Madhya Pradesh High Court
State Of M.P. vs Daulat Ram And Others on 24 April, 2017
Bench: N.K. Gupta, S.K. Awasthi
1 Cr.A. No. 149/2000
HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
Division Bench
PRESENT:
HON'BLE MR. JUSTICE N.K. GUPTA
&
HON'BLE MR. JUSTICE S.K. AWASTHI
CRIMINAL APPEAL NO. 149 OF 2000
State of Madhya Pradesh
Vs-
Daulatram and others
For the appellant/State : Shri J.M. Sahani, Panel Lawyer.
For the respondents : Shri Rajmani Bansal, Advocate.
JUDGMENT
(27/04/2017) Per Justice N.K. Gupta The State has preferred the present appeal against the respondents relating to the judgment dated 10.11.1998 passed by the Sessions Judge, Vidisha in S.T. No. 186/1991, whereby the appellants have been acquitted from the charges of Sections 148, 326 read with Section 149, 307 read with Section 149 and 506 (Part-II) of IPC.
(2) Prosecution's case, in short, is that on 21.08.1990 complainant Halki Bai (PW-3) lodged the FIR at Police Station Gyaraspur which was registered in rojnamcha Ex.P-14 that on that day at about 11:00 to 12:00 in the noon, her son Vinod Kumar (PW-4) was standing in front of house of Bhanvarji Kachhi then respondent Madan Sharma came and gave a blow of stick on his head, thereafter respondents Omkar, Daulat and Mahesh assaulted him. Vinod Kumar started running and he entered in the house of Umakant Shrivastava (PW-5). In front of house of Umakant, respondent Laxmi assaulted him with Farsa. Umakant, 2 Cr.A. No. 149/2000 who was a blind and handicapped person, kept the victim Vinod in his house and closed the door, thereafter the respondents started breaking the doors. In the meantime, Kanhaiya Lal (PW-8) father of Vinod Kumar went to the spot and tried to convince the respondents not to assault the victim Vinod Kumar then he was beaten by the respondent Omkar. Kanhaiya Lal sustained injuries on his hands and legs. Thereafter, Vinod Kumar came out of the house and he was again beaten by the respondents. After registering the report, Police arranged to take the victim Vinod Kumar (PW-4) and Kanhaiya Lal (PW-8) to the concerned hospital. Dr. Rajendra Kumar Rai (PW-1) examined both the injured persons, namely, Kanhaiya Lal and Vinod at Primary Health Center, Gyaraspur and gave a report Ex. P-1A and P-2A respectively. Those were referred for x-ray examination and referred to the District Hospital, Vidisha for the treatment. (3) SHO Police Station Gyaraspur Yogendra Kumar Shrivastava (PW-13) had registered a case of offence under Section 324 of IPC by FIR Ex. P-14. He examined the various witnesses under Section 161 of the Cr.P.C. He arrested the accused persons Laxmi Narayan, Omkar, Mahesh, Madan and Anil on 19.09.1990. Various sticks (lathis) and other weapons were recovered from such accused persons. He also sent a query letter to the Block Medical Officer, Gyaraspur and he received a memo Ex. P-15 from the concerned doctor. After due investigation, the charge-sheet was filed before the JMFC, Vidisha, who committed the case to the Court of Session.
(4) The respondents abjured their guilt. They took a plea that they were falsely implicated in the matter, however, one constable Ramsweak Shukla (DW-1) was examined to show that so many cases were pending against the complainant Vinod. (5) The Sessions Judge, Vidisha after considering the evidence adduced by the parties acquitted the respondents from all above charges.
3 Cr.A. No. 149/2000(6) We have heard the learned counsel for the parties at length.
(7) First of all, it is to be considered as to whether the victim Vinod Kumar sustained any fatal injury and the victim Kanhaiya Lal sustained a grievous injury caused by sharp cutting weapon. In this connection, the evidence given by Dr. Rajendra Kumar Rai (PW-1) is important. He examined the victim Kanhaiya Lal (PW-8) and gave a report Ex. P-1A. He found following injuries:-
"1. Incised wound longitudinally 1" length ½" width ½" deep over medial side of right leg 5"
above the medial side of right ankle joint. Both the edges of the wound in-opposition found together by blood and lymph.
