Madhya Pradesh High Court
Ashok & Ors. vs The State Of M.P. on 4 August, 2015
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.884 OF 1998
Ashok & others. A.F.R.
Vs.
State of Madhya Pradesh. Judge
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Shri Sankalp Kochar, Advocate for the appellants.
Shri Ajay Tamrakar, Panel Lawyer for the respondent/
State.
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JUDGMENT
(Delivered on the 4th day of August, 2015) The appellants have preferred the present appeal being aggrieved with the judgment dated 19/3/1998 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Damoh in Special Case No.452/1996 whereby each of the appellant has been convicted of offence under Sections 148, 506-B of IPC and Sections 3(1)(x) and 3(2)(v) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as âSpecial Actâ) and sentenced to one year's RI, six months' RI, six months' RI and three years' RI respectively. The appellant No.1 has also been convicted of offence under Section 326 of IPC and sentenced to three years' RI with fine of Rs.1000/-, whereas the remaining appellants have been convicted of offence under Sections 326/149 of IPC and the sentence similar to the appellant No.1 was passed against them.
2. The prosecutionâs story, in short, is that on 7.11.1996 the complainant Nanhe Bhai (PW-2) was going to the house of one Lakhan Singh to get some grains at Village Jhagri (Police Station Pathariya District Damoh). In front of the house of Gulab Singh, appellant No.1 Ashok Lodhi detained him and abused him with obscene words and words related to his caste and gave blow of katarna on his head. Thereafter he gave a second blow on his left wrist. In the meantime, the other appellants Chandan Singh, Deo Singh, Roop Singh and Devi Singh arrived with sticks. They also abused the complainant with obscene words and the words related to the caste of the complainant and assaulted him with sticks causing various grave injuries. Witnesses Gulab Singh (PW-5), Mulu (PW-1) and Badi Bahu (PW-3)-wife of the complainant had saved the complainant. Complainant Nanhe Bhai went to the Police Station Pathariya with the help of others and lodged an FIR Ex.P-2. He was sent for his medico legal examination to the Primary Health Centre, Pathariya. Dr.E. Minj (PW-10) examined the complainant Nanhe Bhai and gave his report Ex.P-15A. He found two incised wounds to the complainant, out of them one was on his head and second was on his left wrist. Three blunt wounds were found upon the complainant on his right wrist, left thigh and right knee. Complainant Nanhe Bhai was referred for his X-ray examination. Dr.O.P.Dubey (PW-6) examined the victim Nanhe Bhai radio-logically and gave his report Ex.P-13. He found a fracture of ulna bone in his left hand as well as right hand. There was a fracture in femur bone. After due investigation, a charge sheet was filed before the Special Judge, Damoh.
3. The appellants-accused abjured their guilt. They did not take a specific plea, however they have stated that they were falsely implicated in the matter and no defence evidence was adduced.
4. After considering the evidence adduced by the prosecution, the Special Judge, Damoh convicted and sentenced the appellants as mentioned above.
5. During the pendency of this appeal, appellant No.5 Devi Singh had expired, and therefore his appeal was dismissed being abated. Also IA No.12854/2015 was filed under Section 320 of Cr.P.C. The complainant Nanhe Bhai appeared before the Court and as per the direction of this Court, he appeared before the Registrar (J-1), and as per the report of Registrar (J-1), the dispute between the parties was resolved and the application was moved by complainant Nanhe Bhai with free consent and he voluntarily agreed to do compromise. Therefore, the said application is also to be decided by the present judgment.
