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Madhya Pradesh High Court · body

2013 DIGILAW 27 (MP)

Papa @ Laxmi Kant v. State of M. P.

2013-01-03

N.K.GUPTA

body2013
JUDGMENT 1. This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 29.7.2009 passed by the Additional Sessions Judge, Piparia District Hoshangabad in S.T. No.165/2008, whereby the appellants were convicted for commission of offence punishable under section 325/34 of IPC and each of them was sentenced for two years’ RI with fine of Rs.1,000/- with additional three months’ RI in default of payment of fine. 2. The prosecution’s case, in short, is that on 26.1.2008 at about 10:00 p.m. in the night the victim Farukh Sheikh (PW3) was passing through Gandhiganj, Pachmadi by his vehicle. On the road some persons including the appellant Papa @ Laxmi Kant were dancing on the road, and therefore a dash took place to the appellant Papa @ Laxmi Kant. The appellant Papa @ Laxmi Kant started abusing the complainant Farukh Sheikh. The complainant went back to his home after that incident. On 27.1.2008 at about 10:00 a.m. he went to the shop of Gupta Panwala to talk with a refrigerator mechanic. He took a seat in the tea shop of Tiwari and he was talking along with that mechanic. The appellants came to the spot having baseball stick, hockey stick, stick and iron belt. They surrounded the victim/complainant and assaulted him. The victim Farukh Sheikh tried to save his life and he went inside the shop of grocery of Manish Sahu, but the appellants assaulted him. The complainant went to the Police Station Panchmadi and lodged an FIR Ex.P-10. He was sent for his medico legal examination. Dr. Anil Alok Agrawal (PW5) examined him at Civil Hospital, Pachmadi and found a lacerated wound on his head and one scratch on his left forearm. There was a swelling of 2x2 inch on the left forearm of the complainant. The complainant was referred for the X-ray examination and thereafter he was referred to the Hamidiya Hospital, Bhopal. Dr. Sunita Yadav (PW8) examined the complainant and found that there was a subdural hematoma in the skull and there was fracture in left ulna of the complainant. After due investigation, a charge-sheet was filed before the JMFC Piparia, who committed the case to the Sessions Court, Hoshangabad and ultimately it was transferred to the Additional Sessions Judge, Piparia District Hoshangabad. 3. The appellants-accused abjured their guilt. After due investigation, a charge-sheet was filed before the JMFC Piparia, who committed the case to the Sessions Court, Hoshangabad and ultimately it was transferred to the Additional Sessions Judge, Piparia District Hoshangabad. 3. The appellants-accused abjured their guilt. They did not take any specific plea in the matter, but they have stated that they were innocent and they were falsely implicated in the matter. The appellant Satish pleaded a plea of alibi, and therefore Sunil (DW1) was examined. 4. The learned Additional Sessions Judge, Piparia after considering the evidence adduced by the parties acquitted the appellants from the charges of offence punishable under sections 294, 341, 506B and 307 of IPC, but convicted them for the offence under section 325/34 of IPC and sentenced as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellants have submitted that some of the witnesses have turned hostile. Manish Sahu (PW4) turned hostile in his cross-examination. The testimony of the complainant Farukh Sheikh could not be believed without any corroboration. There was a lot of contradiction between the statement of the complainant and the version given in the FIR and his previous statement. It was not proved beyond doubt that each of the appellants assaulted the victim, and therefore the common intention could not be presumed. No report was lodged by the complainant on 26.1.2008. In the FSL report, no blood stain was found on the weapons seized from the appellants. The weapons were not sent to the doctor for perusal that such injuries could be caused by such weapons or not. In the alternate, it is submitted that the appellants were youths at the time of incident, and therefore they should have been released on probation. It is specifically argued for the appellant No.3 Satish that he is a Government servant and if he is sentenced, then he may lose his job, and therefore he may be enlarged on probation. 7. In rebuttal, the learned counsel for the State has submitted that there is no infirmity in the judgment of the trial Court, and therefore the conviction directed against the appellants appears to be proper. Similarly, no reduction can be done in the sentence directed by the trial Court. 8. 7. In rebuttal, the learned counsel for the State has submitted that there is no infirmity in the judgment of the trial Court, and therefore the conviction directed against the appellants appears to be proper. Similarly, no reduction can be done in the sentence directed by the trial Court. 8. After considering the submissions made by 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 appellants can be accepted? And whether the sentence passed by the trial Court can be reduced? 