2. Incised wound longitudinally 1" length ½" width ½" deep anterior surface of left leg 4"
below the lower back of left patella bone. Both the edges of the wound in-opposition found together by blood and lymph.
Nature: simple caused by hard and sharp object.
Duration: within 36 hours
3. Incised wound longitudinally left forearm 4" below the posterior surface of left elbow joint 1" length ¼" deep ¼" width. Both the edges of the wound in-opposition found together by blood and lymph.
Nature: simple caused by hard and harp object.
4. Two parallel obliquely blue color bruise over anterior surface at left arm 2" each in length ¼ witdh at ½" distance with each other swelling present over the bruish.
Nature: simple caused by hard and blunt object.
Duration: within two days.
5. Two parallel color bruise over left side of back 4" below the anterior angle of left scapular bone 4" each in length ¼" width at ½"
distance with each other. Swelling present over the bruise.
Nature: simple caused by hard and blunt object.
Duration: within two days."4 Cr.A. No. 149/2000
He referred the victim Kanhaiya Lal for his x-ray examination, however, no x-ray report was proved by any doctor and Dr. Rajendra Kumar Rai did not find any injury to be grievous in nature. Hence, it is proved that the victim Kanhaiya Lal sustained three incised wounds and two other blunt injuries, which could not be proved to be grievous.
(8) Similarly, Dr. Rajendra Kumar Rai examined the victim Vinod Kumar (PW-4) and gave his report Ex. P-2A. He found the following injuries:-
"1. Incised wound obliquely over frontal region of skull left side 3" above the middle of the left eyebrow. 3" length 1" width 1" deep. Both the edges of the wound in-opposition found together by blood and lymph.
Nature: simple caused by hard and sharp object.
Duration: within 36 hours.
2A. Two parallel obliquely blue in color bruise over posterior surface of right forearm at middle 5" above the right wrist joint 5" each in length ¼" width at ½" distance with each other. Swelling present over the bruise.
Nature: simple caused by hard and blunt object.
Duration: within two days.
2B. Two parallel obliquely blue in color anterior surface of right forearm 4" each in length ¼" width at ½" distance with each other swelling present over the bruise.
Nature: simple caused by hard and blunt object.
Duration: within two days.
3. Signed inflammation and evolution of blood present over soft tissue around the injury No. 1 and 2.
Nature of the injury can be given after the x-ray of right forearm between right elbow and wrist joint caused by hard and blunt object.
Duration: within three days.
4. Two parallel obliquely blue color bruise over lateral malleolus right ankle joint 2"
each in length ¼" width at ½" distance with each other. Swelling present over the bruise.
5 Cr.A. No. 149/2000Nature: simple caused by hard and blunt object.
Duration: within two days.
5. Signed inflammation and evolution of blood present over soft tissue around the injury No. 4. Nature of the injury can be given after x- ray of right ankle joint caused by hard and blunt object.
Duration: within three days.
6. Two parallel obliquely blue color bruise over lateral side of left thigh 4" each in length ¼" width at ½" distance with each other. Swelling present over the bruise at middle of the thigh.
Nature: simple caused by hard and blunt object.
Duration: within two days.
7. Lacerated wound anterior surfaced of left lower lymph at middle 6" below the lower portion of left patella bone 1" length ½" deep ½" width. Both the edges of the wound in-opposition found together by blood and lymph.
Nature: simple caused by hard and blunt object.
Duration: within 36 hours."
Dr. Rajendra Kumar Rai referred the patient for x-ray examination and further treatment to the District Hospital, Vidisha, however, no evidence was produced before the trial Court or District Hospital, Vidisha to prove that the victim Vinod Kumar sustained any grave or fatal injury. Hence, as per report Ex. P-2A, it is proved beyond doubt that the victim Vinod Kumar sustained seven injuries. Out of them, one was incised wound on his head but no injury could be proved to be fatal or grievous in nature.
