Shankar Lal and Others vs State of Madhya Pradesh

N.K. Gupta, J.—The appellants have preferred the present appeal being aggrieved with judgment dated 12.4.1996 passed by the 3rd Additional Sessions Judge, Rewa in S.T. No. 122/89, whereby the appellants have been convicted of offences under Sections 307/34 of the IPC and sentenced for five years R.I. with fine of Rs. 2,000/-. In default of payment of fine, additional R.I. for one year.

Facts of the case in short are that on 11.3.1989, the complainant Ramji Tiwari (PW-4) resident of village Kakarha (Police Station Sohagi, District Rewa) was going towards Khalihan from his field then, the appellants and other co-accused persons wrongly restrained him in the way and they also picked up the crop of grain. When the complainant Ramji Tiwari prohibited them to do so, they assaulted him by kicks and fists and also by Lathis (sticks) and Gandasa. Ramji Tiwari had lodged an FIR at Police Station, Sohagi at about 2:45 p.m. He was sent for his medico legal examination. Dr. Ramesh Kumar Mishra (PW-3) examined the victim at PHC Teonthar and gave his report Ex.P/4. He found as many as nine injuries to the victim. Out of them, two incised wounds were found on mid of the head and right knee, whereas blunt injuries were found at two places on head, right back, right scapula region, left scapula region, buttocks and on left leg. The complainant was in semiconscious position therefore, Dr. Ramesh Kumar Mishra found that the injuries were fatal in nature. After due investigation, the charge sheet was filed before the JMFC Teonthar, who committed the case to the Court of Sessions and ultimately, it was transferred to the 3rd Additional Sessions Judge, Rewa.

The appellants abjured their guilt. They did not take any specific plea in defence but they have stated that they were falsely implicated in the matter and therefore, one defence witness Ramashankar Singh (DW-1) was examined to show that incident took place in the early morning and due to darkness, the victim could not identify any of the culprit.

The 3rd Additional Sessions Judge after considering the evidence adduced by the parties, acquitted other accused persons but convicted the appellants of the offence under Sections 307/34 of the IPC and sentenced as mentioned above.

Initially, the appellants were attending the office of this Court but after sometime, nobody was appearing for them. The present criminal appeal was of the year 1996 and therefore, Shri G.S. Thakur, whose name in the panel of High Court Legal Services Authority and who has a good experience in criminal cases, was appointed to argue the matter on behalf of the appellants. Thereafter, I have heard the learned counsel for the parties.

During pendency of this appeal, the appellant no. 3 Paras Nath had expired and therefore, his name was deleted from the cause title of memo of appeal. Hence, the appeal filed by the appellant No. 3 Paras Nath has turned abated.

In the present matter, Ramsurat Tiwari (PW-2), Ramji Tiwari (PW-4), Durgaprasad (PW-5), Ramsajeevan (PW-6), Ramroop Tiwari (PW-7) and Munnilal (PW-8) were examined as eyewitnesses. Out of them, Ramsurat Tiwari (PW-2) and Munnilal (PW-8) have totally turned hostile, whereas Durgaprasad (PW-5) and Ramsajeevan (PW-6) have stated that when they reached the spot, the complainant Ramji Tiwari (PW-4) was lying on the ground and there was none else present. However, Ramji Tiwari (PW-4) and Ramroop Tiwari (PW-7) have stated that the appellants assaulted the victim Ramji Tiwari. The appellant Sangam Lal and Shankar Lal had Katmasa and Gandasa, whereas Shiv Shankar Prasad had a stick with him. They assaulted the victim Ramji Tiwari by such weapons. The witness Ramroop Tiwari is brother of the victim Ramji Tiwari, who claimed that he was present at the spot and saw the incident. However, if he was present at the spot then, he must have intervened in the quarrel to save his brother and he would have sustained the injuries. When he was asked such question then, he told that the appellants warned him, not to intervene in the incident. However, no such statement was given in his case diary statement Ex.D/2. If brother of the complainant was present then, his name must have been mentioned in the FIR Ex.P/1. However, the complainant had mentioned the name of Ramsajeevan and Durgaprasad, who reached at the spot on his shouting but he did not mention the name of Ramroop Tiwari in the FIR as eyewitness. It appears that Ramroop Tiwari was not an eyewitness of the incident but he has given his statement as eyewitness because he was brother of the complainant. However, it was not established that Ramroop Tiwari (PW-7) was present at the spot at the time of incident and therefore, his evidence cannot be believed.

The complainant Ramji Tiwari had stated about the incident in detailed. He had lodged the FIR with some delay. He was in semiconscious position and therefore, in taking him to the police station, which was 40 kms. away, sufficient time was required therefore, it cannot be said that FIR was delayed. Ramashankar Singh (DW-1) had stated that when he reached the spot, the complainant Ramji Tiwari told him that he could not see the actual culprits due to darkness. However, if time of the incident is perused in the FIR then, it was mentioned to be 6:00 a.m. in the morning and incident took place in the month of March. Hence, at about 6:00 a.m. there should be a sufficient light and therefore, the complainant could have seen the culprits but no such suggestion was given to the complainant Ramji Tiwari that he could not see the culprits due to darkness and therefore, it appears that the witness Ramashankar Singh (DW-1) is a created witness to support the defence of the appellants created after examination of the complainant.

