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1983 DIGILAW 384 (MP)

RAMNATH v. STATE OF MADHYA PRADESH

1983-09-27

GULAB C.GUPTA

body1983
GULAB C. GUPTA, J. ( 1 ) THE Appellants having been convicted for offences under sections 147, 148, 323/149, 324/149, 325/149 and 452, I. P. C. as detailed in judgment dated 24-10-1979, passed by Shri R. K. Gothewale, II Additional Sessions Judge Hoshangabad, in Sessions Trial No. 92 of 1979 are challenging their conviction and sentence in this appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2 ) THE prosecution case is that on 24-2-1979 witnesses Bhagwati Bai, Sitabai and Amartibai had gone to reap wheat crop as labourers. Bhagwatibais husband Ramcharan was also out of the house. During the day when all the aforesaid persons were absent from the home, a goat belonging to Sitabai entered into the house of Gulabbai. Gulabbai hit the said goat with a danda causing severe injury on one of the legs of the goat. This is said to have been witnessed by Jagannath, the son of Sitabai. In the evening when Sitabai reached home and learnt about the hitting of the goat, she went to the house of Gulabbai and protested against hitting the goat. A quarrel thereafter took place between Gulabbai and Sitabai. It is alleged that the five appellants were standing at the house of Gulabbai. Appellant Ramesh had an axe with him while other had wooden sticks. It is said that they went to the house of Sitabai, dragged her husband Bhagirath out of the house and assaulted him. They also threatened to kill him. Thereafter, the appellants are reported to have gone to the house of Rambharose and Ramadhar and indulged in marpeet. After that they entered into the house of Bhagwatibai. Appellant Ramnath said to have caused an injury on the thigh of Ramcharan with his axe. It is further alleged that when Gundibai tried to protect Ramcharan, appellant Deva and Harbhajan gave her beatings. All other appellants also joined them. Ramcharan was thereafter dragged from inside the house to the angan (courtyard) assaulted and taken to the house of Ramnath where he became unconscious. Gaitribai the daughter of Ramcharan went with her father to the house of Ramnath but was driven away. Witness Laxminarayan and Ramdeo saw Ramcharan shouting in a semiconscious state. They took Ramcharan to the house of Bhagirath. The matter was reported to the police by Bhagwatibai and Sitabai. Ex. Gaitribai the daughter of Ramcharan went with her father to the house of Ramnath but was driven away. Witness Laxminarayan and Ramdeo saw Ramcharan shouting in a semiconscious state. They took Ramcharan to the house of Bhagirath. The matter was reported to the police by Bhagwatibai and Sitabai. Ex. P. 1 is the First Information Report lodged at 11-30 p. m. on that very day. After investigation the challan was filed. ( 3 ) DURING the trial the learned Addi. Sessions Judge found that Bhagwatibai (P. W. 1), Sitabai (P. W. 7), Amrawatibi (P. W. 8) Ramcharan (P. W. 9), Ganga Bisan (P. W. 10) and Gaitri Bai (P. W. 11) are the eye-witnesses. After examining in detail their evidence the learned Judge held that the appellants were responsible for causing injury to Ramcharan and Gundibai, entering into their house forciblly taking out Ramcharan and taking him to the house of Ramnath. It appears that right of self-defence was claimed by the appellants. There claim was that Ramcharan and his friends had assaulted them and a criminal case in that respect is pending before the Judicial Magistrate, Class I, Harda. Learned Judge, however, disbelieved the story of self defence on the ground that there was nothing on the basis of which such a plea could be sustained. The fact that Ramcharan was all alone was held sufficient to discard the right of self defence in favour of the five appellants. Inspite of it the learned Judge did not find any intention on the part of the appellants to either kill Gundibai nor they were found to have any knowledge of any such intention. It was, however, held sufficiently established that the appellant had decides to indulge in marpeet and, had common intention to cause injury. They were accordingly held guilty and convicted. Appellant Deva who is apparently of 13;years of age and Harbhajan who was said to be of 20 years of age were released after admonishing them while the other 3 appellants have been given jail sentences. ( 4 ) THE conviction of the appellants is challenged on the ground that the entire story has put by the prosecution is unreliable, as it is full of contradictions and material omissions. It is stated that in the First In formation Report (Ex. ( 4 ) THE conviction of the appellants is challenged on the ground that the entire story has put by the prosecution is unreliable, as it is full of contradictions and material omissions. It is stated that in the First In formation Report (Ex. P. 1) trespass in the house of Gulabbai and also in the house of Rambharose and Ramadhar has not been stated and hence it must be held that the earlier incident did not happen. It is also submitted that witnesses are related to each other and hence are not calling the truth. Independent witnesses were named by P. W. 1, Bhagwatibai in para 17 but were not examined. It is also submitted that in the statement of Bhagwatibai (P. W. 1) several omissions had been pointed out as would be clear from paras 10 and 11 of her statement. These omissions, according to the learned counsel, are in respect of material part of the story and hence would amount to contradictions. It is also submitted that the right of self-defence has been wrongfully denied to the appellants. 