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2013 DIGILAW 209 (CHH)

TEMAN YADAV v. STATE OF M. P. (NOW C. G. )

2013-07-10

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against judgment dated 16.12.97 passed by First Additional Sessions Judge, Ambikapur in Sessions Trial No.420 of 1993. By the impugned judgment, accused/appellant Teman Yadav has been convicted under Sections 332 and 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and five years, respectively with a direction to run the sentences concurrently. Co-accused persons Lakshman and Devanti Devi have been acquitted of the charges framed against them. 2. Case of the prosecution, in brief, is as under: On 19.9.1993, Jitendra Singh (PW-3) was posted as Head Constable at Police Station Ambikapur. Omprakash Tiwari (PW-2) was the owner of the land bearing survey No.69/2, 69/3 and 69/4 situated at village Kanakpur. On 07.9.93, the appellant, acquitted co-accused Lakshman and other persons, namely, Ramnath, Premnath, Lakhan, Pratap, Raman and Keshwar cut the crop of Omprakash Tiwari (PW-2). Omprakash Tiwari (PW-2) lodged First Information Report (Ex-P/5) in Police Station Ramanujganj. Head Constable Jitendra Singh (PW-3) went to village Kanakpur for enquiry and he called appellant Teman Yadav and on being enquired, appellant Teman ran away from there. Jitendra Singh (PW-3) chased and caught appellant Teman. Appellant Teman extricated himself from Jitendra Singh (PW-3) and caught the neck of Jitendra Singh (PW3). At that time, acquitted accused persons Lakshman and Devanti Devi came there and Devanti Devi assaulted Jitendra Singh (PW-3) with genda and Lakshman assaulted him with bahinga. At that time, appellant Teman pressed the neck of Jitendra Singh (PW-3). When Omprakash Tiwari (PW-2) tried to intervene to save Jitendra Singh (PW-3), Lakshman assaulted Omprakash Tiwari (PW-2). Jitendra Singh (PW-3) lodged First Information Report (Ex-P/8) in Police Station Ramanujganj. Jitendra Singh (PW-3) was sent to Primary Health Centre, Ramanujganj for medical examination. Dr. BR Sharma (PW-1) examined Jitendra Singh (PW-3) and gave his report (Ex-P/1), in which he found (1) contusion over right shoulder of 6 cm x 3 cm (2) contusion of 8cm x 3 cm over right side of wrist 2cm above the pelvic bone (3) contusion of 6cm x 3 cm over the left side of the waist (4) abrasion of ½ cm x ½ over the base of the right shoulder (5) contusion of 5cm x 2 cm over the right foot. In further investigation, shirt was seized from appellant Teman vide Ex-P/9. In further investigation, shirt was seized from appellant Teman vide Ex-P/9. After completion of the investigation, charge sheet was filed against the appellant and acquitted co-accused persons Lakshman and Devanti Devi in the Court of Judicial Magistrate First Class, Ramanujganj, who, in turn, committed the case to the Court of Session, Ambikapur, from where it was received on transfer by First Additional Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused persons Lakshman and Devanti Devi of the charges framed against them. 3. Mr. Shakti Raj Sinha, learned counsel appearing for the appellant argued that the prosecution has not been able to prove that the appellant deterred Jitendra Singh (PW-3) from performing his official duty. Evidence of Jitendra Singh (PW-3) and Omprakash Tiwari (PW-2) are not reliable and do not prove that Jitendra Singh (PW-3) was deterred from performing any duty at the relevant time. Omprakash Tiwari (PW-2) is an interesting witness and the prosecution did not examine any independent witness, though many persons were present at the spot. Therefore, conviction recorded by the First Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted. 4. On the contrary, Mr. AK Singh, learned Panel Lawyer for the State/ respondent opposed the above argument and supported the impugned judgment of conviction and sentence. 5. I have heard learned counsel for the parties and perused the record of Sessions Trial No.420/93. The conviction of the appellant is based on the evidence of Jitendra Singh (PW-3) and Omprakash Tiwari (PW-2). 6. Jitendra Singh (PW-3) deposed that on the date of incident, he was investigating the offence punishable under Section 447 IPC at Village Kanakpur. He further deposed that he was trying to arrest appellant Teman and at that time the appellant assaulted him. The incident was witnessed by Patel. Village Chowkidar. He further deposed that he sustained injuries on his head. Appellant Teman assaulted him with lathi. 7. Om prakash Tiwari (PW-2) deposed that Jitendra Singh (PW-3) came to his village for investigation. Kotwar and one Constable also came along with Jitendra Singh (PW-3). The appellant assaulted Jitendra Singh (PW-3) with danda. Kotwar and the Constable intervened and saved Jitendra Singh (PW3). 8. Jitendra Singh (PW-3) deposed that he lodged First Information Report (Ex-P/8) in Police Station Ramanujganj. Om prakash Tiwari (PW-2) deposed that Jitendra Singh (PW-3) came to his village for investigation. Kotwar and one Constable also came along with Jitendra Singh (PW-3). The appellant assaulted Jitendra Singh (PW-3) with danda. Kotwar and the Constable intervened and saved Jitendra Singh (PW3). 8. Jitendra Singh (PW-3) deposed that he lodged First Information Report (Ex-P/8) in Police Station Ramanujganj. Om Prakash Tiwari (PW-2) deposed that the police seized the uniform of Jitendra Singh (PW-3) vide Ex-P/6. 