Kamal Singh Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/504295
SubjectCriminal
CourtMadhya Pradesh High Court
Decided OnAug-03-2009
JudgeK.S. Chauhan, J.
Reported in2009(5)MPHT293
AppellantKamal Singh
RespondentThe State of Madhya Pradesh
Cases Referred(iii) Babbu and Ors. v. The State of M.P. Cr.R. No.
Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - they are good eyewitnesses.k.s. chauhan, j.1. appellant rai singh has expired during the pendency of this appeal hence appeal against him has been abetted. 2. this criminal appeal under section 374(2) of the code of criminal procedure has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 21.04.1999 passed by ii additional sessions judge, sehore in s.t. no. 146/98, whereby the appellant kamal singh has been convicted under sections 326/34, 324/34 and 323/34 of i.p.c. and sentenced to r.i. for 3 years with fine of rs. 1000/-in default of payment of fine r.i. for 6 months, r.i. for 6 months and r.i. for 3 months respectively with the direction to run the sentences concurrently. 3. prosecution case in short is that sunar singh r/o village kadrabad lodged report at police outpost shyampur on 13.06.1998 at 10:30 a.m. to the effect that at the time of incident the appellants came armed with farsi at his house and by abusing him said that his cattle (buffalo) had damaged the crop. the complainant asked him not to abuse and to carry the cattle to the kanji house if any damage is caused. on this the appellants extended threats to kill him and inflicted farsi blow which hit at the heel of his left leg. rai singh inflicted farsi blow at the head of rajendra. hearing the cries swaroop kunwar bai w/o of complainant sunar singh also came there to whom rai singh inflicted farsi blow on the head on account of which she fell down on the ground. kamal singh inflicted farsi blow at his son ramnath singh which hit at his cheek. on this information crime no. 083/98 under sections 323, 324, 294, 506, 34 of i.p.c. was registered at police outpost shyampur vide ex.p-5. the injured persons were sent to p.h.c. shyampur for medical examination where they were examined by dr. jyoti khare who found the injuries as mentioned in their medical reports. on the basis of ex.p-5 f.i.r. was recorded at police station doraha wherein crime no. 140/98 under the same sections was registered against the appellants. query regarding the injury to swaroopkunwar bai was asked which was replied that the injury was dangerous to her life if the patient was not treated. x-ray of swaroopkunwar bai was also taken wherein the fracture of skull was found. spot map was prepared. the statements of the witnesses were recorded. after completing the investigation the charge sheet was filed in the court of j.m.f.c. sehore who committed the case to the sessions court for trial. 4. accused persons were charged under section 307, 326, 324, 323 or alternatively under sections 307/34, 326/34, 324/34 and 323/34 of i.p.c. they denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated on account of land dispute. the prosecution examined as many as 13 witnesses and accused did not examine any witness. after appreciating the evidence trial court acquitted the appellants from the charge under section 307/34 of i.p.c. but convicted under sections 326/34, 324/34 and 323/34 of i.p.c. and sentenced thereunder as stated hereinabove in para no. 2 of this judgment. being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 5. learned counsel for the appellant submitted that the trial court has not appreciated the evidence in proper perspective. there is dispute regarding the land in between the parties due to which the appellants have been falsely implicated. learned counsel for the appellant has emphasized on the evidence of phoolkunwar bai (pw-5)-a child witness who has admitted that complainant sunar singh was grappling with rai singh. he also lifted farsi to inflict blow to him. learned counsel submitted that kamal singh came only after hearing the cries of his father, therefore, common intention of the appellants has not been established. the seizure of farsi has also not been proved. learned counsel further submitted that the appellants were also beaten by the complainant party and sustained the injuries and hence complainant party was aggressor. the offence has not been proved beyond reasonable doubt. the trial court has committed an illegality in convicting and sentencing the appellants for the aforesaid offences. the finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 6. on the contrary, shri g.p. singh, learned deputy govt. advocate appearing on behalf of respondent/state supported the impugned judgment, finding and sentence mainly contending that the appellants went at the house of the complainant and caused injuries to the complainant and his family members hence they are aggressor. they have also not sustained any injury. the appellants have rightly been convicted and sentenced by the trial court hence does not called any interference. 