Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1074 (MP)

Rammi Alias Ram Singh v. State of M. P.

2008-08-26

A.K.SAXENA

body2008
JUDGMENT : The appellants/accused Rammi @ Ram Singh, Kadora and Khilan have preferred this appeal under section 374(2) of Criminal Procedure Code, 1973 against the judgment dated 24-2-1994 passed by Ist Additional Sessions Judge, Damoh whereby, they have been convicted under sections 148 and 326 read with section 149 of Indian Penal Code and sentenced to two years and five years rigorous imprisonment. 2. The prosecution story in short is that on 16-8-1983 PW-13 Prahalad Singh was going with PW-4 Raghuwar Prasad to attend the date of hearing. They were going to Damoh. When they reached near the agricultural field of village Jhira, the accused Rammi, Karoda, Ramnath and other accused met them. Natia Kachhi assaulted the injured person with a lathi and thereafter, Rammi caused an injury by the means of 'katarna' as a result of which, the four fingers with a part of palm of one hand was separated. All the accused persons caused injures to the injured person by the means of lathi. Prahalad Singh fell down and became unconscious and an amount of Rs. 150/- was also taken out by the accused person from the possession of Prahalad Singh, Phool Singh and other persons reached at the place of the incident and they came with Prahalad to Police Station, Batiyagarh where the report Ex.P/19 was lodged by the injured person. Prahalad Singh was sent for medical examination, PW-11 S. N. Mewafarosh examined Prahalad Singh and he handed over his MLC report to police. The Investigating Officer started the investigation. The separated part of palm including the fingers was seized along with shoes from the place of incident and seizure memo Ex.P/3 was prepared. Two 'katarana' were also seized from the possession of appellants Rammi @ Ram Singh and Kadora. The site plan Ex.P/9 was also prepared by the Patwari PW-5 Awadh Bihari Khare. After completion of the investigation, the chart-sheet was filed. It is also the prosecution story that there was enmity between the parties on account of Panchayat election and because of this enmity, the accused persons caused injuries to Prahalad Singh. 3. This appeal was preferred by five appellants, but the appellants Swaroop and Natiya had expired and, therefore, this judgment is being passed in respect of remaining three appellants. 4. The learned counsel for the appellants has contended that there are lot of contradictions in the statements of the witnesses. 3. This appeal was preferred by five appellants, but the appellants Swaroop and Natiya had expired and, therefore, this judgment is being passed in respect of remaining three appellants. 4. The learned counsel for the appellants has contended that there are lot of contradictions in the statements of the witnesses. The statements of the witnesses are not believable and no offence was proved against the appellants. 5. In respect of the incident, the statements of PW-13 Prahalad Singh, PW-4 Raghuwar Prasad are important and the statement of PW-1 Nanhebhai should also be considered. 6. PW-1 Nanhebhai has been declared hostile and did not support the prosecution story, but his statement is not believable because during cross-examination, when this question was put to him as to whether the matter has been compromised, he did not reply. It means whatever this witness has stated, is not believable. 7. PW-13 Prahalad Singh has stated that when he and Patwari Raghuwar Prasad reached near village Jhira, at that time, Rammi, Natia, Kadora, Swaroop Singh, Ramnath and others came there and out of these accused persons, the accused Rammi and Kadora were armed with 'katarna' and other accused were armed with lathi. It is apparent that this witness failed to disclose the presence of Khilan. Thereafter, he has stated that first of all, Natiya Kachhi caused an injury by the means of lathi and thereafter, Rampi caused an injury by the means of 'farsa' on his head and when he tried to check the blow, he sustained injury on his head. Thereafter, all the accused caused injuries to him and Rammi caused another injury on his palm. This shows that this witness has failed to specify the name of appellant Lakhan. 8. PW-13 Prahalad Singh has stated that Rammi and Kadora were armed with 'katarna', but this fact that Kadora was armed with 'katarna', does not find support from his statement Ex.P/12 which was recorded as dying declaration. In this statement, this witness has categorically stated only against the accused Rammi, who caused the injuries by the means of 'katarna' and it has been disclosed that all other accused persons were armed with lathi. 