Madhya Pradesh High Court
Udiya @ Dhobi & Ors. vs State Of M.P. on 7 March, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 10th OF MARCH, 2022
Cr.A No.2395/1998
1. Udiya Dhobi alias Uddi Dhobi
aged about 27 years, Agriculturist,
S/o Shri Chhota Dhobi,
2. Raju, S/o Chhota Dhobi, aged about
22 years, Agriculturist,
Both R/o Village Sorka, P.S. Prithvipur,
Distt. Tikamgarh (MP)
...... APPELLANTS
(BY SHRI PRIYANK AGRAWAL, ADVOCATE AS
AMICUS CURIAE)
Vs.
The State of Madhya Pradesh,
through P.s. Prithvipur,
Distt. Takamgarh.
..........RESPONDENT
(BY SHRI AJAY TAMRAKAR, PANEL LAWYER)
This appeal has come up for final hearing on this day, the
Court passed the following judgment :
JUDGMENT
(10.03.2022) This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the appellants being Signature SAN Not Verified Digitally signed by TULSA SINGH Date: 2022.03.14 10:38:43 IST 2 aggrieved by judgment dated 24/08/1998 passed by learned 1st Additional Sessions Judge, Tikamgarh in Sessions Trial No.112/1996.
2. Learned counsel for the appellants submits that appellants have been convicted under Section 307 of IPC and have been sentenced to undergo Rigorous Imprisonment for five years along with fine of Rs.5,000/-each, in default of payment of fine S.I. for a term of three months each separately.
3. It is also submitted that appellant No.1-Udiya Dhobi alias Uddi Dhobi is also convicted under Section 326 read with Section 34 of IPC and is sentenced to undergo Rigorous Imprisonment for three years along with fine of Rs.3,000/-, in default of payment of fine, S.I. for a term of three months. Appellant No.2-Raju is also punished under Section 326 of IPC and has been sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.3,000/-, in default of payment of fine, S.I. for a term of three months.
4. Learned counsel for the appellant submits that incident took place on 24/04/1996, FIR (Ex.P/2) was registered by Smt. Shyama Bai as Smt. Savitri Bai (PW-3) was not in a 3 position to speak. It is submitted that in the FIR (Ex.P/2), it is mentioned that on the date of incident, Savitri Bai and Shyama Bai were on their field when dispute occurred on the issue of operating electric motor so to irrigate field. Savitri Bai wanted to use motor pump so to irrigate her crop of pulses, whereas appellants wanted to irrigate their fields. It is submitted that appellant No.1 asked Savitri Bai (PW-3) not to start motor but when she proceeded to start motor, then he exhorted and Raju had hit Sivitri Bai with an axe which hit her in left knee. Thereafter he had made second attempt which hit her in her chest. Thereafter allegation is that appellant No.1-Udiya Dhobi alias Uddi Dhobi hit her with 2- 3 blows of axe on her right leg. When complainant-Shyama Bai (PW-5) shouted for help, then appellant No.1-Udiya Dhobi exhorted that she should also be killed, then appellant No.2-Raju had hit with an axe on her right palm close to the thumb.
5. This incident was seen by Natthu Gadariya, Jugula Gadariya, Kamtuva, Pharsu, Pappu. It was also witnessed by child witness Ku. Lalli who has been examined by prosecution as P.W.-2. It is submitted that Dr. M.S. Rawat 4 (P.W.-7) had conducted MLC.
6. It is submitted that all the independent witnesses i.e. Kamta (PW-8), Parsu (PW-9), Natthu (PW-11) and Pappu alias Panjan Lal (PW-12) have turned hostile. It is fairly submitted that case of prosecution is only based on ocular evidence of injured witness Smt. Savitri (PW-3) and Smt. Shyama Bai (PW-5). Medical evidence is of Dr. M.S. Rawat (PW-7) which corroboratory in nature.