7. the main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under sections 326/34, 324/34 and 323/34 of indian penal code. 8. sunar singh (pw-3), ramnath singh (pw-4), swaroopkunwar bai (pw-6) and rajendra singh (pw-7) are the injured persons. they have given the evidence against the appellants that they came at their house armed with farsi used filthy languages. kamal singh inflicted farsi blow at the head of complainant sunar singh. he tried to save but in that process farsi hit at his leg and caused injury. he fell down. thereafter kamal singh inflicted farsi blow to ramnath singh. rai singh inflicted farsi blow at the head of swaroop kunwar bai and to rajendra singh on account of which they also sustained injuries. in spite of lengthy and piercing cross examination nothing has been carved out as to discredit their testimony on the material point regarding causing marpeet by the appellants. they denied the suggestion that they sustained injuries by assaulting sword or farsi blow to each other. 9. the attempt has been made to bring the contradictions and omissions in their statements. though some minor contradictions have been brought in their evidence but they are inconsequential without affecting the merits of the case. 10. thus there is overwhelming evidence against the appellants that they have caused the injuries to complainant sunar singh, his wife swaroopkunwar bai and their sons rajendra singh and ramnath singh. there is no reason to disbelieve the evidence of these witnesses. 11. phoolkunwar bai (pw-8) who is a child witness has also supported their evidence by deposing that appellants inflicted farsi blows to her parents and brothers and caused injuries. no doubt she has admitted that the grappling took place in between her father and rai singh and her father also lifted the farsi to assault rai singh but this evidence is not sufficient to infer that the complainant party was aggressor. on the contrary, the evidence shows that the appellants were aggressor because they went at the house of the complainant. they were armed with farsi, abused the complainant and caused their marpeet on account of which they sustained the injuries. the appellants have not sustained any injury in this incident. therefore, the complainant party was not aggressor. 12. no doubt there is land dispute in between the parties and there is enmity on this account but if any damage was caused by the cattle of the complainant then legal recourse ought to have been taken instead of causing their marpeet. this was not the way to resolve the dispute. they have taken the law in their hands, therefore, they can not justify their action on the ground that there was land dispute. they have also not submitted any medical documents to show that they sustained any injury in this incident. thus the contention of the learned counsel of the appellant that the complainant party was aggressor can't be accepted. 13. the report was immediately lodged which was recorded by p.n. shrivastava (pw-12) at police outpost shyampur. they were sent to medial examination vide ex.p-16 to ex.p-19 where they were examined by dr. jyoti khare (pw-10) who has deposed that on 13.06.1998 she examined swaroopkunwar bai and found the following injuries:(i) incised wound about 3 in length and cm in width and cm in depth over the parietal bone of left side of skull about one cm lateral to midline.according to her opinion this injury was caused by hard and sharp object within 6 hours of the examination. she was kept under observation for 48 hours because there was head injury. she was also advised for x-ray. medical report is ex.p-11. 14. on the same day she examined rajendra singh and found the following injuries:(i) incised wound 3 inches in length and about cm in width and cm in depth in curved fascion over the temporal region of left side of skull. (ii) lacerated wound about 1 inch in length and 2 cm in width and 2 cm in depth over left shoulder joint. according to her opinion the injury no. 1 was caused by hard and sharp object and injury no. 2 was caused by hard and blunt object within 6 hours of the examination. he was kept under observation for 48 hours because there was head injury. he was also advised for x-ray. medical report is ex.p12. 