Madhya Pradesh High Court
Mohd.Sadique & Ors. vs The State Of M.P. Judgement Given By: ... on 9 May, 2014
1 Cr. A. No.672/1997
HIGH COURT OF MADHYA PRADESH JABALPUR
Criminal Appeal No.672/1997
Mohd. Sadique and another
Vs.
State of Madhya Pradesh
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Present : Hon'ble Shri Justice N.K. Gupta.
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Shri Sankalp Kochar, counsel for the appellants.
Shri Ajay Tamrakar, Panel Lawyer the respondent/State.
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JUDGMENT
(Delivered on 9th day of May, 2014) The appellants have preferred the present appeal against the judgment dated 19.3.1997 passed by the learned Additional Sessions Judge, Narsinghpur in S.T. No.53/94, whereby the appellants were convicted and sentenced as under:-
Section Sentence Fine amount Sentence in default of payment of fine 326/34 IPC Four years R.I. Rs.1,000/- Two months R.I. 325/34 IPC One year R.I. Rs.500/- One month R.I. 323, 323/34 Three months R.I. -------- --------
IPC (two counts) All the sentences were run to concurrently.
2. The prosecution's case in short is that on 4.4.1992 at about 12:00 p.m. in the noon, Mohd. Ramjan (PW-1) was irrigating in his field situated at village Gurariyahar (Police Station Narsinghpur, District Narsinghpur). Mohd. Ramjan saw 2 Cr. A. No.672/1997 the appellant Samad, who was cutting a Babool tree by an axe, which was on the boundary of the field of Mohd. Ramjan and therefore, when Mohd. Ramjan prohibited the appellant Samad to cut the tree, a quarrel was initiated and the appellant Samad assaulted Ramjan by the axe on his head and thereafter, the appellant Sadique assaulted the victim Mohd. Ramjan by a stick on his right back. Mohd. Ehsan (PW-2) went to save his father then, he was also assaulted by the various appellants. Similarly, the victims Mohd. Mehmood (PW-7) and Mohd. Naem (PW-3) were assaulted by the appellants and they also sustained the injuries. The victims were taken to the Police Station Narsinghpur, where Mohd. Ehsan lodged an FIR Ex.P/1. They were directed to the District Hospital Narsinghpur, where they were examined by Dr. B.M. Agrawal (PW-11). Dr. B.M. Agrawal examined the victims Mohd. Ramjan, Mohd. Ehsan, Mohd. Naem & Mohd. Mehmood and gave his reports Exs.P/7-A to P/10-A. The victim Mohd. Ramjan and Mohd. Naem were referred for the x-ray examination. Dr. S.K. Maheshwari (PW-8) found that the victim Ramjan sustained a fracture on his left parieto-temporal region, whereas the victim Naem sustained a fracture on his left clavicle bone. After due investigation, a charge sheet was filed before the C.J.M. Narsinghpur, who committed the case to the Sessions Court and ultimately, it was transferred to the Additional Sessions Judge, Narsinghpur.
3. The appellants abjured their guilt. They did not take 3 Cr. A. No.672/1997 any specific plea. However, they have stated that the tree in dispute was on Mend of one Sadique and that tree was given by an award to Sadique. However, no defence evidence was adduced.
4. The learned Additional Sessions Judge after considering the evidence acquitted the appellants from the charge of the offence punishable under Section 307 of the IPC, whereas they were convicted and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. In the present case, Mohd. Ramjan (PW-1), Mohd.
Ehsan (PW-2), Mohd. Naem (PW-3) and Mohd. Mehmood (PW-7) were examined as injured witnesses, whereas Sheikh Hameed (PW-4) and Mohd. Faheem (PW-6) were examined as eyewitnesses. Sheikh Hameed has stated that when he heard a noise of quarrel, he went to the spot and then, he saw that Mohd. Ramjan was lying on the earth and the appellants were running towards a culvert. Mohd. Faheem has stated about the entire incident. Since the witnesses sustained the injuries in the quarrel therefore, their testimony cannot be disbelieved. Their testimony was duly corroborated by timely lodged the FIR Ex.P/1 and the medical reports Exs.P/7-A to P/10-A proved by Dr. B.M. Agrawal (PW-11). Learned counsel for the appellants has submitted that FIR was not so trustworthy. In the FIR, the names of the accused persons were not mentioned and it was not lodged by the person, who was an eyewitness therefore such 4 Cr. A. No.672/1997 FIR cannot be believed. Some of the witnesses have stated that the assault was caused with a sharp edged weapon, but the evidence was different. In support of his contention, he has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Hallu and others Vs. State of M.P." [AIR 1974 SC 1936].
