Kripal Singh and Others vs State of Madhya Pradesh

N.K. Gupta, J.—Being aggrieved with the judgment dated 22.3.2013 passed by the Second Additional Sessions Judge, Astha District Sehore in ST No. 90/2010 the appellants have preferred the present appeal whereby each of the appellant was convicted for the offence under Sections 148, 307/149 of IPC and sentenced with six months'' RI and five years'' RI with fine of Rs. 5,000/-, in default of payment of fine six months'' RI.

The prosecution case, in short, is that on 4.9.2009 at about 6:30 PM in the evening the complainant Ranjeet Singh (PW-1) left his house to the road at Village Gaajna. Near the tank of Jagannath Singh he found that some boys collected stones in the gutter prepared under the Prime Minister Employment Road Scheme. The victim Ranjeet Singh asked the boys as to why such stones were collected in the gutter and blocked it, then appellants Kripal Singh and Mahendra Singh assaulted him by a stone on his head due to which he sustained injuries on his head, forehead and nose. Thereafter other appellants came and they shouted to assault the victim. The appellants Prem Singh, Lakhan Singh and Jitendra Singh also assaulted the victim Ranjeet Singh by stones and kicks & fists. Lakhan Singh assaulted him by a stick on his back. On his shouting Gulab Singh (PW-5), Kumer Singh (PW-6) and Surendra Singh (PW-3) came to the spot. Vijendra Singh (PW-2) son of the victim came to the spot, then the appellants abused Vijendra Singh also. The victim was taken to the Civil Hospital, Astha. Dr. R.C. Gupta (PW-7) recorded the pre-MCL report of the victim and referred him to the Hamidiya Hospital, Bhopal. Head Constable Lakhan Singh (PW-12) had recorded the Dehati Nalishi Ex. P-1 from the victim at Hamidiya Hospital, Bhopal and the matter was registered. After due investigation, a charge sheet was filed before the committal Court and the case was committed to the Sessions Court and ultimately it was transferred to the learned Second Additional Sessions Judge, Astha.

The appellants-accused abjured their guilt. They took a plea that a quarrel of Sarpanch Ranjeet took place with one woman and in the quarrel the victim raised a stone to throw upon that woman, but ultimately he fell on earth along with stone and his face dashed with the stone due to which he sustained injuries. In defence Santosh Singh (DW-1) and Constable Hukum Singh (DW-2) were examined.

The learned Additional Sessions Judge after considering the evidence adduced by the parties acquitted the appellants from the charge of Section 506(II) of IPC but convicted them for the offence under Sections 148, 307/149 of IPC and sentenced as mentioned above.

I have heard learned counsel for the parties at length.

During the pendency of the appeal the complainant Ranjeet Singh had filed an application to seek permission for compromise with the appellants and he had shown his voluntariness of compromise before the Registrar (J-I). Vide order dated 11.4.2014 the application seeking permission to compromise was dismissed because the offence was not compoundable but it was directed that the effect of compromise will be considered at the time of passing of the sentence.

After considering the submissions made by the learned counsel for the parties, if the evidence given by the parties before the trial Court is considered, then Ranjeet Singh (PW-1), Vijendra Singh (PW-2), Surendra Singh (PW-3) and Gulab Singh (PW-5) were examined as eye-witnesses whereas Kumer Singh (PW-6) has stated that after hearing the shouts when he came to the road, he found that the victim Ranjeet Singh was injured and he told that he was assaulted by Kripal Singh and Mahendra Singh. If the testimony of these witnesses is examined with the help of corroborative piece of evidence, then it would be apparent that the Dehati Nalishi was drawn by the complainant on the next day morning at Hamidiya Hospital, Bhopal. He has stated that initially Kripal Singh and Mahendra Singh assaulted him by a stone on his forehead, and therefore he sustained injuries. Thereafter the other appellants came to the spot and assaulted him by stones and kicks & fists, whereas Lakhan Singh assaulted him by a stick. In connection of this evidence, the prosecution has examined Dr. R.C. Gupta (PW-7), who examined the victim at Civil Hospital, Astha and gave his report Ex. P-11. In his report he found that a lacerated wound was present on the right forehead, which was bone deep and blood was oozing from the nose of the victim, and therefore the victim was referred to the Hamidiya Hospital, Bhopal. Dr. Gaurav Chaturvedi (PW-11) has stated that he examined the victim Ranjeet Singh at the Hamidiya Hospital, Bhopal and he found that there was a stitched wound on the right side of his forehead and his both eyes had turned black. Also blood was oozing from his nose.

If the injuries caused to the victim Ranjeet Singh are considered from the statements of Dr. R.C. Gupta and Dr. Gaurav Chaturvedi (PW-11), then it would be apparent that the victim sustained only one injury, which was on his right forehead and due to that injury blood was oozing from his nose, which indicates the internal bleeding and due to that internal bleeding both the eyes of the victim had turned black, and therefore by the medical evidence it would be apparent that only single visible injury was found to the victim. The various witnesses were cross examined at length, but looking to the evidence given by them, it appears that initially the appellants Kripal Singh and Mahendra Singh assaulted the victim by stone on his head and other appellants came thereafter. If it is presumed that other appellants assaulted the victim by pelting stones and kicks & fists and the appellant Lakhan Singh assaulted him by a stick, then visible injuries would have caused due to that assault, but no mark of injury was found on the body of the victim Ranjeet Singh by such assault. When the doctor found a single injury to the victim Ranjeet Singh, then it would be apparent that the testimony of the witnesses cannot be believed that other appellants had also assaulted the victim Ranjeet Singh. Under such circumstances, the prosecution has failed to prove that except the appellants Kripal Singh and Mahendra Singh, any other appellant had assaulted the victim Ranjeet Singh in any manner. It would be apparent from the FIR itself that when other appellants came to the spot, the appellants Kripal Singh and Mahendra Singh had already assaulted the victim by a heavy stone and thereafter they did not repeat any assault, and therefore the assault done by Kripal Singh and Mahendra Singh in absence of other appellants, was not in the knowledge of remaining appellants and thereafter they did not do anything to the victim. Under such circumstances, it cannot be said that the remaining appellants had any common intention with the main accused Kripal Singh and Mahendra Singh.

