Madhya Pradesh High Court
Dalla vs The State Of Madhya Pradesh on 19 June, 2017
Cr.A.No.1993 of 2009
(1)
THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
(Single Bench : Rajendra Mahajan, J.)
Cr.A. No.1993 of 2009
1. Dalla S/o Kada Banjara aged
about 31 years.
2. Natha S/o Kada Banjara aged
about 27 years.
3. Hunna Bai W/o Dalla Banjara aged
about 26 years.
4. Moni Bai W/o Natha Banjara aged
about 23 years
All are resident of village Fudtal,
Police Station Rajpura, District
Damoh, M.P.
Appellants
VERSUS
The State of Madhya Pradesh
through Police Station Rajpura,
District Damoh, M.P.
Respondent
.....................................................................................................
For appellants : Shri Vishal Dhagat, learned counsel.
For respondent : Shri Y.D. Yadav, learned Panel Lawyer.
/State
.....................................................................................................
JUDGMENT
(Pronounced on the 19th day of June, 2017) The appellants assail the legality and correctness of the judgment and order dated 06.10.2009 passed by the Fourth Additional Sessions Judge (FTC) Damoh in Sessions Trial No.275 of 2008, Cr.A.No.1993 of 2009 (2) whereby appellant Dalla is convicted under Sections 326 and 323 of the IPC and the remaining appellants are convicted under Sections 326 r.w. 34 and 323 IPC and they are sentenced to suffer on first count R.I. for three years with a fine of Rs.500/- (five hundred), in default, R.I. for one month and second count R.I. for one year with a fine of Rs.500/- (five hundred), in default, R.I. for one month each. The jail sentences awarded to the appellants are directed to run concurrently.
2. Uncontroverted facts of the case are that appellants Dalla and Natha are real brothers; that the appellants namely Hunna Bai and Moni Bai are their wives respectively; that the appellants and complainant Pitha (PW-8) are resident of village Fudtal and that the alleged incident occurred in the said village.
3. Brief facts of the prosecution case are that in the evening of 22.06.2008, complainant Pitha (PW-8) was returning to his house after doing a manual job. On the way, the appellants equipped with an axe and lathis accosted him. They gave him first filthy abuses and later committed marpeet with him with the said weapons, and fists on account of old enmity. As a result, he sustained injuries on his lower phalanx of right hand middle finger, left face, lower part of left leg, right chest and upper part of right leg. The incident was witnessed by Sona Bai (PW-1), Rupi Bai (PW-2) and Rama (not Cr.A.No.1993 of 2009 (3) examined as he died before recording his evidence in the trial court). On the same day, he lodged an oral report of the incident at out- post Sadarpur of Police Station Rajpura. Head Constable Harishankar (PW-6) wrote the FIR in Roznamchasanha No.207 dated 22.06.2008 being Ex.P-11. He sent him to Primary Health Center Bathigarh for medico legal examination, where Dr. K.L. Adarsh (PW-3) examined him and gave the MLC report Ex.P-3. Upon his advice, on 24.06.2008, radiologist Dr. R.K. Rawat (PW-4) of District Hospital Damoh took the X-ray of the complainant's middle finger and gave the report Ex.P-4 stating that he suffered fracture in lower phalanx of the said finger.
4. On the basis of said medical reports, on 26.08.2006 Head Constable Khilan Prasad (PW-7) recorded the FIR Ex.P-15 at Police Station Rajpura and registered a case against the appellants at Crime No.37 of 2008 for the offences punishable under Sections 323, 324 and 34 of the IPC.
5. Head Constable Harishankar (PW-6) took over the investigation of the case. On 04.07.2008, he prepared spot map Ex.P-12 at the instance of the complainant in the presence of deceased Rama. On 06.10.2008, he recorded disclosure statements Ex.P-5 and Ex.P-7 of appellants Natha and Dalla respectively and later on, at their instances he seized a bamboo stick and an axe vide Cr.A.No.1993 of 2009 (4) seizure memos Ex.P-6 and Ex.P-8 respectively in the presence of witnesses namely Baldev (PW-5) and Parvat @ Baddu (PW-9) and arrested them vide arrest memos Ex.P-9 and Ex.P-10 respectively. On 27.09.2008, he arrested appellant Moni Bai and Hunna Bai vide arrest memos Ex.P-13 and Ex.P-14. He also recorded the case diary statements of the witnesses who are conversant with the facts of the incident.