(9) In the present matter, Bhanwar Lal (PW-2), Vinod Kumar (PW-4), Umakant (PW-5) and Kanhaiya Lal (PW-8) are examined as eyewitnesses. Out of them, Umakant (PW-5) was a handicapped person, who could not see the culprits. Bhanwar Lal (PW-2) has turned hostile, whereas Vinod Kumar and Kanhaiya Lal have stated that Vinod Kumar was initially standing near the house of Bhanwarji Kachhi then the respondent Madan 6 Cr.A. No. 149/2000 surrounded him and gave a blow of Farsa causing injury on his right hand. Since iron part of Farsa was dropped, he sustained the injury of lathi. He entered in the house of Umakant and closed the door but the respondents pushed the doors and snatched him in the courtyard and started assaulting. According to him, Omkar Singh assaulted him with a Farsa causing injury on his left leg. Laxminarayan, Daulatram and Madan have also assaulted him with different type of sticks. Laxminarayan had a Ballam, whereas Daulatram had Luhangi and in stick of Madanlal, one nut was fixed. According to Umakant, when he took the victim Vinod Kumar in the house and closed the door, respondents tried to break the doors and when Kanhaiya Lal (PW-8) came to the spot, respondents started assaulting him and when Kanhaiya Lal was beaten by the respondents then Vinod went outside of the house and thereafter he was beaten by the respondents. (10) The witness Umakant though could not see anyone but he could identify the various persons after hearing their voices. He has stated that he heard the voice of respondent Madan and voice of Kanhaiya Lal that he was praying to the respondents to leave his son Vinod Kumar. He also identified the voice of one Laxminarayan. Hence, though Umakant could not see the entire incident but he has proved that Vinod Kumar initially went inside his house and thereafter he went out of the house because respondents have beaten his father Kanhaiya Lal. Kanhaiya Lal (PW-8) has stated that after knowing about the incident, he went to the house of Umakant and he saw the respondents Omkar, Laxminarayan and Madan. He prayed them not to assault his son but they assaulted him with various weapons. He sustained injuries on his legs and right hand of the sticks. Thereafter, Vinod came out of the house and, therefore, the respondents started assaulting the victim Vinod Kumar. Kanhaiya Lal has claimed that he was turned unconscious and he did not know as to how he was taken to the Police Station.
7 Cr.A. No. 149/2000(11) Halki Bai (PW-3) mother of Vinod Kumar and wife of Kanhaiya Lal has stated that she saw the respondent Daulatram having a blood stained Ballam and Daulatram told her that they killed her son. Therefore, she immediately went to the spot, kept head of her son in her lap. Vinod Kumar demanded for water and she supplied the same, thereafter the witness Umakant (PW-5) went to the house of Sarpanch and on the direction given by Sarpanch, unconscious Vinod Kumar was taken to the house of Sarpanch and, thereafter she went to the Police Station Gyaraspur and lodged the FIR. In the present matter, the FIR was lodged in a rojnamcha whose copy was produced as Ex. P-14, however, the witness Head Constable Sheshmani Mishra (PW-12) has stated that such rojnamcha was destroyed and it is not available either at Police Station or in the S.P. Office. However, it makes no difference if rojnamcha is destroyed because in the FIR Ex. P-14, after enquiry when case was registered, the Investigation Officer reproduced the entire entry of rojnamcha in the FIR and, therefore, if rojnamcha is not separately proved then it makes no difference. Evidence given by Vinod Kumar and Kanhaiya Lal has also corroborated by the timely lodged FIR lodged by Halki Bai. (12) It is apparent that Halki Bai had to visit the house of Sarpanch along with the witness Umakant who was blind and thereafter some laborers of Sarpanch picked up Vinod Kumar and Kanhaiya Lal to the house of Sarpanch and thereafter Halki Bai could go to lodge the FIR. Hence, sufficient time was exhausted in adopting such procedure and hence, the FIR appears to be lodged by Halki Bai within reasonable time and hence, it is believable. Though doctor, who took the x-ray of the victims could not be examined. X-ray report filed along with the charge-sheet could not be proved, however, the medical reports as proved by Dr. Rajendra Kumar Rai clearly indicates that the victims Vinod Kumar and Kanhaiya Lal have sustained such injuries as told by them due to assault caused by the respondents, hence, evidence of these 8 Cr.A. No. 149/2000 eyewitnesses is also corroborated by the medical evidence. The learned counsel for the respondents has submitted that description of the incident as given by Halki Bai and Kanhaiya Lal is not uniform. If Kanhaiya Lal was beaten at the spot where Vinod was beaten then as to why Halki Bai could not get the victim Kanhaiya Lal initially when she went to the spot and the victim Vinod Kumar was picked up from the spot. However, this contradiction is not material because according to Kanhaiya Lal himself due to assault done by the respondents, he fell down on the ground and turned unconscious. He could not describe the injuries caused by the respondents to the victim Vinod Kumar. Hence, it is possible that Kanhiaya Lal was lying at a different place and when the respondents were beating Vinod, he would have fell down at a different place and under such circumstances, it was possible that Halki Bai could not get the victim Kanhaiya Lal at that spot, where the victim Vinod Kumar was lying.
