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Madhya Pradesh High Court · body

2011 DIGILAW 651 (MP)

Siddhu Singh @ Sardar Singh v. State of M. P.

2011-06-21

I.S.SHRIVASTAVA

body2011
JUDGMENT 1. This appeal has been preferred being aggrieved by the judgment dated 3.1,1997 passed by the Court of Shri Shivdatta Ojha, Special Judge, Shajapur, Distt. Shajapur in Special Cr. Case No. 48/1995 by which the appellant Siddhu Singh @ Sardar Singh has been convicted under section 326 of the IPC and sentenced to rigorous imprisonment of6 months with fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment of 3 months. 2. According to the prosecution case, on 15.2.1995, at about 7 a.m., Kaluram was going towards the well of Shantilal for natural call. When he reached near the bushes of the well accused appellant Siddhu Singh @ Sardar Singh met him having an axe in his hand. The appellant stopped him and after abusing said that why he reported against him, day before yesterday and today he will sell him and, thereafter, after abusing he assaulted him by axe on elbow of left hand. Again he assaulted him by axe on the forearm of his left hand which caused him injury. On third assault by axe he sustained injury on right leg. He sustained four bleeding injuries on left leg. Thereafter the appellant assaulted him from the blunt side of the axe, which caused him injuries on both sides of the shoulder. At the same time, Dhannaj i brother of complainant reached there, hence the appellant ran away threatening to kill him. The report Ex. P/7 was lodged by the complainant at Police Station Kanad at 10.45 a.m., thereafter complainant, Kaluram was sent for medical examination and after X -Ray examination it was found that his left ulna bone was fractured, hence after completion of the investigation the challan was filed. The appellant was tried for the offence under section 326 of the IPC and section (3) (2) (5) of the SC ST (Prevention of Atrocities) Act and vide impugned judgment he was convicted under section 326 of the IPC and punished as mentioned above. 3. It has been argued by the counsel for the appellant that the appellant has been falsely implicated in this case due to previous enmity. The case was not proved by the prosecution evidence. Complainant Kaluram did not support the fact that he was assaulted by the appellant by axe. The independent witnesses did not support the prosecution case. 3. It has been argued by the counsel for the appellant that the appellant has been falsely implicated in this case due to previous enmity. The case was not proved by the prosecution evidence. Complainant Kaluram did not support the fact that he was assaulted by the appellant by axe. The independent witnesses did not support the prosecution case. During investigation an axe was seized from the appellant but by evidence the seizure memo was not proved and the seized axe was not produced in evidence. Opinion of doctor was not sought that whether the injuries may be caused by axe. The prosecution failed to prove that the injuries caused to Kaluram was caused by the seized axe. The sole statement of the complainant Kaluram was full of contradictions and omissions and the evidence was not appreciated in proper perspective, threfore, the appeal should be accepted and the appellant be acquitted from the charges under section 326 of the IPC. 4. It has been argued by the counsel for the respondent that the case was proved by the evidence produced before the Trial Court. The statement of complainant was supported by the medical evidence and the appellant has been rightly convicted. Hence, the appeal being devoid of merit be dismissed accordingly. 5. Considered the arguments and record of the trial Court perused. 6. In the prosecution evidence, the witness Dhanna (PW-4) who reached the spot at the time of incident, turned hostile and he has not supported the prosecution story. He said that he did not see that who assaulted his brother Kaluram. In cross-examination, he has deposed that he was sleeping at his house and Kaluram came and told him about the incident. 7. As regard the incident, Kaluram (PW-5) deposed that he was assaulted by the appellant when he was going for natural call. Near the well of Shantilal accused said to him that why he reported against him and he abused and assaulted him, due to which he sustained injuries in left hand and in both the legs. During treatment stitches were applied to him. He lodged the report in the Police Station Kanad and, thereafter, he was sent to hospital for treatment. This witness has not been declared hostile by the prosecution. During treatment stitches were applied to him. He lodged the report in the Police Station Kanad and, thereafter, he was sent to hospital for treatment. This witness has not been declared hostile by the prosecution. In his examination-in-chief he did not support the fact of FIR that he was assaulted by four blows of axe and later on by the blunt side of the axe. The witness has not been declared hostile on this point, hence the fact that he was assaulted by axe was not proved from his statement. 