Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1003 (MP)

Vinod v. State of M. P.

2012-10-05

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellants have preferred this appeal against the judgment dated 10.4.1997 passed by the learned Seventh Additional Sessions Judge, Jabalpur in S.T. No. 1013/1992, whereby the appellants were convicted for the offence punishable under section 307 or 307 read with section 34 of I.P.C. and each sentenced for 3 years' rigorous imprisonment. Prosecution's story, in short, is that, on 1.4.1992, at about 4 p.m. in the evening, the complainant Golu Yadav (P.W. 4) was standing near the shop of Mohan in the locality of Riz Road, Jabalpur. The appellants Sanjay and Vinod came to him and called him. Both of them had Baka in their hands. When the complainant asked as to why he was detained, the appellants started assaulting him by those Bakas. The appellant Sanjay assaulted him by a Baka on his head for three times. Thereafter, on his back also. He sustained some injuries on his ankle joint, fingers of his right hand and on other places. A boy having beard had also assaulted him. Rakesh, Raju and Rakesh Pillai, who were standing near the spot, ran to save the complainant. Thereafter, he was taken to the Police Station Cantt., Jabalpur, where he had lodged an FIR, Ex. P/8. He was sent for his medico legal examination and treatment to the Government hospital. Dr. Anil Dubey (P.W. 1) examined the complainant Golu at Victoria Hospital, Jabalpur at about 5.30 p.m. and found four incised wounds to him. Out of them, three were on the head and one set of wounds was near the small and middle fingers of the right hand. Three abrasions were also found, which were situated on right thigh and right leg. Dr. Dubey gave his report, Ex. P/1 and referred the complainant for his x-ray examination. He was admitted in the hospital. After due investigation, a charge-sheet was filed before the JMFC, Jabalpur, who committed the case to the Sessions Court and ultimately, it was transferred to the Seventh Additional Sessions Judge, Jabalpur. 2. The appellant abjured his guilt. The appellant Vinod did not take any specific plea but, he has stated that he was falsely implicated in the matter, whereas the appellant Sanjay has stated that the complainant Golu outraged the modesty of his sister by using a criminal force, therefore, an FIR was lodged against him. 2. The appellant abjured his guilt. The appellant Vinod did not take any specific plea but, he has stated that he was falsely implicated in the matter, whereas the appellant Sanjay has stated that the complainant Golu outraged the modesty of his sister by using a criminal force, therefore, an FIR was lodged against him. Golu on the date of the incident, insisted the appellant Sanjay to withdraw that FIR and therefore, he started assaulting the appellant Sanjay. The appellant Sanjay sustained so many injuries in the incident and he had no knowledge as to how the complainant was injured. In defence, the medical report of the appellant Sanjay was proved by Dr. Arun Saxena (D.W. 3). Also David Messy (D.W. 1) and Vimal Kumar (D.W. 2) were examined in support of the defence version. 3. The learned Additional Sessions Judge, after considering the evidence adduced by the parties, convicted the appellant Sanjay for the offence punishable under section 307 of IPC, whereas the appellant Vinod was convicted for the offence punishable under section 307 read with section 34 of I.P.C. and they were sentenced as mentioned above. 4. The appellant Sanjay has expired during the pendency of the appeal and therefore, the appeal filed by the appellant Sanjay turned abated. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellant No. 2 has submitted that if evidence given by the complainant is perused then, a lot of contradictions are visible in his evidence. In the FIR, he alleged against two known persons and one unknown beard person, whereas in the trial Court, he told about four persons without any basis. The entire allegation of the complainant was against the appellant Sanjay, who had lodged an FIR against the complainant for teasing his sister. There was enmity between the parties and therefore, the complainant implicated all the friends of the appellant Sanjay unnecessarily. No common intention of the appellant Vinod is proved with the appellant Sanjay. Therefore, the appellant No. 2 could not be convicted for the offence punishable under section 307 of I.P.C. either directly or with help of section 34 of I.P.C. At the most, he could be convicted for the offence punishable under section 323 of I.P.C. He remained in the custody for one month and 8 days. Therefore, the appellant No. 2 could not be convicted for the offence punishable under section 307 of I.P.C. either directly or with help of section 34 of I.P.C. At the most, he could be convicted for the offence punishable under section 323 of I.P.C. He remained in the custody for one month and 8 days. He is the first offender and he was of tender age, at the time of the incident. Under such circumstances, he shall not be sent to the jail again. 