Madhya Pradesh High Court
Gendlal And Ors. vs The State Of M.P on 9 April, 2012
Author: Tarun Kumar Kaushal
Bench: Tarun Kumar Kaushal
1
Cr. Appeal. No.37/1994
HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE : TARUN KUMAR KAUSHAL, J.
CRIMINAL APPEAL NO. 37 OF 1994
APPELLANTS : 1. Gendalal S/o Amar Singh,
Aged 62 years, Labourer,
R/o Lodhi Mohalla,
Sehore(MP).
2. Ramesh S/o Patiram Rathore,
Aged 54 years, Service,
R/o Ganj Bajaria, Sehore(MP).
3. Gendalal S/o Dalchand Rathore,
Aged 44 years, Labourer,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
4. Raju S/o Ramlal Rathore,
Aged 42 years, Tailoring Shop,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
5. Nandiram, S/o Ramlal,
Aged 46 years, Salesman,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
6. Mahesh S/o Patiram,
Aged 52 years, Service,
R/o Ganj, Sehore(MP).
7. Jagdish S/o Biharilal,
Aged 70 years,
Agriculturist,
R/o Ganj, Sehore(MP).
8. Rajesh, S/o Chatarsingh Rathore,
Aged 44 years, Labourer,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
9. Mohan S/o Mishrilal Rathore,
Aged 47 years Labourer,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
10. Shantilal S/o Kishanlal Rathore,
Aged 42 years, Service,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
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Cr. Appeal. No.37/1994
11. Satish S/o Jagdish Rathore,
Aged 50 years, Service,
R/o Rathore Mohalla, Ganj,
Sehore(MP).
12. Ramesh S/o Nandlal Rathore,
Aged 25 years, Labourer,
R/o Ganj, Sehore(MP).
Versus
RESPONDENT: The State of Madhya Pradesh
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For Appellant : Shri S.C. Datt, Senior Advocate with
Shri Vivek Saxena, Advocate.
For Respondent : Shri Pushpraj Singh, P.L.
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JUDGMENT
9/04/2012 This appeal has been preferred against the judgment dated 8.1.1994 passed by First Additional Sessions Judge, Sehore in Sessions Trial No.82/1983 convicting and sentencing the appellants as below:
Conviction Sentence U/s 148 IPC 1 year R.I. each and Rs.1,000/- fine each.
U/s 333/149 IPC for causing 5 years R.I. each and Rs.10,000/- injuries to Shri B.P. Singh, Sub fine each.
Inspector (PW-10) U/s 332/149 IPC for causing injuries to-
(i) Shivnarayan Sharma, ASI 2 years R.I. each and Rs.2,000/-
(PW-5) fine each.
(ii) Bachchan Singh (PW-6) 2 years R.I. each and Rs.2,000/-
fine each.
(iii) Chatar Singh (PW-12) 2 years R.I. each and Rs.2,000/-
fine each.
(iv) Veer Singh (Not examined) 2 years R.I. each and Rs.2,000/-
fine each.
2. Police Sehore submitted charge-sheet against 17 accused persons showing five of them have absconded. During trial, 16 accused persons faced trial and one accused Kallu remained absconded. Vide impugned judgment, 15 accused persons have been 3 Cr. Appeal. No.37/1994 convicted by the trial Court as above. Accused Raju was extended the benefit of Probation of Offenders Act. Pending this appeal, three accused persons appellants i.e. Gopal S/o Umraosingh, Onkar S/o Kashiram and Dr. Rajendra S/o Harprasad Rathore expired and appeal so far as to to the extent of those three appellants stood dismissed as abated. In this backdrop, this judgment is being delivered in respect of the aforesaid 12 appellants.
3. Facts of the case, in short, are that on 8.7.1981 Brijendra Pal Singh, Station House Officer, Kotwali, Sehore (PW/10) on receiving information regarding handling of opium in hotel of appellant accused Jagdish reached alongwith police force on the spot and apprehended a person in suspicious condition with opium. Appellants having assembled with deadly weapons like farsi, ballam and lathi, etc., attacked on police party and assaulted Shrinarayan Verma (PW-5), Bachchanlal Sharma, Head Constable (PW-6), Brijendra Pal Singh, SHO (PW-10) and Atar Singh, ASI (PW-12) who sustained injuries on their persons.
4. Appellant accused Mohan opened firing from the roof of the hotel of appellant Jagdish on the police party with a 12 bore deshi katta. In defence PW/10 also opened firing from his service revolver. PW-5 lodged FIR Ex.P-11 at police station Kotwali Sehore which was registered at Crime No.376/81 against the appellants under Section 147, 148, 149, 353, 332 and 307 IPC.
