Rameshchandra and Others vs State of Madhya Pradesh

Hon''ble Shri A.K. Sharma, J.—Appellants have filed this appeal against the judgment dt. 6.3.1997 passed in S.T. No. 133/1995 by learned Ivth Additional Sessions Judge Dewas, whereby appellant Sunil and Gulab have been convicted for the offence punishable u/s 307 and 323/34 of IPC and appellant Ramesh and Prakash have been convicted for the offence punishable u/s 307/34 of IPC and Section 323/34 of IPC and sentenced to undergo RI for 10 years for the offence punishable u/s 307/34 of IPC and fine of Rs. 2,500/-each has been imposed upon appellant Gulab and Sunil and fine of Rs. 2,000/-has been imposed upon appellant Prakash and Ramesh. Appellants have been sentenced to undergo RI for 6 months and fine Rs. 2,500/- each for the offence punishable u/s 323/34 of IPC with default stipulation. Appellant Rameshchandra has died during pendency of this appeal The brief facts of the case are that, on 27.12.1994 at about 1 pm complainant Shantilal attended the meeting of Muncipal Election, while he was going back with Rajesh on Motorcycle, it is alleged that appellants came armed with Sword, Falia and Sticks. Appellant Gulab inflicted Sword blow on the neck of Rajesh and Sunil inflicted blow of Falia on the head of Rajesh. When Shantilal tried to catch Sunil, Prakash inflicted Stick blow on his hand. On report of complainant, case has been registered and challan has been filed against the appellants and learned Trial Court after trial of the appellants for the offence punishable u/s 148,307,323 and 149 of IPC convicted them as mentioned in para 1 of the impugned judgment and acquitted them for the charges punishable u/s 148 and co-accused Govind has been acquitted in absence of any evidence against him.

Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that the learned Trial Court has failed to appreciate the evidence and considered the fact that no grievous injury has been caused to the victim.

The main question for consideration in this appeal is that, whether learned Trial Court is justified in convicting the appellants by impugned judgment.

Learned Counsel for the appellant has drawn attention towards the statement of complainant Shantilal PW-1 in which he has stated that Sunil Gawli has inflicted Falia blow on the head of Rajesh and thereafter appellant Gulab inflicted Sword blow on the neck of Rajesh.

Learned Counsel for the appellant has further drawn attention towards the statement of Rajesh PW-2 who in his statement has stated that all the accused persons started beating him, therefore, he fell down and became unconscious. In cross-examination, he has stated that at the time of giving statement to the Police he told that Govind and Prakash were having Sword with them. He cannot tell the reason if such statement is not there in his Police statement Ex.D/2. He also has told Police that Prakash and Govind also have beaten him but this statement is also missing from his Police statement Ex.D/2.

Learned Counsel for the appellant has submitted that Dr. G.K.Chauhan PW-13 has admitted that on 4.4.1995 SHO made a query regarding nature of injuries sustained by Rajesh. He has given written answer Ex.P/13. According to Ex.P/13, one of the injuries sustained by Rajesh was grievous in nature and gave further opinion that injuries may be dangerous to life. Learned Counsel for the appellant has submitted that there is no definite opinion that injury sustained by any of the victim was dangerous to life. The doctor who immediately treated the victims has not given opinion that injury sustained by Rajesh was dangerous to life.

Learned Counsel for the appellant has cited judgment of this Court in the matter of Babloo alias Sujeet Vs. The State of Madhya Pradesh, in which it has been held that if the contents of doctors report are not proved and doctor not knowing anything regarding nature of injuries and accused has not been given opportunity for cross-examination, such report cannot be relied upon. It is further held that if no grievous hurt has been established then, sentence of one year and two months undergone by the appellant is sufficient punishment when accused is only a lad of 20 years.

Learned Counsel for the appellant has also cited judgment of this Court in the matter of Kamdeo Vs. State of M.P., in which it has been held that if it was not treated within time, the same could have caused death of the victim but in support of this opinion, no reliable reasons were stated by him. By holding this injury as dangerous or grievous in nature, the appellant is found guilty only u/s 324 instead of Section 307 of IPC. Appellant is acquitted from the charges u/s 307 of IPC instead he is held guilty u/s 324 of IPC.

Learned Counsel for the appellant has submitted that Dr. G.K. Chauhan PW-13 has not given any opinion regarding nature of injury in his report Ex.P/11. Further he has not given opinion that injury sustained by the victim was dangerous to life. There is no evidence that victim sustained grievous injury on head as Radiologist has not been examined.

Considering the facts, in absence of any opinion, regarding the fact that injury sustained by victim was dangerous to life, appellant cannot be held guilty for the offence punishable u/s 307 of IPC. Considering the judgments cited by learned Counsel for the appellants, they can be held guilty only for the offence punishable u/s 324 of IPC for causing injury to victim Rajesh and for offence punishable u/s 323/34 of IPC for causing injury to Shantilal. Appellant Gulab has been in custody from 20.2.1995 to 24.2.1995 and appellant Prakash has been in custody from 4.1.1995 to 13.1.1995. Appellant Sunil has been in custody from 4.1.1995 to 13.1.1995. Appellants are facing the trial since the year 1994 and they are first offenders, therefore, sentence already undergone by them is sufficient to meet the ends of justice after considering the long term of litigation.

Therefore, appeal is partly allowed. The conviction of the appellants for the offence punishable u/s 307, 307/34 of IPC is set-aside instead appellants are convicted for the offence punishable u/s 324/34 and 323/34 of IPC and their sentence is reduced to already undergone. The fine amount imposed upon the appellants for the offence punishable u/s 307 of IPC shall be treated as fine amount for the offence punishable u/s 324/34 of IPC. Fine amount has already been deposited by the appellants in the learned Trial Court. Bail bonds of appellants are discharged.