6. As argued by the learned counsel for the appellants, the role of each of the appellant should be examined first and thereafter conclusion may be drawn about the offences done by them. Mulu (PW-1), Nanhe Bhai (PW-2), Badi Bahu (PW-3) and Gulab Singh (PW-5) were examined as eye-witnesses. Mulu (PW-1) and Gulab Singh (PW-5) have turned hostile. They have stated that complainant Nanhe Bhai assaulted the appellant No.1 Ashok, and therefore Ashok ran away from the spot. He jumped over a wall in following the appellant No.1 Ashok, complainant Nanhe Bhai also tried to jump the wall, but in doing so he fell down on the earth and sustained injuries, whereas Nanhe Bhai and Badi Bahu have stated that initially appellant No.1 Ashok caused two blows with katarna and injured the complainant Nanhe Bhai on his head and left hand. Some confusion was recorded in the statement of Badi Bahu and thereafter she was re-cross examined and in para 11 of her statement, she has stated that the injury of katarna was caused on the left hand of victim Nanhe Bhai. These two witnesses have categorically stated that of the appellants, Chandan Singh gave blow of a stick causing injury on the right hand of complainant Nanhe Bhai. Appellant Roop Singh gave a blow of stick causing injury on the right thigh of the victim and appellant Devi Singh gave a blow causing injury on his knee. It is true that Badi Bahu is the wife of complainant Nanhe Bhai and no independent witness is available in support of complainant Nanhe Bhai. However, the testimony of witnesses Mulu and Gulab Singh appears to be dis- believable, because their version could not be corroborated by the medical evidence. According to Dr.Minj (PW-10) victim Nanhe Bhai sustained two incised wounds, one was on the head and second was on the left wrist. Those injuries could not be caused due to fall on the ground. It appears that the witnesses Mulu and Gulab Singh have turned hostile and they are taking the side of the appellants.
7. The testimony of victim Nanhe Bhai is duly corroborated by the timely lodged FIR Ex.P-2. The incident took place at 5:30 PM and looking to the injuries of victim Nand Kishore, some time must have been consumed while reaching to the police station, and therefore looking to the time in lodging the FIR, the FIR Ex.P-2 was lodged within time. The testimony of complainant Nanhe Bhai is duly confirmed by Dr.Minj (PW-10), who found incised wounds on the head and left hand of the complainant, and contused wounds on the right hand, left thigh and right knee. Dr. Minj has stated about the places of injuries and the places of injuries were same as stated by the complainant and eye-witness Badi Bahu. Further the testimony of the complainant is duly corroborated by Dr. O.P.Dubey (PW-6), who proved his radio-logical report Ex.P-13 and found that there were three fractures upon complainant Nanhe Bhai, one was on the left hand, second was on the right hand and third was on the left femur bone.
8. After considering the evidence given by the complainant, eye-witness Badi Bahu, timely lodged FIR, the medical evidence of Dr. Minj as well as Dr. Dubey, it is proved beyond doubt that appellant No.1 Ashok caused two incised wounds with sharp cutting weapon to complainant Nanhe Bhai, whereas the remaining appellants caused three injuries with sticks causing two fractures to complainant Nanhe Bhai. The learned counsel for the appellants has submitted that no fracture was found below wound caused by the appellant No.1 in the left hand of complainant Nanhe Bhai, and therefore offence of the appellant No.1 may fall within the purview of Section 324 of IPC. If in connection of this contention, the MLC reports as well as radio-logical report are examined, then complainant Nanhe Bhai did not say that except of appellant No.1, any other appellant assaulted in his left hand. In the FIR Ex.P-2, it is specifically mentioned that the injury caused on the left wrist of complainant Nanhe Bhai was caused by appellant No.1 Ashok and none else had caused any injury on his left hand, and therefore Dr. Minj (PW-10) found one incised wound on the mid of left arm. The word âmiddleâ is not mentioned in the deposition of Dr.Minj but, it is mentioned in his report Ex.P-15A. Also Dr. Dubey (PW-6) found fracture in ulna bone of his left hand at middle portion, and therefore fracture is corresponding to the incised wound caused in left hand of complainant Nanhe Bhai, and therefore the offence of appellant No.1 shall fall within the purview of Section 326 of IPC.
