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Madhya Pradesh High Court · body

2008 DIGILAW 1407 (MP)

Ratiram v. State of M. P.

2008-12-04

U.C.MAHESHWARI

body2008
ORDER 1. The appellants-accused have directed this appeal under section 374 (2) of CrPC being aggrieved by the judgment dated 2.1.1994 passed by Additional Session Judge, Dindori in ST No. 143/1991 convicting and sentencing to each of them under section 307 of IPC for RI three years with fine of Rs. 250/-, in default of depositing the fine further six months RI has been directed. 2. The facts giving rise to this appeal in short are that on date 24.10.1991 at about 8:00 O'clock in the night in village Pipariya the appellants lashed with sticks entered into the house of complainant HernIal with intention to cause his death. After entering in the house they caused injuries to the complainant by means of sticks, resultantly, he sustained various injuries on the different parts of his body and became unconscious. On receiving information by his brothers Top Singh and Dhannu, they informed to their aunt Sukhko Bai at village Mandli and in the next morning the victim Hernlal was taken to hospital at Bajang from where he was referred to Dindori hospital where he remained for some time then was referred to Mandla hospital, where he was admitted for further treatment. The aunt of the victim Sukhkobai lodged the first information report (Ex. P-1) at P.S. Mandla. After recording the interrogatory statements of the witnesses, collecting MLC report and bed head ticket of the victim, on completion of investigation the appellants were charge-sheeted for the offence under sections 450/307 of IPC. 3. After committing to session on framing the charges of aforesaid sections appellants abjured the guilt, on which the trial was held. On appreciation of evidence after holding guilty to the appellants under section 307 of IPC each of them has been punished with the punishment as mentioned above. Such conviction and sentence is under challenge in this appeal. 4. Shri Ashok Lalwani, learned counsel for the appellants without assailing any findings of the trial Court holding responsibility to the appellants for the alleged incident made limited submissions for alteration and modification of the conviction from section 307 to section 325 of IPC, in which some lesser punishment is provided. In respect of such argument he referred MLC report, x-ray reports, bed head tickets and the depositions of the Dr. B.K. Jharia (PW 16), Dr. K. Ueeke (PW 18) and Dr. R.K. Verma (PW 20). In respect of such argument he referred MLC report, x-ray reports, bed head tickets and the depositions of the Dr. B.K. Jharia (PW 16), Dr. K. Ueeke (PW 18) and Dr. R.K. Verma (PW 20). He further said that looking to the nature of the injuries mentioned in the MLC report and stated by the doctor and also taking into consideration the x-ray reports, this case does not appear to be a case of section 307 of IPC; as not a single injury stated by the doctor in the pre-MLC report of x-ray report was sufficient to cause death of a person like victim in ordinary course of nature. In continuation, it was stated that the alleged injuries were caused by the appellant by means of sticks, which could not be termed to be a deadly weapon therefore, in any case it was not a case of more than section 325 of IPC. In addition, it was argued that in any case considering the circumstance that incident took place in the year 1991 long before 17 years, the awarded sentence to the appellants by taking lenient view be reduced up to the period for which they have already suffered jail custody during trial i.e. for thirteen days. It was also argued that appellant No.2 Rangilal was 17 years of the age on the date of the incident and if the Court considering the aforesaid arguments alters or modifies the conviction from section 307 to 325 of IPC, then in that circumstance, appellant No.2 be extended the benefit of mandatory provision of section 6 of Probation of Offenders Act. He also prayed to extend the benefit of section 4 of the said Act to appellant No.1. With these submissions he prayed to allow this appeal accordingly. 5. Shri T.S. Ruprah, learned Additional Advocate General by justifying the impugned conviction of the appellants said that the same is based on proper appreciation of evidence and is in conformity with law. The same does not require any interference either for acquittal or for modification of offence under some other section, in which the lesser punishment is provided. 6. After hearing the parties, I have carefully gone through the record and also perused the impugned judgment. The same does not require any interference either for acquittal or for modification of offence under some other section, in which the lesser punishment is provided. 