Ganesh and Others vs State of Madhya Pradesh

N.K. Gupta, J.—Vide judgment dated 23.9.1999 passed by the JMFC Udaypura District Raisen (Shri K.N. Khan) in Criminal Case No. 79/1998 the applicants were convicted for the offence under Sections 326 or 326/34, 452, 323 or 323/34 of IPC and sentenced with three years'' RI with fine of Rs. 3000/-, three years'' SI with fine of Rs. 500/- and one year''s. In Criminal Appeal No. 30/1999 the learned Sessions Judge, Raisen vide judgment dated 23.9.1999 dismissed the appeal in toto. Being aggrieved with the judgments of both the Courts below, this criminal revision is preferred by the applicants. The prosecution case, in short, is that on 2.1.1998 at about 12:00 in the noon a quarrel took place between the applicants and nephews of the complainant Kalyan Singh, and therefore the applicants went to the house of the complainant situated at Village Patai (Police Station Devri District Raisen) and assaulted him by various weapons. The applicant Ganesh Prasad assaulted him by an axe on his head, whereas the other applicants assaulted him by danda and lathi (stick). After due investigation, a charge sheet was filed before the concerned Magistrate.

The applicants-accused abjured their guilt before the trial Court, but no defence evidence was adduced.

The learned JMFC after considering the prosecution evidence convicted and sentenced the applicants as mentioned above. The appeal filed by the applicants was dismissed in toto.

I have heard the learned counsel for the parties.

After considering the submissions made by the learned counsel for the parties, if the evidence adduced by the prosecution is considered, then it would be apparent that the complainant Kalyan Singh (PW-1) has accepted that when the applicants assaulted him, he was out of his house and he was giving some feed to his buffaloes in the compound. Under such circumstances, no offence u/s 452 of IPC is made out against the applicants, because they did not enter in any house to commit any crime. According to the spot map Ex. P-11, the place of incident was an open place and it cannot be said that the applicants had committed crime u/s 447 of IPC even. The learned JMFC as well as the learned Sessions Judge has committed an error in convicting the applicants for the offence u/s 452 of IPC.

If the evidence given by Kalyan Singh (PW-1), Lakku (PW-2), Chhotevir (PW-3), Vrindavan (PW-4), Sisupal (PW-5) and other eye-witnesses, timely lodged FIR Ex. P-1, the medical report of the victim Kalyan Singh Ex. P-4, which was duly proved by Dr. Dinesh Saxena (PW-8) and the evidence given by Dr. D.K. Bhargav (PW-15), it would be apparent that the victim Kalyan Singh sustained a grave injury below incised wound caused on his head along with other injuries. No defence document has been proved by the applicants before the trial Court, and therefore the document relating to the counter case could not be brought on the record. It cannot be said that the applicants had assaulted the victim under right of private defence or under sudden or grave provocation. Under such circumstances, the trial Court has rightly convicted the applicant Ganesh Prasad for the offence u/s 326 of IPC and remaining applicants for the offence u/s 323 of IPC.

The learned counsel for the applicants has submitted that remaining applicants were not aware that the accused Ganesh would assault in such a forceful manner by a sharp cutting weapon. Also the applicants went to assault the victim due to quarrel took place between them and the nephews of the victim. Under such circumstances, the common intention of the remaining applicants cannot be presumed with the accused Ganesh Prasad. The contention of the learned counsel for the applicants can be accepted, because the remaining applicants were not aware that the applicant Ganesh Prasad would assault in such a forceful manner, and therefore it cannot be said that they had any common intention with the accused Ganesh at that time, and therefore the remaining applicants cannot be convicted for the offence u/s 326/34 of IPC. But vice-versa fact is not true. If the remaining applicants assaulted the victim, then certainly the applicant Ganesh Prasad was also intended to assault the victim, and therefore he had a common intention with other applicants to voluntarily cause hurt to the victim Kalyan Singh, and therefore applicant Ganesh Prasad was rightly convicted for the offence u/s 323/34 of IPC.

On the basis of the aforesaid discussion, the remaining applicants cannot be convicted for the offence u/s 326/34 of IPC otherwise the remaining conviction directed by both the courts below would be maintained. No interference can be done in the concurrent findings of both the courts below.

So far as the sentence is concerned, it is apparent that the incident was not pre-planned. The applicants went to the house of the complainant soon after the quarrel done by his nephews. Out of the applicants, applicants Ganesh Prasad, Dharam Singh alias Dharmu and Guddu were below 26 years of age at the time of incident. No criminal past has been shown against the applicants. They have faced the trial, appeal and revision for last 15-16 years. The applicants Ganesh Prasad remained in the custody for 34 days during the pendency of trial, appeal and revision. Under such circumstances, it would be proper to reduce the sentence of the applicants to the period for which they remained in the custody by enhancement of some fine amount.

On the basis of the aforesaid discussion, the revision filed by the applicants is hereby partly allowed. The conviction and sentence of the applicants for the offence u/s 452 of IPC are hereby set aside, whereas the conviction and sentence of the offence u/s 326/34 of IPC are hereby set aside for the applicants Ram Sewak, Dharam Singh and Guddu. The sentence is reduced against the applicants to the period for which they remained in the custody during the trial, appeal and revision. However, the fine of Rs. 3,000/- is enhanced to a sum of Rs. 5,000/- for the applicant Ganesh Prasad for offence punishable u/s 326 of IPC, whereas a fine of Rs. 500/- is imposed for the offence u/s 323/34 against the applicant Ganesh Prasad. A fine of Rs. 500/- is imposed on each of the applicants for the offence u/s 323 of IPC. The applicants are directed to deposit the remaining fine amount before the trial Court within two months from today, failing which each of them shall undergo RI for three months as default sentence for the offence u/s 323/34 of IPC and the applicant Ganesh Prasad shall suffer a default sentence of six months'' RI in lieu of depositing the remaining fine amount for offence punishable u/s 326 of IPC. If fine is deposited, then a sum of Rs. 4,000/- be given to the victim Kalyan Singh S/o Shri Sher Singh resident of Village Patai, Police Station Devri Tahsil Udaypura District Raisen by way of compensation. A copy of this order be sent to both the courts below along with their records for information and compliance. An attention of the learned Magistrate is invited to the provisions of Section 68 of IPC that if the applicant does not deposit the remaining fine amount within that period, then he shall be arrested and he shall be released if he deposits the fine amount thereafter.