9. In this statement, this witness has categorically stated only against the accused Rammi, who caused the injuries by the means of 'katarna' and it has been disclosed that all other accused persons were armed with lathi. 9. In the statement Ex.P/12, it has been disclosed that when Patwari tried to stop the accused persons, Kadora Kachhi caused an injury by the means of lathi to Patwari, whereas PW-4 Raghuwar Prasad has stated that when the accused persons were coming towards him, he ran away from there. He does not disclose that he also sustained any injury or Kadora Kachhi caused any injury to him. 11. PW-4 Raghuwar Prasad disclosed the names of appellants Kadora and Khilan and stated that these two accused were armed with lathi. PW-13 has disclosed contradictory facts in respect of weapon of the appellant Kadora. In these circumstances, the statements of both these witnesses are contradictory to each other in respect of presence of the appellants Kadora and Khilan and their act. In this case, only these witnesses are the eye witnesses of the incident and if they have not supported the prosecution story or they made contradictory allegations against these appellants, I am of the opinion that the statements of both these witnesses cannot be believed in respect of the appellants Kadora and Khilan. 12. PW-11 Dr. S.N. Mewafarosh examined Prahalad and he found that Prahalad sustained several incised wounds on his person and except, thumb of right hand, other part of the palm including fingers was found separated from the remaining part of palm. He found that injury Nos. 1, 2, 3 and 8 were caused by sharp edged weapon and injury Nos. 4 to 7 were caused by hard and blunt object. According to injured person, about 8 to 9 persons caused injuries to him. If this was the position, the injured person would have not sustained only four injuries caused by hard and blunt object. The complainant should have sustained more than four injuries caused by hard and blunt object. It means, the allegation that except the appellant/accused Rammi @ Ram Singh, eight accused persons caused injuries by the means of lathi to this injured person, cannot be believed. The complainant should have sustained more than four injuries caused by hard and blunt object. It means, the allegation that except the appellant/accused Rammi @ Ram Singh, eight accused persons caused injuries by the means of lathi to this injured person, cannot be believed. On these grounds, the other accused persons were acquitted by the trial Court, but the trial Court has not examined the statement of the witnesses in view of above facts in respect of the appellants Kadora and Khilan. 13. PW-2 Nathuram has disclosed that the part of palm including fingers and shoes were seized from the place of incident and seizure memo Ex.P/3 was prepared. This fact has also been corroborated by PW-3 Nanhe Bhai. Though, the Investigating Officer has not been examined in this case if the fact of seizure of remaining part of palm and shoes of the injured person is proved by the independent witnesses or by other witnesses certainly, no adverse inference will be drawn against the prosecution story on this ground that the Investigating Officer has not been examined in the case. 14. PW-8 U. C. Jain recorded the dying declaration of the injured person and the dying declaration Ex.P/12 which becomes the statement of the complainant, as he is alive, has already been considered earlier. 15. The statements of injured and Patwari, who is eye witness, are important. They have categorically stated that the appellant Rammi caused several injuries to injured by the means of 'Katarna' and this part of their statement is believable. There is no contradiction in respect of the act of the appellant Rammi. Considering the statements of above witnesses and the medical evidence, I found that the offence under section 326 of Indian Penal Code was proved beyond reasonable doubt against the appellant Rammi alias Ram Singh. 16. PW-10 Dr. R.K. Bajaj admitted Prahalad Singh in the hospital and referred to District Hospital, Damoh. PW-12 Dr.K.C. Singhal admitted the injured person Prahalad. Considering the other evidence, the statements of these witnesses are not very much material and, therefore, there is no need to discuss their statements in detail. The statements of other witnesses are also not very much material and, therefore, those statements are not being discussed here. 17. PW-12 Dr.K.C. Singhal admitted the injured person Prahalad. Considering the other evidence, the statements of these witnesses are not very much material and, therefore, there is no need to discuss their statements in detail. The statements of other witnesses are also not very much material and, therefore, those