6. Upon the completion of investigation, the police charge- sheeted the appellants for the offences punishable under Sections 323, 324 and 326 r.w. 34 IPC.
7. On committal, the learned trial Judge framed the charges against appellant Dalla under Sections 326 and 323 IPC and against the remaining appellants under Sections 326 r.w. 34 and 323 IPC. All the appellants denied the charges framed against them and claimed to be tried. In the examination under Section 313 Cr.P.C., the appellants denied the incriminating evidence and circumstances appearing against them in the case. They took the defence that on account of old enmity, the complainant falsely implicated them in the case. In support of the defence, appellant Dalla examined himself as D.W. 1 and one witness Asha Banjara as D.W.2.
8. The learned trial Judge having analyzed and evaluated the evidence on record held appellant Dalla guilty for committing Cr.A.No.1993 of 2009 (5) the offences punishable under Sections 323 and 326 IPC and remaining appellants for committing the offences punishable under Section 326 r.w. 34 and 323 IPC and sentenced them in the aforesaid Sections as noted in para 1 of the judgment.
9. Feeling aggrieved by and dissatisfied with the judgment, the appellants have filed this appeal.
10. Learned counsel appearing for the appellants submitted that as per the FIR, Sonabai (PW-1) and Rupi Bai (PW-2) are eyewitness of the incident, but they have not supported the prosecution case in their evidence. Thereupon, the prosecution has declared them hostile and subjected them to grueling cross-examination, but it has failed to elicit any evidence in support of its case. Thus, the convictions of the appellants are based on sole evidence of complainant Pitha. He further submitted that complainant Pitha has stated in his evidence that the agricultural land of him and that of the appellants are adjoining to each other and that the appellants do not allow him to cultivate his land. He has also admitted in para 8 of his cross-examination that he and the appellants are not on speaking terms over two years. He has also admitted in para 11 of his cross- examination that Asha (DW-2) is bother-in-law of appellants namely Dalla and Natha and upon the police report of Asha, he and others have been facing trial for committing marpeet with him. He Cr.A.No.1993 of 2009 (6) submitted that the aforesaid admissions made by the complainant Pitha prove that there is a grave enmity between him and the appellants. He further submitted that complainant Pitha has made a general statement in the FIR that the appellants committed marpeet with him with lathis, fits and an axe, but he has stated in his evidence that appellant Dalla inflicted a blow of an axe and appellant Natha inflicted blows of lathis upon him and the remaining appellants committed marpeet with him with fists. He further submitted that as per the FIR, the appellants committed marpeet with him when he was returning to his house, whereas he has stated in his evidence that the appellants came to his house, first they abused him and thereafter they committed marpeet with him. He further submitted that the aforesaid facts show that complainant Pitha has improved his court statement. He further submitted that in view of the above, the learned trial Judge committed a gross error by placing implicit reliance upon the testimony of complainant Pitha.
11. He further submitted that the appellants are agriculturist by occupations, therefore, keeping of lathis and axes by them are very common-place. He further submitted that Investigating Officer Harishankar seized from the possession of appellants Dalla and Natha one axe and one lathi at their instance respectively. But both the articles had not been sent for forensic examinations. Therefore, Cr.A.No.1993 of 2009 (7) the seizure of the aforesaid articles from their possession has no evidentiary value.
12. Learned counsel for the appellants further submitted that as per the FIR and the deposition of complainant Pitha, all the injuries sustained by him in the incident are grievous as well as simple ones. Causing simple injuries are punishable under Section 323 IPC and inflicting grievous injuries by dangerous weapon(s) are punishable under Section 326 IPC. Therefore, the offence under Section 323 IPC is minor one and the offence under Section 326 IPC is major one. Section 326 provides for the maximum imprisonment for life, whereas Section 323 provides for maximum imprisonment for one year. The learned trial Judge has convicted the appellants under both the Sections 323 and 326 r.w. 34 IPC. Therefore, he has committed a legal error in view of the provisions of Section 71 IPC by convicting the appellants under Section 323 IPC. Therefore, the conviction and sentence imposed upon the appellants under Section 323 is liable to be set aside.
