State of Madhya Pradesh vs Ramuji

(1) The State has preferred the present appeal against the judgment dated 19th July, 2005 passed by the Sessions Judge, Morena (M.P.) in Sessions Trial No.123/2003, whereby the respondent Ramuji has been acquitted from the charges of Sections 148, 307 / 149, 326 / 149, 325 / 149 and 294 of IPC.

(2) Prosecution''s case, in short, is that on 27/09/2002 at about 04:15 pm the complainant Gouri Shankar (PW2) had lodged an FIR Ex.P2 at Police Station Kotwali, Morena that on that day at about 01:30 pm he along-with his brother Jagdish (PW4) was working at their field. Suddenly, the complainant Gouri Shankar heard the sound of fire and he saw the various accused persons who were eight in number and armed with various weapons like spear, axe, firearm, sickle and lathis. Munshi gave a blow of axe to the victim Jagdish causing injury on his left calf. The respondent Ramuji assaulted the victim Jagdish with a spear causing injury on his right calf. Various accused persons

assaulted the victim Jagdish with various weapons. On instigation of the wife of Ramuji, Ramuji obtained a sickle from his wife and cut nose and both the ears of the victim Jagdish with the pretext now the victim Jagdish is disfigured. Thereafter, when witnesses Basudev (PW3) Ramraj (PW9) and Parmanand (DW2) came to the spot the accused persons left the spot. The victim Jagdish was taken to District Hospital, Morena with a motor vehicle and he was admitted. Thereafter, the complainant Gouri Shankar lodged the FIR. The police sent a formal requisition to record the medico-legal report of the victim Jagdish. Dr.SC Agrawal (PW7) recorded the medical report of the victim Jagdish as Ex.P7. He found as many as eleven injuries; out of them various injuries were found on nose and ears including various wounds on right leg, caused by sharp cutting weapons and remaining injuries were caused by hard and blunt object. The victim Jagdish was referred for X-ray examination and he was also admitted in the Hospital of Gwalior in Department of Orthopedic Surgery.

(3) SHO CR Meena went to the spot. He picked up the bloodstained and plain soil from the spot and an empty cartridge of mouser gun and prepared a seizure memo Ex.P4. He prepared a spot map Ex.P3. He recovered the clothes of victim Jagdish Sharma which were bloodstained with a recovery memo Ex.P5. Various accused persons were arrested and one firearm was recovered from the accused Mukesh along-with two rounds of mouser gun. Also, cut nose and ears were recovered from the accused Mukesh. After due investigation, the charge-sheet was filed before the JMFC, Jaura who committed the case to the Court of Session.

(4) The respondent Ramuji and other accused abjured their guilt. They took a plea that they were falsely implicated in the matter. In defence, Santosh (DW1) and Parmanand (DW2) were examined.

(5) After considering the evidence adduced by the parties, the trial Court acquitted the various accused persons including the respondent Ramuji.

(6) We have heard the learned counsel for the parties.

(7) In the present matter, first of all, medical evidence should be considered so that it may be observed as to whether any offence under Section 307, 326 or 325 of IPC is constituted or not? Dr.SC Agrawal (PW7) examined the victim Jagdish and gave his report Ex.P7. He found the following injuries to the victim Jagdish:-

''''(1) Incised wound over lower 1/3rd nose. Piece of (lower 1/3rd) nose cut. Piece not found. 4 X 3 cm x ? cm Ala of both nose absent cartilage with soft tissue cut (tip of nose both Ala of nose cartilage cut) bleeding ++ margins sharp clean. X-ray Nose LAT Advised.

(2) Incised wound Right external ear cut from base ? pieces cut, cut piece not found 6x1x 1cm bleeding. X-Ray Right Ear Advised.

(3) Incised wound left external ear cut from base mast of external ear cut, cut piece not found. 7x1x1cm bleeding. X-ray left ear advised.

(4) Incised wound left leg 2?x? cm x bone deep. Bleeding. X-ray left leg Advised.

(5) Incised wound 4x1/2cm x bone deep right leg. Middle 1/3rd. Clotted blood seen. Bleeding.

(6) Lacerated wound 1x? x1/2 cm on lower 1/3rd portion of right leg.

(7) Lacerated wound 1x? x? cm upper part of right leg X-ray right leg full length advised.

(8) Lacerated wound 1x? x1/2 cm left hand.

(9) Contusion 4x2 cm right arm.

(10) Abrasion 2x1 cm right elbow.