7. On the other hand, learned Panel Lawyer has submitted that the conviction as well as sentence directed by the trial Court appears to be appropriate. 8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant is acceptable? And whether the sentence directed against the appellant can be reduced? 9. The complainant Golu Yadav (P.W. 4) has stated that the appellant Sanjay assaulted him by a Baka and caused him several injuries on his head, back and hand. He has also stated that the appellant Vinod had two small cans fitted with a chain and he assaulted him by that weapon. Golu told against 4-5 persons that they assaulted him in a bad manner. It is very strange that no eye witness had supported the testimony of the victim Golu Yadav. Out of so many eye witnesses, some were released without their examination, whereas Rakesh Pillai (P.W. 8) was examined but, he turned hostile. He has stated that he found the victim in injured condition and therefore, he took him to the Police Station but, he could not see the incident. 10. The complainant Golu Yadav had lodged an FIR, Ex. P/8 at Police Station Cantt., 40 minutes after the incident and he had lodged a named FIR against the appellants. Though the appellant Sanjay has expired but, his crime is to be considered because the appellant Vinod is convicted for his crime with help of section 34 of I.P.C. In the FIR, it was specifically mentioned that the appellant Sanjay assaulted the victim by a Baka, causing him so many injuries. Dr. Anil Dubey (P.W. 1) examined the victim Golu Yadav and gave his report, Ex. P/1. Dr. Anil Dubey (P.W. 1) examined the victim Golu Yadav and gave his report, Ex. P/1. Looking to the all injuries caused to the victim, he found that the injuries were fatal in nature. However, neither any vital part of the victim was found cut nor any fracture was found to the complainant. He has simply told that if the victim was not treated, he could have died due to bleeding. The version of Dr. Dubey was not sufficient to show that the injuries were fatal in nature. However, the cumulative affect of the injuries may be considered as fatal and therefore, injuries were grievous as per the provisions of section 320(8) of the I.P.C. 11. On the basis of the medical report and FIR, some parts of the evidence given by the complainant Golu appears to be acceptable. It is proved that the appellant Sanjay assaulted the victim Golu Yadav by a Baka on several parts of his body but, neither he assaulted the victim in a forceful manner, nor he assaulted him so that any stab injury could have been caused or any vital part could be damaged. Under such circumstances, the appellant Sanjay was never intended to kill the victim Golu Yadav or to cause him any fatal injury. The learned Additional Sessions Judge has erred in convicting the appellant Sanjay for the offence punishable under section 307 of I.P.C. At the most, he could be convicted for the offence punishable under section 326 of I.P.C. 12. So far as the overt-act of the appellant Vinod is concerned, in FIR, the complainant has stated that the appellant Vinod had a Baka in his hand and he assaulted the victim by that Baka. The appellant Vinod could be held responsible for the injuries caused by sharp cutting weapons along with the appellant Sanjay but, before the Court, the complainant took a somersault against the appellant Vinod. He has stated that the appellant Vinod had a chain fitted with two small pieces of cans and he assaulted him by such a weapon. Looking to the description of the weapon, it appears that it was a hard and blunt object and therefore, the appellant Vinod is free from such injuries, which were caused to the complainant Golu by sharp cutting weapons. Looking to the description of the weapon, it appears that it was a hard and blunt object and therefore, the appellant Vinod is free from such injuries, which were caused to the complainant Golu by sharp cutting weapons. The complainant Golu sustained only 3 abrasions, which were not caused by the sharp cutting weapon, whereas he has stated that he was also assaulted by one beard person. Looking to the contradictions visible in the evidence given by the complainant Golu Yadav to the facts mentioned in the FIR, it appears that the appellant Vinod did not participate in the crime so much. He was present in the event but, he did not assault in such a manner, so that any specific allegation could be made against him for that assault. In India, the maxim falsus in uno, falsus in omnibus is not applicable and therefore, it is the duty of the Court to pick the grains of truth from the chasm of the falsehood. Under such circumstances, looking at the evidence given by the victim Golu and the FIR, it appears that a very small portion of the evidence given by the complainant Golu is acceptable. It appears that the appellant Vinod was present at the time of the incident and he supported the appellant Sanjay by assaulting for once to the complainant. 