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Madhya Pradesh High Court · body

2008 DIGILAW 910 (MP)

Bharatsingh v. State of M. P.

2008-07-24

S.L.KOCHAR

body2008
JUDGMENT (Oral) 1. The appellants have filed this appeal, challenging their conviction u/s 394 read with section 397 of the IPC and sentence of RI for 07 years and fine of Rs. 2,000/-, in default of payment of fine to undergo RI for three months, passed by learned Sessions Judge, Dewas in ST No. 65/ 2006 judgment dated 7.5.2007. 2. According to the prosecution case, on 8.3.2002 in the evening at 7:30 p.m. complainant Bherulal was preparing for cooking food in his hut situated in village Patlavada. At that moment appellants asked Bherulal for giving food to them, Bherulal served them food, thereafter appellants and acquitted co-accused Mangilal asked Bherulal about selling of gram crop and also directed him to stand up, thereafter Bharatsingh caught his mouth and Manoharsingh brought a lathi. He started beating him. Appellants also taken away Rs. 1,000/- from his pocket. Bherula1 was shifted for treatment to Government Hospital, Dewas. The Assistant Surgeon sent the written report (Ex P-9) to police station that injured was brought to the hospital assaulted by thieyes as disclosed by his companions. On the basis of this report, police reached in the hospital and started enquiry in which it was found that appellants and acquitted co-accused Mangilal assaulted Bherulal and also looted cash of Rs. 1,000/-. Bherulal sustained fracture of right femur bone and end of humerus bone. Accused persons were nabbed and at their instance, Rs. 1,000/- was seized. On due investigation, charge sheet was filed against the appellants for commission of offence u/s S. 394/397, 351, 325 and 506-II of the IPC. 3. The accused persons refuted the charges. They have examined two witnesses in defence. The learned trial Court, while acquitting accused Mangilal, convicted the appellants as mentioned herein above. 4. Learned counsel for appellants have submitted that complainant and appellants have amicably settled their dispute and compromised the issue. The applications were filed for grant of permiss16n to compound the offence before this Court which were considered, on 6.2.2008 and after due verification, both the applications were dismissed because offences are not compoundable. Learned counsel has also submitted that offence u/s. 397 of the IPC is not made out against he appellants even if the complete prosecution case is accepted and in view of amicable settlement between the parties, for the offence u/s. 394 of the IPC, appellants may be sentenced to the period already undergone. 5. Learned counsel has also submitted that offence u/s. 397 of the IPC is not made out against he appellants even if the complete prosecution case is accepted and in view of amicable settlement between the parties, for the offence u/s. 394 of the IPC, appellants may be sentenced to the period already undergone. 5. On the other hand, learned counsel for State has supported the impugned judgment passed by the trial Court. 6. Having heard the learned counsel for parties and after perusing the entire record, this Court is of the view that offence u/s. 397 of the IPC is not made out against the appellants because according to the statement of complainant Bherulal all the three accused persons named Bharatsingh, Manoharsingh and acquitted co-accused Mangilal assaulted him and caused injuries and fracture of left arm. Out of these three accused persons, Mangilal has been acquitted by the trial Court. It appears that the learned trial Court has given benefit of doubt to accused Mangilal because nothing was seized from his possession whereas from appellant Bharalal Rs. 1,000/- cash was seized and from Manoharsingh lathi was seized. On due consideration, this Court hardly finds any distinction between the case of present appellants and acquitted co-accused Mangilal who was equally named by the complainant for taking active part in the incident of his beating and snatching of Rs. 1,000/-. Seizure of Rs. 1,000/- is of no avail because same were not identified by the complainant and there is no evidence adduced by the prosecution that the seized Rs. 1,000/were the same currency notes looted from the possession of the complainant. For lathi also there is no evidence on record that same lathi was used for beating the complainant. In view of the general statement for beating against all the three accused persons and there is no specific overt act attributed to any of the appellant for causing grievous injury, because of acquittal of co-accused Mangilal present appellants would also be entitled for getting benefit regarding causing of grievous injury. For the offence u/s 397 of the IPC, the accused cannot be convicted with the aid of section 34 of the IPC. See Phool Kumar v. Delhi Administration [ AIR 1975 SC 905 ] and individual act of each accused has to be established by the prosecution. For the offence u/s 397 of the IPC, the accused cannot be convicted with the aid of section 34 of the IPC. See Phool Kumar v. Delhi Administration [ AIR 1975 SC 905 ] and individual act of each accused has to be established by the prosecution. In the case at hand, there is no evidence on record to establish as to which of the appellant caused grievous injury to the complainant. Possibility of causing grievous injury by acquitted co-accused Mangilal is also not ruled out because the complainant as well as other witnesses have also stated that Mangilal also took equal part in beating of the complainant. In this view of the matter, offence u/s. 397 of the IPC against the appellants would not be made out and appellants would be liable only for commission of offence u/s. 394 of the IPC; voluntarily causing hurt while committing robbery. 7. Learned counsel for appellants have submitted on the question of sentence that appellants are the first offenders, appellants and complainant have settled their dispute amicably and are leading peaceful life in the village maintaining friendly relation. The appellants are labourers by occupation and have responsibility to maintain their family consisting wife, children and parents. During the course of trial, they were on bail and never misused the liberty granted by Court of law. After this incident occurred in the year 2002, now in these six years, there is no complaint whatsoever against the appellants regarding their involvement in any other criminal case, therefore, they may be sentenced to the period already undergone. 8. Having heard the learned counsel for parties and considering the arguments urged by the learned counsel for appellants as mentioned herein above, this Court is of the view that ends of justice would be served to sentence the appellants to the period already undergone (one year two months and 26 days) and fine of Rs. 4,000/- to each appellant in default of payment of fine they shall suffer additional RI for one year. Out of realisation of the fine amount, Rs. 4,000/- be paid as compensation to the complainant Bherulal. Rs. 1,000/- seized from the accused persons be also returned to the complainant because the appellants have not claimed this amount. The learned trial Court is directed to release the appellants forthwith upon their depositing fine amount and if not wanted in any other criminal case. 4,000/- be paid as compensation to the complainant Bherulal. Rs. 1,000/- seized from the accused persons be also returned to the complainant because the appellants have not claimed this amount. The learned trial Court is directed to release the appellants forthwith upon their depositing fine amount and if not wanted in any other criminal case. Officer is directed to send copy of this judgment along with the record to the trial Court. 9. The appeal is allowed in part in the terms indicated herein above.