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Madhya Pradesh High Court · body

2011 DIGILAW 528 (MP)

Chandrabhan v. State of M. P.

2011-05-03

D.C.MAHESHWARI

body2011
JUDGMENT 1. Appellants-accused have come forward with this appeal under section 374 of CrPC being aggrieved by the judgment dated 30.9.2003 passed by the Sessions Court, Datia in Sessions Trial No.135/1999 holding guilty to the appellant No.1 for the offence under section 307 of IPC, while the appellants No.2 to 4 under section 307, r/w section 34 of IPC and sentencing to each of them for RI two years with fine of Rs.l,000/-, in default of depositing the fine amount further six months SI has been' awarded. 2. The facts giving rise to this appeal in short are that on dated 26.2.1999 the victim Amar Singh came to Bhander for purchasing some commodity of glossary shop where he found the appellants Veer Singh and Chandrabhan under the influence of liquor. As there was earlier enmity of Amar Singh with one Khet Singh, the nearest person of said Veer Singh and Chandrabhan because of some open Government land of the village for which exchange of abuses had also taken place between them on various occasions. On the aforesaid date at Bhander some exchange of filthy abuses between said Veer Singh, Chandrabhan and Amar Singh had also taken place. Thereafter Amar Singh came back to the village Taudoth and told about such incident to one Radhelal. Thereafter at about 9 O'clock in the night when Amar Singh was going to answer the call of nature, on the way near the house of Radhelal Jatav, he was intercepted and apprehended by the appellants. Out of them Chandrabhan was having farsa in his hand while Veer Singh had a ballam in his hand and Karan Singh and Pannalal head lohangi sticks in their hands. Initially Amar Singh was subjected to filthy abuses by the appellants by the time, hearing the noise of abuses Daulat Ram, Johar Singh and Mukandi came there to rescue him at the same time the appellant No.1 Chandrabhan gave a blow of farsa on his head. On sustaining the injuries the blood was profused from it. At the same time Veer Singh gave a blow of ballam in the ear of Amar Singh. Blood was profused from it also. Consequently the victim Amar Singh fell down. Thereafter said Mukundi was also subjected to beating by Lohangi lathi by Karan Singh and Panna Lal. On sustaining the injuries the blood was profused from it. At the same time Veer Singh gave a blow of ballam in the ear of Amar Singh. Blood was profused from it also. Consequently the victim Amar Singh fell down. Thereafter said Mukundi was also subjected to beating by Lohangi lathi by Karan Singh and Panna Lal. Resultantly he also sustained injuries on his left hand, west and also some other parts of his person. The appellants Karan Singh and Pannalal also gave the blows of stick on the person of Amar Singh. On hearing the noise of such quarrel and intimidation of the appellants to the victim with abuses some other persons also came there to rescue them, on which the appellants flayed away from the place of incident. Because of late night the victim Amar Singh was taken to police station on the next morning, where after lodging the report he was sent to hospital, where .on medical examination, his MLC was prepared and was admitted in the hospital for further treatment. The MLC report of Mukundi was also prepared. After holding the investigation, the appellants were charge-sheeted for the offence under sections 341, 294, 506B, 323, 324/307 of IPC. 3. After committing the sessions, considering the papers of the charge-sheet, the charge of section 307 of IPC was framed against the appellant No.1 Chandrabhan while the charge of section 307/34 and 323 were framed against the appellants Karan Singh and Pannalal and the charge of section 307/34 of IPC was framed against the appellant Veer Singh. All the appellants abjured the guilt on which the trial was held. After recording the evidence, on appreciation of the same on account of non-examination of Mukundi by holding the prosecution has failed to prove that Mukundi had sustained any injuries in the alleged incident and acquitted the appellants in that regard but held guilty to the appellant No.1 for the offence of section 307 of IPC while other appellants under section 307/ 34 of IPC and sentenced to each of them, as mentioned above. Being dissatisfied with such conviction and sentence, the appellants have come forward to this Court with this appeal. 4. Being dissatisfied with such conviction and sentence, the appellants have come forward to this Court with this appeal. 4. Shri Madhukar Kulshreshtha, learned appearing counsel for the appellants, after taking me through the papers of the charge-sheet, exhibited documents and the evidence led by the parties argued that while holding the above mentioned conviction against the appellants, the proved facts and circumstances of the counter case registered at the instance of the appellants party at the same police station as Crime No.15/1999 against Amar Singh, Radhelal Jatav and Dholti for the offence under sections 323, 341, ....292, 306B, 452/34 of IPC were not taken into consideration with proper approach, in which after holding the trial, the concerning accused have been convicted and sentenced by the trial Court. In continuation he said that on taking into consideration such aspect, the appellants ought to have been acquitted by the trial Court. But in view of the available evidence showing the circumstances against the appellants, on making certain queries from the appellants' counsel, on which instead to argue this appeal on merits for extending the acquittal to the appellants, he restricted his arguments only for conversion of the offence from the section in which, the appellants have been convicted and sentenced to some minor offence. In this regard he argued that even on taking into consideration the face value of the evidence led