13. In alternative, learned counsel for the appellants submitted that during the pendency of this appeal, complainant Pitha and the appellants have filed a compromise petition before this court, whereupon the learned Registrar (J-II) has examined them upon the directions of this court. He has submitted in his report that Cr.A.No.1993 of 2009 (8) complainant Pitha and the appellants have entered into the compromise voluntarily. However, the court has not acted upon the compromise on the ground that the offence punishable under Section 326 IPC is non-compoundable, but this court has observed that the factum of compromise will be considered in right perspective at the time of deciding the appeal on merits. He further submitted that as per the record of the trial court, appellants Natha and Dalla remained in judicial custody from 06.10.2008 to 11.10.2008 and appellants Hunna Bai and Moni Bai have been granted anticipatory bail. He further submitted that the appellants have no previous convictions, that the appellants deposited the fine amounts and that there is no evidence on record that after the incident the appellants again committed marpeet with complainant Pitha. He further submitted that complainant Pitha sustained only one grievous injury on the lower phalanx of his right hand middle finger which is not a vital part of the body. In these circumstances, he prayed that if this court upholds the convictions of the appellants under Sections 323 and 326 r.w. 34 IPC, then the most lenient view may be taken in awarding the jail sentence.
14. Per contra, learned Panel Lawyer justified the conviction of the appellants upon the sole evidence of complainant Pitha. He also submitted that looking to the facts and circumstances of the case, Cr.A.No.1993 of 2009 (9) the learned trial Judge has awarded just and proper sentence to the appellants. Therefore, there is no need to take a lenient view by this court in respect of the jail sentences.
15. I have considered the rival submissions made by the learned counsel for the parties across the Bar and perused entire materials on record and the impugned judgment.
16. Following are the points for determination before me :-
(1) Whether complainant Pitha had suffered injuries on the date of incident and if so, what kinds of injuries he suffered ?
(2) Whether the appellants had caused injuries to complainant Pitha in furtherance of common intention?
(3) Result?
17. Dr. K.L. Adarsh (PW-3) has deposed that on 26.06.2008 at Primary Health Center Bathigarh upon requisition of the police, he medico legally examined complainant Pitha and found following injuries on his person.
(i) Incised wound of size 1.1/2 cm x 1/6 cm upto muscles deep on the lower phalanx of right hand middle finger.
(ii) Contusion of size 3.0 cm x 1.1/2 cm on the right upper arm.Cr.A.No.1993 of 2009
(10)
(iii) Abrasion of size 1.0 cm x 4 cm on the left side of face.
(iv) Contusion of size 3.0 cm x 1/2 cm below the knee of left leg.
(v) Abrasions of size ranging from 6.0 cm x 4.0 cm from 4.0 cm x 1 1/10 cm on the left chest.
(vi) Abrasion of size 1.0 cm x 1/2 cm on the upper side of left leg.
This witness has further deposed that injury No.1 was caused by a hard and sharp object, whereas the remaining injuries are caused by a hard and blunt object and they are simple in nature. The injuries were 24 to 42 hours old. He has deposed that he had advised X-ray of injury No.1. He has also proved injury-certificate Ex.P-3.
18. Dr. R.K. Rawat (PW-4) has testified that on 24.06.2008, he took X-ray of complainant Pitha's middle finger of right hand and found a fracture in the lower phalanx of it. He gave the report Ex.P-4 with X-ray plate.
19. Upon the perusal of cross-examination of the aforesaid witnesses, I find that there is nothing to discredit their evidence. Therefore, I place reliance upon their evidence and hold that on 23.06.2008, the date of incident, complainant Pitha suffered one Cr.A.No.1993 of 2009 (11) grievous injury on the lower phalanx of middle finger of right hand and other simple injuries.