15. on the same day she examined ramnath singh and found the following injuries:(i) incised wound about 1 in length and cm in width and 1 cm depth at lateral side of wound and cm in medial side over the right temporal region in front of right ear.according to her opinion this injury was simple in nature caused by hard and sharp object within 6 hours of the examination. medical report is ex.p-13. 16. on the same day she examined sunar singh and found the following injuries:(i) lacerated wound about 3 inches in length and cm width and depth over the left ankle region.according to her opinion this injury was simple in nature caused by hard and blunt object within 6 hours of the examination. medical report is ex.p-14. 17. this witness has been cross examined at length but her evidence has not been shattered on material point. thus, dr. jyoti khare (pw-10) has corroborated the oral evidence adduced by the injured persons. 18. no doubt dr. amit agrawal (pw-1) who was r.s.o. at hamidiya hospital, bhopal on 13.06.1998 after examining swaroopkunwar bai opined that she suffered simple injury but he also advised for x-ray. his medical report is ex.p-1. dr. ravi masand (pw-11) after her x-ray examination found that there was fracture of skull. x-ray report is ex.p-15 and x-ray plate is ex.p-16. thus radiologically it is proved that swaroopkunwar bai sustained grievous injury at her head. thus the ocular evidence adduced by the prosecution has been amply corroborated by the medical evidence. learned counsel further submitted that kamal singh reacted after hearing the cries of his father rai singh hence there was no common intention but it is evident that both the appellants came together armed with farsi, abused the complainant and caused marpeet therefore there was common intention in committing this crime. 19. learned counsel submitted that seizure of farsi has not been proved but on the basis of the evidence of rajendra singh (pw-7) and alok shrivastava (pw-9) it has amply been proved that appellant kamal singh was arrested vide arrest memo ex.p-2, he gave disclosure statement ex.p-3 and farsi was seized from him vide seizure memo ex.p-4 hence the contention of the learned counsel of appellant is not acceptable. 20. it is evident that all the injured witnesses have given the evidence against the appellants. they are good eyewitnesses. there is nothing to disbelieve their statements. the report was immediately lodged and they were immediately medically examined wherein they were found having such injuries. their evidence is fully corroborated by the medical evidence. the prosecution has proved its case beyond reasonable doubt and the trial court has not committed any illegality in convicting the appellant under section 326/34, 324/34 and 323/34 of i.p.c. therefore such finding can not be disturbed in appeal. 21. learned counsel for the appellant submitted that appellant be released on the period already undergone or alternatively fine amount be enhanced. he has placed the reliance on the following decisions:(i) kanhaiyalal v. state of m.p. 1985 mpwn 336 (ii) veerma v. state of m.p. 1993(1) mpwn 71 (iv) hindu singh v. state of m.p. 1993(1) mpwn 79 (iii) babbu and ors. v. the state of m.p. cr.r. no. 489/97 22. on perusal of record it reveals that appellant kamal singh was arrested on 19.06.1998 and was released on 23.06.1998. the period of incarceration is not sufficient to release the appellant on the period already undergone. but this is a fact that grievous injury to swaroopkunwar bai was caused by appellant rai singh who has expired and this appellant kamal singh has caused simple injuries to sunar singh and ramnath singh. in such circumstances, the sentence awarded to him under section 326/34 of i.p.c. deserves to be reduced. 23. consequently, this appeal is partly allowed. the conviction passed by the trial court under section 326/34, 324/34 and 323/34 of i.p.c. is hereby maintained. however, the sentenced awarded under section 326/34 of i.p.c. is hereby reduced from 3 years to 1 year r.i. maintaining the sentence of fine amount. the sentence awarded under sections 324/34 and 323/34 of i.pc. is also maintained. the appellant is on bail. his bail bonds are cancelled. he be directed to appear before c.j.m. sehore on 31.08.2009 for serving out the remaining part of the sentence. 24. since appellant rai singh has died during the pendency of of this appeal therefore appeal against him has been abated.
Judgment:

