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Madhya Pradesh High Court · body

2009 DIGILAW 848 (MP)

VEDWATI v. STATE OF M P

2009-07-23

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) THIS judgment shall govern the disposal of Criminal appeal No. 2223/99 and Criminal Appeal No. 2080/99 arising out of the same judgment dated 26. 7. 99 passed by First Additional sessions Judge, Chhindwara in S. T. No. 273/96 convicting the appellants under Section 325/34 of IPC for causing grievous hurt to khemchand, Neelkanth, and Narbada and sentencing them to rigorous imprisonment for two years on each count with fine of rs. 200/- each, directing the sentences to run concurrently. Being aggrieved by the aforesaid conviction and order of sentence appellants Moharu and Sher Khan have preferred Criminal Appeal no. 2080/99, while appellant Vedwati preferred Criminal Appeal no. 2223/99. ( 2. ) AS per prosecution allegations, on 31. 5. 95 at about 11 oclock at village Machagora, District Chhindwara when complainant Khemlal was ploughing the land belonging to his wife alongwith his sons, Narbada and Neelkanth, appellants objected to it. Appellant Moharu then gave a lathi blow to Khemlal on his right tempo parietal region and another lathi blow on the left side of his skull. Appellant Moharu gave an axe blow to Narbada, while appellant sher Khan gave lathi blow to Neelkanth causing them hurt on the various parts of their body. Upon hue and cry, Sahab Singh and Chhotu came to their rescue. The FIR of the incident was lodged at Police station Chourai, Chhindwara, on the basis of which an offence was registered against the appellants and was investigated. Injured khemlal, Narbada and Neelkanth were sent for medical examination. Upon their medical and X-ray examination, besides other injures, fracture on the occipital bone of right parietal region of Khemlal, a fracture on left parietal region of Narbada and a fracture in the left ulna bone of Neelkhanth were also detected. It is alleged that the appellants assaulted and attacked the complainant and his two sons in furtherance of their common intention to kill them. After due investigation, appellants were prosecuted under Section 307/34 of ipc and were put to trial. ( 3. ) APPELLANTS denied the charges framed against them under Section 307/34 of IPC and pleaded false implication as a counter blast to the report lodged by appellants against the complainant party. ( 4. After due investigation, appellants were prosecuted under Section 307/34 of ipc and were put to trial. ( 3. ) APPELLANTS denied the charges framed against them under Section 307/34 of IPC and pleaded false implication as a counter blast to the report lodged by appellants against the complainant party. ( 4. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case acquitted the three appellants of the charges under Section 307/34 of IPC, but found them guilty under Section 325/34 of IPC for causing grievous hurt to khemlal, Neelkanth and Narbada and sentenced them as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 5. ) LEARNED counsel for the appellants Moharu and Sher Khan submitted that the trial court gravely erred in convicting them on the basis of inconsistent, contradictory testimony of related and interested witnesses and it failed to consider that there was also a counter case against the complainant party in respect of the same incident and the right of private defence was available to them. Learned counsel for appellant Vedwati submitted that she was erroneously convicted, though no case was proved against her. ( 6. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellants. ( 7. ) PERUSED the evidence on record. Complainant Khemlal (P. W-1) and his sons, namely, Neelkanth (P. W-2) and Narbada (P. W-3) have given the evidence to the effect that when they were ploughing their field at about 7 oclock in the morning, appellants came there and objected to it; when resisted, appellants armed with lathi, danda and axe assaulted them and caused injuries on their person. P. W-4 Rameshwar @ Chhotu and P. W-5 Sahabsingh have also tried to support their version. ( 8. ) THERE is also medical evidence on record of dr. Shiv Kumar Nema (P. W-10), who has proved MLC reports (Ex. P-9 to Ex. P-11) of injured Neelkanth (P. W-2), Narbada Prasad (P. W-3) and Khemlal (P. W-1) respectively, by identifying the handwriting and signatures of his wife Dr. Shanshi Prabha Nema, (since deceased), who had medically examined these three injured persons. As per medical reports (Ex. P-9, P-10 and P-11), injured neelkanth had sustained two contusions caused by hard and blunt object, while injured Narbada had sustained three injuries and khemlal sustained four injuries respectively. Shanshi Prabha Nema, (since deceased), who had medically examined these three injured persons. As per medical reports (Ex. P-9, P-10 and P-11), injured neelkanth had sustained two contusions caused by hard and blunt object, while injured Narbada had sustained three injuries and khemlal sustained four injuries respectively. As per the evidence of Dr. D. Moitra (P. W-7), who had examined the various X-ray plates of the injured persons, injured Khemlal had sustained fracture in his right parietal bone, injured Narbada Prasad had sustained fracture in his left parietal bone, while injured Neelkanth had sustained a fracture in his left ulna bone. There are no reasons to discard the aforesaid medical evidence. ( 9. ) AS regards ocular evidence, the evidence of almost all the aforesaid eyewitnesses is found to be quite exaggerated so far as the role assigned to appellant Vedwati is