Chirkut and Another vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 24/11/1995 passed by the 3rd Additional Sessions Judge, Chhindwara in ST No. 163/1994, whereby the appellants were convicted for commission of offence punishable u/s 307 of IPC and sentenced for two years'' rigorous imprisonment. The prosecution''s case, in short, is that on 29.3.1994 the victim Roshan (PW-1) was going to answer the call of nature while at Village Rajna (Police Station Pandhurna District Chhindwara). At about 7:30 PM in the evening appellant Bandu came on a bicycle and he pushed the front wheel of the bicycle in between the legs of the victim Roshan and thereafter the absconding accused Rameshwar assaulted the victim Roshan with a knife on his chest and abdomen. Also appellant Bandu assaulted him with a knife on his right hand and thereafter the appellant Chirkut also arrived to the spot and he assaulted the victim Roshan with kicks and fists. Some intestines came out from the abdomen of the victim. On his shouting, Ravi Hazare (PW-2) and Sheshrao (PW-3) came to the spot and thereafter the appellants and the absconding accused Rameshwar ran away. The victim Roshan was taken to the Police Station Pandhurna where he lodged an FIR Ex. P-1. He was sent to the Government Hospital Pandhurna. Dr. K.L. Mishra (PW-7) gave a report Ex. P-5 after examining him. He found that the victim Roshan sustained a stab wound in his abdomen from where some intestines had come out. A stab wound was found on the right 7th rib which was cavity deep. Two incised wounds were found on the left costal paraumbilical region. Five incised wounds were found on the right hand. One incised wound was found on the left thumb of the victim and also there was one scratch on the right side of his face. Dr. Mishra opined that the first two injuries were dangerous to life, therefore the victim was referred to Meyo Medical College, Nagpur. After due investigation, a charge sheet was filed before the Additional Chief Judicial Magistrate Saunsar, who committed the case to the Sessions Court Chhindwara and ultimately it was transferred to the learned Third Additional Sessions Judge, Chhindwara.

The appellants-accused abjured their guilt. They did not take any specific plea, but they have stated that they were falsely implicated in the matter due to enmity. Natthu (DW-1), Gulab (DW-2) and Madhu (DW-3) were examined as defence witnesses to show that the victim Roshan had written a love letter to the daughter of the appellant Chirkut and the appellant Chirkut had requested for an assembly of a panchayat. Due to that enmity, the appellants were falsely implicated in the matter.

The learned 3rd Additional Sessions Judge, Chhindwara after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellants has submitted that the main accused Rameshwar is absconding. There was no common intention of the present appellants with the accused Rameshwar, and therefore no offence u/s 307 of IPC is made out against the appellants with the help of Section 34 of IPC. At the most the appellants can be convicted for commission of offence punishable u/s 324 of IPC and the appellants have already remained in the custody for six months.

Therefore, it is prayed that they may not be sent to the jail again.

On the other hand, the learned counsel for the State has submitted that the trial Court has rightly convicted and sentenced the present appellants, and therefore no interference is warranted from the side of this Court.

After considering the submissions made by the learned counsel for the parties and looking at the evidence adduced by the parties, it is to be considered that whether the absconding accused Rameshwar is the culprit of offence u/s 307 of IPC, whether the appellants could be convicted for the offence punishable u/s 307 of IPC with the help of Section 34 of IPC? And whether the sentence imposed upon the appellants can be reduced.

In the present case, Roshan (PW-1), Ravi (PW-2), Sheshrao (PW-3) and Baku Bai (PW-4) were examined by the prosecution. Out of them, Sheshrao (PW-3) turned hostile. He did not support the version of the prosecution, whereas remaining witnesses have stated that it was the accused Rameshwar who assaulted the victim Roshan with a knife on his abdomen, while the appellant Bandu who stopped the victim by pushing his bicycle below his legs assaulted him with a knife on his hand. It is also stated that Shaymrao and Chirkut assaulted the victim Roshan with kicks and fists. These witnesses have changed the sequence in which the victim was assaulted by various appellants, however their testimony is still believable against the accused Rameshwar and appellant Bandu. It is strange to note that they introduced one accused Shyamrao in the case, that he assaulted the victim with kicks and fists. The name of the accused Shyamrao was nowhere mentioned in the FIR. His name was added in the case diary statements of various witnesses, and therefore he was acquitted by the trial Court. Similarly, it appears that the name of the appellant Chirkut is added by the witnesses unnecessarily. If the defence evidence is perused, then it would be apparent that since the complainant Roshan wrote a letter to the daughter of appellant Chirkut, a panchayat was called, and therefore Chirkut could have been interested to teach a lesson to the victim Roshan. When the victim Roshan was assaulted by Rameshwar and Bandu in such a manner that he sustained so many incised wounds and his intestines were coming out of his abdomen, then it was not possible for anybody to assault him with kicks and fists in such a condition. It appears that the name of appellant Chirkut is added in the same manner as the name of the accused Shyamrao was added in the case diary statements of various witnesses. There is no specific injury found which was caused by the appellant Chirkut.

