Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 1102 (MP)

Kaushal v. State of M. P.

2002-12-17

P.C.AGARWAL

body2002
JUDGMENT 1. Trial Court has convicted the appellants and sentenced them as follows: Kaushal (A-1) under S. 326/34 and 324 of the Indian Penal Code ('Code' for short) and sentenced to undergo RI for 3 years and to pay a fine of Rs. 500/-, in default to further undergo imprisonment for three months and RI for 1 year. Banmali (A-2) under Ss. 326 and 324/34 of the Code sentenced to undergo RI for 3 years. Fine of Rs. 500/- in default to further undergo RI for three months and RI for one year. Dwarika (A-3) under Ss. 326/34 and 324/34 and sentenced to undergo RI for three years and fine of Rs. 500/- in default to undergo RI for three months, and RI for 1 year. All substantive sentences were to run concurrently with a direction for setting off period of detention. 2. As per prosecution on 2.10.1997 Mahendra Kumar Sharm (PW 2) and Sunil Kumar (PW 4) had gone to plough their field. Field of appellants is contiguous. Boundary dispute was there between the parties. When Mahendra Kumar Sharma (PW 2) and Sunil Kumar (PW 4) were returning appellants stopped their tractor and pulled Mahendra Kumar Sharma (PW 2) down. Kaushal (A-1) gave a Farsa blow on his head. Dwarika (A-3) gave axe blows on both hands and back while Banmali (A-2) gave axe below on left elbow of Sunil Kumar (PW 4) and threw him on ground causing injuries on his back and buttock. Bhagwati Prasad (DW 1) their father rushed to the spot and took both his sons to PS Pandokhar and lodged FIR (Ex. P-1). Dr. RS. Dhengula (PW 10) examined Mahendra Kumar Sharma (PW 2) the same day and found following• injuries vide Ex. P-8 : (1) Incised wound 1-1/2" x 1/4" x 1/4" on the head caused by sharp weapon. For nature of injury case is referred to Gwalior JAH for Neurology checkup and X-ray. Injury is caused within 24 hrs. (2) Swelling on the forefinger and middle finger of right hand caused by hard and blunt object. Simple in nature. Caused within 24 hrs. Patient complains pain in back. He noted following injuries on person of Sunil Kumar (PW 4) vide Ex. P-9 : (1) Incised wound 2" x 1/2" x 112" on the left elbow joint caused by sharp weapon. For the nature of injury referred to X-ray Gwalior. Simple in nature. Caused within 24 hrs. Patient complains pain in back. He noted following injuries on person of Sunil Kumar (PW 4) vide Ex. P-9 : (1) Incised wound 2" x 1/2" x 112" on the left elbow joint caused by sharp weapon. For the nature of injury referred to X-ray Gwalior. Injury is caused within 24 hrs. (2) Swelling on the high hip joint caused by hard and blunt object. Simple in nature. Caused within 24 hrs. (3) Patient complains of pain in Back. No injury on examination externally. Dr. R.L. Gangesh (PW 14), radiologist found Supra Condail fracture of the humerus above left elbow vide Ex. P-12. X-ray plate being Ex. P-13. 3. Rakesh Gupta (PW 13), IO proceeded to spot and drew spot may (Ex. P-2). He seized blood stained and simple soil vide Ex. P-3. Harikishan (PW 5), Patwari also prepared spot map (Ex. P-45) on 29.10.1997. Counterfoil of FIR was received in the Court of JMFC Bhander on 3.10.1997. 4. Appellants pleaded not guilty. They claimed false implication due to partibandi. Ramadhar Upadhyaya (DW 1) s/o Raghuvir Prasad (PW 6) has been examined to prove that Raghuvir Prasad (PW 6) was admitted in nursing home at Jhansi on 2.10.1997 and he was attending him. 5. The learned trial Court believed the prosecution and convicted and sentenced the appellants as aforesaid. 6. Advocate for appellants objected that Bhagwati Prasad (PW 1) was not the eye witness even then he has lodged the FIR. The same is result of deliberations and concoctions. Parties were on inmical terms due to boundary dispute. No Lathi injury is seen on person of either of the injured though use of Lathi is attributed to Dwarika Prasad (A-3). No common intention has been proved. Injuries could be caused by fall also. Sentence has been too harsh. Appellants have already been in custody for some time and thus should be let off with a fine alone. 7. Injured witnesses Mahendra Kumar Sharma (PW 2) and Sunil Kumar (PW 4) are unanimous that Mahendra Kumar Sharma (PW 2) was driving back the tractor while Sunil Kumar (PW 4) was sitting on the mudguard. All three appellants had come. Kaushal (A-1) was armed with Farsa. Banmali (A-2) had axe while Dwarika Prasad (A-3) had a Lathi. 7. Injured witnesses Mahendra Kumar Sharma (PW 2) and Sunil Kumar (PW 4) are unanimous that Mahendra Kumar Sharma (PW 2) was driving back the tractor while Sunil Kumar (PW 4) was sitting on the mudguard. All three appellants had come. Kaushal (A-1) was armed with Farsa. Banmali (A-2) had axe while Dwarika Prasad (A-3) had a Lathi. They had stopped the tractor and Kaushal (A-1) had pulled Mahendra Kumar Sharma (PW 2) from the tractor and gave a blow of Farsa on his head. Dwarika Prasad (A-3) had given two or three blows of Lathi to him. When Sunil Kumar (PW 4) descended to save his brother Banmali (A-2) gave a blow of axe on his left hand and threw him on ground. Dwarika Prasad (A-3) gave two or three Lathi blows to him. Ramlakhan Dixit (PW 3) has fully supported them. Bhagwati Prasad (PW 1), the father of Mahendra Kumar Sharma (PW 2) and Sunil Kumar (PW 4) had reached hearing about the brawl. He has also supported this story. FIR is lodged within an hour of the occurrence at PS Pandokhar situate at a distance of one furlong only by Bhagwati Prasad (PW 1). FIR is prompt and spontaneous. There had been no occasion for either deliberations or consultations. Merely because Bhagwati Prasad (PW 1), the father has lodged the FIR and Mahendra Kumar Sharma (PW 2) or Sunil Kumar (PW 4) have not lodged the same, the probative value of such FIR is not reduced. All these eye-witnesses have been cross-examined at length. Nothing material has come in their cross-examination to discredit any of these witnesses. 