5. Dr. G.D. Semchandani, Assistant Surgeon, District Hospital Sehore (PW-4) examined injuries of 5 police officers i.e. Shrinarayan Sharma (PW-5), Bachchanlal Sharma (PW-6), Brijendra Pal Singh (PW-10), Atar Singh (PW-12) and one Veer Singh. Dr. Semchandani (PW-4) also examined the injuries of 3 private persons i.e. Ajay, Raghveer and Ramsingh, however, prosecution did not examine any of them in the Court but Raghveer Singh Rathore was examined as defence witness (DW-5) by appellants. Dr. Semchandani (PW-4) examined the injuries of appellants Jagdish, Nandiram, Raju and Ramlal also.4 Cr. Appeal. No.37/1994
6. Vide MLC report Ex.P-3, Ajay S/o Ramnarayan Rathore (not examined as prosecution witness) received following injuries:-
(i) Lacerated wound 1 c.m. x 1 c.m. x 1/2
c.m. on left thigh.
(ii) Lacerated wound 1 c.m. x 1 c.m. skin
deep on left buttock.
7. Vide MLC report Ex.P-4, Raghveer (DW/5) received injuries as follows:-
(i) Lacerated wound 1 c.m. x 1 c.m. skin
deep on right knee.
(ii) Lacerated wound 1 c.m. x 1 c.m. skin
deep on back side of right knee.
8. Vide MLC report Ex.P-5, Ramsingh (not examined as prosecution witness) received following injuries:-
(i) Lacerated wound 1 c.m. x 1 c.m. on right
elbow.
(ii) Contusion 1 inch x 1 inch on right thigh.
9. Vide MLC report Ex.P-6, Brijendra Pal Singh, SHO (PW-10) received following injuries:-
(i) Incised wound 2 1/2" x 1 c.m. on middle of
the head.
(ii) Incised would 2 c.m. x 1/2 c.m. skin deep on
left side of nose.
(iii) Incised wound 1 1/2 c.m. x 1/2 c.m. skin deep on left face.
(iv) Incised wound 1 1/2 c.m. x 1/2 c.m. on right nose.
(v) Swelling occipital region 3" x 2".
(vi) Diffuse swelling 3" x 2" on left back shoulder.
(vii) Contusion 2" x 1" on left upper arm.
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Cr. Appeal. No.37/1994
(viii) Diffuse swelling 2" x 1" on right chest.
(ix) Contusion 2" x 1" on left top shoulder.
(x) Lacerated wound on right forearm.
(xi) Contusion 1 c.m. x 1 1/2 c.m. on right index
finger.
(xii) Diffuse swelling 1 c.m. x 1 c.m. on right middle finger.
(xiii) Diffuse swelling 1 c.m. x 1 c.m. on right little finger.
(xiv) Laceration 3" x 3" on left thigh.
(xv) Diffuse swelling 2" x 1" on back.
10. Vide MLC report Ex. P/7, Atar Singh, ASI received following injuries:
(i) Lacerated wound 3" x 2" on right rib.
11. Vide MLC report Ex. P/8, Bachchanlal Sharma, Head Constable (PW/6) received following injuries:
(i) Lacerated wound 1" x 1/2" on the right side of the face.
(ii) Lacerated 1" x 1/2" on right elbow.
(iii) Diffuse swelling 1" x 1/2" on left wrist.
(iv) Contusion 1 1/2" x 1" on left shoulder.
12. Vide MLC report Ex. P/9, Shrinarayan Sharma received following injuries:
(i) Contusion 4" x 1/2" on the back left side.
13. Vide MLC report Ex. P/10, Veer Singh who was not examined, received following injuries:
(i) Diffuse swelling 3" x 2" on scalp occipital region right side.
(ii) Diffuse swelling 2" x 2" on tight thigh
with contusion 1" x 1".
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Cr. Appeal. No.37/1994
14. Vide MLC report Ex. D-2, appellant Jagdish received following injuries:
(i) Stab wound 3/4" x 1/4" x muscle deep on
the left side.
(ii) Fracture was suspected in right forearm
and advised for X-Ray.
(iii) Lacerated wound 1" x 1/2"
(iv) Contusion 3" x 2" on below right ear.
(v) Lacerated wound 1/2" x 1 c.m. on left
side upper lib.
15. Vide Ex. D/3, appellant Nandiram received following injuries:
(i) Lacerated wound 1" x 1/2" on right
knee.
(ii) Contusion 4" x 1" on back left shoulder.
