Madhya Pradesh High Court
Shanker Lodhi vs The State Of Madhya Pradesh on 17 October, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J
CRIMINAL APPEAL No.3420 OF 1999
Shanker.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL No.3421 OF 1999
Kirat and others.
Vs.
State of Madhya Pradesh.
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Shri Siddharth Datt, Advocate for the appellants.
Shri Ajay Tamrakar, Panel Lawyer for the respondent/State.
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JUDGMENT
(Delivered on the 17th day of October, 2012) This judgment passed by me shall govern the disposal of above mentioned Criminal Appeals, since both the appeals arise out of the common impugned judgment dated 17.12.1999 passed by the Third Additional Sessions Judge, Sagar Camp Rehli in ST No.78/1999.
2. These criminal appeals are preferred by the appellants being aggrieved by the judgment and order of sentence dated 17/12/1999 passed by the Third Additional Sessions Judge, Sagar Camp Rehli in ST No.78/1999, whereby the appellants were convicted and sentenced as under:
2 Cr.A. No.3420/99 & 3421/99
Name of Conviction Sentence Fine Default the accused U/S (IPC) (Rs.) sentence Appellants 148 2 years' RI Shankar, Kirat, 307 or 6 years' RI 500/- 6 months' SI Bharat and 307/149 each Narayan 450 6 years' RI 500/- 6 months' SI each Appellant 148 2 years' RI Girwar 307 or 6 years' RI 500/- 6 months' SI 307/149 each Appellant 147 1 year's RI Govind 307 or 6 years' RI 500/- 6 months' SI 307/149 each All the sentences were directed to run concurrently.
3. The prosecution's case, in short, is that on 30.9.1998 at about 8:00 PM in the evening the complainant Purshottam Lodhi was present in his house situated at Village Renjha (Police Station Rehli District Sagar). The appellants and other co-accused persons entered into the house of the complainant. Accused Baliram and Shankar had ballams, whereas accused Narayan, Bharat and Kirat had axes in their hands and other accused persons had sticks. Accused Baliram assaulted the complainant Purshottam with a ballam on his jaw. Co-accused persons took the complainant from his house to the hotel of Kharge Patel and thereafter other accused persons assaulted him with sticks and back of axes. Accused Baliram also assaulted for second time with a ballam causing injury on 3 Cr.A. No.3420/99 & 3421/99 the head of the victim Purshottam, whereas the accused Shankar assaulted the victim Purshottam with a ballam causing injury on his left ankle. The incident was seen by Bhopal Singh (PW-4) and Khalak Singh (PW-11). When the complainant was left by the accused persons, he told about the incident to the Kotwar and so many persons. Thereafter he was taken to the Police Station Rehli by a tractor where he lodged an FIR Ex.P-11. He was directed for his medico legal examination. Dr.R.K.Singhai (PW-1) examined the complainant Purshottam and gave his report Ex.P-1. He found as many as nine injuries to the victim Purshottam. Out of them, there were five incised wounds. One was on the right parietal region, second was on the left jaw, third and fourth were on the left hand, whereas fifth wound was on the left leg. He found 3-4 contused wounds to the victim Purshottam at two places of left hand and right leg. He referred the victim for Radiologically examination and treatment. Dr. Subhash Jain (PW-10) examined the victim Purshottam Radiologically and gave his report Ex.P-19. He found him a fracture of mandible bone, a fracture of first meta carpal bone in the left hand, a fracture of left tibia bone, a fracture of right tibia bone and fracture of right humerus bone. After due investigation, a charge sheet was filed before the JMFC Rehli, who committed the case to the Sessions Judge, Sagar and ultimately it was transferred to 4 Cr.A. No.3420/99 & 3421/99 the Third Additional Sessions Judge, Sagar Camp Rehli.