7. In the present case, the complainant was an injured witness and therefore, he was an eyewitness. Similarly, the said judgment is referred on the ground that the witnesses stated that the appellant Samad assaulted the victim Ramjan on his head by an axe, whereas no such injury was caused on the head of the victim Ramjan and therefore, it was stated that the witnesses turned their version that the victim Ramjan was assaulted by the back of axe. If the evidence given by Dr. B.M. Agrwal is considered then, he found a lacerated wound of 6" x 1/4" x bone deep on the middle of the head. It would be apparent from the size of the wound that the victim was assaulted by a sharp edge of an axe but since edge was not so sharp therefore, a lacerated wound was caused. Under such circumstances, there is no discrepancy that in the FIR, it was stated that the victim was assaulted by the accused Samad with the help of an axe from the sharp side. Under such circumstances, such contradictions arose in the evidence of various witnesses is not material.
8. The witnesses have stated that the appellant Samad 5 Cr. A. No.672/1997 assaulted the victim Ramjan by an axe. The victim Ramjan has stated that the appellant Sadique also assaulted him by a stick. However, the witnesses Mohd. Ehsan (PW-2) and Mohd. Naem (PW-3) did not state that the accused Sadique assaulted the vicitm Ramjan by a stick and therefore, looking to the contradiction between the statement of Mohd. Ramjan and other witnesses, it would be clear that the eyewitnesses did not support that except the appellant Samad, any accused had assaulted the victim Ramjan. However, it is proved beyond doubt that the appellant Samad assaulted the victim Mohd. Ramjan for two times by the axe causing a fracture on the head of the victim Ramjan.
9. Learned counsel for the appellants has also placed his reliance upon the order passed by the Hon'ble Apex Court in the case of "Bishna Vs. State of Haryana" [1987 (suppl.) SCC 184], in which it was held that if blow was inflicted by a blunt side of the axe on thigh of the victim then, the offence under Section 326 or 307 of the IPC shall not be made out, whereas only the offence under Section 324 of the IPC may constitute. In the present case, the factual position is different. It it true that a lacerated wound was caused on the head of the victim Ramjan therefore, it cannot be said that the assault was caused by sharp weapon. If the edge of the axe was not so sharp and a lacerated wound was caused then, as told by Dr. B.M. Agrawal (PW-11), the offence under Section 325 of the IPC shall be constituted 6 Cr. A. No.672/1997 because a fracture was caused to the victim Ramjan due to that assault caused by hard and blunt object on his head. It is not a case of prosecution that the axe was treated as a deadly weapon. Since the edge of the axe was not sharp and it is not proved that iron portion of the axe was heavy therefore, it cannot be considered as deadly weapon. The trial Court has already observed that no offence under Section 307 of the IPC is made out. In the case of Bishna (supra), the Hon'ble Apex Court found that only the offence under Section 324 of the IPC may constitute but in that case, no grave injury was caused to the victim, whereas in the present case, the victim Ramjan had sustained grievous injury on his head and therefore, the offence of the appellant Samad would fall within the purview of Section 325 of the IPC.
10. Similarly, Mohd. Naem has stated that the appellant Zahoor assaulted him on left side of his back by the stick and Dr. Agrawal (PW-11) found the single injury to the victim Naem on that part and also Dr. S.K. Maheshwari (PW-8) found that there was a fracture of left clavical bone caused to the victim Naem and therefore, it would be apparent that the appellant Zahoor caused a fracture to the victim Naem by assaulting him with a stick and therefore, against the appellant Zahoor, the offence under Section 325 of the IPC shall be constituted.
11. According to the witnesses including the injured witnesses, it would be apparent that the appellants assaulted 7 Cr. A. No.672/1997 the victims Mohd. Ehsan and Mohd. Mehmood with hard and blunt object and both of them sustained simple injuries according to the Dr. B.M. Agrawal (PW-11) therefore, all the appellants are responsible for two counts charges for the offence punishable under Section 323 of the IPC.
12. So far as the voluntariness of the appellants is concerned, if the victim Mohd. Ramjan prohibited the appellant Samad, not to cut the tree then, it was not necessary for Samad to assault the victim Ramjan by an axe on his head. He had no right of private defence. There is no allegation that the victim Ramjan was caused any harm to the tree of Babool or he tried to assault the appellant Samad therefore, at the time of incident, no right of private defence was accrued to any of the appellant. Similarly, the victim Mohd. Ramjan prohibited the appellant Samad not to cut the tree then, by that prohibition, no grave or sudden provocation was caused to the appellant Samad and other appellants. The appellant Samad assaulted the victim Ramjan by an axe on his head and thereafter, he repeated his assault. When he knew the result of his first assault then, his act of continuation for the second assault indicates that after knowing the result, he continued to do the same. Also all of the appellants assaulted Mohd. Mehmood and Mohd. Ehsan for more than once and therefore, the appellant Samad as well as other appellants had 8 Cr. A. No.672/1997 voluntarily assaulted the various victims by various weapons. Under such circumstances, the appellant Samad was liable for the offence punishable under Section 325 of the IPC for the victim Ramjan. The appellant Zahoor was liable for the offence punishable under Section 325 of the IPC for the victim Naem and all the appellants are responsible for two counts of the offence under Section 323 of the IPC for the victims Mohd. Ehsan and Mohd. Mehmood.
