Kunwarji vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 16.7.1997 passed by the learned First Additional Sessions Judge, Sehore, Camp at Ashta in S.T. No. 40/1995, whereby the appellant was convicted for the offence punishable u/s 324 of IPC and sentenced for 1 year''s rigorous imprisonment with fine of Rs. 1,000/- and in default of payment of fine, 1 month''s simple imprisonment was also directed. The prosecution''s case, in short, is that, on 14.11.1994, at about 1.30 p.m., the victim Shankar (P.W. 2) had participated in a marriage ceremony held at village Pangri (Police Station Ashta, District Sehore). At about 1.30 p.m., a quarrel took place between Ghisulal and the appellant Kunwarji. The victim Shankar tried to resolve the problem then, the appellant quarrelled with the complainant Shankar and thereafter, the appellant raised a knife from pocket of his fullpant and assaulted the complainant Shankar on his left chest. Shankar fell down. He was saved by Babulal (P.W. 3) and other persons. He was taken to the Police Station Ashta, where he had lodged an FIR, Ex. P/2. He was also directed for his medico legal examination. Dr. Hiralal Dalodriya (P.W. 11) after examining him, gave his report, Ex. P/13. He found one stab wound of 2 X 1 X 2 inches on the left side of his chest, below the 9th rib and swelling below the aforesaid wound. He was referred to Hamidiya Hospital, Bhopal for further treatment. Initially, the victim Shankar was taken to Dr. Jagdish Narayan (P.W. 12) R/o. Harrajkhedi and thereafter, he was taken to the Police Station Ashta. After due investigation, a charge-sheet was filed before the JMFC, Ashta, who committed the case to the Sessions Court, Sehore and ultimately, it was transferred to the First Additional Sessions Judge, Sehore, camp at Ashta.

The appellant abjured his guilt. He did not took any specific plea in the case but, he has stated that he was falsely implicated due to the previous enmity. However, no defence evidence was adduced.

The learned Additional Sessions Judge, after considering the prosecution''s evidence, acquitted the appellant for the offence punishable u/s 307 of IPC but, convicted him for the offence punishable u/s 324 of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that as per the allegations, the appellant assaulted the victim for once and injury was not proved to be fatal in nature, therefore, the trial Court has acquitted the appellant for the offence punishable u/s 307 of IPC. However, it was not proved beyond doubt that the appellant was the person who assaulted the victim. He should not be convicted for any offence. However, if he is found guilty then, this fact may be considered at the time of passing the sentence that the appellant was the first offender, who was a young youth of 27 years of age at the time of the incident and who has faced the trial and appeal for the last 17 years. He remained in the custody for 17 days and therefore, he may not be sent to the jail again.

On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be moderate and no interference is required in the appeal.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence directed against the appellant can be reduced?

Shankar (P.W. 2) was examined as a complainant. He has stated that initially the appellant was abusing one Ghisulal. Thereafter, Shankar tried to resolve the problem then a scuffling took place between the appellant and Shankar. Thereafter, the appellant left the spot and within few minutes he came back with a knife and assaulted him. He was saved by one Prem. Prem (P.W. 5) has stated that the appellant assaulted the victim by a knife. However, in para 7 of his cross-examination, he has accepted that at the time of the incident, he was providing meals to the guests and therefore, he did not see that the appellant assaulted the victim Shankar by a knife. Similarly, Saroop Singh (P.W. 1) has turned hostile. He did not support the prosecution''s story. Babulal (P.W. 3) took the victim Shankar to Dr. Jagdish Narayan (P.W. 12) but, he did not say anything told by the victim Shankar. The witness Babulal has also turned hostile.

Dr. Jagdish Narayan (P.W. 12) has stated that on information, he went to his house and found that Shankar was lying unconscious. There was an injury on the upper abdomen of the appellant and therefore, he took the victim Shankar to the Ashta Hospital. Dr. Jagdish Narayan has also turned partly hostile. He did not confirm the fact that Shankar named anyone to be the assailant.