(iii) Contusion 5" x 1" on left forearm.
(iv) Contusion 3" x 1" on left forearm.
(v) Contusion 2" x 1" on lower portion of
right forearm.
16. Vide Ex. D-4, appellant Raju received following injuries:
(i) Contusion 4" x 1/2" on right forearm.
(ii) Contusion 4" x 1/2" on right forearm.
(iii) Contusion 2" x 1" on right shoulder.
(iv) Lacerated wound 1" x 1/2" on left thigh.
17. Vide Ex. D/5, appellant Ramlal received following injuries:
(i) Diffuse swelling 3" x 3" on left forearm
with contusion 2" x 1".
(ii) Diffuse swelling 1/3" x 1 1/2" x 1" on left
forearm.
(iii) Diffuse swelling 4" x 3" with contusion 2" x 1 1/2" on left leg.7 Cr. Appeal. No.37/1994
18. During investigation on 8.7.1981, a live cartridge of 12 bore gun was seized from the spot. Vide Ex. P/15 Arrest Memo, accused Mohan was arrested in connection with an offence under Section 25/27 of the Arms Act registered at Crime No.492/81.
19. Accordingly, arrest of Mohan was made in this case also. Seized live cartridge and firearm was sent for forensic examination to FSL, Sagar. After completing the investigation, police Sehore submitted charge-sheet under Sections 147, 148, 149, 353, 332, 333, 323, 324 and 307 IPC against the appellants and others. Trial Court framed charges under Sections 148, 323, 307, 333 IPC and in alternate, under Sections 323/149, 307/149 and 333/149 IPC also. Appellants abjured guilty. Defence of the appellants in the trial court was that of false implication by police to suppress their highhandedness in the matter.
20. To substantiate the case of the prosecution, statements of Baldeoraj, panch witness of seizure memo (PW/1), Motilal, panch witness of arrest memo (PW/2), Ram Prasad, Patwari (PW/3), Dr. G.D. Semchandani (PW/4), Shrinarayan, injured ASI (PW/5), Bachchanlal Sharma, injured Head Constable (PW/6), Rakesh Kumar Puri, Station House Officer (PW/7), Sharif, panch witness of naksha mauka and seizure (PW/8), Devkinandan Dubey (PW/9), Brijendra Pal Singh, injured Police Inspector (PW/10), Harsay Verma, Development Officer, Insurance (PW/11), Atar Singh, injured ASI(Retd.) (PW/12) and Shushil Kumar Shukla, Station House Officer (PW/13) were recorded.
21. Defence of the appellants was that B.P. Singh, Police Inspector (PW/10) alongwith police party reached the hotel of appellant Jagdish in an unauthorized manner and assaulted them and also opened firing.
To substantiate the aforesaid defence, statements of Shivnarayan (DW/2), Dr. N.K. Sahu (DW/3), Ajay Kumar Rathor, LDC in Civil Court (DW/4), Raghuveer Singh Rathore (DW/5) were recorded. It is submitted by learned counsel for the appellants that statement of Pradeep Samadhiya was also recorded as DW/1.
8 Cr. Appeal. No.37/199422. After appreciating aforesaid evidence, trial Court acquitted the appellants under Section 307 IPC, however, convicted and sentenced them as above.
23. Assailing the aforesaid judgment, this appeal has been preferred by the appellants on the grounds that appreciation of evidence is not proper. Injuries of accused persons have not been explained by the prosecution witnesses. Prosecution witnesses are not reliable witnesses. At the time of incident, police officers were performing their duties or not is doubtful. Conviction is bad in law and sentence is harsh. On the other hand, learned Penal Lawyer supported the findings of conviction and sentence both.
24. In view of the evidence of Dr. G.D. Semchandani (PW/4) and MLC reports Ex. P/5, Ex. P/6, Ex. P/7, Ex. P/8, Ex. P/9 and Ex. P/10 and further in view of the MLC reports Ex. D/2, Ex. D/3, Ex. D/4, Ex. D/5 and further in view of the evidence of Dr. N.K. Sahu, X-Ray reports and plates Ex. D/7, Ex. D/8, D/9 D/10, Ex. P/29 and Ex. P/30, it remains no longer disputed that in this incident B.P. Singh (PW/10) and appellant Nandiram sustained grievous injuries. Remaining four police officers and three appellants sustained simple injuries.
