Visheshwar and others vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is filed by the appellants being aggrieved by the judgment dated 28/2/1997 passed by the First Additional Sessions Judge, Chhindwara in ST No. 212/1995, whereby the appellants were convicted and sentenced as under:-

All the sentences were directed to run concurrently.

The prosecution''s case, in short, is that on 10.6.1995 the complainant Vachchhala Bai (PW-1) was present in the Village Aajangaon to attend the marriage ceremony of her younger sister. At about 7:00 PM in the evening the complainant Vachchhala Bai (PW-1), her husband Ram Prasad (PW-2) and her son Ashok Kumar (PW-3) went to the house of Ramdas (PW-10) to take some tea etc. The appellants came with sticks and axes in their hands and started assaulting the victims. The appellant Visheshwar assaulted the complainant Vachchhala Bai with a stick on her head and thereafter the appellants assaulted Vachchhala Bai, Ram Prasad, Ashok Kumar, Tulsa Bai (PW-6), Motiram (PW-4) and so many persons. Vachchhala Bai had lodged an FIR Ex.P-1 at Police Station Pandhurna soon after the incident. The various injured persons were sent to the hospital for their medico legal examination and treatment. Dr. Yogesh Gadekar (PW-11) examined the victims Vachchhala Bai, Ram Prasad, Ashok Kumar, Devrao, Motiram, Shriram and Tulsa Bai and gave his reports Ex.P-26A, Ex.P-27A, Ex.P-28A, Ex.P-24A, Ex.P-25A, Ex.P-34A and Ex.P-35A respectively. He found simple injuries to these persons, but he referred the victim Tulsa Bai for Radiological examination. Dr. D. Moitra (PW-12) examined the victim Tulsa Bai Radiologically and gave his report Ex.P-37. He found a fracture of 5th meta carpal in the left hand of Tulsa Bai. After due investigation, a charge sheet was filed before the ACJM Sausar, who committed the case to the Sessions Court, Chhindwara and ultimately it was transferred to the First Additional Sessions Judge, Chhindwara.

The appellants-accused abjured their guilt. They took a specific plea that actually a quarrel was initiated by the complainant and her companions. They sustained injuries due to scuffling, whereas appellants Visheshwar Diwakar and Prakash sustained injuries in the incident. In defence Pramila Bai (DW-1) and Jibbal (DW-2) were examined.

The learned First Additional Sessions Judge, Chhindwara after considering the evidence adduced by the parties convicted the appellants for commission of offence punishable under Sections 147, 148, 325/149 and 323 of IPC and sentenced the appellants as mentioned above.

The appellants Diwakar and Prakash have expired during the pendency of this appeal, and therefore their names were deleted from the array of the appellants.

I have heard the learned counsel for the parties.

The learned counsel for the appellants has submitted that actually it was a case of free fight, therefore the appellants could not be convicted for any offence. In the alternate, it is submitted that the appellants remained in the custody for 15 days and the victim Tulsa Bai sustained a fracture of very small bone. Technically it is a case which comes u/s 325 of IPC. The appellants have faced the trial and appeal since last 17 years, and therefore they may not be sent to the jail again.

On the other hand, the learned counsel appearing on behalf of the State has supported the impugned judgment and has submitted that the Court below has not committed any illegality in convicting and sentencing the appellants-accused, therefore no interference is warranted from the side of this Court.

After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be allowed? And whether the sentence directed against the appellants can be reduced?

