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2013 DIGILAW 872 (MP)

Gama @ Nirmal Kumar v. State of M. P.

2013-07-26

B.D.RATHI

body2013
JUDGMENT : B.D. RATHI, J. 1. Being aggrieved with the judgment dated 26-2-1998 passed by the IIIrd Additional Session Judge, Hoshangabad in S.T. No. 170/1994 whereby all the appellants, have been convicted and sentenced for the offences punishable under section 341 read with S.34 of the Indian Penal Code. Moreover, appellant No. 3 stands convicted under section 326 of the Indian Penal Code while the remaining appellants have been convicted under section 326 read with section 34 of the Indian Penal Code and sentenced accordingly. 2. According to the prosecution case, on 29-12-1993 at 2.30 p.m. while Niranjan Sharma (PW-2) along with Anil Sharma, Ajay Singh Rajput and Bhupendra was returning after taking bath in Narmada, near Balak School, Kothi Bazar, Dharmendra Kahar, maternal-uncle of Dharmendra, Prakash and Gama, respectively armed Sword, Ballam and Lathis wrongfully restrained him and Dharemendra gave a Sword blow on Niranjan's left wrist, whereby the bone was broken, and the remaining appellants grappled with them and assaulted by kicks and fists. When companions of Nirajan intervened, appellants after threatening and abusing fled. Thereafter at Police Station Hoshangabad, FIR (Ex.P/2) was lodged and after completion of investigation, charge-sheet was filed. 3. Charges under sections 341, 294, 307, 326 read with section 34 of the Indian Penal Code were framed. Appellants pleaded false implication and not guilty. 4. At the outset, learned Senior counsel submitted that he does not want to challenge the convictions of appellant No. 3 Dharmendra. However, he prayed for lesser corresponding sentences for him. On behalf of the remaining appellants, he argued that the evidence adduced by the prosecution was not trustworthy and they be, accordingly, acquitted. 5. In response, learned Panel Lawyer while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited and the impugned judgment does not warrant interference. 6. Having regard to the arguments advanced by the parties, perused the record of the trial Court. 7. Complainant Niranjan Sharma (PW-2) in paragraph 2 of his evidence, specifically deposed that he had blocked the sword blow given by Dharemendra on his neck, resulting into injury on his left hand and no other appellant had assaulted him, although they were exhorting. Having regard to the arguments advanced by the parties, perused the record of the trial Court. 7. Complainant Niranjan Sharma (PW-2) in paragraph 2 of his evidence, specifically deposed that he had blocked the sword blow given by Dharemendra on his neck, resulting into injury on his left hand and no other appellant had assaulted him, although they were exhorting. In such premises, when complainant himself has not said anything against the remaining appellants, in view of evidence of witnesses Ajay (PW-3) and Anil (PW-4), it cannot be held that other appellants had also participated in the assault, especially when none except Niranjan received any injury. 8. So far as the allegation of exhortation against appellant Nos. 1, 2 and 4 levelled by Niranjan in his court statement is concerned, the same is also not reliable because in FIR, which was lodged by Niranjan himself, fact of exhortation is missing. 9. In view of the aforesaid, convictions and consequent sentences of appellant Nos. 1, 2 and 4 cannot be upheld. They are accordingly acquitted of all the offences. However, conviction of appellant No. 3 Dharmendra for the offence under sections 326 is maintained, but his conviction under section 341/34 is altered to one under section 341 of the Indian Penal Code. Considering the fact that the incident took place in the year 1993, the physical, mental and financial hardship suffered by appellant Dharemendra in prosecuting the legal battle for the past 19 years, interests of justice would be met if sentence under section 326 is reduced to S.I. for 1 year and fine of Rs. 5000/- and sentence under section 341 of the Indian Penal Code is altered to fine sentence. 10. In the result, the appeal stands allowed in part. Impugned convictions and consequent sentences of appellant Nos. 1, 2 and 4 namely Gama, Prakash S/o Mohanlal and Prakash alias Guddu, are hereby set aside. They are acquitted of all the offences. Their bail bonds stand discharged. Fine amount, if deposited be refunded to them. However, conviction of appellant No. 3 Dharmendra under section 341/34 of the Indian Penal Code is altered to one under section 341 of the Indian Penal Code. His conviction under section 326 of the Indian Penal Code is also maintained. For the offence under section 341 of the Indian Penal Code, he is sentenced to pay a fine of Rs. However, conviction of appellant No. 3 Dharmendra under section 341/34 of the Indian Penal Code is altered to one under section 341 of the Indian Penal Code. His conviction under section 326 of the Indian Penal Code is also maintained. For the offence under section 341 of the Indian Penal Code, he is sentenced to pay a fine of Rs. 500/- (Rupees five hundred only), in default to suffer S.I. for one month and for the conviction under section 326 of the Indian Penal Code, he is sentenced to undergo S.I. for 1 year and to pay a fine of Rs. 4000/- (Rupees four thousand), in default to suffer S.I. for six months. Out of the fine amount so deposited, Rs. 3000/- (Rupees three thousand) shall be paid to complainant Niranjan as compensation. Needless to say that any fine amount, if deposited by Dharemendra, shall be adjusted accordingly. 11. Copy of the judgment be sent to the trial Court for compliance.