Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1136 (MP)

Suraj Gond v. State of M. P.

2012-11-06

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 26/5/1998 passed by the 7th Additional Sessions Judge, Jabalpur in ST No. 610/1997, whereby the appellant was convicted for commission of offence punishable under Section 324 of IPC and sentenced for three years' RI. The prosecution's case, in short, is that on 21.6.1997 at about 9-10 AM in the night the appellant took the deceased Sukhlal with him. On the next day morning at about 7:00 AM Sukhlal came back to his house situated at Village Pidrai (Police Station Bargi District Jabalpur). He had an injury on the back of his head. On enquiry, he informed his father Motilal (PW-1) that the appellant assaulted him by a stone under intoxication. Motilal was bent upon to lodge an FIR about the incident, but various persons namely Ginna (PW-2), Domari (PW-4), Kashiram (PW-5) etc. had told him that the appellant was providing the money for the treatment, and therefore it was not necessary to lodge an FIR. After ten days of the incident when the deceased Sukhlal was not cured, the complainant Motilal lodged an FIR at Police Station Bargi, which was recorded on Rojnamcha at Sl. No. 956 Ex. P-4. Initially the deceased Sukhlal was shown in the Medical College Hospital, Jabalpur, but thereafter it was found that the deceased Sukhlal was suffering from tetanus, and therefore he was shifted to the Victoria Hospital, Jabalpur. Dr. Abdul Hakim Khan (PW-7) gave his report Ex. P-2 after examining the deceased Sukhlal. Dr. S.K. Shrivastava (PW-12) examined the deceased Sukhlal on 30.6.1997 where the deceased Sukhlal was admitted in the Victoria Hospital, Jabalpur for treatment of tetanus. He found an old bruise on the occipital region of the head of the deceased and he was not conscious. He was feeling some jerks. Thereafter the deceased had expired. Dr. A.K. Yadu (PW-6) performed the postmortem on the body of the deceased at the Medical College, Jabalpur and gave his report Ex. P-1. He could not opine about the reason of death of the deceased, but according to his medical history he died due to tetanus. After due investigation, a charge sheet was filed before the JMFC, Jabalpur who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the 7th Additional Sessions Judge, Jabalpur. 2. The appellant-accused abjured his guilt. After due investigation, a charge sheet was filed before the JMFC, Jabalpur who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the 7th Additional Sessions Judge, Jabalpur. 2. The appellant-accused abjured his guilt. He did not take any specific plea in the matter and therefore no defence evidence was adduced. 3. The learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the appellant from the charges of offence punishable under Section 302 of IPC, but convicted him for commission of offence punishable under Section 324 of IPC and sentenced as mentioned above. 4. The appellant was enlarged on bail during the pendency of the appeal and thereafter he did not appear. Ultimately, he was brought before the Court with the help of an arrest warrant. He could not locate his old Advocate and being a poor person he could not engage any Advocate from his side, and therefore Shri D.K. Sharma, Advocate, who is in the panel of the High Court Legal Services Authority was appointed to argue the matter on behalf of the appellant and to assist the Court. Thereafter I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that it is nowhere proved that the appellant assaulted the victim by stone. There was no eye-witness in the case and the oral dying declaration given by so many witnesses is not trustworthy. However, it is submitted that the appellant remained in the custody for more than 11 months during the trial and he is in custody at present since 10.10.2012. Under such circumstances, his custody period is above one year. Looking to his overt-act, his sentence may be reduced to the period which he has already undergone in the custody. 6. On the other hand, the learned counsel for the State has submitted that the trial Court was kind enough to acquit the appellant for the charge of offence under Section 302 of IPC, and therefore the conviction as well as the sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be done in the appeal. 7. 7. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal of the appellant can be accepted? And whether the sentence directed by the trial Court against the appellant can be reduced? 