Madhya Pradesh High Court
Santosh vs The State Of M.P on 22 March, 2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.74/1996
Santosh, son of Ghasiram Yadav,
aged about 38 years,
Resident of Maharajpur,
District Chhatarpur ...Appellant
vs.
The State of Madhya Pradesh, through SHO,
P.S. Maharajpur, Distt. Chhatarpur ...Respondent
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Shri Sharad Verma, Advocate for the appellant.
Shri Umesh Pandey, Govt. Adv. for the respondent/State.
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JUDGMENT
(22.3.2011) This appeal has been preferred against the judgment-dated 4.1.1996 passed by the Sessions Judge, Chhatarpur in S.T. No.132/93 whereby the appellant was convicted and sentenced as under -
convicted under Section sentenced to
333 of the IPC undergo R.I. for 2 years and to
(for causing grievous hurt to Parsadi pay fine of Rs.500/- and in Raikwar in the discharge of his duty default, to suffer R.I. for three as Line-helper in MPEB) months.
353 of the IPC undergo R.I. for 6 months.
(for using criminal force to Parsadi as well as Shripat Kushwaha to deter them from duty as Line-helper in MPEB) with the direction that the custodial sentences shall run concurrently
2. The prosecution story, in short, may be narrated thus -
(i)On 27.6.1993 at about 11 a.m., Parsadi Raikwar (PW1) and Shripat Kushwaha (PW3), who were posted as Line-helpers in the office of MPEB at Maharajpur, were deputed to attend to the complaint made by Omprakash Arjaria, a resident of Didonia Haar. At about 2:30 p.m., after carrying out necessary repairs, as they were checking the electric lines located near the well belonging to Omprakash, the appellant :: 2 ::
Criminal Appeal No.74/1996not only dragged Parsadi by the towel worn round his neck but also twisted his left hand uttering that he was responsible for causing death of his buffalo. Shripat tried to intervene but the appellant, taking up a stick, was bent upon hitting both of them. However, they were able to run away.
(ii)Parsadi and Shripat submitted a report (Ex.P1) before the Junior Sub-Engineer Balendra Singh (PW4), who forwarded the same, by way of letter (Ex.P-6), to the SHO of P.S. Maharajpur. Ultimately, ASI N.K. Gautam registered a case under Sections 353 and 332 of the IPC by recording the FIR (Ex.P-8).
(iii)Noticing contusion on whole of Parsadi's left palm, Dr. R.K. Sharma (PW6) advised X-ray examination. Radiologist M.K. Khare (PW2) found a fracture in the proximal phalanx of the ring finger. Accordingly, the case was converted into one under Section 333 of the IPC. After due investigation, charge-
sheet was submitted before Judicial Magistrate First Class, Naugaon who committed the case to the Court of Sessions for trial.
3. On being charged with the offences punishable under Sections 333, 353 and 506 of the IPC, the appellant pleaded false implication at the instance of Parsadi as a counter blast to his report suggesting that death of buffalo was caused due to improper maintenance of electric wires by the officials of MPEB. According to him, it was Parsadi only who had restored the supply of electricity overlooking the fact that snapped wires were still lying in the field and in such a situation, his buffalo had come in contact with the live wire and died of instantaneous electrocution. He further asserted that on being reproached, Parsadi had tried to run away and, in the process, had fallen down.
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Criminal Appeal No.74/19964. The prosecution sought to prove the charges by examining as many as 6 witnesses including the complainant and the medical experts. The defence also called 3 witnesses including Veterinary Surgeon Dr. Umashankar Saxena (DW3), who had the occasion to conduct post-mortem on the body of his buffalo. Upon consideration of the entire evidence on record, learned trial Judge, for the reasons assigned in the judgment, proceeded to acquit the appellant of the offence under Section 506 of the IPC but further concluded that his guilt in respect of the other charges was proved beyond a reasonable doubt.
5. Legality and propriety of the impugned convictions have been challenged mainly on the ground of what has been termed as mis- appreciation of the evidence on record. In response, learned Government Advocate, while making reference to the incriminating pieces of evidence, has submitted that convictions are well merited.
6. In order to appreciate the merits of the rival contentions in a proper perspective, it is necessary to first advert to the medical evidence available on record. According to Dr. R.K. Sharma (PW6), finding diffused swelling on Parsadi's left palm and all the fingers, he had advised x-ray examination whereas Dr. M.K. Khare (PW2), testified that, in the radiological examination, he had found a fracture in the proximal phalanx of Parsadi's left ring finger. Even though, the Radiologist clearly admitted that fracture could have been sustained due to fall on a rough surface yet, in absence of corresponding suggestion in the cross-examination of Parsadi, the defence story regarding fall was rightly rejected as absolutely an afterthought.
7. Coming to the other evidence, it may be seen that the following facts were not in dispute -
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Criminal Appeal No.74/1996(a) the appellant's buffalo had died of electrocution after coming into contact with the live wire snapped in an storm.
