Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1097 (MP)

Laljee and Eight Others v. State of M. P.

2009-09-07

SUSHMA SHRIVASTAVA

body2009
JUDGMENT : Sushma Shrivastava , J. - Appellantshave preferred this appeal challenging their conviction and order of sentencepassed by Additional Sessions Judge, Rewa in S.T.No.99/97, decided on 18.11.99. 2.Appellant No. 1 Laljee has been convicted underSections 148, 324, 323 read with Section 149 of IPC and sentenced to rigorousimprisonment for one year for the offences under Section S. 148, 324 of IndianPenal Code, 1860 respectively and to rigorous imprisonment for three monthswith fine of Rs.500/- under Sections 323/149 of IPC, while the other appellantsNo. 2 to 9 have been convicted under Sections 147, 324 read with Section 149and 323/149 of IPC and sentenced to rigorous imprisonment for three months, oneyear and three months each with fine of Rs.500/- for the respective offences bythe impugned judgment. All the sentences were directed to run concurrently. 3.According to prosecution, on 30.10.96 about 11 o'clock in the morning atvillage Dagardua , when complainant Amritlal was harvesting paddy crop in his land bearing Khasra Nos. 91 and 92 along with his labours ,appellants nine in number armed with weapons came there and raised an objectionto cutting of the crop. Complainant Amritlal thentold them that he is in possession of the land and case was pending in the HighCourt, one who wins will get the land, then appellants began assaulting him bymeans of lathi , spade, sickle and katta causing injuries near his right eye. They also fired katta on his labour Jagannath causing firearm injuries. Ramesh , Siyadulari ,and Satyaprakash also sustained injuries in theincident. Upon hue and cry Vishwanath Singh, Shivendra Tiwari and others cameto their rescue. Out of fear complainant Amritlal didnot go to Police Station Garh for lodging the report,however, he reported the matter at Police Station Civil Lines, which wasrecorded in the Rojnamcha . Injured Jagannath , Siyadulari , Satyaprakash and Amirtlal weresent for medical examination. Upon receipt of their medical reports and theX-ray report of injured Jagannath , offence wasregistered against the appellants at Police Station Garh and was investigated. Spot map was drawn. After due investigation, appellantswere prosecuted under Sections 147,148,149,323,307 of IPC and were put totrial. 4.Appellants denied the various charges framed against them under Sections147,148, 307/149 and 323/149 of IPC and pleaded false implication due to enmityand land dispute. Spot map was drawn. After due investigation, appellantswere prosecuted under Sections 147,148,149,323,307 of IPC and were put totrial. 4.Appellants denied the various charges framed against them under Sections147,148, 307/149 and 323/149 of IPC and pleaded false implication due to enmityand land dispute. 5.According to appellants, there was a civil litigation between appellant No. 1 Laljee and complainant party, which was decided in favour of appellant No. 1 Laljee on 18.10.96; appellants Premlal and Dadulal , therefore, had gone to plough the field, but theywere prevented by complainant party armed with weapons; the other appellantswere not at all present on the place of occurrence. Appellants had alsoexamined two witnesses in their defence . 6.Learned Additional Sessions Judge, after trial and upon appreciation of theevidence adduced in the case, came to hold that offence under Section 307 ofIPC was not proved against the appellants, but found them guilty for committingriot and causing hurt to Jagannath by firearm andsimple hurt to Amritlal , Satyaprakash , Siyadulari and Ramesh byhard and blunt object, convicted and sentenced them as aforesaid, by theimpugned judgment, which has been challenged in this appeal. 7.Arguments of both the sides were heard. Record of the lower Court perused. 8.The conviction of the appellants is founded mainly on the testimony of fiveeyewitnesses, namely, Amritlal (P. W-1), Satyaprakash (P. W-2), Siyadulari (P. W-3), Jagannath (P. W-5) and Ramesh Prasad (P. W-6) coupled with medical evidence and other evidence. Learnedcounsel for the appellants submitted that the Trial Court erroneously convictedthe appellants on the basis of inconsistent and unreliable testimony of thepartisan witnesses and failed to appreciate the defence evidence properly. Learned counsel for the appellants also submitted that theTrial Court failed to consider the plea of alibi taken by certain appellantsand overlooked the fact that there was a judgment in favour of appellant No. 1 Laljee and appellants had right toplough the field and protect their possession, thus right of private defence was available to them. 9.Learned counsel for the State, on the other hand, justified and supported theconviction of the appellants. 