Mohammad Jabbar and 3 Others vs State of Madhya Pradesh

Hon''ble Justice Shri N.K. Gupta

The appellants have preferred this appeal against the judgment dated 28.4.2012 passed by the learned Sessions Judge/Special Judge under the SC/ST (Prevention of Atrocities) Act Singrauli in Special Case No.07/2010 whereby the appellants were convicted and sentenced for the following offences:

Section

Act

Sentence

Fine amount

Sentence, in default of payment of fine.

147

I.P.C

Six months R.I.

Nil

Nil

148

I.P.C.

one year''s R.I.

Rs. 500/

One month�s R.I.

307 r/w 149

I.P.C.

Five year''s R.I.

Rs. 1000/

two month�s R.I.

506(2)

I.P.C.

one year''s R.I.

Rs. 500/

One month''s R.I.

All the jail sentence shall run concurrently. The prosecution''s case in short is that on 1.8.2010 at about 10.a.m in the morning the victim Rangai (PW4) was going to a well to fetch some water at village Kanji, Police Station Baidhan, District Singrauli. The appellants came with sticks etc. and shouted upon the victim because a civil case was pending against them lodged by the victim and thereafter, they assaulted the victim by sticks causing him various injuries on his legs and hands. The victim Rangai was taken to the hospital whereas his son Babuaram (PW14) had lodged an FIR Ex. P/24 (Dehati Nalishi) with the Police Officer, who came to the Nehru Hospital and thereafter, a case was registered. Dr. Saurabh (PW8) examined the victim Rangai in Nehru Century Hospital, Jayant and gave his report Ex. P/26. He found various wounds on both of the legs and both of the hands of the victim Rangai. Out of them one penetrated wound was found on left arm. Clinically he found that the concerned bone of both the hands were broken. However, he referred the patient for radiological examination. Dr. S. K. Mual (PW16) examined the victim Rangai radiologically and found that he sustained fracture of tibia and fibula bones in both the legs. In right leg, patella bone was also found broken. In left hand, radius and ulna were found broken. He gave his report Ex. P/33. Dr. Devnath (PW17) treated the victim Rangai in the hospital and he gave a discharge report Ex. P/34. The victim Rangai was discharged in a condition when both of his legs were broken in so many pieces. After due investigation a charge sheet was filed before the CJM, Singrauli who, committed the case to the Special Judge/Sessions Court.

The appellants abjured their guilt. They did not take any specific plea but, they have stated that the land in dispute was allotted to the appellants and therefore, a stay was granted by the Tahsildar while the victim was constructing a house in that land. Thereafter, a compromise took place that Rangai shall continue in the house and land will be cultivated by the appellants. On the previous day of the incident Rangai started cultivation on the land by flouting the compromise. In defence one Niazuddin (DW1) was examined.

Learned Special Judge under SC/ST (Prevention of Atrocities) Act (hereinafter it may be referred as the ''Special Act'') after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.

I have heard the Learned Counsel for the parties.

The Learned Counsel for the appellants have submitted that looking to the entire incidence and the injuries caused to the victim Rangai, no offence u/s 307 of I.P.C is made out. At the most offence u/s 326 of I.P.C may constitute. In support of his contention, he placed reliance on the judgment of Hon''ble the Apex Court in the case of Pashora Singh and another Vs. State of Punjab, It is also submitted that the appellants did not assault the victim. There is no specific allegation that who assaulted the victim. Common intention of the appellants was no where established. It is no where proved that an unlawful assembly was constituted. Under such circumstances, the conviction directed by the trial Court is challenged. In alternate it is submitted that the appellants would have been released on probation or they could have been imposed with fine only. They remained in the custody for few years and therefore, they may not be sent to the jail again.

On the other hand the learned Public Prosecutor has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is required in the appeal.

After considering the submissions made by Learned Counsel for the parties it is to be considered that whether the appellants could not be convicted for offence punishable u/s 307 of the I.P.C ? Whether the appellants can be convicted for any offence with help of Section 149 of I.P.C ? And whether the sentence imposed upon the appellants can be reduced ?

Rangai (PW4), Babuaram (PW14) and Ramanuj (PW11) have stated about the incident whereas Ramkaran (PW1), Dinesh Kumar (PW2), Brahaspati (PW9) etc. have turned hostile. Babuaram son of the victim has stated that due to terror of one Dactor Singh no independent witness could say against the appellants. These witnesses have stated before the Court by which it would be clear that their evidence is confirmed by the medical evidence. The victim Rangai gave a dying declaration Ex. P/22 which was duly proved by the Naib Tahsildar, B. L. Baheriya (PW5) but, Rangai took a somersault that he did not give any dying declaration. It appears that since the third injury of the victim Rangai was found to be punctured wound therefore, now he has turned to say that the appellants had gandasas and ballams in their hand and they assaulted him. However, looking to the injuries caused to the victim Rangai and timely lodged Dehati Nalishi which was duly proved by the witness Babuaram and the testimony of Babuaram, the entire prosecution story is duly corroborated and it is established that the appellants assaulted the victim by sticks causing him various injuries. Out of them three injuries were grave.