4. The accused Baliram remained absconding, whereas the present appellants-accused abjured their guilt. They took a specific plea that the complainant Purshottam robbed and assaulted the accused Baliram in the past, and therefore a case was pending against the complainant. Under such circumstances, a false report was lodged against the appellants. The appellant Shankar has stated that he was the Panchayat Secretary, and therefore he was falsely implicated in the matter so that he may lose his job. In defence Notary Lakhanlal Rathore (DW-1), retired Patwari Chhotelal Shrivastava (DW-2), Vinod (DW-3) and Pratap (DW-4) were examined.
5. The learned third Additional Sessions Judge after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above, whereas accused Rajkumar and Munna were acquitted. The appellants Govind and Girwar were also acquitted from the charge of offence under Section 450 of IPC.
6. I have heard the learned counsel for the parties.
7. The learned counsel for the appellants has submitted that no fatal injury was caused to the victim. He sustained fractures in hands and legs, which are not the vital parts of the body, and therefore at the most offence under Section 326 of IPC could be constituted against the 5 Cr.A. No.3420/99 & 3421/99 absconding accused Baliram, whereas the present appellants can be convicted for the offence under Section 326 or 324 of IPC. If the offence under Section 307 or 326 of IPC is not constituted against the appellants, then they cannot be convicted for the offence under Section 450 of IPC. Their conviction can be reduced to the offence under Section 452 of IPC. No common intention of the appellants is established with the absconding accused Baliram. The learned counsel for the appellants has invited attention of this Court to the dying declaration Ex.D-6 given by the victim Purshottam at the time when he was admitted in the hospital. It is further submitted that the appellant Shankar remained in the custody for more than two years, whereas other appellants remained in the custody for two months. Under such circumstances, where they suffered the trial and the appeal for last 14 years, it is prayed that they would not be sent to the jail again.
8. On the other hand, the learned counsel for the State has argued in support of the impugned judgment on the ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court in the conclusion drawn by the trial Court.
9. After considering the submissions made by the learned counsel for the parties and looking at the facts and 6 Cr.A. No.3420/99 & 3421/99 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?
10. In the present case Purshottam (PW-6) was examined as a complainant who has stated that the accused Baliram assaulted him with a ballam causing him injury in his jaw, whereas accused Girwar, Narayan, Kirat and Bharat assaulted him with the back of axes causing injuries in his hands and legs. He has further stated that he was assaulted with a ballam by accused Shankar on his head. The incident took place in his house and in front of hotel of Kharge Patel. He has stated that the incident was seen by Bhopal Singh (PW-4) and Khalak Singh (PW-11). Bhopal Singh has stated that the appellant Shankar assaulted the victim Purshottam with a ballam on his jaw and remaining accused assaulted him by the back of axes and sticks. Ramwati (PW-3) has also stated about the incident, but looking to her case diary statement Ex.D-1, it appears that she was not an eye-witness. The name of witness Ramwati was not mentioned in the FIR as an eye-witness. Second witness as quoted in FIR was Khalak Singh (PW-11), who has stated that Baliram assaulted the victim with a ballam in his jaw and head, whereas Shankar assaulted him with a ballam on his right elbow and other appellants assaulted 7 Cr.A. No.3420/99 & 3421/99 the victim by the back of axes. The complainant Purshottam had lodged an FIR Ex.P-11 soon after the incident. The incident took place on 30.9.1998 at about 8:00 PM in the evening, whereas he was taken to the Police Station Rehli by a tractor after sometime and he could lodge an FIR Ex.P-11 on 1.10.1998 at 1:30 AM in which he stated about the incident.
11. Initially the defence was taken by the appellants that some persons assaulted the victim in the dark and he could not see the actual culprit, and therefore some affidavits were given by the complainant in favour of Rajkumar and Munna. Similarly, one affidavit was executed by Pancham Singh that names of Rajkumar and Munna were not mentioned in the FIR. The witnesses Vinod (DW-3) and Pratap (DW-4) were examined that there was dark at the spot and they found the complainant Purshottam lying near the hotel of Kharge Patel. He was under intoxication and he could not tell the name of the culprits. The complainant Purshottam has lodged the FIR soon after the incident. He gave the dying declaration Ex.D-6 to the concerned Magistrate at 2:30 AM on 1.10.1998 and if he would have not seen the accused persons, then he could not mention their names in the FIR as well as in his statement Ex.D-6. It appears that Vinod and Pratap were created 8 Cr.A. No.3420/99 & 3421/99 witnesses from the side of the defence, therefore the testimony of these witnesses cannot be relied upon.
