Mukesh vs State of M.P.

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 4.2.1997 in S.T. No. 27/1995 passed by the 3rd Additional Sessions Judge Damon, whereby the appellant was convicted for the offences punishable under Sections 326, 354 & 458 of IPC and sentenced for three years R.I. with fine of Rs. 500/-, one year R.I. and three years R.I. with fine of Rs. 500/- respectively. In default of payment of fine, he was to undergo for three months S.I. on each count. Prosecution''s case in short is that on 29.11.1994, the victim Laxman Prasad (PW-1) was sleeping on a bed in his house situated at village Bamanpura, Police Station Patera, District Damoh. His sister-in-law Ramvati (PW-2) was also sleeping on the earth in the same room. At about 3:00 a.m. in the morning, the complainant Laxman Prasad saw that the appellant was sitting down on the bed of his sister-in-law and when he asked as to why he came to that place in the night then, the appellant ran away from the spot. After 11/2 hours, the appellant came back and assaulted the victim Laxman Prasad by an axe causing him injuries on various parts of the body. Also he assaulted the victim Laxman by a dagger. On shouting of Ramwati, other witnesses Shivram (PW-3), Ramswaroop (PW-4) and Churaman (PW-6) came to the spot and when the appellant saw those witnesses, he ran away from the spot. Laxman Prasad was taken to the Police Station, Patera soon after the incident at about 7:30 a.m. in the morning, where he lodged FIR Ex. P/1. He was sent to the hospital for his medico legal examination and treatment. Dr. V.C. Jain (PW-8) examined the victim Laxman Prasad on 29.11.1994 at PHC, Patera at about 10:30 a.m. in the morning. He found 13 injuries on his body. Out of them, 12 injuries were incised wounds, whereas one injury was on the left leg caused by hard and blunt object. He was referred for x-ray examination. Dr. O.P. Dubey (PW-11) found that the lower end of left tibia bone was broken. The police Patera after due investigation filed a charge sheet before the J.M.F.C. Hata, who committed the case to the Court of Sessions and it was transferred, and ultimately it was decided by the 3rd Additional Sessions Judge, Damoh.

The appellant abjured his guilt. He did not take any specific plea. However, some suggestions were given by the witnesses that the appellant saw the victim Laxman Prasad and his sister-in-law Ramvati in compromising position and therefore, Ramvati assaulted the victim Laxman Prasad. He was falsely implicated in the matter. However, no defence evidence was adduced by the appellant.

After considering the prosecution''s evidence, learned 3rd Additional Sessions Judge, Damon acquitted the appellant from the charges of offence punishable u/s 459 of IPC but convicted him for the offences punishable under Sections 326, 354 and 458 of IPC and sentenced him as mentioned above.

I have heard learned counsel for both the parties.

Learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter. Actually, he saw the victim Laxman Prasad [Laxmi Prasad is mentioned in the deposition sheet] and his sister-in-law Ramvati in compromising position and therefore, Ramvati assaulted the victim Laxman Prasad. However, the appellant was falsely implicated in the matter. It is also submitted that a fracture was found upon the victim Laxman Prasad, which was below the wound caused by hard and blunt object and therefore, no offence punishable u/s 326 of IPC was constituted. Secondly, it was mentioned in the FIR that such injury was caused by falling of an axe and therefore, that injury was never caused by the appellant. Under such circumstances, the appellant cannot be convicted for the offence punishable u/s 326 of IPC. Similarly, he cannot be convicted for the offence punishable u/s 458 of IPC. It is nowhere alleged against the appellant that he had done any housebreaking or he tried to enter in the house by hiding his own presence. Under such circumstances, the offence punishable u/s 458 of IPC does not constitute. Similarly, as per allegations made in the FIR, it is nowhere alleged that the appellant assaulted or used any criminal force to outrage the modesty of Ramvati and therefore, no offence punishable u/s 354 of IPC is made out. Under such circumstances, the appellant is convicted without any substantial reason. In alternate, it is submitted that the appellant had to face the trial and appeal since last 17 years, whereas he remained in the custody for 52 days, therefore, his jail sentence may be reduced to the period, which he has already undergone in the custody.

On the other hand, learned Panel Lawyer for the State has submitted that the conviction and sentence directed by the trial Court on the basis of evidence and no interference is required either to the conviction or the sentence.

For the decision of the case, the points for consideration are; (a) as to whether the appellant was the person, who caused the injuries to the victim Laxman Prasad; (b) the appellant can be convicted for the offences punishable under Sections 326, 354 or 458 of IPC and; (c) whether the sentence imposed upon the appellant can be reduced?