20. Complainant Pitha has testified that in the evening of the day of incident, he was in his residence. At that time, the appellants came to his house and they started abusing him. Thereafter, appellant Dalla made an attempt to inflict an axe blow upon him. He caught hold of the axe. As a result, he sustained injury on his right hand middle finger. Appellant Natha inflicted upon him two to three lathis blows. The remaining appellants grappled him and punched him with fists. He has also deposed that the appellants committed marpeet on account of old enmity. The occurrence was witnessed by Sona Bai, Rupi Bai and deceased Rama.
21. Since so called eye witnesses Sona Bai (PW-1) and Rupi Bai (PW-2) have completely turned hostile, the prosecution case now rests with the evidence of complainant Pitha himself. In the circumstances, the evidence rendered by complainant Pitha requires careful and close scrutiny in view of the enmity between the appellants and him as enmity is a double edged weapon. On account of the enmity, the appellants assaulted complainant Pitha, on the other hand, complainant Pitha suffered injuries for the other reasons but he has falsely implicated the appellants.
22. Complainant Pitha has made a general statement in the FIR Cr.A.No.1993 of 2009 (12) Ex.P-15 stating that all the appellants with lathis, an axe and fists committed marpeet with him, whereas he has stated in his evidence that appellant Dalla inflicted an axe blow and appellant Natha inflicted two to three lathi blows upon him and the remaining appellants i.e. Hunna Bai and Moni Bai committed marpeet with him with firsts. He has stated in the FIR that the appellants committed marpeet with him on the way inside his native village when he was returning to his house after doing a manual job, whereas he has deposed that the appellants committed marpeet with him in front of his house and before the marpeet they abused him. In view of the above facts and evidence, in my considered opinion, complainant Pitha has improved his version in his evidence. Thus, his testimony does not inspire confidence.
23. Complainant Pitha has admitted that he is not on speaking terms with the appellants over two years prior to the incident. He has also admitted that he and others have been facing trial of committing marpeet with Asha (DW-2) who happens to be brother- in-law of appellants Dalla and Natha. He has also stated that the appellants do not allow him to cultivate the land of his ownership. From said statement of complainant Pitha, an interference can be drawn that he has a land dispute with the appellants. In view of the aforesaid admissions made by complainant Pitha, it is highly Cr.A.No.1993 of 2009 (13) probable that he has implicated all the appellants being family members but in fact at the most one of them had committed marpeet with him.
24. In view of the aforesaid close scrutiny of the evidence of complainant Pitha, I find that his evidence is not such type as to place full reliance upon his testimony. Thus, the learned trial Judge has erred in placing implicit reliance upon the sole testimony of complainant Pitha.
25. As per the evidence available on record, complainant Pitha sustained all the injuries at one time. The offence punishable under Section 323 IPC is a minor offence to the offence punishable under Section 326 IPC, therefore, the learned trial Judge has committed a legal error by convicting and sentencing the appellants under Sections 323 and 326 IPC in view of the provisions of Section 71 IPC. Thus, the conviction and sentence imposed by the learned trial Judge upon the appellants under Section 323 IPC is set aside.
26. While doing close scrutiny of the evidence of complainant Pitha, I have already held that his testimony does not inspire confidence, therefore, the appellants deserve to be acquitted of the offence under Section 326 IPC by giving benefit of doubt.
27. For the forgoing reasons, this appeal is allowed and the Cr.A.No.1993 of 2009 (14) coviction and sentence awarded to the appellants under Section 323 is set aside and they are acquitted of the said charge. Appellant Dalla and the remaining appellants are acquitted of the charge under Section 326 IPC and 326 r.w. 34 IPC respectively by extending benefit of doubt. The trial court is directed to refund the fine amounts to the appellants subject to verification. The bail-bonds furnished by the appellants shall remain in force for a further period of six months from the date of this judgment in view of the provisions of Section 437-A Cr.P.C.
28. Accordingly, this appeal is finally disposed of.
(Rajendra Mahajan)
haider/-* Judge