10.A perusal of the evidence on record reveals that P.W-1 Amritlal ,P.W-2 Satyaprakash , P.W-3 Siyadulari ,P.W-5 Jagannath and P. W-6 Ramesh Prasad are the injured eyewitnesses, their presence on the place of occurrence,therefore, can hardly be doubted. 9.Learned counsel for the State, on the other hand, justified and supported theconviction of the appellants. 10.A perusal of the evidence on record reveals that P.W-1 Amritlal ,P.W-2 Satyaprakash , P.W-3 Siyadulari ,P.W-5 Jagannath and P. W-6 Ramesh Prasad are the injured eyewitnesses, their presence on the place of occurrence,therefore, can hardly be doubted. The First Information Report was also lodgedby P.W-1 Amritlal on the same day at Police StationCivil Lines, which was recorded in Rojnamcha by HeadConstable Babulal Dwivedi (P.W-8) on 30.10.96 at 4.25 Pp.m ., on the basis of which an offence was registered at PoliceStation Garh by S.H.O. Bhupendra Singh (P.W-10). 11.P.W-1 Amritlal deposed in his evidence that on30.10.96 about 11 o'clock in the morning, when he was harvesting crop in hissouthern field along with his labour , all theappellants, namely, Laljee , Dadulal , Premlal , Baidnath , Akhand Pratap , Virendra Prasad, Chatur @ Chaturbhuj , Badku and Raja armedwith lathi , sickle and katta came there on a tractor; appellant Laljee asked himas to why he was cutting the crop, he then replied that he was in possessionand had sown the crop, then appellant Laljee told himthat he had won the case, but complainant asserted that he had also filed anappeal, therefore, he would cut the crop; thereafter appellants Akhand Pratap & Virendra Prasad grappled with him, when his son Satyaprakash and labour Jagannath etc. came to his rescue, appellant Laljee fired katta injuring theleft buttock of Jagannath (P. W-5). According to Amritlal (P. W-1), appellants also assaulted his son Satyaprakash (P.W-2), Ramesh (P.W-6), who had rushed to the place of occurrence, as well as to Siyadulari (P. W-3). 12.P.W-2 Satyaprakash , P.W-3 Siyadulari ,P. W-5 Jagannath and P. W-6 Ramesh Prasad also corroborated the aforesaid incident and they specifically deposedabout the presence of all the nine appellants on the place of occurrence andtheir involvement in the assault made on the injured persons; they alsospecifically deposed about firing katta by appellant Laljee . According to Satyaprakash (P. W-2), he was assaulted by appellants Premlal & Chaturbhuj and when his aunt Siyadulari came there, she was also assaulted by appellant Dadulal causing injuries on back side of her left ear, when Ramesh came there, he wasalso assaulted by appellants Raja and Chaturbhuj . Healso deposed that appellant Laljee had fired katta causing injuries to Jagannath (P. W-5). Healso deposed that appellant Laljee had fired katta causing injuries to Jagannath (P. W-5). 13.P.W-3 Siyadulari also deposed that when she hadreached the place of occurrence in southern field, she had seen the appellantsusing force and appellant Laljee had fired katta According to P.W-3 Siyadulari ,appellant Dadulal had caused injuries on her leftear. 14.P. W-5 Jagannath also deposed that on 30.10.96 about 10 o'clock , when he was harvesting southernfield of complainant Amritlal , appellants armed with lathi , katta and sickle camethere, began abusing and assaulting and appellant Laljee had fired a katta causing injuries on his leftbuttock. According to P. W-6 Ramesh Prasad, when hesaw the appellants abusing and assaulting Amritlal (P. W-1), he rushed to the place of occurrence along with Siyadulari (P.W-3) and Satyaprakash (P. W-2) and witnessed thatappellant Laljee had fired katta and when he tried to help his father Jagannath , hewas also assaulted by appellants Baidnath , Badku and Raja. 15.It is also evident from the testimony of Dr. A.A. Siddiqui (P.W-7) that on 30.10.96 on medical examination of Jagannath (P. W-5) he had found a punctured wound of ½ x ½ cm on the left side of hisbuttock in the upper part caused by firearm. This injury was, however, said tobe simple. Dr. Atul Singh (P.W-9), upon X-rayexamination of left buttock of Jagannath , had alsoseen a radio opaque well defined round shadow of metallic density over his left ilium suggestive of foreign body like pellet. 