(b) On 28.6.1993 at 9.20 a.m., the appellant informed the police that his buffalo had died as a result of coming into contact with the live electric wire lying near his well and this information was recorded by Head Constable Shyamlal (DW1) in the Roznamcha.
(c) Dr. Umashankar Saxena (DW3) conducted the autopsy and confirmed that buffalo's death had occurred on 27.6.1993 due to electrocution only.
(d) On 28.6.1993 at 5.10 p.m., the report (Ex.P-1) made by Parsadi & Shripat and forwarded by the Junior Engineer was received in the Police Station.
(e) In the medical examination, conducted on 28.6.1993 at 5.30 p.m., Dr. R.K. Sharma (PW6) had opined that the injury was received by Parsadi within 36 hours.
8. It is relevant to note that even on 28.6.1993, the day following death of his buffalo, the appellant had made no specific allegation against any particular official of the Electricity Board. All these facts were clearly suggestive of the inference that report leading to registration of the case was not in the nature of a counter blast.
9. Parsadi (PW1) categorically asserted that the appellant had caused the fracture by twisting his fingers and his evidence drew ample support from the statement of Shripat. Although, the defence was able to elicit certain inconsistencies with reference to the version recorded in their report (Ex.P-1) yet, there was consensus as to the substratum of the case.
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Criminal Appeal No.74/199610. However, it was not possible to hold that Parsadi and Shripat were assaulted at the time when they were performing duty as line- helpers in view of these infirmities in the prosecution evidence -
(i) The report (Ex.P-1) indicated that appellant had assaulted Pasradi at the time when he was checking the electric line at the well of Omprakash Arjaria whereas both Pasradi and Shripat were emphatic in deposing that Pasradi was manhandled near the appellant's well where he had called them at the time when they were returning home after making necessary repairs at the well of Rakesh Arjaria.
(ii) No duty certificate or any other document pertaining to duty hours was produced.
(iii) Neither Om Prakash nor Rakesh Arjaria was examined by the prosecution to prove that Pasradi and Shripat have gone to attend to the complaint made by him as well as to give information regarding exact time of their departure.
11. This apart, even if the statement of Pasradi and Shripat that they were assaulted while undertaking return journey to the office is taken at its face value, no offence under Section 353 of the IPC would be made out as travelling by virtue of office is not a part of duty (See. Richard Saldana v. State 1960 Cri LJ 828 that has been followed in Mohammed Kutty v. State of Kerala 2004 Cri.L.J. 1603). In Richard Saldana's case, the following excerpts of the commentary by H. S. Gour on the Penal Law of India were quoted in support of the view taken:-
"This offence consists of assaulting or using criminal force on a person who is at the time of the offence a public servant in the execution of his duty. As such, he is often exposed to considerable risks in the discharge of his official duties, and the law, therefore, :: 6 ::Criminal Appeal No.74/1996
throws round him a special protection by prescribed specifically deterrent sentences to those who offend against the majesty of the law of which he is a minister. As however, it is not intended to encircle him with a perennial halo of sanctity and inviolability, the Code has throughout, in referring to him, protected him only when he is in the execution of duty, he being left at other times to have recourse to the ordinary law applicable to all alike."
(Emphasis supplied)
12. Apparently, Parsadi was assaulted in view of the fact that appellant was suspecting his involvement in the negligence leading to death of the buffalo. In such a situation, learned trial Judge completely misdirected himself in arriving at the conclusion that Parsadi and Shripat were assaulted in the execution of their duties as the public servant.
13. Thus, upon re-appreciation of the entire evidence on record, I am of the view that the appellant ought to have been convicted for offences under Sections 325 and 352 only for causing grievous hurt to Parsadi and for using criminal force to Shripat. This apart, the impugned sentences passed against the appellant for the offence under Section 353 for using criminal force to Parsadi was also not legal as being violative of S.71 of the Code.
14. This brings me to the question of sentence. A considerable period of nearly 18 years has already elapsed after the incident in question and in the meanwhile, the appellant has already suffered imprisonment for a period of 2 months and 3 days. Taking into consideration the social impact of the crime and other relevant aspects of the sentencing policy, interests of justice would be met if the custodial sentence of the appellant is reduced to the period already undergone.
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Criminal Appeal No.74/199615. In the result, the appeal is allowed in part. The impugned convictions and consequent sentences are set aside and instead, appellant is -
convicted under Section sentenced to
325 of the IPC suffer imprisonment for the period
already undergone and to pay fine
of Rs.500/- and in default, to suffer
R.I. for 21 days.
352 of the IPC pay fine of Rs.500/- and in default,
to suffer R.I. for 21 days.
16. The appellant is directed to appear before the trial Court on or before 11.5.2011 for depositing the remaining fine amount or for being committed to custody for undergoing the default sentence.
Appeal partly allowed.
(R.C. MISHRA) JUDGE 22.3.2011