Collector (Land Acquisition Officer) Mandla vs Sutiya Bai and others

The appellants assail the legality and correctness of the judgment

and order dated 06.10.2009 passed by the Fourth Additional

Sessions Judge (FTC) Damoh in Sessions Trial No.275 of 2008,

whereby appellant Dalla is convicted under Sections 326 and 323 of

the IPC and the remaining appellants are convicted under Sections

326 r.w. 34 and 323 IPC and they are sentenced to suffer on first

count R.I. for three years with a fine of Rs.500/- (five hundred), in

default, R.I. for one month and second count R.I. for one year with a

fine of Rs.500/- (five hundred), in default, R.I. for one month each.

The jail sentences awarded to the appellants are directed to run

concurrently.

Uncontroverted facts of the case are that appellants Dalla

and Natha are real brothers; that the appellants namely Hunna Bai

and Moni Bai are their wives respectively; that the appellants and

complainant Pitha (PW-8) are resident of village Fudtal and that the

alleged incident occurred in the said village.

Brief facts of the prosecution case are that in the evening of

22.06.2008, complainant Pitha (PW-8) was returning to his house

after doing a manual job. On the way, the appellants equipped with

an axe and lathis accosted him. They gave him first filthy abuses and

later committed marpeet with him with the said weapons, and fists

on account of old enmity. As a result, he sustained injuries on his

lower phalanx of right hand middle finger, left face, lower part of left

leg, right chest and upper part of right leg. The incident was

witnessed by Sona Bai (PW-1), Rupi Bai (PW-2) and Rama (not

examined as he died before recording his evidence in the trial court).

On the same day, he lodged an oral report of the incident at out-

post Sadarpur of Police Station Rajpura. Head Constable Harishankar

(PW-6) wrote the FIR in Roznamchasanha No.207 dated 22.06.2008

being Ex.P-11. He sent him to Primary Health Center Bathigarh for

medico legal examination, where Dr. K.L. Adarsh (PW-3) examined

him and gave the MLC report Ex.P-3. Upon his advice, on

24.06.2008, radiologist Dr. R.K. Rawat (PW-4) of District Hospital

Damoh took the X-ray of the complainant''s middle finger and gave

the report Ex.P-4 stating that he suffered fracture in lower phalanx

of the said finger.

On the basis of said medical reports, on 26.08.2006 Head

Constable Khilan Prasad (PW-7) recorded the FIR Ex.P-15 at Police

Station Rajpura and registered a case against the appellants at Crime

No.37 of 2008 for the offences punishable under Sections 323, 324

and 34 of the IPC.

Head Constable Harishankar (PW-6) took over the

investigation of the case. On 04.07.2008, he prepared spot map

Ex.P-12 at the instance of the complainant in the presence of

deceased Rama. On 06.10.2008, he recorded disclosure statements

Ex.P-5 and Ex.P-7 of appellants Natha and Dalla respectively and

later on, at their instances he seized a bamboo stick and an axe vide

seizure memos Ex.P-6 and Ex.P-8 respectively in the presence of

witnesses namely Baldev (PW-5) and Parvat @ Baddu (PW-9) and

arrested them vide arrest memos Ex.P-9 and Ex.P-10 respectively.

On 27.09.2008, he arrested appellant Moni Bai and Hunna Bai vide

arrest memos Ex.P-13 and Ex.P-14. He also recorded the case diary

statements of the witnesses who are conversant with the facts of the

incident.

Upon the completion of investigation, the police charge-

sheeted the appellants for the offences punishable under Sections

323, 324 and 326 r.w. 34 IPC .

On committal, the learned trial Judge framed the charges

against appellant Dalla under Sections 326 and 323 IPC and against

the remaining appellants under Sections 326 r.w. 34 and 323 IPC . All

the appellants denied the charges framed against them and claimed

to be tried. In the examination under Section 313 Cr.P.C., the

appellants denied the incriminating evidence and circumstances

appearing against them in the case. They took the defence that on

account of old enmity, the complainant falsely implicated them in the

case. In support of the defence, appellant Dalla examined himself as

D.W. 1 and one witness Asha Banjara as D.W.2.

The learned trial Judge having analyzed and evaluated the

evidence on record held appellant Dalla guilty for committing

the offences punishable under Sections 323 and 326 IPC and

remaining appellants for committing the offences punishable under

Section 326 r.w. 34 and 323 IPC and sentenced them in the

aforesaid Sections as noted in para 1 of the judgment.

Feeling aggrieved by and dissatisfied with the judgment, the

appellants have filed this appeal.

