Hukum Singh And Others vs State Of Mp

This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 13/03/2009, passed by Special Judge

(Scheduled Castes & Scheduled Tribes, Prevention of Atrocities Act), Shivpuri in Special Sessions Trial No.168/2007, by which applicant No.1-

Hukum Singh has been convicted under Section 325 of IPC and appellant Nos.2,3, 4, namely, Chenu, Pappu alias Lal Singh Yadav and Smt.

Rajkumari have been convicted under Section 325/34 of IPC, whereas appellant No.3 Pappu alias Lal Singh Yadav has been convicted under Section

324 of IPC and appellant Nos.1, 2 and 4, namely, Hukum Singh, Chenu and Smt. Rajkumari have been convicted under Section 324/34 of IPC and

have been sentenced to undergo rigorous imprisonment of one year and fine of Rs.2,000/-with default imprisonment, for offence under Sections 325,

325/34 of IPC and rigorous imprisonment of six months and fine of Rs.1,000/-with default imprisonment, for offence under Sections 324, 324/34 of

IPC respectively.

(2) Challenging the findings given by the trial Court, it is submitted by the counsel for the appellants that according to the prosecution case, when the

first informant Baiju (PW-1) and other injured persons, were coming back from the police station after lodging a report with regard to assault on

Kaptan Singh (PW-4), they were waylaid and the appellants assaulted Baiju (PW-1), Sawailal (PW-2) and Parvati Bai (PW-3). The first informant

Baiju (PW-1) lodged a report at police station Dinara, District Shivpuri, on which the police registered an offence under Sections 341, 294, 323, 506B,

34 of IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act.The injured persons were sent for medical

examination. It was found that Sawailal (PW-2) had suffered fracture of lateral end of clavicle bone and other injured witnesses had suffered

contusions, incised wounds and lacerated wounds. The police, after recording the statements of the witnesses and completing the investigation, filed

the chargesheet against the appellants for offence under Sections 323, 324, 325, 341, 294, 506B, 34 of IPC.

(3) The trial Court by order dated 29/02/2008 framed the charges under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and Sections 323, 324, 325 of IPC or in the alternative, under Sections 294 of IPC and Sections 323/34, 324/34, 325/34 of IPC.

(4) The appellants abjured their guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined Baiju (PW-1), Sawailal (PW-2), Parvati (PW-3), Kaptan Singh (PW-4), Radheylal (PW-5),

Rampal (PW-6), Dr. Vinod Chaurasiya (PW-7) Rajesh Sharma (PW-8), Rajesh Dandotiya (PW-9) and Dr.ML Agrawal (PW-10).The appellants,

examined Mukesh Kumar Jatav (DW1), in their defence.

(6) The Trial Court by the judgment and sentence dated 13/03/2009, passed in Special Sessions Trial No.168/2008, convicted appellant No.1 Hukum

Singh for offence under Section 325 of IPC and convicted appellant Nos.2, 3, 4, namely, Chenu, Pappu alias Lal Singh Yadav and Smt. Rajkumari

under Section 325/34 of IPC and sentenced them to undergo the rigorous imprisonment of one year and fine of Rs.2,000/- with default imprisonment

and also convicted appellant No.3 Pappu alias Lal Singh Yadav for offence under Section 324 of IPC and convicted appellants Nos.1, 2 and 4,

namely, Hukum Singh, Chenu and Smt. Rajkumari for offence under Section 324/34 of IPC and sentenced them to undergo the rigorous imprisonment

of six months and fine of Rs.1,000/- with default imprisonment respectively.

(7) Being aggrieved by the judgment and sentence passed by the trial Court, the appellants have filed the present appeal under Section 374 of CrPC.

During pendency of this appeal, IA 6746/2014 was filed by the appellants, alleging that appellant No.2- Chenu has expired on 09/10/2013. Accordingly,

this Court by order dated 01/09/2014 directed the State to submit the verification report in regard to factum of death of appellant No.2- Chenu. The

Police Station Dinara, District Shvipuri has submitted the verification report dated 13/09/2014 in which it has been mentioned that the appellant No.2

Chenu alias Chunnilal, son of Pahalwan Singh has expired and the death certificate has also been sent along with the verification report. Accordingly,

it is clear that appellant No.2- Chenu alias Chunnilal has expired on 09/10/2013, therefore, the appeal filed on behalf of appellant No.2 Chenu alias

Chunnilal is hereby dismissed, as having stood abated.

