Shyamdas Shivhare v. State of Madhya Pradesh

father where the complainant Mahadeo (PW10) lodged an FIR FIR Ex.P/8 which was written in the Rojnamcha because no cognizable offence was visible at that time. The deceased was sent to the hospital for his medico legal examination and treatment. Dr. S. K. Namdeo (PW3) had examined the deceased Keshavdas and he found three injuries on him. Firstly, one tooth in the upper row was loose and blood was present at its base. Secondly, an abrasion was found on his left elbow and he was complaining about some pain in the chest and back. On investigation a contusion was found on left side of his back. Dr. Namdeo (PW3) informed that injury no.1 was grievous and he referred him for X-Ray examination. On the next day morning at about 2.45 a.m the deceased Keshav Prasad expired. A merg intimation was given by Dr. Chaturvedi to the Police Station Pali 3 Criminal Appeal No1012 of 1997 and therefore, a merg was registered by the document Ex.P/3. Panchayatnama lash Ex.P/6 was prepared and body of the deceased was referred for post mortem. Dr. A. P. Pathak (PW13) did the post mortem on the body of the deceased Keshavdas and gave his report Ex.P/7. He found that there was no external injury visible to the deceased but, there was slight swelling on his neck. On exploring the portion it was found that there was bleeding in lower 2/3rd part of the neck just after the bones and 5th and 6th cervical were displaced from their places and an injury was caused to the spinal cord due to which the deceased expired. After due investigation a charge sheet was filed before the Additional Chief Judicial Magistrate, Umariya who, committed the case to the Sessions Court Umariya and ultimately it was transferred to the Additional Sessions Judge, Umariya.

3. The appellant abjured his guilt. He took a specific plea that a quarrel took place between the deceased and the appellant and the deceased brought a stick and assaulted the appellant by it. He did not know as to how the deceased died. FIR Ex.D/2 and medical report of the appellant Shyamdas Ex.D/1 were proved.

4. After considering the evidence adduced by the parties the learned Additional Sessions Judge acquitted the co-accused persons Surjan @ Hemlata and Ku. Sonu alias Sarita from all the charges whereas the appellant was acquitted from the charges of offence punishable under Section 302 or 302 read with Section 34 of I.P.C but convicted for offences punishable under sections 323, 4 Criminal Appeal No1012 of 1997 338 of I.P.C and sentenced as mentioned above.

6. I have heard the learned counsel for the parties. The learned counsel for the appellant has submitted that there was no charge appended against the appellant for the offence punishable under section 338 of I.P.C and therefore, the appellant could not be convicted for offence punishable under Section 338 of I.P.C. No grave injury was caused to the victim. At present the appellant who is an old person has got both of his knees replaced and therefore, it is impossible for him to remain in the jail for a single day. He remained in the custody during the trial for one day only. However, it is prayed that he may not be sent to the jail again.

7. On the other hand the learned Public Prosecutor has submitted that the deceased died due to assault done by the appellant. However, since no counter appeal was filed nothing can be done in the matter for conviction of offence punishable under Section 302 of I.P.C but, sentence directed by the trial Court appears to be appropriate and it may be confirmed.

8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances, of the case it is to be considered as to whether the appellant could be convicted for offence punishable under Section 338 of I.P.C.? Whether the appeal filed by the appellant can be accepted? And whether the sentence imposed upon the appellant can be reduced ? 5 Criminal Appeal No1012 of 1997

9. The prosecution's case, from the very begging is that a scuffling took place between the deceased and the appellant. An FIR Ex.P/8 was lodged by the witness Mahadeo (PW10) against the appellant but, thereafter names of two more accused persons were added by various witnesses through their case diary statements and ultimately those accused persons were acquitted by the trial Court. However, there was no allegation of any rash or negligent act of the appellant and therefore, neither the charge sheet was filed for offence punishable under section 338 of I.P.C nor any charge was framed for offence punishable under section 338 of I.P.C. The learned Additional Sessions Judge while acquitting the appellant for offence punishable under section 302 of I.P.C suddenly convicted him for offence punishable under section 338 of I.P.C. The offence under section 302 of I.P.C is dependent upon the assault caused voluntarily whereas, offence under Section 338 of I.P.C is enacted for the rash and negligent act of the accused and therefore, nature of both the offences is different. Offence under Section 338 of I.P.C cannot be said to be a lesser grave offence of the same nature as of Section 302 of I.P.C and therefore, as per provisions of Section 222 of the Cr.P.C no one can be convicted for offence punishable under Section 338 of I.P.C under the charge of Section 302 of I.P.C. The learned Additional Sessions Judge has committed an error in convicting the appellant for offence punishable under section 338 of I.P.C without any charge. 6 Criminal Appeal No1012 of 1997

10. It is pertinent to note that Dr. Namdeo (PW3) has given his report Ex.P/4 and he found that the injury caused to the tooth was grievous in nature. However, he simply mentioned that one tooth was shaken and some blood was present at the base of that tooth but, it is no where observed that either the tooth was broken or dislocated from its shaft. The deceased was referred for X-Ray examination but, no X-Ray report has been shown before the Court and therefore, it is apparent that injury caused to the tooth of the deceased was not grievous in nature and therefore, the learned Additional Sessions Judge did not convict the appellant for offence punishable under Section 325 of I.P.C but he convicted the appellant for offence punishable under Section 338 of I.P.C and therefore, a contradictory view could not be taken by the learned Trial Judge. The deceased did not sustain any grievous injury in his tooth and therefore, on this count also the appellant cannot be convicted for offence punishable under section 338 of I.P.C.