In the present case, Vachchhala Bai (PW-1), Ram Prasad (PW-2), Ashok Kumar (PW-3), Motiram (PW-4), Tulsa Bai (PW-6), Devrao (PW-7) and Ramdas (PW-10) were examined as eye-witnesses. Out of them, almost all are injured witnesses. Their injuries were proved by Dr. Yogesh Gadekar (PW-11). He proved the injuries of at least seven persons. They sustained simple injuries, whereas Dr. D. Moitra (PW-12) proved that the victim Tulsa Bai sustained a fracture of 5th meta carpal in her left hand. Under such circumstances, the testimony of the witnesses along with timely lodged FIR Ex.P-1 appears to be believable. So many injured persons could not be injured unless the appellants would have participated in the crime. There are specific allegations made by the various victims against the various appellants, and therefore it is apparent that each of them had participated in the crime, hence they assaulted the various victims, where the victim Tulsa Bai sustained one grievous injury. The defence taken by the appellants was that a quarrel took place because Tulsa Bai was not permitting Pramila Bai (DW-1) to take water from the public hand pump, and therefore the complaint was made to the appellant Visheshwar, who was the Ward Member. On the date of incident, Tulsa Bai had insisted to take water first, because she required more water due to her guests gathered for the marriage ceremony, and therefore appellant Visheshwar told the victim Tulsa Bai about the complaint, then Tulsa Bai abused him and thereafter she went with her relatives and assaulted Visheshwar and Heeralal etc. In this connection, the injuries of the Visheshwar, Diwakar and Prakash were proved by the reports Ex.D-8, Ex.D-9 and Ex.D-10.

It is nowhere established that a counter case was registered against the victims of this case. It is a cardinal principle that counter cases are to be tried simultaneously, but the evidence of one case cannot be read into another case, and therefore it was for the appellants to prove the FIR lodged by them against the victims and to connect the injuries caused to the appellants Visheshwar, Prakash and Diwakar. However, it is nowhere connected that the injuries caused to Visheshwar etc. were caused in the same incident, and therefore there was no need to explain the injuries of these three persons by the victims. Pramila Bai (DW-1) has appeared as a defence witness, but she could not prove any FIR lodged by herself even. It is possible that she appeared before the Court to prove a new version. There is no any case diary statement of Pramila Bai is available on record, and therefore it is possible that she told a new story to save the appellants. Under such circumstances, no FIR was proved by the appellants lodged by them, hence the defence story could not be established.

If it is accepted that the victims were assaulted by the appellants in defence, then looking at the number of the injured persons from the side of the victims and looking at the number of the injured persons from the side of the appellants, it appears that the appellants were the assailants and they injured as many as seven persons in all, whereas only three appellants sustained some injuries. The appellants could get injuries in reaction, and therefore by such injuries, it cannot be said that the victims were the aggressors. No right of private defence is established. Under such circumstances, looking at the evidence given by the various victims, timely lodged FIR and injury reports proved by Dr. Yogesh Gadekar (PW-11), it is apparent that the appellants assaulted the various victims with hard and blunt object causing injuries to the various victims and grave injury caused to the victim Tulsa Bai. As many as eight persons were injured in such a crime, and therefore it is apparent that the unlawful assembly was constituted and they assaulted the victims in furtherance of their common object. However, the offence u/s 148 of IPC is a grave offence of similar nature as of offence u/s 147 of IPC, and therefore there was no need to convict the appellants for the offence u/s 147 of IPC separately. However, the trial Court has rightly convicted the appellants for commission of offence punishable under Sections 148, 325/149 and 323 of IPC.

So far as the sentence is concerned, it is true that the appellants were the first offender. The incident took place in a spur of moment. It was not a pre-planned crime done by them, otherwise the victims had sustained more grievous injuries. The appellants have faced the trial and appeal for last 17 years and each of them remained in the custody for 14 days. Under such circumstances, it would not be proper to send them to the jail again. Looking to their overt-acts and the aforesaid circumstances, it would be proper that their jail sentence may be reduced to the period which they have already undergone in the custody.

On the basis of the aforesaid discussion, the appeal filed by the present appellants can be partly allowed. Consequently, it is hereby partly allowed. The conviction directed by the trial Court vide judgment dated 28.2.1997 for the offence punishable under Sections 147, 148, 325/149, 323 of IPC is hereby maintained, but the sentence is reduced to the period which they have already undergone in the custody. In addition, fine of Rs. 4000/- is imposed upon the appellants for the offence u/s 325/149 of IPC, in default of payment of fine, each of them shall undergo for six months'' rigorous imprisonment, whereas a fine of Rs. 1,000/- is imposed upon the appellants for the offence u/s 323 of IPC, in default of payment of fine, each of them shall undergo for three months'' rigorous imprisonment. No fine is imposed for the remaining offences. The appellants are directed to deposit the fine amount before the trial Court within a period of two months from today.

The appellants are on bail. Their presence is no more required before this Court, and therefore it is directed that their bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court with its record for information and compliance.