9. It would be apparent that at the time of incident, complainant Nanhe Bhai was on his way and the incident was caused in front of house of Gulab Singh and at that time Nanhe Bhai did not do any act so that any right of private defence or sudden or grave provocation would have accrued to the appellants. Each of the appellant gave powerful blow with the weapon kept by them. When a person keeps a weapon and assaults with a weapon, then he should know the result of his overt-act, and therefore according to the provisions of Section 39 of IPC where all the appellants knew the result of their overt- act and assault was done without any sudden or grave provocation or any right of private defence, then voluntarily they caused grievous hurt to complainant Nanhe Bhai, out of them appellant Ashok No.1 had caused a grave injury with the help of sharp cutting weapon, whereas other appellants had caused grave injuries with the help of sticks, and therefore independently the appellant No.1 is guilty of offence under Section 326 of IPC, whereas the remaining appellants are guilty of offence under Section 325 of IPC.
10. The trial Court has convicted the remaining appellants of offence under Section 326 read with Section 149 of IPC on the ground that all the appellants had constituted unlawful assembly and in furtherance of their common object they committed the crime, however if the facts of the case are examined, then it would be apparent that initially when the appellant No.1 Ashok assaulted the complainant Nanhe Bhai, other appellants were not present and when they assaulted complainant Nanhe Bhai, then the appellant No.1 did not repeat the assault. When the crime of offence under Section 326 of IPC was committed by the appellant No.1 Ashok and at that time no other appellant was present at the spot. Hence, when offence committed by appellant No.1 Ashok, in absence of other accused, no unlawful assembly could be constituted. In this connection, the judgment of Hon'ble Apex Court in the case of âAllauddin Mian and others Vs. State of Biharâ (AIR 1989 SC 1456) may be referred and a little portion of that judgment is reproduced as under:-
â........There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section
149......â In the light of the aforesaid judgment, if the factual position of this case is examined, then it would be apparent that there is no evidence against the appellants that they were pre-determined to cause grievous hurt to complainant Nanhe Bhai. For considering the common intention or common object and consequently constitution of unlawful assembly, there must be previous meeting of mind. While meeting of mind of the accused persons may take place prior to the incident and it may take place soon before the incident. In the present case, nobody knew that Nanhe Bhai would pass in front of house of Gulab Singh, and therefore there was no meeting of mind of the appellants prior to the incident.
Secondly, when other appellants came to the spot, appellant No.1 Ashok had already concluded his overt- act, and thereafter he did nothing. Hence, it appears that there was no meeting of mind took place between all the appellants. Let it be discussed in detail. When Nanhe Bhai was found in front of house of Gulab Singh by the appellant No.1, and therefore he started assaulting in absence of remaining appellants, and therefore according to the provisions of Section 141 of IPC, no unlawful assembly was constituted when the appellant No.1 started assaulting complainant Nanhe Bhai. When other appellants assaulted complainant Nanhe Bhai, there is no overt-act of appellant No.1 Ashok to show that he had any common object with them. Other appellants were four in number, and therefore they could not constitute unlawful assembly in absence of common object of appellant No.1 Ashok. Under such circumstances, in the present case, no unlawful assembly was constituted, and therefore the trial Court has committed an error in convicting the appellants of offence under Section 148 of IPC. Similarly, the trial Court has committed an error in convicting the remaining appellants for the offence under Section 326 of IPC with the help of Section 149 of IPC. When unlawful assembly has not been constituted, then no one can be convicted for a particular offence done by one of the accused with the help of Section 149 of IPC.
11. When it is found that no unlawful assembly was constituted at the time of incident, then the overt-act of each of the appellant should be examined separately. As discussed above, it is proved beyond doubt that appellant No.1 Ashok had committed the offence under Section 326 of IPC and when other appellants assaulted the victim, he did not participate further, and therefore it cannot be said that he had any common intention with other accused persons. Hence the appellant No.1 Ashok cannot be convicted of offence under Section 325 of IPC either directly or with the help of Section 34 of IPC.
