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2020 DIGILAW 692 (MP)

Sudama Prasad Nai v. State Of Madhya Pradesh

2020-06-25

RAJENDRA KUMAR SRIVASTAVA

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JUDGMENT Rajendra Kumar Srivastava, J. - This appeal under Section 374(2) of Code of Criminal Procedure has been filed by the accused/appellant against the judgment dated 10.3.1998, in S.T.No.32/1997, passed by II Addl. Sessions Judge, Sidhi, District Sidhi (MP), whereby learned II Additional Sessions Judge, Sidhi, found the accused/appellant guilty for offence punishable under Section 326 of Indian Penal Code and sentenced him to undergo R.I. for 5 years and fine of Rs.2,000/- with default stipulation. 2. Prosecution case in brief is that on 27.12.1996, at about 8:00 AM, husband of complainant/injured Devwati (PW/1) had gone to answer the call of nature towards a Nala. Mamta (PW/2), who is daughter of complainant/injured had gone to fetch water from a well of accused/appellant and when Mamta (PW/2) was returning, she saw that accused/appellant was cutting tree of plum and 'Jarwa' from the disputed land. Complainant/injured Devwati (PW/1) has raised objection to do the same, then accused/appellant armed with Tangi (Axe), abused her and assaulted by means of Tangi, due to which she sustained grievous injuries on her head and left armpit. Thereafter, complainant/injured Devwati (PW/1) fell down and became unconscious. Her daughter Mamta (PW/2) tried to save complainant/injured Devwati (PW/1), then accused/appellant also inflicted injury on her. Ramswaroop (PW/3) reached on the spot, then accused/appellant fled away. Ramswaroop (PW/3) lodged FIR vide Ex.P/1, which was recorded by Head Constable, Awadhraj Singh (PW/7). Devwati (PW/1) and Mamta (PW/2) were sent for medical treatment, where Dr. V.B. Singh (PW/6) examined Devwati (PW/1) vide Ex.P/7. He found three incised wounds on the body of Devwati (PW/1), fracture was found on her leg and X-ray was advised. X-ray plates are Ex.P/8 & Ex.P/9 and report to this effect is Ex.P/10. He also examined Mamta (PW/2) and found one bruise on her right leg vide Ex.P/11. During the investigation, Dr. S.S. Parihar (PW/8) seized the cloths of Devwati (PW/1) vide seizure memo Ex.P/2. Chandrika Prasad Saket (PW/9), Patwari, prepared spot map vide Ex.P/15. Rambadan Singh (PW/10) prepared spot map vide Ex.P/3 and seized plain and blood stained soil vide Ex.P/4. He took accused/appellant in custody, who disclosed about Tangi (Axe) vide Ex.P/5. Axe was seized from the house of accused/appellant vide Ex.P/6. Statements of witnesses were recorded during investigation. Charge sheet was filed against the accused/appellant in the trial Court. Learned trial Court framed the charge under Sections 323 and 307 of IPC. He took accused/appellant in custody, who disclosed about Tangi (Axe) vide Ex.P/5. Axe was seized from the house of accused/appellant vide Ex.P/6. Statements of witnesses were recorded during investigation. Charge sheet was filed against the accused/appellant in the trial Court. Learned trial Court framed the charge under Sections 323 and 307 of IPC. Accused/ appellant abjured his guilt and pleaded innocence. 3. Prosecution examined 10 witnesses. Accused/appellant did not produce any defence witness in his defence. Learned trial Court after appreciating the evidence, found that the accused/appellant inflicted grievous injuries on the injured Devwati (PW/1), therefore, convicted and sentence him as aforesaid. 4. Learned counsel for the accused/appellant submits that learned trial Court did not appreciate evidence in perspective way. It is undisputed that there is previous enmity, so accused/appellant has been falsely implicated in this case. No independent witness has been examined by the prosecution. Evidence of Devwati (PW/1), Mamta (PW/2) and Ramswaroop (PW/3) is not reliable. There are material contradictions and omissions in the evidence of witnesses, therefore, the judgment of trial Court is patently erroneous and is liable to be set aside. Apart from this, accused/appellant has served almost 9 months of his jail sentence, therefore, accused/appellant may be released after considering jail sentence already being undergone by him. 5. Learned counsel for the respondent-State opposes the submission made by learned counsel for appellant. He submits that learned trial Court has rightly passed the impugned judgment as the accused/appellant has inflicted grievous injuries on Devwati (PW/1), as is clear from medical evidence. Thus, there is no perversity or illegality in the impugned judgment and the appeal be dismissed accordingly. 6. Now the first question which arises for consideration is that whether Devwati (PW/1) received grievous injury by sharp edged weapon ? 7. Dr. V.B. Singh examined Devwati (PW/1), who found following injuries on her body :- There is no material contradiction and omission in the cross-examination of this witness. So, it is proved that Devwati (PW/1) received grievous injury by sharp edged weapon. 8. Now considerable question is whether accused/appellant inflicted grievous injury by sharp edged weapon to Devwati (PW/1) ? 9. Devwati (PW/1) deposed before the trial Court that accused/appellant was cutting 'Jarva'. She prevented accused/appellant and told that there is a case pending in the Court in this regard, then accused/appellant rushed to beat her. Accused/appellant armed with an axe and inflicted injury on her. 9. Devwati (PW/1) deposed before the trial Court that accused/appellant was cutting 'Jarva'. She prevented accused/appellant and told that there is a case pending in the Court in this regard, then accused/appellant rushed to beat her. Accused/appellant armed with an axe and inflicted injury on her. Due to which she received grievous injury on her leg, cheek and other parts of body. Her daughter Mamta (PW/2) was also present at the time of incident. Mamta (PW/2) and Manish tried to save her, then accused/ appellant fled away from the spot. Mamta (PW/2) also deposed same facts before the trial Court. 