Madhya Pradesh High Court
Deewan Singh vs State Of Madhya Pradesh on 3 March, 2006
Equivalent citations: 2006(2)MPHT371
JUDGMENT A.K. Gohil, J.
1. This judgment shall govern the disposal of Criminal Appeal Nos. 1/98 and 55/99.
2. Cri. Appeal No. 1/98 has been filed by appellant Deewan Singh, challenging his conviction under Section 324, IPC and sentence of one and half years R.I. with fine of Rs. 3,000/- and in Cri. Appeal No. 55/99 the State has challenged acquittal of the respondents including that of Deewan Singh under Sections 147, 148, 294, 341, 307 read with Section 148, IPC.
2. In Sessions Trial No. 168/95 the respondents of State Appeal were tried for the offences under Sections 147, 148, 294, 341 and 307/149. The Trial Court convicted only respondent Deewan Singh under Section 324 and sentenced to one and half years R.I. with fine of Rs. 3,000/-, but acquitted rest of the respondents from the charges. Against which, both have filed the aforesaid appeals.
3. As per prosecution story on 30-3-96 at about 4.30 p.m. on a public road, which is known as Moola Road, complainant Gopal was going to sell Kulfi on a handcart. When he reached near the graveyard, Jaswant Singh, who was carrying/farsa Deewan Singh carrying sword, Laljiram, Brijesh and Premsingh carrying lathi in their hands came there. They all stopped Gopal, abused him and complained that why he threw colour on their daughter on Holi and teased her, today they will teach him lesson; and, thereafter they all started beating Gopal. Jaswant gave farsa blow on his head which he saved on his left hand. He received serious injury in the left hand. Jaswant gave another blow on the left hand from which muscles were cut. Deewan Singh assaulted by sword on the thigh of left leg and on the knee. Laljiram, Premsingh and Brijesh assaulted by lathi and while beating him they were telling that "see that he is not saved today". Thereafter one Vinod (P.W. 4) intervened. Suresh Kumar (P.W. 5), Udam Singh Tomar (P.W. 6) and Kanhaiyalal had seen the incident. Gopal was bleeding from his left hand. He was taken to Kotwali Vidisha where FIR was lodged. He was referred for medical examination and treatment. Crime was registered, matter was investigated and charge-sheet has been filed. During trial accused/respondents abjured their guilt. Their defence was that they have been implicated falsely. Respondent Jaswant took a plea of alibi and his contention was that he was ill and was hospitalised at Khurai, District Sagar and he was not present on spot. The same plea was taken by Laljiram that he was present on duty in the Public Works Department. Suresh Chand Gupta (D.W. 1), Ramswaroop (D.W. 2) and Kailash Dutt Dubey (P.W. 3) were examined in defence.
4. After considering the evidence on record, the Trial Court found that the other witnesses have not supported the statement of injured Gopal, therefore, the prosecution has failed to prove the charge of Section 307, IPC by producing the evidence beyond reasonable doubt against the other co-accused persons except Deewan Singh and only convicted Deewan Singh under Section 324, IPC and acquitted rest of the respondents from the charges. Against which in Criminal Appeal No. 1/98 Deewan Singh has challenged his conviction and sentence and in Cri. Appeal No. 55/99 the State has challenged the acquittal of rest of the accused persons including the conviction of accused Deewan Singh.
5. In both the appeals I have heard Shri Mukund Bharadwaj, learned Panel Lawyer, for the appellant-State and Shri T.C. Bansal, learned Counsel for accused Deewan Singh and other respondent/co-accused.