7. Learned counsel for the appellants submits that following injuries were sustained by the injured :
Lkfo=h ckbZ ^^1 Ckk;sa ?kqVus ds lkeus okys fgLls ij ,d dVk gqvk ?kko lkFk esa gM~Mh;kW VwVh gqbZ vkdj 5x2-1/2x1-1/2 bapA 2 Nkrh ds nkfgus rjQ fupys fgLls esa ,d dVk gqvk ?kko lkFk esa [kwu cgrk gqvk vkdkj Ms< bUp x1/2 bUp x1/4 bUpA 3 nkfguh Vkax ds chp okys fgLls ij ,d dVk gqvk ?kko lkFk esa [kwu fudyrk gqvk vkdj Ms< bUp x1/2 bUp x1/4 bUpA 4 nkfguh Vkax ds fupys fgLls esa vanj dh rjQ ,d dVk gqvk ?kko vkdj Ms< bUp x1/2 bUp x1/3 bUpA 5 nkfguh Vkax ds ihNs okys fgLls esa fupyh rjQ ,d dVk gqvk ?kko vkdj Ms< bap x1/2 bUp x1/3 bUpA 5 ';keckbZ mlds nkfgus vaxBw s ds vk/kkj ij ,d dVk gqvk ?kko Fkk ftlds lkFk esa gM~Mh dVh gqbZ Fkh lkFk esa dkQh [kwu fudy jgk Fkk mDr pksV xEHkhj Fkh tks fdlh dMs /kkjnkj gfFk;kj }kjk igqp a kbZ xbZ Fkh rFkk 3 ls 5 ?kUVs ds vUnj dh Fkh ejht dks ,Dl js rFkk vfxze bykt ds fy, esMhdy dkWyst vLirky >kalh fjQj fd;k x;k Fkk mlds ?kko ij [kwu ls luk gqvk tks diM+k ca/kk Fkk mldks tIr djds o lhy cUn dj mlh vkj{kd lkSfud dks lkSai fn;k Fkk mudh fjiksVZ iznkZ ih09 gS ftlij , ls , muds gLrk{kj gS rFkk fou; i= iznkZ ih010 gSA**
8. It is submitted that complainant and accused are related to each other. Appellant No.2-Raju is son of younger brother of husband of Smt. Shyama Bai (PW-5). It is an old dispute as to use of water from the common well. Learned counsel for the appellant has drawn attention of this Court to the evidence of Prabhu Dayal (DW-1) and Magan Lal (DW-2) to point out that there is a common Well and Rahat is of the accused persons whereas motor is of the complainant party. It is submitted that at a given point of time either Rahat can operate or motor can operate and both cannot operate simultaneously.
6
9. It is submitted by learned counsel for the appellant that there is no common intention and premeditation of mind. There are omnibus allegations against appellant No.1 and main allegation is on appellant No.2-Raju. It is submitted that as there is no common intention, appellant No.1-Udiya Dhobi alias Uddi Dhobi, could not have been convicted under Section 307 of IPC as his act will not be so fatal even it is accepted as it is, as has been made by injured prosecution witnesses, because Shyama Bai (PW-5) has categorically mentioned in FIR (Ex.P/2) that appellant No.1-Udiya Dhobi alias Uddi Dhobi has caused injuries on the right leg of injured -Savitri Bai (PW-3). At the best, taking into consideration the nature of injuries caused on the right leg, offence will be under Section 325 of IPC and not under Section 307 of IPC. It is further submitted that Ku. Lalli (PW-2), child witness, is a tutored witness. She has verbatim narrated, what is mentioned in the FIR, her testimony is not reliable.
10. It is further submitted that appellant No.1-Udiya Dhobi alias Uddi Dhobi was in custody for a period of over six months during trial as is mentioned in para-48 of the 7 impugned judgment. Thereafter he was granted bail vide order dated 11/11/1998. Thus, appellant No.1-Uddi Dhobi alias Uddi Dhobi has remained in jail for a period of about nine months in actual custody and with remission about one year. It is also submitted that appellant No.2-Raju was in custody from 18/4/1996 to 11/11/1998 for a period of about two years seven months which is actual period of custody and with remission, that period will come out slightly over three years. It is submitted that taking into consideration the age of appellants who were respectively 27 and 22 years on the date of incident and also the fact that this appeal has come up for hearing after almost 24 years of its filing, lenient view should be taken. In support of his contention, learned counsel for the appellants has placed reliance on the judgment of Hon'ble Supreme Court in the case of Mohinder Singh and another Vs. State of Punjab, 1987 (Supp) SCC 65 wherein under the similar facts and circumstances, conviction of appellants under Section 307 read with Section 34 of IPC was upheld but sentence was reduced to the period already undergone.
