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2009 DIGILAW 682 (MP)

ASHOK KUMAR v. STATE OF M P

2009-06-16

RAKESH SAKSENA

body2009
Judgment ( 1. ) APPELLANTS have filed this appeal against the judgment dated 26th august, 2004, passed by III Additional Sessions Judge, Jabalpur, in sessions Trial No. 401/02, convicting the appellants under Sections 147 and 323/149 of the Indian Penal Code and sentencing them to imprisonment for six months and rigorous imprisonment for one year with fine of Rs. 500/- to each, on each count respectively. In default of payment of fine, additional rigorous imprisonment for two months. ( 2. ) BEFORE the trial Court appellants/accused were charged under sections148 and 307/149 of the Indian Penal Code on two counts and under Section 323/149 of the Indian Penal Code on four counts. Trial court, finding the evidence insufficient for bringing home the charge under Section 307/149 of the Indian Penal Code, acquitted the accused persons of the said offence and instead convicted them under Section 323/149 and Section 147 of the Indian Penal Code and sentenced them as aforesaid. ( 3. ) IN short, the prosecution case is that there was a long standing enmity, since about 30 years, between the accused persons and the complainant party over the partition of land and other immovable properties. On 26. 11. 2001, at about 9. 30 a. m. , when PW-6 Arvind and pw-10 Bhole @ Mahesh were sowing the field of Pancham Singh, situated in front of their house, with a tractor, all the accused persons, variously armed, reached there. Accused Vishwanath was armed with a farsa and accused Rameshwar was armed with a Ballam. Other accused persons had Lathis. It is said that accused Vishwanath warned the complainants that the tractor should not touch their embankment, which led to a wordy quarrel and all the accused persons, in prosecution of the common object then launched an attacked on arvind. When Raghuraj Singh intervened, he was also assaulted. Dinesh, Mukesh, Mahesh, Subhadrabai and Man Singh, when tried to rescue them, they were also beaten. Injured persons went to Police station Patan, where Raghuraj Singh Yadav lodged a report (Ex. P/9 ). A case under Section 147, 148, 307 and 323/149 was registered against the accused persons. The injured persons were sent to Primary health Centre, Patan, where their injuries were examined by PW-1 Dr. R. K. Mishra. ( 4. ) AFTER investigation, charge sheet was filed and the case was committed for trial. ( 5. P/9 ). A case under Section 147, 148, 307 and 323/149 was registered against the accused persons. The injured persons were sent to Primary health Centre, Patan, where their injuries were examined by PW-1 Dr. R. K. Mishra. ( 4. ) AFTER investigation, charge sheet was filed and the case was committed for trial. ( 5. ) THE defence of the accused persons was that of false implication due to enmity over partition disputes. According to them, accused vishwanath was falsely implicated because at that time he was panchayat Secretary. The injuries were caused to the members of complainant party in a trivial scuffle and no unlawful assembly was formed to assault them. ( 6. ) LEARNED trial Judge, after appreciating the evidence of eyewitnesses viz. PW-2 Raghuraj Singh, PW-4 Dinesh Kumar Yadav, pw-6 Arvind, PW-8 Man Singh, PW-9 Subhadrabai and PW-10 Bhole @ mahesh, who happended to be the injured witnesses and the medical evidence of PW-1 Dr. R. K. Mishra, who examined the injuries of injured persons, came to conclusion that accused persons formed an unlawful assembly and caused hurts to aforesaid persons in prosecution of the common object. Taking into consideration the nature of injuries found on the person of injured and the fact that no injury by sharp edged and pointed weapon was found on the body of any of the injured persons, he held that the offence under Section 307 of the Indian penal Code was not proved beyond doubt and held all the accused persons guilty under Section 323/149 and 147 of the Indian Penal code. ( 7. ) LEARNED counsel for the appellants does not seriously challenge the conviction of appellant Ashok Kumar, Sukhchain, Raju Yadav and bhure @ Dharmendra and merely makes a prayer for reduction of their sentences to the period of sentence undergone by them. As far as appellant No. 3 Vishwanath and appellant No. 4 Rameshwar, he submits that their participation in the occurrence has not been established beyond doubt. Though, all the eyewitnesses named them before the court during trial, but their evidence was belied by the medical evidence of Dr. R. K. Mishra (PW-1), who did not find even a single injury by any sharp edged or sharp and pointed weapon on the body of any injured persons. ( 8. Though, all the eyewitnesses named them before the court during trial, but their evidence was belied by the medical evidence of Dr. R. K. Mishra (PW-1), who did not find even a single injury by any sharp edged or sharp and pointed weapon on the body of any injured persons. ( 8. ) LEARNED counsel for the State, on the other hand, submits that the evidence of PW-2 Raghuraj Singh, PW-4 Dinesh Kumar Yadav, PW-6 Arvind, PW-8 Man Singh, PW-9 Subhadrabai and PW-10 Bhole @ mahesh is fully reliable. Their evidence is corroborated by the medical evidence of PW-1 Dr. R. K. Mishra. These witnesses are injured witnesses. Their presence at the spot, at the time of incident, is established by the presence