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2012 DIGILAW 398 (MP)

Sanju @ Ram Sajivan v. State of M. P.

2012-04-12

RAKESH SAKSENA, S.C.SINHO

body2012
JUDGMENT Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 13.9.2002 passed by I Additional Sessions Judge, Katni in Sessions Trial No.532/2000 convicting and sentencing them as under : Conviction Sentence Appellant No.1 U/s 307 IPC RI for life and fine of Rs.10,000/- in default of fine further RI one year U/s 324/34 IPC RI for 3 years and fine of Rs.5,000/- in default of fine amount further RI for 3 months. U/s 323 IPC RI for 1 year and fine of Rs.250/- in default of fine amount further RI for 1 month. Appellants No.2,3 & 4 U/s 307/34 IPC RI for 10 years and fine of Rs.5,000/- each. In default of fine further RI for 6 months. Appellant No.2 U/s 324 IPC RI for 3 years fine of Rs.500/- in default of fine further RI for 3 months. Appellants No.3 & 4 U/s 324/34 IPC RI for 3 years and fine of Rs.500/- each in default of fine further RI for 3 months. (Sentences to run concurrently) 2. In short, the prosecution case is that on 16.5.2000, at about 10:30 p.m., when Sunil (PW3) heard that appellant Sanju was beating Ramvishal in front of his house, he rushed to that place. Moujilal (PW2), Rampal (PW10) and Sendhubai (PW9) also reached there. They intervened and Moujilal snatched away the stick from the hand of Sanju. Other appellants were also present there. A few minutes thereafter when Sarpanch Lakhan Patel, the elder brother of Sunil, reached there and told to appellant Jagdish Patel as to why he was making them quarrel and why he did not ask the boys to refrain from quarrelling, appellants Jagdish and Durga Patel told that their real enemy had come and appellants should kill them. Appellants Ayodhya and Sanju immediately thereafter brought a farsa and sword from the Parchhi of their house. Sanju dealt a blow of farsa on the head of Lakhan due to which he fell down. When Sunil (PW3) tried to catch Sanju, appellant Ayodhya dealt blows of sword to him causing injuries on his neck and left scapula. All the four appellants then caught Sunil and carried him inside their house, but somehow he escaped by jumping over the wall of the house. When Sunil (PW3) tried to catch Sanju, appellant Ayodhya dealt blows of sword to him causing injuries on his neck and left scapula. All the four appellants then caught Sunil and carried him inside their house, but somehow he escaped by jumping over the wall of the house. Sunil and Ramvishal carried injured Lakhan on a motorcycle to Police Station Barhi where Sunil (PW3) lodged the first information report Ex.P-11 at 11:00 p.m. Station Officer B.D. Pandey (PW11) sent the injured persons to Primary Health Centre, Barhi for treatment and medico legal examination. Dr. Kamla Patel (PW1) examined the injuries of Lakhan Patel, Sunil and Ramvishal. Lakhan Patel was unconscious and was vomiting. There was an incised wound on his head and his brain matter was exposed. He referred Lakhan Patel for X-ray examination and effective treatment to Government Hospital, Katni. Dr. Kamla Patel found two incised injuries on the body of Sunil and four injuries of hard and blunt object on the body of Ramvishal. Lakhan Patel was further examined by Dr. Anupam Dixit (PW12) of Medical College, Jabalpur and Dr. Alok Agrawal (PW14), neuro-surgeon of Jabalpur Hospital. Radiological examination was performed by Sanjay Kumar (PW13) in Medical College, Jabalpur. 3. During investigation, accused persons were arrested and weapons were seized from their possession. After further requisite investigation, charge-sheet was filed and case was committed for trial. 4. During trial, appellants abjured their guilt and pleaded false implication by the interested witnesses because of enmity. According to them, Lakhanlal was beaten by some unknown persons near the place of Ramlila. They also examined 5 witnesses in their defence to show that the incident did not take place at the spot as stated by the prosecution and that there was no light at the place of occurrence. 