Bhujbal and Another vs State of Madhya Pradesh

Hon''ble Justice Shri N.K. Gupta

The appellants have preferred this appeal against the judgment dated 15.2.2000 passed by the learned First Additional Sessions Judge, Sehore in ST. No. 2/1998 whereby the appellant no. 2 is convicted for offence punishable u/s 307 of I.P.C. and appellant no. 1 is convicted for offence punishable u/s 307 read with Section 34 of I.P.C. Each of them were sentenced with five years rigorous imprisonment and fine of Rs. 500/-. In default of payment of fine one month''s rigorous imprisonment was directed. The prosecution''s story, in short, is that on 8.8.1997 at about 7.00 a.m. in the morning the complainant Kailash Narayan (PW2) went to answer the call of nature in a field situated at Village Ahmedpur (Police Station Ahmedpur, District Sehore). When he was coming back, the appellants surrounded him. They had sticks with them. The appellant no. 1 Bhujbal held the complainant Kailash and the appellant no. 2 Prem Narayan assaulted him by a stick causing him injuries on his head and left hand. The complainant Kailash fell down due to the assault and thereafter, both the appellants assaulted him by sticks causing him injuries on his various parts of the body. He was assaulted because the appellants had suspected that the complainant was behind some witch craft. In the meantime, one Mohanlal (PW6) came to the spot who saved the complainant. The complainant was taken to the Police Station, Ahmedpur where he lodged an FIR Ex.P/2. He was sent for his medico legal examination and treatment. Dr., J.K. Kathuria (PW1) examined the complainant Kailash Narayan and gave his report Ex.P/1. Various blunt injuries were found to the victim at 17 places on his body. Out of those injuries X-Ray was referred for head, left forearms and left upper arm. The complainant was referred for Hamidia Hospital, Bhopal. After due investigation a charge sheet was filed before the Additional Judicial Magistrate, Sehore who committed the case to the Sessions Court, Sehore and ultimately it was transferred to the First Additional Sessions Judge, Sehore.

The appellants abjured their guilt. They took a specific plea that they were not involved in the crime. They were falsely implicated in the matter. The appellant no. 1 Bhujbal had tried to lodge an FIR before the Police but no FIR was registered by the appellants. However, no defence evidence was adduced.

The learned Additional Sessions Judge after considering the evidence adduced by the prosecution convicted the appellants for offence punishable u/s 307 or 307 read with Section 34 of I.P.C. and sentenced as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that it was not proved beyond doubt that the appellants were the persons who assaulted the victim. The victim sustained 2-3 fractures in his arm. No fracture was caused on any vital portion of the body. Injury caused on his head was neither fatal nor grave and therefore, number of injuries is not relevant for consideration of offence punishable u/s 307 of I.P.C. The learned Additional Sessions Judge erred in convicting the appellants for offence punishable u/s 307 or 307 read with Section 34 of I.P.C. At the most they could be convicted for offence punishable u/s 325 or 323 of I.P.C. It is also submitted that no common intention of the appellant no. 1 Bhujbal was proved and therefore, the appellant no. 1 Bhujbal could be convicted for offence punishable u/s 323 of I.P.C. only. In alternate it is submitted that the appellants remained in custody for more than three months. They have faced the trial and appeal for last 14 years. They were the first offenders. Under such circumstances, they should not be sent to the jail again.

On the other hand the learned Public Prosecutor has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and no interference can be done in the matter.

The complainant Kailash Narayan (PW2) has stated that initially the appellant no. 1 Bhujbal held him and the appellant no. 2 Prem Narayan assaulted him by a stick causing an injury on his head and therefore, he fell down. Thereafter both the appellants assaulted him causing several injuries on his hands, legs and back. He has stated that the appellants especially the appellant no. 2 Prem Narayan had a suspicion upon the complainant that he was doing some witchcraft against them. The incident was seen by one Mohanlal. However, Mohanlal (PW6) has turned partially hostile. He has admitted that the victim Kailash was found injured but, he did not know as to how he sustained the injuries. The appellants gave suggestions to the victim as well as Mohanlal that the victim sustained injuries in a road accident. However, both of them did not admit such a suggestion. Such type of suggestion was given to Dr. Kathuria (PW1) who proved the medical report Ex.P/1 of the victim Kailash Narayan. The doctor has accepted that such injuries could be caused in a road accident. However, this was an hypothetical suggestion given to the doctor. It was for the appellants to prove that the victim sustained such injuries in a road accident. Sushila Bai (PW3) has stated that when her husband came back he told about the incident that the appellants assaulted him. Sushila Bai did not claim herself to be an eye witness. However, she was informed about the incident soon after the incident by the complainant himself and therefore, her evidence is relevant as the subsequent conduct of the complainant.

The story told by the complainant is duly corroborated by the FIR Ex.P/2 lodged within 1 1/2 hours of the incident. Also the story told by the complainant is duly corroborated by the medical report Ex.P/1 proved by Dr. Kathuria. Dr. (Mrs.) Shel Govil (PW9), Reader, Medical College who was working as head of the Radiological Department in Medical College, Bhopal and she proved the X-Ray report of the victim Kailash which was proved as Ex.P/9. She found that there were two fractures in the left hand of the victim and one fracture of tibia bone in left leg of the victim. Ultimately three fractures were found to him. It is apparent that the victim sustained grave injuries in the left hand and left leg.

