JUDGMENT
R.C. Mishra, J.
1. This appeal has been preferred against the judgment dated 7/5/1993 by the ASJ, Khurai, Distt. Sagar in S.T. No. 42/1992, whereby each one of the appellants stands convicted and sentenced as under:
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Name of Convicted under Sentenced
the Section
appellants
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307 read with to undergo RI for 2 years and to pay fine
Section 34 IPC of Rs. 1000/-, and in default, to suffer SI
for 3 months.
Kunjan 324 IPC to undergo RI for 2 years
Singh 450 IPC to undergo RI for 1 year
323 read with to undergo RI for 6 months.
Section 34 IPC
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307 IPC to undergo RI for 4 years and to pay fine
of Rs. 2000/-, and in default, to suffer SI
for 6 months.
326 IPC to undergo RI for 3 years and to pay fine
Harnam of Rs. 1500/-, and in default, to suffer SI
Singh for 4 months.
450 IPC to undergo RI for 1 year
323 read with to undergo RI for 6 months.
Section 34 IPC
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307 read with to undergo RI for 1 year and to pay fine of
Section 34 IPC Rs. 500/-, and in default, to suffer SI for 1
month.
326 read with to undergo RI for 2 years and to pay fine
Section 34 IPC of Rs. 500/-, and in default, to suffer SI for
Chittar 1 month.
Singh 324 read with to undergo RI for 1 year.
Section 34 IPC
450 IPC to undergo RI for 1 year.
323 read with to undergo RI for 6 months.
Section 34 IPC
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307 IPC to undergo RI for 4 years and to pay fine
of Rs. 2000/-, and in default, to suffer SI
for 6 months.
Devi Singh 324 IPC to undergo RI for 2 years
450 IPC to undergo RI for 1 year
323 read with to undergo RI for 6 months.
Section 34 IPC
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with the directions that all the sentences shall run concurrently and further that the fine amount, if recovered shall be distributed in the proportion of 1/2, 1/4 and 1/4 to Rambharat, Rambabu and Arjun respectively.
2. The prosecution story may be summarized as under:
(a) On 29.11.1991 at about 5.00 p.m., Rambharat was sleeping in his residence at village Sipur. Appellant No. 3 Chittar Singh (for short ‘A3’) woke him up by knocking at the door. As he opened the door, all the four appellants entered into the house. Appellant Nos. 1, 2 and 4 namely Kunjansingh, Harnamsingh and Devisingh (hereinafter referred to as ‘A1, A2 & A4’) were armed with axes. A3 asked Rambharat as to why he was goading his cattle to trespass on their agricultural fields. This led to scuffle during which Rambharat raised alarm. At this point of time, A2 gave an axe blow causing injury over his forehead just above the right eye; A4 also struck his head with an axe. In the mean while, Arjun (PW3) came there and prevented further assault on his son Rambharat but A1 hit him with axe resulting in an injury on left wrist.
(b) After departure of the appellants from the scene, when Arjun and his elder son Rambabu were taking Rambharat to Police Station, the appellants obstructed their way and assaulted both of them with lathies. The occurrence were witnessed by Rambabu’s wife namely Kaushalya (PW6) and also by Bati Bai (PW7), the wife of his younger brother Ramcharan.
(c) Ultimately, upon the FIR (Ex. P/5), that could be lodged at 11.50 a.m. by Rambharat, a case under Sections 452, 324, 323 and 341 read with Section 34 of the IPC was registered against the appellants. All the injured were sent to the District Hospital at Sagar, where they were examined by Dr. B.R. Agrawal (PW12). The injuries on the persons of Arjun and Rambabu were found to be simple in nature, whereas one of the incised wounds noticed on right side of Rambharat’s forehead was characterized as grievous as well as dangerous to life. Upon receipt of the medical report, the case was converted into one under Section 307 of the IPC Rambharat was therefrom admitted to the hospital for further treatment and was discharged on 07.12.1991. Although, he was twice subjected to radiological examination yet, none of the experts namely Dr. A. Kastwar (PW11) and Dr. V.K. Mishra (PW1) could notice any bony injury on his skull.
(d) ASI Dharamchand Dubey (PW8) seized bloodstained kurta from Rambharat. Rest of the investigation was done by ASI Manjeet Singh (PW10). The appellants were apprehended and respective axe was recovered at the instance of each one of A1, A2 and A4. On completion of the investigation, charge sheet was put up before the JMFC Khurai, who committed the case to the Court of Session for trial.
