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Madhya Pradesh High Court · body

2009 DIGILAW 304 (MP)

SARDAR SINGH v. STATE OF MADHYA PRADESH

2009-03-05

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) APPELLANTS have preferred this appeal challenging their conviction and order of sentence passed by Additional Sessions judge, Begumganj, District Raisen in S. T. No. 210/98, decided on 5. 2. 99. ( 2. ) APPELLANTS have been convicted under Section 324/34 of IPC and sentenced to rigorous imprisonment for one year with fine of Rs. 1000/- each, in default simple imprisonment for three months by the impugned judgment. Appellants Sardar Singh, Ram prasad and Prahlad are further convicted under Section 341 of IPC and sentenced to fine of Rs. 500/- each, in default simple imprisonment for two months. ( 3. ) ACCORDING to prosecution, on 17. 7. 98 about 7 oclock in the morning at village Dehgaon, when complainant Babulal (hereinafter referred to as complainant) was returning from Kirana shop of Rajesh Seth and crossed the house of the appellants, they intercepted him on the way. Appellant Sardar Singh was armed with katarna, while appellants Prahlad and Ram Prasad were armed with lathi at the time; they began abusing the complainant. When complainant Babulal resisted, appellant Ram Prasad exhorted appellant Sardar Singh to tear off his head by katarna. Thereupon appellant Sardar Singh gave a katarna blow on the head of the complainant and appellants Prahlad and Ram Prasad assaulted him with lathi. Appellant Garjraj Singh also exhorted the other appellants to assault the complainant. As a result of assault, complainant Babulal sustained injuries on his scalp and back. Upon hue and cry, village Choukidar Kallu and others reached there. According to prosecution, appellants had attacked and assaulted the complainant with intent to kill him due to enmity. The FIR of the incident was lodged by complainant Babulal, on the basis of which an offence was registered against the appellants and was investigated. Injured complainant was sent for medical examination. His blood stained baniyan was seized by the Police. katarna and lathi used in the commission of offence were also seized at the instance of appellants Sardar Singh, Prahlad and Ram prasad respectively. After due investigation, appellants were prosecuted under Section 307, 341, 294, 324, 323, 109, 34 of IPC and were put to trial. ( 4. ) APPELLANTS denied the various charges framed against them and pleaded false implication due to land dispute. ( 5. After due investigation, appellants were prosecuted under Section 307, 341, 294, 324, 323, 109, 34 of IPC and were put to trial. ( 4. ) APPELLANTS denied the various charges framed against them and pleaded false implication due to land dispute. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted appellant Gajraj Singh of the offence under Section 341, 294 of IPC; also acquitted appellants Sardar Singh, Ram Prasad and Prahlad singh of the charge under Section 294 of IPC, but found all the appellants guilty under Section 324/34 of IPC for causing hurt to complainant Babulal by sharp edged weapon in furtherance of their common intention and also found appellants Sardar Singh, Ram prasad and Prahlad guilty for the offence under Section 341 of IPC, convicted and sentenced them as aforesaid, by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellants submitted that the trial court gravely erred in relying upon the testimony of the interested witnesses and failed to consider the inconsistency between ocular and medical evidence. He further submitted that the trial court also did not consider that the name of appellant gajraj Singh was not mentioned in the FIR and he being father of the appellant was also roped in and falsely implicated. ( 7. ) LEARNED counsel for the State, on the other hand, supported the conviction of the appellants. ( 8. ) PERUSED the evidence on record. Complainant Babulal (P. W-2) deposed in his evidence that on the day of occurrence about 7 oclock in the morning when he was returning from the shop of Rajesh Seth and crossed appellants house, appellants sardar Singh, Prahlad and Ram Prasad interrupted his way and began hurling obscene abuses; when complainant objected, appellant Garjaj Singh exhorted the other appellants to kill him. Thereupon appellants Ram Prasad, Prahlad gave him lathi blows, while appellant Sardar gave him a katarna blow on his scalp causing injuries on his head. Injured complainant was then taken to Police station Sultanganj, Raisen, where he lodged the FIR (Ex. P-2) and was sent for medical examination. According to complainant (P. W-2) , he had old land dispute with the appellants. ( 9. Injured complainant was then taken to Police station Sultanganj, Raisen, where he lodged the FIR (Ex. P-2) and was sent for medical examination. According to complainant (P. W-2) , he had old land dispute with the appellants. ( 9. ) P. W-5 Durg Singh and P. W-6 Kallu also deposed that they had seen appellants Ram Prasad and Prahlad assaulting the complainant by lathi and appellant Sardar Singh wielding a katarna blow on the head of the complainant (P. W-2 ). P. W-4 Jagdish prasad also claims to have been informed by injured Babulal that he was assaulted by the appellants. According to aforesaid witnesses, appellant Gajraj Singh had also exhorted the other appellants to assault the complainant. Dr. R. K. Balaiya (P. W-1), who examined the complainant on 17. 7. 