Madhya Pradesh High Court
Kallu & Ors. vs The State Of M.P on 4 October, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.1508 OF 1994
Kallu & others.
Vs.
State of Madhya Pradesh.
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Shri S.C.Datt, Sr. Advocate with P. Dubey, Advocate for the
appellants.
Shri S.K.Kashyap, Public Prosecutor for the respondent/
State.
Shri J.A.Shah, Advocate for the complainant.
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JUDGMENT
(Delivered on the 4th day of October, 2012) This criminal appeal is filed by the appellants being aggrieved by the judgment dated 3/12/1994 passed by the Additional Sessions Judge, Khurai in ST No.69/1986, whereby the appellants were convicted and sentenced as under:-
Name of Conviction Sentence Fine Default the accused U/S (IPC) (Rs.) sentence All 307/149 3 years' RI 500/- 3 months' SI appellants 506(II) 6 months' RI Appellants 148 6 months' RI No.10, 12 and 15 Rest of the 147 3 months' RI Appellants 2 Cri. A. No.1508/1994 All the sentences were directed to run concurrently.
2. The prosecution's story, in short, is that on 13.8.1985 the victim Gajraj Singh (PW-10) was sitting in front of the shop of one Sohan Singh (PW-9) situated at Village Karonda (Police Station Bhangarh District Sagar). At about 5:30 PM all the appellants came to the spot. The appellant Narayan Singh and Govind Singh had guns, appellant Dayaram had a ballam and other appellants had sticks. They started assaulting the victim Gajraj Singh. Appellant Dayaram assaulted him with a ballam on his head, whereby appellants Govind Singh and Narayan Singh assaulted him with the base of guns and other appellants assaulted him with sticks. The appellant Anek Singh pelted a stone causing injury on the right buttock of the victim Sohan Singh. Kasturi Bai (PW-20), Ramkali (PW-14), Kamla Bai (PW-13) also came to save the victim Gajraj Singh, and therefore they were also assaulted by the appellants and they sustained some injuries. Sohan Singh met ASI Dwivedi on his way to Police Station Bhangarh, therefore he gave a Dehati Nalishi to Shri Dwivedi. The injured persons were directed for their medico legal examination and treatment to the Civil Hospital, Bina. Dr. Rakesh Saxena (PW-18) examined the victims Gajraj Singh, Ramkali, Kamla Bai, Sohan Singh, Randhir and Kasturi Bai and gave his report 3 Cri. A. No.1508/1994 Ex.P-39 to Ex.P-45. He found three simple injuries on Ramkali and two simple injuries on Kamla Bai, whereby four injuries were found on the victim Kasturi Bai and she was referred for her X-ray examination of the injury caused on her left hand. Similarly, simple injury was found to the victim Randhir Singh. Dr. Rakesh Saxena found as many as 15 injuries to the victim Gajraj Singh. Out of them, one lacerated wound was found on his left hand, whereas various contusions were found on both the hands, forehead, back below his neck and on the scapular region etc. He was referred for his X-ray examination for the injuries caused on his head. Dr. V.K. Mishra (PW-5) examined radiologically the victim Gajraj Singh and gave his report Ex.P-18. He found a fracture of body scapula and 7th & 8th ribs on left side. After due investigation, a charge sheet was filed before the JMFC Khurai, who committed the case to the Sessions Court, Sagar and ultimately it was transferred to the Additional Sessions Judge, Khurai.
3. The appellants-accused abjured their guilt. They did not take any specific plea, but they have stated that they were falsely implicated in the matter. However, some injury reports of the appellants were proved by Dr. Rakesh Saxena. Dr. Rakesh Saxena found that the appellant Vijay Singh, Shivraj Singh, Gajraj and Halki Bai had sustained some simple injuries on 14.8.1985 and gave his report Ex.D-5 to Ex.D-8. No witness in defence was examined. 4 Cri. A. No.1508/1994
4. The learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the appellants for the offence under Sections 294, 323 or 323/149 of IPC (for the victims Ramkali and Randhir Singh), Section 325 or 325/149 of IPC (for the victim Kasturi Bai) but convicted and sentenced the appellants as mentioned above. The learned Additional Sessions Judge convicted the appellant Anek Singh for commission of offence punishable under Section 323 of IPC for the victim Sohan Singh and also convicted the appellant Karan Singh and Phool Singh for the offence under Section 323 of IPC for the victim Kamla Bai, but no separate sentence was directed.
