Tehsil-Pipariya, Distt-Hoshangabad (M.P.) vs State of Madhya Pradesh

Shri Amit Dubey, Advocate. : For Respondent ****************************************************************** Shri Vinod Fouzdar, Panel Lawyer : J U D G M E N T 08/05/2012 This appeal has been preferred against the judgment dated 06/09/2008 passed by Special Judge (SC/ST Act) Hoshangabad in Sessions Trial No. 437/2000 convicting the appellants as under:- 2 Cr.A. No.1974 of 2008 S. No. Under section 1 2 3 4 148 IPC 326/149 IPC for causing injuries to Shivlal (PW-7) 324/149 IPC for causing injuries to Vishram (PW-1), Premwati Bai (PW-2) and Gopal Gond(PW-8) 323/149 IPC for causing injuries to Brijmohan (PW-3) Jail Sentence Fine 1 year 4 years Rs.200/- Rs.500/- 2 years Rs.200/- 3 months Rs.200/-

2. Facts of the case in short are that on 19/06/2000 while Vishram Singh (PW-1) was throwing soil near his house, appellant no.4 Prem Shankar quarrelled with him. After three days of the incident at about 10.30 PM, Shivlal (PW-7), Gopal Gond(PW-8) and Brijmohan (PW-3) while coming to their house, reached in front of the house of Prem Shankar, surrounded and assaulted by appellants. Appellant no.2 Pujari @ Umesh was having sharp edged weapon with him. Appellant Daya Shankar, Prem Shankar and Hari Prasad were having Lathi with them. Appellant Sundar Lal assaulted Shivlal (PW-7) with spade on his head. In this incident, Vishram (PW-1), Premwati Bai (PW-2), Brijmohan (PW-3), Shivlal (PW-7) and Gopal Gond(PW-8) received injuries. The aforesaid 5 injured persons were sent to PHC, Bankhedi. FIR was lodged by PW-1. A case at crime no. 97/2000 under section 147, 148, 149, 307, 323 IPC and 3(1)(x) The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act) was registered against the appellants.

3. During investigation, appellants were arrested and weapons were seized from them. After completing investigation, police Bankhedi submitted a charge sheet against the appellants in the court of concerned Magistrate. Case has been committed to the Sessions Court. 3 Cr.A. No.1974 of 2008

4. Trial Court framed charges under section 147, 148, 307/149 IPC and under section 3(1)(x) and 3(2)(v) SC/ST Act. Appellants abjured guilt. Defence of the appellants before the Trial Court was that they have been assaulted by prosecution witnesses and appellant Sundar lal, Prem Shankar and two daughters of Prem Shankar sustained injuries in this incident. To substantiate case of the prosecution, statements of Vishram (PW-1), Premwati Bai (PW-2), Brijmohan (PW-3), Pancham (PW- 4), Siyaram (PW-5), Sardar (PW-6), Shivlal (PW-7), Gopal Gond (PW-8), Dr. N. Hassan (PW-9), Dr. Jayant Harne (PW-10), Gajju (PW-11), N. S. Rathore, DSP (PW-12), and H.D.L. Patle, Sub Inspector (PW-13) were recorded.

5. After appreciating aforesaid evidence, Trial Court acquitted appellants of the charge under section 307 IPC and 3(1)(x) and 3(2)(v) of SC/ST Act. However, appellants were convicted and sentenced as above.

6. Challenging the findings of conviction and sentence, this appeal has been preferred on the grounds that appreciation of evidence is not proper. Injuries of appellants Sundar lal, Prem Shankar and two daughters of Prem Shankar were not taken into consideration properly. Prosecution witnesses were aggressors and were responsible for this incident, but this fact not been appreciated properly by the Trial Court. Evidence of prosecution witnesses is suffering from material contradictions and omissions. There is no independent corroboration. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both.