by the prosecution, it was not the case of more than section 324 of IPC. In this regard by referring the deposition of Dr. B.K. Shrivastava (PW13), who medically examined the victim Amar Singh and Mukundi and prepared their MLC report, Ex.P9 and EX.P-10 respectively, said/hat according to this witness and the MLC report of Amar Singh, Ex.P-9, two incised wounds and one contusion were found on the person of this victim, out of which one incised wound was found on his occipital region and as per opinion, the nature of the same was dangerous to life. The Doctor has also referred the victim to carry out the x-ray of such injury. In such premises, it could be assumed that in the lack of the x-ray plate and its report the Doctor was not in a position to give any definite opinion with respect of the same. The Doctor has also referred the victim to carry out the x-ray of such injury. In such premises, it could be assumed that in the lack of the x-ray plate and its report the Doctor was not in a position to give any definite opinion with respect of the same. It is apparent fact on record that in order to prove that such injury was sufficient to cause death of a victim in the ordinary course of nature, the concerning x-ray plate and its report were neither produced, nor proved on record by examining the concerning Radiologist. In the lack of it, such injury could not be considered to be fatal for life. With these submissions, he said that in any case mere on the basis of some oral testimony of said doctor, the alleged offence could not be considered to be an offence of section 307 of IPC. In the lack of any evidence showing the fracture in the occipital region with the aforesaid injury of the victim, this case could not be treated to be the case of more than section 324 of IPC and prayed for conversion of the conviction of the appellants from sections 307 and 307/34 to section 324 and section 324/34 of IPC respectively. He further argued that after such conversion taking into consideration that there is no criminal antecedents against any of the appellants and they being first offender have already suffered eighteen days judicial custody in the trial Court and they are also facing the mental agony of the present case since last twelve years. Thus, considering the same, they be extended the benefits of Offenders Act instead awarding any jail sentence. In any case, if such benefit is not extended to the appellants, then by adopting some lenient view, they be punished under section 324 and section 324/34 of IPC, as the case may be with the jail sentence upto the period for which they have already suffered the judicial custody in the trial Court by imposing some reasonable fine under the discretion of the Court and prayed to allow this appeal accordingly. 5. 5. Responding the aforesaid arguments, Shri Vijay Sunderam, learned Panel Lawyer, by justifying the impugned conviction and sentence of the appellants said that same is based on proper appreciation of the evidence and also is in conformity with law, it does not require any interference at this stage either for reducing the jail sentence or conversion of the offence from section 307 of IPC to section 324 of IPC and prayed for dismissal of this appeal. However, in response of some query of the Court he fairly conceded that it is apparent fact on record that in order to prove the grievous nature of injury No.1, sustained by the victim Amar Singh stated by Dr. B.K. Shrivastava (PW 13), the x-ray plate and it's report has neither been produced nor proved on the record by examining the concerning Radiologist, who carried out such x-ray. 6. Having heard the parties, keeping in view their arguments, I have carefully gone through the record of the trial Court and also perused the impugned judgment. 7. After perusing the depositions of Radhelal (PW1), Dauti @ Daulatram (PW2), Ram Milan (PW3), Amar Singh (PW4), the victim and Udairaj (PW6), I am of the considered view that on considering such ocular evidence, the trial Court has not committed any error holding guilty to the appellants for the alleged incident, as such the testimonies of the above mentioned witnesses as have been further proved by the deposition of Dr. B.K. Shrivastava (PW13), who on medical examination of Amar Singh found the corresponding injuries on his person. So in such premises, the findings of the trial Court holding guilty to the appellants for the alleged incident do not require any interference at this stage, hence till this extent the judgment of the trial Court is hereby affirmed. It is also noted that in response of some query of the Court with respect of the aforesaid, appellants' counsel had not made any arguments on merits of the matter for acquitting the appellants. He restricted his arguments only for conversion of the offence, as stated above. 8. Coming to consider the arguments advanced by the appellants' counsel for conversion of the impugned offence from section 307 and 307/34 to the offence of section 324 and 324/34 of IPC respectively, as the case may be, is concerned, in the available circumstances, I have found some substance in such argument. 8. Coming to consider the arguments advanced by the appellants' counsel for conversion of the impugned offence from section 307 and 307/34 to the offence of section 324 and 324/34 of IPC respectively, as the case may be, is concerned, in the available circumstances, I have found some substance in such argument. 