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Madhya Pradesh High Court · body

2009 DIGILAW 1037 (MP)

Bapulal v. State of M. P.

2009-08-26

S.S.DWIVEDI

body2009
JUDGMENT 1. Appellants have preferred this appeal under Section 374 of Cr.P.C aggrieved by the judgment of conviction and sentence dated 31.10.04 passed by learned Additional Sessions Judge, Chachoda, District Guna in S.T.No.72/99,whereby all the three appellants/accused have been found guilty for the offences punishable under Section 326 read with Section 34 of IPC and sentenced each of the appellants for 3 years R.I. with fine of Rs.5,000/- and in default of payment of fine further ordered to suffer imprisonment of one year. 2. Brief facts of the case are that on 12.4.1997 at about 7 a.m. at village Penchi, the complainant-Rajendra Jain went to his field where all the appellants/accused assembled and started beating the complainant-Rajendra Jain by means of LOHANGI and FARSA, due to which, the complainant sustained grievous injuries on the leg and on the head. The matter has been reported to the Police Station, Chachoda, District Guna on which basis, the police has registered a case for commission of offence punishable under Section 325 and 506-B of IPC and sent the injured/complainant for medical examination. On medical examination, injuries on the leg were found to be grievous in nature. During investigation, statements of witnesses have been recorded, spot map has been prepared, accused persons have been arrested and the respective weapons used by them have been seized. After due investigation charge-sheet has been filed. Learned Magistrate has taken cognizance under Section 307 of IPC and committed the case for trial. 3. Accused/appellants abjured their guilt and their defence was of false implication. 4. Learned trial Court after due appreciation of entire evidence on record by the impugned judgment acquitted the appellants from the offence punishable under Section 307/34 of IPC but held them guilty for offence punishable under Section 326/34 of IPC and sentenced each of them as stated hereinabove. Aggrieved by which, the appellants have preferred this appeal. 5. Having heard Shri Sameer Kumar Shrivastava, learned counsel for the appellants, Shri M. Bhardwaj, learned Public Prosecutor for the respondent! State and perused the record. 6. Aggrieved by which, the appellants have preferred this appeal. 5. Having heard Shri Sameer Kumar Shrivastava, learned counsel for the appellants, Shri M. Bhardwaj, learned Public Prosecutor for the respondent! State and perused the record. 6. It is submitted on behalf of the counsel for the appellants that the injuries sustained to the complainant on the head is shown to be incised injury caused by some sharp edged weapon but on X-rays examination no bony injury was found on which basis it can be inferred that any .of the accused has caused grievous injuries by means of sharp edged weapon. In view of that, learned trial Court has wrongly, held the appellants guilty for commission of the offence punishable under Section 326 of IPC. Other injuries which have been found to be grievous in nature are alleged to be caused by hard and blunt objects for which appellants can be held to be guilty for commission of offences under Section 325 of IPC and not under Section 326 of IPC as held by the trial Court. In such circumstances, the first prayer is for acquittal of appellants from the charge under Section 326 of IPC. Second prayer is that for the offence under Section 325 appellants are facing trial since 1997 and near about 12 years had already elapsed. No previous criminal conduct of the appellants has been proved by the prosecution and there is a dispute between the parties with regard to land concerned, in such circumstance, prays for just reduction of the jail sentence. 7. In reply, learned Public Prosecutor for the respondent/State supported the impugned judgment and prayed for dismissal of the appeal. 8. To bring home the charge as leveled against the appellants and as per the contention of learned counsel for the appellants, it is apparent that as per medical report and the statements of medica1 witnesses Dr. S.S. Gupta (PW3) an incised wound has been found on left parietal region of the complainant which can be caused by some sharp edged weapon for which injured/ complainant has also been referred for x-rays examination. X-rays report has been proved by Dr. R.K. Jain (PW-4) and on X-rays examination of the head of complainant no bony injury has been detected by the said Dr. X-rays report has been proved by Dr. R.K. Jain (PW-4) and on X-rays examination of the head of complainant no bony injury has been detected by the said Dr. R.K. Jain and under these circumstances, prosecution has failed to prove the fact-edged the complainant sustained any injury