Judgment:
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.947/1997 Mutkai VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Mukesh Pandey, counsel for the appellant. Shri G.S.Thakur, Panel Lawyer for the State/respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 24th day of August, 2012) The appellant is convicted for the offence punishable under section 308 of IPC and sentenced for 3 years' rigorous imprisonment vide judgment dated 25.4.1997 passed by learned Second Additional Sessions Judge, Jabalpur in S.T.No.601/1995. Being aggrieved with the aforesaid judgment, conviction and sentence, the appellant has preferred this appeal.
2. Prosecution's case, in short, is that, on 21.12.1994, at about 2 a.m. in the night, the complainant Paramlal (P.W.2) was sleeping in his field. The complainant Paramlal and his wife Chaina Bai were irrigating the field by pumps. Suddenly, the complainant Paramlal found that -:- 2 -:- Criminal Appeal No.947 of 1997 someone was opening the nozzle of the pump and therefore, he went near the nozzle and he found that the appellant was removing the nozzle. Thereafter, when the appellant saw the complainant, he assaulted him by a Farsa for 2-3 times. On shouting of the complainant Paramlal, other witnesses Naresh and Mathura Prasad came to the spot. They saw the appellant, who was running from the spot. Chaina Bai went to the house of the landlord of the field Sevaram (P.W.4) and called him. Sevaram took the victim to his house and kept him up to the morning. In the morning, the complainant was taken to the Police Station Patan, where he lodged an FIR, Ex.P/3. He was directed to the Government Hospital, Patan for his medico legal examination and treatment. Dr.A.C.Chopra (P.W.1) examined the complainant Paramlal and gave a report, Ex.P/1. He found 3 incised wounds to him which were on head and right chick. Also some abrasions were found on right ear and right mustache (2 places). He opined that since the injury No.2 was found on the face of the complainant therefore, it was grievous. After due investigation, a charge-sheet was filed before the JMFC Patan, who committed the case to the Sessions Court and ultimately, it was transferred to the Second Additional Sessions Judge, Jabalpur. -:- 3 -:- Criminal Appeal No.947 o”
3. The appellant abjured his guilt. He has submitted that he left the village Sarkhandi prior to the incident and he was falsely implicated due to the enmity. However, no defence evidence was adduced by the appellant.
4. Learned Additional Sessions Judge, after considering the evidence adduced by the prosecution, acquitted the appellant from the charges of offence punishable under section 307 of IPC but, convicted him for the offence punishable under section 308 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellant has submitted that the complainant could not identify the actual culprit. It is also submitted that no fatal or grave injury was caused to the complainant Paramlal and therefore, no offence punishable under section 308 of IPC is made out against the appellant. In alternate, it is submitted that the appellant has faced the trial and appeal for the last 17 years and he remained in the custody for 160 days during the trial and therefore, he may not be sent to the jail again.
7. On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is required from the side of this Court. -:- 4 -:- Criminal Appeal No.947 o”
8. In the present appeal, it is to be considered as to whether the appellant was the person who assaulted the complainant?. Whether the appellant can be convicted for the offence punishable under section 308 of IPC?. And whether the sentenced imposed upon the appellant can be reduced?.
9. Paramlal (P.W.2) and Chaina Bai (P.W.3) were examined as eye witnesses, whereas during the trial, it was found that the witness Naresh and Mathura Prasad left the village of the complainant and therefore, they could not be examined because their addresses were not known to the police. Chaina Bai has accepted in the cross-examination that on shouting of her husband, when she went to the spot, the appellant had already disappeared and she could not see the appellant but, she has tried to say that there was a light available on the well, near which the incident took place. However, the complainant Paramlal did not say about the arrangement of light but, in cross-examination he has stated that he saw the appellant in the moon light. Investigation Officer, Shri Akhilesh Kumar Tiwari has also confirmed that there was moon light on that night. It is no where challenged by the appellant that on the night of the incident, there was no moon light. The appellant had already left the village of the complainant prior to the incident and therefore, -:- 5 -:- Criminal Appeal No.947 of 1997 there was no possibility for the complainant to falsely implicate the appellant in the matter.
10. The appellant could not prove any cognate enmity with the complainant so that he could be falsely implicated. Under such circumstances, where the evidence given by the complainant is duly corroborated by his FIR, Ex.P/3, which was lodged in a reasonable time and by the testimony of Chaina Bai and Sevaram to whom the victim told the name of the appellant soon after the incident and therefore, the testimony of the complainant Paramlal is believable. It was the appellant who assaulted the victim Paramlal by a Farsa.
11. Dr. Chopra has proved his medico legal report, Ex.P/1. He found 3 incised wounds to the victim, one was on the left parietal region and 2 incised wounds were on right chick. If the stroke of a Farsa was given with a force then, certainly, the jaw of the complainant would have cut but, no cut or any fracture of any bone was found by the doctor and therefore, it would be apparent that the injury was not grievous in nature. Injury could be grievous if it falls within the purview of section 320 of IPC. It is no where established that any disfiguration was caused to the victim after healing of the wounds on the face. Similarly, it is no where established that the injuries caused to the victim were fatal in nature. Under such circumstances, though -:- 6 -:- Criminal Appeal No.947 of 1997 Dr.Chopra has stated that injuries were grave but, his opinion has no basis. Under such circumstances, injuries caused to the complainant were neither fatal not grievous. It is apparent that the appellant assaulted the victim for 2-3 times but, there was no much force in his assault. In the night, he assaulted the victim, so that the victim could not disturb him in leaving the spot otherwise, he was a thief, he could be caught by the complainant and therefore, it is apparent that the appellant is never intended to kill the victim Paramlal. Under such circumstances, where neither any injury was found to be fatal or grievous, not the appellant was intended to kill the victim then, offence punishable under section 307 or 308 of IPC shall not be constituted. The crime of the appellant would be of section 324 of IPC only.
12. It is apparent from the circumstances and evidence of the victim Paramlal, Dr.Chopra and Inspector A.K.Tiwari that the appellant assaulted for more than once and therefore, he had the knowledge about the result of his overt-act. It is not contended by the appellant that the victim gave him any sudden or grave provocation or he had any right of private defence. Under such circumstances, it is established that the appellant voluntarily assaulted the victim Paramlal by a Farsa, a sharp cutting weapon and -:- 7 -:- Criminal Appeal No.947 of 1997 therefore, the appellant is guilty of offence punishable under section 324 of IPC. However, he cannot be convicted for offence punishable under section 308 of IPC.
13. So far as the sentence is concerned, the appellant remained in the custody for 160 days during the trial and he can be sentenced for 6 months rigorous imprisonment for his crime under section 324 of IPC but, at present, he remained in the custody for more than 5 months. He faced the trial and appeal for the last 16 years and therefore, looking to his harassment, due to the trial and appeal, it would be proper to reduce his sentence to the period which he has already undergone in the custody.
14. On the basis of the aforesaid discussion, appeal filed by the appellant is hereby partly allowed. Conviction as well as sentence directed by the trial Court for offence punishable under section 308 of IPC is hereby set aside. The appellant is convicted for the offence punishable under section section 324 of IPC under the same charge and sentenced for the period, which he has already undergone in the custody.
15. Presence of the the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. -:- 8 -:- Criminal Appeal No.947 o”
20. Copy of the judgment be sent to the trial Court with its record for information and compliance. (N.K.GUPTA) JUDGE 24 8/2012 Pushpendra