Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 810 (MP)

Gudda v. State of M. P.

2007-07-30

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. Both these appeals arise out of a common judgment and hence shall be disposed of by the same judgment. Appellants have been convicted and sentenced by the Ist Additional Sessions Judge Guna (M.P.) in Sessions Trial No. 272/98, dated 11th February, 2000 by which appellant No.1 Gudda has been convicted under section 307 of IPC and sentenced to undergo rigorous imprisonment for eight years with a fine of Rs. 5,000/-. Appellant No.2 Raghunath has been convicted under section 307 read with section 34 of IPC and sentenced to undergo rigorous imprisonment for eight years with a fine of Rs. 5,000/- with default stipulation. Appellant No.2 Raghunath has further been convicted under section 323 of IPC and sentenced to undergo rigorous imprisonment for six months Criminal Appeal No. 406/2000 has also filed by the appellant No.1, Gudda from Jail. 2. During the course of arguments, it is submitted by the counsel that Criminal Appeal No. 262/2000 was filed on behalf of both the appellants but subsequently, appellant No.1 Gudda also filed a separate appeal from Jail which is Criminal Appeal No. 40612000. The subsequent jail appeal No. 406/2000 is, therefore, filed because in Criminal Appeal No. 262/2000 both the appellants have filed appeal against the judgment of conviction and sentence. 3. In short, the case of the prosecution is that on 28.7.1998, at about 9 in the night, complainant Voreram (PW 4) lodged the report at the Police Station Aron which is Ex. P-3 to the effect that the injured Pratap Singh (PW 2) is younger brother of him and both were residing at village Barbatpura but their houses are adjoining to each other. He saw that both the appellants are going towards house of Pratap Singh (PW 2). Appellant Gudda called Pratap Singh (PW 2) from his house. When Pratap Singh (PW 2) came out from his house, appellant Gudda asked him why he had beaten Hajoo. The both the appellants scuffled with him. Appellant Raghunath caught collar of his shirt while appellant Gudda caught hair of Pratap Singh (PW 2). He called his brother Voreram (PW 4). When his brother Voreram (PW 4) came to the sport for rescue, appellant Raghunath inflicted injury to his hand by a lathi. At the same moment, appellant Gudda took a knife from his pocket and inflicted to the stomach of Pratap Singh (PW 2). Gudda ran away from the spot. He called his brother Voreram (PW 4). When his brother Voreram (PW 4) came to the sport for rescue, appellant Raghunath inflicted injury to his hand by a lathi. At the same moment, appellant Gudda took a knife from his pocket and inflicted to the stomach of Pratap Singh (PW 2). Gudda ran away from the spot. Appellant Raghunath was caught hold at the spot. On hearing the noise, Raghuveer (PW 5), wife of Pratap Singh Ramkalibai (PW 3) came there. Pratap Singh (PW 2) was laying on the ground. Thereafter he was taken to the police station and lodged the report by Voreram (PW 4) and the enmity was due to Marpeet with Hajoobai because the appellants were friendly living with Hajoobai. The first information report is Ex. P-3. Then the injured were sent to the medical for examination. The MLC reports of Pratap Singh (PW 2) and Voreram (PW 4) are Ex. P-l and Ex. P-2. Pratap Singh (PW 2) was referred to Guna Hospital. He remained in the hospital for about 26 days. After investigation charge-sheet was filed and appellants were convicted accordingly as stated in above para one. 4. On behalf of appellant No.1 Gudda, it is submitted by the counsel that as per report of Superintendent Jail, Gwalior, dated 8.3.2007, appellant Gudda released from the jail after cmpletion of his sentence on 30.6.2004 and he was not detained in custody at Bhopal jail. Therefore, the appeal against the appellant No.1 Gudda abets and hereby dismissed accordingly. 