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Madhya Pradesh High Court · body

2014 DIGILAW 459 (MP)

Munna v. State of M. P.

2014-04-25

N.K.GUPTA

body2014
JUDGMENT 1. Both the aforesaid appeals have arose from the common judgment dated 12.5.1997 passed by the learned Additional Sessions Judge, Khurai in ST No.331/1995, and therefore now decided by the common judgment. 2. Each of the appellant has filed the present appeal being aggrieved with the aforesaid judgments whereby each of them was convicted for the offence under section 324 read with section 34 of IPC and sentenced with two years’ RI with fine of Rs.250/-, in default of payment of fine, three months’ RI. 3. The prosecution’s case, in short, is that on 16.7.1995 at about 11:00 a.m. the victim Rajaram was going to his grand-mother’s house at Khurai. In the way he was standing on a square. The accused Jagdish, Munna and Sitaram appeared before him and accused Jagdish started quarelling with the victim. Thereafter accused Munna and Sitaram also abused him. Jagdish who had a big scissors in his hand assaulted the victim Rajaram by a scissors causing three injuries. On his shouting, his father Harprasad (PW 4) Ramkishan and Deviprasad came to the spot and thereafter the accused persons ran away. The victim had lodged an FIR Ex.P-1 at Police Station Khurai. The victim was sent for medico legal examination. Dr. Rakesh Bhardwaj (PW 9) examined the victim Rajaram and gave his report Ex.P-11. He found three incised wounds to the victim Rajaram. Out of them, first was on the left thigh, second was on the back and third was on the back of left thigh. It was also alleged that in saving the victim Rajaram, his brother Rakesh also sustained an injury on left thumb. Dr. Kailash Datt Dubey (PW 5) examined the victim Rakesh and gave his report Ex.P-5. He found an incised wound on his left thumb. Dr.Rakesh Bhardwaj also gave his opinion that the injuries caused to the victim Rajaram were dangerous to the life. Therefore, the case under section 307 of IPC was prepared and the charge sheet was filed before the committal Court. Ultimately the case was transferred to the learned Additional Sessions Judge, Khurai after its commitment. 4. The appellants-accused abjured their guilt. They did not take any specific plea, but they took a plea that since they were the companions of the co-accused Jagdish, they were falsely implicated in the matter. However, no defence evidence was adduced. 5. Ultimately the case was transferred to the learned Additional Sessions Judge, Khurai after its commitment. 4. The appellants-accused abjured their guilt. They did not take any specific plea, but they took a plea that since they were the companions of the co-accused Jagdish, they were falsely implicated in the matter. However, no defence evidence was adduced. 5. The learned third Additional Sessions Judge after considering the prosecution evidence acquitted all the appellants from the charge of section 307 of IPC, but convicted the accused Jagdish for the offence under section 324 of IPC and remaining appellants for the offence under section 324/34 of IPC and sentenced as mentioned above. 6. I have heard the learned counsel for the parties. 7. In the present case the accused Jagdish was the main accused, who was convicted for the offence under section 324 of IPC. Since the Jagdish had expired, his overtact may not be discussed in detail. However, the appellants are convicted for the offence under section 324 of IPC with the help of section 34 of IPC, therefore the conduct of the main accused should be examined. Rajaram (PW 1), Rakesh (PW 2) and Harprasad (PW 3) have stated that Jagdish assaulted the victim Rajaram by Khapcha (big scissors) causing various injuries. The victim Rakesh tried to save his brother, then he also sustained one injury. Dr. Kailash Datt Dubey (PW 5) proved the injury of the victim Rakesh, whereas Dr. Rakesh Bhardwaj (PW 9) proved the injuries of the victim Rajaram. Looking to the timely lodged FIR and the medical reports, the testimony of the complainant and the witnesses is acceptable that the accused Jagdish assaulted the victim Rajaram by a big scissors causing three injuries and he also assaulted the victim Rakesh causing one injury by the same instrument. 8. There is no allegation against any of the appellants that they assaulted either the victim Rajaram or Rakesh by any weapon or otherwise. In the present case, their common intention is to be examined. If the evidence given by the various eye-witnesses is considered, then they did not say anything about the accused Sitaram @ Pappu that he participated in the crime. Under such circumstances, by mere presence of the appellant Sitaram @ Pappu on the spot, it cannot be said that he participated in the crime or he had any common intention with the coaccused Jagdish. 9. Under such circumstances, by mere presence of the appellant Sitaram @ Pappu on the spot, it cannot be said that he participated in the crime or he had any common intention with the coaccused Jagdish. 9. Rajaram and Rakesh have stated that the appellant Munna held the hands of the victim Rajaram and thereafter Jagdish assaulted the victim Rajaram. They did not state that when Jagdish was assaulting the victim Rakesh, any of the appellants participated in that assault. Under such circumstances, no common intention of the appellants can be presumed for the assault caused by the co-accused Jagdish to the victim Rakes. Looking to the injuries caused to the victim Rajaram, it appears that all the injuries were caused on the back side of his person and possibility cannot be ruled out that the appellant Munna had held his hands when the accused Jagdish was assaulting. However, there is a material contradiction between the statements of these witnesses with the FIR Ex.P-1. In the FIR Ex.P-1, Rajaram did not mention that the appellant Munna held his hands when the co-accused Jagdish was assaulting him. Under such circumstances, it would be apparent that if the appellant Munna would have held the hands of the victim Rajaram at the time of incident, then such a fact should have been mentioned in the FIR, and therefore it would be clear from the FIR that the witnesses are telling a falsehood relating to the overt-act of the appellant Munna. Since it was not mentioned in the FIR, it is not proved that the appellant Munna held the hands of the victim Rajaram when co-accused Jagdish was assaulting him. There is no other overt-act told by the witnesses of the appellant Munna to show his common intention. In the FIR Ex.P-1 no overt-act of the appellant Munna is shown by which it can be concluded that he had any common intention with the co-accused Jagdish in assaulting the victim Rajaram. 10. On the basis of the aforesaid discussion, it would be apparent that the prosecution has failed to prove that there was any common intention of the appellant Munna as well as Sitaram @ Pappu with the co-accused Jagdish in assaulting the victim Rajaram or Rakesh. Therefore, present appellants could not be convicted either for the offence under section 324 or 323 with the help of section 34 of IPC. Therefore, present appellants could not be convicted either for the offence under section 324 or 323 with the help of section 34 of IPC. The learned Additional Sessions Judge has committed an error of law and fact in convicting the appellants for the aforesaid offence. Under such circumstances, the appeals filed by the appellants deserve to be acceptable. 11. On the basis of the aforesaid discussion, the appeals filed by the appellants Sitaram @ Pappu and Munna are hereby allowed. Their conviction as well as sentence for the offence under section 324/34 of IPC is hereby set aside. The appellants are acquitted from all the charges appended against him. 12. At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. 13. A copy of this judgment be sent to the trial Court with its record for information and compliance.