(8) So far as the case of appellants No.1, 3, 4, namely, Hukum Singh, Pappu alias Lal Singh Yadav and Smt. Rajkumari is concerned, it is submitted by

the counsel for the appellants that according to the prosecution case, the first informant Baiju (PW-1), Sawailal (PW-2), and Parvati Bai (PW-3) were

coming back from the police station after lodging a report with regard to assault on Kaptan Singh (PW-4) and while they were on the way back to

their village, they were waylaid by the appellants and were assaulted. It is submitted by the counsel for the appellants that Kaptan Singh (PW-4) in his

cross-examination, has admitted that neither any offence was registered by the police nor any case is pending with regard to assault. It is submitted by

the counsel for the appellants that in the light of the admission made by Kaptan Singh (PW-4) in his cross-examination, it is clear that the allegations of

coming back from the police station after lodging the report with regard to assault on Kaptan Singh (PW-4) is false and when the prosecution has

failed to prove that the first informant Baiju (PW-1) and other injured persons had ever gone to the police station for lodging a report with regard to

assault on Kaptan Singh, then it is clear that the prosecution has failed to prove the very genesis of the incident and thus, the allegations made by first

informant Baiju (PW-1) and Sawailal (PW-2) to the effect that they were waylaid by the appellants while the first informant and other injured persons

were going back to their house as they had gone to the police station for lodging the report with regard to assault on Kaptan Singh is false and,

therefore, the prosecution has miserably failed in establishing that the victims were ever assaulted by the appellants. It is further submitted that Baiju

(PW-1) has stated in his evidence that appellant No.3 Pappu alias Lal Singh Yadav had assaulted on his head by means of ''farsa'' but no injury was

found on the head of Baiju (PW-1) which clearly shows that the ocular evidence is not corroborated by medical evidence. It is further submitted that

Sawailal (PW-2) has stated that he fell unconscious after he sustained a lathi injury and, therefore, he does not know as to who had caused the injures

to other victims. Similarly, by referring to the evidence of Baiju (PW-1), it is submitted by the counsel for the appellants that Baiju also could not

clarify as to which injury was caused to whom by which appellant. Thus, it is submitted that the prosecution has miserably failed in establishing the

guilt of the appellants. In the alternative, it is further submitted by the counsel for the appellants that the incident took place on 23/08/2007 and more

than eleven years have passed. No minimum jail sentence has been provided for offence under Sections 323, 324, 325 of IPC, therefore, the

appellants may be punished with fine amount only, as they have not remained in jail even for a single day.

(9) Per contra, it is submitted by the counsel for the State that so far as the admission of Kaptan Singh (PW-4) to the effect that the police did not

register any FIR on his complaint and no trial had taken place with regard to assault on him is concerned, it is submitted that the evidence of Kaptan

Singh (PW-4) or Baiju (PW-1) and Sawailal (PW-2) cannot be discarded because sometimes the police finds that the complaint does not disclose

commission of cognizable offence and, therefore, the police, in such case, advises the complainant to approach the Court. Therefore, merely because

if the police had not registered the FIR would not ipso facto mean that the first informant Baiju (PW-1), Sawailal (PW-2) and Parvati Bai (PW-3) had

never gone to the police station for making a complaint with regard to assault on Kaptan Singh (PW-4). It is incorrect to say that the prosecution has

failed to prove the very genesis of the incident. It is further submitted by the counsel for the State that Baiju (PW-1) has specifically stated in his

cross-examination that as he had fallen on the ground and was trying to save himself, therefore, he could notice that which injury was caused to other

victims by which appellant and this explanation given by Baiju is plausible because where a person who is beaten by the appellants and had fallen

down, then naturally he would try to save himself and in such a situation, if he could not notice about the specific assault made by the appellants to

other victims, then it cannot be said that the explanation given by Baiju is not plausible.

(10) Heard the learned counsel for the paries.

