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Madhya Pradesh High Court · body

2014 DIGILAW 468 (MP)

Balakram v. State of M. P.

2014-04-28

N.K.GUPTA

body2014
JUDGMENT 1. Vide judgment dated 10.9.1999, passed by learned IInd Additional Sessions Judge, Seoni in S.T. No.83 of 1998, the appellants were convicted and sentenced as under : CONVICTION SENTENCE Appellant No.1 1. Under section 307/34 of the RI or five years and fine of IPC Rs.500/- in default RI for three months. 2. Under section 450 of IPC RI for three year and fine of Rs.500/- in default RI for three months. 3. Under section 323 of IPC RI for three months. Appellant No.2 1. Under section 307 of the IPC RI for five years and fine of Rs.500/- in default RI for three months. 2. Under section 450 of IPC RI for three years and fine of Rs.500/- in default RI for three months. 3. Under section 323/34 of IPC RI for three months. All the sentences were directed to run concurrently. Being aggrieved with the aforesaid judgments the appellants have preferred the present appeal. 2. The prosecution’s case in short is that the complainant Atal Singh was a widower and his biological son Sharda Prasad was living separately from last 20-25 years. Atal Singh, kept one Mankuwarbai with him but, no child was born therefore, Atal Singh and Mankuwarbai kept the accused Balakram to assist them, to look after their agriculture work and to serve them. Atal Singh, gave half of the portion of his house, one bullock cart and two bullocks to Balakram. Initially, for first six months Balakram did his work satisfactorily but, thereafter, he sold the bullock cart and the bullocks without intimating the complainant Atal Singh. Atal Singh told the appellants to vacate the half portion of the house thereafter. On 27.4.1998 at about 10:00 a.m. in the morning Mankuwarbai abused a pup and the appellant Sheelabai thought that she was abused and then she went inside the house at Village Chhui (Police Station Kanhiwada, District Seoni) in the portion of Atal Singh. Sheela Bai assaulted the victim Atal Singh on his head and both the arms by an axe and thereafter, the appellant Balakram assaulted the victim Atal Singh by a stick causing injuries on his left scapular region, right knee and back. On shouting of Mankuwarbai, the appellant Balakram assaulted her also by a stick. The witnesses Narayan, Ghanshyam etc. came to the spot. Mankuwarbai also called the Sarpanch Govind, Sharda Prasad and Pancham and intimated about the incident. On shouting of Mankuwarbai, the appellant Balakram assaulted her also by a stick. The witnesses Narayan, Ghanshyam etc. came to the spot. Mankuwarbai also called the Sarpanch Govind, Sharda Prasad and Pancham and intimated about the incident. An FIR Ex.P-19 was lodged at Police Station, Kanhiwada. The victims were sent to the hospital and after due investigation the charge- sheet was filed before the JMFC, Seoni who, committed the case to the Sessions Court and thereafter, it was transferred to the Court of learned Additional Sessions Judge. 3. The appellants abjured their guilt. They took the plea that the victims were the aggressors. They wanted to oust the appellants from their house. In defence one FIR Ex.D-1 was produced and Ghanshyam (DW1) was examined. 4. The learned Additional Sessions Judge after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. The eye witnesses Atal Singh (PW2), Sushila Bai (PW3), Narayan (PW8) and Mankuwarbai (PW9) were examined. Out of them Narayan turned hostile. Atal Singh and Mankuwarbai have stated that initially Sheelabai came inside the portion of the house of Atal Singh and assaulted him by an axe at 2-3 places and, thereafter, she went inside her portion of the house and closed the door. Thereafter, the appellant Balakram assaulted Atal Singh by a stick and again he assaulted Mankuwarbai by a stick. The timely FIR Ex.P-19 was lodged by Atal Singh. Dr. K.K. Shivate (PW1) had examined the victim Atal Singh and gave his report Ex.P-1. He found three incised wounds to the victim Atal Singh. Out of them one was on left parietal reason in the head, second on right wrist and third was below the left paw, which can be caused by sharp cutting weapon. Two contused wounds were found to the victim Atal Singh. He also examined Mankuwarbai and gave his report Ex.P-22. He found that Mankuwarbai sustained one blunt injury on her head. Dr. Azad Kumar Sarawgi (PW6) has informed that one fracture was found in left ulna bone of the victim Atal Singh. He gave his report Ex.P-4 on the basis of the X-ray plates Exs.P-5 and P-6. 7. After considering the medical reports and the timely lodged FIR, the testimony of the victims Atal Singh and Mankuwarbai appears to be believable. Dr. Azad Kumar Sarawgi (PW6) has informed that one fracture was found in left ulna bone of the victim Atal Singh. He gave his report Ex.P-4 on the basis of the X-ray plates Exs.P-5 and P-6. 7. After considering the medical reports and the timely lodged FIR, the testimony of the victims Atal Singh and Mankuwarbai appears to be believable. Their testimony was also confirmed by Sushila Bai (PW3). Govind Singh Thakur (PW4) has stated that he saw the wounded Atal Singh, who told about the entire incident. The witness Narayan turned hostile but, his version in support of defence cannot be accepted. Narayan (PW8) and the defence witness Ghanshyam (DW1) has alleged that Atal Singh had assaulted the appellant Sheelabai but, if such anincident took place then there was no reason so that the victims Atal Singh and Mankuwarbai would have sustained the injuries. If the appellant Sheelabai was assaulted on the same very day then she would have lodged the FIR against the victim Atal Singh. The FIR Ex.D-1 was lodged on 21.3.1998. By the FIR Ex.D-1 at the most it can be presumed that relation of the victims and the appellants were strained. In the FIR itself, the victim Atal Singh has stated about his strained relations with the appellants but, looking to the injuries caused to the victims it was not possible that the appellants could be falsely implicated in the crime due to strained relations. Under such circumstances, it was proved beyond doubt that Sheelabai assaulted the victim Atal Singh by an axe for three times and Balakram assaulted the victim Atal Singh and Mankuwarbai by a stick causing them injuries. 