9. In the present case the complainant Farukh Sheikh (PW3) was the star witness, who has narrated the entire story. His evidence is duly corroborated by Manish Sahu (PW4), who has proved the quarrel which took place between the appellants and the victim Farukh Sheikh. Ultimately the testimony of the complainant is also corroborated by Dr. Anil Alok Agrawal (PW5), who found the injuries of the similar nature to the victim which could be caused by the hard and blunt objects. Also Dr. Sunita Yadav (PW8) has confirmed the injuries of the victim at the time of treatment and the complainant sustained a fracture of ulna in his hand. Hence, it is proved beyond doubt that the victim was beaten by some of the appellants and he sustained at least one grievous injury. 10. Looking at the evidence of the present case, if there is any discrepancy in seizure of the weapons or if the weapons were not sent to the doctor or report of the Forensic Science Laboratory was not positive, then it makes no difference in the case. In a case of contused wound, there is no possibility of any oozing of blood, hence, there is no possibility of any blood stain on the concerned weapon. The victim sustained one lacerated wound on his head, and therefore there was a possibility of blood on the weapons, which struck the victim on his head. According to the FSL report Ex.P-24, human blood was found on the clothings of the victim, but no human blood was found on the weapons. 11. The testimony of the complainant is also duly corroborated by the FIR Ex.P-19, which was lodged within resonable time after the incident. According to the FSL report Ex.P-24, human blood was found on the clothings of the victim, but no human blood was found on the weapons. 11. The testimony of the complainant is also duly corroborated by the FIR Ex.P-19, which was lodged within resonable time after the incident. The incident that took place on 26.1.2008 was not of such a nature which could be complained to the police, and therefore if the FIR was not lodged on 26.1.2008, then there will not be an adverse affect on the present case of non-lodging the FIR on 26.1.2008. There was no enmity of the victim with the appellants, and therefore there is no chance that they would be falsely implicated in the matter. Under such circumstances, the testimony of the complainant is believable. However, a small discrepancy is present in the evidence of the victim. He has stated that he was brutally assaulted by four persons, but he sustained only three injuries on his body. Out of them, two injuries were common in nature. There was an abrasion on the left wrist of the victim and some swelling was also found. It is not mentioned by the doctor that the swelling was a contusion or it was a separate wound, and therefore if due to assault abrasion was caused on the skin and a fracture was caused on the bone, then swelling could arise due to fracture, and therefore it can be said that the victim sustained only two visible injuries. One was on the head and second was on the left hand. Under such circumstances, it cannot be accepted that all the appellants assaulted the victim. If all of them would have assaulted the victim by various hard and blunt objects, then he should have sustained more than four injuries. In the FIR the victim has mentioned in omnibus manner that he was assaulted by the appellants by various weapons like baseball stick, hockey stick, a plain stick and iron belt, but in his statement before the Court, he has clearly mentioned that it was the appellant Neeraj, who assaulted him in his hand by a hockey, whereas the appellant Papa @ Laxmi Kant assaulted him on his head by a baseball stick. It is alleged against the appellant Satish that he assaulted the victim on his left leg, but there was no injury found on the leg of the victim, and therefore his testimony against the appellant Satish appears to be incorrect. Similarly, it is stated by the victim that appellant Deepak assaulted him by an iron belt but no peculiar injury was found on the head of the victim which could be caused by an iron belt. He has further stated that when appellant Satish assaulted him by the stick on his head and then he raised a chair in front of his head and therefore he could be saved, but no story of the chair was mentioned in his previous statement, and therefore it is an after thought told by the victim. 12. After evaluating the statement of the victim, it is apparent that the appellant Neeraj assaulted him in his hand by a stick, whereas appellant Papa @ Laxmi Kant assaulted him on his head by a baseball stick, whereas alleged assaults done by the remaining appellants are not corroborated by any medical evidence, and therefore the testimony of the victim cannot be believed against the remaining two appellants. It is not proved beyond doubt that the appellant Deepak or Satish assaulted the victim by any weapon, hence no overt-act of these appellants is proved to show that they assaulted the victim or they had any common intention with other co-accused persons. By mere presence, common intention of the accused cannot be presumed. It is nowhere established that the appellant Deepak or Satish had any common intention with the co-accused persons, and therefore they could not be convicted for the offence under section 325 of IPC either directly or with the help of section 34 of IPC. The learned Additional Sessions Judge has committed an error in convicting these two appellants. 