concerned. All the above mentioned eyewitnesses including complainant Khemlal (P. W-1) and his two sons, Neelkanth (P. W-2) and Narbada Prasad (P. W-3) have said that appellant Vedwati had also used lathi and assaulted the complainant, whereas there is no such indication in the FIR (Ex. P-1), which was admittedly lodged by complainant khemlal (P. W-1) at the earliest point of time after the incident, that appellant Vedwati had lathi with her or she assaulted anybody. As per averments made in the FIR (Ex. P-1), appellant Vedwati had only objected to the ploughing of the field. There is no such mention in the FIR (Ex. P-1) that appellant Vedwati assaulted the complainant or anybody else or instigated or exhorted the other appellants to assault the complainant or his sons. In fact, there is no such indication in the FIR (Ex. P-1) that appellant Vedwati also participated in the assault or shared any common intention to cause injury to any of the three injured persons. In view of these facts, the statements made by complainant Khemlal (P. W-1), neelkanth (P. W-2), Narbada Prasad (P. W-3) and other witnesses in this behalf are found to be exaggerated, cooked-up and not reliable, thus could not be accepted beyond reasonable doubt. Appellant Vedwati is, therefore, entitled to benefit of doubt and deserves to be acquitted under Section 325/34 of IPC. ( 10. ) HOWEVER, there are no cogent reasons to discard the ocular evidence against the other appellants. Appellant Vedwati is, therefore, entitled to benefit of doubt and deserves to be acquitted under Section 325/34 of IPC. ( 10. ) HOWEVER, there are no cogent reasons to discard the ocular evidence against the other appellants. Although there is some inconsistency in the sequence and specific act of assault assigned to appellants Moharu and Sher Khan, but their involvement in causing injuries to all the three injured persons is clearly borne out from the testimony of the number of eyewitnesses examined by the prosecution. ( 11. ) ALTHOUGH, there is a suggestion in the cross-examination of the eyewitnesses that complainant party had first assaulted and caused hurt to the appellants, to which they denied, there is no cogent evidence on record to hold that the complainant party was aggressor and initiated the assault. The evidence of d. W-1 Bhaglu in this behalf is not found to be convincing and trustworthy. His presence on the scene of occurrence was not suggested during the cross-examination of any of the eyewitnesses. D. W-1 Bhaglu also admitted in cross-examination that he had only seen the appellants lying and the complainant party running, which destroys the statement made by him in chief-examination. Be that as it may, in absence of any cogent documentary or oral evidence that the complainant party had intruded upon the possession of the property of the appellants or had assaulted first, it could not be held that the appellants Moharu and Sher Khan had acted in exercise of the right of private defence of person or property. ( 12. ) IN view of the aforesaid and the evidence as available against appellants Moharu and Sher Khan corroborated by the medical evidence, the finding recorded by the trial court that the appellants Moharu and Sher Khan caused grievous hurt to Khemlal, neelkanth and Narbada Prasad in furtherance of their common intention, does not suffer from any infirmity so as to warrant any interference in appeal. Thus, the conviction of appellants Moharu and Sher Khan under Section 325/34 of IPC deserves to be affirmed. ( 13. ) AS regards the sentence, learned counsel for appellants Moharu and Sher Khan submitted that the appellants also sutained injury in the same incident, the incident of the case is of the year 1995, and appellants have already undergone imprisonment for 39 days, they should not be again sent to jail after long passage of time. ( 13. ) AS regards the sentence, learned counsel for appellants Moharu and Sher Khan submitted that the appellants also sutained injury in the same incident, the incident of the case is of the year 1995, and appellants have already undergone imprisonment for 39 days, they should not be again sent to jail after long passage of time. It was, therefore, submitted that their sentence should be reduced to the period already undergone by them. ( 14. ) CONSIDERING the submissions as advanced and the facts and circumstances of the case, especially the fact that the incident of the case is of the year 1995 and both appellants Moharu and Sher Khan have already undergone imprisonment for one month and nine days, it would be appropriate if the impugned sentence of imprisonment awarded to them is reduced to the period already undergone by them with some additional fine. ( 15. ) ACCORDINGLY, Criminal Appeal No. 2080/99 is allowed in part. The conviction of appellants Moharu and Sher Khan under section 325/34 of IPC is affirmed. However, the impugned sentence of imprisonment awarded to them on each count is reduced to the period already undergone by them, but they shall pay an additional fine of Rs. 1,000/- (One thousand) on each count, i. e. total fine of Rs. 3000/- (three thousand) each, within three months from today, failing which they shall suffer simple imprisonment for three months for each default. ( 16. ) CRIMINAL Appeal No. 2223/99 preferred by appellant vedwati is allowed. The conviction of appellant Vedwati and sentence awarded to her under Section 325/34 of IPC on all three counts are set aside and she is acquitted of the charge. ( 17. ) APPELLANT Vedwati is on bail. Her bail bonds shall stand discharged. Both the appeals are accordingly disposed of.