The learned counsel for the appellants has submitted that the complaint was not reliable and the appellants were falsely implicated due to enmity but no enmity could be established by the defence by which the appellants could be falsely implicated by the complainant. On the other hand it is established that due to suspicion of witchcraft the appellants assaulted the victim by sticks. Under such circumstances, where the testimony of the complainant is duly corroborated by his wife Sushila Bai, FIR Ex.P/2 and various medical reports proved by Dr. Kathuria and Dr. (Mrs.) Govil. Hence by the testimony of the complainant is proved beyond doubt that the appellants were the persons who assaulted the victim Kailash Narayan causing him grievous injuries.

The learned Additional Sessions Judge convicted the appellants for offence punishable u/s 307 or 307 read with section 34 of I.P.C. but, no doctor has opined that the injuries caused to the victim were fatal in nature. Dr. Kathuria in para 2 of his statement has stated that except the suspected fractures remaining injuries were simple in nature. Fractures were found on left hand and left leg of the complainant and therefore, such injuries were grave but not proved to be fatal. It appears that the appellants did not assault on the head of the complainant with any forceful manner. No fracture has been caused on his head or no brain hemorrhage was caused. The appellants did not try to assaulted for second time on his head. Under such circumstances, it appears that they had not intended to kill the deceased. Similarly they had assaulted the victim on his legs and hands. They did not assault on any other vital part of the body. There is no opinion of any doctor that due to fractures caused on hand and leg the complainant could die. Under such circumstances, though wounds were 17 in number but it cannot be said that the appellants tried to kill the victim.

The appellants neither intended to kill the victim nor any fatal injury was caused to the victim by which it can be said that they had knowledge that by such assault he could die and therefore, the present case does no fall within the purview of section 300 of I.P.C. and therefore, no offence u/s 307 of I.P.C. is made out against the appellants. In this connection, the learned counsel for the appellants has cited some judgments passed by the single Bench of this Court in the case of Ibrahim Vs. Government of M.P., Sobaran Singh Vs. State of M.P., Also the judgment passed by Hon''ble the Apex Court in the case of Mohan Singh and Another Vs. State of M.P., is cited. In support of the contention led by the learned counsel for the appellants in the light of the aforesaid judgment where the present case does not fall within the purview of Section 300 of the I.P.C. and where the victim did not sustain any fatal injury, the appellants could not be convicted for offence punishable u/s 307 of I.P.C. At the most they could be convicted for offence punishable u/s 325 of I.P.C. The learned Additional Sessions Judge erred in convicting the appellants for offence punishable u/s 307 of the I.P.C.

The learned counsel for the appellants has submitted that the appellant no. 1 Bhujbal had no common intention with the co-accused. In the connection judgment passed by Hon''ble the Apex Court in the case of Mohan Singh (supra) is also cited. Similarly, the judgment passed by the single Bench of this Court in the case of Rajesh Singh Vs. State of M.P., is also cited to show that there is a lot of difference between common intention and similar intention. However, looking to the facts and circumstances of the present case, the decision passed by the Single Bench of this Court in the case of Rajesh (supra) is not applicable. It is apparent that initially the appellant no. 1 Bhujbal held the victim and then the appellant no. 2 Prem Narayan assaulted the victim by a stick and thereafter when the victim fell down on earth the appellant Bhujbal had also assaulted the victim by a stick. It is also clear that the appellant Bhujbal assaulted the victim on his hands and legs and therefore, it is also clear that out of so many fractures at least one was caused by the appellant no. 1 Bhujbal and therefore, looking to the overt act of the appellant Bhujbal, it is apparent that he had a common intention with the co-accused Prem Narayan. Due to factual variations the judgment passed by the single Bench of this Court in the case of Rajesh (supra) is not applicable in the matter. Similarly looking to the overt act of the appellant Bhujbal, the principles laid by Hon''ble the Apex Court in the case of Mohan Singh (supra) may be applied and common intention of the appellant no. 1 Bhujbal is duly established. Hence the appellant no. 2 Prem Narayan can be convicted for offence punishable u/s 325 of I.P.C. and the appellant no. 1 Bhujbal can be convicted for offence punishable u/s 325 read with Section 34 of I.P.C.

So far as the sentence is concerned, it is true that the victim sustained 17 injuries. Out of them three injuries were fractures. He was brutally assaulted by the appellants but simultaneously this fact is also to be considered that the appellants were the first offenders and they remained in the custody for more than three months. They have faced the trial and appeal for last 14 years and therefore, looking to the entire situation three months custody appears to be a sufficient jail sentence for the appellants. They should not be sent to the jail again but a heavy fine is required to be imposed upon them.

On the basis of the aforesaid discussion the appeal filed by the appellants is partly allowed. The conviction as well, as the sentence directed by the trial Court for offence punishable u/s 307 or 307 read with Section 34 of I.P.C. is hereby set aside. The appellants are acquitted from the said charges but, under such charges the appellant no. 2 Prem Narayan is convicted for offence punishable u/s 325 of I.P.C. and the appellant no. 1 Bhujbal is convicted for offence punishable u/s 325 read with Section 34 of I.P.C. Both are sentenced with the jail sentence equal to the period for which they remained in the custody, along with a fine of Rs. 10,000/- upon each of the appellants. The appellants are directed to deposit the remaining fine amount before the trial Court within two months from today failing which each of them shall under go for nine months rigorous imprisonment. If fine is deposited a sum of Rs. 10,000/- be given to the victim Kailash Narayan s/o Ram Prasad r/o Ahmedpur, District Sehore by way of a compensation.

The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court along with its record for information and compliance.