3. On being charged with the offences punishable under Sections 307, 450, 324 read with Section 34 and Section 323 read with Section 34 of the IPC the appellants abjured the guilt. In the examination, under Section 313 of the Cr.P.C., A2 and A4 pleaded that they were not even present on the spot at the time of alleged occurrence whereas A1 and A3 stated that injury on Rambharat’s forehead was caused by A3 by pelting a stone at the time when he was engaged in scuffle with A1. According to them, Rambharat in collusion with Dr. B.R. Agrawal (PW12), had created false evidence as to injuries.
4. To bring home the charges, the prosecution examined as many as 12 witnesses including Rambharat (PW2), Arjun (PW3), Rambabu (PW4), Kaushalya (PW6) and Bati Bai (PW7). The defence called upon three witnesses including an Orthopedist, Dr. A.K. Verma (DW3). On consideration of the entire evidence, and for the reasons recorded in the impugned judgment, the learned trial Judge believed the prosecution case and rejected the defence. Accordingly, he convicted and sentenced the appellants as indicated given above.
5. Legality and propriety of the impugned convictions have been assailed on the following grounds:
(1) In absence of corroboration from independent source, evidence of complainant Rambharat (PW2), and other injured Arjun (PW3) and Rambabu (PW4) could not be accepted particularly in view of material contradictions and improvements in their statements.
(2) Even accepting the prosecution case as presented, no offence under Section 307 was made out.
However, the learned Govt. Advocate, while making reference to various incriminating pieces of evidence, has submitted that the convictions in question are well merited.
6. Before proceeding to appreciate the merits of rival contentions, it would be profitable to advert to the medical evidence on record.
7. Dr. B.R. Agrawal (PW12) testified that on 29/11/1991 he had noticed the following injuries, as described in the report (Ex. P/23), on the person of Ram Bharat:
(1) Incised wound on right side of forehead just above the right eyebrow, obliquely placed, size 2″ x 1″ x Brain deep. Fracture of right frontal bone present. Brain tissue seen from wound. Profuse bleeding present. Margins cleancut and even.
(2) Incised wound on right parietal region of skull, size 1″ x 1/4″ x muscle deep; Direction longitudinal; Margin clean cut and even; Bleeding present.
In his opinion, the Injury No. (1) was grievous and might have proved fatal to life and both the injuries were caused by hard, sharp and cutting object within 24 hours. According to him, he not only advised X-ray examination of skull, but, taking note of poor general condition, also suggested recording of Rambharat’s dying declaration.
8. However, as pointed out already, finding of Dr. B.R. Agrawal as to existence of fracture in the right frontal bone was in conflict with a concurrent opinion of Dr. A. Kastwar (PW11) and Dr. V.K. Mishra (PW1), that was given on the basis of radiological examinations conducted on 29.11.1991 and 07.12.1991 respectively. Dr. A.K. Verma (DW3), produced in defence, also opined that no fracture in right frontal bone was discernible in the corresponding X-ray plates (Ex. P/2 & P/4). The repeat X-ray examination was done presumably in the face of a contrary opinion recorded by a private radiologist Dr. Amarnath Jain, in his report (Ex. P/8) to the effect that on 06.12.1991, he had noticed fracture with hazy frontal sinuses in Rambharat’s right frontal bone. Learned A.S.J., though, rightly rejected Dr. B.R. Agrawal’s opinion for the reasons recorded in para 8 of the impugned Judgment, yet he completely misdirected himself in holding that, in the light of the observation made by his predecessor, the injury on Rambharat’s forehead, was apparently grievous in terms of Clause 6 of Section 320 of the IPC. Before arriving at such an inconsistent conclusion by relying upon the observation made during recording of Rambharat’s evidence, that the injury on forehead had ultimately resulted in disfiguration of face, attention of Dr. B.R. Agrawal ought to have drawn thereto. The principle that the Doctor, who has examined the victim, is in a best position to depose about the medico-legal aspects of the offence committed on the victim is well settled. The learned Judge committed gross error in discarding the cumulative effect of expert evidence, indicating that the injury No. (1) (above) was simple in nature. However, the defence that the injury was caused by a stone pelted by A3 was also not probable in view of the fact that as many as two injuries were found on the parietal region of Rambharat’s skull.
9. Injuries, found on the person of Arjun Sen, were described by Dr. B.R. Agrawal as under:
(1) Incised wound – lower part of left forearm (anterior aspect), size 1″ x 1/4″ x muscle deep. Transversely placed. Margins clean cut and even. Bleeding present.
(2) Contusion – upper part of left upper arm size 3″ x 1″ anterolateral aspect.
(3) Abrasion – middle part of left forearm (dorsal aspect), size 1″ x 1/2″ x skin deep.
According to him, the injury No. (1) could be caused by hard, sharp and cutting object whereas the other injuries appeared to have been caused by hard and blunt object. As opined by him, all the aforesaid injuries were simple. However, in his cross-examination the medical expert clearly admitted that the injury No. (1) could be inflicted by Arjun himself.