5. During the pendency of this appeal, appellant No.1 Gajraj Singh and appellant No.4 Shiraj Singh had expired and their names were deleted from the array of the appellants, and therefore their appeal was dismissed being abated.
6. I have heard the learned counsel for the parties.
7. The learned senior counsel for the appellants has submitted that there was a counter case which was resulted in acquittal due to compromise. It is admitted by Sohan Singh (PW-9) that some of the appellants sustained injuries in the incident, and therefore it was for the prosecution to explain the injuries caused to the appellants. It was a case of free fight. The witnesses have stated in omnibus manner 5 Cri. A. No.1508/1994 against the 17 persons, whereas their overt-acts were not duly proved. They are wrongly convicted for such offences. No fatal injury was caused to the victim Gajraj Singh, and therefore no offence under Section 307 of IPC could be constituted. The learned senior counsel for the appellants has placed his reliance upon the judgments of Hon'ble the Apex Court in the case of "Jai Narain Mishra Vs. State of Bihar", (AIR 1972 SC 1764), "Pashora Singh Vs. State of Punjab" (AIR 1993 SC 1256) and "Musakhan Vs. State of Maharashtra" (AIR 1976 SC 2566). It is also submitted that a compromise application was moved by the legal representatives of the victim Gajraj Singh before this Court. Under such circumstances, it is prayed that the appellants may be acquitted. In the alternate, it is submitted that the incident took place in the year 1985 and 28 years have passed, hence the appellants may not be sent to the jail again. They remained in the custody for sometime, and therefore some fine amount may be imposed upon them in lieu of sentence.
8. On the other hand, learned counsel for the State has supported the impugned judgment. He has submitted that the victim Gajraj Singh sustained as many as 13 injuries, and therefore looking at the cumulative effect of such injuries, offence under Section 307 of IPC is clearly made out. Looking at the overt-acts of the appellants, they be sentenced with appropriate sentence.
6 Cri. A. No.1508/1994
9. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants may be accepted? And whether the sentence directed against the appellants can be reduced?
10. In the present case Gajraj Singh (PW-10), Sohan Singh (PW-9), Komal (PW-6), Mahendra (PW-8), Preetam Singh (PW-11), Kapoor Singh (PW-12), Kamla Bai (PW-13), Ramkali (PW-14) and Kasturi Bai (PW-20) were examined as eye witnesses. Out of them Ramkali (PW-14), Kasturi Bai (PW-20), Komal (PW-6) and Mahendra (PW-8) have turned hostile. They could not say about the incident, whereas Kamla Bai has stated that the appellants had assaulted the victim Gajraj Singh and appellant Karan Singh assaulted her with stick along with the appellant Phool Singh. Gajraj Singh, Sohan Singh, Preetam Singh along with Kapoor Singh have stated that Gajraj Singh was sitting in front of the shop of Sohan Singh at the time of incident. Suddenly the appellants came to the spot. Dayaram assaulted the victim Gajraj Singh with a ballam on his head and appellants Narayan Singh and Govind Singh with base of the guns, whereas remaining appellants assaulted him with sticks. Gajraj Singh said that Karan Singh and Phool Singh assaulted him with sticks and he became unconscious and he did not know about the remaining assault. Sohan Singh 7 Cri. A. No.1508/1994 has admitted that he rushed inside the shop and appellant Anek Singh pelted a stone upon him, but he had also stated in omnibus manner that all the appellants assaulted the victim Gajraj Singh.
11. In the present case the learned Additional Sessions Judge convicted the various appellants for the injuries caused to Kamla Bai and Sohan Singh, but did not pass any sentence against them. All the sentences were to run concurrently, therefore it makes no difference if sentence was not passed under Section 323 of IPC relating to the injuries caused to Kamla Bai and Sohan Singh. Under such circumstances, at present, the matter is to be considered only for the victim Gajraj Singh. Gajraj Singh and Sohan Singh have admitted about the enmity between them and the appellants. The enmity is a double edged weapon. Due to enmity anyone can implicate the members of other party in a crime or one party may assault the other party due to enmity, and therefore the evidence of such witnesses should be considered with caution.