6. After hearing the parties, I have carefully gone through the record and also perused the impugned judgment. On perusing the depositions of the eye witnesses Tok Singh (PW 3), Jai Singh (PW 5), Ramdeen (PW 6), Sukhram (PW 7) and Sukhkobai the complainant, it is revealed that story put forth by the prosecution in the FIR (Ex. P-1) has been proved beyond reasonable doubt against both the appellants. Hence, the findings of the trial Court holding guilty to the appellants for the alleged incident appears to be correct. Hence, the same are hereby affirmed. It is noted that such findings have not been challenged on behalf of the appellants during the course of final arguments as the case was argued only for alteration and modification of the conviction and reduction of the sentence awarded by the trial Court and also for extending the benefit of provision of Probation of Offenders Act to the appellants. 7. So far as deciding the question relating to the alteration or modification of the alleged offence from section 307 to 325 of IPC is concerned, the Court has to examine the medical evidence available on the record. 8. Undisputedly the incident took place in the night in some village from where the victim was taken to public health center Bajang in the next morning where his pre-MLC report (Ex. P-17 A) was prepared by Shri R.K. Verma (PW 20), according to him following injuries were found on the person of the victim: Left leg : (i) Abrasion 1/2" circle of diameter over the Lt. Knee joint anteriorly, by hard and rough surface simple in nature. (ii) Swelling 10" x 5" over left leg by hard and blunt object-referred to Dindori PHC for x-ray of Lt. Leg and for operation and treatment. Rt. Leg. (i) Abrasion 1/2" in order of diameter over the Lt. knee joint-by hard and blunt object-simple in nature. (ii) Abrasion 1/2" in circle of diameter 2" below the Rt. knee joint and blunt object - simple in nature. (iii) Swelling 8" x 4" over Rt. leg by hard and blunt object-referred to PHC Dindori for x-ray of Rt. leg & for opinion & treatment. Rt. Hand,' (i) Swelling 3" x 3" over Rt. (ii) Abrasion 1/2" in circle of diameter 2" below the Rt. knee joint and blunt object - simple in nature. (iii) Swelling 8" x 4" over Rt. leg by hard and blunt object-referred to PHC Dindori for x-ray of Rt. leg & for opinion & treatment. Rt. Hand,' (i) Swelling 3" x 3" over Rt. palm dorsal aspect, by hard and blunt object-referred to PHC Dindori for x-ray of Rt. palm & for opinion & treatment. (ii) Swelling 10" x 4" over Rt. forearm by hard and blunt objectreferred to PHC Dindori for x-ray of Rt. arm & for opinion & treatment. (iii) Swelling 6" x 5" over Rt. arm middle part by hard and blunt object-referred to PHC Dindori for x-ray of Rt. arm & for opinion & treatment. Lt. Hand: (i) Swelling 3" x 3" over dorsal aspect of Lt. Palm-by hard and blunt object-referred to PHC Dindori for x-ray of (illegible) & for opinion & treatment. (ii) Swelling 8" x 3" over Lt. Forearm by hard and blunt object-referred to PHC Dindori for x-ray of (illegible) arm & for opinion & treatment. 9. Thereafter he was referred for further treatment and taking out x-ray to PHC Dindori, where directed x-rays were carried out and after keeping some time in such hospital, he was referred to Mandla hospital where his further treatment was carried out. 10. On trial at the time of recording the deposition, Dr. R.K. Verma (PW 20) had not stated any opinion regarding nature of any of the injuries but in paragraph 7 he categorically stated that the injuries falling under the category of simple in nature could have been caused on falling the victim. Mere perusal of the aforesaid injuries, it is apparent that none of them was neither caused on any vital part of the victim nor any such part of the victim was damaged by the same. 11. After preparing the aforesaid MLC report on referring the victim to another hospital the directed x-ray was carried out. Such x-ray plates and reports have been proved on record by Dr. B.K. Jharia (PW 16) as Ex. P-18 to Ex. P-21. According to his deposition the victim sustained the fracture of humorous and ulna bone of right hand and tibia fibula bone of right leg. Such x-ray plates and reports have been proved on record by Dr. B.K. Jharia (PW 16) as Ex. P-18 to Ex. P-21. According to his deposition the victim sustained the fracture of humorous and ulna bone of right hand and tibia fibula bone of right leg. He also stated some averment regarding serious physical condition of the victim due to which he was not in a position to speak. His pulse was weak and measuring the blood pressure was difficult. He further stated that such injuries were dangerous to life of the victim. After going through his entire deposition, I could not find that which injury and the circumstance was sufficient to cause death of the victim or dangerous to his life, in the lack of such evidence the opinion of said doctor does not appear to be correct. In any case, one thing has been proved from his statement that victim did not suffer any injury on any vital part of his person. 