6. I have also considered the evidence of the witnesses. Trial Court has recorded this finding that except Gopal (P.W. 3), Vinod Bhoi (P.W. 4), Suresh Kumar (P.W. 5) and Udam Singh Tomar (P.W. 8) have not supported the prosecution version. Gopal (P.W. 3) has stated that on the day of occurrence in between 3.30 p.m. to 3.45 p.m. he was going to sell Kulfi on his cart, his brother Vinod was also with him. When he came near the graveyard, he had seen Jaswant carrying farsa, Deewan Singh carrying sword, Lalji, Premsingh and Brijesh carrying Danda in their hands, coming towards him. They stopped his cart, abused him for teasing and throwing colour on their daughter on the occasion of Holi and thereafter Jaswant inflicted/OATO blow on his head, which he saved on his wrist of left hand and received serious injury on the hand. Jaswant gave another blow by which he received injury on his left hand. Deewan Singh assaulted by sword on the left hand as well as above the left knee. Lalji, Brijesh and Premlal assaulted by lathis. Suresh, Udam Singh and Kanhaiya came on spot. He was bleeding. Thereafter, he was taken to Kotwali by Udam Singh and Kanhaiya. He has stated that he was admitted in the hospital. His hand has been damaged extensively. He became unconscious in the hospital. Thereafter he was taken to Bhopal where five operations were performed to correct the deformity. In the cross-examination he has stated that Laljiram had lodged report against his brother Chironjilal for teasing and misbehaving with his daughter. Laljiram is distantly related to him and is brother-in-law. The incident of teasing took place 15-20 days before on the occasion of Rang Panchami. He has further admitted that in between there was no dispute or quarrel between them on the aforesaid point. They are residing in the same locality. There is omission in his case diary statement, Ex. D-1, about the presence of Vinod that he was with him. There is also omission about the words of abuses and time of incident. In Para 35 he has admitted that he has not received any injury on his head. He has also admitted that Kanhaiya is his uncle.
7. Vinod (P.W. 4) though is a close relative of the injured but has not supported the prosecution and was declared hostile. He has only stated that he had seen two persons running from that place and out of which he had identified Deewan Singh in the Court. Udham Singh Tomar (P.W. 8) has also not supported the prosecution story. He was also declared hostile. He has stated that between 6 to 7 p.m. he was sleeping at his home, he heard the voice of Gopal Singh, then he came out from the house and Gopal was there and was asking for water. He gave water to Gopal Singh and Gopal Singh had not told him anything. Suresh (P.W. 5) had seen that Deewan Singh carrying sword was running from the place of occurrence, therefore, on the basis of the aforesaid evidence the Trial Court found that for the presence of Deewan Singh, Vinod and Suresh have supported the statement of Gopal.
8. So far as the medical evidence of Dr. Sanjay Jain (P.W. 9) is concerned, he had medically examined Gopal and had seen three incised wounds on his body. Injury No. 1 was on the left hand of the injured in "C" size which was 10x4x1 cm on the wrist joint. Chip of radius bone was also out. Another incised wound was also on the back side of left hand, from which muscles were cut and were bleeding. Third incised wound was on the thigh of left leg above knee. In the cross-examination he has stated that injured has not received any injury on the vital part of the body and there was no bleeding from injury No. 1, which may be caused by sharp and hard object. Injury No. 2 may be caused by striking with sharp edged weapon. He may receive injury No. 3 by fall. It was not possible to receive injury No. 1 from a straight weapon; the weapon should be of "C" shape. He had not seized the clothes of the injured and the injuries were not possible to be received from lathi and he had referred the injured to Bhopal. Trial Court has found that on the basis of the medical evidence injury No. 1 can be considered as grievous hurt but in the cross-examination the doctor has stated that the injury was not of grievous nature and he can not give any exact opinion. In this connection it was stated on behalf of the complainant that because of the hand injury his hand was badly injured; 5 operations of the hand were performed but even then his hand could not be repaired and became disabled permanently. But the Trial Court has found that the prosecution has not produced any paper of treatment or operation nor X-ray report or other reports regarding treatment from the hospital were produced. Therefore, unless some evidence is produced regarding seriousness of the injuries, even the Court was unable to form any opinion and in the absence of any evidence the Trial Court found that no offence under Section 307, IPC is made out and considering the evidence of the injured only convicted appellant Deewan Singh under Section 324, IPC and sentenced him as aforesaid.
