Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SB: Hon’ble Shri Justice N.K.Gupta, J.Criminal Appeal No.2287/1997 Rishikesh Vs. State of Madhya Pradesh .................................................................................................... Shri Satish Chaturvedi counsel for the appellant. Shri Ajay Tamrakar, Panel Lawyer For the respondent/State. .................................................................................................... JUDGMENT
(Delivered on the 6th day of July, 2012)) The appellant has preferred this appeal against the judgment dated 22.10.1997 passed by the IInd Additional Sessions Judge, Rewa in Sessions Trial No.172/1995 whereby the appellant was convicted for offence punishable under Section 308 of I.P.C and sentenced for three years rigorous imprisonment with fine of Rs.400/-. The appellant was to undergo six months rigorous imprisonment in addition for default of payment of fine.
2. Prosecution’s case, in short, is that on 5.7.1995 at about 4.30 in the morning victim Arun Kumar (P.W.1) was sleeping in front of his house. The appellant came with a sword and assaulted the victim Arun Kumar by that sword causing him injuries on his neck, hands, right leg and other parts of the body. Due to those injuries the victim Arun 2 Criminal Appeal No.2287/1997 Kumar fell on earth and became unconscious. On hearing shouting by his companion Anupam (P.W.2) some witnesses Mannulal, Munda and father of the victim Arun came to the spot. Anupam had lodged an FIR (Ex.P/1) at Police Station Mangawa at 4.45 in the morning. The victim was sent to the hospital for his medical examination and treatment. Dr. Deepaksharan Kapoor (P.W.5) had examined the victim Arun Kumar and gave a report Ex.P/7. He found as many as five injuries on the body of the victim Arun Kumar. He found several incised wounds on the left hand of the victim. Similarly several incised wounds were found on right hand and wrist, one incised wound was found on his right chest, one incised wound was found on the right forearm and one incised wound was found on the right toe of the victim. The victim was referred for X-Ray examination. Dr. Rajendramani Tripathi (P.W.6) after preparing the X-Ray plates Ex.P/13 gave his report Ex.P/18 and found that there was no fracture. However, the victim was shifted to the GMH, Rewa. Dr. Lakhtakia (P.W.8) found that there was a fracture on base of left thumb relating to meta carpel bone in addition to those injuries. After due investigation a charge sheet was filed before JMFC Rewa and case was duly committed to the Sessions Court and then allotted to the Second Additional Sessions Judge, Rewa.
3. The appellant abjured his guilt. He has submitted that there was a dispute of partition between the parties. 3 Criminal Appeal No.2287/1997 Father of Arun is uncle of the appellant. Actually Arun assaulted the appellant by a sword and the appellant held that sword but, Arun snatched the sword and therefore, injuries were caused to the appellant. Officers of concerned Police Station refused to write down his report. However, he was sent for medico legal examination. In defence Munde (D.W.1), Bhaiyalal (D.W.2), Dr. Pradeep Shukla (D.W.3) and Dr. C.M. Mishra (D.W.4) were examined 4. The learned Additional Sessions Judge after considering the evidence adduced by both the parties, acquitted the appellant for offence punishable under Section 307 of I.P.C but, convicted him for offence punishable under Section 308 of I.P.C and sentenced as mentioned above.
5. I have heard the learned counsel for both the parties at length.
6. In the present appeal it is to be seen that whether the appellant assaulted the victim Arun Kumar by sword, whether any fatal injury was caused to victim Arun Kumar, after considering the evidence whether the appellant could be convicted for offence punishable under Section 308 of I.P.C and whether any interference can be done in the sentence directed by learned Additional Sessions Judge.
7. Arun Kumar (P.W.1) and Anupam (P.W.2) have stated about the incident. They have stated that the appellant assaulted the victim Arun Kumar when he was sleeping. On the contrary Munde (D.W.1) has stated that the 4 Criminal Appeal No.2287/1997 appellant held a Gupti which was in the hand of the victim Arun and Arun snatched that Gupti therefore, the appellant sustained some injuries. Similarly Bhaiyalal (D.W.2) has stated that he was 60-70 ft. away from the spot. On shouting he went to the spot and found that Arun Kumar was chasing with a sword and the appellant was running in front of him. Looking to the injuries caused to the victim Arun Kumar, evidence given by the defence witnesses cannot be accepted. If the victim himself assaulted the appellant and thereafter, appellant held the sword then the incident was over and there was no possibility of causing injuries to the victim Arun but, if injuries caused to the victim Arun are considered from MLC report Ex.P/7 then it would be apparent that the victim Arun sustained incised wounds at five places whereas, several incised wounds were found on both hands. Under such circumstances, it appears that 9-10 strokes were given by the culprit to the victim Arun. Presence of the appellant is proved by the defence witnesses also and therefore, the testimony of Arun and Anupam appears to be correct that the victim Arun was assaulted by the appellant.
