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Madhya Pradesh High Court · body

2007 DIGILAW 901 (MP)

Kanak Singh v. State Of M. P.

2007-08-16

K.S.CHAUHAN

body2007
JUDGMENT : This criminal appeal has been preferred under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 8-4-1993 passed by the II Additional Sessions Judge, East Nimar, Khandwa in Sessions Trial No. 51/92 whereby the appellants Guddu @ Satyanarayan and Prabhudayal were convicted under section 325, Indian Penal Code, appellants Kanak Singh and Vijay Singh were convicted under section 325/34, Indian Penal Code and sentenced to R.I. for 3 years each with fine of Rs. 100/- in default R.I. for one month each. Further appellant Prabhudayal is convicted under section 323 of Indian Penal Code and Kanak Singh and Vijay Singh under section 323/34, Indian Penal Code and sentenced to R.I. for 6 months each. The sentences are directed to run concurrently. 2. The prosecution case in brief is that the complainant Kedar Singh of Village Lodhasatri on 14-11-1991 at 1:00 p.m. had gone with his wife Kamla Bai and son Bhuru @ Vinod Kumar at his field to collect the stones. His servant Tulsiram Lauwanshi was also collecting the stones. His son Poonamchand was grazing the cattle nearby. His brother Sumer Singh was irrigating the field. The incident is of 3:00 p.m. of that day. The appellants came there. Vijay Singh was armed with axe and others with wooden planks (stick). Kanak Singh asked him as to why he ran over the bullock-cart over the irrigation pipe which has now been broken. The complainant said that the irrigation pipe was inside the ground. The bullock-cart was vacant and also lifted there. Kanak Singh threatened to kill him. He inflicted the stick blow at his neck consequently he fell down. Vijay Singh inflicted axe blow at his head thereby the bleeding started. Prabhudayal and Guddu @ Satyanarayan also inflicted stick blows and when his son Bhuru @ Vinod Kumar came to intervene Prabhudayal and beat him with stick. His son sustained the injury on right hand, forehead and chest whereas he himself sustained the injuries in his chest, head and right hand wrist. He was saved by Tulsiram and Sumer Singh and brought to police station Harsood where he lodged the F.I.R. His clothes were seized. The spot map was prepared. The complainant and his son Bhuru @ Vinod Kumar were referred to medical examination. They were examined on 15-9-1991 by Dr. Surendra Kumar Shukla. He was saved by Tulsiram and Sumer Singh and brought to police station Harsood where he lodged the F.I.R. His clothes were seized. The spot map was prepared. The complainant and his son Bhuru @ Vinod Kumar were referred to medical examination. They were examined on 15-9-1991 by Dr. Surendra Kumar Shukla. The reports Ex.P/4-A and Ex.P/5-A were submitted. He was advised for x-ray. Dr. D. R. Bhatiya took his x-ray of skull, right forearm and chest. He did not find any injury in skull and right forearm but fracture of sixth rib was found. X-ray report and x-ray plate were submitted. The accused persons were arrested. Their memorandum statement were recorded under section 27 of Indian Evidence Act. The weapons of offence were recovered upon their information. The query was made from Dr. Surendra Kumar Shukla by sending the seized axe that whether the injury to Kedar Singh may be caused by this weapon. He answered positively and also opined that the injury of the head may be dangerous to life. The statements of witnesses were recorded under section 161 of Criminal Procedure Code. After completing the investigation, the charge-sheet was filed before Judicial Magistrate First Class, Harsood. The Criminal Case No. 7871/91 was registered. The case was committed to Sessions Court on 6-2-1992. 3. The appellant Kanak Singh and Guddu @ Satyanarayan were charged under sections 307/34 and 323/34, Vijay Singh under section 307 and section 323/34 and Prabhudayal under section 307/34 and section 323 of Indian Penal Code to the effect that on 14-11-1991 at 3:00 p.m. at village Lodhasatri Vijay Singh inflicted axe blow with such intention or knowledge and under such circumstances in furtherance of common intention of all that if by act he had caused the death of Kedar Singh he would have been guilty of murder and thereby committed the offence under sections 307, 307/34 of Indian Penal Code respectively. They were further charged that on the same date, time and place Prabhudayal caused voluntarily hurt to Bhuru @ Vinod Kumar in furtherance of common intention of all, therefore, committed an offence under sections 323, 323/34 of Indian Penal Code respectively. 4. The appellants abjured the guilt and claimed to be tried. 5. The prosecution examined as many as 12 witnesses but the defence did not examine any witness. 6. 4. The appellants abjured the guilt and claimed to be tried. 5. The prosecution examined as many as 12 witnesses but the defence did not examine any witness. 