Hukum Singh and Others vs State of M.P.

N.K. Gupta, J.—1. The appellants have preferred the present appeal against the judgment dated 26.06.2001 passed by Second Additional Sessions Judge, Datia, in S.T. No. 77/1998 whereby each of the appellant has been convicted of offence under Section 324 read with Section 34 of IPC and sentenced to six months rigorous imprisonment with fine of Rs. 500/-.

Facts of the case in short are that on 19.08.1994 Suresh Kumar (PW-2) had lodged a Dehatinalsi (F.I.R.) to the officer of Police Station Godan, district Gwalior, that on 19.08.1994 at about 1.30 PM he along with his father Bhajan Singh (PW-3) went to do some work in the fields at village Hardai, they found that the appellants were changed their way to the field. They were making a boundary by encroaching the way of the complainant. When they were prohibited by the complainant Suresh Kumar to do so, the appellants came with farsa, luhangi, barchhi and sticks and assaulted Suresh Kumar and Bhajan Singh. Suresh Kumar and Bhajan Singh entered into house of Kushiram (PW-4) but thereafter the appellants entered into the house of Kushiram and they also assaulted Kushiram (PW-4). The injured persons were taken to the hospital. Dr. D.S. Thakur (PW-1) at Primary Health Centre, Bhander, examined Suresh Kumar, Bhajan Singh and Kushiram and gave his reports Exhibits P-1 to P-3. As many as seven injuries were found to victim Suresh Kumar whereas injuries on his head, wrist and right face were lacerated wounds. The Victim Bhajan Singh sustained six injuries. Out of them, three were incised wounds caused at head, right wrist and right leg. Kushiram sustained four injuries. Out of them, one was punctured wound caused on right side of jaw. Victims were sent for further radiological examination and treatment to the superior hospital. After due investigation, the charge-sheet was filed before the JMFC, Bhander who started the trial but after proceeding with the trial it was found that offence under Sections 450 and 326 of IPC was made out and since offence under Section 450 of IPC was triable by Court of Sessions, case was committed to the Court of Sessions and ultimately it was transferred to Second Additional Sessions Judge.

The appellants abjured their guilt. They did not take any specific plea but they have stated that they were falsely implicated in the matter. No defence evidence was adduced.

After considering the prosecution evidence, the Additional Judge has acquitted the appellants from the charge of offence under Sections 326, 148 and 450 of IPC, however, the appellants have convicted of offence under Section 324 read with Section 34 of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties at length.

Suresh Kumar (PW-2), Bhajan Singh (PW-3) and Kushiram (PW-4) have stated about the incident whereas Karan Singh (PW-5), Ratilal (PW-7) and Balveer Singh (PW-8) were examined as eye witnesses and they have turned hostile. Suresh Kumar, Bhajan Singh and Kushiram have stated that a quarrel took place because the appellants were making a fencing to close their right of way and Suresh had prohibited them. They started assaulting the victims and when Suresh Kumar and Bhajan Singh entered in the house of Kushiram to save themselves then the appellants entered in the house and assaulted Kushiram also. Though independent witnesses have turned hostile but the testimony of these three witnesses is duly corroborated by timely lodged Dehatinalsi, Ex. P-4, and medical reports Exhibit P-1 to P-3 proved by Dr. D.S. Thakur (PW-1). The incident took place in the broad day light and it was not a case of assault done by unknown persons or any robbery was done by unknown persons and, therefore, it was not possible for the victims Suresh, Bhajan and Kushiram that they would have saved the actual culprits to implicate the appellants falsely and, therefore, there is no reason to disbelieve the testimony of Suresh Kumar, Bhajan Singh or Kushiram. Hence, it is proved beyond doubt that the appellants assaulted the victims Suresh Kumar, Bhajan Singh and Kushiram with various weapons.

According to Dr. D.S. Thakur, victims Suresh Kumar did not sustain any injury caused by any sharp cutting weapon or deadly weapon whereas the victim Bhajan Singh sustained injuries caused by sharp cutting weapons. According to the victim Bhajan Singh, the appellant Hukum Singh gave a blow of luhangi on his head and, thereafter, he fell down on the ground and became unconscious. By luhangi such injuries could not be caused to the victim Bhajan Singh which were the incised wounds. According to the Dr. D.S. Thakur, three incised wounds were found to Bhajan Singh on head, right wrist and right leg. In this connection, Suresh Kumar has stated that the accused Gulab had a farsa with him but he could not make it clear that who assaulted the victim Bhajan Singh on his head, left arm and leg to cause the incised wounds. Similarly, Kushiram (PW-4) could not saw as to who assaulted the victim Bhajan Singh causing incised wound whereas according to Kushiram, the accused Gulab had a stick and not the farsa. According to him only accused Lakhan Singh had a barchhi and other persons had the sticks. Under these circumstances, it could not be established that who was the author of incised wounds caused to victim Bhajan Singh and which weapon was used. When if statement of Kushiram is accepted then except the accused Lakhan Singh none had any sharp cutting weapon.