(11) Lacerated would ? x ? x ? cm right thigh''''

According to Dr. SC Agrawal, the injuries found on nose, ears and both the legs were caused by sharp cutting weapons whereas remaining injuries were found to be caused by hard and blunt object. According to him, the injuries no.1, 2 and 3 which were on nose and ears were grave in nature. It is apparent that when the victim Jagdish (PW4) was examined before the trial Court, the trial Court has observed that nose and both the ears were found slightly cut and when it is noticed by the Court then it would be apparent that a dis-figuration was caused to the victim Jagdish of such injuries. Hence, by the aforesaid three injuries, it is proved that the victim Jagdish sustained grievous injuries caused by sharp cutting weapons and offence under Section 326 of IPC was constituted against some of the culprits.

(8) Dr.Yogendra Singh (PW1) examined the victim Jagdish radio-logically and gave a report Ex.P1. He took X-ray of nasal bone, right side of head, both the legs and right thigh but a spiral fracture of left tibia bone was found. That fracture relates to wound no.4 which was caused by sharp cutting weapon. Hence, by that X-ray report, it is also proved that due to injury of left leg caused to the victim Jagdish offence under Section 326 of IPC is made out. The leg is not a vital part of the body and, therefore, such injury cannot be said to be fatal. Similarly, Dr. SC Agrawal did not find any of the injuries to be fatal in nature. Various injuries were found on the vital parts of the body like nose and ears but below such injuries neither any fracture nor any otherwise fatal injury was found. Hence, though the victim

Jagdish sustained eleven injuries but it cannot be said that the culprits had any intention to kill him. If the culprits had intended to kill him, they would have assaulted him with sharp cutting weapons on his chest, back or the head. However, various assaults were done on the hands and legs. Under these circumstances, no culprit had intended to kill the victim Jagdish. Hence, the trial Court has rightly acquitted the accused persons from the charge of Section 307 of IPC.

(9) At present, the matter is to be dealt with only for respondent Ramuji, because all other accused were acquitted by the trial Court and no leave to file appeal was granted against them. In this connection, the complainant Gouri Shankar (PW2) injured witness Jagdish (PW4), eye-witness Basudev (PW3) etc. were examined. Ramraj (PW9) whose name was in the FIR was examined from the side of prosecution whereas Santosh (DW1) and Parmanand (DW2) who were examined from the side of defence having their names in the FIR but all the three witnesses did not support the prosecution story. They did not claim to be eye-witnesses. They simply said that they had heard about the incident.

(10) If evidence of eye-witness Gouri Shankar (PW2), Basudev (PW3) and Jagdish (PW4) is considered then the victim Jagdish has stated that his nose and ears were cut by Ramuji taking a sickle from his wife. According to him, Ramuji assaulted him with a spear caused injury on right scapula region. The complainant Gouri Shankar (PW2) has stated that Ramuji assaulted the victim Jagdish with a spear causing injury on right leg and, thereafter, he took a sickle from his wife and cut nose and ears of the victim Jagdish. Gouri Shankar had lodged an FIR Ex.P2 in which the similar overt act of the respondent Ramuji was mentioned. Basudev (PW3) has also stated in a similar manner.

If evidence of these witnesses is examined according to medical report, then it would be apparent that the allegations made by these witnesses relating to assault done by spear are contrary. According to victim Jagdish, he got injury of spear on his scapula region whereas according to remaining injuries he sustained such injuries on his left calf. However, Dr.SC Agrawal(PW7) did not find any punctured wound either on left calf or on scapula region and, therefore, it cannot be said that the respondent Ramuji assaulted the victim Jagdish with a spear causing any injury.

(11) However, all the three witnesses are united on the allegation that the respondent Ramuji took a sickle from his wife and cut ears and nose of the victim Jagdish. Evidence of these witnesses is duly corroborated by the timely lodged FIR Ex.P.2. According to FIR Ex.P2 the incident took place at 1:30 pm whereas the FIR was lodged at 4:15 pm but the place of incident was 20 kilometers away from the police station. Gouri Shankar (PW2) has clearly mentioned that first of all he took the victim to the hospital and thereafter, he went to the police station. According to MLC report Ex.P7, the victim Jagdish was examined by Dr. SC Agrawal at about 3:00 pm and, therefore, within one and half hours the victim was taken to the hospital and he was examined by Dr. SC Agrawal. After such formalities, the complainant Gouri Shankar went to Police Station Kotwali, Morena and lodged FIR. Hence, FIR is lodged within time and it has a corroborative value in the matter. Similarly, the statements of various witnesses are confirmed by Dr. SC Agrawal (PW7) that he found nose and ears of the victim Jagdish to be cut though those were not cut completely.