(11) Dr.Vinod Chaurasiya (PW-7) has proved the injuries sustained by Baiju (PW-1) and Sawailal (PW-2). According to Dr. Vinod Chaurasiya (PW-

7), Sawailal (PW-2) had sustained the following injuries:-

''(i) Lacerated wound size 1cmx ½ cm x deep upto bone on the centre of parietal region of skull.

(ii)Contusion size 2 cm x 1 cm with swelling size 3 cm x 2 cm over left shoulder.

(iii) Contusion 2 cm x 1 cm on posterior aspect of left side of chest.

The MLC report of Sawailal (PW-2) is Ex.P6.

According to Dr.Chaurasiya (PW-7), Baiju (PW-1) had also sustained the following injuries:-

''(I) Incised wound size 1 ½ cmx ¼ cm x deep upto muscles on left hand.

(ii) Contusion size 2 cm x 1cm on left scapula region.

(iii) Contusion size 1 cm x 1 cm on lateral aspect of left arm.'' The MLC report of Baiju (PW-1) is Ex.P8. Sawailal (PW-2) had suffered fracture of

lateral end of clavicle bone and X-ray report is Ex.P18.

(12) Thus, it is clear that Sawailal had sustained a grievous hurt falling under the provision of Section 320 (Seventhly) of IPC. So far as the assault on

Parvati Bai (PW-3) is concerned, Parvati Bai (PW-3) had turned hostile and she did not support the prosecution case. Accordingly, the appellants

have not been convicted by the trial Court for offfence under Sections 323, 323/34 of IPC for causing simple injury to Parvati Bai.

(13) Radheylal (PW-5) has not supported the prosecution case and he was declared hostile. Rampal (PW-6) has stated that Sawailal (PW-2) was

beaten by appellant No.1 Hukum Singh, appellant No.3 Pappu alias Lal Singh Yadav and appellant No.4 Smt. Rajkumari. However, he did not support

the prosecution case of causing injuries to Baiju (PW-1) and Parvati Bai (PW-3). Rampal (PW-6) has specifically stated that he had also gone to the

police station for lodging the report. Rajesh Sharma (PW-7) and Rajesh Dandotiya (PW-9) are the investigating officers. Rajesh Sharma (PW-7) has

stated that he had prepared the spot map ExP2 and had recorded the statements of the witnesses. Rajesh Dandotiya (PW-9) has stated that he had

arrested the appellants vide arrest memo Ex.P9 and ExP12. A ''lathi'' was seized from the possession of appellant No.1 Hukum Singh vide Ex.P13

and a ''farsa'' was seized from the possession of appellant No.3 Pappu alias Lal Singh Yadav vide ExP14. He has further stated that he had recorded

the statements of Sawailal (PW-2) and Baiju (PW-1) and Parvati Bai (PW-3) vide Ex.P15 to Ex.P17. In cross-examination,this witness has stated

that since all the appellants had come to his Office and they were arrested in the Office only. He further admitted that the appellants had brought their

weapons on their own to his Office and denied that the weapons were not seized. Dr. ML Agrawal (PW-10) has proved the X-ray of lateral end of

clavicle bone of Sawailal vide Ex. P18 and the X-ray plate of Sawailal (PW-2) is Ex.P19. This witness, in his cross-examination, has stated that the X-

ray of Sawailal (PW-2) was done by the Technician in his presence. These witnesses were cross-examined in detail but nothing could be pointed out

by counsel for the appellants which may make their evidence unreliable. Undisputedly, the appellants had sustained injuries and the incident had taken

place at 10:45 pm, while the FIR Ex.P1 was lodged at 23:40 i.e. within three hours of the incident and the police station is situated at a distance of

seven kilometers from the place of incident. In the FIR it is specifically mentioned that the first informant Baiju (PW-1) along with other injured

persons had gone to the police station for lodging a report with regard to assault made on Kaptan Singh (PW-4) by appellant No.1 Hukum Singh and

they were waylaid by the appellants and were scolded as to why they have lodged the report in the police station against them and on that issue, the

first informant Baiju (PW-1), Sawailal (PW-2) and Parvati Bai (PW-3) were beaten. It is submitted by the counsel for the appellants that Kaptan

Singh (PW-4) has stated in his cross-examination that lot of persons in two tractor- trolleys had gone to the Police Station for lodging the FIR with

regard to assault made on him. He has further stated that all those persons were coming back on those two tractor-trolleys. It is submitted that where

a number of persons were coming back on the tractor-trolleys, then it was not possible for four persons to assault the first informant Baiju (PW-1) and

Sawailal (PW-2).