12. Similarly, as discussed above, the remaining appellants reached to the spot when the appellant No.1 had already concluded his blows, and therefore it cannot be said that the remaining appellants had intended to assault the complainant Nanhe Bhai by sharp cutting weapon, and therefore they cannot be convicted of offence under Section 326 read with Section 34 of IPC. It would be apparent that the remaining appellants were four in number and they caused two grave injuries, one was on the right hand and another was on the thigh of the complainant, which indicates that out of these four appellants, only two appellants had caused grave injuries to the complainant. However, at that time each of the appellant had participated in the assault and if assault was caused with a stick, then each of them should know that a fracture could be caused to the victim. Hence the common intention of each of the appellant is proved with other appellants for the offence under Section 325 of IPC, and therefore the remaining appellants would have been convicted of offence under Section 325 read with Section 34 of IPC.
13. The trial Court has convicted the appellants of offence under Section 3(2)(v) of the Special Act. However, if the evidence of Nand Kishore and Badi Bahu is considered, then there is no evidence that the appellant No.1 Ashok assaulted the complainant Nanhe Bhai on the basis of his caste. In para 13 of evidence given by victim Nanhe Bhai, it would be apparent that Nanhe Bhai had encroached on a Government land and the appellant Ashok wanted to encroach that land by dispossessing Nanhe Bhai. Since the caste was not the reason for the quarrel that took place between the parties, then the appellant could not be convicted of offence under Section 3(2)(v) of the Special Act. The trial Court has committed an error in convicting the appellants for that offence.
14. Similarly, when it is not proved that the offence committed by the appellants was committed due to the caste of the complainant, therefore only uttering the word âchamraâ, it cannot be said that the appellants insulted the complainant on the basis of his caste. In this connection the judgment passed in the case of âAnil Kumar Pandey Vs. Daulat Prasadâ, [2005(4) MPLJ 467] may be referred, in which it is held that if someone has been called by name of his caste without any intention to insult or humiliate a member of scheduled caste, then no offence under Section 3(1)(x) of the Special Act is made out. In the light of the aforesaid judgment, the trial Court has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act.
15. It is stated by Nanhe Bhai and Badi Bahu that after causing injuries to the victim, when the witnesses reached to the spot, the appellants ran away. Nanhe Bhai did not say in his statement before the trial Court that any threat was given by any of the appellant. Also Nanhe Bhai was examined before the Court in the month of June 1997, whereas the incident took place in November 1996. Nanhe Bhai did not state that the threat given by the appellants as mentioned in the FIR Ex.P-2 was executed by the appellants thereafter. Hence if it is presumed that the appellants gave any threat to complainant Nanhe Bhai, then it does not fall within the purview of âcriminal intimidationâ. Hence, the appellants could not be convicted for any part of offence under Section 506 of IPC. The trial Court has committed an error in convicting the appellants for the offence under Section 506-B of IPC.
16. Before coming to the conclusion of sentence, an order should be passed on IA No.12854/15, an application for seeking permission to compromise. It is true that the victim has entered into a compromise with free consent. Out of the offences, proved against the appellants, offence under Section 325 of IPC is compoundable with permission of the Court. If the dispute between the parties is resolved and the complainant is ready to do compromise in the case with free consent, it would be proper to give permission to do compromise. However, the offence under Section 326 of IPC is not compoundable, and therefore the application cannot be accepted for the appellant No.1 Ashok, who is guilty of offence under Section 326 of IPC. Accordingly, IA No.12854/2015 is hereby disposed off with a direction that it is allowed for the appellants No.2 to 4 relating to offence under Section 325 of IPC and in the result the appellants No.2 to 4 shall be acquitted from the charge of Section 325 of IPC in the light of the compromise, whereas the application of compromise is not accepted for the applicant No.1 Ashok. However, looking to the voluntarilyness of complainant Nanhe Bhai, the effect of compromise will be considered at the time of order of sentence.