5. Learned trial Judge relying mainly on the evidence of eye-witnesses Moujilal (PW2), Sunil (PW3), Ramvishal (PW5), Gudda Patel (PW7), Sendhu Bai (PW9) and Rampal (PW10) and the medical evidence of Dr. Kamla Patel (PW1), Dr. Anupam Dixit (PW12), Dr. Sanjay Kumar (PW13) and Dr. Alok Agrawal (PW14), held the appellants guilty and convicted and sentenced them as mentioned above. Aggrieved by their conviction and sentence, appellants have filed this appeal. 6. Learned counsel for the appellants submitted that the evidence of alleged eye-witnesses was not reliable. Learned trial Judge mis-appreciated their evidence and convicted them of the aforesaid charges. Sanjay Kumar (PW13) and Dr. Alok Agrawal (PW14), held the appellants guilty and convicted and sentenced them as mentioned above. Aggrieved by their conviction and sentence, appellants have filed this appeal. 6. Learned counsel for the appellants submitted that the evidence of alleged eye-witnesses was not reliable. Learned trial Judge mis-appreciated their evidence and convicted them of the aforesaid charges. Shri R.S. Patel, learned counsel for appellants-Jagdish and Durga Prasad, submitted that the prosecution evidence in respect to them was inconsistent and contradictory. It was not established beyond doubt that these two appellants exhorted accused Sanju and Ayodhya to assault Lakhan Patel and Sunil Patel, as such their conviction was liable to be set aside.Shri S.K. Gangrade, Advocate, submitted that the assault on Lakhan Patel was made suddenly by appellant Sanju, therefore, other accused persons could not have been held liable under section 307 with the aid of section 34 IPC. On the other hand, Shri Umesh Pandy, learned counsel for the State, submitted that the evidence of injured witnesses namely Sunil (PW3), Ramvishal (PW5) as well as other witnesses was fully trustworthy. Their evidence stood corroborated with the medical evidence, therefore, trial Court committed no error in convicting the appellants. 7. We have heard the learned counsel for the parties, perused the impugned judgment and the evidence on record carefully. 8. Injured witness Ramvishal (PW5) deposed that at about 10 o’clock in the night when he was going to his house, as soon as he reached in front of the house of accused Ayodhya Patel, accused Sanju Patel started beating him with lathi. He fell down. When he shouted, Moujilal and Sunil Patel snatched away lathi from accused Sanju. In the meanwhile, Rampal and Sendhu Bai also reached there. Accused Durga Patel and Jagdish Patel, who were present at the spot, did not ask assailants not to beat him. When Sarpanch Lakhan Patel reached there and admonished Jagdish Patel as to why he was getting his boys killed and was not asking his boys to refrain from beating, Jagdish Patel told that he was the real enemy and he should be killed. Accused Sanju and Ayodhya Patel then went to their Parchhi and brought farsa and sword. Sanju dealt a blow of farsa on the head of Lakhan as a result of which he fell down. Accused Sanju and Ayodhya Patel then went to their Parchhi and brought farsa and sword. Sanju dealt a blow of farsa on the head of Lakhan as a result of which he fell down. When Sunil tried to catch hold of Sanju, accused Ayodhya dealt blows of sword on his neck and back. All the four accused persons then carried Sunil into their house, but somehow Sunil escaped and came out. He and Sunil then carried Lakhan to hospital and Sunil went to police station for lodging the report. In the cross-examination, though suggestions were made that there was no light and the accused persons were falsely implicated due to Election rivalry, but all of them were firmly denied. This witness categorically stated that he saw accused persons assaulting Lakhan and Sunil. It is also significant to note that both the parties were known to each other from before. Before the assault was launched on Lakhan, this witness (Ramvishal) was being assaulted by accused Sanju Patel. In these circumstances, trial Court was justified to hold that there was no mistake in identification of assailants. It is true that Ramvishal (PW5) did not mention in his police statement Ex.D-3 that accused Ayodhya assaulted Sunil with a “sword”, but it does not affect his credibility in view of the fact he mentioned that he