Top Singh vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 5.2.1999 passed by the learned First Additional Sessions Judge, Waraseoni, District Balaghat in S.T.No. 60/1994, whereby the appellant was convicted for offence punishable u/s 307 of IPC and sentenced for 3 years'' rigorous imprisonment with fine of Rs. 200/-. In default of payment of fine, one month''s rigorous imprisonment was also directed. Prosecution''s case, in short, is that, on 13.10.1993, at about 6 p.m. in the evening, the victim Jeevan Singh was coming from his field to his house situated at village Chandpuri (Police Station Lalbarra, District Balaghat). When he passed in front of the house of the appellant, the appellant came with an axe and abused the victim Jeevan. Thereafter, he assaulted the victim Jeevan by an axe, so that the victim sustained an injury on his head and some other injuries on other parts of his body. The victim Jeevan ran for his life but, the accused Deep Singh threw him on the Earth and held him. Thereafter, Deep Singh assaulted the victim Jeevan by fists. The victim Jeevan went to his house and informed the story to his brother Chain Singh and thereafter, he was taken to the Police Station Lalbarra, where he lodged the FIR, Ex.P/1. The victim was sent to the hospital for his medico legal examination and treatment. Dr.P.K.Vaidhya (P.W.1) has examined the victim at Primary Health Center, Lalbarra and gave a report, Ex.P/2. He found one incised wound on the head of the victim, which was bony deep and 2 abrasions, one on left elbow and second on left knee. He was referred for his radiological examination and treatment. After due investigation, a charge-sheet was filed before the JMFC, Waraseoni who committed the case to the Sessions Court, Balaghat and ultimately, it was transferred to the First Additional Sessions Judge, Waraseoni.

The appellant abjured his guilt. He did not take any specific plea in the case and no defence evidence was adduced.

After considering the evidence adduced by the prosecution, the learned First Additional Sessions Judge, Waraseoni has acquitted the accused Deep Singh but, convicted the appellant for the offence punishable u/s 307 of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned Senior counsel for the appellant has submitted that only one blow was given by the appellant and the injury sustained by the victim was neither fatal nor grave. Under such circumstances, no offence u/s 307 of IPC shall be constituted against the appellant. At the most offence punishable u/s 324 of IPC may be constituted. The appellant remained in the custody for approximately 2 months during the trial and thereafter, he is in the custody at present. He was the first offender, who faced the trial and appeal for the last 16 years approximately. Under such circumstances, his sentence may be reduced to the period, which he has already undergone in the custody. However, some fine amount may be enhanced.

On the other hand, learned Panel Lawyer for the State has submitted that the conviction and sentenced directed by the trial Court appears to be correct.

After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the appellant can be convicted for the offence punishable u/s 307 of IPC? And whether the sentenced passed against the appellant can be reduced?

Looking to the evidence given by the victim Jeevan (P.W.1) and other eye witnesses and also the evidence given by Dr. Vaidhya (P.W.2), it appears that the victim sustained the abrasions because he was thrown on the Earth by the accused Deep Singh, whereas he sustained one incised wound on his head due to assault caused by the appellant. Initially, Dr. Vaidhya observed that the victim was complaining about vomiting the weakness. However, his blood pressure was not low and his pulse was also normal. He was in a shock but, no grave injury was found in the x-ray report. Under such circumstances, it is apparent that it was not a case of brain haemorrhage. Due to the assault caused by the appellant Top Singh neither any bone was cut nor any fatal injury was caused to the victim Jeevan. Under such circumstances, it could be said that the victim sustained a simple injury due to assault caused by the appellant. The appellant has assaulted for only once. Under such circumstances, looking to the overt-act of the appellant and the nature of injury caused to the victim, it appears that the appellant was never intended to kill the victim and therefore, his assault was not so forceful. In the circumstances, where the appellant assaulted the victim for once and the victim sustained neither grave nor fatal injury then, it could not be said that the appellant tried to kill the victim and therefore, the trial Court has erred in convicting the appellant for the offence punishable u/s 307 of IPC.

On the perusal of the evidence adduced by the prosecution, it appears that the appellant suddenly assaulted the victim. No any sudden or grave provocation was given by the victim. No any right of private defence was accrued to the appellant. The appellant had an axe and he assaulted the victim by that weapon and therefore, he should know the result of that assault. Under such circumstances, it is clear that the appellant had voluntarily caused hurt to the victim by a sharp cutting weapon like an axe and therefore, he is guilty for the offence punishable u/s 324 of IPC. Under such circumstances, conviction directed against the appellant can be reduced for the offence punishable u/s 324 of IPC.

So far as the sentence is concerned, it is true that the appellant was the first offender, who faced the trial and appeal for the last 16 years. He remained in the custody for 2 months during the trial and again now he is in the custody at present. After considering such circumstances, where the appellant was the first offender, it would be proper that his jail sentence may be turned into a sentence of fine. Hence, his jail sentence can be reduced to the period, which he has already undergone in the custody with imposition of some heavy fine.

On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction and sentence passed by the trial Court for the offence punishable u/s 307 of IPC is hereby set aside but, the appellant is convicted for the offence punishable u/s 324 of IPC and sentenced for the period, which he has already undergone in the custody along with a fine of Rs. 10, 000/-. In default of payment of fine, he shall undergo for 6 months rigorous imprisonment. If fine is deposited then, a sum of Rs. 7, 000/-be provided to the victim Jeevan Singh S/o Saktu, R/o Village Chandpuri, Police Station Lalbarra, District Balaghat by way of a compensation.

Registry is directed to issue a supersession warrant accordingly, so that the appellant be released from the jail, if he deposits the entire fine amount. Copy of the judgment be sent to the trial Court with its record for information and compliance.