6. After considering the evidence the trial Court acquitted them from the charge under sections 307, 307/34 of Indian Penal Code but convicted under sections 325, 325/34 and sections 323, 323/34 and sentenced thereunder as stated in para No. 1 of this judgment. Being aggrieved by the judgment, finding and sentence passed by the trial Court the instant appeal has been preferred under section 374(2) of Criminal Procedure Code on the ground mentioned in the memo of appeal. 7. The learned counsel for the appellants has submitted that there are several contradictions and omissions in the statement of Kedar Singh and his son Bhuru @ Vinod Kumar, therefore, their evidence ought not to have been relied by the trial Court. No any independent witness have supported their version. There is inconsistency in between the ocular and medical evidence produced by the prosecution. The sentence imposed is uncalled for, hence the appellants be acquitted. 8. On the other hand, Shri T. K. Modh, learned Dy. A. G. appearing on behalf of the respondent/State supported the judgment, finding and sentence mainly contending that the offence has been proved by the prosecution against the appellant and they have rightly been convicted and sentenced, hence it does not call for any interference. 9. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under sections 325, 325/34 and 323, 323/34 of Indian Penal Code. 10. Kedar Singh (PW-1) has stated that the appellants came at his field. Vijay Singh was having axe and others wooden sticks. Kanak Singh stated him that he ran over the bullock cart upon his irrigation pipe which has been broken to which he replied that the irrigation pipe was inside the ground, therefore, it has not been broken. He further stated that he always carried the bullock-cart from this way. On this Kanak Singh inflicted the stick blow at his neck. He fell down. Vijay Singh inflicted axe blow. He tried to save himself by his right hand but the wooden part of axe hit his right hand and iron part on head from back side. The bleeding started. On this Kanak Singh inflicted the stick blow at his neck. He fell down. Vijay Singh inflicted axe blow. He tried to save himself by his right hand but the wooden part of axe hit his right hand and iron part on head from back side. The bleeding started. Guddu @ Satyanarayan and Prabhudayal also inflicted the stick blows resulting the injuries at his chest, right hand, back and feet etc. and when his son Bhuru @ Vinod Kumar came to escape him Prabhudayal inflicted the Lathi blows on him. Consequently, he received the injuries in his mouth, chest, stomach etc. He was brought to police station Harsood where he lodged the report Ex.P/1. The police also seized his blood stained cloths vide seizure memo Ex.P/2. He was referred for medical examination. X-ray was also done wherein the fracture in his chest was found. The police prepared the spot map Ex.P/3 at his instance. 11. This witness has been subjected to a lengthy cross-examination and has been contradicted from his report Ex.P/1 and police statement Ex.D/1. The contradiction is brought on the fact that he did not mention in the report and the police statement that the axe was inflicted from its back side. He has denied the suggestion that there was scuffle in between him and the appellants. He has further denied the suggestion that he received the injuries by fall on stones. He has clearly stated that he was beaten by appellants. 12. From perusal of his entire evidence, it is clear that the appellants caused marpeet to him and his son Bhuru @ Vinod Kumar. He has withstood in cross-examination and nothing is elicited as to discredit his testimony. 13. Bhuru @ Vinod Kumar (PW-4) is his son. He has absolutely supported the version of his father Kedar Singh (PW-1). He has clearly stated that Kanak Singh inflicted the stick blow on the neck of his father by which he fell down. Vijay Singh inflicted axe blow on his head. Bleeding started. Prabhudayal and Guddu @ Satyanarayan have inflicted stick blow on his father and when he went there to escape his father Prabhudayal inflicted stick blows thereby he received the injuries at his mouth, head, chest and back. Tulsiram and Sumer Singh also came there to intervene. His father was brought to police station Harsood where he lodged the report and referred for medical examination. 14. Tulsiram and Sumer Singh also came there to intervene. His father was brought to police station Harsood where he lodged the report and referred for medical examination. 14. This witness has also subjected to lengthy cross-examination wherein he has clearly stated that his father did not fall on the stones. He has stated that axe blow was inflicted from its sharp side causing the injury to his father at head. 15. This witness has also withstood the cross-examination and nothing is brought on record as to discredit his evidence regarding causing the marpeet by the appellants to him and his father. 