13. Looking to the background of the case, the appellant Sanjay tried to prove that the complainant was the aggressor and therefore, he tried to prove his injuries by Dr. Arun Saxena (P.W. 3). Similarly, Vimal Kumar (D.W. 2) has stated about the incident that it was initiated by the victim but, FIR lodged by the appellant Sanjay or Vimal Kumar was not proved before the Court. Dr. Arun Saxena examined the appellant Sanjay on 3.4.1992, whereas the incident took place on 1.4.1992. The injuries found by Dr. Arun Saxena could be caused within two days of his examination i.e. after the incident and therefore, by proof of the medical report, Ex. D/2, it cannot be said that the appellant Sanjay received such injuries in the same incident and therefore, it cannot be said that the complainant Golu was the aggressor. If it is accepted that the complainant Golu was the aggressor then, there was no explanation given by the appellant Sanjay as to how the victim Golu sustained the injuries. D/2, it cannot be said that the appellant Sanjay received such injuries in the same incident and therefore, it cannot be said that the complainant Golu was the aggressor. If it is accepted that the complainant Golu was the aggressor then, there was no explanation given by the appellant Sanjay as to how the victim Golu sustained the injuries. Why he had a Baka at the time of the incident and therefore, it is no where established that the appellants did anything in the right of private defence or due to any sudden or grave provocation. 14. However, it is apparent that the appellant Vinod was present with the appellant Sanjay and they did not know at the time that the complainant Golu will pass from that place and therefore, it was not a planned crime. Suddenly, the complainant Golu had visited from that place, where the appellant Sanjay was standing and therefore, the incident took place in a spur of moment. Common intention of the appellant Vinod cannot be presumed with the appellant Sanjay prior to the incident. His common intention in the incident may be considered by his own activities shown in support of the appellant Sanjay. It is no where established that the appellant Vinod assaulted the victim Golu to which portion of his body and by which weapon. No specific allegation against the appellant Vinod is made by the complainant that he assaulted by a particular weapon on particular part of his body. On the contrary, in the FIR, the complainant had mentioned that the appellant had a Baka (Daggar), whereas before the Court, he had stated that the appellant Vinod had pieces of sticks fitted with a chain and therefore, it appears that the appellant Vinod assaulted to the complainant for once only. 15. On the contrary, in the FIR, the complainant had mentioned that the appellant had a Baka (Daggar), whereas before the Court, he had stated that the appellant Vinod had pieces of sticks fitted with a chain and therefore, it appears that the appellant Vinod assaulted to the complainant for once only. 15. After considering the overt-act of the appellant Vinod, proved by the prosecution evidence, it cannot be said that he had any common intention with the appellant Sanjay and therefore, neither the appellant Vinod assaulted the victim in such a manner, so that he could get any grievous injury, nor he had any common intention with the appellant Sanjay then, the appellant Vinod could not be convicted for the offence punishable under section 307 or 326 of I.P.C. either directly or with help of section 34 of I.P.C. The learned Additional Sessions Judge has erred in convicting the appellant Vinod for the offence punishable under section 307 read with section 34 of I.P.C. 16. Looking to the overt-act of the appellant Vinod, he can be convicted for the offence punishable under section 323 of I.P.C. The appellant Vinod was a young youth of 25 years of age at the time of the incident, who was the first offender and who remained in the custody for 5 weeks and therefore, looking to his overt-act and his age, with the fact that he faced the trial and appeal for the last 18 to 19 years, it is a good case, in which the appellant is not required to be sent to the jail again. Only some fine may be imposed upon the appellant for his crime. 17. On the basis of the aforesaid discussion, the appeal filed by the appellant Vinod is hereby partly allowed. His conviction and sentence for the offence punishable under section 307 read with section 34 of I.P.C. is hereby set aside. He is acquitted from the said charge but, he is convicted for the offence punishable under section 323 of I.P.C. and sentenced for a period of jail sentence, which he has already undergone in the custody with a fine of Rs. 1,000/-. In default of payment of fine, he shall undergo for three months simple imprisonment. The appellant is directed to deposit the fine amount before the trial Court within two months from today. 18. At present the appellant Vinod is on bail. 1,000/-. In default of payment of fine, he shall undergo for three months simple imprisonment. The appellant is directed to deposit the fine amount before the trial Court within two months from today. 18. At present the appellant Vinod is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and to execute the default sentence, if the appellant Vinod does not deposit the fine amount.