11. The witnesses Mahadeo (PW10), Ramcharan Gupta (PW9), Rajendra Prasad Soni (PW4), Ramlakhan @ Lakhan Gupta (PW5), Saraswati (PW11) and Krishandas (PW12) were examined as eye witnesses in the case. Out of them Rajendra Prasad Soni (PW4) and Ramlakhan @ Lakhan Gupta (PW5) have turned hostile. They did not state about the factual position. Krishandas has proved that a scuffling took place between the appellant and the deceased and thereafter, Shyamdas threw the deceased on earth and hence, he became unconscious. Ramcharan (PW9) has 7 Criminal Appeal No1012 of 1997 stated that after some quarrel and scuffling the deceased brought a stick in his hand and assaulted the appellant Shyamdas and thereafter, he turned hostile. Mahadeo (PW10) and Saraswati (PW11) have stated that the appellant threw the deceased on earth by inserting his legs in the legs of the deceased and thereafter, twisted his neck. The version told by these witnesses is nowhere corroborated by other eye witnesses. Krishnadas (PW12) appears to be an independent witness who did not say about such an incident. On the contrary he has accepted that the deceased was a stout fellow and the appellant was an old man. Mahadeo (PW10) had lodged an FIR Ex.P/8 in which he did not mention that the witness Saraswati (PW11) was present at the time of incident or the appellant twisted the neck of the deceased. Under such circumstances, it appears that after getting knowledge from the post mortem report about damage to the spinal cord, Mahadeo (PW10) and Saraswati (PW11) turned their statements according to the post mortem report. Hence it was not the case of the prosecution that the appellant twisted the neck of the deceased. Under such circumstances, the part of the story told by Mahadeo (PW10) and Saraswati (PW11) which relates to twisting of the neck cannot be accepted but, it is established that the appellant assaulted the deceased by a stick. Dr. Namdeo (PW3) did not find any injury on the neck of the deceased. At that time there was no swelling on the neck. Deceased died after few hours of the incident and therefore, it is possible that injuries 8 Criminal Appeal No1012 of 1997 caused in his neck could be caused after the incident when the deceased was taken to the Police Station or hospital. Under such circumstances, the learned Additional Sessions Judge has rightly observed that the deceased did not die due to assault caused by the appellant and therefore, the appellant was rightly acquitted from the charge of offence punishable under section 302 of I.P.C.

12. However, looking to the evidence given by Krishnadas (PW12), Mahadeo (PW10) and Saraswati (PW11) it is proved beyond doubt that the appellant assaulted the deceased by a stick. Ramcharan (PW9) has tried to show that the deceased was the person who brought a stick and assaulted the appellant. The appellant has also proved his FIR Ex.D/2 and his injuries with help of MLC report Ex.D/1. It is true that the appellant has also received some injuries but it is for the defence to prove that who started the incident of assault. It is apparent that the deceased put a box in front of his shop which was objected by the appellant and thereafter a quarrel took place and the appellant did scuffling in that quarrel and thereafter, the deceased brought a stick and the appellant had also brought a stick. Both of them assaulted each other. If initial portion of the story is considered then it would be clear that scuffling was initiated by the appellant. If the deceased was not taking the box back in the shop then the appellant could complaint to the father of the deceased who, was real brother of the appellant but, instead of doing so he started assaulting the deceased and therefore, it cannot be said that the 9 Criminal Appeal No1012 of 1997 incident was initiated by the deceased. It was not a case of free fight and no initiation of the quarrel started by the deceased. No right of private defence accrued in favour of the appellant. He could go to the Police to lodge an FIR against the deceased that he kept a box in front of his shop which obstructed the customers in coming to his shop. Under such circumstances, the appellant had committed the offence under Section 323 of I.P.C and the trial Court has rightly convicted the appellant for the offence punishable under Section 323 of I.P.C.

13. So far as the sentence is concerned it is true that the deceased died in the incident. However, since the appellant cannot be convicted for offence punishable under section 302 of I.P.C therefore, while considering the question of sentence such an event of death should not be considered. It appears that the appellant initially scuffled with the deceased and thereafter, he gave 1-2 punches to the deceased causing a simple injury on his tooth and also one or two injuries caused in the back of the deceased. Under such circumstances, the offences proved against the appellant appears to be not so grave. The appellant was an old person in comparison to the deceased. At present the appellant has faced the trial and appeal for last 14-15 years and looking to such harassment and the present physical condition of the appellant that his both knees are replaced, it should be proper that he may not be sent to the jail again. He remained in the custody for at least one day and therefore, on the basis of the 10 Criminal Appeal No1012 of 1997 aforesaid circumstances, it would be proper that the sentence directed against the appellant may be reduced to the maximum fine.

14. On the basis of the aforesaid discussion the appeal filed by the appellant can be partly accepted, hence it is partly accepted. The conviction as well as the sentence directed for offence punishable under Section 338 of I.P.C is hereby set aside. He is acquitted for that offence. However, the conviction for offence punishable under section 323 of I.P.C is hereby maintained but, sentence is reduced to the period which he has already undergone in the custody by imposing a fine of Rs.1000/- upon him. The appellant is directed to deposit the fine amount before the trial Court within two months from today. In default of payment of fine, he shall undergo for three months simple imprisonment.

15. At present the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.

16. Copy of the judgment be sent to the trial Court along with its record for information and compliance. (N.K.GUPTA) JUDGE 26.9.2012