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Madhya Pradesh High Court · body

2012 DIGILAW 642 (MP)

State of M. P. v. Jagbandhu

2012-06-29

N.K.GUPTA

body2012
JUDGMENT 1. The appellant-State has preferred this appeal against the judgment dated 27.1.1997 passed by the learned JMFC Nagod, District Satna (Shri S.K. Mishra) in Criminal Case No.179/1990 whereby the respondents were acquitted from the charges of offence punishable under sections 323 or 323 read with section 34 of IPC and section 325 read with section 34 of IPC. 2. Prosecution’s case in short is that on 8.3.1990 the respondents No.3 and 4 Raju and Bablu alias Balram were opening a door towards the land of complainant Ramsiya in their house. At about 3-4:00 p.m. the victim Ramsiya (PW1) protested against that act and requested them not to open the door on that side.Thereafter, respondents No.1 and 2 Jagbandhu and Daddi Lal assaulted the victim Ramsiya by a Sabbal causing him some injuries on his right leg and right hand. Tersiya, wife of Ramsiya, came to the spot to save her husband Ramsiya but, respondents Raju and Bablu alias Balram assaulted her by a Kudali causing her some injuries on her head. Witnesses Gulab Bai (PW2), Ramshiromani (PW3), Ramswayambar (PW4) etc. had saved the victims. Thereafter, victims were taken to the Police Station, Nagod on the same very day. At about 5:30 p.m. their report was recorded in Rojnamcha and they were sent to the hospital for their medico legal examination. 3. Dr. S.K. Jain had examined both the victims and found them injured. Ramsiya was referred to X-ray examination. Dr. Saraf (PW6) had submitted X-ray report Ex.P-3 with X-ray plate and found a fracture of right neck of femur to the victim Ramsiya. Police, Nagod after due investigation filed a charge-sheet before the concerned Magistrate. 4. The respondents abjured their guilt. They took a plea that they were falsely implicated in the matter. However, witnesses Shiv Prasad (DW1) and SunilKumar (DW2) were examined as defence witnesses. 5. Learned Judicial Magistrate First Class after considering the evidence adduced by the parties acquitted the respondents from the charges of offences punishabhle under sections 323 and 325 read with section 34 of IPC. 6. Learned Panel Lawyer submits that appreciation of evidence done by the trial Court appears to be faulty. 5. Learned Judicial Magistrate First Class after considering the evidence adduced by the parties acquitted the respondents from the charges of offences punishabhle under sections 323 and 325 read with section 34 of IPC. 6. Learned Panel Lawyer submits that appreciation of evidence done by the trial Court appears to be faulty. It is proved beyond doubt that the respondents assaulted the victim Ramsiya causing him a fracture of neck of femur whereas, some injuries were caused to Tersiya by the appellants and therefore, offence punishable under section 325 or section 325 read with section 34 and section 323 of IPC is appropriately made out against the respondents and therefore, they may be convicted and sentenced in appropriate manner. 7. Learned counsel for the respondents submits that at present respondents No.1 and 2 Jagbandhu and Daddi Lal have expired and therefore, no common intention of the remaining respondents is visible with them and therefore, remaining respondents cannot be convicted for offences punishable under section 325 of IPC directly or with the help of section 34 of IPC. Dr. Jain was not examined before the trial Court and therefore, it was not proved that the victim Tersiya sustained any injury or anyone assaulted the victim Tersiya and therefore, the respondents cannot be convicted for offences punishable under section 323 of IPC. Acquittal directed by the trial Court appears to be correct. In alternate it is submitted that incident took place in the year 1990 and the respondents have faced the trial as well as this appeal for 22 years and therefore, looking to their harassment a lenient view may be taken in passing the sentence. 8. It is true that during the pendency of this appeal the respondents No.1 and 2 have died. It is alleged against the respondents No.1 and 2 that they assaulted the victim Ramsiya causing him a fracture of femur neck. It was no where alleged by any of the witnesses that the respondents Bablu alias Balram or Raju assaulted the victim Ramsiya. Victim Ramsiya (PW1) has stated that Raju and Bablu alias Balram were breaking a wall to create a door when remaining respondents Jagbandhu and Daddi Lal were assaulting the victim Ramsiya when he took objection on opening of a door. Raju and Bablu alias Balram intervened in the quarrel when Tersiya wife of the victim Ramsiya came to the spot. Victim Ramsiya (PW1) has stated that Raju and Bablu alias Balram were breaking a wall to create a door when remaining respondents Jagbandhu and Daddi Lal were assaulting the victim Ramsiya when he took objection on opening of a door. Raju and Bablu alias Balram intervened in the quarrel when Tersiya wife of the victim Ramsiya came to the spot. Under such circumstances, it would be apparent that the respondents Bablu alias Balram and Raju were not at all involved in the assault caused to the victim Ramsiya. Under such circumstances, it is not established that the respondents Bablu alias Balram and Raju either assaulted Ramsiya or they had any common intention of assaulting to victim Ramsiya and therefore, respondents Bablu alias Balram and Raju cannot be convicted for offences punishable under section 325 of IPC either directly or with the help of section 34 of IPC. Under such circumstances, the learned Judicial Magistrate has rightly acquitted the respondents Raju and Bablu alias Balram for offences punishable under section 325 of IPC read with section 34 of IPC. 9. Ramsiya (PW1) has stated that Raju and Bablu alias Balram assaulted his wife Tersiya by a Kudali causing injury on her head. Though Dr. Jain was not examined before the trial Court and therefore, MLC report of victim Tersiya could not be proved. However, MLC report is a prosecution document which can be read in favour of the accused though it is not proved. In that injury report a single injury was found by Dr. Jain to the victim Tersiya on her head. No fracture was found. Under such circumstances, if two persons assaulted the victim Tersiya then there must be at least two