16.It is also borne out from the evidence of Dr. A. A. Siddiqui (P.W-7) that on medical examination of Siyadulari alacerated wound of 2 x ½ x ½ cm was found over occipital region of her scalp atright side, which was also simple in nature and a lacerated wound of 1x1 cmabove right eyebrow on the right side with clotted blood was found on theperson of Amritlal (P. W-1) and there was also anabrasion of 1 x 1 cm over his face on right side with clotted blood. As per evidence of Dr. A.A. Siddiqui (P. W-7), certain simple injuries on theperson of Satyaprakash (P. W-2) and simple injurieson the person of Ramesh Prasad (P. W-6) were alsodetected on their medical examination as per their MLC reports Ex.P-4 andEx.P-5. The MLC reports of Jagannath (P.W-5), Siyadulari (P.W-3) and Amritlal (P.W-1) (Ex.P-2, Ex.P-3 and Ex.P-6) are also placed on record. A.A. Siddiqui (P. W-7), certain simple injuries on theperson of Satyaprakash (P. W-2) and simple injurieson the person of Ramesh Prasad (P. W-6) were alsodetected on their medical examination as per their MLC reports Ex.P-4 andEx.P-5. The MLC reports of Jagannath (P.W-5), Siyadulari (P.W-3) and Amritlal (P.W-1) (Ex.P-2, Ex.P-3 and Ex.P-6) are also placed on record. There are nocogent reasons to discard the aforesaid medical evidence. 17. In view of thevarious injuries found on the person of complainant Amritllal (P. W-1), Satyaprakash (P.W-2), Siyadulari (P.W-3), Jagannath (P.W-5) and Ramesh (P.W-6), their presence on the place of occurrence, as already said, cannot bedoubted. Although the aforesaid witnesses were cross-examined in extenso and also confronted with their respective policestatements as to the omission of certain parts of their statement, which thoughsuggestive of some exaggerations, is not such so as to cast any doubt on theirpresence on the place of occurrence. Even otherwise, it is not much significantif the aforesaid five witnesses were already cutting the crop in the field andremained present since beginning or they reached there upon hue and cry. Thefact remains, as it transpires from the evidence, that they reached the placeof occurrence sooner or later and became subject of assault or force at thehands of the appellants, whose presence is categorically deposed by each ofthem. In fact, it is clearly evident from the testimony of aforesaid injuredeyewitnesses that all the nine appellants came together to the place ofoccurrence, where complainant Amritlal was harvestingthe crop and some of them used force and assaulted them causing variousinjuries on their persons. It is also clearly evident from their testimony thatappellant Laljee had fired a katta causing firearm injury on the left buttock of Jagannath (P. W-5). This injury, as described by Dr. A.A. Siddiqui (P.W-7), does not appear, as suggested, to be self inflicted. 18.Learned counsel for the appellants submitted that there is a contradiction andinconsistency in the number of fires made by appellant Laljee in the testimony of P. W-1 Amritlal and P. W-5 Jagannath , but such discrepancy is not unnatural in thedepositions recorded after lapse of time and does not render their wholetestimony as unreliable, particularly when a firearm injury was found by Dr. A.A. Siddiqui (P.W-7) on the left buttock of P.W-5 Jagannath and radio opaque shadow was also seen in hisX-ray examination by Dr. Atul Singh (P.W-9). A.A. Siddiqui (P.W-7) on the left buttock of P.W-5 Jagannath and radio opaque shadow was also seen in hisX-ray examination by Dr. Atul Singh (P.W-9). 19.Although appellant No. 1 Laljee examined BranchManager Heeralal (D.W-2) of Co-operative Bank, Garh in his defence to show withthe help of attendance register that on the day of occurrence he was present onduty in the Bank, but D.W-2 Heeralal clearly admittedthat he did not regularly check the signatures on the attendance register andthere was no such checking-note on the attendance register after 12.10.96 andevidently appellant Laljee had not signed theattendance register before him. Thus, his evidence does not rebut the presenceof the appellant Laljee on the place of occurrence,which was deposed to and established by the evidence of number of prosecutionwitnesses. Needless to emphasise that burden to provethe plea of alibi lies on the accused persons. The plea of alibi taken onbehalf of appellant Laljee and certain other appellantshas not been duly established by the evidence on record. 20.Learned counsel for the appellants placing reliance on the testimony of anotherwitness examined in defence , namely, Shivendra Kumar Tripathi (D.W-1), submitted that the complainant party was the aggressor. However, theevidence of D. W-1 Shivendra Kumar Tripathi does not inspire confidence. Had it been true, asdeposed by him, that complainant party being armed with lathi ,sickle and katta were using the same and preventingappellants Dadulal and Premlal from ploughing the field, complainant party itselfwould not have sustained injuries; instead some of the appellants would havesustained injuries in the incident, but there is no such evidence on recordthat any of the appellants sustained injuries or any report was lodged by themagainst complainant party. Thus the evidence of D. W-1 Shivendra Kumar Tripathi is not found to be reliable. 