12. The testimony of Notary Lakhanlal Rathore (DW-1), retired Patwari Chhotelal Shrivastava (DW-2) is not required to be considered at present, because it is related with the accused Rajkumar and Munna. The trial Court has acquitted those two persons, and therefore their overt-acts may not to be considered in the present appeals. The testimony of the complainant is duly corroborated by eye- witnesses Bhopal Singh and Khalak Singh. It is apparent that the victim was taken in front of the hotel of Kharge Patel, and therefore it cannot be said that there was no arrangement of light in front of hotel of Kharge Patel or the witnesses could not see the culprits who assaulted the victim Purshottam. There is a slight contradiction between the complainant and the witnesses that the complainant Purshottam did not say about any assault caused by the appellant Shankar, whereas Bhopal Singh states that Shankar assaulted the victim Purshottam with a ballam causing injury on his jaw, whereas Khalak Singh says that Shankar assaulted the victim Purshottam with a ballam on his right elbow. In the dying declaration Ex.D-6 the complainant had stated that Shankar assaulted him with a ballam but he did not tell that by the assault of ballam by Shankar which injury was caused to the victim. However, 9 Cr.A. No.3420/99 & 3421/99 looking at the FIR and statement of these witnesses, it is apparent that it was accused Baliram who assaulted the victim Purshottam with a ballam on his jaw and head. Such injuries were caused in the house of the victim Purshottam where all the appellants did not assault in the house. Similarly, the remaining appellants could not see that Baliram assaulted in such a manner. Under such circumstances, it would be clear that the injuries caused to the victim on his head and left jaw were not caused by the appellants.
13. According to the Dr.R.K.Singhai (PW-1), two incised wounds were found on the left hand of the victim, and therefore it appears that the appellant Shankar assaulted the victim Purshottam with a ballam on his left hand. Dr. Subhash Jain found fractures in both the legs, right hand and left meta carpal bone. It appears that fractures of left meta carpal bone and left fibula were caused by the sharp cutting weapon, whereas the fractures of right fibula and right humerus bone were caused by the hard and blunt object. By the nature of injuries, it would be clear that two fractures were caused by the appellant Shankar by assaulting the victim with a ballam, whereas two fractures were caused by other accused persons assaulting him by hard and blunt objects, whereas fracture 10 Cr.A. No.3420/99 & 3421/99 of mandible bone was caused by the accused Baliram with the help of a ballam.
14. The learned counsel for the appellants have submitted that no fatal injury was caused to the complainant, and therefore the appellants could not be convicted for the offence under Section 307 of IPC. It is true that except the fracture of mandible bone, remaining grievous injuries were caused on the hands and legs of the victim, which are not on the vital part of the body. Dr. R.K. Singhai referred the patient for Radiologically, surgical and dental specialist, but no opinion of surgical and dentist specialist was produced by which it can be said that the injury of jaw caused to the victim was fatal in nature. It appears that except the accused Baliram, other accused persons assaulted the victim in such a manner that no vital part should be hurt, and therefore they were not intended to kill the deceased. Under such circumstances, the appellants could not be convicted for the offence under Section 307 of IPC. The offence of the appellant Shankar falls within the purview of Section 326 of IPC and the offence of remaining appellants falls within the purview of Section 325 of IPC.