13. So far as the overt-act of the appellants Neeraj and Papa @ Laxmi Kant is concerned, it is proved that they assaulted the victim and they caused him a grave injury. The appellant Neeraj has caused a grave injury to the victim in his hand, whereas appellant Papa @ Laxmi Kant assaulted the victim on his head by a heavy baseball stick, and therefore his common intention can be presumed that he was intended to cause grave injuries to the victim. The appellant Neeraj has caused a grave injury to the victim in his hand, whereas appellant Papa @ Laxmi Kant assaulted the victim on his head by a heavy baseball stick, and therefore his common intention can be presumed that he was intended to cause grave injuries to the victim. Similarly, there was no right of private defence accrued to the appellants. They were the assailants where the victim was sitting in a tea shop along the mechanic of refrigerator. Nothing was done by the victim on the date of the incident by which it can be said that any sudden or grave provocation was caused to the appellants. If the victim dashed his scooter with the appellant Papa @ Laxmi Kant, then it was the incident which took place one day prior to the present incident, and therefore the appellant Papa @ Laxmi Kant had an opportunity to lodge an FIR against the victim, but he could not assault the victim in such a manner. The appellants went with arms, and therefore they knew the result of their assault. Under such circumstances, it is proved beyond doubt that the appellants Neeraj and Papa @ Laxmi Kant assaulted the victim without any right of private defence and without any sudden or grave provocation. Therefore, it is proved that they caused a grievous hurt to the victim voluntarily. Hence, the appellants Neeraj and Papa @ Laxmi Kant are guilty for the offence under section 325/34 of IPC. 14. So far as the sentence is concerned, the appellant Neeraj was 20 years of age at the time of the incident, and therefore according to the provisions of section 6 of the Probation of Offenders Act, he should have been enlarged on probation, whereas the appellant Papa @ Laxmi Kant was 23 years old, and therefore he cannot get the advantage of his age by which he could be enlarged on probation. His overt-act, appears to be grave that he took 2-3 persons with him to give a lesson to the victim Farukh Sheikh, therefore, he cannot be released on probation. His overt-act, appears to be grave that he took 2-3 persons with him to give a lesson to the victim Farukh Sheikh, therefore, he cannot be released on probation. However, he was also a youth of 23 years of age and he remained in the custody for five months approximately during the trial, and therefore looking to his age and overt-act along with the custody period, it would be sufficient to reduce his sentence to the period which he has already undergone in the custody by enhancing some fine amount. 15. On the basis of the aforesaid discussion, the present appeal filed by the appellant No.2 Deepak and appellant No.3 Satish is allowed. Their conviction and sentence directed by the trial Court for the offence under section 325/34 of IPC are hereby set aside. They are acquitted from all the charges appended against them. The appeal of appellant No.1 Papa @ Laxmi Kant and appellant No.4 Neeraj Kumar is partly allowed. Their conviction directed by the trial Court for the offence under section 325/34 of IPC is hereby maintained, but the jail sentence of the appellant Papa @ Laxmi Kant is reduced to the period which he has already undergone in the custody, whereas the fine amount is enhanced from Rs.1,000/- to Rs.4,000/-. The appellant Papa @ Laxmi Kant is directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he shall undergo six months’ rigorous imprisonment. The appellant Neeraj Kumar is released on probation under section 4 of the Probation of Offenders Act. He shall submit a bond in the sum of Rs.20,000/- (Rupees Twenty thousand) with one surety bond of the same amount to the satisfaction of the trial Court that he will follow the terms and conditions as enumerated in section 4 of the Probation of Offenders Act for one year. Such bond and bail bond shall be furnished before the trial Court within two months from today, failing which the appellant Neeraj Kumar shall undergo six months’ rigorous imprisonment with fine of Rs.4,000/- and in default of payment of fine, he shall undergo five months’ rigorous imprisonment. His custody period will be adjusted in his sentence. Such bond and bail bond shall be furnished before the trial Court within two months from today, failing which the appellant Neeraj Kumar shall undergo six months’ rigorous imprisonment with fine of Rs.4,000/- and in default of payment of fine, he shall undergo five months’ rigorous imprisonment. His custody period will be adjusted in his sentence. In case of violation of the terms and conditions of furnished bond and bail bond submitted under section 4 of the Probation of Offenders Act, the trial Court would be competent to pass an appropriate sentence against the appellant No.4 Neeraj Kumar. 16. At present the appellants are on bail, and therefore their presence is no more required before this Court. It is directed that their bail bonds shall stand discharged. 17. A copy of this judgment be sent to the trial Court along with its record for information and compliance.