assaulted Sunil on his neck and back. 9. Evidence of Ramvishal (PW5) finds corroboration from the evidence of Sunil (PW3), Moujilal (PW2), Gudda Patel (PW7), Sendhu Bai (PW9) and Rampal (PW10). Sunil (PW3) reiterated the same story as given by Ramvishal. He stated that on hearing hue and cry of the quarrel, he went in front of the house of accused Ayodhya and saw accused Sanju Patel assaulting Ramvishal with a lathi. He and Moujilal (PW2) snatched lathi from Sanju. All the four accused persons including Durga Prasad and Jagdish were present at the spot. Hearing about quarrel, when his elder brother Lakhan came at the spot and admonished Jagdish as to why they were not asking their boys not to assault Ramvishal, they shouted that their real enemy had come and asked other accused persons to kill him. Accused Sanju and Ayodhya went to their Parchhi and brought farsa and sword. Sanju dealt a blow of farsa on the head of Lakhan. Lakhan fell down. Accused Sanju and Ayodhya went to their Parchhi and brought farsa and sword. Sanju dealt a blow of farsa on the head of Lakhan. Lakhan fell down. When Sanju attempted to repeat the blow, he caught him but accused Ayodhya dealt two blows from the sword on him causing injuries on his neck and back. All the four accused persons caught him and forcibly carried him into their house and closed the door, but by climbing the wall he escaped. He and Ramvishal then carried Lakhan on a motorcycle to hospital and he went to Police Station Barhi to lodge the report. Similar statements were made by Moujilal (PW2), Gudda Patel (PW7), Sendhu Bai (PW9) and Rampal (PW10). Though some inconsistencies and contradictions were pointed out by the learned counsel in the evidence of these witnesses, but they were not substantial or material in nature. Their evidence appeared consistent, cogent and truthful. The evidence of Sunil (PW3) stood corroborated from the first information report Ex.P-11 which was lodged by him only within half an hour after the incident. 10. Evidence of complainant Sunil (PW3) and Ramvishal (PW5) seems further reliable since they also suffered injuries in the same incident. Dr. Kamla Patel (PW1) categorically stated that on examining person of Sunil Patel, he found (i) incised wound 3”x1” x muscle deep on left scapula bone; and (ii) incised wound 2”x1 x muscle deep on occipital bone. He stated that injuries of Sunil were simple in nature. His injury report was Ex.P-4. Similarly, on examination of Ramvishal, he found (i) swelling 2”x2” on right elbow; (ii) swelling 1”x1/2” under the left eye; (iii) abrasion 2”x1/4” on eighth rib of left side and (iv) contusion 3”x1” on his back. Injury report of Ramvishal is Ex.P-6. In the opinion of Dr. Kamla Patel, the injuries of Sunil were caused by sharp edged weapon like sword and the injuries found on the body of Ramvishal could have been caused by hard and blunt object. Thus, the presence of these two witnesses at the spot could not be doubted. 11. The fact, as stated by the eye-witnesses, that appellant Sanju dealt a blow with farsa on the head of Lakhan Patel also stands corroborated by the evidence of Dr. Kamla Patel (PW1). Dr. Kamla Patel deposed that on 16.5.2000, constable Ambika Prasad brought Lakhan Patel to P.H.C. Barhi in an injured condition. 11. The fact, as stated by the eye-witnesses, that appellant Sanju dealt a blow with farsa on the head of Lakhan Patel also stands corroborated by the evidence of Dr. Kamla Patel (PW1). Dr. Kamla Patel deposed that on 16.5.2000, constable Ambika Prasad brought Lakhan Patel to P.H.C. Barhi in an injured condition. He examined his injuries and recorded them in his report Ex.P-2. Lakhan Patel was in unconscious state and was vomiting. There was an incised wound, 8”2”xbone deep, which extended from forehead to the mid-parietal region of his skull. It was bleeding. His brain matter was exposed. He referred the patient for further treatment to District Hospital, Katni. Dr. Anupam Dixit (PW12), who treated Lakhan Patel in Medical College, Jabalpur, stated that Lakhan Patel was admitted in Medical College on 16.6.2000. He remained admitted till 13.7.2000. This patient was brought to Medical College on being referred from Jabalpur Hospital. On examination, he found an incised injury on his head which was 12x1 cm in size. It was in stitched condition. The condition of patient was serious. In CT scan, number of fractrures were seen in his fronto parietal bone.This injury was caused to him by some hard and sharp object. Dr. Sanjay Kumar (PW13), a radiologist of Medical College, Jabalpur stated that there was fracture in parietal bone of Lakhan Patel. His X-ray plate and X-ray report were respectively Ex.P-36 and Ex.P-37. 