injuries on her person. Looking to the medical report it appears that out of the respondents Bablu alias Balram and Raju, only one has assaulted the victim Tersiya. Ramsiya has admitted in para 6 of his cross-examination that when he was admitted in hospital his son Ramshiromani informed him that his wife Tersiya was assaulted by Raju and Bablu alias Balram and therefore, it appears that due to injuries caused to the victim Ramsiya he could not see the incident which took place with his wife. 10. Ramsiya has admitted in para 6 of his cross-examination that when he was admitted in hospital his son Ramshiromani informed him that his wife Tersiya was assaulted by Raju and Bablu alias Balram and therefore, it appears that due to injuries caused to the victim Ramsiya he could not see the incident which took place with his wife. 10. Gulab Bai (PW2) has stated that Tersiya was assaulted by both of the respondents Raju and Bablu alias Balram whereas the witness Ramshiromani (PW3) has stated that his mother Tersiya informed him that Bablu assaulted her by a Kudali on her head. Ramshiromani (PW3) was not an eye-witness. He went to the spot after the incident. Ramswayambar (PW4) has stated that accused Bablu alias Balram had assaulted the victim Tersiya by a Kudali on her head. Looking to the cross-examination of these witnesses no material contradiction arose relating to the fact that Bablu alias Balram assaulted the victim Tersiya by Kudali. Version of prosecution is duly corroborated by the FIR which as timely made. However, FIR was not properly proved. Ex.P-1 was a document of registration of the crime. It was not an FIR whereas Rojnamcha was not at all proved by the prosecution in which FIR was lodged. Therefore, though the version of the prosecution is corroborated by the FIR but, that corroboration cannot be accepted because FIR was not proved. It is also true that medical report of Tersiya was not proved and therefore, no corroboration from medical report can be taken. However, looking to the evidence of the witnesses, their version is acceptable and it is proved that the respondent Bablu alias Balram assaulted the victim Tersiya by a Kudali. By such an assault certainly pain must have been caused to the victim Tersiya and therefore, it can be said that Bablu alias Balram caused hurt to the victim Tersiya. 11. Initially it was said that though Bablu alias Balram and Raju assaulted the victim Tersiya but, looking to the number of injuries and version of other witnesses who asked about the incident from Tersiya herself it would be clear that there is no allegation against respondent Raju that he assaulted the victim Tersiya by any weapon. 11. Initially it was said that though Bablu alias Balram and Raju assaulted the victim Tersiya but, looking to the number of injuries and version of other witnesses who asked about the incident from Tersiya herself it would be clear that there is no allegation against respondent Raju that he assaulted the victim Tersiya by any weapon. In the circumstances where it is not proved that Raju assaulted the victim Tersiya or he had common intention to assault the victim Tersiya therefore, the respondent Raju cannot be convicted for offence punishable under section 323 of IPC either directly or with the help of section 34 of IPC. 12. Looking to the entire evidence it is apparent that respondents No.1 and 2 has assaulted the victim Ramsiya and therefore, when Tersiya came to intervene in the matter, Bablu alias Balram assaulted her by a Kudali and therefore, it is also apparent that no right of private defence was created to the respondent Bablu alias Balram. By coming of Tersiya to the spot no sudden or grave provocation was caused to the accused Bablu alias Balram. He had a Kudali and therefore, he should have understood that by such weapon injuries would be caused to the victim. Under such circumstances, it is established that the respondent Bablu alias Balram had assaulted the victim Tersiya voluntarily and therefore, he is guilty of offence punishable under section 323 of IPC. Learned Judicial Magistrate First Class erred in acquitting the respondent Bablu alias Balram from the charge of offence punishable under section 323 of IPC. 13. As far as the sentence is concerned it is apparent that the respondent Bablu alias Balram was only 23 years old at that time and therefore, he was not a much mature person. He gave a blow of Kudali for once. He did not repeat any blow to the old woman. It is alleged by victim Ramsiya that due to that injury Tersiya died during the trial before her examination but, looking to the MLC report of victim Tersiya a superficial injury was caused on her head. Kudali is a heavy weapon and if some force was used by the respondent Balram then certainly a fracture would have caused in the skull of the victim Tersiya or she would have died at the spot but, a superficial injury was caused to her. Kudali is a heavy weapon and if some force was used by the respondent Balram then certainly a fracture would have caused in the skull of the victim Tersiya or she would have died at the spot but, a superficial injury was caused to her. Under such circumstances, it appears that the respondent Bablu alias Balram did not exert much force in that assault and therefore, his offence is not so grave. Also he has faced the trial as well as this appeal for last so many years and therefore, considering the totality of aforesaid grounds it would be appropriate to release the respondent Bablu alias Balram on probation under section 3 of Probation of Offenders Act. 14. Under such circumstances, since respondents No.1 and 2 have expired, the appeal against acquittal abates against them on the basis of the aforesaid discussion. Respondent Raju cannot be convicted for any of the offences appended against him and therefore, appeal cannot be allowed against them. Under such circumstances, appeal filed by the State is hereby partly allowed. The respondent Bablu alias Balram is convicted for offence punishable under section 323 of IPC and he be released on probation after giving due admonition under section 3 of Probation of Offenders Act. 15. Presence of the respondents is no more required, therefore, bail bonds of the respondents shall stand discharged. 16. Copy of the judgment be sent to the trial Court for information and compliance. .............