8. Dr. Kapoor (P.W.5) gave a preliminary report and the victim was directed for his X-Ray examination. Dr. Rajendramani Tripathi (P.W.6) after taking 5-6 X-Ray plates of the victim gave his opinion that he found no fracture on his person but, when the victim was referred to the higher hospital at Rewa, Dr. Lakhtakia (P.W.8) examined him and he 5 Criminal Appeal No.2287/1997 gave a report Ex.P/14. He found that bone of the base of the left thumb was broken. When an X-Ray is taken of entire palm with fingers from one direction then it is possible that fracture in second aspect will not be visible in that X-Ray plate and therefore, when the victim was examined in Medical College, Rewa in detail then report given by the Orthopedic Expert is to be accepted. Some questions were asked to Dr. Lakhtakia, Head of the Department of Orthopedics of Medical College, Rewa that he had no authority to record the MLC but such questions have no use, because Dr. Lakhtakia was the head of the Orthopedics Department in Medical College, Rewa, who was the best expert of that region. MLC was recorded by Dr. Kapoor and patient was referred to the expert and being Professor in Orthopedics Dr. Lakhtakia was an authority to tell about the injuries caused to the victim Arun.
9. Dr. Lakhtakia has given the detailed cumulative effect of all the injures in his report as well as in his cross examination. So many veins etc. were cut due to assault by the appellant. Under such circumstances, cumulative effect given by Dr. Lakhtakia that injuries were fatal to the life of the victim Arun. However, it is apparent from MLC report given by Dr.Kapoor that almost all the injuries were caused to the victim on his hands and his leg and only one injury was found on the vital part of the body i.e chest. It is no where mentioned by any doctor that due to that injury caused on chest any vital part of the body was damaged or found cut. 6 Criminal Appeal No.2287/1997 Dr. Lakhtakia has also accepted that his veins relating to the pulse of the victim in both of his hands were intact. They were tagged by some string etc. but, they were not found cut. Dr. Kapoor did not find that major vessel of the victim Arun was found cut whereas Dr. Lakhtakia saw the wounds which were already stitched. Under such circumstances, there is no basis by which Dr. Lakhtakia found that injuries caused to the victim Arun were fatal in nature. On the contrary it appears that the appellant assaulted the victim Arun by a sword and caused more than 10-12 injuries in all but, no stroke was with a force so that it can cut any vital part of the body or major vessel of blood. Under such circumstances, looking to the entire medical report it cannot be said that the victim Arun sustained any fatal injury.
10. Dr. Lakhtakia has stated in his cross-examination that there was a fracture in the base of left thumb and arteries responsible for blood supply in that thumb were found dead and therefore, the doctors had no option except to ampute the thumb of the victim. Under such circumstances it cannot be said that amputation was done because of negligence of the doctors in treatment or otherwise. It was properly proved that there was fracture in the base of left thumb and therefore, at least only one injury was caused to the victim Arun which was of grievous nature.
11. As discussed above victim Arun did not sustain any fatal injury though the appellant had assaulted the victim by a 7 Criminal Appeal No.2287/1997 sword for 10-12 times but, all the assaults were caused on either on his hands or on legs. Only one assault was caused on his chest which was superficial. Neither the appellant assaulted the victim Arun on his vital part of the body not assaulted with some force and therefore, his intention cannot be presumed that he intended to kill the victim Arun. not under such circumstances, where the appellant had neither intended to kill the victim Arun not any fatal injury was caused to the victim then neither offence punishable under Section 307 of I.P.C not Section 308 of I.P.C will be constituted. At the most offence under Section 326 of I.P.C shall constitute. The Additional Sessions Judge erred in convicting the appellant for offence punishable under Section 308 of I.P.C.
