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Madhya Pradesh High Court · body

2009 DIGILAW 668 (MP)

Bhura v. State of M. P.

2009-05-15

K.S.CHAUHAN

body2009
JUDGMENT 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred by the appellants being aggrieved by the impugned judgment, finding and sentence dated 7.6.1999 passed by the Additional Sessions Judge, Harda in ST No.181/1998, whereby the appellants have been convicted under sections 147, 148, 324/149, 323/ 149 of IPC and sentenced to RI for six months with fine of Rs.500/- on each count. 2. The prosecution case in short is that on 3.5.1998 at about 9:40 a.m. Ganesh resident of village Charva lodged report at Police Station Chhipavad to the effect that in the morning at about 6-7 a.m. Bhura attempted to molest his wife Phoolwati Bai for which he objected. Bhura threatened to kidnap her and called his brothers from the village. Sarvan, Suresh, Radhiya and Khajju came there armed with weapons. Sarvan was having axe and others were having lathis. At that time Mahesh, younger brother of complainant Ganesh also came there. Bhura snatched axe from his brother Sarvan and inflicted on the forehead of Mahesh, on account of which he fell down and became unconscious. Suresh inflicted lathi blow to Ganesh. All the appellants-accused caused marpeet to them. 3. On this information, Crime No.50/98 under sections 147, 148, 149 and 307 of IPC was registered against the appellants. Injured Ganesh and Mahesh were sent for medical examination to CHC, Khirkiya. They were examined by Dr. S.B. Jain (PW5), who found the injuries on the person of injured. He had also taken the X-ray of Mahesh. Spot map EX.P-l was prepared. The statements of witnesses were recorded under section 161, CrPC. After completing the investigation, the charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Harda who committed the case to the Sessions Court for trial. 4. The accused persons were charged under sections 147, 148,307/ 149,323/149 of IPC. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as five witnesses and accused appellants examined one witness in their defence. After appreciating the evidence, trial Court found the appellants guilty under sections 147, 148,324/149, 323/149 of IPC and sentenced thereto as stated hereinabove in para 1 of this judgment. Prosecution examined as many as five witnesses and accused appellants examined one witness in their defence. After appreciating the evidence, trial Court found the appellants guilty under sections 147, 148,324/149, 323/149 of IPC and sentenced thereto as stated hereinabove in para 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellants on the grounds mentioned in the memo of appeal. 5. Shri A.N. Choubey, learned counsel for the appellants submitted that trial Court has not appreciated the evidence in proper perspective, because there are material contradictions and omissions in the statements of witnesses. The prosecution has not examined the material witness Phoolwati Bai wife of Ganesh, therefore adverse inference should be drawn against the prosecution. Learned counsel further submitted that the prosecution has failed to examine the Investigating Officer, hence finding of guilt is erroneous, which deserves to be set aside and appellants are entitled for acquittal. 6. On the contrary, Shri S.S. Bisen, learned counsel appearing on behalf of the respondent-State supported the impugned judgment, finding and sentence mainly contending that the trial Court has rightly convicted the appellants, hence 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 appellants under section 147, 148, 324/149, 323/149 of IPC. 8. Mahesh (PW3) is the star witness of this case. He has deposed that at the time of incident he was coming from the market and saw that some altercation was going on in between his brother Ganesh and appellant Bhura, therefore he went there. Bhura snatched axe from his brother Sarvan and inflicted at his right hand on account of which he sustained injury and became unconscious. Nothing has been brought in his cross-examination as to discredit his testimony. He is an injured witness. There is nothing to disbelieve his statement. 9. Ganesh Prasad (PW2) has deposed that appellant Bhura asked his wife Phoolwati whether she is going for answering the call of nature with him. she told this fact to her husband who made the complaint in this regard to Bhura but he caused his marpeet by kicks and fists. Other appellants also came there. Mahesh, younger brother of this witness also came there and said that why they are quarrelling. she told this fact to her husband who made the complaint in this regard to Bhura but he caused his marpeet by kicks and fists. Other appellants also came there. Mahesh, younger brother of this witness also came there and said that why they are quarrelling. On this appellant Bhura snatched axe from his brother Sarvan and inflicted at the forehead of Mahesh on account of which he sustained injuries and became unconscious. Suresh inflicted lathi blow to him. All the appellants caused marpeet to him. Thereafter he went to the police station for lodging the report, where FIR (Ex.P-7) was written. They were also medically examined. Mahesh remained hospitalized for 14-15 days. 10. This witness has been subjected to lengthy cross-examination and an attempt has been made to bring the contradictions and omissions from the report (Ex.P-7) and police statement (Ex.D-1). No doubt some contradictions and omissions have been brought on record, but they are not on the material point, hence inconsequential in nature. The evidence is intact on the point that appellant Bhura inflicted axe blow to Mahesh and Suresh inflicted 1athi blow to him and other appellants also caused marpeet. Since he is also an injured witness, therefore there is nothing to disbelieve his statement. 