8. Dr. Shivate (PW1) gave his opinion that the injury caused on the head of Atal Singh was fatal in nature. However, looking to the MLC report Ex.P-1 there was no symptom of brain hemorrhage found. Dr. Sarawgi did not find any fracture on the head of the victim Atal Singh. Sheelabai was a woman, who could not assault in a forceful manner. She assaulted the victim Atal Singh for three times and immediately went inside the portion of her house and closed the doors. Under such circumstances, it cannot be said that she was intended to kill the victim Atal Singh or the victim Atal Singh sustained and fatal injury. Sheelabai was a woman, who could not assault in a forceful manner. She assaulted the victim Atal Singh for three times and immediately went inside the portion of her house and closed the doors. Under such circumstances, it cannot be said that she was intended to kill the victim Atal Singh or the victim Atal Singh sustained and fatal injury. Ultimately the injury found on his head was found simple in nature whereas,the injury on his hand was found grievous. Under such circumstances, the appellants could not be convicted for offence punishable under section 307 of IPC for the injury caused to the victim Atal Singh on his head but, the appellants could be convicted for offence under section 326 of IPC due to assault caused by Sheelabai to Atal Singh on his hand by a sharp cutting weapon causing a fracture. The learned Additional Sessions Judge has committed an error in convicting the appellants for offence punishable under section 307 or 307 read with section 34 of IPC. 9. It would be apparent that the appellants could not prove any incident so that any right of private defence accrued to them. Due to their constrained relations, assaults were caused by the appellants. The appellant Sheelabai assaulted for three times where she knew the result of her act, soon after causing first assault and thereafter the accused Balakram continued to assault with the stick to Atal Singh as well as Mankuwarbai. Under such circumstances, the appellants had voluntarily assaulted the victims. Hence Sheelabai could be convicted for offence punishable under section 326 of IPC for the victim Atal Singh and Balakram could be convicted for offence punishable under section 323 of IPC for the injuries caused to the victim Atal Singh and victim Mankuwarbai. 10. So far as the common intention is concerned, when Sheelabai assaulted the victim Atal Singh, the appellant Balakram continued to assault the victim Atal Singh by a stick to help his wife and therefore, his common intention is very well visible by his overt act and hence, he is also guilty for offence punishable under section 326 of IPC with the help of section 34 of IPC. However, it is admitted by the witnesses that soon after the assault caused by Sheelabai, she went in the house and thereafter, Sheelabai was not present at the spot when Balakram assaulted the victim Mankuwarbai and therefore, it cannot be said that Sheelabai had a common intention with the co-accused Balakram for injuries caused to the victim Mankuwarbai and, therefore, Sheelabai could not be convicted for offence punishable under section 323 read with section 34 of IPC for the injuries caused to the victim Mankuwarbai. 11. It is also proved beyond doubt that the appellants entered in the premises of the victims whereas, there was a partition of premises between them and it was not in the premises of the appellants as both the premises were separated. The appellants went inside the premises of the victims and assaulted them whereas, it was found that offence punishable under section 326 of IPC is made out which is not punishable by life imprisonment and therefore, the appellants have committed a house trespass which was punishable under section 450 of IPC. The trial Court has rightly convicted the appellants for offence punishable under Section 450 of IPC. 12. So far as the sentence is concerned, the learned counsel for the appellants has submitted that the appellant Balakram remained in the custody from 28.4.1998 to 5.11.1999 and, therefore, he remained in the custody for 19 months whereas, the appellant Sheelabai remained in the custody for 6-7 days during the trial but 11 months during the pendency of the appeal. It is true that a grave offence is committed by the appellants but, the main accused Sheelabai is a woman who, did not exert much force but, a fracture was caused to the victim Atal Singh. Both the appellants were the first offender, who faced the trial and appeal since last 16 years. Under such circumstances, looking to their custody period it would be proper that their jail sentence should be reduced to the period for which they remained in the custody. However, appropriate fine may be imposed for the various offences. 13. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Under such circumstances, looking to their custody period it would be proper that their jail sentence should be reduced to the period for which they remained in the custody. However, appropriate fine may be imposed for the various offences. 13. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Both the appellants are acquitted from the charge of section 307 or 307 read with section 34 of IPC but, convicted for offence punishable under sections 326 or 326 read with section 34 of IPC accordingly. The appellant Sheelabai is acquitted from the charge of section 323 read with section 34 of IPC for the victim Mankuwarbai. The appellants are sentenced for various offences with the period of imprisonment for which they remained in the custody during the trial and appeal. However, fine of Rs.5,000/- is imposed upon both the appellants for offence punishable under section 326 or 326 read with Section 34 of IPC whereas, no change in fine amount for offence punishable under section 450 of IPC. The appellants are directed to deposit the remaining fine amount before the trial Court within two months from today positively and in default, they shall suffer rigorous imprisonment for six months. If fine is deposited a sum of Rs.7,000/- be provided to the victim Atal Singh s/o Girdharilal resident of Village Chhui, Police Station Kanhiwada and a sum of Rs.1,000/- to the victim Mankuwarbai w/o Atal Singh resident of Village Chhui, Police Station Kanhiwada by way of compensation. 14. The presence of the appellants is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged after depositing the fine amount. 15. Copy of the judgment be sent to the trial Court along with its record for information. 16. However, the attention of the trial Court is drawn to the provisions of section 68 of IPC that if fine is not deposited within the stipulated period then the provisions under section 68 of IPC shall be followed.