9. Trial Court has found that since other three eye- witnesses Vinod, Suresh and Udham Singh have not supported the prosecution, the evidence of injured Gopal (P.W. 3) also became weak. He has stated that Deewan Singh was carrying sword but this injury has also not been corroborated by medical evidence of Dr. Sanjay Jain (P.W. 9), but looking to this evidence that Deewan Singh was seen running from the spot carrying sword in his hand the Trial Court convicted him under Section 324, IPC. I think, in view of the evidence on record the Trial Court has taken a reasonable view in the matter of Deewan Singh and it is also true that no other view is possible on the basis of the evidence of the doctor and in the absence of other medical papers, therefore, it appears that the Trial Court has rightly acquitted appellant Deewan Singh from the charge under Section 307, IPC and has rightly convicted him under Section 324, IPC. So far as the jail sentence of Deewan Singh is concerned, as against the jail sentence of 18 months, appellant Deewan Singh has already suffered jail sentence of more than 14 months in this case and he is still in jail in some other case, therefore, the prayer for his release on undergone jail sentence appears to be reasonable which is also not seriously opposed by the Counsel for the respondent-State. Thus, Cri. Appeal No. 1/98 filed by appellant Deewan Singh is partly allowed. Conviction of appellant under Section 324, IPC is affirmed but his jail sentence is reduced to that of already undergone by him. Sentence of fine is also affirmed.
10. So far as Cri. Appeal No. 55/99 filed by the State is concerned, Trial Court has categorically recorded the findings on the basis of the evidence produced on behalf of the respondent-Jaswant that on the day when the incident took place, he was ill and was at Khurai. For that he has produced certificate from doctor, which is Ex. D-5. To prove this certificate he has also examined Dr. Kailash Dutt Dubey (D.W. 3) but from this certificate as well as from the evidence of Dr. Dubey (D.W. 3) it can not be found proved that on the date of incident respondent- Jaswant was at Khurai or was taking treatment. There is no specific evidence that he was admitted on that day. The doctor has issued certificate about illness between 25-3-96 to 6-4-96 but from this document it is not clear that on 30-3-96 the respondent was at Khurai and was not in a position to come to Vidisha. The Trial Court has not appreciated the evidence of Gopal (P.W. 3) and has acquitted respondent-Jaswant on the ground that the eye-witness Vinod (P.W. 4) has not supported the evidence of complainant Gopal. If it is so, then respondent Deewan Singh also could not have been convicted on that ground but if the evidence of Gopal has been accepted for Deewan Singh, the same is also liable to be accepted for Jaswant and appears to be reliable. To that extent finding recorded by the Trial Court is not legal and can not be allowed to uphold.
11. In fact the Trial Court has committed legal mistake in recording finding on this aspect of the matter that a witness, who has been disbelieved in respect of acts imputed to 'X', can not be relied upon for convicting the other co-accused whereas the legal position in our country is somewhat otherwise. Long back in the case of Guru Charan Singh v. State of Punjab , it was held by the Supreme Court that merely because two of the four accused have been acquitted though the evidence against all of them, so far as direct testimony went, was the same, it does not necessarily follow that the other two must be similarly acquitted. Again in case of Rai Singh v. The State of Haryana , the Supreme Court has held as under:
It is now well-settled that in each case the Court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one respect the Court considers it unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects as well. Experience in this country has shown that in cases like the present there is a tendency on the part of interested witnesses to exaggerate the guilt of the opposite party and then the imperfection of human memory and of observation also shows that the broad rule canvassed on behalf of the appellant can not be laid down as a safe guide for all cases. The Court has to sift the evidence with care in' each case and on full consideration of all the relevant material circumstances to come to a decision, which part of the testimony of the witness to accept and which to reject.