4. It is, no doubt, true that the witnesses are known to each other and some of them are even related to each other. Bhagwatibai (P. W. 1), Ramcharan (P. W. 9) and Gaitribai (P. W. 11) are related to each other. Bhagwatibai and Ramcharan are husband and wife and Gaitribai is their daughter. The other witnesses are not related to these persons directly. Sitabai (P. W. 7), however, is Ramcharans brothers wife Amrawatibai is also, related to them. However, witnesses Laxminarayan (P. W. 3), Rameshwar (P. W. 4) and Gangabisan (P. W. 10) are not related to the other witnesses. Relationship by itself cannot be a ground for discarding their testimony though it would certainly be a factor to be taken into consideration while appreciating their evidence. In the, instant case, not only the testimony of related witnesses is consistent and compared each other but the same is also supported by testimony of other independent witnesses. The testimony of Gaitribai, who is a child witness and whom the Court has found to be sufficiently mentally developed so as to make the statement in the court has narrated the entire incident and has supported the version of other witnesses. The testimony of Gaitribai, who is a child witness and whom the Court has found to be sufficiently mentally developed so as to make the statement in the court has narrated the entire incident and has supported the version of other witnesses. In this view of the matter, it is difficult to accept the argument of the learned counsel that the testimony of the witnesses which is otherwise consistent and reliable should be discarded because some of them are related to each other. ( 5 ) THE grievance that First Information Report (Ex. P-i) does not contain first two trespasses need not detain us long. First Information Report is not supposed to contain all details of the incident. It, however, must contain necessary ingredients of offence as it is the basis on which police starts investigation. It is sufficient if It indicates that an offence had been committed (See Bhopat Singh v. State of Maharashtrai. The object of the First Information Report is to set the criminal law in motion and thereafter enable the investigating authorities to obtain information about the alleged criminal activities so as to be able to take suitable steps for tracing and bringing to book the guilty party. This, however, does not mean that it should be vague or indefinite. Considered in the light of the aforesaid non-mention of the earlier two trespasses by the appellants would not introduce an infirmity inasmuch as the main incident related to assault of Ramcharan about which all necessary details have been given. P. W. i, Bhagwatibai, in her statement in paras io and ii, has admitted several omissions. They are said to be very important and sufficient to discard the entire testimony of the complainant, Bhagwatibai. A perusal of para 10 would show that in her police diary statement she has not stated the statement given by her in para I of her Courts statement. Para I relates to the incident of Gulab Bais hitting the goat of Sitabai. This omission does not relate to the main incident and cannot be considered sufficient to discredit the witness. The incident stated by her in para 2 of her court's statement also does not find place in her case diary statement. Para 2 relates to the distance of the house of Bhagirath from the house of Munim and assault of Rambharose. This omission does not relate to the main incident and cannot be considered sufficient to discredit the witness. The incident stated by her in para 2 of her court's statement also does not find place in her case diary statement. Para 2 relates to the distance of the house of Bhagirath from the house of Munim and assault of Rambharose. The incident with Rambharose is an earlier incident and does not discredit this witness on the point of assault and injury to Ramcharan. Other omissions are also not in relation to the main incident relating to Ramcharan but relates to the earlier part. Overmuch importances cannot be attached to the discrepancies or omissions which do not relate to the material part of the prosecution story. What has to be considered is the probabilities of the incident having happened in the manner alleged by the prosecution. The conclusion has to be reached after taking an overall view of the evidence. The omissions have also to be taken into consideration but omissions by themselves would not be sufficient to discard the testimony which is otherwise believable and duly supported byother witnesses. In the instant case, not only omissions do not relate to the main part of the story but the main story has been fully and sufficiently corroborated by several eye witnesses. The medical evidence also supports the prosecution version. I am, therefore, unable to agree with the learned counsel. ( 6 ) IN view of the discussion aforesaid, it must be held that the conclusion of the learned Judge that the appellants are responsible for offences which have been proved beyond reasonable doubt is the correct conclusion and is confirmed. ( 7 ) THE claim of right of self - defence remains to be examined. Appellants are, no doubt, entitled to claim such a right. Unfortunately, no such claim has been made by them in their statement under Section 313, Code of Criminal Procedure and no witnesses have been examined. Inspite of it this Court is bound to consider the plea if, from the material available on record, such a plea can be sustained. Except for the injuries on the person of appellants Ramnath and Hargovind, which injuries have been found proved by the evidence of Dr. Dinesh Chand Mishra (P. W. 5) and first information lodged by them, Ex. D-A there is nothing on record to support such a plea. Except for the injuries on the person of appellants Ramnath and Hargovind, which injuries have been found proved by the evidence of Dr. Dinesh Chand Mishra (P. W. 5) and first information lodged by them, Ex. D-A there is nothing on record to support such a plea. In the First Information Report Ex. D-9-A allegations have been made against the complainant and other witnesses. But mere making allegation is not sufficient to sustain a right of self defence. It has to be established by some reliable-evidence that the injuries found on the person of some of the appellants were caused by the complainant and others during the course of the same transaction and in such a manner as would justify the appellant assaulting and inflicting injuries on Ramcharan and others. In the absence of sufficient material on record the plea has rightly been rejected. ( 8 ) IT is thereafter submitted that the appellants were in jail for more than six months and that it should be sufficient to satisfy the conscience of law. The request is that they should be set free by reducing their sentences to the sentences already undergone. Two appellants who are below 21 years of age have already be on released after admonishing. The manner in which the appellants indulged in criminal activities does not justify any leniency. Inspite of it sentence for offence under Section 325/149, I. P. C. for one year rigorous imprisonment is considered sufficient. All other sentences need no interference. The sentence for offence under Section 325/149, I. P. C. is, therefore, reduced to one year rigorous imprisonment. ( 9 ) EXCEPT with the modification of sentence for offence under Section 325/149, I. P. C. which is reduced to one year, the appeal otherwise fails and is dismissed. Appeal dismissed accordingly. .