16. Sumer Singh (PW-5) has also supported the version of complainant and his son to some extent. He has stated that he saw that the appellants were beating his brother Kedar Singh. Vijay Singh was having axe and other appellants wooden stick. They also caused the marpeet to Bhuru @ Vinod Kumar. He received the injury at his mouth, chest. Kedar Singh received the injury of axe at his head and chest by wooden stick. 17. In cross-examination he has stated that at that time he was irrigating the field nearby to the field of complainant Kedar Singh. When he came, he saw that the appellants were beating his brother. He has witnessed the incident. 18. Tulsiram (PW-3) has also stated that Kanak Singh inflicted stick blow on the neck of Kedar Singh. He fell down and when Bhuru @ Vinod Kumar came to intervene Kanak Singh also inflicted stick blow to him. Since this witness was not supporting the entire prosecution case, therefore, he was declared hostile and the contradiction has been brought from his previous statement Ex.P/7. 19. The spot map Ex.P/3 was prepared by Barjor Singh (PW-8). 20. B. S. Bisen (PW-9) recorded the F.I.R. lodged by Kedar Singh. Seized the blood stained articles vide seizure memo Ex.P/2 from Kedar Singh. 21. B. S. Sisodiya (PW-10) recorded the statement under section 27 of Indian Evidence Act of Kanak Singh and Vijay Singh vide Ex.P/12 and P/13 respectively and in consequence thereof recovered the weapons of offence from them vide Ex.P/16 and P/16-A. He has arrested the appellant Guddu @ Satyanarayan vide arrest memo Ex.P/17, recorded his statement under section 27 of Indian Evidence Act and in consequence thereof recovered the wooden stick vide seizure memo Ex.P/19. Likewise he also arrested appellant Prabhudayal vide Ex.P/20. 22. Likewise he also arrested appellant Prabhudayal vide Ex.P/20. 22. Jagannath Singh Chauhan (PW-12) has recorded the statement Ex.P/21 of Prabhudayal under section 27 of Indian Evidence Act and in consequence thereof seized wooden stick vide Ex.P/22. 23. By the aforesaid evidence, the prosecution tried to establish that the weapons of offence were seized at the instance of the information given by the appellants. 24. Dr. Surendra Kumar Shukla (PW-2) has examined Kedar Singh (PW-1) on 14-11-1991 and found the following injuries on his person : a. One diffuse swelling over the centre of right forearm. b. One diffuse swelling over the back of the neck. c. One diffuse swelling over the upper portion of right side of chest. d. One diffuse swelling over the upper portion of left thigh on back. e. One diffuse swelling over the upper portion of left side of buttock. f. One lacerated wound and diffuse swelling on the parietal and occipital bone longitudinal in direction measuring 3" x "½" x bone deep, fresh bleeding present. These injuries were caused by hard and blunt object within 12 hours of examination. 25. He advised x-ray of skull, right forearm, chest, left femur, pelvic bone etc. He submitted the report Ex.P/4-A which contains his signature. 26. On the same date he also examined the injured Bhuru @ Vinod Kumar and found the following injuries on his person : a. One diffuse swelling over the upper portion of chest in front. b. One diffuse swelling over the lower portion of chest in front. C. One diffuse swelling over the tip of right shoulder. These injuries could be caused by hard or blunt object within 12 hours of examination. He advised x-ray of chest and right humerus. He submitted the medical report Ex.P/5-A which contains his signature. 27. B. S. Sisodiya (PW-10) has stated that on 20-12-1991 he sent a letter to Assistant Surgeon. P.H.C., Harsood. The seized Kulhari was also sent to him and the query was made that whether the injury of Kedar Singh may be caused by the axe and whether the injury sustained by Kedar Singh is dangerous or not. 28. Dr. Surendra Kumar Shukla (PW-2) has answered the query that the injury may be caused to Kedar Singh by this axe from the back side and the injury of his head may be dangerous to life. 29. Thus, from the evidence of Dr. 28. Dr. Surendra Kumar Shukla (PW-2) has answered the query that the injury may be caused to Kedar Singh by this axe from the back side and the injury of his head may be dangerous to life. 29. Thus, from the evidence of Dr. Surendra Kumar Shukla it is evident that he found the injuries on the person of injured Kedar Singh and his son Bhuru @ Vinod Kumar as stated above. 30. Dr. D. R. Bhatiya (PW-6) has taken the x-ray of Kedar Singh on 15-11-1991. He took the x-ray of right hand and head vide Ex.P/9 but he did not find any fracture. He also took x-ray of his chest vide Ex.P/10 and found that his sixth rib was fractured. The x-ray report Ex.P/11 has been submitted by him which contains his signature. 