12. Dr. Alok Agrawal (PW14), neuro-surgeon of Jabalpur Hospital, stated that on 17.5.2000 Lakhan Patel was brought to his hospital from Government Hospital Katni. He was semi-conscious, but was not responding the commands. There were injuries on his head admeasuring 6”x2”x2”. Skull bone was fractured and scattered. The brain of injured was draining out. Pieces of fronto parietal bone had damaged the brain. His MLC report Ex.P-38 was written and signed by him. In the opinion of Dr. Alok Agrawal, the patient was not able to speak. The nature of injury of Lakhan Patel was dangerous and grievous. 13. After closely scanning and scrutinizing the evidence of aforesaid prosecution witnesses, we find that it has been amply established that appellant Sanju @ Ram Sajivan assaulted Lakhan Patel on his head with farsa due to which he received dangerous and grievous injuries. The nature of injury of Lakhan Patel was dangerous and grievous. 13. After closely scanning and scrutinizing the evidence of aforesaid prosecution witnesses, we find that it has been amply established that appellant Sanju @ Ram Sajivan assaulted Lakhan Patel on his head with farsa due to which he received dangerous and grievous injuries. From the nature of his act, the weapon used and the part of body on which the injury was caused, it can be unhesitatingly concluded that appellant Sanju intended to commit murder of Lakhan Patel. 14. Now the question before this Court is whether appellants Ayodhya, Jagdish and Durga Prasad were rightly convictred under section 307/34 IPC. 15. Learned counsel for the appellants on the basis of the evidence of Sendhu Bai (PW9) and Ramvishal (PW5) argued that it was only Jagdish Patel, who on coming of Lakhan Patel, told that their real enemy had come and he should be killed. They did not say that these words of exhortation were uttered by appellant Durga Prasad also. Their evidence is inconsistent and militates against the evidence of other witnesses who stated that simultaneously Durga Prasad and Jagdish both shouted that Lakhan Patel should be killed. We find substance in the submission made by learned counsel for the appellants. 16. Since Sendhu Bai (PW9) and Ramvishal (PW5), who admittedly were present at the spot, did not say that appellant Durga Prasad also exhorted other accused persons to kill Lakhan Patel, it created doubt that Durga Prasad also exhorted other accused persons to kill Lakhan Patel. However, the evidence of these witnesses as well as of other prosecution witnesses is clear and consistent in respect of appellant Jagdish that he exhorted to other accused persons to kill Lakhan Patel saying that he was the real enemy, and that in pursuance to his exhortation, appellants Sanju and Ayodhya brought farsa and sword to assault Lakhan Patel. Thus, in our opinion, the conviction of appellant Durga Prasad under section 307 read with section 34 IPC was not justified. 17. Since from the evidence of prosecution witnesses, it has been established that on the exhortation by appellant Jagdish, Sanju and Ayodhya brought farsa and sword from their Parchhi, and Sanju gave a farsa blow on the head of Lakhan Patel, trial Court, in our opinion, committed no error in holding appellant Sanju guilty of the offence under section 307 IPC. Since from the evidence of prosecution witnesses, it has been established that on the exhortation by appellant Jagdish, Sanju and Ayodhya brought farsa and sword from their Parchhi, and Sanju gave a farsa blow on the head of Lakhan Patel, trial Court, in our opinion, committed no error in holding appellant Sanju guilty of the offence under section 307 IPC. It has also been proved that when Sunil tried to save Lakhan Patel by catching accused Sanju, appellant Ayodhya @ Sakit dealt two blows with sword to him. This clearly indicated that appellant Ayodhya shared common intention with appellant Sanju in his attempt to commit murder of Lakhan Patel. We have already discussed that the deadly assault on Lakhan Patel was made only on the exhortation given by appellant Jagdish, therefore, in our opinion, the conviction of appellant Jagdish by the trial Court under section 307/34 IPC was clearly justified. 