on the head by means of sharp edged weapon which is not found to be grievous in nature for which accused persons can be held guilty for the offence punishable under Section 326 of IPC. 9. As per statement of Dr. S.S. Gupta (PW-3), other injuries sustained to the complainant on the right leg, left elbow joint, left leg and on the right leg are found to be caused by some hard and blunt object like LATHI. Out of which the injury on right leg, complainant has been referred for X-rays examination. Dr. R.K. Jain (PW-4) proved that on X-rays examination of the complainant, found dislocation of the left elbow and also found fracture, of tibia fibula bone of the right leg. Thus, the injuries sustained to the complainant on the right leg and on the left elbow joint are found to b grievous in nature. These injuries are found to be caused by hard and blunt object for which appellants can be held guilty for the offence punishable under Section 325 of IPC and not under Section 326 of IPC as held by the trial Court. 10. Thus, on the basis of aforesaid medical evidence on record, the contention of learned counsel is found to be substantial force that the prosecution has failed to prove charges against the appellants for the offence punishable under Section 326 of IPC. On the basis of medical evidence on record, the appellants/accused can be held guilty for the offence punishable under Section 325 of IPC only. 11. With regard to involvement of the appellants is concerned the complainant (PW-6) Rajendra Jain clearly stated that all the three appellants have caused injuries while the complainant went to his field for which some litigation is pending between the accused party and him. He has lodged an FIR, immediately after incident and was sent for medical examination. The statement of complainant has got support by the medical evidence and by the statement of Dr. S.S. Gupta (PW-3) who found near about seven injuries on various parts of the body for which he proved MLC report (Ex-P/2). Dr. He has lodged an FIR, immediately after incident and was sent for medical examination. The statement of complainant has got support by the medical evidence and by the statement of Dr. S.S. Gupta (PW-3) who found near about seven injuries on various parts of the body for which he proved MLC report (Ex-P/2). Dr. R.K. Jain (PW-4) has found bony injury on the right leg and on the left elbow joint for which he proved X-rays report (Ex-P/3) and plat Ex-P/4 and Ex-P/5. 12. Statement of complainant has got further support by the statement of Arun Jain (PW- 7), Ramsingh Kotwar (PW-8) and also promptly lodged FIR (Ex-P/7). 13. Thus, on the over all appreciation of the entire evidence on record, I am of the considered view that though the prosecution has failed to prove the offence punishable under Section 326 of IPC against the appellants but. proved the offence punishable under Section 325 read with Section 34 of IPC against the appellants. 14. With regard to sentence is concerned, admittedly, incident was occurred in the year 1997, 12 years had already elapsed. The incident took place due to some land dispute pending between the parties. No previous criminal conduct of the appellants has been proved by the prosecution. In such circumstances the sentence can be reduced to the undergone period with some enhancement of fine for offence punishable under Section 325 of IPC. 15. Resultantly, the appeal preferred by the appellants/accused is allowed in part. Conviction of the appellants under Section 326 read with Section 34 of IPC are set aside instead thereof they are held guilty for offence under Section 325 read with Section 34 of IPC and each of them sentenced to till rising of the Court (which has already been served by the appellants after their arrest by the police and production before the trial Court) with fine of Rs.10,000/- on each of appellants and in default of payment of fine, they will suffer imprisonment for six months. 16. Appellants have already deposited the fine amount of Rs.5,000/- each in the trial Court as per the impugned judgment. 16. Appellants have already deposited the fine amount of Rs.5,000/- each in the trial Court as per the impugned judgment. In that case, the remaining fine amount of Rs.5,000/- by each of the appellants be deposited in the trial Court within three months from the date of this judgment, failing which the trial Court may sent them to jail for serving jail sentence awarded to them in default of payment of fine. 17. Appellants are on bail, their bail bonds is still discharged after deposit of enhanced fine amount by each of the appellants. 18. The total fine amount of Rs.30,000/- be paid to the complainant, namely, Rajendra Jain as compensation for the injuries sustained by him in this incident. 19. With these modifications, the appeal stands disposed of.