Kushiram sustained a punctured wound on his right jaw and according to the Doctor it could be caused by penetrating object hence it was caused by Lakhan Singh. Other eye witnesses have also supported that Lakhan Singh caused the wound with help of barchhi and, therefore, it is proved beyond doubt that the accused appellant No. 3 Lakhan Singh was the person who caused the hurt to the various victims with a sharp cutting penetrating weapon.

It would apparent that initially, the appellants assaulted the victims at the field and when they ran away from the spot they chased and continued to assault them in the house of Kushiram also. There is no defence taken by the appellants that they had any right of private defence at the time of incident. No counter F.I.R. has been lodged by the appellants. When person uses a weapon then he should know about the result of assault caused by that particular weapon and, therefore, as per provision of Section 39 of the IPC when each of the appellants have assaulted in the crime with weapons and after getting result of first assault they continued to give blows upon three victims and caused injuries to them. It is proved beyond doubt that each of the appellant has voluntarily caused hurt to the victims Kushiram, Suresh Kumar and Bhajan Singh. Out of them, the appellant Lakhan Singh had voluntarily caused hurt to the various victims like Kushiram and Bhajan Singh with sharp cutting/stabbing weapons. Hence, Lakhan Singh is liable for two counter charges of offence under Section 324 of IPC and remaining accused are liable for three count charges of offence under Section 323 of IPC. However, it is clear before all the appellants that the appellant Lakhan Singh had a barchhi with him and, therefore, before joining him they knew that the appellant Lakhan Singh would assault the various victims with barchhi and, therefore, the overt act of joining such incident clearly indicates that all the appellants had a common intention with the Lakhan Singh and, therefore, each of the appellant is liable of two count charges of offence under Section 324 of IPC with help of Section 34 of IPC due to their common intention with appellant Lakhan Singh. The trial Court has rightly held the appellants liable for offence under Section 324 read with Section 34 of IPC.

It would be apparent that the trial Court did not make any provision of punishment for offence under Section 323 of IPC done by appellant No. 1, 2 and 4 because they were convicted of offence under Section 324 of IPC with help of Section 34 of IPC along with Lakhan Singh. When an accused is convicted for a superior offence for the same victim then it is not necessary to pass any sentence for inferior offence of the same nature. However, it is argued by the learned counsel for the appellants that the appellants have remained in the custody for few days, when the case was committed to the Court of Sessions and, thereafter, they also remained in custody during the appeal. The appellant Lakhan Singh is taken into custody on 16.02.2016 in compliance of the arrest warrant and since then he is in custody. Under these circumstances, the learned counsel for the appellants has submitted that looking to the offence of the appellants only six months sentence was recorded by the trial Court whereas the appellants have faced the trial in appeal since the year 1994 i.e. they have suffered for their appearance before the magisterial Court, Sessions Court and the High Court for more than 22 years and, therefore, it is prayed that they may not be sent to the jail again.

It is true that each of the appellant was first offender and quarrel started suddenly due to fencing done by the appellants by encroachment and it was not a preplanned quarrel. The appellants have faced the consequence of trial for 22 years. The appellants No. 1, 2 and 4 remained in the custody for few days whereas the appellant No. 3 remained in the custody for few days during the trial and appeal in the beginning but since 16.02.2016 he is in custody in compliance of arrest warrant whereas he is the main accused. Custody period of Lakhan Singh comes to be more than two months and, therefore, looking to the aforesaid circumstances, it would not be appropriate not to send the remaining appellants to the jail again. It would not be appropriate to reduce their jail sentence to the period for which they remained in the custody. However, some fine may be enhanced.

On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Their conviction of offence under Section 324 or 324 read with Section 34 of IPC is hereby maintained but sentence is reduced to the period for which they have remained in the custody, however, fine amount be enhanced from a sum of Rs. 500/- to a sum of Rs. 2000/- for each of the appellants. Appellants No. 1, 2 and 4 are directed to deposit the remaining fine amount before the trial Court within two months from today whereas the appellant No. 3 shall be released on depositing of remaining fine amount, failing which each of the them shall undergo three months'' rigorous imprisonment in addition. On depositing the fine amount, the victims Suresh Kumar, S/o. Bhajanlal, resident of village Hardai Police Station, Bhajan Singh S/o. Kachhu Yadav, resident of village Hardai Police Station and Kushiram, S/o. Kachhu Yadav, resident of village Hardai Police Station, shall receive a sum of Rs. 2000/-, 2000/- and 4000/- respectively as compensation out of the fine amount. It is for the trial Court to inform the victims and to provide the compensation to them.

Presence of the appellants is no more required before this Court and, therefore, it is directed that bail bonds of appellants No. 1, 2 and 4 shall stand discharged whereas the supersession warrant be issued against the appellant No. 3 so that he may be released after depositing the fine amount.

A copy of this judgment be sent to the Court below along with its record for information and compliance. The trial Court is directed that if fine amount is not deposited within the stipulated period then recovery of fine amount should be done according to the provision of Section 68 of the IPC.