12. Learned counsel for the appellant has also submitted that the appellant is entitled to get the right of private defence because the incident was initiated by the victim himself. Such type of submission advanced by the learned counsel for the appellant cannot be accepted. It is true that the appellant sustained 2-3 minot injuries caused by sharp cutting weapon but, it is very well proved that incident took place in front of the house of the victim. Defence witness Bhaiyalal (D.W.1) has accepted that he was 60-70 ft. away from the spot which was the place in front of the shop of the victim Arun. He has said that he saw the victim Arun chasing the appellant with a sword in his hand but, it is 8 Criminal Appeal No.2287/1997 apparent from the statement of the victim Bhaiyalal that the time when he saw the incident, the victim Arun had overcome the sword of the appellant and therefore, by such evidence it cannot be said that the incident was initiated by the victim Arun. Similarly defence witness Munde (D.W.2) has stated about assault of Gupti but, there was no Gupti in the incident. Munde was a prosecution witness, who was given up because he turned hostile and thereafter, he was examined as a defence witness but, his statements are contrary to the basic ingredients of the incident and therefore, it appears that witness Munde was won over by the appellant.
13. If defence of the appellant is presumed to be correct then Arun was the person who, assaulted the appellant by a sword and appellant sustained 2-3 injuries. Thereafter, there is no reason shown by the appellant as to how the victim Arun sustained 10-12 injuries in all. Under such circumstances, defence version is not acceptable. It appears that after sustaining 10-12 injuries Arun had overcome the appellant and by that sword he tried to assault the appellant. Under such circumstances, it cannot be said that the incident was initiated by the victim. On the contrary number of the injuries caused to the victim indicates that those injuries were caused by the appellant because in the beginning the victim was sleeping and therefore, he could not resist. Under such circumstances, the defence could not prove that the appellant got any right of private defence or he was provoked with 9 Criminal Appeal No.2287/1997 sudden or grave provocation by the victim. Also looking to the number of injuries it is clear that the appellant after achieving the result of first few assaults, continued to create such a result and therefore, his voluntary action is established. Under such circumstances, it is clear that the appellant assaulted the victim voluntarily and therefore, offence punishable under Section 326 of I.P.C is squarely made out.
14. So far as the sentence is concerned the appellant remained in the custody for four months during the trial. Learned counsel for the appellant submits that the appellant was a mature person who, did not have any criminal past alleged against him. He has faced the trial and appeal for last 17 years and therefore, looking to his custody period and overt act, he may not be sent back to the jail again. Learned counsel for the appellant placed his reliance on the judgment of Hon'ble the Apex Court in the case of “Bishan Singh and another Vs. State”. [(2007) 13 SCC 65]. in which five months sentence was found sufficient for offence punishable under Section 308 of I.P.C by Hon'ble the Apex Court and fine was enhanced. Similarly in case of “Ravindra Shyamla Prasad Verma Vs. State of M.P.”
. [2000 (2) MPLJ 371 . Hon'ble the Single Bench of this Court has observed that four months imprisonment was sufficient or offence punishable under Section 308 of I.P.C in similar circumstances. In the light of aforesaid judgments looking to the custody period and 10 Criminal Appeal No.2287/1997 the period of harassment faced by the appellant in trial etc. it would be proper not to send the appellant to the jail again but, heavy fine is required to be imposed.
15. On the basis of the aforesaid discussion the appeal filed by the appellant is hereby partly allowed. Conviction for offence punishable under Section 308 of I.P.C is hereby set aside but appellant is convicted for inferior offence of the same nature i.e Section 326 of I.P.C. For such offence the appellant is sentenced for the period which he has already undergone in the custody but, the fine of Rs.10,000/- is also imposed upon him for offence punishable under Section 326 of I.P.C. The appellant is directed to deposit the entire fine amount within two months from today. In default of payment of fine he shall undergo for one years rigorous imprisonment. In case if fine is deposited then a sum of Rs.10,000/- may be given to the victim Arun Kumar s/o Jagdish Prasad Gupta r/o Bus Stand Mangawa, Police Station Mangawa, District Rewa by way of a compensation.
16. Presence of the appellant is no more required before this Court and therefore, it is directed that his bail bonds stand discharged.
17. Copy of the judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta) Judge 6.7.2012 bina 11 Criminal Appeal No.2287/1997