8. Dr. R.S. Dhengula (PW 10) has medically examined both Mahendra Kumar Sharma (PW 2) and Sunil Kumar (PW 4), the same day and has noted the injuries detailed above on their persons. Dr. R.L. Gangesh (PW 14), radiologist had taken X-ray photograph and has found fracture of humerus bone which is above elbow joint. Both these doctors are independent witnesses. The learned trial Court has not ended in believing them. The prosecution case is amply corroborated by these medical evidence. 9. Certainly Raghuveer Prasad (PW 6) has not supported the case of prosecution and has been declared hostile by the learned public prosecutor on being confronted with his previous statement recorded by IO which had been denied by him. The learned trial Court has not ended in believing them. The prosecution case is amply corroborated by these medical evidence. 9. Certainly Raghuveer Prasad (PW 6) has not supported the case of prosecution and has been declared hostile by the learned public prosecutor on being confronted with his previous statement recorded by IO which had been denied by him. Rakesh Gupta (PW 13), IO, has proved that his statement was correctly recorded by him. Appellants have examined Ramadhar Upadhyay (DW 1) to prove that Raghuveer (PW 6) was admitted on 2.10.1997 i.e. the date of occurrence in nursing home at Jhansi. It is noteworthy that such was not the claim by Raghuveer Prasad (PW 6) himself. This is an afterthought and clearly shows that Raghuveer Prasad (PW 6) is wholly unreliable witness and his evidence is rightly discarded by the Court below. 10. Both Jagmohan Sharma (PW 7) and Harcharan (PW 9) admit that fields of Bhagwati Prasad (PW 1) and the appellants are contiguous with common mendh in between. Jagmohan Sharma (PW 2) admits that there was a boundary dispute between the parties. Mahendra Kumar Sharma (PW 2), Sunil Kuma (PW 4), Bhagwati Prasad (PW 1) and Ramlakhan Dixit (PW 3) are unanimous about existence of such a boundary dispute which according to them has been a cause or motive in the incident. 11. Certainly weapons of offence have not been seized from the appellants but that in itself is not sufficient to discard the prosecution case. It is true that Mahendra Kumar Sharma (PW 2) or Sunil Kumar (PW 4) had no injuries which could be caused by a Lathi and thus participation of Dwarika Prasad (A-3) is not negatived. Certainly all three appellants had conjointly assaulted frist Mahendra Kumar Sharma (PW 2) and then Sunil Kumar (PW 4). Kaushal (A-1) and Banmali (A-2) are sons of Dwarika Prasad (A-3). Thus they are near relatives. They had come together and had left the spot together. Thus common intention was proved. 12. Ratio of Mathura Yadav alias Mathura Mahto v. State of Bihar [2002 Supreme Cri. 36] is not applicable to the present case. Prosecution evidence is reliable. Ramlakhan Dixit (PW 2) is an independent witness. Raghuveer Prasad (PW 6) is examined but has turned hostile. The appellants have pleaded not guilty and claimed that they have been falsely implicated due to enmity of boundary dispute. 36] is not applicable to the present case. Prosecution evidence is reliable. Ramlakhan Dixit (PW 2) is an independent witness. Raghuveer Prasad (PW 6) is examined but has turned hostile. The appellants have pleaded not guilty and claimed that they have been falsely implicated due to enmity of boundary dispute. Such dispute is a double edged weapon. What may prompt the complainant to falsely implicate can prompt the accused also to cause harm to the complainant. The learned trial Court has not erred in disbelieving the defence. Thus, convictions of Banmali (A-2) under S. 326 of the Code and other two under Ss. 326/34 and convictions of Kaushal (A-1) under S. 324 and others under Ss. 324/34 of the Code have not been improper and are base on solid and coherent evidence. Thus, convictions are affirmed. 13. Now as to sentence appellants have relied upon Kanhaiyalal v. State of M.P. [ 1985 MPWN 336 ]. Offence was committed on 2.10.1997. Since then five years have elapsed. Kaushal (A-1) has been in detention for 34 days. Banmali (A-2) has been in detention for 28 days while Dwarika Prasad (A-3) has been in detention for 21 days. 14. In all the facts and circumstances of the case, jail sentence awarded to the appellants is reduced to that already undergone by them. They shall pay fine of Rs. 10,000/- (Rs. ten thousand only) each for offences under Ss. 326 or 326/34 in default they shall undergo RI for six months. They shall further pay a fine or Rs. 2,000/- (Rs. two thousand only) for offences under Ss. 324 or 324/34 of the Code and in case of default shall undergo RI for three months. Out of fine amount Rs. 15,000/- (Rs. fifteen thousand only) shall be paid to Sunil Kumar (A-4) and Rs. 10,000/- (Rs. ten thousand only) would be paid to Mahendra Kumar Sharma (PW 2) as compensation under S. 357 of the Code of Criminal Procedure. 15. These sentences are substituted for the sentence awarded by the trial Court. 16. Thus, appeal is partly allowed. Conviction maintained. Sentence modified.