25. B.P. Singh (PW/10) stated that when he alongwith his police party reached at the spot, appellants (1) Jagdish, (2) Satish, (3) Rajesh, (4) Onkar, (5)Shantilal, (6) Gendalal S/o Amar Singh (7) Ramesh came together outside the hotel and assaulted him. In para 8 of his examination, he has clearly stated that he cannot identify the remaining accused persons correctly. On careful perusal of his statement in totality, involvement of above seven appellants is stated. Main quarrel occurred in between appellant Jagdish and B.P. Singh (PW/10) only. Regarding accused Mohan, it is stated that from the roof top of the hotel of Jagdish he opened firing on him with desi katta but somehow he could manage to save himself.
26. PW/10 has tried to explain the injuries of Jagdish to some extent. He admitted that while fire was opened from roof top by assailant then 9 Cr. Appeal. No.37/1994 appellant used his service revolver and fired two-three shots. During scuffling it hit the appellant Jagdish. Injuries of rest of the injured appellants have not been explained.
27. Shrinarayan Sharma, Head Constable (PW/5) named appellants (1) Rajesh, (2) Jagdish, (3) Mohan, (4) Satish, (5) Onkar, (6) Shantilal and (7) Gendalal S/o Amar Singh. For remaining accused persons he stated that they reached on the spot thereafter. Though he admitted that after opening firing by assailants, B.P. Singh (PW/10) also shot fire from his service revolver in defence, but he did not say anything regarding injuries received by appellants. This witness has lodged report Ex. P/11, he seems to be a partially reliable witness because he did not give a true version of the incident and correct version of the injuries received by the appellants.
28. Bachchanlal Sharma, Head Constable (PW/6) stated that while they caught a person in suspicious condition carrying alleged opium, appellants (1) Rajesh, (2) Satish, (3) Gendalal, (4) Onkar, (5) Shantilal and (6) Mohan came and they assaulted the police party. For about 4-5 minutes scuffling was going on between these persons. Thereafter remaining 10 persons also reached on the spot and crowd assembled in the spot. B.P. Singh (PW/10 opened firing in his defence to disburse the assailants who assembled there. PW/6 has denied the suggestion that firing from roof of the hotel was a false story cooked by the police to save them from act of firing done by them just for nothing. As per para 20 in his statement he was not in a position to identify the remaining accused person except those 7 whose names appeared in his statement.
29. Atar Singh (PW/12) has stated that on recieving information regarding movement of opium from the hotel of Jagdish, police party reached on the spot. Somebody has opened fire from roof of the hotel also then B.P. Singh (PW/10) also fired some shot from his service revolver in his defence. He has named appellants (1) Jagdish, (2) Satish, (3) Rajesh, (4) Ramesh, (5) Onkar, (6) Nandiram, (7) Gendalal Rathore and (8) Mohan as assailants. This suggestion has been clearly 10 Cr. Appeal. No.37/1994 denied by him that police party was unnecessarily beating an innocent person and was taken in a procession on the road and this act was objected by appellant Jagdish, hence quarrel started.
30. On careful perusal of the evidence of injured police witnesses PW/5, PW/6, PW/10 and PW/12, few important things are very clear that infact only seven persons assaulted on the police party. Rest of the appellants reached on the spot alongwith crowd and they have not been identified properly by the witnesses in the Court.
31. It is pertinent to note that a separate case of Arms Act has been registered against appellant Mohan and vide judgment dated 29.1.1983 passed by Special Magistrate, Bhopal he was acquitted of the charges, certified copy of the judgment is available on record at page 325. According to evidence of injured police witnesses, this appellant Mohan is the person who was said to have been involved in handling of opium and was caught by the police party and ultimately, appellants managed to rescue him from the police party alongwith opium and quarrel has taken place thereafter.
32. Prosecution has failed to produce any entry of Rojnamcha etc. to show the receipt of information regarding movement of opium on the spot and Rawangi of the police party from the police station for that purpose.
33. The learned counsel for appellants, placing reliance on AIR 1953 Nagpur 292 (Narsayya Lachmayya vs. The State), AIR 1959 Bombay 284 (Deoman Shamji Patil vs. The State) and AIR 1987 SC 1652 (State of UP vs. Niyamat and others), submitted that it makes no difference whether police party was in uniform, unless they have proper authority to reach on the spot and it should be proved by the documentary evidence. To go on the spot in a random manner and making an attempt to apprehend opium pedaler will not justify the force used by them on the appellants.
11 Cr. Appeal. No.37/199434. It is further submitted by the learned counsel for the appellants that story of aiming fire from the roof by the appellant Mohan is also not proved by the documentary evidence. Similarly, illegal movement of opium from hotel of Jagdish has also not been proved by the documentary evidence. In such events, act of the appellants cannot be said to be an obstruction in the functioning of public servants as police officers. Irrespective of the fact that out of 17 only 7 accused persons were named by the witnesses in the trial Court and 10 accused persons were not identified by them. In respect of those 7 accused persons also, offence of creating obstruction in the functioning of public servant is not made out beyond doubt.
