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Madhya Pradesh High Court · body

2009 DIGILAW 473 (MP)

Ashok v. State of M. P.

2009-04-13

K.S.CHAUHAN

body2009
JUDGMENT 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred being aggrieved by the judgment, finding and sentence dated 13.12.1993 passed by the Third Additional Sessions Judge, Chhindwara in ST No. 136/1992, whereby the appellants have been convicted under section 307 read with section 34 of IPC and sentenced to RI for five years with fine of Rs.1,000/- each, in default of payment of fine to undergo SI for three months. 2. The prosecution case in short is that on 8.9.1991 at about 8:30 p.m. when complainant Suresh was going to his house the appellants restrained him at Panduma and caused his marpeet. Appellant Ashok inflicted axe blow whereas other appellants inflicted lathi blows, on account of which he sustained injuries and fell down. Thereafter he was carried to the police station where he lodged the report Ex.P-1. Rajaram (PW2) and Ashfaque (PW3) witnessed the incident. He was sent for medical examination and was examined by Dr. Vishveshwar (PW8), who found injuries described in the medical report Ex.P-13. The sando Baniyan of the injured was seized. Spot map was prepared. Statements of the witnesses were recorded under section 161 of CrPC. On disclosure statements of the appellants, weapons of offence were recovered from them. The seized articles axe and baniyan were sent for chemical examination to FSL, Sagar wherefrom report was received. As per the report, blood was· found on these articles. After completing the investigation, the charge-sheet was filed against the appellants in the Court of Additional Chief Judicial Magistrate, Panduma, who committed this case to the Sessions Court for trial. 3. Appellant Ashok was charged under section 307 of IPC whereas other appellants were charged under sections 307/34 of IPC. They denied the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as may as 9 witnesses whereas appellants did not examine any witness. After appreciating the evidence the trial Court found them guilty under section 307 read with section 34 of IPC. Being aggrieved by the judgment, finding and sentence the instant criminal appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Prosecution examined as may as 9 witnesses whereas appellants did not examine any witness. After appreciating the evidence the trial Court found them guilty under section 307 read with section 34 of IPC. Being aggrieved by the judgment, finding and sentence the instant criminal appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Shri J.S. Shah, learned counsel for the appellants submitted that trial Court has not appreciated the evidence in proper perspective According to doctor, the injury was grievous in nature and not dangerous to life, hence the finding of guilt under section 307/34 is erroneous which deserves to be set aside. The appellants are entitled for acquittal. 5. Learned counsel for the appellants further submitted that the parties have entered into compromise and filed compromise petition before this Court, but the same has been dismissed because of offence being not compoundable. Therefore, this fact be taken into consideration while awarding the sentence. Learned counsel for the appellants alternative submitted that appellant Ashok has already suffered jail sentence of two years, Dinesh and Shyam Rao of 9 months and Ram Rai of 10 months respectively, therefore they be released on the period already undergone. 6. On the contrary, Shri T.K. Modh, learned counsel appearing on behalf of respondent-State has supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the case beyond reasonable doubt against the appellants and they have been rightly convicted and sentenced by the trial Court, therefore it does not call for any interference. 7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under section 307 read with section 34 of IPC. 8. Suresh (PW1) is the star witness of this case. He has stated that on account or previous enmity, accused Ashok inflicted axe blow and others inflicted chain and lathis blows, on account of which he sustained injuries on his neck, head and entire body. He fell down and became unconscious. He was carried by Ashfaque and Rajaram to Police Statin Pandurna, where he lodged report Ex.P-1. Thereafter, he was carried to hospital where he remained hospitalized for a week. 9. He fell down and became unconscious. He was carried by Ashfaque and Rajaram to Police Statin Pandurna, where he lodged report Ex.P-1. Thereafter, he was carried to hospital where he remained hospitalized for a week. 9. This witness has been subjected to lengthy and piercing cross-examination, wherein an attempt has been made to bring contradictions and omissions from police report Ex.P-1 regarding place of incident but such contradiction is not material, because the distance between the place Majdoor Kendra (Labour Centre) and temple is hardly of 100 paces. Likewise the contradiction has been brought with regard to the weapon which Dinesh was having at that time. 10. Since it is evident that all the appellants came together and wrongfully restrained the complainant, therefore they were acting in furtherance of common intention of all, hence it will not make any difference as to what weapon was being carried by Dinesh. This witness has denied the suggestive question that some other persons excluding these appellants have committed his marpeet. He has specifically stated that these appellants caused marpeet by axe, chain and lathis. He is an injured witness. His evidence is quite natural, probable, and inspires confidence. There is no reason to falsely implicate the appellants. 