Except the appellants Kripal Singh and Mahendra Singh, no appellant had assaulted the victim. The prosecution has failed to prove that the remaining appellants participated in the crime of assault. Under such circumstances, the appellants Prem Singh, Lakhan Singh and Jitendra Singh could not be convicted for the offence u/s 307 of IPC or for any inferior offence of the similar nature either directly or with the help of Section 34 or 149 of IPC. Hence, the learned Additional Sessions Judge has committed an error of law and fact in convicting the remaining appellants for the offence u/s 307/149 of IPC. Similarly, when the remaining three appellants did not participate in the alleged crime, then there was no basis to say that any unlawful assembly was constituted. By mere presence of two persons, it cannot be said that any unlawful assembly was formed or offence was committed by the accused persons as a member of unlawful assembly. Under such circumstances, the learned Additional Sessions Judge has committed an error of law in convicting the appellants for the offence u/s 148 of IPC.

On the basis of the aforesaid discussion, the testimony of the witnesses can be accepted upto the extent that the appellants Kripal Singh and Mahendra Singh assaulted the victim Ranjeet Singh by a heavy stone on his face whereas the remaining part of the story was not proved. If the victim Ranjeet Singh objected that the appellants blocked the gutter, then by such objection no right of private defence was accrued to the appellants. Similarly, they did not get any sudden or grave provocation before throwing a heavy stone. The appellants should have known about the result of their overt-act, and therefore it is proved beyond doubt that the appellants Kripal Singh and Mahendra Singh voluntarily assaulted the victim Ranjeet Singh. The learned counsel for the appellants has submitted that there was no intention of the appellants to kill the victim Ranjeet Singh, and therefore their crime does not fall within the purview of Section 307 of IPC. It is true that the appellants Kripal Singh and Mahendra Singh did not repeat the assault but by throwing a heavy stone, they knew the result of that overt-act, and therefore though they did not intend to kill the victim Ranjeet Singh, but they caused a fatal injury to the victim Ranjeet Singh with the knowledge that he could die due to pelting of a heavy stone on his forehead. The victim Ranjeet Singh sustained a head injury by which an internal bleeding was caused and his both eyes turned black. If he would not have treated properly, then he could lose his life. Under such circumstances, the single injury caused to the victim should be treated as a fatal injury, and therefore the overt-acts of the appellants Kripal Singh and Mahendra Singh fall within the purview of Section 307 of IPC, and therefore they committed the offence u/s 307 of IPC.

The appellants Kripal Singh and Mahendra Singh were convicted for the offence u/s 307/149 of IPC whereas the charges of the main offence u/s 307 of IPC were framed against all the accused persons and since no unlawful assembly was constituted, the appellants Kripal Singh and Mahendra Singh could be convicted for the main offence u/s 307 of IPC independently. Under such circumstances, looking to the aforesaid discussion, it is a case in which the conviction directed against the appellants Kripal Singh and Mahendra Singh may be maintained.

So far as the sentence is concerned, it is true that the appellants did not intend to kill the victim Ranjeet Singh and the incident was not a preplanned incident. When the victim Ranjeet Singh shouted upon the appellants, then the appellants Kripal Singh and Mahendra Singh pelted a heavy stone upon him. However, at present the victim Ranjeet Singh has appeared before the Court and shown his voluntariness to do compromise and ultimately compromise took place between the parties. Under such circumstances, the crime committed by the appellants Kripal Singh and Mahendra Singh may not be taken with severe manner. The learned counsel for the appellants has submitted that both the appellants remained in the custody during the trial for 15 days and thereafter they remained in the custody for two months and five days during the appeal. Looking to the compromise and the appellants were the first offenders and the appellants did not assault for second time, it would be proper that the jail sentence directed against the appellants Kripal Singh and Mahendra Singh may be reduced to the period for which they remained in the custody by enhancement of some fine amount.

On the basis of the aforesaid discussion, the appeal filed by the appellants Prem Singh, Lakhan Singh and Jitendra Singh is hereby totally allowed. Their conviction and sentence directed for the offence under Sections 148, 307/149 of IPC are hereby set aside. They are acquitted from all the charges appended against them. The appeal filed by the appellants Kripal Singh and Mahendra Singh is hereby partly allowed. Their conviction and sentence for the offence u/s 148 of IPC are hereby set aside and they are acquitted from that charge. However, their conviction for the offence u/s 307 of IPC is maintained, but their sentence is reduced for which they remained in the custody, but fine amount is enhanced from a sum of Rs. 5,000/- to a sum of Rs. 10,000/-. The appellants Kripal Singh and Mahendra Singh are directed to deposit the remaining fine amount before the trial Court within a period of two months from today, failing which each of them shall undergo for six months'' RI.

At present the appellants are on bail. Their presence is no more required, and therefore it is directed that their bail bonds shall stand discharged.

A copy of this judgment be sent to the concerned trial Court with its record for information and compliance with a direction that if the fine is not deposited within the stipulated period, then the provisions of Section 68 of IPC shall be followed.