Madhya Pradesh High Court
Punna And Ors. vs State Of Madhya Pradesh on 13 July, 1995
Equivalent citations: 1996(0)MPLJ376
JUDGMENT Fakhruddin, J.
1. The appellants have preferred this appeal against their conviction and sentence recorded by Addl. Sessions Judge, Guna in S. T. No. 53/85. Appellant No. 1 Punna and appellant No. 2 Premnarain have been convicted under Section 325/34, Indian Penal Code and sentenced to 2 years R. I., while appellant No. 3 Lalaram has been convicted under Section 307, Indian Penal Code and sentenced to 5 years R. I.
2. The prosecution case is that on 5-1-1985 in the night at about 10 p.m. all the appellants along with two acquitted co-accused, named Omkarlal and Komalsingh formed an unlawful assembly with common object of attempting on the life of Pyarelal and causing grievous injuries to Devilal. They were armed with Lathi, Luhangi and Kulahri. They were charged for the offence under Sections 148, 307/149 and 325 read with Section 149 of Indian Penal Code. Complainant Devilal s/o Harkishan, has two sons named Pyarelal (P.W.2) and Ganpat (P.W.3). Accused Punna s/o Chhutya, has four sons namely Omkarlal, Premnarain, Lalaram and Komalsingh. Both the parties belong to Ghosipura, distt. Guna.
3. The prosecution story which emerges is that there was enmity between complainant-party and accused-party. On 5-1-1985 in the night at about 10 p.m. Pyarelal (P.W.2) came out from his house to urinate whereupon accused Omkarlal told him as to why does he harass him. On this a wordy quarrel arose, Omkarlal abused him. Thereafter it is alleged that five accused-persons armed with lathi and luhangi came there, and accused Punna and Premnarain gave lathi blows to Devilal (P.W.1), accused Lalaram gave an axe (Kulhari) blow on the head of Pyarelal (P.W.2) with a view to kill him, accused Omkarlal and Komalsingh are alleged to have given lathi blows on the hands and legs of Pyarelal (P.W.2). Pyarelal (P.W.2) fell down and accused-persons then ran away from the spot.
4. The report of the incident was lodged at P. S. Guna by Devilal (complainant), which was registered at crime No. 5/85 for the offence under Sections 147, 148, 149, 307 read with Section 34 of Indian Penal Code. Both the injured (Devilal and Pyarelal) were sent for medical examination. During investigation, the spot-map was prepared. Blood-stained and plain earth were seized from the spot and sent for examination.
5. The accused-persons were arrested and on their behest weapons were seized.
6. The usual investigation was done, and the charge-sheet was submitted against these accused-appellants.
7. Accused-persons abjured the guilt and contended false implication. Accused Punna, Lalaram, Premnarain contended in their defence that they did not cause any injury nor they were present at the spot. Accused Omkarlal stated that Devilal (P.W.1), Pyarelal (P.W.2) and Ganpat (P.W.3) were abusing his mother and started quarrelling, whereupon he went to save his mother and he was also beaten by these persons. He sustained injuries on his person.
8. The learned trial Judge acquitted Omkarlal and Komalsingh but found the case proved against Lalaram under Section 307 and Punna, Premnarain under Section 325/34, Indian Penal Code.
9. The prosecution in this case examined Devilal (P.W.1), Pyarelal (P.W.2), Ganpat (P.W. 3), Chhotya (P.W.4), Abdul Khan (P.W.5), Dr. Y. S. Agrawal (P.W. 6), Dr. R. K. Jain (P.W.7) and Ramautarsingh (P.W.8). The defence has examined accused Punna (D.W.1), Omkarlal (D.W.2), Lalaram (D.W.3), Premnarain (D.W.4) and Komalsingh (D.W.5) as defence witnesses.
10. Shri J. P. Gupta, learned counsel for the appellants contended that there is no substantive charge for the offence under Section 307, Indian Penal Code levelled against accused Lalaram. It is no doubt true that while framing the charge, substantive charge for the offence under Section 307 was not framed and the charge for the offence under Sections 148, 307/149 and 325/149 was framed and explained to the accused. The learned trial Judge however has convicted accused Lalaram for the substantive offence under Section 307, Indian Penal Code. The contention is that without there being substantive charge under Section 307, Indian Penal Code, conviction is not sustainable in law. Learned counsel placed reliance on AIR 1955 SC 274, Nanak Chand v. State of Punjab; AIR 1955 SC 419, Suraj Pal v. State of U. P. and AIR 1966 SC 1742, Lakhan Mahto v. State of Bihar. In Nanak Chand's case (supra) it was observed that:-
"Under Section 149, a specific offence is created. Section 149 postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore, when the accused are acquitted of riot and charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed." (para 5).
In Suraj Pal's case (supra) it has been held that:-
"There were no direct and individual charges against the accused for the specific offences under Sections 307 and 302, Indian Penal Code. The offence of specific charges against the accused under Sections 307 and 302 was a very serious lacuna in the proceedings and had materially prejudiced the accused. Hence the conviction and sentence under Sections 307 and 302 would not be maintained against the accused." (Paras 3 and 4) In view of the above, decision of the Apex Court, the conviction of the accused Lalaram under Section 307, Indian Penal Code deserves to be set aside.
11. Shri J. P. Gupta, learned counsel for the appellants then contended that in this case the prosecution has failed to explain the injuries on the person of accused Omkarlal. These injuries have been proved by Ex. D/4, which is on record. Learned counsel placed reliance on AIR 1968 SC 1281, MoharRai v. State of Bihar; AIR 1976 SC 2263, Laxmisingh v. State of Bihar and AIR 1994 SC 31, Kishan Chand v. State of Punjab.
12. In this case Dr. Y. S. Agrawal (P.W.6) was called at the behest of the accused by the trial Court. Doctor Agrawal deposed that on 5-1-1985 at about 11 O'clock in the night, he examined Omkarlal, who was sent by the Police for examination. The injuries on the person of Omkarlal were simple in nature and from Omkarlal's mouth liquor smell was coming out but he was conscious. Ex. D/4 is the report, which is recorded in the medico register.
Doctor Agrawal however, stated that there were no injuries on the legs of Omkarlal and a person, who takes liquor generally fails down after taking liquor and sustains injuries. The learned trial Judge in para 10 of his judgment has held that the prosecution has explained the injuries sustained by the accused. It is submitted that there is no such explanation in the F.I.R. about the injuries sustained by the accused and even the prosecution had suppressed the medical report. It was the defence who had to call doctor and Dr. Agrawal (P.W.6) was further called on 25-7-1987 as a defence witness stated that accused was sent for medical examination at the behest of the Police, but even this fact has been suppressed. The original was not traceable and therefore duplicate report had to be requisitioned and then it was proved by Dr. Y. S. Agrawal (P.W.6). He has admitted in para 6 of his statement that he had examined Omkarlal, who was brought by constable Jaswant. He found four injuries on the person of accused Omkarlal.
13. The prosecution in this case did not explain the injuries sustained by accused Omkarlal and this type of act casts serious doubt on the entire case and it can safely be held that the prosecution has suppressed the genesis and origin of occurrence and not presented true version.
14. In view of what has been stated above, the appeal is allowed. The conviction and sentence are set aside. The accused appellants are on bail, they need not surrender. Their bail bond and surety bond are discharged.