Bhagat vs State of Madhya Pradesh

Hon''ble Shri A.K. Sharma, J.—This appeal has been filed u/s 374of Cr.P.C. against judgment dt. 19.12.1997 passed in S.T. No. 255/1996 by learned Additional Sessions Judge Mandleshwar, whereby appellant has been convicted for the offence punishable u/s 307 of IPC and sentenced to undergo RI for four years and fine Rs. 500/-with default stipulation. The brief facts of the case are that, on 24.5.1996 at about 7 PM Dhyansingh and Kalu were coming to their house at Village Naidad. When they reached near the temple, accused Bhagat, Jhapu and Kansingh met them. Bhagat was having one falia, Kansingh was having knife and Jhapu was having stone in his hands. Bhaghat abused them and shouted that he will kill them. Thereafter Bhagat inflicted falia blow on the head of Kalu. Kansingh inflicted knife blow on the body of Dhyansingh. Accused Bhuwansingh and Ramsingh reached there, threw stone due to which Dhyansingh got injured. On report of complainant, after investigation Police has filed challan in the Trial Court. Learned Trial Court has framed charges for the offence punishable u/s 294, 307, 307/34, 323 and 506-B of IPC and after trial, convicted appellant Bhagat for the offence punishable u/s 307 of IPC and sentenced him as mentioned in para 1 of the impugned judgment. Further accused have been acquitted by learned Trial Court from all the charges framed against them. Appellant was also acquitted from the charges of offence punishable u/s 294, 323, 506-B and 307/34 of IPC.

Being aggrieved by the impugned judgment appellant has filed this appeal on the ground that learned Trial Court is not justified in convicting the appellant in the absence of any reliable evidence. The evidence has not been properly appreciated by learned Trial Court.

The only question for consideration in this appeal is whether, learned Trial Court is justified in convicting the appellant by impugned judgment.

Learned Counsel for the appellant has drawn attention towards evidence of Dr. R.S. Tomar PW-1 who has found two lacerated wounds and one contusion on the head of Kalu. At the time of his medical examination on 24.5.1996 and further mentioned in his report Ex. P/1 that he advised X-Ray for the head injury. On re-examination, this witness has narrated that Dr. R.S. Tomar PW-1 has stated that in reply to query regarding whether the injury sustained by Kalu was dangerous to life, he has given reply Ex. P./16 wherein he has stated that injury sustained by Kalu was of grievous nature. In examination this witness has stated that injury No. 1 and 2 (lacerated wounds) sustained by Kalu may be caused by falling on stone. Injury No. 3 (Contusion) may be result of falling. He has further stated in cross-examination that he has not taken X-Ray of Kalu. For X-Ray he has been referred to Barwani. He has examined the X-Ray taken at Barwani. Since injury was over vital part, therefore, there was possibility of death.

Learned Counsel for the appellant has drawn attention towards the statement of Dr. S.B. Nimkar PW-8 who has treated Kalu at District Hospital Barwani, on 25.5.1996. This witness has stated that he has found fracture of right parietal bone on the head of Kalu. X-Ray report given by him is Ex. P/13. Learned Counsel for the appellant has submitted that Dr. S.B. Nimkar PW.8 has not given any opinion that injury sustained by Kalu was dangerous to life. He has admitted that Kalu remained admitted in Hospital till 28.5.1996.

Learned Counsel for the appellant has drawn attention towards the statement of Kalu PW-3 who has stated that when he was returning from market, Bhagat inflicted falia on his head and also threw stones on him. Later on, he has stated that Kansingh, Bhagat, Jhapu and Ramsingh threw stones on him injuring his back. Bansingh rescued them. In cross-examination, he has admitted that for abducting daughter of Bhagat, report was lodged against Radhu due to which he and Radhu were annoyed with Bhagat. The place of incidence was passage from where people go on bullock cart and bicycle. On day of incidence was market day. He has denied that he has quarreled with Mathribai wife of Bhagat. Dhyansingh PW-2 has also admitted in cross-examination that for abducting daughter of Bhagat, report has been lodged against Kalu. This witness has lodged the report Ex. P/3.He has shown ignorance about the report lodged by wife of Bhagat, Mathribai against him on 24.5.1996.

Learned Counsel for the appellant has submitted that learned Trial Court has disbelieved the evidence against other accused persons and further learned Trial Court has disbelieved the evidence regarding injury sustained by Dhyansingh PW-2 but relied the same evidence against the appellant. He has further drawn attention towards the fact that there is no explanation regarding injury sustained by wife of Bhagat or accused Kansingh and Jhapu. Learned Trial Court has held that report was lodged by both the parties and further held that accused are entitled to the benefit of injuries sustained by them. It is further important to note that injury has been sustained by Kalu by falia which is a sharp weapon while no injury of sharp weapon has been found on the head of Kalu. Further Kalu has admitted that stones were thrown by him by other accused persons who have been acquitted by learned Trial Court. Therefore, in the absence of injury of sharp weapon on the head of Kalu and looking to the fact that no stone was thrown by appellant, learned Trial Court has erred in convicting appellant for the offence punishable u/s 307 of IPC. Considering the admission of complainant regarding abduction of daughter of appellant and injuries sustained by wife of appellant in the incidence of same day, in the light of opinion of doctor that injuries sustained by Kalu may be result of falling on stone and non-explanation of injuries sustained by Mathribai wife of appellant by Kalu PW-3 or Dhyansingh PW-2 makes the evidence of prosecution witnesses specially, evidence of victims unreliable. Learned Trial Court is not justified in convicting one accused out of four accused that too, on same set of evidence, therefore, learned Trial Court is not justified in convicting the appellant by impugned judgment. Therefore, appeal is allowed setting-aside the impugned judgment. Appellant is acquitted from the charges of offence punishable u/s 307 of IPC. The fine amount deposited by the appellant be refunded to him. Bail bond of appellant is, hereby, discharged.