11. Rajaram (PW2) and Ashfaque (PW3) are the eye-witnesses of the incident. They have also given the evidence that appellant Ashok inflicted axe blow to complainant Suresh and other appellants inflicted lathi blows, on account of which he sustained injuries Thereafter complainant Suresh was carried to Police Station Pandurna, where he lodged the report. These witnesses have also been subjected to lengthy and piercing cross-examination and an attempt is made to bring some contradictions and omissions from their earlier statement, but they are not so material as to affect their credibility. Nothing has been brought on record to disbelieve their testimony. Thus, these witnesses also supported the version of complainant Suresh (PW1). 12. The report Ex.P-1 was promptly lodged, which was recorded by RKS Chauhan (PW9). The injured person was immediately sent for medical examination and was examined by Dr. Vishveswhar (PW8), who found the following injuries on the person of injured : (i) Incised wound 6 cm x 1 cm in size elliptical in shape and bone deep situated over the 7th cervical vertebra margins irregular, corresponding vessels and muscles cut Severe bleeding coming from the injury through and through. Vishveswhar (PW8), who found the following injuries on the person of injured : (i) Incised wound 6 cm x 1 cm in size elliptical in shape and bone deep situated over the 7th cervical vertebra margins irregular, corresponding vessels and muscles cut Severe bleeding coming from the injury through and through. (ii) Lacerated wound 4 cm x 1/2 cm x muscle deep situated over the left fronto parietal region of the skull and margins are irregular. Clotted bloodstains present. (iii) Lacerated wound 1 cm x 1/2 cm on the right frontal region of the skull on the hair line. Clotted bloodstains present. (iv) Multiple linear abrasions on the both shoulder and elbow jointly, tenderness present. According to his opinion, the injury No.1 was caused by hard and sharp object, whereas other injuries were caused by hard and blunt object. Injury No.1 was grievous while others were simple in nature. The injured was admitted in the hospital. The bed head ticket is Ex.P-16. Thus, it is medically corroborated that complainant Suresh was having such injuries at that time. 13. R.K.S. Chauhan (PW9) has recorded the disclosure statements of appellants (Ex.P-2 to Ex.P-5) and seized the weapons of offence vide seizure memo Ex.P-6 to P-9. Accordingly, axe was seized from appellant Ashok and lathis were seized from other appellants. The independent witnesses of these documents Rambhau (PW4) and Babu (PW6) have not supported such fact. However, there is nothing to disbelieve the evidence of R.K.S. Chauhan (PW9). 14. It reveals that the concerned police asked query from Dr. Vishveshwar (PW8) whether the injury to complainant may be caused by axe for which he gave the positive reply. Query report is Ex.P-15. Thus, it is established by this evidence that the injury to Suresh was caused by the seized axe. 15. The baniyan was seized from complainant Suresh. This baniyan and axe were sent for chemical examination to FSL, Sagar, wherefrom report received. Accordingly, blood was found on these articles. Thus, FSL report also supports the prosecution case. 16. There is no medical opinion that injuries were dangerous to life. Complainant Suresh has not given any evidence that appellant Ashok gave repeated blows and therefore intention to kill cannot be established. Thus, offence under section 307 of IPC is not made out. Instead of it, offence under section 326 read with section 34 of IPC is made out. 16. There is no medical opinion that injuries were dangerous to life. Complainant Suresh has not given any evidence that appellant Ashok gave repeated blows and therefore intention to kill cannot be established. Thus, offence under section 307 of IPC is not made out. Instead of it, offence under section 326 read with section 34 of IPC is made out. Thus, the appellants are held guilty under section 326/34 of IPC. 17. It is evident that complainant and appellants have filed compromise petition before this Court, but the same has been rejected, because the offence was not compoundable. Learned counsel for appellant submitted that lenient view be taken in imposing the sentence. He has placed reliance on the decision rendered in the case of Jetha Ram and others v. State of Rajasthan [ (2006)9 SCC 255 ]. 18. Keeping in view that parties entered into compromise though not accepted, coupled with the fact that appellant Ashok has already suffered jail sentence of near about two years, other appellants 9-10 months, the interest would be sub-served if they are released on the period already undergone. 19. Consequently, the appeal is partly allowed while altering the conviction from section 307/34 to that of under section 326/34 IPC. The sentence is reduced to the period already undergone. They are on bail. Their bail bonds are discharged.