17. So far as the sentence is concerned, it is to be passed against the appellant No.1 for the offence under Section 326 of IPC. In this connection, the learned counsel for the appellants has invited attention of this Court to the judgment of Hon'ble the Apex Court in the case of âSurendra Nath Mohanty Vs. State of Orissaâ (AIR 1999 SC 2181), âPashora Singh Vs. State of Punjabâ (AIR 1993 SC 1256) and âRam Pujan Vs. State of UPâ, (AIR 1973 SC 2418). He further submitted that Hon'ble the Apex Court in the case of compromise, reduced the sentence of the accused for the period for which he remained in the custody, and therefore in the present case the sentence of the appellant No.1 be reduced to the period for which he remained in the custody. However, if the judgments of Hon'ble the Apex Court are examined, then in the case of Surendra Nath Mohanty (supra) the custody period of the appellant was 3 months, in the case of Pashora Singh (supra) the custody period of the appellant was 11 months and 22 days and in the case of Ram Pujan (supra) the custody period of the appellant was 4 months. In the present case, the trial Court did not prepare the certificate under Section 428 of Cr.P.C. Actually, when the judgment is passed and the file is handed over to the Criminal Reader, then control of the file does not remain with the Presiding Officer, though it is the duty of the Presiding Officer to pass a certificate under Section 428 of Cr.P.C. But if file is not produced before him by the Criminal Reader, then no certificate will be available in such case file. It is advisable that the custody period of each of the appellant-accused should be mentioned in the judgment itself so that in case lapses are caused by the Criminal Reader, even then the appellate Court can find out about the custody period of the accused, which can be adjusted towards the sentence.
18. After perusal of entire record, it appears that the appellant No.1 Ashok was arrested on 27.11.1996 and was released on bail on 29.11.1996. Thereafter he remained on bail during the trial and his sentence was already suspended by the trial Court at the time of passing of judgment and thereafter his execution of jail sentence was suspended by this Court vide order dated 17.4.1998, and therefore the appellant No.1 remained in the custody for three days only. However, the appellant has faced the trial and appeal since the year 1996 i.e. for last 19 years. Also the compromise took place between the complainant Nanhe Bhai and the appellant No.1 Ashok. The appellant No.1 Ashok was the first offender and after taking these facts into consideration, it would be proper to reduce the jail sentence of appellant No.1 Ashok to the period for which he remained in the custody, but a heavy fine should be imposed upon him.
19. On the basis of the aforesaid discussion, the present appeal filed by the appellants is hereby partly allowed. Each of the appellant is acquitted from the charge of Sections 148, 506-B of IPC and Sections 3(1)(x) & 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. The appellants No.2 to 4 are also acquitted from the charge of Section 326/149 of IPC. They cannot be convicted of offence under Section 325 of IPC in the light of the compromise. Hence the appellants No.2 to 4 are acquitted from all the charges. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court. The appellant No.1 is acquitted from all the charges except the charge under Section 326 of IPC. However, in the light of the aforesaid discussion, his sentence is reduced to the period for which he remained in the custody by enhancing the fine amount from a sum of Rs.1000/- to a sum of Rs.10,000/-. The appellant No.1 is directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he shall undergo for one year's RI. Though compromise took place between the parties, and therefore compensation is not required to be granted to the complainant, however as per the provisions of Section 357 of Cr.P.C. (Madhya Pradesh amendment) compensation is required to be granted, because the complainant of the present case belongs to a scheduled caste. Hence, it is directed that if fine is deposited, then a sum of Rs.2000/- be given to complainant Nanhe Bhai S/o Shri Kadorilal resident of Jhagri, Police Station Pathariya District Damoh by way of compensation.
19. At present all the appellants are on bail, therefore their presence is no more required before this Court, therefore it is directed that their bail bonds shall stand discharged.
20. A copy of this judgment be sent to the trial Court with its record for information and compliance with direction that if fine is not deposited in the given time period, same be recovered as per the provisions of Section 68 of IPC.
(N.K.Gupta) Judge 04/08/2015 Ansari.