98, found an incised wound of 6 cm x 2 cm x bone deep in frontal region of the complainant and a contusion of 5 cm x 3 cm size on the right side of the hip joint. In the opinion of dr. R. K. Balaiya (P. W-1), injury no. 1 was caused by sharp edged weapon, whereas injury no. 2 was caused by hard and blunt object. ( 10. ) THE main submission of learned counsel for the appellants has been that appellant Gajraj Singh has been falsely implicated due to enmity and his name was also not mentioned in the FIR lodged by complainant Babulal. On perusal of the FIR (Ex. P-2), it is apparent that there is no allegation against appellant gajraj Singh, either of any assault, or exhortation in the FIR (Ex. P-2), though complainant (P. W-2) made a statement in his evidence that appellant Gajraj Singh exhorted the other appellants by saying " fuivk nks tks gksxk ns[k ysaxs". However, complainant Babulal (P. W-2) failed to assign any reason for this material omision of such allegations against appellant Gajraj Singh in the FIR (Ex. P-2) lodged by him. ( 11. ) ALTHOUGH other witnesses, namely, Durg Singh (P. W-5)and Kallu (P. W-6) have also tried to depose that appellant gajraj Singh had made exhortation for assaulting the complainant, but the words allegedly used in exhortation, as described by these two witnesses, are also not consistent and similar. They have made varying statements in this regard. ( 11. ) ALTHOUGH other witnesses, namely, Durg Singh (P. W-5)and Kallu (P. W-6) have also tried to depose that appellant gajraj Singh had made exhortation for assaulting the complainant, but the words allegedly used in exhortation, as described by these two witnesses, are also not consistent and similar. They have made varying statements in this regard. Appellant Gajraj Singh is the father of all the appellants, his name also does not find place in the fir lodged at the earliest point of time. There is inconsistency and variance in the statements of all the three eyewitnesses regarding the alleged exhortation made by the appellant Gajraj Singh. In view of these facts, particularly the complete omission of allegations against appellant Gajraj in the FIR (Ex. P-2), his involvement in the commission of offence becomes doubtful; at least the possibility of false implication of appellant Gajraj Singh is not ruled out. Appellant Gajraj Singh is, therefore, entitled to benefit of doubt and deserves to be acquitted. ( 12. ) HOWEVER, as regards the role assigned to other appellants, there is no inconsistency in the ocular evidence. It is clearly borne out from the testimony of P. W-2 Babulal coupled with the evidence of Durg Singh (P. W-5) and Kallu (P. W-6) that appellant Sardar Singh gave a katarna blow on the scalp of complainant Babulal, while other appellants gave lathi blows on him, which also stands essentially corroborated by medical evidence. Dr. R. K. Balaiya (P. W-1) found an incised wound caused by sharp edged weapon on the scalp of complainant Babulal (P. W-2) and a bruise on the right side of his hip joint. The mere fact that there was only one injury caused by hard and blunt object does not belie the bulk of evidence that both the other appellants ram Prasad and Prahlad gave lathi blows to the complainant. It is also reflected from the evidence on record that all the three appellants had come together being armed with lathi and farsa to assault the complainant, which indicates that they acted in furtherance of their common intention to assault the complainant. ( 13. ) IN view of aforesaid, the conviction of the three appellants, namely, Sardar Singh, Ram Prasad and Prahlad under section 324/34 of IPC does not suffer from any infirmity and needs no interference. ( 13. ) IN view of aforesaid, the conviction of the three appellants, namely, Sardar Singh, Ram Prasad and Prahlad under section 324/34 of IPC does not suffer from any infirmity and needs no interference. In view of the evidence of complainant Babulal (P. W-2), the conviction of the aforesaid three appellants under section 341 of IPC also does not call for any interference and deserves to be affirmed. imprisonment for 113 days, i. e. about four months, while the other two appellants, namely, Ram Prasad and Prahlad Singh have suffered imprisonment for fifty three days each and the incident of the case is as old as 17. 7. 98 and the last two appellants have themselves not used any sharp edged weapon, it was submitted that the impugned sentence of imprisonment imposed on the appellants under Section 324/34 of IPC be reduced to the period already undergone by them with some additional fine. ( 15. ) CONSIDERING the submissions as advanced and the facts and circumstances of the case, particularly the fact that appellants have already suffered imprisonment for considerable days and the incident of the case is very old, interest of justice would be subserved if the impugned sentence of imprisonment awarded to the appellants Sardar Singh, Ram Prasad and Prahlad Singh under section 324/34 of IPC is modified and reduced to the period already undergone by each of them with an additional fine of Rs. 2000/-each. The sentence of fine imposed on them under Section 341 of i. P. C. , however, needs no interference. ( 16. ) IN the wake of aforesaid discussion, the appeal is partly allowed. The conviction of appellant no. 4 Gajraj Singh and sentence passed on him under Section 324/34 of IPC are hereby set aside and he is acquitted of the charge. However, the conviction of the appellants Sardar Singh, Ram Prasad and Prahlad under Section 341, 324/34 of IPC are affirmed. The sentence of fine awarded to the three appellants under Section 341 of IPC is also affirmed, but the sentence of imprisonment in default of payment of fine awarded to them under Section 341 of IPC, being in excess of the maximum term of imprisonment prescribed, is set aside and reduced to simple imprisonment for seven days. The sentence of fine awarded to the three appellants under Section 341 of IPC is also affirmed, but the sentence of imprisonment in default of payment of fine awarded to them under Section 341 of IPC, being in excess of the maximum term of imprisonment prescribed, is set aside and reduced to simple imprisonment for seven days. The impugned sentence of imprisonment awarded to them under Section 324/34 of IPC is modified and reduced to the period already undergone by each of them with an additional fine of Rs. 2000/- (two thousand only)each. Appellants Sardar Singh, Ram Prasad and Prahlad Singh shall pay an additional fine of Rs. 2000/- (Two thousand only) each within three months from today, failing which they shall suffer simple imprisonment for three months. ( 17. ) APPEAL is accordingly disposed of.