(13) It is also submitted by the learned counsel for the respondents that it is alleged by Halki Bai in the FIR Ex. P-14 that only Omkar had assaulted the victim Kanhaiya Lal, whereas Kanhaiya Lal has stated that he was assaulted by Omkar, Laxminarayan, Daulatram and Madan and, therefore, it is a big contradiction. However, such contradiction is not material in the present case because when Halki Bai lodged the FIR Ex. P-14 in rojnamcha, she could not talk with Kanhaiya Lal before lodging of the FIR, because he was lying unconscious somewhere else. Hence, Halki Bai would have lodged the FIR on the information given by the others like Umakant but since Umakant was handicapped person, it is possible that he could not inform the complainant Halki Bai that other respondents have also assaulted the victim Kanhaiya Lal along with the respondent Omkar. (14) Learned counsel for the respondents has also submitted that the respondents have falsely implicated due to enmity, however, enmity is a double edged weapon and due to 9 Cr.A. No. 149/2000 enmity, someone can hit his enemy or enemy can lodge a false report against his enemy. In the present case, the witnesses have specially named the persons, who assaulted them. Kanhaiya Lal has stated against only four persons namely Omkar, Laxminarayan, Daulatram and Madan. If he had falsely implicated the respondents due to enmity then he would have told the name of all of the respondents. Similarly, Vinod Kumar had made omnibus statement that all of the respondents assaulted him but in cross-examination, he gave the detail that the respondents Madan, Laxminarayan, Omkar and Daulatram have assaulted him. He specifically has stated about the arms kept by these respondents. Under these circumstances, due to corroboration of the FIR Ex. P- 14 medical evidence as proved by Dr. Rajendra Kumar Rai, evidence given by Vinod Kumar and Kanhaiya Lal is acceptable and it was proved beyond doubt that the respondents Daulatram, Madan, Laxminarayan and Omkar assaulted these two victims by various weapons causing at least simple injuries. (15) There is no counter FIR lodged by the respondents to show that the victims were the aggressors, hence, there was no claim of the respondents relating to right of private defence. No suggestion was given to the victim Vinod Kumar and Kanhaiya Lal that Vinod Kumar did such an overt act so that a sudden or grave provocation was caused to the respondents. Looking to the entire factual position when Vinod took the shelter in the house of Umakant still the respondents have tried to break the doors of the house of Umakant and thereafter when Kanhaiya Lal went there and told them not to assault his son then the respondents assaulted the victim Kanhaiya Lal also and, therefore, looking to the factual position, in the light of provision under Section 39 of IPC, it is established that these four respondents had voluntarily caused hurt to the victims Vinod Kumar and Kanhaiya Lal. Out of them, some of them have assaulted with the sharp cutting weapon causing incised wounds. Hence, in absence of proof of any grave 10 Cr.A. No. 149/2000 or fatal injury caused to the victim Vinod Kumar and Kanhaiya Lal, it was for the trial Court to convict the respondents for offence under Section 324 or 323 of IPC as the case may be under the charge of Section 307 and 326 of IPC for the various victims. The trial Court has committed an error in acquitting the respondents from all the charges.