31. In cross-examination, this witness has admitted that in x-ray plate the portion where he found the fracture of rib is now torned, therefore, he is not in a position to say correctly where the fracture was found. He has admitted that the fracture of rib may be caused due to fall. 32. Thus, from the evidence of Dr. D. R. Bhatiya (PW-6) it is clear that on 15-11-1991 he found the fracture of sixth rib of injured Kedar Singh. If somebody has torned away the portion from x-ray plate then he is not responsible. 33. Since Dr. Surendra Kumar Shukla (PW-2) admitted in cross-examination that the head injury of Kedar Singh can't be dangerous until grievous and Dr. D. R. Bhatiya (PW-6) did not find any fracture on his head consequently the trial Court came to the conclusion that the injury of head was not dangerous to life and hence acquitted from charge under sections 307, 307/34 of Indian Penal Code. 34. The appellants have tried to bring the discrepancy in the ocular and medical evidence with respect to the injury caused by axe to Kedar Singh from its sharp or blunt side because Kedar Singh has stated that the appellant Vijay Singh inflicted the axe blow from back side and his son has stated that the axe was used from its sharp side whereas Dr. Surendra Kumar Shukla has found this injury to be caused by hard and blunt object. Surendra Kumar Shukla has found this injury to be caused by hard and blunt object. Complainant Kedar Singh has given the explanation in this regard that when Vijay Singh inflicted the axe blow upon him he tried to save himself by hand in that attempt the wooden part inflicted on his right hand wrist and the axe on head from its back side. This explanation seems to be plausible, but the head injury was not dangerous to his life and the finding of trial Court in this regard is proper. 35. Injured Kedar Singh (PW-1) was not having only the head injury but some other also on the different parts of his body. He sustained the fracture of sixth rib, hence the grievous injury. 36. Grievous injury is defined in section 320 of Indian Penal Code wherein the fracture or dislocation of a bone also comes under the definition of grievous hurt. 37. Bhuru @ Vinod Kumar (PW-4) has also sustained the simple injuries in the incident. 38. If we see the entire case, we find that the reason behind the incident is that complainant Kedar Singh ran over the bullock cart from the irrigation pipe of Kanak Singh who stated that it was broken to which Kedar Singh denied. Even if, for the sake of argument, the version of Kanak Singh was correct, even then it was not incumbent upon him and his associates to come at the field of complainant to beat him. They have taken the law in their hands and went there at the field of complainant and assaulted him and his son when he came to intervene. They caused marpeet of father and son. The report was lodged promptly. His medical examination and x-ray was also done promptly, therefore, there is no reason to suspect the story of prosecution. The injuries which were caused by the appellants have also find support from the medical evidence. However, the appellants have tried to bring the fact that there was enmity in between the parties on account of the plucking of mangoes before a year but it cannot be said that on account of that incident the appellants have been falsely implicated. They themselves went there at the spot. They were aggressor. They attacked the complainant, caused the injuries to him and his son. The finding arrived at by the trial Court is proper and sustainable. Hence confirmed. They themselves went there at the spot. They were aggressor. They attacked the complainant, caused the injuries to him and his son. The finding arrived at by the trial Court is proper and sustainable. Hence confirmed. 39. The learned counsel for the appellants has submitted that the lenient view with respect to sentence be adopted and it will serve no purpose to send the appellants in jail after the lapse of 14 years. 40. By keeping in view the facts and circumstances of this case, no reduction in the sentence is called for. The sentence awarded by the trial Court is not disproportionate to the offence committed, therefore, the sentence passed by the trial Court is also hereby affirmed. 41. There is no substance in this appeal hence deserves to be dismissed. 42. Consequently, the appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C.J.M., Khandwa on 24-9-2007 to serve out the remaining part of the sentence. 43. The order regarding disposal of criminal properties passed by the trial Court is hereby affirmed. 44. Before parting with this judgment, it is noticed that the trial judge found the offence under section 323/34 proved against Guddu @ Satyanarayan also but failed to pass sentence with respect thereto against him. This appears to be a legal mistake prima facie on record, therefore, the copy of this judgment be sent to the concerned judge to clarify the position.