of injuries on their bodies. He submits that the injuries found on the person of PW-2 Raghuraj Singh and PW-6 arvind were lacerated injures. The injuries were also found on their head. Therefore, the conviction as well as sentence of the accused persons call for no interference. ( 9. ) I have heard counsel of both the sides at length and perused the evidence and material on record. ( 10. ) FROM the evidence of PW-2 Raghuraj Singh, it is seen that at the time of occurrence accused Vishwanath was armed with a Farsa and accused Rameshwar was armed with a spear and other persons were armed with Lathis. After a brief altercation about using of a tractor in the field near the embankment of the field of the accused persons, they assaulted him and Arvind. He specifically stated that Vishwanath inflicted a blow by Farsa on the head of Arvind and also assaulted him by Farsa and caused injuries on his head above the left ear. When his family members Mukesh, Dinesh, Subhadrabai and Man Singh came their to rescue them, they were also assaulted by all the accused persons. Similar statements were made by PW-4 Dinesh, PW-6 Arvind, pw-8 Man Singh and PW-10 Bhole. ( 11. ) ON perusal of the evidence of PW-1 Dr. R. K. Mishra, it is revealed that injured Raghuraj Singh, Subhadrabai, Dinesh, Arvind, bhole and Man Singh had though suffered injuries, but not a single injury by any sharp edged and sharp and pointed weapon was found on the body of any of them. ( 11. ) ON perusal of the evidence of PW-1 Dr. R. K. Mishra, it is revealed that injured Raghuraj Singh, Subhadrabai, Dinesh, Arvind, bhole and Man Singh had though suffered injuries, but not a single injury by any sharp edged and sharp and pointed weapon was found on the body of any of them. It appears unnatural and improbable that if accused Vishwanath and Rameshwar assaulted the victims with a farsa and a Ballam, not a single injury corresponding to those weapons would be detected on the body of any of them. It has been admitted by PW-2 Raghuraj Singh that the accused persons belonged to their family, but a dispute over the partition of land and other immovable properties was going on between them since last about 25-30 years. He also admitted that accused Vishwanath was the Secretary of Gram Panchayat. In the background of a longstanding enmity existing between the two parties, the absence of any injury by sharp edged and pointed weapon on the body of any of the victim creates suspicion about the participation of accused Vishwanath and rameshwar in the incident. It cannot be held with certainty that prosecution established their presence and participation in the incident beyond the reasonable doubt. Their conviction and sentence under section 147 and 323/149 of the Indian Penal Code, therefore, deserves to be set aside. ( 12. ) AS far as accused/appellants Ashok Kumar, Sukhchain, Raju yadav and bhure @ Dharmendra are concerned, it has been amply established by the evidence of injured witnesses and the evidence of pw-1 Dr. R. K. Mishra that they caused simple hurts to PW-2 Raghuraj singh, PW-9 Subhadrabai, PW-6 Arvind, PW-10 Bhole @ Mahesh, PW-8 man Singh and PW-4 Dinesh. Since the presence of accused vishwanath and Rameshwar has not been found established, the charge under Section 147 of the Indian Penal Code of formation of unlawful assembly fails. However, from the evidence on record, it can be conveniently held that they committed the offence in furtherance of their common intention making them liable for conviction under section 323 read with Section 34 of the Indian Penal Code. ( 13. ) IN the result, the appeal is partly allowed. The conviction and sentences of appellant No. 3 Vishwanath and appellant No. 4 rameshwar are set aside. They are acquitted. ( 13. ) IN the result, the appeal is partly allowed. The conviction and sentences of appellant No. 3 Vishwanath and appellant No. 4 rameshwar are set aside. They are acquitted. Conviction of all the appellants under Section 147 of the Indian Penal Code is set aside. Appellant No. 1 Ashok Kumar, appellant No. 2 Sukhchain, Appellant No. 5 raju Yadav and Appellant No. 6 Bhure @ Dharmendra are convicted under Section 323 read with Section 34 of the Indian Penal Code. ( 14. ) SO far as the question of sentence is concerned, the incident in question had occurred in the year 2001, i. e. about 8 years ago. Admittedly, the members of the complainant party as well as accused persons belong to one family. There is nothing on record to indicate that accused persons were previous convict or had past criminal record. They are agriculturists. It is on record that they have suffered incarceration for about four days. In these circumstances, I am of the view that no useful purpose would be served in sending them back to jail. Their sentence of rigorous imprisonment for one year deserves to be reduced, but with enhancement of fine. Accordingly, their sentence under Section 323 read with Section 34 of the Indian Penal Code is reduced to the period of sentence already undergone by them with enhancement of fine to Rs. 2000/- each. If the amount of fine of rs. 500/-, as awarded by the trial Court, has already been deposited by them, it shall be taken into computation. In case of default of payment of fine, they shall suffer simple imprisonment for two months. Fine amount shall be deposited in the trial Court within a period of three months. ( 15. ) APPEAL partly allowed.