur (Cr.A.No.695/2003 and 668/2003) so far as 15 appellants Baba and Bahadur are concerned, stand disposed of while convicting them under Section 323 of IPC and sentencing them to 1 year's RI and their sentences are reduced to the sentence already undergone by them with further direction to pay compensation of Rs.5,000/- each (inclusive of the fine imposed by the trial Court) payable to the complainant. The compensation amount shall be paid to the complainant after due verification. Appellants -Baba and Bahadur are on bail. Their bail bonds stand discharged.
20. Resultantly, all the Criminal Appeals (Cr.A.No.668/2003, Cr.A.No.695/2003 and Cr.A.No.700/2003) stand disposed of with directions referred above except for the appellants Sitaram and Raju. Their bail bonds stand discharged. Appellants Sitaram and Raju have to surrender before the trial Court to serve remaining part of jail sentence, in default thereof, trial Court shall be at liberty to issue arrest warrant so as to arrest them for serving remaining jail sentence.
21. Copy of the judgment be sent to the trial Court for information and necessary compliance.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2022.12.20
13:59:18
+05'30'