15. It is also true that the initial incident took place in the house of the complainant and thereafter the complainant was taken to the hotel of Kharge Patel. 11 Cr.A. No.3420/99 & 3421/99 According to the FIR, initially 4-5 persons went inside the house of the victim. The trial Court has acquitted the appellants Govind and Girwar for the offence under Section 450 of IPC, because they did not enter into the house of the complainant. The complainant and the eye-witnesses have stated that except the appellant Shankar, remaining appellants took pre-caution that they did not assault the victim from sharp edged portion of axes. They assaulted the victim from the back of the axes, and therefore looking at their conduct, it appears that they did not have any common intention with the appellant Shankar to cause grievous hurt to the victim with the help of sharp cutting weapon. Looking at the pre-caution taken by the appellants, their common intention cannot be presumed with the appellant Shankar for the offence under Section 326 of IPC. Under such circumstances, the appellant Shankar can be convicted for the offence under Section 326 of IPC, but other appellants cannot be convicted for the offence under Section 326 of IPC either directly or with the help of Section 149. But they also caused grievous injuries to the victim by hard and blunt objects, and therefore each of them is responsible for the offence under Section 325 read with Section 149 of IPC.
16. The trial Court has convicted some of the appellants for the offence under Section 148 of IPC, 12 Cr.A. No.3420/99 & 3421/99 whereas some of them were convicted for the offence under Section 147 of IPC. It is apparent that more than five persons participated in the crime, and therefore they constituted the unlawful assembly, hence the appellants who had deadly weapons were required to be convicted for the offence under Section 148 of IPC and remaining appellants who had sticks in their hands were liable for the offence under Section 147 of IPC. Under such circumstances, the conviction directed by the trial Court for the offence under Section 147 or 148 of IPC appears to be correct and no interference is required in that conviction directed by the trial Court.
17. So far as entering into the house of the complainant is concerned, it is clear that it was only Baliram who assaulted the victim in the house, whereas other took the victim out of the house and thereafter he was assaulted. Hence, it cannot be said that while entering into the house of the complainant, there was intention of the appellants to commit any offence punishable by life imprisonment. They did not remain in the house during the crime committed by them, and therefore they could not convicted for the offence under Section 450 of IPC. On the contrary, their intention indicates that they entered in the house of the victim with preparation of assault, and 13 Cr.A. No.3420/99 & 3421/99 therefore they are liable for the offence under Section 452 of IPC.
18. So far as the sentence is concerned, the appellant Shankar is convicted mainly for the offence under Section 326 of IPC and various other offences, whereas he remained in the custody for two years and five months and looking at the entire period of his custody with the fact that he has faced the trial and appeal for last 13 years and looking at his overt-act, it appears that he has punished properly, and therefore it would be proper to reduce his sentence to the period which he has already undergone in the custody.
19. The other appellants are convicted for the offence under Sections 147 or 148, 325/149. The appellants Kirat, Bharat and Narayan are also convicted for the offence under Section 452 of IPC. It is true that they assaulted the victim causing him grievous injury, but all of them remained in the custody for two months approximately and they have faced the trial and appeal for last 13 years. Therefore, it would be proper not to send them to the jail again, but some fine may be imposed for the offence under Section 325/149 of IPC.
20. On the basis of the aforesaid discussion, the appeals of the present appellants are partly allowed. Their conviction and sentence directed by the trial Court under 14 Cr.A. No.3420/99 & 3421/99 Section 307/149 of IPC are hereby set aside. The conviction and sentence under Section 450 of IPC are also set aside for the appellants. The appellant Shankar is convicted for the offence under Sections 326, 452 and 148 of IPC and sentenced for the period which he has already undergone in the custody. There is no change in the fine amount. The conviction of the appellants Kirat, Bharat, Narayan and Girwar for the offence under Section 148 is maintained. Similarly, the conviction of the appellant Govind for the offence under Section 147 of IPC is maintained. All these appellants are also convicted for the offence under Section 325/149 of IPC whereas the appellants Bharat, Kirat and Narayan are also convicted for the offence punishable under Section 452 of IPC and sentenced for the period which they have already undergone in the custody but for the offence under Section 325/149 of IPC they are inflicted with fine of Rs.5,000/- each. In default of payment of fine, each of them shall undergo for nine months' RI. No fresh imposition of fine for remaining offences. The appellants are directed to deposit the remaining fine amount within two months from today, otherwise the trial Court would execute the default sentence.
21. At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.
15 Cr.A. No.3420/99 & 3421/99
22. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 17/10/2012 Ansari