(12) The learned counsel for the respondent has submitted that the witness Gouri Shankar(PW2) was the interested witness

and, therefore, his testimony cannot be relied upon. In this connection, the judgment passed by the Apex Court in the case of '''' State of Punjab vs. Jit Singh '''' [1994 AIR (SC) 549] is referred, in which it is held that while considering the evidence of interested witness it has to be tested in the light of the probabilities, previous statements and surrounding circumstances whether it is acceptable or not. In the present case, the injured witness Jagdish got his support from the timely lodged FIR and medical evidence. Hence, it cannot be said that evidence of interested witness Gouri Shankar cannot be accepted. The same argument can be dealt with for the injured witness Jagdish.

(13) On the basis of aforesaid discussion, it is proved beyond doubt that the respondent Ramuji was the person who cut the nose and ears of the victim Jagdish causing his dis-figuration and, therefore, a grave injury was caused to the victim Jagdish according to the provision of Section 320(6) of IPC i.e. permanent dis-figuration of the face. According to witness Jagdish, the accused persons were cutting road and since Jagdish prohibited them to do so, the quarrel started. Hence, there is no allegation from the side of the respondent Ramuji that he had any right of private defence. Defence witnesses Macintosh (DW1) and Parmanand (DW2) had no much evidentiary value as they have stated that nothing had happened before them. When they claimed that they did not see any incident then by their evidence no doubt is created in the prosecution story. The respondent Ramuji did not claim any right of private defence. No counter- FIR etc. was lodged. If the victim Jagdish prohibited the respondent Ramuji and others not to cut the road then by such saying no sudden or grave provocation was caused to the respondent Ramuji. Hence, in the light of the

provision under Section 39 of the IPC, it is proved beyond doubt that the respondent Ramuji had voluntarily caused grievous hurt to the victim Jagdish and hence, he is liable for the offence under Section 326 of IPC.

(14) Though offence under Section 307 of IPC was not made out the respondent Ramuji cannot be convicted of offence under Section 307 of IPC. Also since all the accused persons were not convicted and no appeal is pending against the remaining accused persons, it cannot be said that five or more than five persons had participated in the crime and therefore, in absence of any unlawful assembly the respondent Ramuji cannot be convicted of offence under Section 148 of IPC.

(15) It is not stated by the victim Jagdish that the respondent Ramuji hurled any obscene word before him. Similarly, no other eyewitness has mentioned such a fact that the respondent Ramuji uttered any obscene word at the open place and, therefore, the trial Court has rightly acquitted the respondent Ramuji from the charge of Section 294 of IPC.

(16) On the basis of aforesaid discussion, though the respondent Ramuji was properly acquitted from various charges but the trial Court has committed an error in acquitting the respondent Ramuji from the charge of Section 326 of IPC. It is the settled view of the Apex Court in the case of '''' Tota Singh vs. State of Punjab '''' [AIR 1987 SC 1083] that if the appellate Court has a second view and appreciation of evidence done by the trial Court is appropriate, then no interference should be done in appeal against the judgment of acquittal. However, in the present case, the trial Court has discarded the evidence of eye- witnesses which was duly supported by FIR as well as the medical evidence and it is not a matter of second view but it is apparent that the trial Court has committed a miscarriage of

justice in acquitting the respondent Ramuji from the charge of Section 326 of IPC and therefore, it would be appropriate for this Court to reverse the judgment of the trial Court and to convict the respondent Ramuji of offence under Section 326 of IPC.

(17) So far as the sentence is concerned, though the respondent Ramuji was the first offender but the crime which has been committed, is punishable by life imprisonment and, therefore, he is not entitled to get the benefit of Probation of Offenders Act . The respondent Ramuji has caused a dis- figuration to the victim Jagdish and he has to live such life for the remaining period of his life. Hence, the offence committed by the respondent Ramuji is grave and, therefore, appropriate sentence is to be passed against him. After considering facts and circumstances of the case, it would be appropriate to impose two years'' rigorous imprisonment with fine. However, the respondent Ramuji remained in the custody from the date 17/10/2002 up-to 15/12/2004, hence he be punished with the sentence equivalent to his custody period.

(18) In the result, the appeal filed by the State is hereby partly allowed. The respondent Ramuji is convicted of offence under Section 326 of IPC and he is sentenced to jail sentence of the period for which he remained in the custody during trial. Also a fine of Rs.10,000/- is imposed. In default of payment of fine, he shall undergo for additional rigorous imprisonment of one year. The respondent is directed to deposit the fine amount before the trial Court within two months from today. If the fine is deposited, then a sum of Rs.10,000/- be given to the victim Jagdish son of Laxminarayan Sharma, resident of village Kumheri, Police Station Bagchin, District Morena by way of compensation.

(19) The respondent Ramuji is on bail. His bail bonds shall stand discharged, when he deposits the fine amount.

(20) A copy of this judgment be also sent to the Court below along-with its record for information and compliance. The fine shall be recovered according to the provisions of Section 68 of IPC.