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2011 DIGILAW 1422 (MP)

Udaibhan v. State of M. P.

2011-12-14

ANIL KUMAR SHARMA

body2011
JUDGMENT Hon. Shri Justice Anil Kumar Sharma 1. Criminal Appeal No. 92/2002 and Criminal Appeal No. 106/2000 are disposed of by this judgment which are filed against the same judgment dated 24.12.2001 passed in S.T.No. 16/2001 by learned Third Additional Sessions Judge, Shivpuri, M.P. 2. Appellants of both the appeals viz. Udaibhan, Hakim Singh and Rajaram have filed these appeals against judgment dated 24.12.2001 passed in S.T.No. 16/2001 by learned Third Additional Sessions Judge, Shivpuri, M.P. whereby appellant Rajaram has been convicted for the offence punishable under Section 307 of IPC and appellant Hakim Singh and Udaibhan have been convicted for the offence punishable under Section 307 read with Section 34 of IPC and sentenced to undergo R.I. for ten years each and fine of Rs. 2000/-each. Appellant Udaibhan has been convicted for the offence punishable under Section 323 of IPC and has been sentenced to undergo R.I. for six months and fine Rs. 500/-. 3. The brief facts of the case in hand for these appeals are that on 02.10.2000 at 1 P.M. when complainant Kruparam returned back to his village Bheempur after selling milk from Narwar, his wife Ramshree told him that Chowkidar Sundara informed her to go to Panchayat building. When complainant reached the Panchayat building, appellant-accused Hakim Singh having iron rod and Udaibhan having lathi and Rajaram having farsa were sitting there. Accused started abusing Kruparam saying that he and his brother are habitual of lodging reports and, thereafter, they have beaten him, due to which he sustained injury of farsa in his head and iron rod near left eye and lathi on right knee and lip. When Prabhu came to rescue the complainant, Udaibhan has beaten him by lathi. On report of the complainant, S.H.O. Police Station Narwar, district Shivpuri, registered Crime No. 205/2000 and filed challan before the concerned Magistrate. After committal, learned Trial Court framed charges for the offence under Section 307 and in alternate 307 read with Section 34 and 294 of IPC against all the accused and further framed charge for the offence punishable under Section 323 of IPC against Udaibhan and after trial convicted and sentenced them for the offences as mentioned in paragraph 2 of the judgment. 4. 4. Against the judgment of trial Court these appeals have been filed on the ground that learned trial Court has not considered the fact that independent witnesses Rameshwar Singh, Ramshree, Parmal Singh and Deshraj have not supported the prosecution and erred in convicting the appellants on the basis of interested witnesses. The doctor has admitted that injuries sustained by complainant and Prabhu may be caused due to falling. Further, the trial Court has not considered the major contradictions in the statement of interested witnesses. 5. Learned Public Prosecutor, on the other hand, supported the impugned judgment. 6. The main point for consideration in this appeal is that whether the judgment is justified in convicting and sentencing the appellants for the offence punishable under Section 307 or 307 read with 34 of IPC and further the trial Court is justified in convicting the appellant Udaibhan under Section 323 of IPC. 7. Learned counsel for the appellants has drawn attention towards the fact that independent witnesses Ramshree (PW-5), Parmal Singh (PW-6), Deshraj (PW-7) have turned hostile. He has further drawn attention towards the evidence of Kruparam (PW-1) that he has been called in the meeting of Gram Panchayat which was held in the Panchayat building of village Bhempur. When he reached there, accused Hakim inflicted saria on right side of his head and accused Rajaram inflicted farsa blow on his left side of the head and Udaibhan inflicted lathi blow on right leg. When Prabhu Singh came to save him, Udaibhan has beaten Prabhu with lathi. Dr. Anand Goyal has examined the victims. Learned counsel for the appellants has drawn attention towards the evidence of Dr. Anand Goyal and submitted that no opinion regarding nature of injuries have been given by Doctor at the time of examinations of victims. He has told in paragraph 5 of the evidence that after observing the X-ray report, he found that fracture in the left side head of Kruparam which may be dangerous to life. He has given second report Exhibit P-23. The examination report injuries of Kruparam is Exhibit P-21. He has admitted in his cross examination that injury Nos. 2 to 6 sustained by Kruparam may be caused by falling and injury No. 1 may be caused by falling sharp edged weapon. 