21.As regards the exercise of right of private defence of property, learned counsel for the appellants emphatically urged that therewas a decision in favour of appellant Laljee against complainant party and there was no stay fromthe Appellate Court, appellants had right to plough the land, but admittedly,as documents filed by defence also indicate, thedecision rendered in favour of appellant Laljee was subject to appeal and even the stay was declinedby this Court much after the date of occurrence. Moreover, there was nosubstantive evidence on record to indicate that the crop, which complainantparty was trying to cut, was sown by appellants so as to give rise to exerciseof right of private defence of property on the partof appellants. Thus, the plea of right of private defence of person or property was not established from the evidence on record and itwas rightly rejected by the Trial Court. 22.The mere fact, as submitted that by learned counsel for the appellants, thatthe matter was reported by Amritlal (P. W-l) atPolice Station Civil Lines Rewa , instead of PoliceStation Garh , in view of the explanation given by himin para 18 of his deposition, which appears to bequite natural and acceptable, does not create any doubt on the prosecutioncase. 23.In fact, upon scanning the entire evidence on record, the finding of guiltrecorded by the Trial Court against appellant No. 1 Laljee under Sections 148, 324, 323/149 of IPC and against other appellants underSections 147, 324/149 and 323/149 of IPC does not suffer from any infirmity soas to warrant any interference in appeal. 23.As regards the sentence, learned counsel for the appellants submitted thatappellant No. 1 Laljee was a public servant andappellant No.4 was more than 70 years of age, the occurrence also took placeabout thirteen years back and the offences for which the appellants were foundguilty are also optionally punishable with fine only, they should not be sentto jail after elapse of long passage of time; rather they should have beendealt with under the provisions of Section 360 of the Cr.P.C .and the benefit of probation should have been extended to them. Learned counselfor the appellants also cited the decisions reported in 1993 Cr.L.J 119 (M.P.) ( Prakash vs.State of Madhya Pradesh ) &AIR 1994 Supreme Court page 1064 ( Ayub and Others vs.State of U.P. ) in this behalf. 24.Now in a case where as many as five persons were injured and Katta was also used, none of the appellants deserved thebenefit of probation. However, considering all the facts and circumstances ofthe case, including the simple nature of injuries caused to all the fiveinjured persons and the fact that about thirteen years have elapsed after theoccurrence, in my opinion, interest of justice would be sub served if meresentence of fine is imposed on the appellants for each of the offences in lieuof the impugned sentence of imprisonment. 25.Accordingly, the appeal is partly allowed. The conviction ofthe nine appellants, as recorded by the Trial Court, are upheld, butvarious sentences of imprisonment awarded to them are hereby set aside.However, appellant No. 1 Laljee shall pay an amountof fine of Rs . 1,000/- (One thousand only) for theoffence under Section 148 of IPC, in default simple imprisonment for one month,an amount of Rs . 1,000/- (One thousand only) for theoffence under Section 324 of IPC, in default simple imprisonment for one month,and fine of Rs . 1,000/- (One thousand only) for theoffence under Section 323/149 of IPC, in default simple imprisonment for onemonth. Similarly, appellants No.2 to 9 shall pay an amount of Rs . 1,000/- (One thousand only) each for the offence underSection 147 of IPC, in default simple imprisonment for one month, fine of Rs . 1,000/- (One thousand only) each in default simpleimprisonment for one month, for the respective offences under Sections 324/149and 323/149 of IPC. Thus, the total amount of fine Rs.3 ,000 /-(Three thousand only) shall be paid by each of the appellants, to be depositedwithin three months from today. The amount of fine of Rs.500/- (Five hundredonly) as imposed by the Trial Court on the appellants under Section 323/149 ofIPC, if deposited, shall be deducted or adjusted in the amount of fine imposedon the appellants under Section 323/149 of IPC. Appeal is accordingly disposedof.