9, After lodging the report, EX.P-1 by some Radhelal Jatav, the victim Amar Singh was sent to hospital where on medical examination, his MLC report, EX.P-9 was prepared by Dr. B.K. Shrivastava (PW 13), according to such report the following injuries were found on me person of such victim: (i) one I.W. wound on the occipital region 1/2" below the occipital protuberance, measuring 3"x1/8" bony deep, referred for x-ray. (ii) One I.W. on the left ear measuring 1"x 1/8"x 1/8". (iii) Contusion on the left side of hip joint measuring 2"x l". Out of aforesaid injuries, the injuries No.1 and 2 were described to be caused by sharp weapon and the nature of the injury No.1 was stated to be dangerous to life while remaining injuries are described to be simple in nature. It is apparent from the MLC report that on clinical examination the Doctor has advised to carry out the x-ray of injury No.1 for ascertaining the actual nature of the same. So unless such x-ray plate and its report are produced and proved on record, mere on the basis of said report and the deposition of Doctor the injury No.1 could not be treated to be sufficient to cause death in the ordinary course of the nature. In such premises, in the lack of any evidence showing the fracture in such injury, the same could be treated to be the simple injury caused by hard and sharp object. In such premises, in the lack of any evidence showing the fracture in such injury, the same could be treated to be the simple injury caused by hard and sharp object. It is settled proposition of law that in the absence of x-ray and its report, in view of said discussion and in the lack of any x-ray plate or the report, the aforesaid injury No.1 could not be treated to be an injury sufficient to cause death of the victim in the ordinary course of the nature and in such premises, by holding that such injury being not falling under the category of the injuries, stated in former part of section 300 of IPC the conviction of the appellants under section 307 of IPC and of other appellants under section 307/34 of IPC are not sustainable and in such premises, the appellants deserve for and are acquitted from the offence under sections 307 and 307/34, as the case may be, by allowing this appeal. But taking into consideration the face value of the available evidence showing the nature of the injury No.1, sustained by Amar Singh, as stated above, the appellants No.1 and 2 are held guilty under section 324, while the appellants No.3 and 4 are held guilty .under section 324/34 of IPC, the minor section of section 307 of IPC. 10. After holding aforesaid conviction against the appellants before imposing the punishment for the same, this Court has to consider the another arguments of the appellants' counsel advanced for extending the benefit of Probation of Offenders Act. True it is according to the available record all the appellants being first offenders have suffered mental agony of the present litigation near about thirteen years. But looking to the nature of the incident and the manner, in which the alleged injuries were caused to the victim, Amar Singh, I am not inclined to extend such benefit of Probation of Offenders Act to the appellants No.2, 3 and 4. However, in view of the mandatory provision of section 6 of the Probation of Offenders Act, taking into 'consideration the twenty years age of appellant No.1, on the date of the incident, the benefit of Probation of Offenders Act is extended to such appellant No.1, after conversion of the offence under section 324 of IPC and in such premises, no jailor any other punishment is imposed on him. It is further directed that on furnishing a personal bond of Rs.10,000/- (Rs. Ten thousand) alongwith one surety of the like amount to the satisfaction of the trial Court within thirty days from today in accordance with the prescribed provisions of Probation of Offenders Act, then subject to the terms and conditions of such Act, the appellant No.1 shall be released on probation, failing which the trial Court shall be at liberty to take appropriate steps against such appellant No.1, in accordance with the provisions of such Act. 11. So far other appellants-are concerned, I deem fit to punish each of them under section 324/34 of IPC, as the case may be, with the jail sentence upto the period for which they have already suffered the judicial custody during pendency of the matter in the Court below, the same is stated 18 days by the trial Court with fine of Rs.3,000/- against each of the appellants No.2 to 4. 12. In view of the aforesaid, by allowing this appeal in part, the appellant are acquitted from the charge of section 307, 307 r/w section 34 of IPC, as the case may be and instead of such offence, the appellants No.1 and 2 are convicted for the offence under section 324 of IPC while appellants No.3 and 4 are convicted under section 324/34 of IPC and taking into consideration the age of appellant No.1, i.e., 20 years, on the date of the incident in view of mandatory provision of Probation of Offenders Act, he has been extended the benefit of Probation of Offender Act, with the terms, as mentioned above, while each of other appellants are sentenced with the jail sentenced upto the period, for which they have already undergone during pendency of the investigation or the trial, as stated above, but with fine of Rs.3,000/- against each of them. The fine deposited by them in compliance of the impugned judgment with the trial Court shall be adjusted in the aforesaid imposed fine amount and remaining fine amount has to be deposited by each of them within sixty days from today with the trial Court failing which the concerning appellant has to suffer further six months SI. The trial Court is directed that on arsing such occasion, it will take the appropriate step against the concerning appellants in this regard. The trial Court is directed that on arsing such occasion, it will take the appropriate step against the concerning appellants in this regard. In view of the aforesaid, the trial Court is directed to refund the amount of fine, if deposited by the appellant No.1 in compliance of the impugned judgment. 13. It is further directed that on depositing the aforesaid fine amount the entire amount of the same be given to the said victim Amar Singh by calling him in the Court through summons under intimation to this Court. 14. The appeal is allowed in part, as indicated above.