K.S. Chauhan, J.

1. Appellant Rai Singh has expired during the pendency of this appeal hence appeal against him has been abetted.

2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 21.04.1999 passed by II Additional Sessions Judge, Sehore in S.T. No. 146/98, whereby the appellant Kamal Singh has been convicted under Sections 326/34, 324/34 and 323/34 of I.P.C. and sentenced to R.I. for 3 years with fine of Rs. 1000/-in default of payment of fine R.I. for 6 months, R.I. for 6 months and R.I. for 3 months respectively with the direction to run the sentences concurrently.

3. Prosecution case in short is that Sunar Singh r/o Village Kadrabad lodged report at Police Outpost Shyampur on 13.06.1998 at 10:30 a.m. to the effect that at the time of incident the appellants came armed with farsi at his house and by abusing him said that his cattle (buffalo) had damaged the crop. The complainant asked him not to abuse and to carry the cattle to the Kanji House if any damage is caused. On this the appellants extended threats to kill him and inflicted farsi blow which hit at the heel of his left leg. Rai Singh inflicted farsi blow at the head of Rajendra. Hearing the cries Swaroop Kunwar Bai w/o of complainant Sunar Singh also came there to whom Rai Singh inflicted farsi blow on the head on account of which she fell down on the ground. Kamal Singh inflicted farsi blow at his son Ramnath Singh which hit at his cheek. On this information crime No. 083/98 under Sections 323, 324, 294, 506, 34 of I.P.C. was registered at police outpost Shyampur vide Ex.P-5. The injured persons were sent to P.H.C. Shyampur for medical examination where they were examined by Dr. Jyoti Khare who found the injuries as mentioned in their medical reports. On the basis of Ex.P-5 F.I.R. was recorded at Police Station Doraha wherein Crime No. 140/98 under the same sections was registered against the appellants. Query regarding the injury to Swaroopkunwar Bai was asked which was replied that the injury was dangerous to her life if the patient was not treated. X-ray of Swaroopkunwar Bai was also taken wherein the fracture of skull was found. Spot map was prepared. The statements of the witnesses were recorded. After completing the investigation the charge sheet was filed in the Court of J.M.F.C. Sehore who committed the case to the Sessions Court for trial.

4. Accused persons were charged under Section 307, 326, 324, 323 or alternatively under Sections 307/34, 326/34, 324/34 and 323/34 of I.P.C. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated on account of land dispute. The prosecution examined as many as 13 witnesses and accused did not examine any witness. After appreciating the evidence trial Court acquitted the appellants from the charge under Section 307/34 of I.P.C. but convicted under Sections 326/34, 324/34 and 323/34 of I.P.C. and sentenced thereunder as stated hereinabove in para No. 2 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal.

5. Learned Counsel for the appellant submitted that the trial Court has not appreciated the evidence in proper perspective. There is dispute regarding the land in between the parties due to which the appellants have been falsely implicated. Learned Counsel for the appellant has emphasized on the evidence of Phoolkunwar Bai (PW-5)-a child witness who has admitted that complainant Sunar Singh was grappling with Rai Singh. He also lifted farsi to inflict blow to him. Learned Counsel submitted that Kamal Singh came only after hearing the cries of his father, therefore, common intention of the appellants has not been established. The seizure of farsi has also not been proved. Learned Counsel further submitted that the appellants were also beaten by the complainant party and sustained the injuries and hence complainant party was aggressor. The offence has not been proved beyond reasonable doubt. The trial Court has committed an illegality in convicting and sentencing the appellants for the aforesaid offences. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal.

6. On the contrary, Shri G.P. Singh, learned Deputy Govt. Advocate appearing on behalf of respondent/State supported the impugned judgment, finding and sentence mainly contending that the appellants went at the house of the complainant and caused injuries to the complainant and his family members hence they are aggressor. They have also not sustained any injury. The appellants have rightly been convicted and sentenced by the trial Court hence does not called any interference.

