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2013 DIGILAW 80 (MP)

Ram Sanehi v. State of M. P.

2013-01-15

U.C.MAHESHWARI

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JUDGMENT : U.C. MAHESHWARI, J. 1. The appellants accused have preferred this appeal under section 374(1) of Criminal Procedure Code being aggrieved by the judgment dated 21st April 1997 passed by the Sessions Judge, Chhatarpur in S.T. No. 102/94 convicting and sentencing to each of them under section 307/34 of Indian Penal Code for RI five years with fine of Rs. 500/-. In default of depositing the fine amount further three months RI has been awarded. 2. The facts giving rise to this appeal in short are that on 12-2-1994 at about 4.30 in the noon the victim Thowan came to the P.S. Rajnagar, district Chhatarpur and lodged the FIR contending that he being an agriculturist is having his own field in village, while adjoining field to his field belongs to the appellants. At about 3 o'clock in the noon, he was removing the bushes of Beshram from the boundary of his field, at the same time the appellants with their common intention to cause him injuries came there and asked him why he is removing the bushes of beshram and in continuation gave him a threat to kill him. Thereafter the appellant No. 1, Ram Sanehi gave a blow of stick on his head. Resultantly he sustained injury. He was also subjected to blows of sticks by the co-accused, the appellant Nos. 2 and 3, namely Ram Kripal and Munna @ Gopal. Resultantly on sustaining the injuries, he fell down on the floor, on his shouting, Hemraj and Pragi working at the nearest place also came there, on which the appellants fled away from the spot. Such persons brought the victim to his residence from where he was taken to the Police Station where he lodged the report, on which a crime for the offence of under section 307/34 of Indian Penal Code was registered against the appellants. He was sent to the hospital where after medical examination, his MLC report was prepared. He was referred for x-ray of head injury and some other injuries. On carrying out the same, no bony injury was found on his person. The appellants were arrested. Witnesses were interrogated and on completion of investigation, the appellants were charged-sheeted for the offence of section 307/34 of Indian Penal Code. 3. He was referred for x-ray of head injury and some other injuries. On carrying out the same, no bony injury was found on his person. The appellants were arrested. Witnesses were interrogated and on completion of investigation, the appellants were charged-sheeted for the offence of section 307/34 of Indian Penal Code. 3. On committing the matter to the Sessions Court, on evaluation of the charge-sheet, the charge of above mentioned section was framed against each of the appellants. They abjured the guilt, on which the trial was held. On appreciation of the evidence after holding guilty to the appellants under section 307/34, each of them were punished with the punishment, as stated above. Being dissatisfied with such conviction and sentence, the appellants have come to this Court with this appeal. 4. Initially the appellants' counsel has argued the case on merits for extending the acquittal to the appellants. But in response of some query of the Court, the appellants' counsel has restricted his arguments and without challenging any findings of the trial Court holding guilty to the appellants for causing the alleged incident with the victim argued that on taking into consideration the evidence adduced by the prosecution including the medical evidence, as accepted in its entirety, even then looking to the nature of the injuries sustained by the victim, so also in the lack of any fracture, as stated by the Doctor in the MLC report, (Ex.P-4), of the victim, this was not the case of conviction of more than section 323 of Indian Penal Code. According to him because in the MLC report except the injury No. 1, all other injuries were found to be simple in nature while such injury No. 1 was stated to be dangerous to life and in such premises, such injury along with injury Nos. 5, 6 and 9 was referred for x-ray also. The same was carried out and its report was also placed with the charge-sheet. But it is apparent fact on record that neither the Radiologist was examined nor in any other manner x-ray report was proved on such record. Even on taking into consideration the x-ray report available on record, then according to it, no bony injury was found on the person of the victim. He also said that as per deposition of Dr. But it is apparent fact on record that neither the Radiologist was examined nor in any other manner x-ray report was proved on such record. Even on taking into consideration the x-ray report available on record, then according to it, no