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Madhya Pradesh High Court · body

2019 DIGILAW 638 (MP)

State of M. P. v. Hariram

2019-09-05

S.K.AWASTHI

body2019
ORDER 1. The applicant/State has preferred this petition under section 378(3) of the Cr.P.C. for grant of leave to appeal against judgment dated 6.10.2012 passed by Additional Sessions Judge, Kannod, District-Dewas in Sessions Trial No. 73/2010, whereby the respondent No. 3, 4, 5, 8 and 9 have been acquitted for commission of offence punishable under sections 294, 427, 147, 148 and 307/149 of the IPC; whereas remaining respondents have been acquitted for commission offence punishable under sections 294, 427, 147 and 148 of the IPC. 2. As per prosecution case, on 23/01/2010, complainant-Sunil lodged a report alleging that at about 21:00 hrs., he alongiwth Paramram Jaat, Gokul Jaat and Nandkishore Jaat were going to Kumangaon from their village by Alto Car and he was driving the car. The vehicle of the accused was parked infront of Shobharam's house, when complainant asked the accused to through away the vehicle from the road, then there took an altercation between the respondents and complainant party and respondents abused them. At that time respondent No.1- Hariram came there and assaulted the Paramram by axe, due to which he sustained injuries on his head and arm. Thereafter, the respondents followed Parasram, when his relatives came over there, then respondent No.7-Shankar assaulted one Baba Ramdin and respondent No. 2-Ramnarayan assaulted to Ramnarayan. Other respondents beated to Mohan. On the basis of that complaint police registered FIR bearing Crime No. 28/2010 against the respondents for commission of offence punishable under sections 294, 323, 427 and 307/34 of the IPC. 3. Learned Public Prosecutor for the applicant/State submits that the trial Court has convicted the respondents/accused persons namely, Hariram, Ramnarayan, Satyanarayan @ Kandri, Shankar and Gajanand for commission of offence punishable under section 307/149 of the IPC, however, other accused persons have been acquitted from the aforesaid offence. It has come in the FIR as well as in the statements of prosecution witnesses, that the respondents have constituted unlawful assembly and during the prosecution of the common object of the assembly, they assaulted the complainant party because of which they sustained injuries, therefore, all the members of the unlawful assembly are equally responsible for the act of member of the assembly. However, even assuming that the accused persons have constituted unlawful assembly and in furtherance of the common object of the assembly, they have assaulted the complainant side, due to which they sustained injuries, the trial Court has committed error in acquitting the respondents namely, Imratlal, Kailash, Laxminarayan, Rajesh and Brijesh for commission of offence punishable under section 307/149 of the IPC. Under these circumstances, learned Public Prosecutor prays for grant of leave to appeal against judgment of acquittal. 4. On the other hand, learned counsel for the respondents supported the impugned judgment and prays for rejection of the petition. 5. Having heard learned counsel for the parties and perused the record. 6. From the perusal of the impugned order, it appears that the prosecution has failed to establish that the respondents/accused persons utters any abusing words against the complainant in or near any public place or they caused any wrongful loss or damage to complainant's property, therefore, the trial Court has rightly acquitted the respondents for commission of offence punishable under sections 294 and 427 of the IPC. The respondents have also been acquitted by the trial Court for commission of offence punishable under sections 147 and 148 of the IPC. If the prosecution has proved the existence of unlawful assembly, its common object which was caused injury to the complainant and each member of the unlawful assembly can be convicted with the aid of section 149. Therefore, the omission of record a formal conviction under section 147/148 would have affected the conviction under section 307/149 of the IPC. However, if a charge had been framed under section 147 or section 148 and that charge had failed against any of the accused, then section 149 could not have been used against him, therefore, the trial Court has committed error in acquitting the respondents namely, Hariram, Ramnarayan, Satyanarayan @ Kandri, Shankar and Gajanand for commission of offence punishable under sections 147, 148 and respondents namely, Imratlal, Kailash, Laxmi-narayan, Rajesh and Brijesh for commission of offence punishable under section 307/149 of the IPC. 7. Looking to the aforesaid facts and circumstances of the case, this court is of the view that it is a fit case for grant of leave to appeal. 7. Looking to the aforesaid facts and circumstances of the case, this court is of the view that it is a fit case for grant of leave to appeal. Accordingly, present application filed under section 378(3) of the Cr.P.C. is allowed and permission for grant of leave to appeal is granted against respondents meaning thereby, the matter has to be admitted for final hearing. 8. Appeal filed as a consequence of this order be registered and proceeded as per rules, as admitted. 9. Let bailable warrant in the sum of Rs. 10,000/- be issued against the respondents for their appearance before the trial Court on 15.10.2019. The respondents are directed to furnished personal bond and surety bond of Rs. 10,000/- each of the like amount to the satisfaction of the trial Court for their appearance before the Registry of this Court on 18.12.2019 and on all other subsequent dates as may be fixed by the Office in this behalf. 10. With the aforesaid, M.Cr.C. No. 672/2013 is allowed and is accordingly, disposed of. List the appeal along with Cr.A. No. 1200/2012 for final hearing in due course.