5. Learned counsel on behalf of appellant No.2. Raghunath submitted that the charge with the aid of section 34 of IPC is not made out against the appellant Raghunath. Secondly regarding section 323 of IPC, a compromise application was filed in the lower Court on 17.11.1999 but no order was passed by the learned trial Court in-spite of fact that both the complainant and the appellant entered into compromise in the case. Therefore, in view of the above compromise, he is entitled for acquittal against the charge under section 323 of IPC. 6. First, I will consider the argument advanced by learned counsel regarding conviction under section 307 of IPC with the aid of section 34 of IPC against the appellant No.2, Raghunath. Therefore, in view of the above compromise, he is entitled for acquittal against the charge under section 323 of IPC. 6. First, I will consider the argument advanced by learned counsel regarding conviction under section 307 of IPC with the aid of section 34 of IPC against the appellant No.2, Raghunath. As per statement of Pratap Singh (PW 2), it is stated that at the time of incident, first appellant Raghunath caught collar of his shirt and appellant Gudda caught hair. On hearing his cry his brother Voreram (PW 4) came there for rescue. Appellant Raghunath inflicted a lathi blow which caused injury on his finger of the left hand and at that time, appellant Gudda took a knife from his pocket and inflicted to the stomach of Pratap Singh (PW 2). Due to knife injury, Pratap Singh (PW 2) fell down on the ground. Voreram (PW 4) described same thing that appellant Gudda caught hair of Pratap Singh (PW 2) while appellant Raghunath caught collar of his shirt. When he separated his brother Pratap Singh (PW 2) then appellant Raghunath inflicted blow by a lathi which caused injury on his finger of left hand. Appellant Gudda has not done with him. Thereafter, appellant Gudda took a knife from his pocket and inflicted knife blow on the stomach of his brother Pratap Singh (PW 2). Similar statement was given by Ramkalibai (PW 3) who is wife of Pratap Singh (PW 2) Raghuveer Singh (PW 5) who is son of Voreram stated that he reached at the spot after the incident. He told that his father Voreram and his uncle Pratap Singh were lying on the ground. Blood was oozing out from the stomach of his uncle Pratap Singh (PW 2). 7. Dr. K.K. Shrivastava (PW 1) examined the injured Pratap Singh (PW 2). The report is Ex. P-l Doctor opined that the injury on the stomach is caused by hard and sharp object. He also examined Voreram (PW 4). He sustained two injuries on the finger of left hand. The report is Ex. P-2. Doctor opined that the injury of Pratap Singh (PW 2) was dangerous to his life. Dr. N.K. Sharma (PW 8) was posted at District Hospital Guna who examined the injured Pratap Singh. The relevant documents regarding medical report Ex. P-8 and P-9 are proved by him. 8. The report is Ex. P-2. Doctor opined that the injury of Pratap Singh (PW 2) was dangerous to his life. Dr. N.K. Sharma (PW 8) was posted at District Hospital Guna who examined the injured Pratap Singh. The relevant documents regarding medical report Ex. P-8 and P-9 are proved by him. 8. Regarding the common intention, learned counsel for the appellants relied upon some judgment of the apex Court. In the case of Ramashish Yadav and others v. State of Bihar [2000 SCC (Cri) 9] it is held that in case of common intention, prior concert or meeting of minds essential. That may be gathered from the conduct of the accused during the course of commission of the offence and accused's declaration made before commission of offence. Even if offence is committed at the spur of the moment, prior concert must be there. Merely because two persons had held the deceased while other two hand given gandasa blows to the deceased, it cannot be held that the two persons who had held the deceased shared common intention with the other two to murder the deceased. Similarly, learned counsel for the appellants also relied on Ajay Sharma v. State of Rajasthan [1999 Supreme Court Cases (Cri) 74] in which it is held that appellant catching hold of the deceased and exhorting the co-accused to strike him- Co-accused taking out a kirpan from under the stockings and giving 2-3 blows resulting in instantaneous death of the deceased-Held, in the circumstances of the case, the instigation was only to strike and, therefore, his conviction under Ss.302/34 not sustainable-Appellant might not have known that the co-accused was having a kirpan under his stockings-He is liable to convicted under Ss. 324/110. 9. 324/110. 