bony injury was found on the person of the victim. He also said that as per deposition of Dr. I.D. Chourasiya, (PW-4), in the absence of any fracture in the injury No. 1 was also the same injury in nature, while the same was stated by the Doctor in the MLC report as dangerous to life. With these submissions, he prayed to modify the impugned conviction of the appellants from section 307/34 of Indian Penal Code. In continuation he said that on such modification, taking into consideration that the appellants being first offenders did not have any criminal antecedents in their earlier life or subsequent to the impugned incident and during last 15-16 years, they have suffered the mental agony of this case and have also settled in their families and on sending them again to jail, then in comparison to themselves, their families have to suffer a lot. So firstly he prayed for extending the benefit of Probation of Offenders Act to the appellants and in alternate prayed that if such benefit is not extended to them, then by adopting some lenient view, they be punished with the jail sentence for which they have already undergone either in the judicial custody during the pendency of the trial or subsequent to the impugned judgment till passing the order for suspension of their remaining jail sentence by this Court by enhancing some amount of fine under the discretion of the Court. In this regard, he also said that as per record the appellant No. 1-Ram Sanehi was remained in judicial custody from 13-2-1994 to 12-4-1994, i.e. near about two months while other appellants were remained in judicial custody from 3-2-1994 to 28-2-1994, i.e. for 15 days and besides this, each of the appellants has suffered the awarded jail sentence from the date of the impugned judgment, i.e. 21-4-1997 till 12-6-1997, on which date the remaining jail sentence of the appellants was suspended by this Court and prayed to allow this appeal. 5. 5. The aforesaid prayer has been opposed by the State's Counsel saying that in the available circumstances and scenario in which the intention of the appellants was apparent to cause death of the victim and on such appreciation the impugned conviction and sentence has been imposed on the appellants. The same being in consonance with the available evidence, does not require any interference at this stage either for modification of the offence from section 307/34 of Indian Penal Code to section 323/34 or in any case for reduction of the awarded jail sentence. He also said that in any case if the offence is modified as prayed by the appellants' counsel, then the appellants be punished with the maximum punishment provided under section 323/34 and prayed for dismissal of this appeal. 6. Having heard, keeping in view their arguments I have carefully gone through the record of the trial Court along with the impugned judgment. I am of the considered view that in the available circumstances the approach of the trial Court holding guilty to the appellants for the offence of section 307/34 is not sustainable. On proper appreciation of the available evidence, the trial Court ought to have convicted the appellants for the offence under section 323/34 of Indian Penal Code and not more than that. 7. Before proceeding further, I would like to mention the injuries sustained by the victim which was found and stated in the MLC report, (Ex.P-4) of the victim Thowan, (PW-4). The same is read as under:- (i) Lacerated wound 10 x .5 x 2.00 cm in the mid parietal region. (Profuse bleeding) and horizontally placed bone deep. (ii) Lacerated wound 1 x.5 cm on the left side of chin. (iii) Lacerated wound 2.5 x.5 cm on the right eye brow. (iv) Lacerated wound 1 x .5 cm on the post aspect of left forearm near elbow. (v) Contusion with tenderness near the left elbow. (vi) Contusion 12 x 2.5 cm on the left chest at the level of 4th and 5th rib. (vii) Contusion two parallel to each other 10 x 2.5 cm - over the left lumber region. (viii) Multiple contusions - Irregularly each measuring 10 x 2.5 cm on the left Gluteal region placed. (ix) Contusion - 12 x 2.5 cm on the left Pendenem soleal region. 8. (vii) Contusion two parallel to each other 10 x 2.5 cm - over the left lumber region. (viii) Multiple contusions - Irregularly each measuring 10 x 2.5 cm on the left Gluteal region placed. (ix) Contusion - 12 x 2.5 cm on the left Pendenem soleal region. 