Hari Singh and one another vs State of Madhya Pradesh

Hon''ble Shri U.C. Maheshwari, J.—The appellant accused has directed this appeal being aggrieved by the judgment dt. 13.5.2003 passed by Additional Sessions Judge Sonkatch, District Dewas, in S.T. No. 164/2002 whereby they have been convicted and sentenced u/s 325 read with Section 34 of the IPC for RI of one year with fine of Rs. 1,000/- in default of depositing the fine amount for further 3 months RI. The facts giving rise to this appeal in short are that on dt. 26.5.2002 at about 9 o''clock the victim Heeralal was going towards his boring hole from Gandharvpuri Kachi Mohalla, on the way appellants lashed with sticks accompanied with Heeralal intercepted him and asked to give them land of his share on his refusal they started bathing by means of stick on him on his head and leg. resultantly, he sustained the injuries with bleedings. Subsequent to it the acquitted co-accused Narbatsingh and Jasmatsingh lashed with Salia (the specific type of the stick which is used in the bullock cart) came there and thereafter the appellants as well as the aforesaid both the persons with intention to cause death of the victim badly beaten him. The victim was rescued by Takesingh, Motisingh and Bhagwat. On sustaining the aforesaid injuries the victim became unconscious. Subsequent to it the victim was taken to some square by the appellants accompanied with the acquitted co-accused where again his beating was carried out. Thereafter the victim was taken to the Police Station Sonkatch, where he lodged the report Ex. P/1. He was sent to the Hospital where his medical examination was carried out. The MLC report was prepared and the X-Ray of some injury was advised. After providing the primary treatment, he was referred to the District Hospital Dewas, for further treatment. On carrying out the X-ray the fracture of the tibia bone was revealed. After recording the interrogatory statement of the prosecution witnesses and holding the other investigation, the appellants along with the acquitted co-accused were charge sheeted for the offence of Section 307, 341, 506 and 34 of the IPC.

After committing the case to the Session court on framing the charge of Section 307 read with Section 34 of the IPC against all the accused including the appellants, they abjured the guilt on which the trial was held. On appreciation of the evidence, the co-accused viz. Jasmatsingh and Narbatsingh were acquitted while the appellants instead of Section 307 read with Section 34 of the IPC were convicted u/s 325/ 34 of the IPC with the punishment as stated above. Being dissatisfied with such conviction and sentence, the appellant has come to this Court with this appeal.

Shri R.K. Vyas, learned appearing Counsel of the appellant after taking me through the record of the Trial Court along with the evidence led by the prosecution and the exhibited documents so also the impugned judgment argued that the story put forth by the prosecution has not been supported by any independent source of the evidence and in view of the enmity factor between the parties on account of their ancestral agricultural land unless such story put forth by the victim is supported by the independent source of the evidence the prosecution story could not be relied on to hold the conviction against the appellant. In continuation he also argued that the alleged injury or the fracture was not caused to the victim by any of these appellants. The same was sustained by the victim on falling down on the stone and not by any act of the appellants. So in such premises, the liability to cause such injury and fracture could not be placed on the shoulder of the appellants. He also argued that on appreciation of evidence the aforesaid co-accused have been acquitted by extending the benefit of doubt then in that circumstance on the basis of the same set of evidence, the impugned conviction of the appellants could not be upheld, as they are also entitled to extend the same benefit and firstly prayed to extend the acquittal to the appellants. In alternate he argued that appellants being agriculturist did not possess any criminal antecedents except the present matter and they have already suffered the mental agony of this case in last 10 years. During this period they also appeared on various dates before the Trial Court as well as during pendency of this appeal in compliance of the order before this Court and they are the only bread winner of their family and on sending them again to jail for facing the remaining jail sentence in comparison to them, their family has to suffer in a lot and prayed to reduce their awarded jail sentence up to the period of 6 days which they have already suffered during pendency of the trial between 21.2.2002 to 26.2.2002 and prayed to allow this appeal accordingly.

Shri R.S. Bais, learned Dy. Government Advocate by justifying the impugned conviction and sentence of the appellants said that the approach of the Trial Court being based on proper appreciation of the evidence is in conformity with law the same do not require any interference at this stage. In continuation he said that in every case the story put forth by the victim and supported by the doctor does not require any further corroboration by any independent source of the evidence. If the story put forth by the victims in their deposition is found to be supported by the doctor, with the corresponding injuries then the accused like appellants could be convicted in the matter and in such premises the Trial Court has not committed any error in holding the impugned conviction against the appellants and prayed for dismissal of this appeal.

Having heard the Counsel at length keeping in view their arguments I have carefully gone through the record of the Trial Court including the available evidence and the impugned judgment.

It is undisputed fact on record that prior to the incident on account of the ancestral agricultural land there was enmity between the appellants and the victim Heeralal and it appears from the record that it was the only cause to commit the alleged incident by the appellants with the victim. In view of such type of enmity sometimes the story put forth by the victim requires corroboration by independent source of the evidence or independent witnesses but due to the following reasons I am of the considered view that in the available circumstances of the case at hand, in the light of the available medical evidence even in the lack of any independent source of evidence supporting the deposition of victim the accused like appellants have been rightly convicted by the Trial Court under the aforesaid Section.