It is also pertinent to note that it is the suspicion of the victim that he was assaulted by Bandu and Rameshwar because of the episode which took place between the complainant and daughter of appellant Chirkut. It is nowhere established that the accused Rameshwar and Bandu had assaulted the victim Roshan because of that episode, and therefore it is not proved beyond reasonable doubt that either the appellant Chirkut assaulted the victim Roshan by himself or he had any common intention with the other co-accused persons to assault the victim Rameshwar. Under such circumstances, appellant Chirkut could not be convicted either for the offence u/s 307 of IPC or for any inferior offence of the same nature directly or with the help of Section 34 of IPC.

Looking to the FIR Ex. P-1 lodged soon after the incident and injury report Ex. P-5, it is apparent that the accused Rameshwar assaulted the victim Roshan in such a manner that he sustained fatal injuries. Looking at the number of injuries, it cannot be said that the victim Roshan had falsely implicated the accused Rameshwar in the matter. It was not possible for him to leave the actual culprit and mention the name of an unknown person. In such circumstances, the testimony of the complainant Roshan is believable and it is proved beyond doubt that the accused Rameshwar assaulted the victim Roshan causing him various fatal injuries, and therefore the absconding accused Rameshwar could rightly be convicted by the trial Court u/s 307 of IPC.

As far as the role of the appellant Bandu is concerned, it is apparent that he was the person, who initially stopped the victim Roshan by pushing his bicycle below his legs and thereafter he also assaulted the victim on his hand. Dr. Mishra found that the victim sustained five incised wounds on his right hand on the posterior aspect, therefore it is apparent that the appellant Bandu was interested in causing fatal injuries to the victim, otherwise he had no need to provide an opportunity to the accused Rameshwar to cause such an injury and again to assault in a repeated manner so that the victim Roshan be injured in a very bad way. Under such circumstances, the conduct of the appellant Bandu is proved such that he had common intention with the co-accused Rameshwar for the offence u/s 307 of IPC, and therefore the trial Court has rightly convicted the appellant Bandu for the offence punishable u/s 307/34 of IPC.

So far as the sentence is concerned, it is submitted by the learned counsel for the appellants that the appellant Bandu has remained in the custody for seven months and ten days, but looking at the case file, it appears that the appellant Bandu remained in the custody for one month and 18 days during the trial and the custody period of the appellant Bandu during the appeal is also not big. At present he is on bail. Under such circumstances, it is not a good case in which sentence of the appellant Bandu can be reduced to the period which he has already undergone in the custody. But looking at his overt-act, it would be appropriate that his sentence be reduced to one year''s RI with imposition of some fine amount upon him so that compensation can be given to the victim.

On the basis of above discussion, the instant appeal filed by the appellants is partly allowed. The conviction as well as sentence directed by the trial Court against the appellant Chirkut is hereby set aside. He is acquitted from all the charges, whereas the conviction imposed upon the appellant Bandu for commission of offence punishable u/s 307/34 of IPC is maintained, but his sentence is reduced to a period of one year''s RI with fine of Rs. 10,000/-. In default of payment of fine, he shall undergo one year''s RI in addition. If fine amount is deposited, then a sum of Rs. 7,000/-be provided to the victim Roshan S/o Natthu Hazar resident of Village Rajna, Police Station and Tahsil Pandhurna District Chhindwara by way of compensation.

Appellant Bandu is on bail, hence he is directed to surrender immediately before the trial Court for serving the remaining jail sentence. The trial Court is directed to execute the jail sentence of the appellant Bandu and to recover the fine amount from him. A copy of this judgment be sent to the trial Court with its record for information and compliance.