8. It is apparent from aforesaid injuries, except injury No. 1, in the lack of fracture all other injuries were simple in nature and it is also apparent on record that neither the Radiologist has been examined nor X-ray report has been exhibited on record. X-ray report is available on record from which it is apparent that on carrying out the X-ray of the injuries advised by the Doctor no bony injury was found on the person of the victim. Even in the head injury also no fracture was found. On recording the deposition of Doctor Chourasiya, (PW-4), in Para 12 of his deposition he categorically stated that in the lack of fracture in injury No. 1, such injury is also simple in nature and in such premises, the same could not be treated to be dangerous to life. So in such premises, there is no option with the Court except to hold that injury No. 1 was also simple in nature and it is also apparent that the victim sustained nine injuries and out of them, some were contusions, abrasions and some of them were lacerated wounds. No other injury was found on the person of the victim which was caused by hard and sharp weapon. In such premises, when lacerated simple injuries or contusions were found on the person of the victim, then the appellants could not be convicted more than the offence of section 323/34 of Indian Penal Code. In such premises, it is held that the trial Court has committed grave error in holding guilty to the appellants for the offence under section 307/34 of Indian Penal Code. Pursuant to it, such conviction and sentence of the appellants under section 307/34 of Indian Penal Code is hereby set aside and instead of it, they are held guilty for the offence of section 323/34 of Indian Penal Code. The findings of the trial Court holding that alleged incident was caused by the appellants in furtherance of their common intention does not require any interference. Pursuant to it, the same are affirmed. 9. The findings of the trial Court holding that alleged incident was caused by the appellants in furtherance of their common intention does not require any interference. Pursuant to it, the same are affirmed. 9. It is settled proposition of criminal law that accused like the appellants should be convicted for such act which they have actually committed with the victim and not for that act, which they could have committed but did not commit. In the present case the appellants could have committed the offence of section 307/34 but actually they did not commit. As such they have committed the offence which has been made punishable under section 323/34 of Indian Penal Code. My such approach is also fortified by the decision of the Peshawar Judicial Commissioner's Court of undivided India in the matter of Sultan Mohd. Khan vs. Risaldar Abdul Karim Khan and Others, AIR 1942 (29) Peshawar 21, in which it was held as under:- “The only act which could fall within the purview of section 307 is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events and accused criminal liability must be limited to the act which he in fact did, and cannot be extended so as to embrace the consequence of another act which he might have done but did not do. Accused stabbed the complainant with a knife and caused two injuries one in the back ¾” x ¼” x ¾” deep and another on the back of the thigh 1½” x ½” x ¼” deep. Both the injuries were simple in nature. Held that the offence was under S. 324 and not under S. 307 : 21 I.C. 881 (Bom.) and (31) 18 AIR 1931 Lah. 63, Relied on.” 10. Both the injuries were simple in nature. Held that the offence was under S. 324 and not under S. 307 : 21 I.C. 881 (Bom.) and (31) 18 AIR 1931 Lah. 63, Relied on.” 10. In view of the aforesaid by allowing this appeal in part, the impugned conviction and sentence of the appellants under section 307/34 of Indian Penal Code is hereby set aside and instead it, the appellants are held guilty under section 323/34 of Indian Penal Code and each of them are punished with the jail sentence for which they have already undergone in the judicial custody during trial and subsequent to passing the impugned judgment till passing the order by this Court for suspension of the remaining jail sentence of the appellants, as stated above in Para 4 of this judgment, which on verification from the record is found correct, by imposing the fine of Rs. 1000/- against each of the appellants. Such imposed amount of fine is to be deposited within 45 days from today by each of the appellants with the trial Court. The amount of fine deposited in connection of the offence under section 307/34 of Indian Penal Code shall be adjusted in the aforesaid imposed fine amount. Failing in depositing the remaining fine amount within the stipulated period, the concerning appellants has to suffer further three months S.I. On depositing the aforesaid sum, out of it, Rs. 1500/- in addition to the amount given by the trial Court by the impugned judgment to the victim, be also given him by calling in the trial Court through summon. The bail bonds of the appellants are hereby cancelled. Till the aforesaid extent the impugned judgment is modified while the other findings of the trial Court are hereby affirmed. 11. The appeal is allowed in part as indicated above.