35. This fact cannot be ignored in this case that as many as four appellants have also sustained several injuries on their persons. Injured private persons like i.e. Ajay, Raghveer and Ramsingh have not been examined by the prosecution in trial Court. Such quarrel on the spot has resulted in injuries to 13 persons. Act of firing by PW/10 from his service revolver is justified because he was surrounded by crowd but in absence of any documentary evidence to show his authority to go on the spot to apprehend the opium, above such his act cannot be justified which can hold the appellants liable to be convicted under Section 333 and 323 IPC. Specific documentary evidence is required to prove that police party received information of movement of opinion and they left police station and reached on the spot. Element of "public duty" is missing in this case.
36. As discussed above, prosecution failed to prove any offence against appellants except aforesaid 7 appellants. Prosecution further failed to prove offence under Section 333 and 332/149 IPC against them. On the basis of evidence of B.P. Singh (PW/10), corroborated by other injured police witnesses PW/5, PW/6 and PW/12, only 7 accused appellants (1) Jagdish, (2) Satish, (3) Rajesh, (4) Ramesh,(5) Nandiram, (6) Gendalal Rathore and (7) Mohan can be held responsible and liable to be convicted under Section 148, 325/149 and 323/149 IPC.
12 Cr. Appeal. No.37/199437. At this stage, it is submitted by learned counsel for the appellants that this incident occurred about 30 years ago. Appellants Gendalal S/o Amar Singh and Jagdish have crossed the age of 60-70 years as all are old and senior citizen and no useful purpose would be served in sending them back to jail for such incident in which they have also sustained injuries. Out of these 7 accused persons, appellant Onkar expired during pendency of appeal. For remaining 6 appellants in past some years, no criminal record has been reported so far. Apart from that, about 10 days period during trial and 10 days period pending this appeal has been spent by them in jail and it is submitted that Rajesh has suffered more jail sentence in this matter.
38. Considering the aforesaid submissions of appellants for offence under Sections 148, 323/149, 325/149 IPC undergone period of jail sentence seems to be just, proper and sufficient but in view of the totality of the facts and circumstances of the case, a proper fine sentence is required to be imposed on them. Accordingly, for offence under Section 148 IPC, fine sentence Rs.1,000/-, under Section 323/149 fine sentence Rs.1,000/- on three counts i.e. for causing injuries to PW/5, PW/6 and PW/12 and under Section 325/149 fine sentence Rs.3,000/- for causing grievous injury to PW/10 is imposed on them, in default of payment of fine, appellants shall undergo simple imprisonment of three month each.
39. As discussed above, in respect of appellants i.e. (1) Ramesh S/o Patiram Rathore, (2) Gendalal S/o Dalchand Rathore, (3) Raju S/o Ramlal Rathore, (4) Nandiram S/o Ramlal, (5) Mahesh S/o Patiram, (6) Ramesh S/o Nandlal Rathor, this appeal deserves to be and is allowed and they are acquitted of all the charges. Their bail bonds stands discharged. Fine if has been deposited by them be refunded to them.
40. In respect of appellants (1) Gendalal S/o Amar Singh, (2) Jagdish S/o Biharilal, (3) Rajesh S/o Chatarsingh Rathore, (4) Mohan S/o Mishrilal Rathore, (5) Shantilal S/o Kishanlal and (6) Satish S/o Jagdish Rathore, this appeal is partly allowed. For offences under Sections 147, 323/149 and 325/149, their jail sentence is reduced to the period 13 Cr. Appeal. No.37/1994 already undergone by them, however, for offence under Section 148 IPC, fine sentence Rs.1,000/- , under Section 323/149 fine sentence Rs.1,000/- each on three counts and under Section 325/149 fine sentence Rs.3,000/- each in all Rs.7,000/- each is imposed on them. In default of payment of fine, appellants shall undergo simple imprisonment of three months.
41. In respect of Gopal, Onkar and Dr. Rajendra, on account of their death, during pendency of this appeal, appeal stood dismissed as abated by earlier orders of this Court.
42. Gendalal S/o Amar Singh, Jagdish, Rajesh, Mohan, Shantilal and Satish are directed to remain present in trial Court on or before 30.7.2012 to deposit balance find amount if required or to undergo simple imprisonment of one month. All concerned are directed to ensure compliance.
(Tarun Kumar Kaushal) Judge YS/