11. Keshav (PW4) has supported the evidence of these two injured witnesses. According to hi, at the time of incident he was taking tea at his house. He heard hue and cry, therefore he came out from his house and saw that appellants were causing marpeet to Ganesh and Mahesh. Bhura snatched axe from his brother Sarvan and inflicted at the forehead of Mahesh, on account of which he sustained injuries and became unconscious. Rest of the appellants also caused marpeet to Mahesh and Ganesh. Thereafter he carried Mahesh to his house and report was lodged. In the cross-examination, he stated that he tried to intervene in the matter, but he himself did not sustain any injury. 12. Nothing has been brought out in the cross-examination as to discredit his evidence. Hence testimony of Mahesh (PW3) and Ganesh (PW2) finds support from the evidence of Keshav (PW4). 13. Leela Bai (PW1) is not an eye-witness. She has given evidence on the narration of her daughter Phoolwati Bai. Phoolwati Bai has not been examined by the prosecution, therefore the evidence given by this witness cannot be accepted. 14. Dr. Hence testimony of Mahesh (PW3) and Ganesh (PW2) finds support from the evidence of Keshav (PW4). 13. Leela Bai (PW1) is not an eye-witness. She has given evidence on the narration of her daughter Phoolwati Bai. Phoolwati Bai has not been examined by the prosecution, therefore the evidence given by this witness cannot be accepted. 14. Dr. S.B. Jain (PW5) has deposed that he examined injured Mahesh and found four injuries on his person. According to his opinion, injury No.1 was caused by sharp edged weapon and rest of the injuries were caused by hard and blunt object within 4-6 hours of the examination. He was advised for X-ray. Medical report is Ex.P-8A, which contains his signature. 15. On the same day, he examined Ganesh and found two injuries on his person. According to his opinion, the injuries were caused by hard and blunt object within 4-6 hours of his examination. Medical report is Ex.P-7 A, which contains his signature. This witness has further deposed that on 6.5.1998 the X-ray of Mahesh was taken, but no bony injury was found Ex.P-12 is the X-ray report, which contains his signature. 16. Thus from the evidence on Dr S.B. Jain (PW5), it is established that injuries were found on the person of Ganesh and Mahesh as detailed in medical report Ex.P-7 A and Ex.P-8A. Since there was no bony injury, therefore injuries sustained by them were simple in nature. The testimony of injured persons finds support from the medical evidence. Thus, there is ample evidence regarding causing of injuries to Mahesh and Ganesh by these appellants. 17. The defence of the appellants is that Ganesh and Mahesh caused injuries to Bhura and his wife Reshma. Dr. A.P. Nayak (DW1) has been examined on their behalf, but the injury sustained by them has not been legally proved, because he has not medically examined these persons. The trial Court has rightly rejected the defence version of the appellants. 18. No doubt Phoolwati Bai was the important witness, who has not been examined, but it does not adversely affect the prosecution case, because both injured persons have given the evidence against the appellants. Likewise Investigating Officer has also not been examined, but there is no contradiction on the material point, hence non-examination of Investigating Officer does not also affect the prosecution case. Likewise Investigating Officer has also not been examined, but there is no contradiction on the material point, hence non-examination of Investigating Officer does not also affect the prosecution case. Appellant Bhura himself has invited the quarrel by molesting the wife of complainant Ganesh, which was the real cause of this crime. They were armed with deadly weapons and caused injuries to Mahesh and Ganesh. The prosecution has proved the case beyond reasonable doubt against the appellants. However, on persusal of the record, it reveals that appellants have been convicted under both section 147 and 148 of IPC, whereas they ought to have been convicted only either under section 148 of IPC. In such circumstances the conviction under section 147 of IPC is set aside and under section 148 of IPC is maintained. 19. So far as conviction under section 324/149 and 323/149 of IPC is concerned, it is well merited, hence maintained. Thus, the appellants are held guilty under sections 148,323/149 and 3241149 of IPC. 20. Learned counsel for the appellants submitted that appellants be released on the period already undergone. 21. On perusal of the record, it reveals that appellant Bhura has suffered jail sentence of more than 2 months, Sarvan and Suresh 43 days, Radhiya 26 days and Khajji 19 days. Since the incident is of the year 1998, therefore sending them back for serving out the remaining part of jail sentence would not be in the interest of justice. However, justice would be sub-served, if fine amount is enhanced. 22. Consequently, this appeal is partly allowed. Conviction under section 147 of IPC is set aside. However, conviction under sections 148, 323/149 and 324/149 of IPC is hereby maintained. Their sentence is reduced to the period already undergone by them by enhancing fine amount of Rs.5001- for each of the offence. The amount be deposited within three months hence, failing which they shall undergo SI for one month for each offence. Out of the amount so deposited, Rs.4,000/- be paid to Mahesh s/o Aatmaram resident of Charva and Rs.1,000/- to Ganesh s/o Aatmaram resident of Charva by way of compensation under section 357(1) of CrPC. The appellants are on bail, their bail bonds are discharged.