9. Dr. BR Sharma (PW-1) deposed that he examined Jitendra Singh (PW-3) and gave his report (Ex-P/1). He further deposed that he found (1) contusion over right shoulder of 6cm x 3 cm (2) contusion of 8cm x 3 cm over right side of wrist 2cm above the pelvic bone (3) contusion of 6cm x 3 cm over the left side of the waist (4) abrasion of ½ cm x ½ over the base of the right shoulder (5) contusion of 5cm x 2 cm over the right foot. 10. Looking to the evidence of Jitendra Singh (PW-3) and Omprakash Tiwari (PW-2), it appears that Jitendra Singh (PW-3) was posed as Head Constable in Police Station Ramanujganj and he had gone to village Kanakpur for investigation. It appears that on the date of incident. Jitendra Singh (PW3) was discharging his official duty as Head Constable and at that time, the appellant started abusing and assaulted him. Looking to the above circumstances and the evidence adduced by the prosecution, it is established that intention of the appellant was to prevent or deter the public servant from discharging his duties as a public servant. 11. Now it is to be seen whether the evidence of the appellant is punishable under Section 307 IPC. 12. Mr. Shakti Raj Sinha, learned counsel for the appellant argued that according to the prosecution, Jitendra Singh (PW-3) was discharging his duties and the appellant caused simple injury to Jitendra Singh (PW-3) and Dr. BR Sharma (PW-1) specifically deposed that injuries were simple in nature. The prosecution has not been able to prove that the injuries sustained by Jitendra Singh (PW-3) were fatal to his life. Therefore, the offence under Section 307 IPC is not made out and the offence is punishable under Section 332 IPC. The appellant has been in jail for about one- month and two days. The prosecution has not been able to prove that the injuries sustained by Jitendra Singh (PW-3) were fatal to his life. Therefore, the offence under Section 307 IPC is not made out and the offence is punishable under Section 332 IPC. The appellant has been in jail for about one- month and two days. The ends of justice would be met if the jail sentence awarded to the appellant is reduced to the period already undergone by him. 13. Mr. AK Singh, learned Panel Lawyer for the State/respondent opposed the above argument. 14. To constitute an offence under Section 307 IPC, two ingredients of the offence must be present: (a) An intention or knowledge relating to commission of murder and (b) doing of an act towards it. For the purpose of Section 307 IPC, what is material is the intention or knowledge, and not the consequence of the actual act done for the purpose of carrying out the intention. The Section clearly contemplates an act which is done with the intention of causing death but which fails to bring about intended consequence on account of initiation on account of intervening circumstances. The intention or knowledge of the cause must be such as a necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307 IPC, there can be no offence of attempt to murder. 15. In the case in hand, the prosecution has not been able to prove that the appellant had intention or knowledge to commit murder. On the evidence on record, it is established that the injuries sustained by Jitenda Singh (PW3) were simple in nature and Jitendra Singh (PW-3) only stated that the appellant assaulted him and he sustained injuries on his head. Dr. BR Sharma (PW-1) examined Jitendra Singh (PW-3) and gave his report (Ex-P/1) in which he found injuries on the right shoulder, waist, chest and leg of the injured. None of the injuries was grievous in nature or dangerous to life. According to Jitendra Singh (PW-3), he was discharging his public duty, therefore, the appellant is guilty only for the offence under Section 332 IPC. 16. On perusal of the record, it appears that appellant Teman was in jail from 19.9.93 to 06.10.93 and thereafter from 10.12.97 to 29.12.97. The appellant remained in jail for about one month and two days. 17. 16. On perusal of the record, it appears that appellant Teman was in jail from 19.9.93 to 06.10.93 and thereafter from 10.12.97 to 29.12.97. The appellant remained in jail for about one month and two days. 17. Section 332 IPC provides that offence committed thereunder shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. A bare perusal of Section 332 IPC makes it evident that the jail sentence is not mandatory. 18. Considering the facts and circumstances of the case, the medical evidence, that jail sentence is not mandatory for the offence under Section 332 IPC, the incident took place in September, 1993 and the case is pending for about 20 years, I do not feel it appropriate to send the appellant back to jail. I am of the view that the ends of justice would be met if, while upholding the conviction of the appellant under Section 332 IPC, the jail sentence awarded to him is restricted to the period already served by him. 19. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 307 IPC are set aside and he is acquitted of the charge framed thereunder, but, his conviction under Section 332 IPC is upheld, however, the jail sentence awarded to him thereunder is reduced to the period already undergone by him. Appeal Partly Allowed.