Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.1749/2004 Brijesh & Others VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri T.S.Ruprah, Senior Advocate, with Shri Harmeet Ruprah, Advocate for the appellants. Shri R.P.Tiwari, Public Prosecutor for the State/ respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 31st day of July, 2012) The appellants have preferred this appeal against the judgment dated 24.9.2004 passed by learned Fourth Additional Sessions Judge, Sagar in S.T.No.257/2002, whereby the appellants were convicted and sentenced as under:- OFFENCE SENTENCE FINE DEFAULT SENTENCE 32 or 326 read 3 years' R.I. Rs.500/- 6 months R.I. with section 34 of IPC 45.of IPC 3 years' R.I. Rs.200/- 3 months R.I. 323 of IPC - Rs.1,000/- 3 months' R.I. -:- 2 -:- Criminal Appeal No.1749 o”
2. Prosecution's case, in short, is that, on 23.5.2002 at about 10 p.m. in the night, the complainant Bhagwat (P.W.1) was sitting in his house at village Chhindali, Police Station Maharajpur, District Sagar. Thereafter, the appellants came in his house. The appellants were armed with various weapons. The appellant Shivram had a Katarna and other appellants had sticks in their hands. They started abusing him and thereafter, they started assaulting the complainant. The appellant Shivram assaulted the complainant Bhagwat by Katarna causing him an injury on his head. Remaining appellants had assaulted him by sticks causing him injuries on his shoulder, left hand, left foot and right hand. Sunil (P.W.3), son of the complainant and ViNo.(P.W.9) nephew of the complainant Bhagwat tried to save the complainant then, the appellants assaulted them also. They left the spot with threatening that they would kill the victim in future. After the incident, the victim Bhagwat was taken to the Government hospital, Deori where ASI Shri Choubey recorded the Dehati Nalshi, Ex.P/1 from the information given by the complainant. Injured persons were sent to the hospital for their medico legal examination and treatment. Dr.P.C.Shakya (P.W.2) examined the victims Sunil, Vinot and Bhagwat Singh and gave his reports Ex.P/2 to Ex.P/4 respectively. He found two simple injuries to the victim -:- 3 -:- Criminal Appeal No.1749 of 2004 Sunil on his left hand and left shoulder, whereas one simple injury on left hand was found to the victim Vinod. On the other hand, he found three injuries to the victim Bhagwat Singh situated on his head, left knee and left shoulder. Out of them, injury caused on his head was referred for radiological examination. Dr.Jinesh Diwakar (P.W.4) examined the victim Bhagwat Singh radiologically and he found that there was a linear fracture on the parietal bone of the victim. He gave his report, Ex.P/7. After due investigation, a charge-sheet was filed before Additional Chief Judicial Magistrate, Deori, who committed the case to the Sessions Judge, Sagar and ultimately, it was transferred to the Fourth Additional Sessions Judge, Sagar.
3. The appellants abjured their guilt. They did not take any specific plea in general but, the appellant Kailash has stated that he was the counsel against the victims and since he had moved an application for enhancement of the charges in that case, the victims were annoyed with the appellant Kailash and therefore, a false case has been lodged against him. In this connection, affidavits of Gaya Prasad, Bahadur Singh and application submitted by the appellant Kailash were placed before the trial Court in defence. Also Hareram (D.W.1), Rameshwar Prasad Tiwari (D.W.2), Kanchhedilal (D.W.3), Ram Kumar (D.W.4), Rajkumar -:- 4 -:- Criminal Appeal No.1749 of 2004 Chouhan (D.W.5), Kanchhedi S/o Saligram (D.W.6) and Kailash Patel (D.W.7) were examined in defence.
4. After considering the evidence adduced by both the parties, learned Additional Sessions Judge, convicted and sentenced the appellants as mentioned above.
5. During the pendency of this appeal, the complainants Bhagwat, Sunil and Vinot have moved an application to record the compromise from their side and have submitted an application for seeking permission to compound at I.A.No.8527/2012. I.A.No.8527/2012 is to be decided in the present judgment and therefore, it was kept pending.
6. I have heard the learned counsel for the parties at length.
7. Learned Senior Advocate for the appellants has submitted that offence committed against the victim Sunil Kumar and Vinot Kumar is compoundable and therefore, compromise may be accepted and the appellants be acquitted from the charges of offence punishable under section 323 of IPC. It is further submitted that offence against the complainant Bhagwat comes to the purview of section 325 of IPC because neither any deadly weapon not any sharp cutting weapon was used in the assault. Offence punishable under section 325 of IPC is compoundable and -:- 5 -:- Criminal Appeal No.1749 of 2004 therefore, the appellants may be acquitted for that offence also, due to compromise. If the offence punishable under section 326 of IPC is converted into offence under section 325 of IPC then, offence under section 450 of IPC shall be converted to the offence punishable under section 452 of IPC, which is not so grave. The appellants remained in the custody for few days and therefore, they may not be sent to the jail again.
8. On the other hand learned Public Prosecutor has submitted that the judgment passed by the trial Court appears to be correct and no alteration can be done in the conviction and sentence directed by the trial Court. Compromise application can be accepted only for compoundable offences.
9. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the offence under section 326 of IPC can be converted to the offence punishable under section 325 of IPC?. And if yes, then, as to whether the offence under section 450 of IPC is not made out?. And whether the sentence can be reduced?.
10. Bhagwat (P.W.1), Sunil Kumar (P.W.3), Gaya Prasad (P.W.7), Bahadur Singh (P.W.8) and Vinot Kumar -:- 6 -:- Criminal Appeal No.1749 of 2004 (P.W.9) were examined as eye witnesses and they narrated the entire incident done with the victim Bhagwat. The appellants have adduced so many defence witnesses to prove the enmity between the parties. Enmity is a double edged weapon and due to enmity, assault could be directed. Under such circumstances, after perusal of the defence evidence, it would be apparent that the learned Additional Sessions Judge has rightly held that the appellants are not falsely implicated in the case. Looking to the injuries and fracture to the victim Bhagwat, it is apparent that he was beaten in a very bad manner. Under such circumstances, it cannot be said that the appellants did not assault the victim Bhagwat. By testimony of eye witnesses, Dehati Nalshi Ex.P/1 and by MLC report and x-ray report of the victim Bhagwat, it is proved beyond doubt that the appellants had assaulted the victim Bhagwat and caused him injuries.
11. Dr.Shakya (P.W.2) found that the injuries caused to the victim Bhagwat were caused by hard and blunt objects and therefore, it cannot be said that the weapon used for assault made on his head was a sharp cutting weapon. If an edged weapon is used from that side which has no edge then, by character of that weapon, it cannot be said that a sharp cutting weapon is used. Basically Katarna is a sharp cutting weapon but, if its edges are not sharp then, it canNo.-:- 7 -:- Criminal Appeal No.1749 of 2004 be said to a sharp cutting weapon. Nature of the injuries is the key basis by which nature of the weapon can be assessed. Similarly, it is no where mentioned that the Katarna was a very heavy weapon. On the contrary, it is apparent that due to that assault caused by Katarna, a very small linear fracture was caused to the victim Bhagwat, which shows that Katarna was not a heavy weapon and therefore, it cannot be said that it was a deadly weapon. Since Katarna is neither found to be a sharp cutting weapon not a deadly weapon in the present case then, the appellants cannot be convicted for offence punishable under section 326 of IPC and their offence shall come within the purview of section 325 of IPC only. Learned Additional Sessions Judge has committed an error in convicting the appellants for offence punishable under section 326 of IPC though, they could be convicted for offence punishable under section 325 of IPC.
12. So far as the offence punishable under section 450 of IPC is concerned, intention of the appellants cannot be decided in a hypothetical manner. It is to be decided by the overt-act done by them. The appellant Shivram had assaulted the victim Bhagwat by a Katarna on his head but, no second stroke was given on his head and therefore, it cannot be said that the appellants entered in the house with -:- 8 -:- Criminal Appeal No.1749 of 2004 an intention to do a crime punishable by life imprisonment and therefore, no offence punishable under section 450 of IPC is constituted against the appellants. They entered in the house with weapons and therefore, it is apparent that they committed the house trespass by preparation to assault someone and therefore, their overt-acts fall within the purview of section 452 of IPC, which is not compoundable.
13. On the basis of the aforesaid discussion, it is apparent that the appellants cannot be convicted for offence punishable under section 326 of IPC and they are liable for offence punishable under section 325 of IPC, which is compoundable. Under such circumstances, I.A.No.8527/ 2012 filed by the parties can be accepted. Registrar Judicial has given his report that all the complainants were willing to do compromise with their free consent and offence punishable under sections 325 and 323 of IPC are compoundable therefore, not only the permission is granted to compound the offence but, compromise filed by the parties is hereby accepted for offence punishable under sections 325 and 323 of IPC and the result would be that they would be acquitted from the charges of offence punishable under sections 325 and 323 of IPC.
14. So far as the sentence is concerned, after the compromise only offence punishable under section 452 of -:- 9 -:- Criminal Appeal No.1749 of 2004 IPC remains, which is not compoundable. The appellants faced the trial and appeal for the last 10 years. Under such circumstances, it would be proper to impose a token fine upon the appellants for offence punishable under section 452 of IPC.
15. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Conviction as well as sentence for offence punishable under sections 326 or 326 read with section 34, 450 and 323 of IPC is hereby set aside. The appellants are acquitted from all the charges appended against them except of offence punishable under section 452 of IPC. They are convicted for offence punishable under section 452 of IPC and each is sentenced with a fine of Rs.1,000/-. Since the appellants have deposited the fine amount as per the judgment passed by the trial Court therefore, there is no need to provide any default sentence in the case. The appellants would be entitled to get the remaining fine amount back from the trial Court.
16. Presence of the appellants is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. -:- 10 -:- Criminal Appeal No.1749 o”
17. Copy of the judgment be sent to the trial Court with its record for information and compliance. (N.K.GUPTA) JUDGE 31 7/2012 Pushpendra