Kalyan Singh and others vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellants have filed this appeal against judgment dated 04.12.1997 passed in Sessions Trial No.162/1997 by the learned Additional Sessions Judge, Sonkatch, District Dewas (MP), whereby appellants have been convicted for the offence punishable under Sections 148, 307/149 and 323/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and fine of Rs.200/-each for the offence punishable u/s 148 IPC; sentenced to undergo rigorous imprisonment for five years with fine of Rs.500/-each for the offence punishable u/s 307/149 IPC; and sentenced to undergo rigorous imprisonment for one year and fine of Rs.200/-each for the offence punishable u/s 323/149 IPC. Brief facts of the case are that on 23.06.1993 at about 03.00 PM complainant Man Singh and his brother Bhera Singh were on their field and their BataidarRama Balai and Kumer Singh were involved in agricultural work. It is alleged that appellants armed with Axe and Pirane came there and started abusing and thereafter, appellant Fateh Singh inflicted Axe blow on the head of Bheru Singh and thereafter other appellants also beaten Bheru Singh. When Parvat Singh and Man Singh tried to intervene, they were also beaten by the appellants. On report of the complainant, a crime has been registered. After investigation, a challan has been filed in the Court and learned trial Court, after trial of the appellants for the offences punishable under Sections 148, 307 in alternative 307/149 and 326 in alternative 326/149 IPC, convicted and sentenced them as mentioned in paragraph No.1 of the judgment.

Being aggrieved by the impugned judgment, appellants have filed this appeal.

Learned Counsel for the appellants has submitted that he is only challenging conviction of the appellants for the offence punishable u/s 307/149 IPC, because there is no medical evidence that injury sustained by the victim was dangerous to life.

Learned Counsel for the appellants has drawn attention towards the statements of Dr. Pravin Mishra (PW-9) and Dr. Abjal Bungalow-wala (PW-16), who have stated that the head injury sustained by the victim was grievous in nature. Dr. Pravin Mishra (PW-9) has stated that bone below the head injury was found cut and brain material was seen, while Dr. Abjal Bungalow-wala (PW-16) has stated in his deposition that he had only assisted the treating doctors and prepared discharge certificate and treatment papers. He has admitted in cross-examination that he has not operated the victim and he has given the opinion about the victim that he was having depressed fracture on the ground that the victim was operated, but he has further admitted that if there is no fracture, operation may be done for removing the clot in the brain. It is also important to note that X-ray report Ex. D/4, which was taken before the operation of the victim, shows that no bony injury has been seen on the skull of victim. There is no evidence that injury sustained by the victim was dangerous to life. Doctor, who operated the victim, when he was referred to MY Hospital, Indore has not appeared for deposition. Therefore, in the absence of any specific evidence regarding injury sustained by the victim was dangerous to life, learned trial Court has erred in convicting the appellants for the offence punishable u/s 307/149 IPC.

Therefore, considering the fact that the victim has been under treatment for about two months, conviction of the appellants for the offence punishable u/s 307/149 IPC is set aside, instead they are convicted for the offence punishable u/s 326/149 IPC. So far as sentence is concerned, appellants have been in custody from 28.06.1993 to 07.09.1993 during trial and they have been in custody after passing of the impugned judgment on 04.12.1997 to 09.02.1998, till suspension of their sentence. Therefore, total period in custody of the appellants is more than four months. This appeal is pending since 1997 and appellants have been facing the trial since 1993, therefore, looking to the long pendency of the litigation and considering the fact that appellants are first offenders, their sentence for the offence punishable under Sections 326/149, 323/149 and 148 IPC is reduced to already undergone, maintaining the fine amount. Bail bonds of the appellants are discharged.