Madhya Pradesh High Court
Vishal vs State Of M.P on 6 July, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.754/1996
Vishal
VERSUS
State of Madhya Pradesh
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Shri Siddharth Datt, counsel for the appellant.
Shri G.S.Thakur, Panel Lawyer for the State/
respondent.
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J U D G M E N T
(Delivered on the 6th day of July, 2012) The appellant has preferred the present appeal against the judgment dated 16.4.1996 passed by learned Additional Sessions Judge, Sohagpur, District Hoshangabad in S.T.No.328/1993, whereby the appellant was convicted for offence punishable under sections 333 of IPC and sentenced for 3 years rigorous imprisonment with fine of Rs.500/-. The appellant was to undergo for 4 months' rigorous imprisonment in default of payment of fine amount.
2. Prosecution's case, in short, is that, on 31.5.1993 at about 7.30 a.m. in the morning, the complainant/victim Shri Rukmani Raman Pratap Singh, Forest Guard (P.W.3) loaded the wood chopped by thieves in Chargaon beat in :: 2 ::
Criminal Appeal No.754 of 1996 some bullock carts and thereafter, he went towards his Headquarter by a bicycle. Bullock carts were 300 to 400 meters back from the bicycle of the complainant. In the way near a nala, two persons emerged from the jungle and they assaulted the complainant by sticks. Face of one person was covered with towel, whereas second person was the appellant Vishal. Due to that assault, the complainant sustained injuries on his head, hand and fingers. The incident was seen by one Govindi. The complainant was taken to village Chargaon by the persons who were driving the bullock carts and thereafter, he was taken to Sohagpur in a tractor owned by Surendra Paliwal. The complainant lodged an FIR, Ex.P/3 at Police Station Sohagpur on 31.5.1993 at about 9.45 a.m. He was directed for his medico legal examination.
Dr. Ravi Sharma (P.W.8) examined the complainant and gave his report, Ex.P/9. He found 9-10 injuries to the victim caused by hard and blunt object. He referred him for his x- ray examination. Dr.N. Hasan (P.W.9) after getting radiography examination of the complainant gave his report, Ex.P/10. He found that 4th and 5th metacarpal bone in the left hand were broken, whereas shaft of ulna bone on upper 1/3rd portion of left hand was also broken. After due investigation, a charge-sheet was filed before JMFC, Sohagpur who committed the case to the Sessions Judge, :: 3 ::
Criminal Appeal No.754 of 1996 Hoshangabad and it was transferred to the Additional Sessions Judge, Sohagpur.
3. The appellant abjured his guilt. He did not take any specific plea in defence. However, he has stated that he was falsely implicated. No defence evidence was adduced by the appellant.
4. After considering the evidence adduced by the prosecution, learned Additional Sessions Judge acquitted the co-accused Hakam Singh from all the charges, whereas the appellant was acquitted from the charges of offence punishable under section 506 of IPC but, convicted for offence punishable under section 333 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellant has submitted that it is no where established by the prosecution that at the time of incident, the complainant was on duty or the incident took place on the consequence of any public duty done by the complainant and therefore, no offence punishable under section 333 of IPC may constitute. Secondly, the complainant could not identify any of the culprits and therefore, name of the appellant was mentioned in the FIR on the basis of suspicion because some forest cases were registered against the appellant in past. Under such :: 4 ::
Criminal Appeal No.754 of 1996 circumstances, it is prayed that the appellant may be acquitted.
7. On the other hand learned Panel Lawyer has submitted that conviction as well as sentence directed by the trial Court appears to be appropriate and correct.
8. For consideration of this appeal, points for determination are that whether the appellant assaulted the victim causing him grievous injuries? Whether he assaulted the victim voluntarily? Whether offence punishable under section 333 of IPC is made out against the appellant? and whether any reduction can be done in the sentence directed by the trial Court?
9. The complainant Shri Rukmani Raman Pratap Singh (P.W.3) has stated that some wood was found cutted in the beat of Chargaon and therefore, the complainant went to that area with 3-4 bullock carts driven by Parasram, Ramcharan and Bhagwat. Wood was loaded in those bullock carts and the complainant was going back on bicycle followed by the bullock carts. However, he was much away from the bullock carts and therefore, persons who were driving those bullock carts could not see the incident. He thought that one Govind was there on 50-100 meters apart but, no such witness was examined by the prosecution in support of the complainant. However, the complainant had :: 5 ::
Criminal Appeal No.754 of 1996 lodged an FIR soon after the incident and his evidence is duly corroborated by Dr.Ravi Sharma (P.W.8), who examined the victim after the incident and confirmed about 10 injuries caused to the complainant/victim. Similarly, Dr.Hasan (P.W.9) has proved that the complainant sustained fractures at 3 places. Under such circumstances, it is to be seen that whether sole testimony of the complainant can be believed?
10. Learned counsel for the appellant has submitted that the complainant could not see the actual culprits and therefore, name of the appellant was shown in the FIR on the basis of suspicion. The complainant did not accept such a suggestion given by the defence counsel. He has clearly stated that face of the appellant was uncovered and therefore, he could identify the appellant. The appellant could be implicated falsely by the complainant if there was any enmity between them. No suggestion of enmity was given to the complainant. In para 19 of his statement, the complainant has accepted that in past some criminal cases were registered against the appellant by the forest department and therefore, he knew the appellant but, he did not say that he had any enmity with the appellant. Under such circumstances, point raised by the defence cannot be accepted. Though there is no witness in support of the complainant but, by other corroborative evidence like FIR :: 6 ::
Criminal Appeal No.754 of 1996 and medical reports, testimony of the complainant is believable beyond doubt. Therefore, it is proved that the appellant assaulted the complainant causing him grievous injuries.