On recording the deposition of the victim Heeralal PW-1, he by proving the FIR Ex. P/1 categorically stated that on the aforesaid date and time he was going towards his bore well (boring hole), don the way he was intercepted and obstructed by the appellants Harisingh and Badrilal asking him to give his share of land to them. On denying the same he was subjected to blows of sticks by both the appellants. He specifically stated that the appellant Harisingh gave a blow of stick on his head while the blow of stick was given in his leg by appellant Badrilal resultantly he sustained the alleged injuries. They were also saying to kill him. Subsequent to it the co-accused Jasmatsingh and Narbatsingh lashed with sticks also came there, and by saying to kill him gave the blows of stick on his person. On sustaining the injury on head and leg he fell down and became unconscious. Thereafter he was taken to his residence and thereafter to Police Station where lodged the report on which he was sent to Hospital, where on his medical examination the MLC report was prepared and thereafter he was referred to District Hospital Dewas, for further treatment. In the course of the treatment on taking out the X-Ray it was revealed that he sustained the fracture in his left leg. His deposition is further supported by the alleged eyewitness Takesingh PW-2 who categorically stated that the alleged beating of victim was carried out initially by the appellants and letter along with the acquitted co-accused. Till some extent such story is further supported by Bhagwatsingh PW-3 who is the son of the victim. He said that on receiving the information of the incident he went to such place and saw that his father after sustaining the injuries was lying on the road, who apprised him that such injuries were caused to him by the appellants and the acquitted co-accused. Harisingh PW-4 and Risaingh PW-6 have also supported such prosecution story as supported by the said witness Bhagwatsingh PW-3.

The story put forth by the victim regarding his injuries has been supported by Dr. Praveen Mishra PW-5 who medically examined the victim and prepared his MLC report Annexure P/2. On going through his deposition it is apparent that on such examination he found three injuries on the person of the victim Heeralal and except these injuries no any other injury was found and considering such part of the injuries and the circumstances, the co-accused Jasmatsingh and Narbatsingh were extended the benefit of the doubt and acquitted by the Trial Court while the appellants who caused the alleged injuries by means of the sticks at the initial stage of the incident were convicted holding that the story put forth by the prosecution till the extent of causing the aforesaid injuries to the victims by the present appellants have been corroborated by said Dr. Praveen Mishra PW-5 and Dr. R.K. Mishra PW-11 the Radiologist who on carrying out the X-Ray of Heeralal found the alleged fracture of tibia bone of his left leg.

In view of the aforesaid discussion, that the story put forth by the victims has been supported with the corresponding injuries by the medical evidence. There is no evidence on record to show that any of the aforesaid examined doctor had any enmity with the appellants or their family so doctors could be treated to be the independent supporting witnesses in the matter and if story of the victim is further supported by the doctors then, mere on account of non-examination of any independent witness or lack of any evidence from independent source in support of the deposition of victim the present appellants could not be extended the benefit of acquittal so the argument of the appellant Counsel in this regard is, hereby, failed.

So far as extending the acquittal to the appellants on the ground of benefit of doubt as extended by the Trial Court to the other co-accused is concerned, it is a specific case of prosecution that initially beating of the victim by means of stick was carried out by the appellants by which he sustained the injuries with bleedings and thereafter the co-accused came with sticks and started beating the victim and it appears considering such situation, the benefit of doubt was extended to those co-accused who reached on the spot after sustaining the injuries by the victim caused by the appellants. In such premises, such benefit could not be extended to the appellants. Accordingly, the argument advanced by the appellant in this regard is, hereby, failed.

In view of the aforesaid, I have not found any perversity, illegality or infirmity in the findings of the impugned judgment holding the guilty to the appellants u/s 325 of the IPC hence, such findings of the Trial Court is, hereby, affirmed.

Coming to consider the question whether in the available circumstances and the scenario the appellant is entitled for extending the benefit of the Probation of the Offenders Act is concerned, in view of the aforesaid discussion of the evidence and the circumstances, I am not inclined to extend such benefit to the appellants, thus such benefit is not being extended to them.

Coming to consider the prayer of the appellant Counsel for reduction of the awarded jail sentence is concerned, I have found some substance in it. It is apparent fact on record that the appellants are facing the mental agony of this case since last 10 years. Besides, this they did not possess any other criminal antecedent of the case as per available record. During the pendency of this appeal as well as the trial of the case they also appeared before the Trial Court as well as before this Court and it also appears that they are the only senior member to look after the affairs of their family. So considering all these circumstances, I deem fit to reduce the awarded jail sentence of the appellant from one year to three months by enhancing the amount of fine against each of the appellants from Rs. 1,000/- to Rs. 10,000/- with a direction to give such sum of the fine to the victim Heeralal to sub serve the justice with him also and the same is ordered.

In view of the aforesaid by affirming the conviction of the appellants u/s 325 of the IPC this appeal is allowed in part and pursuant to it, the awarded jail sentence of the appellants under such Section is, hereby, modified and reduced from one year to the period of three months but by enhancing the amount of fine from Rs. 1,000/- to Rs. 10,000/- against each of the appellants. The enhanced sum of fine is to be deposited by the appellants within 90 days in default of depositing the same the concerning appellants have to suffer further three months simple imprisonment. The bail bonds of the appellants are, hereby, discharged and they are directed to surrender themselves before the Trial Court on or before 2.1.2013 for facing the remaining modified awarded jail sentence. Trial Court is further directed on depositing the enhanced sum of the fine amount, the entire sum of the fine amount be given to the victim Heeralal by calling him through summons in the Trial Court. Appeal is allowed in part as indicated above.