(16) As discussed above, it is proved by the victim Vinod Kumar and Kanhaiya Lal that out of seven respondents, four respondents namely Daulatram, Madan, Laxminarayan and Omkar have participated in the crime and, therefore, no unlawful assembly was found to be constituted. Hence, no respondents can be convicted for activity of others with help of provision under Section 149 of IPC and no respondents could be convicted of offence under Section 148 of IPC. However, when charges were framed of offence under Sections 307 or 307 read with Section 149 and 326 or 326 read with Section 149 of IPC then the respondents have the knowledge that they had to defend the case for the crime committed by others because charges under Section 149 of IPC were also framed. Under these circumstances, if their conviction is considered under Section 34 of IPC then no prejudice shall be caused to the respondents. All four respondents have participated in the crime radically. They knew about the weapons kept by their co-accused and, therefore, they had their common intention to cause at least simple injuries to both the victims by sharp cutting weapons. Hence, under the provision of Section 34 of IPC, out of aforesaid four respondents, each of them shall be convicted of offence under Section 324 read with Section 34 of IPC for the victim Kanhaiya Lal as well as the victim Vinod Kumar. (17) The witnesses did not say anything about the threat given by the respondents and, therefore, the trial Court has rightly acquitted the respondents from the charge under Section 506 (Part-II) of IPC.
(18) In the appeal filed against the judgment of acquittal, if 11 Cr.A. No. 149/2000 the appellate Court has a second view then no interference should be done by the appellate Court but if it appears that the trial Court could not do appropriate justice and conclusions are drawn by improper appreciation of evidence then it is the duty of the appellate Court to interfere in the judgment of the trial Court. Under these circumstances, it would be appropriate that the respondents Daulatram, Madan, Laxminarayan and Omkar shall be convicted of offence under Section 324 read with Section 24 of IPC for the victim Kanhaiya Lal, whereas the trial Court has framed the charge of offence under Section 326 read with Section 149 of IPC for the victim Kanhaiya Lal. Similarly, the aforesaid respondents shall be convicted of offence under Section 324 read with Section 34 of IPC for the victim Vinod Kumar under the charges of Section 307 or 307 read with Section 149 of IPC. (19) So far as the sentence is concerned, the learned counsel for the respondents informs that each of aforesaid respondents remained in the custody for at least 4-5 days during the trial. They have faced the trial and appeal for approximately 26 years. They were the first offenders and, therefore, it would be appropriate that they may not be sent to the jail again. The learned counsel for the respondents submits that if fine is imposed then the respondents shall deposit the fine in the case. Since no grave or fatal injury is proved relating to the victim Vinod Kumar and Kanhaiya Lal and the respondents are being convicted of offence under Section 324 read with Section 34 of IPC, contention of the learned counsel for the respondents can be accepted. Looking to the aforesaid circumstances, it would be appropriate to impose the jail sentence for which they remained in the custody with appropriate fine.
(20) On the basis of the aforesaid discussion, the appeal filed by the State is hereby partly allowed. Appeal filed by the State against the respondents No. 3, 6 and 7 namely Mahesh, Dayashankar and Anil is hereby dismissed, whereas appeal filed 12 Cr.A. No. 149/2000 by the State against the respondents No. 1, 2 , 4 and 5 namely Daulatram, Madan, Laxminarayan and Omkar is accepted. Each of them is convicted of two count charges under Section 324 read with Section 34 of IPC and for each count of charge, they are sentenced to the period of jail sentence for which they remained in the custody during trial but a fine of Rs.5,000/- is imposed upon each of these respondents for each count of offence under Section 324 read with Section 34 of IPC. The aforesaid respondents shall deposit the fine amount before the trial Court within two months from today, failing which each of them shall undergo for six months rigorous imprisonment for each count default. On depositing the fine amount, a sum of Rs.15,000/- each be given to the victim Vinod Kumar son of Kanhaiya Lal and victim Kanhaiya Lal son of Ganga Prasad, both are the residents of village Sehod Police Station Gyaraspur by way of compensation.
(21) The respondents are on bail. Their presence is no more required and, therefore, it is directed that bail bonds of the respondents No. 3, 6 and 7 namely Mahesh, Dayashankar and Anil shall stand discharged, whereas the bail bonds of remaining respondents shall be discharged after depositing the fine amount. (22) A copy of the judgment be sent to the Court below along with its record for information and compliance.
(N.K. Gupta) (S.K. Awasthi)
Judge Judge
(27.04.2017) (27.04.2017)
Abhi