12. The testimony of the victims Gajraj Singh and Sohan Singh is duly corroborated by the Dehati Nalishi Ex.P-25 lodged by Sohan Singh and the medical report Ex.P-39 in which Dr. Rakesh Saxena (PW-18) found as many as 13-14 injuries upon the victim Gajraj Singh. Looking at the places of injuries, it cannot be said that Gajraj Singh sustained such injuries due to fall. Such injuries could be 8 Cri. A. No.1508/1994 caused by assault only. It is true that Dr. Rakesh Saxena found a lacerated wound on the head of the victim Gajraj Singh, whereas it was alleged that appellant Dayaram assaulted him on his head with a ballam. However, if ballam was not sharp, then a lacerated wound could be caused. Under such circumstances, it cannot be said that the medical evidence was not corroborative with the testimony of the Gajraj Singh. However, it is strange that the complainant had implicated 17 accused persons in the case, whereas total injuries found on the victim Gajraj Singh were 13-14, which indicates that some of the appellants were falsely implicated in the matter. The witnesses Sohan Singh, Gajraj Singh and Preetam Singh have stated about the overt-acts of the appellants Dayaram, Narayan Singh, Govind Singh, Karan Singh and Phool Singh, whereas they did not state specifically about the assault caused by other appellants. It is apparent that all the appellants were not involved in the crime, because the number of injuries was less than the number of the appellants, and therefore out of 17 appellants, except the appellants Dayaram, Narayan Singh, Govind Singh, Karan Singh, Anek Singh and Phool Singh, it cannot be said that the remaining appellants had participated in the crime. There is no reason to conclude that these appellants had assaulted the victim Gajraj Singh, and therefore they can get the benefit of doubt. It cannot be said that they were involved in the unlawful assembly or 9 Cri. A. No.1508/1994 they assaulted the victim Gajraj Singh. Under such circumstances, the remaining appellants could not be convicted for any offence in the case.
13. It is true that the victim Gajraj Singh sustained 13-14 injuries and out of them two injuries were found grievous. However, no vital part of the body was found damaged. No injury was found to be fatal. Under such circumstances, in the light of the judgment of Hon'ble the Apex Court in the case of "Sarju Vs. State of Bihar" (AIR 1965 SC 843), for consideration of the offence punishable under Section 307 of IPC, the prosecution has to prove any of the three kinds referred in Section 300 of IPC. In the present case, none amongst such kinds under Section 300 of IPC is established by the prosecution. None of the appellants had given any fatal blow to the victims. If the appellants had intended to kill the victim Gajraj Singh, then certainly the appellant Narayan Singh or Govind Singh could fire from their guns and Gajraj Singh could be killed. Under such circumstances, no offence under Section 307 of IPC is constituted. At the most offence under Section 325 of IPC would be constituted.
14. So far as the question of right of private defence is concerned, it is true that some of the appellants sustained some injuries and Dr. Rakesh Saxena found that Vijay, Shivraj Singh, Gajraj Singh and Halki Bai sustained some simple injuries but it was for the accused persons to 10 Cri. A. No.1508/1994 establish that those injuries were caused in the same incident, and therefore the concerned FIR was to be proved by the appellants. It appears that Head Constable Shyamlal (PW-7) had written a Rojnamcha Ex.P-25 (the trial Court has marked Ex.P-25 on Dehati Nalishi by Sohan Singh also, therefore the Rojnamcha will be referred as Ex.P-25A which was lodged by the appellant No.3 for the sake of differentiation. However, if the contents of the Rojnamcha are perused, then there is no mention of any quarrel between Gajraj Singh and the appellants. It is mentioned in that Rojnamcha that quarrel took place between Shivraj Singh and Sohan Singh who was accompanied with Komal and Himmat Singh, but there is nothing about any injury or involvement caused by the victim Gajraj Singh. No time of incident or place of incident is mentioned in this Rojnamcha, and therefore the appellants could not prove that the injuries found on the various appellants like Vijay, Shivraj Singh and Gajraj Singh were caused in the same incident.