Dr. Ramesh Kumar Mishra (PW-3) has proved the MLC report Ex.P/4 and shown that the victim had sustained two injuries caused by sharp cutting weapon and seven injuries caused by blunt objects. There is a little contradiction between the statement of the complainant Ramji Tiwari and FIR relating to the weapons kept by various accused persons specially about the appellant Sangamlal. However, Ramji Tiwari has clearly mentioned in the FIR Ex.P/1 that the appellant Shankar Lal assaulted him by a Gandasa causing injuries on his head and also on his right knee. Before the trial Court, Ramji Tiwari had stated in para 2 that the appellant Shankar Lal assaulted him with a Gandasa causing injuries on his head and knee. Hence, there is no material contradiction relating to the over act of the appellant Shankar Lal. The contradiction arose as to whether the appellant Sangam Lal had a Katmasa or not. Dr. Ramesh Kumar Mishra (PW-3) found only two injuries caused by the sharp cutting weapon and according to the Ramji Tiwari, such injuries were caused by the appellant Shankar Lal. Therefore, when the incident was old and the complainant was examined after five years of the incident, such minor contradiction relating to the weapon held by the appellant Sangam Lal could arise but it makes no difference. Under such circumstances, the testimony of Ramji Tiwari, which is duly supported by the FIR Ex.P/1 and the medical report Ex.P/4 proved by Dr. Ramesh Kumar Mishra, is believable. It is proved beyond doubt that the appellants Sangamlal and Shankar Prasad had assaulted him by hard and blunt objects.

It is apparent that according to the allegation made by the complainant Ramji Tiwari, the appellants were aggressors. They did not have any right of private defence in their favour. It is not alleged by the appellants that they assaulted the victim due to sudden or grave provocation. The victim sustained as many as nine injuries in the incident, whereas after causing the first injury, everyone could know the result of such assault and therefore, it is established that the appellants assaulted the victim having knowledge of the effect of first assault, without any right of private defence or sudden or grave provocation and therefore, it is established that they had voluntarily caused hurt to the complainant Ramji Tiwari, whereas the appellant Shankar Lal used a sharp cutting weapon in causing the injuries.

The main contention of learned counsel for the appellants is that, no offence under Section 307 of the IPC is made out against the appellants. It is true that the complainant Ramji Tiwari did not sustain any grave or fatal injury. He has received three blows on his head but by the impact of those blows, no fracture was caused to him and hence, all the three blows were given on his head without any substantial force. Dr. Mishra (PW-3) could not show any symptom of brain haemorrhage to the victim. It is shown that he was semiconscious at that time when he was examined but, that was not due to assault caused to him, since he was taken to the hospital after a longer period of approximately 11 hours therefore due to loss of blood, such position arose. However, the impact caused by the appellants was not so powerful so that brain haemorrhage or fracture on the head would have caused to the victim. Hence, neither the victim sustained any fatal or grave injury nor any forceful blow was given by them on vital part of the body of the victim to show that they intended to kill the victim Ramji Tiwari. Hence, the present case do not fall within the purview of Section 300 of the IPC and therefore, no offence under Section 307 of the IPC is made out against the appellants.

On the basis of aforesaid discussion, the offence under Section 324 of the IPC is made out against the appellant Shankar Lal, whereas the offences under Sections 324/34 and 323 of the IPC are made out against the remaining appellants. The appellants can be convicted of the offence under Sections 324 or 324/34 of the IPC under the head of charge under Section 307 of the IPC and therefore, the conviction of the appellants can be reduced upto that extent accordingly.

So far as the sentence is concerned, the appellants were the first offenders and the incident was not a planned one. The appellants had faced the trial and appeal for last 25 years and according to the records, it appears that they remained in the custody for approximately 7-10 days during the pendency of the appeal. Under such circumstances, it would not be proper to send the appellants to the jail again.

On the basis of aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Their conviction and sentence of offences under Sections 307/34 of the IPC are hereby set aside. They are acquitted from the charges of offence under Sections 307 or 307/34 of the IPC. However, under the same head of the charge, the appellant Shankar Lal is convicted of the offence under Section 324 of the IPC and remaining appellants are convicted of offence under Sections 324/34 of the IPC and sentenced to the period for which they remained in the custody alongwith the fine of Rs. 5,000/- upon each of the appellants. The fine will be deposited before the trial Court within two months from today. In default of payment of fine, each of the appellant shall undergo for six months R.I.

Copy of the judgment be sent to the trial Court immediately alongwith its record for information with the direction that fine be recovered or default sentence be executed according to the Provision of Section 68 of the IPC.