Laxman Prasad (PW-1) and Ramvati (PW-2) were examined as eyewitnesses and Shivram (PW-3), Ramswaroop (PW-4) and Churaman (PW-6) were examined as witnesses, who came to the spot after hearing hue and cry and they saw that the appellant was running from the spot. There was no suggestion given in the cross-examination of the witnesses Ramvati and Laxman Prasad that due to absence of any light, they could not identify the appellant. Ramvati has stated in para 5 of her cross-examination that light of the room was on, at the time of incident. Under such circumstances, there is no dispute regarding identification of the culprit. Ramvati and Laxman Prasad have stated that firstly the appellant was found inside the room and he was scolded therefore he ran away. After 11/2 hours, he came to the spot and assaulted the victim Laxman by an axe and thereafter, by a dagger. Story of the victim Laxman Prasad is dully supported by the FIR Ex. P/1, which was lodged at the earliest in the morning at Police Station, Patera. Their version is also corroborated by the MLC report Ex. P/9 proved by Dr. V.C. Jain (PW-8) and also the x-ray report Ex. P/11 proved by Dr. Dubey (PW-11). Under such circumstances, testimony of the victim Laxman Prasad can be accepted.

The appellant has taken a defence that since he saw the victim Laxman Prasad and Ramvati in a compromising position, therefore, Ramvati herself assaulted the victim Laxman. The suggestions given by the defence to the witnesses appears to be hypothetical and baseless. If, spot map Ex. P/2 prepared by Patwari Koshlendra Singh Thakur (PW-10) and spot map Ex. P/4 prepared by Head Constable Mahesh Khare (PW-12) are perused, then it would be clear that the incident took place in a open room situated after the Varanda from the main road and therefore, there was no possibility of viewing either the complainant or the witness Ramvati in compromising position from the road. It is nowhere stated by the appellant that he went inside the house to view that position. Therefore, it cannot be accepted that he saw the complainant Laxman Prasad and Ramvati in compromising position. Secondly, if he saw them in such a position then it was for Ramvati and Laxman Prasad to assault the appellant so that he could not tell about that fact to anyone. Thirdly, Ramvati being a woman could not assault her brother-in-law so much as to inflict 12 to 13 injuries by sharp cutting weapon. The witnesses Shivram and Churaman etc. had seen the appellant while he was running from the spot, which indicates that he entered in the house. No reason has been given by the appellant as to why he entered in the house of the complainant. Under such circumstances, the defence taken by the appellant is unnatural and hypothetical and therefore, it is not believable. Under such circumstances, where the statements of the complainant are duly supported by the eyewitness Ramvati and other circumstantial witnesses namely Shivram, Churaman etc and also supported by the FIR and medical report, hence it is proved beyond doubt that the appellant assaulted the victim Laxman Prasad by an axe and thereafter, by a dagger.

13 injuries were caused to the victim Laxman Prasad and out of them, one injury was caused by hard and blunt object and also a fracture was found below that injury. Under such circumstances, the offence punishable u/s 325 of IPC could be made out because a grave injury was found caused by hard and blunt object. Back of axe may be considered as a hard and blunt object. Under such circumstances, the injuries caused by sharp object are covered with the offence punishable u/s 324 of IPC and the grave injury caused by blunt object is an offence u/s 325 of IPC and therefore, the appellant could not be convicted for the offence punishable u/s 326 of IPC. Ramvati has stated that the appellant assaulted the victim Laxman Prasad by back of an axe causing an injury on the left ankle of the victim. However, in the FIR Ex. P/1, it was mentioned that the appellant firstly assaulted the victim by an axe and thereafter, by a dagger. During the change of weapons, alleged axe fell down causing an injury on the ankle of the victim. FIR was the first version of the incident and therefore, it appears that the eyewitnesses are now telling a changed version before the Court. Looking to the material contradictions and the facts mentioned in the FIR, it is clear that the appellant did not assault the victim from the back of the axe causing him a grievous injury and therefore, he was not responsible for that injury including the fracture. When injury was caused without any assault then, the appellant cannot be made liable for that injury. Under such circumstances, neither the offence punishable under Sections 326 of IPC nor the offence punishable u/s 325 of IPC is constituted against the appellant. However, he had caused 12 injuries to the victim by sharp cutting object. He assaulted the victim for so many times and therefore, he might have known the result of his act. Looking to the facts of the case, it is apparent that neither any right of private defence arose to the appellant nor any provocation was given either by the victim or by the witnesses. Under such circumstances, it is established that the appellant had caused such 12 injuries voluntarily and therefore, he has committed an offence punishable u/s 324 of IPC.

The trial Court has convicted the appellant for the offence punishable u/s 354 of IPC because the victim Laxman Prasad and the witness Ramvati have stated that the appellant snatched the hands of Ramvati with bad intention and thereafter the incident took place. However, the version of these witnesses is different from the version given in the FIR Ex. P/1. In the FIR Ex. P/1, it was mentioned that for the first time, when the complainant saw the appellant, he was sitting on the bed of the prosecutrix Ramvati and thereafter, the victim scolded him then, the appellant left the spot. Ramvati did not complain her brother-in-law that the appellant used any criminal force or assaulted her to outrage her modesty and therefore, in the FIR, there is no such allegation made against the appellant. It is mentioned in the FIR that the appellant was found on the bed of the prosecutrix Ramvati and therefore, he was scolded and thereafter he left the spot. Under such circumstances, it is a material contradiction between the evidence of the said eyewitnesses and the FIR. If the appellant snatched the hands of the prosecutrix Ramvati then such an act would have been mentioned in the FIR and therefore, it appears that the witnesses have modified their story about that fact. Under such circumstances, the evidence contrary to the FIR given by the eyewitnesses cannot be accepted. It is nowhere proved that the appellant used any criminal force or assaulted the prosecutrix Ramvati and therefore, the appellant cannot be convicted either for the offence punishable u/s 354 of IPC or an inferior offence u/s 352 of IPC.