10. Learned counsel for the accused/appellant submits that there is enmity and material contradictions and omissions in the evidence of witnesses, so their evidence is not reliable, but there are no material contradictions and omissions in the evidence of Devwati (PW/1). Therefore, the evidence of Devwati (PW/1) is wholly reliable. It is found that there are some minor contradictions and omissions in the evidence of this witness. But, her evidence cannot be discarded on minor contradictions and omissions. Devwati (PW/1) is an injured witness, so her evidence is acceptable. Apart from that, Mamta (PW/2) is also an eye witness at the time of incident, who tried to save her mother. There is minor contradiction and omission in the evidence of this witness also, but there are no material contradictions and omissions in the evidence on the basis of which it cannot be said that the accused/appellant did not inflict any injury. 11. The Hon'ble Apex Court in the case of Bhajan Singh Vs. State of Haryana, (2011) AIR SC 2552 , has held that evidence of injured witness is very reliable and benefit of doubt cannot be given in a case of minor contradictions. 12. The Hon'ble Apex Court in the case of Satyaraj Singh Vs. State of M.P., (2019) 3 SCC 615 , has held that minor contradictions without affecting the substance of their statements cannot be made a basis for rejecting testimony of witness. 13. Apart from this, Ramswaroop (PW/3) is the husband of Devwati (PW/1), who lodged the report vide Ex.P/1, was recorded by Awadhdas Singh (PW/7). First Information Report was lodged without any delay. Accused/appellant is named in the FIR. Indrapal Shukla (PW/4) also reached on the spot on shriek of Ramswaroop (PW/3). 13. Apart from this, Ramswaroop (PW/3) is the husband of Devwati (PW/1), who lodged the report vide Ex.P/1, was recorded by Awadhdas Singh (PW/7). First Information Report was lodged without any delay. Accused/appellant is named in the FIR. Indrapal Shukla (PW/4) also reached on the spot on shriek of Ramswaroop (PW/3). Bharatlal Shukla (PW/5) also deposed that children of Ramswaroop (PW/3) were crying that accused/appellant inflicted injury on her mother Devwati (PW/1), then he reached on the spot and saw that Devwati (PW/1) was lying in an injured condition on the earth. No material contradictions and omissions are found in his cross-examination. So, it is proved that accused/ appellant inflicted grievous injury on Devwati (PW/1) by sharp edged weapon. The evidence of injured Devwati (PW/1) is wholly reliable. Learned counsel for the accused/appellant submitted that seizure is not proved, but seizure is not material in such type of cases where reliable eye witness is available on record. Her evidence is also corroborated with medical evidence. FIR was lodged without any delay. Injured witness also supported the evidence of Devwati (PW/1). So after careful examination of evidence available on record, this Court is of the considered opinion that learned trial Court did not commit any illegality to find the accused/appellant guilty under Section 326 of IPC, and it is proved that accused/appellant inflicted grievous injury on Devwati (PW/1) by sharp edged weapon, so conviction recorded by learned trial Court is hereby affirmed. 13. Learned counsel for the accused/appellant submits that incident took place in the year 1996. Accused/appellant is an agriculturist. At the time of incident, he was cutting 'Jarwa' at his field. Victim reached on the spot, she had thrown stone then accident occurred all of a sudden. There is no pre-planned assault. He is first offender. Learned counsel for the appellant relied upon the decision in the case of State of Madhya Pradesh V. Udham and others, (2019) 10 SCC 300 . He submits that accused/appellant has already suffered the jail sentence of 5 months, therefore sentence is reduced to the period already undergone by him. 14. It is admitted that accused/appellant is an agriculturist. Victim Devwati (PW/1) admitted this fact that at the time of incident, accused/appellant was cutting 'Jarwa' at his field and she had gone to fetch water from the well of accused/appellant. 14. It is admitted that accused/appellant is an agriculturist. Victim Devwati (PW/1) admitted this fact that at the time of incident, accused/appellant was cutting 'Jarwa' at his field and she had gone to fetch water from the well of accused/appellant. She prevented accused/ appellant to cut 'Jarwa', so it appears that dispute started all of a sudden. Accused/appellant is first offender. The incident is of the year 1996. Accused/appellant has served almost 5 months of his jail sentence, so no fruitful purpose would be served to send the appellant in jail. So, sentence of imprisonment of accused/appellant is reduced to the period already undergone and fine is enhanced. 15. Accordingly, this appeal is partly allowed. The conviction of accused/appellant-Sudama Prasad Nai is hereby affirmed, but sentence of imprisonment of 5 years is modified to the period already undergone by him. Fine of Rs.2,000/-(Rupees Two Thousand) is enhanced to Rs.20,000/- (Rupees Twenty Thousand). In default of same, he would be liable to undergone 6 months R.I. Out of the aforesaid fine amount of Rs.20,000/- (Rupees Twenty Thousand), compensation of Rs.15,000/- (Rupees Fifteen Thousand) be given to the complainant-Victim, so as to meet ends of justice. The appellant is directed to deposit fine amount within three months of this judgment. 16. I appreciate the assistance provided by learned amicus curiae. Registry is directed to send the copy of this judgment to Legal Services Authority so that remuneration be paid to learned amicus curiae for his valuable legal assistance.