11. On the other hand, Shri Ajay Tamrakar, learned Panel 8 Lawyer for the respondent/State, in his turn, submits that act of the appellants cannot be conodoned in the name of delay in hearing of this appeal or any other grounds. Reading evidence of Dr. M.S. Rawat (PW-7), it is pointed out that even a suggestion was given to the doctor that injuries sustained by victim Smt. Savitri Bai (PW-3) and Smt. Shyama Bai (PW-5) could have been contacted after falling on Rahat but that has been specifically denied by Dr. M.S. Rawat (PW-7). It is submitted that taking into consideration, the nature of injuries, gravity of injuries which have been terms to be collectively grievous for Smt. Savitri Bai (PW-3) by treating doctor M.S. Rawat (PW-7), conviction under Section 307 of IPC does not call for any interference.
12. After hearing learned counsel for the parties and goring through the evidence of Smt. Savitri Bai (PW-3) and Smt. Shyama Bai (PW-5), it are evident that there is slight contradiction. In the FIR (Ex.P/2), injury to the chest is attributed by the eye witness Smt. Shyama Bai (PW-5) to appellant No.2-Raju whereas in her Court statement she has attributed that injury to appellant No.1. This contradiction has not been explained by any of the witnesses. Admittedly 9 there is improvisation made by Syama Bai (PW-5) in her original version, therefore, when tested on the touch stone of the evidence which is available on record, then, at best, role of appellant No.1-Udiya Dhobi alias Uddi Dhobi is of causing injuries to Smt. Savitri Bai (PW-3) on her right leg.
13. A perusal of the injuries sustained by Smt. Savitri (PW-
3) on her right leg, reveals that three injuries were sustained by her on her right leg namely a incised wound in the calf muscles measuring 1x5'x1/2x0.25' deep. Another injury on inner side of right calf muscle measuring 1 ½ x ½ x 1.3' deep. Third injury is also a incised wound measuring 1.5 x ½ x 1/3'. These injuries, admittedly, cannot be termed to be fatal so to constitute ingredients of Section 300 of IPC to attract offence under Section 307 of IPC. At the best, these injuries can be termed to be grievous hurt which shall be covered under the provisions of Section 325 of IPC. As far as act of appellant No.2-Raju is concerned, it is evident that he had caused injuries on the right hand side of the chest, so also injury on the left knee, resulting in multiple fractures on knee. Dr. M.S. Rawat (PW-7) has admitted in cross- examination that none of the injuries sustained by Smt. 10 Savitri Bai (PW-3) were individually fatal but were collectively grievous in nature. He has admitted that injuries caused to Smt. Shyama Bai (PW-5) could have been self- sustained injuries.
14. Taking all these facts into consideration and the age of appellants, conviction of appellant No.1-Udiya Dhobi alias Uddi Dhobi cannot be sustained under Section 307 of IPC or 326 of IPC, therefore, conviction of appellant No.1-Udiya Dhobi alias Uddi Dhobi under Sections 307, 326 of IPC is hereby set aside. However, he is convicted under Section 325 of IPC and sentenced to suffer RI for six months along with fine of Rs.5,000/-. The amount of fine will be payable by him to injured -Savitri Bai (PW-3) under the provisions of Section 357A Cr.P.C.
15. As far as appellant No.2-Raju is concerned, his conviction under Section 307 IPC, as he had caused injuries on the vital part of the body i.e. chest, is upheld so also under Section 326 of IPC, however, his sentence is reduced to the period he has already undergone. Appellant No.2 shall pay a sum of Rs.25,000/- as compensation to injured Savitri Bai (PW-3) under Section 357A Cr.P.C. & Rs.500/- as 11 compensation to injured Shyamabai (PW-5) under Section 357-A of Cr.P.C.
16. Let compensation be paid within three months from the date of communication of the judgment, failing which they will under go their respective sentence. Since the appellants are on bail, their bail bonds are hereby discharged.
17. In the above terms, the appeal is disposed of.
(VIVEK AGARWAL) JUDGE ts.