12. Dr. K. Ueeke (PW 18) who looked after the victim in the District hospital, Mandla stated the condition of victim while he was admitted in the hospital and also proved the bed head ticket (Ex. P-24) and a memo asking some query received from the police along with his reply (Ex. P23). According to such memo he gave his opinion regarding the injuries stating that due to such injuries the victime could have died. He did not specifically state that which injury was caused on a vital part and was sufficient to cause death of the victim in ordinary course of nature. In paragraph 4 of his cross-examination he categorically stated that the victim did not suffer any injury on any vital part but he sustained various fractures at different parts of his body. 13. On going through the aforesaid depositions of doctors, MLC reports, x -ray reports and bed head ticket of the victim, I have not found that any of the injury sustained by the victim could be termed to be sufficient for causing his death in ordinary course of nature. In such circumstances, the case at hand appears to be a case of only grievous injury with fracture caused by means of sticks for which the appellants ought to have been convicted by the trial Court under section 325 and not under section 307 of IPC. In such circumstances, the case at hand appears to be a case of only grievous injury with fracture caused by means of sticks for which the appellants ought to have been convicted by the trial Court under section 325 and not under section 307 of IPC. In such premises the approach of the trial Court holding guilty to the appellants under section 307 is not sustainable. Hence, the same is set aside and both the appellants are acquitted from such charge of section 307 of IPC and their sentences in that regard are hereby set aside. 14. In view of the aforesaid discussion, the appellants are held guilty under section 325 of IPC. The provision of Probation of offender's Act is applicable to the offence of such section, as the punishment of life imprisonment is not provided in it. It is apparent from the impugned judgment and record of the trial Court that appellant No.2 was 17 years of the age on the date of the incident and in view of mandatory provision of section 6 of Probation of offenders Act, he being below 21 years of the age on such date he was entitled for extending such benefit and in pursuance of it he could not be punished with a jail sentence. Considering such situation, I deem fit to extend such benefit to appellant No.2 Rangilal. In such premises instead to punish him with jail sentence, it is directed that on furnishing the requisite bail bond of Rs. 10,000/- by the appellant No.2 within forty five days with an undertaking that he will not be involved in any criminal activity and shall maintain the peace for two years, he be released on probation under the aforesaid Act. It is further directed that on failure to comply the aforesaid order or violating any terms of probation such appellant has to suffer the consequences in accordance with the provision of Probation of Offenders Act and also liable for the appropriate punishment by calling him before the trial Court or on his production by lawful authority in such Court. 15. So far appellant No.1 is concerned, looking to number and nature of injuries sustained by the victim and the role of such appellant, in the available circumstances, I do not find fit to extend the benefit of Probation of offenders Act to him. 15. So far appellant No.1 is concerned, looking to number and nature of injuries sustained by the victim and the role of such appellant, in the available circumstances, I do not find fit to extend the benefit of Probation of offenders Act to him. Undisputedly, the incident took place in the year 1991 i.e. more than 17 years ago but only due to efflux of time the right of victim to get justice has not been destroyed. Thus, taking into consideration all the available circumstance and arguments advanced by the appellants' counsel instead to send him jail again, I deem fit to punish him with a jail sentence up to the period for which he has already suffered the jail custody between 16.6.1991 to 28.6.1991 i.e. 13 days as mentioned in paragraph 30 of the impugned judgment but with fine of Rs. 7,500/(Rs. Seven thousand & five hundred), in default of depositing such fine the appellant No. 1 has to suffer one year RI. Such amount of fine is directed to be deposited within 45 days. On depositing the aforesaid fine amount the same shall be given to the victim, if for any reason he is not available then same shall be given to his legal heir/heirs by calling him them through summons in the trial Court. 16. The trial Court is directed that if the aforesaid fine amount is not deposited within prescribed period then such Court shall take appropriate steps to serve the awarded jail sentence to appellant No. 1. If the aforesaid directions given to appellant No.2 are not complied with by him then trial Court shall be at liberty to take appropriate steps against him in accordance with law as directed above. 17. Let the trial Court be intimated regarding this judgment immediately. 18. Appeal is allowed in part, as indicated above.