18. As far as conviction of appellant Ayodhya under section 324 IPC and conviction of other appellants under section 324/34 IPC is concerned, from the evidence of Sunil (PW3) which stood corroborated by the evidence of Ramvishal (PW5), other eye-witnesses and also by the medical evidence of Dr. Kamla Patel (PW1), we find that learned trial Judge committed no error in recording the finding of conviction. It is, accordingly, affirmed. Similarly, we find no error in conviction of appellant Sanju @ Ram Sajivan under section 323 IPC for causing simple hurt to Ramvishal Patel by lathi. 19. On the question of sentence, learned counsel for the appellants submitted that in view of the efflux of a long time and in view of the different acts attributed to appellants, their sentences deserved to be reduced. Appellant Sanju @ Ram Sajivan is in custody since 19.5.2000. He has already served out imprisonment for a period over 11 years. He has been sentenced to imprisonment for life under section 307 IPC. Learned counsel for the appellants prayed for reduction of his sentence to the period of sentence already undergone by him. Learned counsel submitted that appellants Ayodhya and Jagdish who have been sentenced to rigorous imprisonment for 10 years under section 307/34 IPC be also dealt with liberally, since they did not cause any injury to injured Lakhan Patel. For causing injury to injured Sunil Patel, they have already been convicted under sections 324 and 324/34 IPC. Learned counsel submitted that appellants Ayodhya and Jagdish who have been sentenced to rigorous imprisonment for 10 years under section 307/34 IPC be also dealt with liberally, since they did not cause any injury to injured Lakhan Patel. For causing injury to injured Sunil Patel, they have already been convicted under sections 324 and 324/34 IPC. Appellant Ayodhya has remained in jail for a period of 8-1/2 months. Appellants Jagdish and Durga have remained in jail for a period of about 3 months. On the other hand, learned counsel for the State submitted that in view of the serious nature of injuries caused to Lakhan Patel, and the act attributed to appellant Ayodhya in causing injury to Sunjil also, the sentences of aforesaid appellants did not deserve to be reduced even on the ground that the incident had occurred in the year 2000 and about 11 years have been elapsed. 20. After due consideration of the submissions made by learned counsel for the parties and keeping in view the nature of the different acts attributed to appellants, we are of the view that the sentences of the appellants may be reduced to some extent. 21. For the reasons stated hereinabove : (a) Conviction of appellant No.1 Sanju @ Ram Sajivan under sections 307, 324/34 and 323 IPC is affirmed. His sentence of imprisonment for life is reduced to the period of rigorous imprisonment already undergone by him. Sentence of fine of Rs.10,000/- as imposed on him is affirmed. His conviction and sentences under sections 324/34 and 323 IPC are affirmed. (b) Conviction of appellant No.2 Ayodhya @ Sakit @ Lallu and appellant No.3 Jagdish under section 307/34 IPC is affirmed. However, their sentence of rigorous imprisonment for 10 years is reduced to rigorous imprisonment for three years. Sentence of fine of Rs.5,000/- is affirmed. Conviction and sentences of appellant No.2 under section 324 IPC and of appellant No.3 under section 324/34 IPC are affirmed. (c) Conviction and sentence of appellant No.4 Durga Prasad under section 307/34 IPC is set aside. He is acquitted of that charge. His conviction and sentence under section 324/34 IPC, as awarded by the trial Court, are affirmed. 22. Appeal partly allowed. .............