7. In view of the evidence of Dr. Jayant Harne (PW-10) and MLC report Ex.P-14 and further evidence of Dr. N. Hassan (PW- 9) and X-ray report Ex.P-5, it remains no longer disputed that Shivlal (PW-7) sustained grievous injuries i.e. linear fracture of parietal bone on his person in this incident. Similarly in view of 4 Cr.A. No.1974 of 2008 evidence of Dr. Jayant Harne (PW-10) and MLC report Ex.P-10, it remains no longer disputed that Gopal Gond (PW-8) sustained incised wounds on his head. According to MLC report Ex.P-11, it is proved that Vishram (PW-1) also sustained two incised wounds on right hand and 4 other injuries on his person. According to MLC Report Ex.P-13, Premwati Bai (PW-2) also sustained incised wounds on his left side of her face. According to evidence of Dr. Jayant Harne (PW-10) and MLC Report Ex.P- 12 there had been one simple injury on the person of Brijmohan (PW-3) on lower portion of his wrist (Kamar).

8. In back drop of aforesaid medical evidence and on careful perusal of evidence of injured persons i.e. Vishram (PW-1), Premwati Bai (PW-2), Brijmohan (PW-3) Shivlal (PW-7), and Gopal Gond (PW-8), it is clearly established that appellants came together and started assaulting the injured witnesses. Two appellants were having sharp edged weapons and three persons having lathi in their hands and they shared common object of beating these 5 prosecution witnesses collectively.

9. It is submitted by learned counsel for the appellants that non of the injured prosecution witnesses has explained injuries sustained by Sundar lal and daughters of Prem Shankar, Rather this fact has been suppressed by all of them and above such conduct of prosecution witnesses is rendering them unreliable.

10. On perusal of the evidence on record, it is transpired that appellants have also filed criminal complainant case against the injured prosecution witnesses on the allegation of causing injuries to the appellants, but they could not succeed in that criminal complainant case. It has also become very clear from the evidence that there had been quarrel between 5 injured prosecution witnesses and 5 appellants on the point of construction of a house. On careful perusal of impugned judgment, it is apparently clear that Trial Court has appreciated the evidence in right perspective and there appears no reason to 5 Cr.A. No.1974 of 2008 interfere with the findings of conviction awarded to the appellants under section 148, 326/149, 324/149, 323/149 IPC. Accordingly conviction of appellants hereby affirmed.

11. At this stage, it is submitted by learned counsel for the appellants that in the same incident appellants also sustained injuries and police did not cooperate with them and not taken proper action against the injured prosecution witnesses. It is further submitted that this incident occurred in the year 2000 i.e about 12 years ago. During the aforesaid period no criminal antecedent has been reported against appellants. Further submitted that no useful purpose would be served in sending the appellants back to jail in this matter because they have already suffered custody period of about 1 month 27 days during investigation and appeal.

12. On having considered aforesaid facts and circumstances, this appeal deserves to be partly allowed on the point of sentence only. Appellant no.3 Daya Shankar and appellant no.4 Prem Shankar both are old aged persons of about 70 years at present. For offence under section 148, 326/149, 324/149, 323/149 IPC undergone custody period of about 1 month and 27 days seems to be just, proper and sufficient with a condition of enhancement of fine. For offence under section 148 IPC, fine amount is enhanced from Rs.200/- to Rs.500/-. For offence under section 326/149 IPC, fine amount is enhanced from Rs.500/- to Rs.3000/-. For offence under section 324/149 IPC, fine amount is enhanced from Rs.200/- to Rs.1000/- on three counts. For offence under section 323/149 IPC, fine amount is enhanced from Rs.200/- to Rs.500/-. Each appellant is liable to deposit fine amount of Rs.7,000/-. In default of payment of fine the appellants shall undergo 3 months simple imprisonment.

13. As discussed above, this appeal is allowed in part on the point of sentence only. Jail sentence reduced to undergone period of 57 days and fine amount enhanced as indicated above. 6 Cr.A. No.1974 of 2008

14. Appellants are directed to remain present before the trial court on or before 17th July, 2012 to deposit the balance fine amount or to undergo default sentence as the case may be. Appeal is allowed in part. tarun/ (Tarun Kumar Kaushal) Judge