Learned counsel appearing for the appellants submitted that

as per the FIR, Sonabai (PW-1) and Rupi Bai (PW-2) are eyewitness

of the incident, but they have not supported the prosecution case in

their evidence. Thereupon, the prosecution has declared them

hostile and subjected them to grueling cross-examination, but it has

failed to elicit any evidence in support of its case. Thus, the

convictions of the appellants are based on sole evidence of

complainant Pitha. He further submitted that complainant Pitha has

stated in his evidence that the agricultural land of him and that of

the appellants are adjoining to each other and that the appellants do

not allow him to cultivate his land. He has also admitted in para 8 of

his cross-examination that he and the appellants are not on speaking

terms over two years. He has also admitted in para 11 of his cross-

examination that Asha (DW-2) is bother-in-law of appellants namely

Dalla and Natha and upon the police report of Asha, he and others

have been facing trial for committing marpeet with him. He

submitted that the aforesaid admissions made by the complainant

Pitha prove that there is a grave enmity between him and the

appellants. He further submitted that complainant Pitha has made a

general statement in the FIR that the appellants committed marpeet

with him with lathis, fits and an axe, but he has stated in his

evidence that appellant Dalla inflicted a blow of an axe and appellant

Natha inflicted blows of lathis upon him and the remaining appellants

committed marpeet with him with fists. He further submitted that as

per the FIR, the appellants committed marpeet with him when he

was returning to his house, whereas he has stated in his evidence

that the appellants came to his house, first they abused him and

thereafter they committed marpeet with him. He further submitted

that the aforesaid facts show that complainant Pitha has improved

his court statement. He further submitted that in view of the above,

the learned trial Judge committed a gross error by placing implicit

reliance upon the testimony of complainant Pitha.

He further submitted that the appellants are agriculturist by

occupations, therefore, keeping of lathis and axes by them are very

common-place. He further submitted that Investigating Officer

Harishankar seized from the possession of appellants Dalla and

Natha one axe and one lathi at their instance respectively. But both

the articles had not been sent for forensic examinations. Therefore,

the seizure of the aforesaid articles from their possession has no

evidentiary value.

Learned counsel for the appellants further submitted that as

per the FIR and the deposition of complainant Pitha, all the injuries

sustained by him in the incident are grievous as well as simple ones.

Causing simple injuries are punishable under Section 323 IPC and

inflicting grievous injuries by dangerous weapon(s) are punishable

under Section 326 IPC. Therefore, the offence under Section 323 IPC

is minor one and the offence under Section 326 IPC is major one.

Section 326 provides for the maximum imprisonment for life,

whereas Section 323 provides for maximum imprisonment for one

year. The learned trial Judge has convicted the appellants under

both the Sections 323 and 326 r.w. 34 IPC . Therefore, he has

committed a legal error in view of the provisions of Section 71 IPC

by convicting the appellants under Section 323 IPC. Therefore, the

conviction and sentence imposed upon the appellants under Section

323 is liable to be set aside.

In alternative, learned counsel for the appellants submitted

that during the pendency of this appeal, complainant Pitha and the

appellants have filed a compromise petition before this court,

whereupon the learned Registrar (J-II) has examined them upon the

directions of this court. He has submitted in his report that

complainant Pitha and the appellants have entered into the

compromise voluntarily. However, the court has not acted upon the

compromise on the ground that the offence punishable under

Section 326 IPC is non-compoundable, but this court has observed

that the factum of compromise will be considered in right perspective

at the time of deciding the appeal on merits. He further submitted

that as per the record of the trial court, appellants Natha and Dalla

remained in judicial custody from 06.10.2008 to 11.10.2008 and

appellants Hunna Bai and Moni Bai have been granted anticipatory

bail. He further submitted that the appellants have no previous

convictions, that the appellants deposited the fine amounts and that

there is no evidence on record that after the incident the appellants

again committed marpeet with complainant Pitha. He further

submitted that complainant Pitha sustained only one grievous injury

on the lower phalanx of his right hand middle finger which is not a

vital part of the body. In these circumstances, he prayed that if this

court upholds the convictions of the appellants under Sections 323

and 326 r.w. 34 IPC, then the most lenient view may be taken in

awarding the jail sentence.

Per contra, learned Panel Lawyer justified the conviction of

the appellants upon the sole evidence of complainant Pitha. He also

submitted that looking to the facts and circumstances of the case,

the learned trial Judge has awarded just and proper sentence to the

appellants. Therefore, there is no need to take a lenient view by this

court in respect of the jail sentences.

I have considered the rival submissions made by the learned

counsel for the parties across the Bar and perused entire materials

on record and the impugned judgment.

Following are the points for determination before me :-

(1) Whether complainant Pitha had suffered injuries on the

date of incident and if so, what kinds of injuries he

suffered ?

(2) Whether the appellants had caused injuries to

complainant Pitha in furtherance of common intention?

(3) Result?

Dr. K.L. Adarsh (PW-3) has deposed that on 26.06.2008 at

Primary Health Center Bathigarh upon requisition of the police, he

medico legally examined complainant Pitha and found following

injuries on his person.

(i) Incised wound of size 1.1/2 cm x 1/6 cm upto muscles

deep on the lower phalanx of right hand middle finger.

(ii) Contusion of size 3.0 cm x 1.1/2 cm on the right upper

arm.

(iii) Abrasion of size 1.0 cm x 4 cm on the left side of face.

(iv) Contusion of size 3.0 cm x 1/2 cm below the knee of

left leg.