9. Lastly, learned counsel for the appellants relied on Jagdish and another v. State of Haryana [(2006) 1 SCC (Cri) 96] in which it is held that: "Common intention - Prosecution case that when the victim alongwith his brother were returning home, suddenly on the road second appellant armed with a lathi and first appellant armed with a gandasa accosted them and second appellant inflicted one lathi-blow on the knee of the victim as a result of which he fell down and first appellant then inflicted injuries with gandasa on head and both the arms with great force as a result of which he suffered amputation of both the hands-But the knee injury was merely a mild abrasion which victim could have suffered due to his fall - Moreover, that there was only one lathi-blow injury on the other knee remained unexplained. Hence version of the victim that lathi-blow was given with such a force that as a result of its impact he fell down to ground acceptable Attack took place suddenly in a public place. In the circumstances held, whether second appellant shared common intention with the first appellant and both of them wanted to kill the victim, doubtful Hence second appellant entitled to acquittal-But there was no compelling grounds to discard the testimony of the victim who was brutally assaulted by first appellant with a dangerous weapon. First appellant, therefore, rightly convicted by High Court under S. 307 However, sentence of 10 years' RI imposed by High Court reduced to 8 years' RI in view of the fact that during the course of hearing he came forward to pay to the victim compensation amount of Rs. 1 lakh awarded by High Court." 10. If we realize the evidence adduced by the prosecution, it is clear that appellant Raghunath caught collar of the shirt of Pratap Singh (PW 2) and co-appellant Gudda caught hair of him. When Voreram (PW 4) came on the spot and separated Pratap Singh (PW 2) then appellant Raghunath Inflicted a lathi blow to Voreram (PW 4) and appellant Gudda took a knife from his pocket and inflicted knife blow on the stomach of the injured Pratap Singh (PW 2). When Voreram (PW 4) came on the spot and separated Pratap Singh (PW 2) then appellant Raghunath Inflicted a lathi blow to Voreram (PW 4) and appellant Gudda took a knife from his pocket and inflicted knife blow on the stomach of the injured Pratap Singh (PW 2). Therefore, in view of the above citations of the apex Court, it is evident that appellant Gudda took a knife from his pocket and inflicted knife blow but co-appellant Raghunath has not taken active role in the incident. There is no evidence that appellant Raghunath knew that the co-appellant Gudda having a knife in his pocket. Therefore, the conviction of appellant Gudda under section 307 with the aid of section 34 is liable to set aside and is hereby set aside. 11. Regarding conviction of appellant No.2, Raghunath under section 323 of IPC, it is submitted by the counsel for the appellants that the complainant and the accused persons filed a compromise application before the trial Court on 17.11.1999. The trial Court has not passed any order during the pendency of proceeding. Regarding the compromise application, in paras 50 and 51 of the judgment the fact has been mentioned that the defence counsel argued that there is compromise between the parties, therefore, punishment for minimum sentence may be awarded to them. The Court observed that section 307 is not compoundable. Apart from the above fact, the injury sustained by the complainant was serious in nature. Therefore, it is not possible to adopt liberal view. In fact, the compromise was not accepted by the Court which was filed before the trial Court. There is no compromise application filed by the parties in this Court. Neither objection raised in the memo of appeal nor such plea has taken on behalf of appellant No. 2, Raghunath. Keeping in view, that the offence under section 307, read with section 34 of IPC is not made out against the appellant and he has been convicted under section 323 of IPC and sentenced to undergo rigorous imprisonment for six month. In view of the compromise, the application was filed in the lower Court. It was not technically accepted by the Court but it appears that the parties have compromised their case outside the Court. In view of the compromise, the application was filed in the lower Court. It was not technically accepted by the Court but it appears that the parties have compromised their case outside the Court. Therefore, the conviction under section 323 of IPC is maintained and instead sentencing him, it is directed that appellant No. 2 Raghunath shall be released on probation of good conduct in terms of section 360 of CrPC on his entering into a bond of Rs. 2,000/- (Rupees two thousand only) for a period of six months on condition to appear and receive sentence when called upon during such period. With such modification, the appeals are disposed of accordingly. 12. Copy of this judgment be placed in Criminal Appeal No. 406/ 2000.