Prem Lal and Others vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 16-12-1996 passed by Additional Sessions Judge, Baikunthpur in Sessions Trial No. 27/1991 convicting the accused/appellants under Sections 148, 307/149, 323/149 and 325/149 I.P.C. and sentencing each of them to undergo rigorous imprisonment for one year u/s. 148, rigorous imprisonment for seven years with fine of Rs. 500/- u/s 307/149, rigorous imprisonment for three years with fine of Rs. 200/- u/s 325/149 and rigorous imprisonment for one year u/s. 323/149, plus default stipulations. Facts of the case in brief are that on 24-9-1989 FIR Ex. P-1 was lodged by Hiralal (PW-3) alleging that accused party was trying to take forcible possession over their land as a result of which reports were lodged against each other and the parties were having inimical relations. It is alleged that on the date of incident when the injured party was going for weekly market, on the way near Gaze river, accused persons were present there carrying different weapons with them and all of a sudden they opened assault at the injured party as a result of which Dharam Sai (PW-1), Mangal Prasad (PW-2), Hiralal (PW-3), Jangu Ram (PW-4), Sukhram (PW-5) and Dalai (PW-8) sustained various injuries. Based on this report, offences under Sections 147, 148, 149 and 307 IPC were registered against the accused/appellants and some other accused persons. Dharam Sai (PW-1) was medically examined vide Ex. P-18-A; Mangal Prasad (PW-2) vide Ex. P-20-A; Hiralal (PW-3) vide Ex. P-22-A; Jangu Ram (PW-4) vide Ex. P-23-A; Sukhram (PW-5) vide Ex. P-19-A; and Dalai (PW-8) vide Ex. P-21-A. In the X-ray report Ex. P-28 of Dharam Sai (PW-1) fracture of fibula was there and in that of Dalai vide Ex. P-27 fracture of humorous bone was there. In respect of Hiralal (PW-3) who suffered head injury, offence u/s 307 IPC was registered against the accused persons. In respect of said Hiralal query report Ex. P-24-A was given by Dr. R.K. Rajmani (PW-13) opining that head injury of victim Hiralal was dangerous to life. After completion of investigation, charge sheet was filed against 10 accused persons for the offences under Sections 147, 148, 149 and 307 IPC. However, the Court below framed charge against them under Sections 148, 307/149, 323/149 and 325/149 IPC.

In support of its case, prosecution has examined 13 witnesses. Statements of the accused persons were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted accused Mangal Sai, Jawahar, Suduram and Kataru of all the charges levelled against them but convicted and sentenced the present appellant as mentioned above.

Counsel for the accused/appellants submits that the accused/appellants cannot be convicted with the aid of Section 149 IPC because they were less than five in number. He submits that a counter case was also registered against six persons and they were tried in Sessions Trial No. 45/1992. Lastly, he submits that the incident had taken place about 23 years back, that the relations between the parties no longer remain inimical and'' that the accused/appellants have already remained in jail for four months and therefore, if this Court is not inclined to interfere with their conviction, sentence imposed on them may be reduced to the period already undergone by them.

On the other hand supporting the judgment impugned it has been submitted by the counsel for the respondent/State that in the incident as many as six persons had suffered number of injuries some of them namely Dharam Sai (PW-1) and Dalai (PW-8) fracture and Hiralal (PW-3) head injury which according to the doctor was dangerous to life and therefore, their conviction is just and proper. He further submits that in the incident apart from the presence of four convicted persons, presence of Ram Narayan (deceased-accused) is also established by the prosecution and thus their conviction with the aid of Section 149 IPC is also just and proper. State counsel drew the attention of this Court to paragraph No. 11 of the impugned judgment.

Heard counsel for the parties and perused the material available on record.

Injured Dharam Sai (PW-1) has stated that he knew all the accused/appellants. Complainant Hiralal (PW-3) is his real brother and that on the date of incident when alongwith other injured persons he was going to market, near Gaze river accused/appellants who were hiding themselves carrying various weapons with them, they started beating them as a result of which they fell down and on hearing their cries his father Dalai (PW-8) and Hiralal (PW-3) came to their rescue and then accused persons assaulted them also. In cross examination, this witness remained firm to what he has stated in his examination-in-chief. Mangal Prasad (PW-2)--another injured has also made the similar statement as of Dharam Sai (PW-1) and described the manner in which he was assaulted by the accused persons. Hiralal (PW-3), Janguram (PW-4), Sukhram (PW-5) and Dalai (PW-8) are also the injured persons who have also described the manner in which they were assaulted by the accused persons. Kasturi Bai (PW-6) is the witness to seizure of blood stained clothes of the victims made under Ex. P-2 to P-5. Ramlal (PW-7) is the witness to memorandum Ex. P-6 and seizure made under Ex P-7 who has not supported the case of the prosecution and has been declared hostile. Baijnath Dubey (PW-9) is the Patwari who prepared spot map Ex. P-7. Manilal (PW-10)--the eyewitness to the incident has described the manner in which the incident had taken place. He has stated that accused/appellants assaulted the injured persons. Hiralal s/o Durjan Ram (PW-11) is the witness to seizure made under Ex. P-9 and P-10. S.K. Singh (PW-12) is the investigating officer who has duly supported the case of the prosecution. Dr. R.K. Rajmani (PW-13) is the witness who had medically examined the victims and found following injuries on their body:

Injuries sustained by Dharm Sai (PW-1) vide Ex. P-18-A

Lacerated wound 1" x 1/2" on anterior aspect of left leg below knee

Tenderness on right thigh

Bruise 1" x 1/2" on right upper arm

Bruise 2" x 1" on left upper arm

Lacerated wound 1" x 1/2" x 1/2" on middle portion of scalp

Lacerated wound 1" x 1/2" x 1/2" up to bone on posterior aspect of scalp

Bruise 2" x 1" on right scapular region

All the injuries are simple in nature and has been caused by some hard and blunt object

Injuries sustained by Sukhram (PW-5) vide Ex. P-19-A

Lacerated wound on the forehead of size 2" x 1/2" x 1/2"

Bruise 2" x 2" on dorsal aspect of left arm

Bruise 1" x 1/2" transversely of right upper arm

Bruise 3" x 1/2" on lower portion of right scapula

Injuries sustained fry Manglu (PW-2) vide Ex, P-20-A

Lacerated wound on the back of scalp 2" x 1/2" x 1/2"

Lacerated wound 1" x 1/2" x 1/4" on lower portion of right leg

Abrasion 2" x 1/2" on chest

Abrasion 2" x 1/2" on lower portion of right scapula

Injuries sustained by Dalal (PW-8) vide Ex. P-21-A

Bruise 1" x 1" on left knee

Tenderness & swelling on right forearm seems to be fracture of humorous bone

Bruise 2" x 1/2" on left scapula

Bruise 2" x 1" on back at the right scapular region

Injuries sustained by Hiralal (PW-3) vide Ex. P-22-A

Lacerated wound on the scalp at the middle portion size 3" x 1/2" up to bone

Lacerated wound on back portion of scalp size 2" x 1/2" up to bone

Bruise 2" x 2" on left forearm at the outer surface at middle portion

Injuries sustained by Janguram (PW-4) vide Ex. P-23-A

Lacerated wound 2" x 1" x 1/2" on left side of forehead

Bruise 3" x 1" on back of chest

Bruise 2" x 1" on leg.

In respect of victim Hiralal (PW-3), this witness has stated that injury sustained by him was dangerous to life and he gave his query report Ex. P-24-A. He has also proved dying declaration (now it should be read as statement) of Hiralal vide Ex. P-26-A. He has also proved the X-ray report of victim Dalai vide Ex. P-27 according to which fracture of right humorous bone was found. This witness has proved the X-ray report of Dharam Sai vide Ex. P-28 according to which fracture of fibula was found.

Minute examination of the evidence of the witnesses makes it clear that on 24-9-1989 accused/appellants assaulted Dharam Sai (PW-1), Mangal Prasad (PW-2), Hiralal (PW-3), Janguram (PW-4), Sukhram (PW-5) and Dalai (PW-8) by means of sharp edged deadly weapons. In the incident, injured Dharam Sai (PW-1) suffered fracture of fibula vide Ex. P-28 and Dalai (PW-8) suffered fracture of right humorous bone vide Ex. P-27. Likewise, injuries sustained by Hiralal (PW-3) were dangerous to life vide query report Ex. P-24-A. Thus considering the statements of the injured persons and the medical reports, this Court is of the considered opinion that conviction of the accused/appellants as is described above is just and proper and there is no infirmity in the findings recorded by the Court below. This Court finds no force in the argument of the counsel for the accused/appellants that accused/appellants cannot be convicted under Sections 148 and 149 IPC as they were only four in number. From the record it is clear that as many as nine accused persons were tried before the Court below and the presence of accused/appellants has been duly proved by the prosecution including that of Ramayana--the deceased/accused. Thus conviction part of the judgment impugned is hereby maintained.

As regards sentence, considering the fact that the incident had taken place in the year 1989, and by now the accused/appellants must be in their middle age, this Court is of the considered opinion that it would be just and proper to reduce the sentence to two years from that of seven years u/s 307/149 and one year from three years u/s 325/149 IPC. This Court however is not inclined to interfere with the sentence of rigorous imprisonment for one year u/s 148 and 323/149 IPC Order accordingly. Needless to say that the accused/appellants would be entitled for the benefit of set off and remission under the law.