statements are not being discussed here. 17. The learned counsel for the appellants has submitted that there was no bony injury, therefore, no offence under section 326 of Indian Penal Code was proved in this case. This is not the correct position because, the fracture is one of the facts to show that the injury is grievous, but in this case, the part of palm of the injured person was separated from remaining palm because of injury caused by the appellant Rammi @ Ram Singh by the means of 'katarna' which is a sharp edged weapon and, therefore, the injury becomes grievous in nature. The trial Court has not committed any error in coming to this conclusion that the offence under section 326 of Indian Penal Code was proved in this case. Since it could not be proved, in this case, beyond reasonable doubt that the appellants Kadora and Khilan committed any offence and the matter of Swaroop and Natiya has not been considered in this judgment, as they are dead but even if for the sake of argument, it is found that the co-appellant Swaroop and Natiya were present at the time of incident and only three persons participated in this incident, then the question of common object does not arise. In these circumstances, the offence punishable under section 148 of Indian Penal Code could not be proved in this case. The appellant Rammi @ Ram Singh caused several incised wounds on his own, therefore, he is responsible for his act which is punishable under section 326 of Indian Penal Code. Therefore, instead of conviction under section 326 read with section 149 of Indian Penal Code, he can be convicted under section 326 of Indian Penal Code. But at the same time, the prosecution has totally failed to prove the guilt of the appellants Kadora and Khilan beyond reasonable doubt and, therefore, they are entitled for acquittal. 18. Therefore, instead of conviction under section 326 read with section 149 of Indian Penal Code, he can be convicted under section 326 of Indian Penal Code. But at the same time, the prosecution has totally failed to prove the guilt of the appellants Kadora and Khilan beyond reasonable doubt and, therefore, they are entitled for acquittal. 18. The appeal preferred by the appellants Kadora and Khilan is allowed and they are acquitted of the charge under sections 148 and 326 read with section 149 of Indian Penal Code, but the appeal of the appellant Rammi @ Ram Singh is rejected. 19. The learned counsel for the appellants has contended that the incident had taken place on 16-8-1983 and the trial Court passed the judgment on 24-2-1994 and thereafter, this appeal remained pending for several years. The appellant Rammi @ Ram Singh remained in jail for more than 5 months and this period of jail sentence would be sufficient. If Prahalad Singh would have sustained only fracture then certainly, the above period would be the sufficient period for sentence. But it is apparent that the part of palm of right hand of Prahlad Singh was separated because of injuries caused by sharp edged weapon, therefore, the act of the appellant Rammi @ Ram Singh becomes more heinous and the period of 5 months would not be sufficient sentence in this case. But it is also apparent that the appellant Rammi @ Ram Singh is facing the proceedings of trial and the appeal since last about 25 years. Considering the nature of allegations, number and nature of injuries sustained by Prahalad Singh, I am of the opinion that the jail sentence of two years with fine would be sufficient in this case. 20. For the aforesaid reasons, the appeal of appellant Rammi @ Ram Singh is rejected with the modification that he is acquitted of the charge under section 148 of Indian Penal Code and instead of conviction under section 326 read with section 149 of Indian Penal Code, he is convicted under section 326 of Indian Penal Code and instead of 5 years rigorous imprisonment, he shall undergo 2 years rigorous imprisonment. He shall also pay a fine of Rs. 7,000/- and in default, he shall further undergo rigorous imprisonment of 3 months. Out of amount of fine, an amount of Rs. He shall also pay a fine of Rs. 7,000/- and in default, he shall further undergo rigorous imprisonment of 3 months. Out of amount of fine, an amount of Rs. 5,000/- be given to the injured person Prahalad Singh by way of compensation. The appellant Rammi @ Ram Singh shall be entitled to set off under section 428 of Criminal Procedure Code. The bail bonds of the appellants are discharged. The appellant Rammi @ Ram Singh shall surrender before the Court below to serve the remaining part of sentence failing which, the warrant of arrest shall be issued against him. The property shall be disposed of in accordance with the order of the trial Court.