12. Recently, in case of Gubbala Venugopalaswamy and Ors. v. State of Andhra Pradesh reported in 2004 Cri. LJ 2557, placing reliance on the two earlier decisions in the cases of Guru Charan Singh v. State of Punjab ; and, Sucha Singh v. State of Punjab reported in 2003 (5) Supreme 445, the Supreme Court has held as under:
As a rule of universal application it can not be said that when a portion of the prosecution evidence is discarded as unworthy of credence, there can not be any conviction. It is always open to the Court to differentiate between an accused who has been convicted and those who have been acquitted. The maxim "Falsus in uno falsus in omnibus" is merely a rule of caution. In terms of felicitous metaphor an attempt has to be made to separate grain from the chaff, truth from falsehood. When the prosecution is able to establish its case by acceptable evidence, though in part, the accused can be convicted even if the co-accused have been acquitted on the ground that the evidence led was not sufficient to fasten guilt on them. But where the position is such that the evidence is totally unreliable, and it will be impossible to separate truth from falsehood to an extent that they are inextricably mixed up, and in the process of separation an absolute new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made, conviction can not be made.
And the same view has again been taken by Supreme Court in the case of Narain v. State of M.P. .
13. In this case, when the Trial Court has already placed reliance on the evidence of Gopal (P. W. 3) for convicting Deewan Singh, therefore, it can not be argued that the evidence of Gopal is totally unreliable or the conviction can not be based on the aforesaid evidence if the other witnesses have not supported him.
14. In the light of the aforesaid discussion and considering the aforesaid legal position, it is held that the evidence of complainant Gopal, so far as it relates to respondent-Jaswant, is reliable as far as it is reliable against Deewan Singh. I have also not found the plea of alibi raised by Jaswant as reliable. As per the evidence, Jaswant has caused injuries by farsa and Dr. Sanjay Jain (P.W. $) had seen three farsa injuries in the shape of incised wound on the body of the deceased, though treatment papers of three or five operations have not been produced. In the cross-examination the doctor has stated that he can not give any opinion that injury No. 1 was of grievous nature. There is also no evidence that the hand of the injured because permanently disabled. Therefore, at the most on the evidence of injured Gopal and Dr. Sanjay Jain respondent Jaswant can also be convicted only under Section 324, IPC. To that extent, Criminal Appeal No. 55/99 filed by the State is allowed. Looking to the evidence against respondent Jaswant supported by the evidence of Dr. Sanjay Jain (P.W. 9), he is held guilty under Section 324 of Indian Penal Code.
15. On the question of sentence, learned Counsel for respondent-Jaswant submitted that Jaswant has already suffered jail sentence of 46 days, therefore, he be released on undergone jail sentence. Considering the submissions, this argument is accepted on the condition that respondent-Jaswant shall pay fine amount of Rs. 10,000/- (Rupees Ten thousand only) within a period of sixty days from today; in default of payment of fine amount, the respondent-Jaswant shall suffer further six months' R.I. and for that CJM Vidisha shall take him into custody. On depositing the said amount, a sum of Rs. 10,000/- (Rupees Ten thousand only) be paid to injured Gopal as compensation.
16. As the allegation for causing injuries by lathi has not been found proved from the evidence of injured Gopal as well as from the medical evidence of Dr. Sanjay Jain (P.W. 9), therefore, it is held that to that extent finding recorded by the Trial Court does not suffer from any infirmity or does not call for any interference. Accordingly, the appeal filed by the State against other respondents is dismissed.
17. In the result, Criminal Appeal No. 1/98 filed by appellant Deewan Singh is partly allowed. His conviction under Section 324, IPC is affirmed but his jail sentence is reduced to that of already undergone by him. Sentence of fine is also affirmed. Criminal Appeal No. 55/99 filed by the State, so far as it relates to respondent No. 1-Jaswant, is partly allowed. Respondent-Jaswant is convicted under Section 324, IPC. His jail sentence is reduced to that of already undergone by him but he is sentenced to fine of Rs. 10,000/- (Rupees Ten thousand only) to be deposited by him within a period of sixty days, failing which he shall undergo rigorous imprisonment of six months. On deposit of fine amount, Rs. 10,000/- (Rupees Ten thousand only) be paid to injured Gopal as compensation. On failure to deposit the fine amount the CJM Vidisha shall take him into custody for undergoing the jail sentence. State Appeal for enhancement of conviction and sentence against respondent No. 2-Deewan Singh and against acquittal of respondents No. 3-Lalchand and No. 4-Premlal is dismissed and their bail bonds stand discharged.