Baijnath Kurmi and Laxman Kurmi vs State of Madhya Pradesh

Hon''ble Shri Justice A.K. Shrivastava

Feeling aggrieved by the judgment of conviction and order of sentence dated 29.04.1999 passed by the learned 5th Additional Sessions Judge Sagar in Special Sessions Trial No. 62/1998 convicting the first appellant u/s 341, 325/34 IPC and second appellant u/s 341 and 325 IPC and thereby sentencing them to SI for one month and RI for two years respectively and fine of Rs. 500/- and in default further 2 months RI, the appellants have taken shelter of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. Facts in detail are already narrated in para 3 to 5 of the impugned judgment and for convenience they are not being reproduced here. Suffice it to say that present appellants and acquitted accused persons were tried for charges punishable u/s 341, 324, 325/34, 506 later part IPC and also u/s 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short "Act"), however, learned Trial Court did not find the charge u/s 3(1)(x) of the Act proved against all the accused persons and eventually acquitted them from that charge. Learned Trial Court further did not find the charges to be proved u/s 341, 324, 325/34, 506 later part against Nanhe Bhai and Munna alias Roopnarayan and eventually acquitted them from those charges, however, first appellant Baijnath has been found guilty of committing offence u/s 341 and 325/34 IPC while second appellant was found guilty of offence u/s 341 and 325 IPC and both of them were sentenced as mentioned in para 1 of this judgment.

In this manner, the present appeal has been filed by the appellants assailing their judgment of conviction and order of sentence.

The contention of learned counsel for appellants is that looking to the evidence placed on record it is not proved that appellants have committed any offence. Alternative submission has also been put-forth by him that if this Court comes to the conclusion that appellants have committed the offence, in that case since incident occurred 15 years ago, it would not be fruitful to send the appellants behind the bars again. It is also contended by him that first appellant Baijnath has suffered jail sentence of 8 days while second appellant Laxman has suffered jail sentence of one and half month and this would be the appropriate punishment for them for the offence which they have committed.

On the other hand, learned Public Prosecutor argued in support of the impugned judgment and prayed for dismissal of this appeal.

Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed in part.

In the present case injured is Shiv Prasad (PW2). He has categorically stated in his testimony that he was returning back from Deori to his village on his bicycle. On the way, near Mahua tree he found appellants sitting there. Second appellant Laxman stopped and hurled abuses of mother and sister to him and also dealt lathi blow upon his head. Although for first appellant Baijnath it is said that he dealt Ballam blow on the legs of injured but neither any incised wound nor stab wound was found on any part of body of injured and therefore I am of the view that involvement of first appellant Baijnath in the seen and taking part in the offence by causing injury by Ballam becomes doubtful. In this regard I may profitably place reliance on the decisions of Supreme Court in Hallu and Others Vs. State of Madhya Pradesh, and Thaman Kumar Vs. State of Union Territory of Chandigarh, Thus, the conviction of appellant No. 1 Baijnath u/s 341 and 325/34 IPC is hereby set aside and he is hereby acquitted from these offence.

So far as conviction of second appellant Laxman is concerned, there is specific evidence of injured who has categorically stated that second appellant Laxman dealt lathi blow upon his head and on other part of his body. This witness was cross-examined at length but nothing has been carved out from his testimony. Testimony of this witness has been further corroborated by evidence of MLC doctor K.C. Gupta (PW11) and his MLC report is Ex.P/9 in which he has found as many as 11 injuries on the person of injured and all of them were caused by hard and blunt object. Injured was referred for x-ray and Radiologist Dr. J.K. Diwakar (PW10) did not find any bony injury on the head and left elbow but a hair-line fracture was found on the meta dorsal bone of left leg. Thus, the evidence of injured is also proved from the evidence of MLC doctor K.C. Gupta and Radiologist Dr. J.K. Diwakar. Hence, I am of the view that Trial Court did not commit any error in convicting the second appellant u/s 341 and 325 IPC.

I shall now advert to alternative submission put-forth by learned counsel for appellants. The incident had occurred on 19.4.1997 i.e. more than 15 years ago and the appellant has been directed to suffer jail sentence of two years RI. He has already suffered jail sentence of one and half months and it would not be fruitful to send him behind the bar after near about 15 years, however, at the same time justice is to be done for injured also. Since injured has received 17 injuries, the amount of fine Rs. 500/- is enhanced to Rs. 10,000/- (Rupees Ten Thousand) and the entire amount of fine be paid to injured PW2 Shiv Prasad, S/o. Ghutti Occupation Agriculturist, R/o. Village Jwab, P.S. Deori, District Sagar towards compensation u/s 357 of Cr.P.C., Let the balance amount shall be deposited by the appellant on or before 31.3.2013 in the Trial Court, failing which he shall further undergo one year RI. Learned Trial Court is hereby directed to do the needful in this regard. The bail bonds of this appellant No. 2 Laxman shall stand cancelled only after he deposits entire amount of fine on or before said date.

Appellant Laxman is hereby directed to appear before the learned Trial Court on 17.12.2012 and shall deposit the balance amount of fine. If appellant is unable to deposit the balance amount on this date or deposits only part of the entire amount, learned Trial Court shall give a date to him to deposit the remaining amount and if on that date also, the appellant fails to deposit the amount, a further date may be given but that date should not exceed beyond 31.3.2013 and by this date appellant Laxman should deposit the balance fine amount, failing which he shall undergo the jail sentence of one year RI. In case appellant fails to appear before learned Trial Court on 17.12.2012, the Trial Court shall issue notice to his surety and may pass necessary order against him in accordance with law. After depositing the amount of fine or sending the appellant Laxman to jail, the Trial Court shall intimate the Registry of this Court. The Registry is hereby directed to send the original bail bonds papers to learned Trial Court and a photocopy thereof be retained in this file. It is further made clear that after entire amount of fine is deposited by the appellant Laxman, his bail bonds shall stand cancelled. Resultantly, this appeal succeeds and is hereby allowed in part. The conviction of appellant Laxman u/s 341 and 325 IPC is hereby affirmed, however, the sentence is hereby modified to the extent indicated hereinabove.