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Madhya Pradesh High Court · body

2012 DIGILAW 942 (MP)

Visheshwar. v. State of M. P.

2012-09-28

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon the 28th day of September, 2012) This criminal appeal is filed by theappellants being aggrieved by the judgment dated 28/2/1997 passed by the FirstAdditional Sessions Judge, Chhindwara in STNo.212/1995, whereby the appellants were convicted and sentenced as under :- Conviction U/S (IPC) Sentence Fine (Rupees) Defaultsentence 147 1 year's RI -- -- 148 3 years' RI -- -- 325/149 3 years' RI -- --323 1 year's RI -- -- All the sentences were directed to run concurrently. 2.The prosecution's case, in short, is that on 10.6.1995 the complainant Vachchhala Bai (PW-1) was presentin the Village Aajangaon to attend the marriage Cri . A. No.630/1997 ceremony of her younger sister. Atabout 7:00 PM in the evening thecomplainant Vachchhala Bai (PW-1),her husband Ram Prasad (PW-2) and her son Ashok Kumar(PW-3) went to the house of Ramdas (PW-10) to takesome tea etc. The appellants came with sticks and axes in their hands andstarted assaulting the victims. The appellant Visheshwar assaulted the complainant Vachchhala Bai with a stick on her head and thereafter the appellantsassaulted Vachchhala Bai ,Ram Prasad, Ashok Kumar, Tulsa Bai (PW-6), Motiram (PW-4) and so many persons. Vachchhala Bai had lodged an FIREx.P-1 at Police Station Pandhurna soon after theincident. The various injured persons were sent to the hospital for theirmedico legal examination and treatment. Dr. Yogesh Gadekar (PW-11) examined the victims Vachchhala Bai , Ram Prasad, Ashok Kumar, Devrao , Motiram , Shriram and Tulsa Bai and gavehis reports Ex.P-26A, Ex.P-27A, Ex.P-28A, Ex.P-24A, Ex.P-25A, Ex.P-34A andEx.P-35A respectively. He found simple injuries to these persons, but hereferred the victim Tulsa Bai for Radiologicalexamination. Dr. D.Moitra (PW-12) examined the victimTulsa Bai Radio logically and gave his reportEx.P-37. He found a fracture of 5th meta carpal in theleft hand of Tulsa Bai . After due investigation, acharge sheet was filed before the ACJM Sausar , whocommitted the case to the Sessions Court, Chhindwara and ultimately it was transferred to the First Additional Sessions Judge, Chhindwara . 3.The appellants-accused abjured their guilt. They took a specific plea thatactually a quarrel was initiated by the complainant and her companions. Theysustained injuries due to scuffling, whereas appellants Visheshwar Diwakar and Prakash sustained injuries in the incident. In defence Pramila Bai (DW-1) and Jibbal (DW-2) were examined. 3.The appellants-accused abjured their guilt. They took a specific plea thatactually a quarrel was initiated by the complainant and her companions. Theysustained injuries due to scuffling, whereas appellants Visheshwar Diwakar and Prakash sustained injuries in the incident. In defence Pramila Bai (DW-1) and Jibbal (DW-2) were examined. 4.The learned First Additional Sessions Judge, Chhindwara after considering the evidence adduced by the parties convicted the appellantsfor commission of offence punishable under Sections 147, 148, 325/149 and 323of IPC and sentenced the appellants as mentioned above. 5.The appellants Diwakar and Prakash have expired during the pendency of this appeal, andtherefore their names were deleted from the array of the appellants. 6.I have heard the learned counsel for the parties. 7.The learned counsel for the appellants has submitted that actually it was acase of free fight, therefore the appellants could notbe convicted for any offence. In the alternate, it is submitted that theappellants remained in the custody for 15 days and the victim Tulsa Bai sustained a fracture of very small bone. Technically itis a case which comes under Section 325 of IPC. The appellants have faced thetrial and appeal since last 17 years, and therefore they may not be sent to thejail again. 8.On the other hand, the learned counsel appearing on behalf of the State hassupported the impugned judgment and has submitted that the Court below has notcommitted any illegality in convicting and sentencing the appellants-accused,therefore no interference is warranted from the side of this Court. 9.After considering the submissions made by the learned counsel for the partiesand looking at the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellants can be allowed? And whetherthe sentence directed against the appellants can be reduced? 10.In the present case, Vachchhala Bai (PW-1), Ram Prasad (PW-2), Ashok Kumar (PW-3), Motiram (PW-4), Tulsa Bai (PW-6), Devrao (PW-7) and Ramdas (PW-10) were examined as eye-witnesses. Out of them, almost all are injuredwitnesses. Their injuries were proved by Dr. Yogesh Gadekar (PW-11). He proved the injuries of at least sevenpersons. They sustained simple injuries, whereas Dr.D . Moitra (PW-12) proved that the victim Tulsa Bai sustained a fracture of 5th meta carpal in her left hand. Under such circumstances, the testimony of thewitnesses along with timely lodged FIR Ex.P-1 appears to be believable. Their injuries were proved by Dr. Yogesh Gadekar (PW-11). He proved the injuries of at least sevenpersons. They sustained simple injuries, whereas Dr.D . Moitra (PW-12) proved that the victim Tulsa Bai sustained a fracture of 5th meta carpal in her left hand. Under such circumstances, the testimony of thewitnesses along with timely lodged FIR Ex.P-1 appears to be believable. So manyinjured persons could not be injured unless the appellants would haveparticipated in the crime. There are specific allegations made by the variousvictims against the various appellants, and therefore it is apparent that eachof them had participated in the crime, hence they assaulted the variousvictims, where the victim Tulsa Bai sustained onegrievous injury. The defence taken by the appellantswas that a quarrel took place because Tulsa Bai wasnot permitting Pramila Bai (DW-1) to take water from the public hand pump, and therefore the complaint wasmade to the appellant Visheshwar , who was the WardMember. On the date of incident, Tulsa Bai hadinsisted to take water first, because she required more water due to her guestsgathered for the marriage ceremony, and therefore appellant Visheshwar told the victim Tulsa Bai about the complaint, thenTulsa Bai abused him and thereafter she went with herrelatives and assaulted Visheshwar and Heeralal etc. In this connection, the injuries of the Visheshwar , Diwakar and Prakash were proved by the reports Ex.D-8, Ex.D-9 andEx.D-10. 