13. So far as common intention or common object is concerned, it would be apparent that the victim Naem sustained single injury and therefore, no other appellant assaulted him except the appellant Zahoor and hence, the common intention of other appellants cannot be presumed except the appellant Zahoor in assaulting the victim Naem and therefore, remaining appellants cannot be convicted for the offence punishable under Section 325 of the IPC for the victim Naem either directly or with the help of Section 34 of the IPC. Similarly, it is established that except the appellant Samad, none assasulted the victim Ramjan and therefore, it cannot be said that remaining appellants had any common intention to assault the victim Ramjan and hence, except the appellant Samad, no other appellant is responsible for the offence under Section 325 of the IPC for the victim Ramjan either direclty or with the help of Section 34 of the IPC.
9 Cr. A. No.672/1997
14. So far as the sentence is concerned, learned counsel for the appellants has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Radhey Shyam Vs. State of Uttar Pradesh" [(2008) 14 SCC 558] in which, the sentence was reduced to the period for which the appellants remained in the custody due to prolonged trial and appeal and on other reasons. In the present case, it was argued by the learned counsel for the appellants that the appellants remained in the custody for three months during the trial and thereafter, they remained in the custody for one month during the appeal and hence, their sentence may be reduced to the period for which they remained in the custody because they had faced the trial and appeal for last 20 years and they were the first offenders. Custody period of the appellant Mohd. Samad is not of four months. He did not remain for three months in the jail during the trial. He surrendered before the Magisterial Court on 21.12.1993 after a longer period of his absconding and he was enlarged on bail on the same day by the Sessions Court. However, he remained in the custody for one month during the appeal, whereas remaining appellants remained in the custody for three months during the trial and one month during the appeal. It is true that the appellants faced the trial and appeal for a pretty long time. They were the first offenders. The alleged incident 10 Cr. A. No.672/1997 was not a preplanned crime, whereas it was started in a spur of moment and therefore looking to the aforesaid circumstances, their sentence may be reduced for two counts charge under Section 323 of the IPC. It would be proper that the sentence of the appellants may be reduced to the period for which they remained in the custody. So far as the offence under Section 325 of the IPC is concerned done by the appellant Mohd. Zahoor, he has already remained in the custody for four months and therefore, his sentence for the offence under Section 325 of the IPC may be reduced to the period for which, he remained in the custody by enhancing some fine. The appellant Mohd. Samad remained in the custody for one month only but, he was 62 years old at the time of incident and at present, he is approximately 80 years old therefore, it would not be proper to send him to the jail again and hence, his sentence for the offence under Section 325 of the IPC may also be reduced to the period for which he remained in the custody by enhancing some more fine.
15. On the basis of aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. The conviction of the appellants for two counts charge of offence under Section 323/34 of the IPC is hereby maintained, whereas all the appellants are acquitted from the charges of offences punishable under Sections 326/34 of the IPC for the victim 11 Cr. A. No.672/1997 Mohd. Ramjan but the appellant Mohd. Samad is convicted for the offence under Section 325 of the IPC under the same charge for the victim Mohd. Ramjan. Similarly, all the appellants are acquitted except the appellant Mohd. Zahoor from the charges of the offences under Sections 325/34 of the IPC but the appellant Mohd. Zahoor is convicted for the offence punishable under Section 325/34 of the IPC. The jail sentence for the aforesaid offences is reduced to the period for which the appellants remained in the custody. However, there is no change in the fine amount for the offence punishable under Section 323/34 of the IPC but the fine amount is enhanced for the offence under Sections 325/34 of the IPC for the appellant Mohd. Zahoor from the sum of Rs.500/- to the sum of Rs.5,000/-. He is directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he shall undergo for six months R.I. If fine is deposited then, a sum of Rs.4,000/- be provided to the victim Naem S/o Abdul Kareem R/o village Gurariyahar Police Station Narsinghpur, District Narsinghpur as a compensation. Similarly, the fine of the appellant Mohd. Samad is ehnanced from the sum of Rs.1,000/- to the sum of Rs.7,000/- for the offence under Section 325 of the IPC done against the victim Mohd. Ramjan. He is also directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he 12 Cr. A. No.672/1997 shall undergo for six months R.I. If fine is deposited then, a sum of Rs.6,000/- be provided to the victim Mohd. Ramjan S/o Abdul Kareem R/o village Guraiyahar, Police Station Narsinghpur, District Narsinghpur as a compensation.
16. The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stands discharged.
17. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance. It is further directed that if the fine is not deposited within the stipulated period then, the trial Court shall follow the Provision of Section 68 of the IPC for recovery of the fine.
(N.K. GUPTA) JUDGE 09.05.2014 pnkj