7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Sections 326/34, 324/34 and 323/34 of Indian Penal Code.

8. Sunar Singh (PW-3), Ramnath Singh (PW-4), Swaroopkunwar Bai (PW-6) and Rajendra Singh (PW-7) are the injured persons. They have given the evidence against the appellants that they came at their house armed with farsi used filthy languages. Kamal Singh inflicted farsi blow at the head of complainant Sunar Singh. He tried to save but in that process farsi hit at his leg and caused injury. He fell down. Thereafter Kamal Singh inflicted farsi blow to Ramnath Singh. Rai Singh inflicted farsi blow at the head of Swaroop Kunwar Bai and to Rajendra Singh on account of which they also sustained injuries. In spite of lengthy and piercing cross examination nothing has been carved out as to discredit their testimony on the material point regarding causing marpeet by the appellants. They denied the suggestion that they sustained injuries by assaulting sword or farsi blow to each other.

9. The attempt has been made to bring the contradictions and omissions in their statements. Though some minor contradictions have been brought in their evidence but they are inconsequential without affecting the merits of the case.

10. Thus there is overwhelming evidence against the appellants that they have caused the injuries to complainant Sunar Singh, his wife Swaroopkunwar Bai and their sons Rajendra Singh and Ramnath Singh. There is no reason to disbelieve the evidence of these witnesses.

11. Phoolkunwar Bai (PW-8) who is a child witness has also supported their evidence by deposing that appellants inflicted farsi blows to her parents and brothers and caused injuries. No doubt she has admitted that the grappling took place in between her father and Rai Singh and her father also lifted the farsi to assault Rai Singh but this evidence is not sufficient to infer that the complainant party was aggressor. On the contrary, the evidence shows that the appellants were aggressor because they went at the house of the complainant. They were armed with farsi, abused the complainant and caused their marpeet on account of which they sustained the injuries. The appellants have not sustained any injury in this incident. Therefore, the complainant party was not aggressor.

12. No doubt there is land dispute in between the parties and there is enmity on this account but if any damage was caused by the cattle of the complainant then legal recourse ought to have been taken instead of causing their marpeet. This was not the way to resolve the dispute. They have taken the law in their hands, therefore, they can not justify their action on the ground that there was land dispute. They have also not submitted any medical documents to show that they sustained any injury in this incident. Thus the contention of the learned Counsel of the appellant that the complainant party was aggressor can't be accepted.

13. The report was immediately lodged which was recorded by P.N. Shrivastava (PW-12) at police outpost Shyampur. They were sent to medial examination vide Ex.P-16 to Ex.P-19 where they were examined by Dr. Jyoti Khare (PW-10) who has deposed that on 13.06.1998 she examined Swaroopkunwar Bai and found the following injuries:

(i) Incised wound about 3 in length and cm in width and cm in depth over the parietal bone of left side of skull about one cm lateral to midline.

According to her opinion this injury was caused by hard and sharp object within 6 hours of the examination. She was kept under observation for 48 hours because there was head injury. She was also advised for x-ray. Medical report is Ex.P-11.

14. On the same day she examined Rajendra Singh and found the following injuries:

(i) Incised wound 3 inches in length and about cm in width and cm in depth in curved fascion over the temporal region of left side of skull.

(ii) Lacerated wound about 1 inch in length and 2 cm in width and 2 cm in depth over left shoulder joint.

According to her opinion the injury No. 1 was caused by hard and sharp object and injury No. 2 was caused by hard and blunt object within 6 hours of the examination. He was kept under observation for 48 hours because there was head injury. He was also advised for x-ray. Medical report is Ex.P

12.

15. On the same day she examined Ramnath Singh and found the following injuries:

(i) Incised wound about 1 in length and cm in width and 1 cm depth at lateral side of wound and cm in medial side over the right temporal region in front of right ear.

According to her opinion this injury was simple in nature caused by hard and sharp object within 6 hours of the examination. Medical report is Ex.P-13.

