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2003 DIGILAW 1002 (MP)

Ratanlal v. State of M. P.

2003-08-22

S.K.SETH

body2003
JUDGMENT This appeal is directed against the judgment dated 23.12.1993 passed by the Sessions Judge, Rajgarh (Biaora) in S.T. No. 6/89 whereby, appellant alone was found guilty of having committed an offence punishable under S. 326 IPC. Accordingly he was convicted and sentenced to undergo two years RI. In addition fine of Rs. 300/- has also been imposed. In default of payment of fine appellant is directed to suffer one month's rigorous imprisonment. Necessary facts relevant for disposal of this appeal are as under. On 22.7.1987 appellant along with other co-accused persons assaulted Mangilal. It is alleged that appellants was armed with a farsi and other co-accused with Ballam and lathi. A head injury was specifically attributed to Ratanlal. FIR of incident (Ex. P. 8-A) was lodged next day by Biharilal (PW 6) at P.S. Biaora. Initially, police registered case for offence punishable under S. 324 r/w 34 of IPC, but after medical examination of Mangilal, it was converted into S. 307/34 IPC. Dr. J.K. Punjabi (PW 1) examined Mangilal. Dr. Punjabi found one incised wound on the left mastoid region and advised X-ray to ascertain nature and extent of injury. His report is Ex. P-2. X-ray plate is Ex. P-3 and X-ray report given by Dr. Punjabi is Ex. P-4. As per X-ray report Dr. Punjabi found fracture on mastoid region. A farsi was recovered at the instance of Ratanlal vide Ex. P-5. Thus, after completing investigation police filed challan against appellant and co-accused for their prosecution for having committed an offence punishable under S. 307/34 IPC. At trial accused persons abjured their guilt and submitted that they have been falsely implicated. Learned Sessions Judge on the basis of prosecution evidence found that appellant alone was guilty of having committed an offence punishable under S. 326 IPC. Accordingly, he was convicted and sentenced as mentioned above. As regards other co-accused persons, trial Court found that they are not guilty of committing any offence, therefore, they were acquitted. Prosecution has not challenged the aforesaid finding recorded by the trial Court, consequently, acquittal of appellant of charge under S. 307 and other co-accused persons has become final. Learned counsel for appellant submitted that prosecution has not been able to connect appellant with the alleged offence. It is also submitted that from evidence of defence witness (DW 1) Amaratlal, it is clear that Biharlal, Mangilal and his brother were aggressor. Learned counsel for appellant submitted that prosecution has not been able to connect appellant with the alleged offence. It is also submitted that from evidence of defence witness (DW 1) Amaratlal, it is clear that Biharlal, Mangilal and his brother were aggressor. They wanted to assault one of the co-accused Sardarsingh. According to defence witness a free fight ensued between aggressor party and Sardarsingh and in the course of fight Biharilal who was armed with farsi, accidentally caused injury to Mangilal instead of Sardarsingh. Thus, according to learned counsel for appellant, this appeal deserves to be allowed. In alternative learned counsel for appellant submitted that if at all any offence is made out, it would fall under S. 335 IPC. Per contra, Shri Salim, learned Panel Lawyer while supporting judgment submitted that no interference is warranted with conviction which is based on proper analysis of evidence adduced by prosecution at the time of trial. Shri Salim submitted that from evidence of eyewitnesses, it is established beyond any doubt that appellant caused a head injury by means of a farsi. Therefore, act of appellant is punishable under S. 326 IPC. I have heard learned counsel for parties at length and gone through the record. In order to prove that appellant is the author of injury, besides Mangilal (PW 8), prosecution had examined Roadji (PW. 2), Kishanlal (PW 4), Biharlal (PW 6). Rodji PW 2, Kisanlal PW 4, and Biharilal PW 6 are the eyewitnesses. From their evidence, it is clear that they saw whole incident, as there was sufficient illumination from electric bulbs. From evidence of these witnesses, it is clear that appellant assaulted Mangilal and inflicted head injury by means of a farsi. Biharilal lodged FIR Ex. P. 8-A. Prosecution witnesses including Mangilal withstood their cross-examination, they remained firm, and constant in their deposition with regard to fact that appellant caused injury to Mangilal. From the evidence of Dr. J.K. Punjabi it is clear that Mangilal (PW 8) had sustained an incised wound on left mastoid region. It is also clear that a corresponding fracture was also present as has been proved by X-ray report Ex. P-4. If we examine evidence of Amratlal (DW 1) as against evidence of these eyewitnesses, it is clear that Amratlal is not resident of same village. It is also clear that a corresponding fracture was also present as has been proved by X-ray report Ex. P-4. If we examine evidence of Amratlal (DW 1) as against evidence of these eyewitnesses, it is clear that Amratlal is not resident of same village. According to DW 1 appellant was not present on the spot and the incident took' place in darkness as there was no light. The evidence of DW 1 is so shaky that it is difficult to believe that he was telling truth. Thus, I find that learned Sessions Judge has rightly com(')to conclusion on proper analysis of evidence that appellant, alone is the author of injury sustained by Mangilal PW 8. In view of the aforesaid finding, I find that the conviction of appellant under S. 326 IPC is proper; therefore, the same is confirmed and maintained. At this stage learned counsel for appellant submitted that incident took place more than 16 years ago on 22nd of July 1987 and appellant ever since then faced protracted trial. It is also contended that not only during trial, but also, during pendency of this appeal, at no point of time appellant misused liberty, who is now leading a peaceful life with his family as a useful member of society. Directing him to serve the custodial sentence at this distant point of time would cause serious set back not only to the appellant but also to his family members. However, while considering the manner in which assault was made, appellant being guilty of offence punishable under section 326 should be properly dealt with. Therefore, taking every thing into account, I feel that interests of justice would be met by sentencing appellant to undergo imprisonment for fifteen days. In addition, appellant shall also pay a fine of Rs. 5,000/-. The fine amount shall be deposited in the trial Court within one month from the date of this judgment. Out of the fine amount, Rs. 4,500/- shall be paid to victim, Mangilal. In default of payment of fine, appellant shall suffer rigorous imprisonment for two months. In view of the foregoing discussion, the appeal is partly allowed. The conviction and sentence of appellant is modified to the extent indicated above. Appellant is on bail. He shall immediately surrender his bail bonds to serve out the sentence as mentioned above. In default of payment of fine, appellant shall suffer rigorous imprisonment for two months. In view of the foregoing discussion, the appeal is partly allowed. The conviction and sentence of appellant is modified to the extent indicated above. Appellant is on bail. He shall immediately surrender his bail bonds to serve out the sentence as mentioned above. In the event of failure of appellant to surrender, as directed above, trial Court shall take all necessary steps in accordance with law to secure the presence of the appellant. Ordered accordingly.