However, the testimony of the victim Shankar is duly corroborated by the FIR, Ex. P/2, which was lodged within a reasonable time. Also, it is proved by the MLC report, Ex. P/13 proved by Dr. Dalodriya (P.W. 11). It is suggested to the victim Shankar that there was an enmity between the parties but, no reasonable enmity could be proved. The victim as well as the appellant participated in the marriage ceremony and initially a quarrel took place between the appellant and Ghisulal, therefore, there was no reason for the complainant to lodge an FIR against the appellant without any reason. There was no probability that the complainant would have left the main culprit and falsely implicated the appellant in the case. Under such circumstances, the testimony of the complainant is acceptable and it is proved beyond doubt that the appellant was the person, who assaulted the victim by a knife causing him a simple injury on his left chest.

Dr. Dalodriya (P.W. 11) has opined that the victim sustained a stab injury on his left chest and he was referred to Hamidiya Hospital, Bhopal, a hospital connected with the medical college but, no treatment paper was proved before the trial Court and therefore, it was not proved that the injury caused to the victim was either grave or fatal. The State has not filed any cross appeal to get the conviction for the offence punishable u/s 307 of IPC. Therefore, nature of the injury is to be considered for consideration of the sentence, which is to be passed against the appellant. However, it is not proved that the complainant sustained any grave or fatal injury.

It is apparent from the evidence given by the victim Shankar that the incident took place in a spur of moment. No right of private defence was accrued to the appellant. The complainant was resolving the problem between Ghishulal and the appellant and when the complainant intervened, the incident took place. By such intervention, no sudden or grave provocation was given to the appellant by the complainant and therefore, looking to the entire factual position, it is apparent that the appellant assaulted the victim without any right of private defence and without any sudden or grave provocation and with the knowledge that he was causing a simple injury to the victim and therefore, it is proved that the appellant had voluntarily assaulted the victim by a sharp cutting weapon causing him a simple injury. The learned Additional Sessions Judge has rightly convicted the appellant for the offence punishable u/s 324 of IPC.

So far as the sentence is concerned, the learned counsel for the appellant has submitted that the appellant was 27 years of age at the time of the incident. He assaulted the victim for once. He has faced the trial and appeal for the last 17 years and he remained in the custody for 17 days during the trial. Also, a compromise application was filed by the victim as well as the appellant on 7.1.1997 before the trial Court. Therefore, either the appellant may be acquitted due to the compromise or his sentence may be reduced. He may not be sent to the jail again. He has also placed his reliance upon the judgment passed by Single Bench of this Court in case of Adaliya and Others Vs. State of Madhya Pradesh, . Actually the judgment passed in case of Adaliya (supra) is not applicable in the present case because in that case, a compromise took place between the parties before the High Court and compromise was accepted because at the time of the incident, offence punishable u/s 324 of IPC was compoundable. In the present case, no compromise application is submitted before this Court. Compromise application was submitted by the complainant before the trial Court and since the case was of offence punishable u/s 307 of IPC, the trial Court could not permit the parties to do compromise for non-compoundable offences. If compromise application was submitted before this Court then, law laid in case of Adaliya (supra) could be followed. However, factum of compromise may be considered for assessment of the sentence.

It is true that the appellant was a youth of 27 years of age at the time of the incident but, since he was above 21 years of age, therefore, he could not get the advantage of probation as a right and there is no reason by which he should be enlarged on probation. However, the complainant had applied for a compromise before the trial Court, the appellant was a young youth of 27 years of age at the time of the incident, he has faced the trial and appeal for the last 17 years, he remained in the custody for 17 days and therefore, it is a fit case in which, the appellant may not be sent to the jail again. However, some fine may be imposed upon the appellant in lieu of the jail sentence.

On the basis of the aforesaid discussion, the appeal filed by the appellant can be partly allowed. Conviction directed for the offence punishable u/s 324 of IPC is hereby maintained but, sentence is reduced to the period, which he has already undergone in the custody. However, fine amount is enhanced from a sum of Rs. 1,000/- to a sum of Rs. 5,000/-. The appellant is directed to deposit the remaining fine amount before the trial Court within 2 months from today. In default of payment of fine, he has to undergo for 9 months'' rigorous imprisonment. If fine is deposited before the trial Court then, a sum of Rs. 4,000/- be given to the complainant Shankar S/o Moolchand, R/o Village Pangri, Police Station Ashta, District Sehore, by way of a compensation.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and compliance.