(v) Abrasions of size ranging from 6.0 cm x 4.0 cm from

4.0 cm x 1 1/10 cm on the left chest.

(vi) Abrasion of size 1.0 cm x 1/2 cm on the upper side of

left leg.

This witness has further deposed that injury No.1 was

caused by a hard and sharp object, whereas the remaining injuries

are caused by a hard and blunt object and they are simple in nature.

The injuries were 24 to 42 hours old. He has deposed that he had

advised X-ray of injury No.1. He has also proved injury-certificate

Ex.P-3.

Dr. R.K. Rawat (PW-4) has testified that on 24.06.2008, he

took X-ray of complainant Pitha''s middle finger of right hand and

found a fracture in the lower phalanx of it. He gave the report Ex.P-4

with X-ray plate.

Upon the perusal of cross-examination of the aforesaid

witnesses, I find that there is nothing to discredit their evidence.

Therefore, I place reliance upon their evidence and hold that on

23.06.2008, the date of incident, complainant Pitha suffered one

grievous injury on the lower phalanx of middle finger of right hand

and other simple injuries.

Complainant Pitha has testified that in the evening of the

day of incident, he was in his residence. At that time, the appellants

came to his house and they started abusing him. Thereafter,

appellant Dalla made an attempt to inflict an axe blow upon him. He

caught hold of the axe. As a result, he sustained injury on his right

hand middle finger. Appellant Natha inflicted upon him two to three

lathis blows. The remaining appellants grappled him and punched

him with fists. He has also deposed that the appellants committed

marpeet on account of old enmity. The occurrence was witnessed by

Sona Bai, Rupi Bai and deceased Rama.

Since so called eye witnesses Sona Bai (PW-1) and Rupi Bai

(PW-2) have completely turned hostile, the prosecution case now

rests with the evidence of complainant Pitha himself. In the

circumstances, the evidence rendered by complainant Pitha requires

careful and close scrutiny in view of the enmity between the

appellants and him as enmity is a double edged weapon. On account

of the enmity, the appellants assaulted complainant Pitha, on the

other hand, complainant Pitha suffered injuries for the other reasons

but he has falsely implicated the appellants.

Complainant Pitha has made a general statement in the FIR

Ex.P-15 stating that all the appellants with lathis, an axe and fists

committed marpeet with him, whereas he has stated in his evidence

that appellant Dalla inflicted an axe blow and appellant Natha

inflicted two to three lathi blows upon him and the remaining

appellants i.e. Hunna Bai and Moni Bai committed marpeet with him

with firsts. He has stated in the FIR that the appellants committed

marpeet with him on the way inside his native village when he was

returning to his house after doing a manual job, whereas he has

deposed that the appellants committed marpeet with him in front of

his house and before the marpeet they abused him. In view of the

above facts and evidence, in my considered opinion, complainant

Pitha has improved his version in his evidence. Thus, his testimony

does not inspire confidence.

Complainant Pitha has admitted that he is not on speaking

terms with the appellants over two years prior to the incident. He

has also admitted that he and others have been facing trial of

committing marpeet with Asha (DW-2) who happens to be brother-

in-law of appellants Dalla and Natha. He has also stated that the

appellants do not allow him to cultivate the land of his ownership.

From said statement of complainant Pitha, an interference can be

drawn that he has a land dispute with the appellants. In view of the

aforesaid admissions made by complainant Pitha, it is highly

probable that he has implicated all the appellants being family

members but in fact at the most one of them had committed

marpeet with him.

In view of the aforesaid close scrutiny of the evidence of

complainant Pitha, I find that his evidence is not such type as to

place full reliance upon his testimony. Thus, the learned trial Judge

has erred in placing implicit reliance upon the sole testimony of

complainant Pitha.

As per the evidence available on record, complainant Pitha

sustained all the injuries at one time. The offence punishable under

Section 323 IPC is a minor offence to the offence punishable under

Section 326 IPC, therefore, the learned trial Judge has committed a

legal error by convicting and sentencing the appellants under

Sections 323 and 326 IPC in view of the provisions of Section 71 IPC.

Thus, the conviction and sentence imposed by the learned trial

Judge upon the appellants under Section 323 IPC is set aside.

While doing close scrutiny of the evidence of complainant

Pitha, I have already held that his testimony does not inspire

confidence, therefore, the appellants deserve to be acquitted of the

offence under Section 326 IPC by giving benefit of doubt.

For the forgoing reasons, this appeal is allowed and the

coviction and sentence awarded to the appellants under Section 323

is set aside and they are acquitted of the said charge. Appellant

Dalla and the remaining appellants are acquitted of the charge under

Section 326 IPC and 326 r.w. 34 IPC respectively by extending

benefit of doubt. The trial court is directed to refund the fine

amounts to the appellants subject to verification. The bail-bonds

furnished by the appellants shall remain in force for a further period

of six months from the date of this judgment in view of the

provisions of Section 437-A Cr.P.C.

Accordingly, this appeal is finally disposed of.