11. It is not the case of the appellant that any quarrel took place between the appellant and the complainant or quarrel started due to any reason by which any right of private defence arose to the appellant or any sudden or grave provocation was given by the complainant to the appellant. Under such circumstances, it is apparent that the appellant assaulted the victim without any sudden or grave provocation or right of private defence. He assaulted the complainant for so many times by sticks and therefore, he should know the result of his overt-act. Under such circumstances, it is also established that the appellant assaulted the victim voluntarily and therefore, he had voluntarily caused grievous hurt to the complainant.
12. The complainant has submitted a duty certificate, Ex.P/5 given by the higher authorities of the complainant to show that he was on duty at the time of incident. If certificate, Ex.P/5 is perused then, it would be clear that the complainant was deputed as a Beat Guard in Chargaon beat. It is no where mentioned in that certificate that he was directed to load the chopped wood found in the Chargaon :: 7 ::
Criminal Appeal No.754 of 1996 beat. Though a forest guard is expected to guard the forest for entire 24 hours but, he has to do his own activities and therefore, he cannot be presumed on public duty for all the 24 hours. The complainant has stated that he went deep into the Chargaon beat to load the chopped wood in bullock carts. He has accepted that those bullock carts were driven by Parasram, Ramcharan and Bhagwat and ultimately, drivers of those bullock carts took him up to village Chargaon but, Parasram and Bhagwat were not examined by the prosecution, whereas, witness Ramcharan (P.W.1) turned hostile. He did not confirm that the chopped wood was loaded in his bullock cart and in the way he found the complainant to be injured or he took the complainant to the Headquarter at Chargaon. If the list of witnesses prepared by the police is perused then, names of Parasram and Bhagwat is no where in that list. If three persons were bringing the chopped wood in their bullock carts and they saw the victim in injured condition then, all of the three persons were the important witnesses to corroborate the testimony of the complainant but police did not examine the witnesses Parasram and Bhagwat. Under such circumstances, it appears that the complainant did not inform the police that chopped wood was loaded in bullock carts of these three persons. Under such circumstances, the :: 8 ::
Criminal Appeal No.754 of 1996 testimony of the complainant comes in doubt to the fact that at the time of incident, he was coming from Chargaon beat after loading chopped wood in the bullock carts. There is no reason shown by the complainant that he was on tour or he was at the spot due to any other reason. Under such circumstances, it is not proved beyond doubt that at the time of incident, the complainant was doing any public duty.
13. For constitution of offence punishable under section 333, 332 or 353 of IPC, it is for the prosecution to prove that the public servant was beaten at the time when he was doing any public duty or he was beaten with intention to prevent or deter, the public servant to do any public duty or in consequence of anything done by the public servant in lawful discharge of his duty as a public servant. In the present case, it is not established that the complainant was doing any public duty at the time of incident. The complainant (P.W.2) has accepted that the assailants did not say a single word to him and therefore, it cannot be said that the complainant was being assaulted by the appellant to prevent or deter him to do any public duty. Similarly, there is no allegation made by the complainant that due to his previous public duty, some annoyance was caused to the appellant and therefore, he assaulted the complainant due to that reason. Under such circumstances, where neither the :: 9 ::
Criminal Appeal No.754 of 1996 complainant was doing any public duty at the time of incident nor he was prohibited or deterred from doing any public duty or he was assaulted because of his previous public duty done, no offence punishable under section 333 of IPC shall be made out. At the most, offence punishable under section 325 of IPC may constitute. Conviction directed by the learned Additional Sessions Judge appears to be incorrect for offence punishable under section 333 of IPC. However, offence punishable under section 325 of IPC is an inferior offence of similar nature to offence punishable under section 333 of IPC and therefore, the appellant can be convicted for offence punishable under section 325 of IPC without framing of any specific charge for the offence punishable under section 325 of IPC.
14. So far as the sentence is concerned, some submissions made by the learned counsel for the appellant may be accepted that no criminal past was shown against the appellant. Assault was caused by two persons and therefore, it cannot be said that entire result was caused by the appellant and not by other accused. The incident took place in the year 1993 and the appellant has suffered trial and appeal since last 19 years. Under such circumstances, where the appellant remained in custody for 76 days, his jail :: 10 ::
Criminal Appeal No.754 of 1996 sentence can be reduced to the period for which he remained in the custody but, some fine amount may be enhanced.
15. On the basis of the aforesaid discussion, appeal of the appellant is hereby partly allowed. Conviction as well as sentence directed by the trial Court for offence punishable under section 333 of IPC is hereby set aside. However, the appellant is convicted for offence punishable under section 325 of IPC and sentenced for the period, which he has already undergone in the custody with fine of Rs.7,000/-. The appellant is directed to deposit the fine amount before the trial Court within two months from today. In default of payment of fine, he has to undergo for rigorous imprisonment of one year. If fine is deposited then, a sum of Rs.5,000/- may be given to the complainant Shri Rukmani Raman Pratap Singh S/o Shri Budhsen Singh, Forest Guard, R/o Sohagapur, District Hoshangabad (M.P.) by way of a compensation.
17. Presence of the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
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Criminal Appeal No.754 of 1996
18. Copy of the judgment be sent to the trial Court with its record as early as possible for information and compliance.
(N.K.GUPTA) JUDGE 6/7/2012 Pushpendra