The appellants took a plea of right of private defence but, in the present case no right of private defence arose to the appellants. For the sake of argument it may be presumed that the land was allotted to the appellants and they were cultivating the land and if on the previous day the victim Rangai ploughed the land by a tractor with the help of some persons then on the next day i.e. the day of the incident no right of private defence accrued to the appellants due to the act done by the victim on the previous day. It is apparent that at the time of the incident the victim was going to fetch some water and he was not doing anything in the field. No right of private defence relating to the person or property accrued to the appellants. Similarly, the appellants went with arms to the spot and it is no where mentioned that the victim gave any sudden or grave provocation to the appellants. On the contrary the appellants assaulted the victim in a forceful manner and therefore, it is established that they assaulted the victim voluntarily. Similarly it is also established that each of the appellant took part in the crime in assaulting the victim and the victim sustained various injuries in the result and therefore, their common intention and common object is also established. Five persons assaulted the victim in such a manner therefore, it is clear that an unlawful assembly was duly constituted. The trial Court has rightly convicted the appellants for offence punishable u/s 148 of the I.P.C. Offences under Sections 147 and 148 of I.P.C are of similar nature and offence u/s 148 of I.P.C is grave and therefore, there is no need to convict the appellants for offence punishable u/s 147 of I.P.C separately.

So far as the offence u/s 307 of I.P.C is concerned it is true that the victim Rangai sustained three fractures in all. Two fractures on both of his legs and one fracture on his right hand. Initially Dr. Saurabh has stated that injuries caused to the victim Rangai were grave but, he did not mention that the injuries were fatal in nature. The bones of the victim Rangai were broken in legs and hands which are not fatal parts of the body whereas, no injury was caused to the victim on any vital part of the body. No any bone was found fractured which covered the vital part of the body. No assault was caused by the appellants on the head, chest or abdomen of the victim and the appellants caused only four injuries in all to the victim. Under such circumstances, it is apparent that the appellants were not intended to kill the victim Rangai nor the injuries of the victim Rangai were found to be fatal. Under such circumstances, in the light if judgment passed by Hon''ble the Apex Court in the case of Pashora Singh (supra) the appellants could not be convicted for the offence punishable u/s 307 of the I.P.C. In the case of Pashora Singh (supra) conviction was reduced from offence punishable u/s 307 of I.P.C to one u/s 326 of I.P.C. In the present case there is no prosecution story that the appellants assaulted the victim by any sharp cutting weapon or deadly weapon therefore, in the present case looking to the overt acts of the appellants only offence punishable u/s 325 of I.P.C will be constituted and therefore, the trial Court has erred in convicting the appellants for offence punishable u/s 307 read with Section 149 of I.P.C. They should be convicted for offence punishable u/s 325 read with Section 149 of I.P.C.

So far as the sentence is concerned the appellants are in custody since 4.8.2010 and therefore, they remained in the custody for more than two years. Sentences granted for offence punishable under Sections 147, 148 and 506(2) of the I.P.C were already executed because it was directed by the trial Court that the sentences shall run concurrently and therefore, at present sentence for offence punishable u/s 325 of I.P.C is to be considered only.

The appellants were first offenders and remained in the custody for more than two years. But, looking to the their overt act they can not be released on probation. There is no ground by which they may be released on probation. Similarly looking to the gravity of the offences they cannot be released on imposition of some fine but, for the offence punishable u/s 325 of I.P.C jail sentence of 2 or 2 1/2 years would be sufficient in the present case. The appellants have already undergone in the custody for more than two years and therefore, it would be proper that their sentence may be reduced to the period which they have already undergone in the custody with enhancement of some fine.

On the basis of the aforesaid discussion the present appeal filed by the appellants is hereby partly allowed. The conviction and sentence directed by the trial Court for the offence punishable u/s 147, 148 and 506(2) of the I.P.C are hereby maintained but, conviction as well as sentence directed for offence punishable u/s 307 read with section 147 of the I.P.C is hereby set aside. The appellants are convicted for offence punishable u/s 325 read with section 149 of the I.P.C and sentenced for the period which they have already undergone in the custody but, a sum of Rs.2500/-is imposed as a fine for that offence on each of the appellants. In default of payment of fine each of them shall undergo for three months rigorous imprisonment in addition. All the sentences shall run concurrently except of the default sentence.

The Registry is directed to prepare the supersession warrants accordingly so that the appellants may be released forthwith if they deposit the fine amount. Copy of the judgment be sent to the trial Court with its record for information and compliance.