Similarly, so far as the offence punishable u/s 458 of IPC is concerned, it was to be proved by the prosecution that the appellant had done either any housebreaking or lurking house trespass. It was stated by the eyewitnesses that there was no shutter to the door of the room and also there was no shutter to the door in that premises, in which they were sleeping. When the appellant did not knock down any door to enter in the house then, it cannot be said that the appellant has done any housebreaking. Similarly, there was no closed door from the road to enter in the house and even in that premises, where the victims were sleeping. For lurking house trespass, it is necessary for an accused to have a precaution to conceal presence during such house trespass from some persons, who has right to exclude or eject the trespasser. It is apparent from the evidence that the appellant entered in the house from a door less gate and ran away from the same gate. Under such circumstances, it cannot be said that he took any precaution to conceal his presence during that house trespass and therefore, he did not commit any lurking house trespass. Under such circumstances, where the appellant had done neither any housebreaking nor any lurking house trespass then, the appellant could not be convicted for the offence punishable u/s 458 of IPC or the lower offences of Sections 457, 456, 455, 454 and 453 of IPC. But it is established that he entered into the house with an axe that means he committed the house trespass having some preparation for causing hurt and therefore, he is liable to be convicted for the offence punishable u/s 452 of IPC.

Since the offence punishable u/s 324 of IPC is an inferior offence of the same nature to the offence punishable u/s 326 of IPC and similarly, the offence punishable u/s 452 of IPC is an inferior offence of similar nature of the offence punishable u/s 458 of IPC, therefore, the appellant may be convicted for the offence punishable u/s 324 and 452 of IPC without framing the charges for such offences. The appellant can be convicted for such offences in the head of charges of Sections 326 and 459 of IPC.

As far as the sentence is concerned, the same is to be assessed for the offence punishable u/s 324 and 452 of IPC. Learned counsel for the appellant has submitted that the appellant remained in the custody for 52 days and therefore, he may not be sent to the jail again. He has faced the trial and appeal since last 17 years and he was a young youth of 20 years of age at the time of incident and therefore, a sympathetic view may be taken with him.

Learned counsel for the appellant has placed his reliance on the judgment in the case of Manjappa Vs. State of Karnataka, wherein the sentence of the accused was reduced to the period of 45 days for the offence punishable u/s 325 of IPC subject to a direction of payment of compensation of Rs. 10,000/- to the injured. Learned counsel for the appellant has also shown the judgment passed by this Court in case of Deewan Singh Vs. State of Madhya Pradesh, in which the accused was punished for the offence punishable u/s 324 of IPC with the sentence for the period, which he had already undergone in the custody, whereas he remained in the custody for 45 days only also with enhancement of fine. In the present case, the appellant was above 18 years of age at the time of incident and therefore, he cannot be released on probation on the basis of his age. Looking to the numbers of assault caused by the appellant, it is not a fit case so that the appellant may be released on probation. It is true that the appellant remained in the custody for 52 days and he has faced the trial including the appeal for more than 17 years. However, the sentence should be given in such a manner so that a proper balance may be made looking to the gravity of the offence of the present case. The appellant assaulted the victim Laxman Prasad in a brutal manner and approximately, 12 injuries were caused to him. However, those assaults were not committed with a force. Under such circumstances, in the light of aforesaid judgments cited by learned counsel for the appellant, it would be proper to inflict the jail sentence upon the appellant for the period, which he has already undergone in the custody but a heavy fine is required to be imposed in addition.

On the basis of aforesaid discussion, the present appeal filed by the appellant is hereby partly allowed. He is acquitted from the charges of offences punishable under Sections 326, 354 and 458 of IPC but he is convicted for the offences punishable under Sections 324 and 452 of IPC. He is sentenced for both of such offences for the period, which he has already undergone in the custody. A fine of Rs. 13,000/- is imposed upon the appellant for the offence punishable u/s 324 of IPC. No separate fine is imposed for the offence punishable u/s 452 of IPC. It is further directed that said fine amount shall be deposited within two months from today before the trial Court. In default of payment of fine, the appellant shall undergo for one years'' R.I. If fine is deposited by the appellant, then a sum of Rs. 10,000/- (Rupees Ten thousand) may be given to the victim Laxman Prasad by way of compensation.

Presence of the appellant is no more required before this Court and hence, it is directed that his bail bonds etc shall stand discharged. Copy of the judgment be sent forthwith to the trial Court with its record for information and compliance.