(14) The submissions made by the counsel for the appellants cannot be accepted for simple reason that Kaptan Singh (PW-4) has specifically stated

that he is not the eye-witness of the incident as he was sent by the police for medical examination. No question has been put to Baiju (PW-1) as well

as to Sawailal (PW-2) that lot of persons were coming back from the police station on two tractor-trolleys. In absence of any suggestion given to

Baiju (PW-1) and Sawailal (PW-2) to the effect that along with the injured persons there were number of other persons also in the tractor-trolleys, the

ocular evidence of Baiju (PW-1) and Sawailal (PW-2) cannot be discarded merely because for the simple reason that Kaptan Singh (PW-4) was not

the eye- witness of the incident. Accordingly, it is held that appellant No.1 Hukum Singh is held guilty for committing an offence under Section 325 of

IPC and appellants No.3 and 4, namely, Pappu alias Lal Singh Yadav and Smt. Rajkumari are held guilty for committing an offence under 325/34 of

IPC. Similarly, appellant No.3 Pappu alias Lal Singh Yadav is held guilty for committing an offence under Section 324 of IPC and appellant No.1

Hukum Singh and appellant No.4 Smt. Rajkumari are held guilty for committing an offence under Section 324/34 of IPC.

(15) It is next contended by the counsel for the appellants that the appellant No.4 is a lady and the incident took place on 23/08/2007. Although the

appellants have not remained in jail even for a single day because the offences were bailable, but they have already undergone the agony of trial and

appeal for the last more than 11 years. Appellant No.2 Chenu has also lost his life during pendency of this appeal and under these circumstances,

where no minimum jail sentence is provided for offence under Section 324, 325 of IPC, then the ends of justice would be meet if the appellants are

convicted with fine only.

(16) Considered the submissions made by the counsel for the appellants.

(17) The sentence provided for the offence under Section 324 of IPC is imprisonment of either description for a term which may extend to three

years, or with fine, or with both and similarly, the sentence provided for offence under Section 325 of IPC is imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine. Thus, it is clear that for offence under Section 324 of IPC the jail sentence is

not mandatory and fine can be imposed. However, for the offence under Section 325 of IPC, no minimum jail sentence is provided. However, a

person cannot be punished with fine only for offence under Section 325 of IPC.

(18) Under these circumstances, considering the allegations which have been made against the appellants, this Court is of the considered opinion that

the jail sentence of rigorous imprisonment of one year and six months can be reduced to rigorous imprisonment of one month. Accordingly, the jail

sentence awarded by the trial Court is modified and it is directed that appellant No.1 Hukum Singh shall undergo the rigorous imprisonment of one

month and fine of Rs.7,500/- for offence under Section 325 of IPC and the appellants No.3 and 4, namely, Pappu alias Lal Singh Yadav and Smt.

Rajkumari shall undergo the rigorous imprisonment of one month and fine of Rs.7,500/- for offence under Section 325/34 of IPC; in default they shall

further undergo the rigorous imprisonment of ten days. Similarly, appellant No.3 Pappu alias Lalsingh shall undergo the rigorous imprisonment of one

month and fine of Rs.7,500/- for offence under Section 324 of IPC and appellant No.1 Hukum Singh and appellant No.4 Smt. Rajkumari shall undergo

the rigorous imprisonment of one month and fine of Rs.7500/- for offence under Section 324/34 of IPC, in default they shall further undergo the

rigorous imprisonment of ten days. Both the sentences shall run concurrently.

(19) With the aforesaid modification the judgment and sentence dated 13/03/2009 passed by Special Judge (SC & ST Prevention of Atrocities Act),

Shivpuri in Special Sessions Trial No.168/2007 is hereby affirmed.

(20) The appellants are on bail. Their bail bonds and surety bonds are hereby cancelled. They are directed to surrender immediately before the trial

Court for undergoing the remaining jail sentence and payment of aforesaid enhanced fine amount.

(21) The appeal is partly allowed to the extent mentioned above.