8. In the present case Sumrat (PW-9), Pentilal (PW-10) and Gendalal (PW-11) were examined as eyewitnesses, who have stated that a quarrel took place between the deceased Sukhlal and the appellant due to intoxication and the appellant assaulted the victim by a stone on the back of his head, and therefore the head was broken. No enmity of the appellant is established with these witnesses, and therefore they appeared to be reliable. It is true that Motilal (PW-1) father of the deceased had lodged an FIR Ex. P-4 with a delay of ten days, but he has given a reason that the appellant was his relative, and therefore he did not want to take any action against the appellant because the appellant was bearing expenditure incurred in the treatment of the deceased. But when the physical condition of the deceased was deteriorated and his entire body was stretched due to tetanus, thereafter he had lodged an FIR. The reason of delay shown by the complainant appears to be acceptable. The deceased, the complainant and the appellant were relatives, and therefore there is no possibility by which the complainant could tell a falsehood. Under such circumstances, the evidence given by the eye-witnesses is duly corroborated by the FIR lodged by the complainant Motilal (PW-1). 9. Ginna (PW-2), Baliram (PW-3), Domari (PW-4), Kashiram (PW-5) and Achhua (PW-8) have stated about the Panchayat which took place before them. Achhua (PW-8) has stated that the appellant accepted his guilt before him and he had stated that a quarrel took place between him and the deceased. All these witnesses have stated that the deceased informed about the incident and also informed that the appellant assaulted him by stone on the back of his head. Under such circumstances, where there is no enmity proved between the witnesses and the appellant, it is apparent that the evidence of such witnesses is acceptable. All these witnesses have stated that the deceased informed about the incident and also informed that the appellant assaulted him by stone on the back of his head. Under such circumstances, where there is no enmity proved between the witnesses and the appellant, it is apparent that the evidence of such witnesses is acceptable. By the evidence of these witnesses, an extra judicial confession of the appellant is also proved along with the dying declaration of the deceased which corroborates the testimony of the eye-witnesses further. Under such circumstances, it is proved beyond a reasonable doubt that the appellant assaulted the victim by a stone due to which the head of the victim was broken on the occipital region. 10. The eye-witnesses told that the deceased took a sum of Rs. 1500/- from the pocket of the appellant, but the learned counsel for the defence recorded the contradiction to that fact between the evidence given by the witnesses and their case diary statements, and therefore it is not proved that the deceased took a sum of Rs. 1500/-, hence at the time of assault no right of private defence was accrued to the appellant. It is nowhere proved that any sudden or grave provocation was given by the deceased to the appellant. Under such circumstances, the learned Additional Sessions Judge has rightly held that the appellant had voluntarily caused hurt to the deceased by a deadly weapon like a big stone, and hence the appellant was rightly convicted for the offence punishable under Section 324 of IPC. 11. So far as the sentence is concerned, the contention raised by the learned counsel for the appellant appears to be correct that the deceased died due to tetanus, and therefore the death of the deceased could not be connected with the overt-act of the appellant. If the deceased would have properly treated, then he sustained only simple injury on his head and he could be treated, therefore the sentence of the appellant should be considered on the basis of his overt-act and not because of the death of the deceased. The appellant assaulted the victim by a stone on his head, and therefore his head was broken, but only a simple injury was caused. Even in the postmortem report Dr. Yadu did not mention that any fracture was caused on the occipital region. The appellant assaulted the victim by a stone on his head, and therefore his head was broken, but only a simple injury was caused. Even in the postmortem report Dr. Yadu did not mention that any fracture was caused on the occipital region. Under such circumstances, one year's jail sentence appears to be more than sufficient for the guilt of the appellant. It appears that the learned Additional Sessions Judge has inflicted a harsh sentence upon the appellant by considering the death of the deceased. The appellant remained in the custody for more than one year, and therefore it appears that he has suffered proper sentence, and therefore his sentence can be reduced to the period which he has already undergone in the custody. 12. On the basis of above discussion, the instant appeal filed by the appellant is partly allowed. The conviction directed against the appellant by the trial Court for the offence under Section 324 of IPC is hereby maintained, but the jail sentence is reduced to the period which the appellant has already undergone in the custody. 13. The Registry is directed to issue a supersession warrant against the appellant forthwith so that the appellant may be released without any delay. A copy of this judgment be sent to the trial Court with its record for information and compliance.