15. If counter cases are registered, then they may be tried simultaneously, but evidence of one case cannot be read into the another case. It is for the accused persons to prove the FIR of the case to show that it was a counter case and hence it was the duty of the prosecution to explain about the injuries of the accused persons. It appears that alleged counter case was disposed off before the JMFC Bina 11 Cri. A. No.1508/1994 due to compromise, but it was not exactly a counter case, and therefore it was not tried simultaneously with the present sessions trial. Under such circumstances, it was not proved that the appellants Vijay, Shivraj Singh or Gajraj Singh sustained injuries in the same incident, and therefore there was no need for the prosecution to explain such injuries.
16. According to the version given by the Sohan Singh, Gajraj Singh was enjoying with a cup of tea in front of the shop of Sohan Singh and suddenly the appellants attacked upon him. No right of private defence had accrued to the appellants. No sudden or grave provocation was given by the victim Gajraj Singh, and therefore as discussed above, six appellants namely Dayaram, Narayan Singh, Govind Singh, Karan Singh and Phool Singh and Anek Singh, who participated in the crime and who were the members of unlawful assembly assaulted the victim Gajraj Singh causing him grievous injuries, hence each of them is responsible for the offence under Section 325 read with Section 149 of IPC.
17. So far as the offence under Section 506(II) of IPC is concerned, it is nowhere established that any threat was given by the appellants to the victims Gajraj Singh and Sohan Singh. Gajraj Singh did not say specifically about any threat or purpose of the threat. By the assault, a lesson was given to the Gajraj Singh, but it is nowhere established that 12 Cri. A. No.1508/1994 what was the purpose of that assault. It appears that Gajraj Singh was assaulted due to enmity. Under such circumstances, the learned Additional Sessions Judge has erred in convicting the appellants for the offence under Section 506(II) of IPC, and therefore they should be acquitted from the charges of offence under Section 506(II) of IPC.
18. It is apparent that the said six appellants had participated in the crime, and therefore they made the unlawful assembly. Out of them, some of the appellants had deadly weapons, and therefore they are guilty of the offence under Section 148 of IPC and some of them had sticks etc., and therefore they were convicted under Section 147 of IPC. Hence, there is no basis by which any interference may be drawn in the finding of the trial Court relating to the offence under Section 147 or 148 of IPC in respect of aforesaid six appellants.
19. So far as the sentence is concerned, the offence under Section 325 of IPC is not so grave. It appears that each of them had assaulted once or twice upon the victim Gajraj Singh. They have faced the trial and appeal for last 27-28 years. They remained in the custody for 10 days approximately whereas appellant Narayan Singh remained in the custody for 27 days. Under such circumstances, it would be proper that their jail sentence may be reduced to the period which they have already undergone in the 13 Cri. A. No.1508/1994 custody, but a fine of Rs.5,000/- is to be imposed upon each of the appellants for the offence under Section 325/149 of IPC, but no fine is imposed for other offences.
20. On the basis of the aforesaid discussion, the appeal filed by the appellants No.8 Anek Singh, No.10 Narayan Singh, No.11 Phool Singh, No.12 Govind Singh, No.13 Karan Singh and No.15 Dayaram is party allowed. Their conviction and sentence for the offence under Section 307/149, 506(II) of IPC are hereby set aside, whereas the conviction as well as the sentence for the offence under Section 147 or 148 of IPC is maintained but their sentence is reduced to the period which they have already undergone in the custody. These appellants are convicted for the offence under Section 325/149 of IPC and they are sentenced to the period which they have already undergone in the custody, but fine of Rs.5000/- is imposed on each of such appellants for the offence under Section 325/149 of IPC. Fine amount deposited by these appellants will be adjusted towards the fine imposed upon them. They are directed to deposit the fine amount before the trial Court within two months from today, failing which they shall undergo nine months' RI. The present appeal of the remaining appellants is hereby allowed. Their conviction and sentence for commission of offence under Sections 307/149, 506(II) and 147 of IPC are hereby set aside. They are acquitted from all the charges appended against them. 14 Cri. A. No.1508/1994 They would be entitled to get the fine amount back if they have deposited the same before the trial Court.
21. The appellants No.2,3, 5 to 7, 9, 14, 16 and 17 were on bail during the trial. Their presence is no more required before this Court, and therefore it is directed that their bail bonds shall stand discharged.
22. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 04/10/2012 Ansari