16. On the same day she examined Sunar Singh and found the following injuries:

(i) Lacerated wound about 3 inches in length and cm width and depth over the left ankle region.

According to her opinion this injury was simple in nature caused by hard and blunt object within 6 hours of the examination. Medical report is Ex.P-14.

17. This witness has been cross examined at length but her evidence has not been shattered on material point. Thus, Dr. Jyoti Khare (PW-10) has corroborated the oral evidence adduced by the injured persons.

18. No doubt Dr. Amit Agrawal (PW-1) who was R.S.O. at Hamidiya Hospital, Bhopal on 13.06.1998 after examining Swaroopkunwar Bai opined that she suffered simple injury but he also advised for x-ray. His medical report is Ex.P-1. Dr. Ravi Masand (PW-11) after her x-ray examination found that there was fracture of skull. X-ray report is Ex.P-15 and X-ray plate is Ex.P-16. Thus radiologically it is proved that Swaroopkunwar Bai sustained grievous injury at her head. Thus the ocular evidence adduced by the prosecution has been amply corroborated by the medical evidence. Learned Counsel further submitted that Kamal Singh reacted after hearing the cries of his father Rai Singh hence there was no common intention but it is evident that both the appellants came together armed with farsi, abused the complainant and caused marpeet therefore there was common intention in committing this crime.

19. Learned Counsel submitted that seizure of farsi has not been proved but on the basis of the evidence of Rajendra Singh (PW-7) and Alok Shrivastava (PW-9) it has amply been proved that appellant Kamal Singh was arrested vide arrest memo Ex.P-2, he gave disclosure statement Ex.P-3 and farsi was seized from him vide seizure memo Ex.P-4 hence the contention of the learned Counsel of appellant is not acceptable.

20. It is evident that all the injured witnesses have given the evidence against the appellants. They are good eyewitnesses. There is nothing to disbelieve their statements. The report was immediately lodged and they were immediately medically examined wherein they were found having such injuries. Their evidence is fully corroborated by the medical evidence. The prosecution has proved its case beyond reasonable doubt and the trial Court has not committed any illegality in convicting the appellant under Section 326/34, 324/34 and 323/34 of I.P.C. therefore such finding can not be disturbed in appeal.

21. Learned Counsel for the appellant submitted that appellant be released on the period already undergone or alternatively fine amount be enhanced. He has placed the reliance on the following decisions:

(i) Kanhaiyalal v. State of M.P. 1985 MPWN 336

(ii) Veerma v. State of M.P. 1993(1) MPWN 71

(iv) Hindu Singh v. State of M.P. 1993(1) MPWN 79

(iii) Babbu and Ors. v. The State of M.P. Cr.R. No. 489/97

22. On perusal of record it reveals that appellant Kamal Singh was arrested on 19.06.1998 and was released on 23.06.1998. The period of incarceration is not sufficient to release the appellant on the period already undergone. But this is a fact that grievous injury to Swaroopkunwar Bai was caused by appellant Rai Singh who has expired and this appellant Kamal Singh has caused simple injuries to Sunar Singh and Ramnath Singh. In such circumstances, the sentence awarded to him under Section 326/34 of I.P.C. deserves to be reduced.

23. Consequently, this appeal is partly allowed. The conviction passed by the trial court under Section 326/34, 324/34 and 323/34 of I.P.C. is hereby maintained. However, the sentenced awarded under Section 326/34 of I.P.C. is hereby reduced from 3 years to 1 year R.I. maintaining the sentence of fine amount. The sentence awarded under Sections 324/34 and 323/34 of I.PC. is also maintained. The appellant is on bail. His bail bonds are cancelled. He be directed to appear before C.J.M. Sehore on 31.08.2009 for serving out the remaining part of the sentence.

24. Since appellant Rai Singh has died during the pendency of of this appeal therefore appeal against him has been abated.