11.It is nowhere established that a counter case was registered against thevictims of this case. It is a cardinal principle that counter cases are to betried simultaneously, but the evidence of one case cannot be read into anothercase, and therefore it was for the appellants to prove the FIR lodged by themagainst the victims and to connect the injuries caused to the appellants Visheshwar , Prakash and Diwakar . However, it is nowhere connected that the injuriescaused to Visheshwar etc. were caused in the sameincident, and therefore there was no need to explain the injuries of thesethree persons by the victims. Pramila Bai (DW-1) has appeared as a defence witness, but she could not prove any FIR lodged by herself even. It is possiblethat she appeared before the Court to prove a new version. There is no any casediary statement of Pramila Bai is available on record, and therefore it is possible that she told a new storyto save the appellants. Pramila Bai (DW-1) has appeared as a defence witness, but she could not prove any FIR lodged by herself even. It is possiblethat she appeared before the Court to prove a new version. There is no any casediary statement of Pramila Bai is available on record, and therefore it is possible that she told a new storyto save the appellants. Under such circumstances, no FIR was proved by theappellants lodged by them, hence the defence story could not be established. 12.If it is accepted that the victims were assaulted by the appellants in defence , then looking at the number of the injured personsfrom the side of the victims and looking at the number of the injured personsfrom the side of the appellants, it appears that the appellants were theassailants and they injured as many as seven persons in all, whereas only threeappellants sustained some injuries. The appellants could get injuries inreaction, and therefore by such injuries, it cannot be said that the victimswere the aggressors. No right of private defence isestablished. Under such circumstances, looking at the evidence given by thevarious victims, timely lodged FIR and injury reports proved by Dr. Yogesh Gadekar (PW-11), it isapparent that the appellants assaulted the various victims with hard and bluntobject causing injuries to the various victims and grave injury caused to thevictim Tulsa Bai . As many as eight persons wereinjured in such a crime, and therefore it is apparent that the unlawful assemblywas constituted and they assaulted the victims in furtherance of their commonobject. However, the offence under Section 148 of IPC is a grave offence ofsimilar nature as of offence under Section 147 of IPC, and therefore there wasno need to convict the appellants for the offence under Section 147 of IPCseparately. However, the trial Court has rightly convicted the appellants forcommission of offence punishable under Sections 148, 325/149 and 323 of IPC. 13.So far as the sentence is concerned, it is true that the appellants were thefirst offender. The incident took place in a spur of moment. It was not apre-planned crime done by them, otherwise the victims had sustained moregrievous injuries. The appellants have faced the trial and appeal for last 17years and each of them remained in the custody for 14 days. Under suchcircumstances, it would not be proper to send them to the jail again. The incident took place in a spur of moment. It was not apre-planned crime done by them, otherwise the victims had sustained moregrievous injuries. The appellants have faced the trial and appeal for last 17years and each of them remained in the custody for 14 days. Under suchcircumstances, it would not be proper to send them to the jail again. Lookingto their overt-acts and the aforesaid circumstances, it would be proper thattheir jail sentence may be reduced to the period which they have alreadyundergone in the custody. 14.On the basis of the aforesaid discussion, the appeal filed by the presentappellants can be partly allowed. Consequently, it is hereby partly allowed.The conviction directed by the trial Court vide judgment dated 28.2.1997 forthe offence punishable under Sections 147, 148, 325/149, 323 of IPC is herebymaintained, but the sentence is reduced to the period which they have alreadyundergone in the custody. In addition, fine of Rs.4000/- is imposed upon theappellants for the offence under Section 325/149 of IPC, in default of paymentof fine, each of them shall undergo for six months' rigorous imprisonment,whereas a fine of Rs.1 ,000 /- is imposed upon theappellants for the offence under Section 323 of IPC, in default of payment offine, each of them shall undergo for three months' rigorous imprisonment. Nofine is imposed for the remaining offences. The appellants are directed todeposit the fine amount before the trial Court within a period of two monthsfrom today. 15.The appellants are on bail. Their presence is no more required before thisCourt, and therefore it is directed that their bail bonds shall standdischarged. 16.A copy of this judgment be sent to the trial Courtwith its record for information and compliance.