8. Udhamsingh (PW-6), Head Constable deposed that he arrested the appellant Siddhu Singh @ Sardar Singh and prepared arrest memo (Ex. P/1) and on production by the appellant he seized the axe by seizure memo (Ex. P/2) which bears his signature. 9. Narayan (PW-l) is the independent witness of seizure memo (Ex. P/2) of axe but he did not support this fact and said that the axe was not seized before him. This witness was also declared hostile and cross-examined on this point. The other independent witnesses of the axe was not produced in the prosecution evidence. The seized axe was also not produced in evidence and article was not marked on it. 10. According to Dr. A.M. Khan (PW-2), the injuries No.1, 2 & 3 could be caused by sharp object and they may be caused by axe but during investigation no information was sought from this doctor by sending the axe to him, whether the injuries could be caused by the seized axe. During the statement of Dr. A.M. Khan (PW-2) axe was not produced before him to verify the fact that the injuries to complainant Kaluram (PW-5) would be caused by the seized axe. 11. From the seizure memo Ex. P/2 it reveals that an axe was seized from the appellant Siddu Singh @ Sardar Singh but the place from where it was seized has not been mentioned in the seizure memo. The place of seizure has been mentioned as Police Station Kanad. The seizure was made at 9.10 a.m. and the appellant was arrested vide arrest memo Ex. P/1 at 9.00 a.m. In column No.8 of the arrest memo it has been mentioned that nothing ha~ been seized from the accused then how at 9.10 a.m. by seizure memo Ex. The place of seizure has been mentioned as Police Station Kanad. The seizure was made at 9.10 a.m. and the appellant was arrested vide arrest memo Ex. P/1 at 9.00 a.m. In column No.8 of the arrest memo it has been mentioned that nothing ha~ been seized from the accused then how at 9.10 a.m. by seizure memo Ex. P/2 the axe was siezed from the appellant while he was in the custody of the police. No information was given in this respect by the Investigating Officer that how this axe was seized from the appellant and what is the relation of this axe with the incident. If any infom1ation was given by the appellant in this respect that he used this axe to assault the complainant Kaluram then the information memo under section 27 of the CrPC should have necessarily been prepared. In the absence of such information memo it cannot be proved that the seized axe was the same weapon by which the appellant assaulted complainant Kaluram. In this way the seizure memo (Ex. P/2) of axe was not proved and it was not proved that by this axe the appellant assaulted complainant Kaluram. Since the complainant Kaluram (PW5) has not supported the fact that he was assaulted by axe, therefore, it was not proved that he was assaulted by the axe and the injuries No.1, 2 & 3 to accused Kal uram were caused by the Seized axe. Under these circumstances the appellant was not liable to be convicted under section 326 of the IPC. 12. As regard the other injuries No.4, 5 & 6 it was bruise and according to complainant Kaluram (PW-5) he was assaulted by the appellant Siddhu Singh @ Sardar Singh, therefore, the appellant is liable to be convicted under section 3230ftheIPC. 13. Therefore, on the basis of the above discussion the appellant is liable to be acquitted from the charges under section 326 of the IPC and convicted under section 323 of the IPC, therefore, this appeal is partly allowed and the appellant is convicted under section 323 of the IPC with fine of Rs. 2,500/-. Therefore, the appellant is convicted under section 323 of the IPC with fine of Rs. 2,500/out of which Rs. 2,000/- shall be paid to the complainant Kaluram as compensation under section 357 of the CrPC. 2,500/-. Therefore, the appellant is convicted under section 323 of the IPC with fine of Rs. 2,500/out of which Rs. 2,000/- shall be paid to the complainant Kaluram as compensation under section 357 of the CrPC. The fine should be deposited within two months of this judgment otherwise he will have to undergo rigorous imprisonment for three months. The fine earlier deposited shall be adjusted in this amount. Hence, ordered accordingly.