8. He has given second report Exhibit P-23. The examination report injuries of Kruparam is Exhibit P-21. He has admitted in his cross examination that injury Nos. 2 to 6 sustained by Kruparam may be caused by falling and injury No. 1 may be caused by falling sharp edged weapon. 8. Learned counsel for the appellants have pointed out that while examining Kruparam and giving report Exhibit P-21, Doctor has not given any opinion regarding dangerous nature of any injury and there is no evidence against the appellants to kill Kruparam. Therefore, in the absence of intention to kill, appellants cannot be held guilty for the offence punishable under Section 307 or 307 read with 34 of IPC. 9. There is no evidence regarding intention of the appellants to kill the complainant Kruparam, as no words suggesting intention to kill the complainant have been uttered by the appellants at the time of incident. Therefore, it is submitted by the learned counsel for the appellants that at the most, appellants can be held responsible for inflicting grievous injury to the complainant. According to X-ray report, only hair line fracture has been found on the head of the complainant therefore merely the opinion of Doctor that injury may be dangerous to life, the appellants cannot be convicted. Further, complainant has not even been admitted for treatment of any injury. If any injury dangerous to life, certainly, complainant should have been taken treatment in the hospital. Therefore, in the absence of any injury dangerous to life on the body of complainant Krupararam, learned trial Court has erred in convicting the appellants for the offence punishable under Section 307 of IPC. The act of appellants for causing injury to Kruparam is that of causing grievous injury which is punishable under Section 326 for appellant Rajaram and for 326 read with Section 34 for appellants Udaibhan and Hakim Singh. Raram and Haking Singh were in custody for 47 days during trial and Udaibhan was in custody for 91 days during trial. Thereafter, after passing of impugned judgment on 24.1.2001. the sentence of Udaibhan has been suspended vide order dated 6.6.2002 which means Udaibhan is in custody for more than one and a half years after passing of the impugned judgment and for 91 days before passing of the judgment. This appeal is pending since 2002. Thereafter, after passing of impugned judgment on 24.1.2001. the sentence of Udaibhan has been suspended vide order dated 6.6.2002 which means Udaibhan is in custody for more than one and a half years after passing of the impugned judgment and for 91 days before passing of the judgment. This appeal is pending since 2002. Considering the nature of offence and period of pendency of this appeal, the period of custody undergone by Udaibhan which is about one year and nine months is sufficient for the offence punishable under Section 326 and 326/34 of IPC. 10. Therefore, both the appeals are partly allowed. The conviction of the appellant Rajaram for the offence under Section 307 of IPC and the conviction of appellant Udaibhan and Hakim Singh under Section 307 read with Section 34 of IPC has been converted into conviction for the offence punishable under Section 326 of IPC for appellant Rajaram and for the offence punishable under Section 326 read with Section 34 of IPC for appellants Udaibhan and Hakim Singh. The conviction of Udaibhan for the offence punishable under Section 323 of IPC is confirmed. Considering the period undergone by the appellants and the period of pendency of this appeal, the sentence of appellants Rajaram for the offence punishable under Section 326 read with Section 34 of IPC and for remaining appellants Udaibhan and Hakim Singh for the offence punishable under Section 326 read with Section 34 of IPC is reduced to the period already undergone by one year and nine months which already undergone by the appellants. The conviction for Udaibhan for the offence under Section 323 of IPC is maintained as passed by the learned trial Court. The fine of Rs. 2000/-imposed by the trial Court on all the appellants and fine of Rs. 500/-imposed by the trial Court on Udaibhan under Section 323 of IPC are confirmed and the order of learned trial Court regarding conviction is confirmed. If the fine amount has not been deposited by the appellants then all the appellants shall undergo simple imprisonment for one month for non-payment of fine of Rs. 2000/-each for the offence punishable under Section 326, 326 read with 34 of IPC and Udaibhan shall undergo simple imprisonment for 15 days if the fine punishable under Section 323 of IPC has not been paid.