10. Dr. B.R. Agrawal also proved existence of the under mentioned simple injuries caused, as per his opinion, by hard and blunt object on the body of Rambabu:
(1) Pain, swelling and tenderness on lower part of left forearm (dorsal aspect), size 3″ x 2″.
(2) Pain and tenderness on right shoulder region. Size 2″ x 1″.
(3) C/o pain and tenderness on upper part of right forearm (dorsal aspect), size 2″ x 2″.
11. Nothing could be brought in the cross-examination of Dr. B.R. Agrawal (PW12) so as to discard his expert evidence as to injuries on the bodies of Arjun and Rambabu, as described in the corresponding reports (Ex. P/26 and Ex. P/24).
12. The proof of abovementioned injuries on the person of Rambharat, Arjun and Rambabu, brings to the most crucial point for consideration as to whether each one of the appellants was, in any way, involved in the assault resulting in these injuries.
13. Rambharat (PW2) has substantially reiterated the allegations recorded in the FIR (Ex. P/5) at his instance by SI, Manjeet Singh. According to him, after awakening him at about 5 in the morning, A3 entered in to his house along with the other appellants, who were armed with axes. He further deposed that A3 was catching hold of him at the time when incised wounds on his forehead and scalp were inflicted by A2 and A4 respectively. As per his statement, hearing his cries only his father Arjun came forward to intervene but was given an axe-injury on left wrist by A1. Explaining delay of nearly 5 hours in lodging the FIR, Rambharat has stated that when he, along with Arjun and Rambabu, was proceeding towards the Police Station, appellants had assaulted his companions with lathies.
14. Assertion of Arjun (PW3) that he had witnessed the joint assault on Rambharat was not consistent with the corresponding recitals of FIR (Ex. P/5) and his case-diary statement (Ex. D/2) to the effect that he could reach the spot only after the injuries on the person of his son Rambharat had already been inflicted. Accordingly, he was not likely to see the specific role played by A2 and A4. Arjun also revealed that blood had oozed not only from Rambharat’s injuries but also from the axe injury on his left wrist, caused by A1. His elder son Rambabu (PW4) also described as to how blood flowing from Rambharat’s injuries and gushing from his mouth spread all over the courtyard. However, the Investigating Officer Manjeet Singh (PW10) did not recover any blood stained earth from the place of first occurrence viz the courtyard. Moreover, in the spot map (Ex. P/10) he also failed to indicate the second scene of incident where Arjun and Rambabu were allegedly assaulted with lathies by all the appellants. These deficiencies in the investigation provided ground to doubt the prosecution version regarding the spots of assaults on Rambharat, Arjun and Rambabu. Moreover, as admitted by Dr. B.R. Agrawal (PW12) incised injury on left wrist of Arjun could be self-inflicted. Strictly speaking, the statement of Arjun, that despite being aroused from sleep by Rambharat’s cries only, he was able to witness as to how the injuries were caused to his son was intrinsically incredible. Further, Kotwar Birju (PW5), who, admittedly, took all the injured to police station, emphatically denied existence of any bleeding injury on Arjun’s body. As Birju was not declared hostile by the prosecution, the defence could also rely on his evidence. In these circumstances, conviction of appellants No. 1, 3 and 4 from the offence under Section 324 of IPC for causing the incised wound to Arjun was not sustainable.
15. Rambabu (PW4) Kaushlya (PW6) and Batibai (PW7) were not specifically named in the FIR as the eyewitnesses to the first incident. Evidence of Kaushalya and Bati Bai is omnibus in nature. Both of them claimed to have witnessed both the incidents. However, their presence at the places of occurrence did not find mention in the statements of Rambharat, Arjun and Rambabu. It was, therefore, not possible to hold that they had the occasion to witness assault on any one of these persons.
16. Regarding the latter incident, the defence was able to elicit contradictions in the cross-examination of Rambharat, Arjun and Rambabu as to location of spot and number of lathi blows dealt by the appellants. According to Rambharat the place where the appellants assaulted Arjun and Rambabu was situated at a distance of only 2 feet from the main door of his house, whereas Rambabu clearly admitted that the said distance was 25 to 30 feet. Arjun was emphatic in stating that all the appellants inflicted in all 2 or 4 blows on him but Rambabu asserted that as many as 12 or 13 blows were given by the appellants on the person of his father whereas Rambharat’s version was to the effect that only A1 had hit his father’s arm with lathi only twice or thrice. Further, as per his admission, only A2 had dealt 2 lathi blows on Rambabu whereas Rambabu spoke about complicity of all the four appellants in the alleged assault on him comprising of 7 or 8 blows in all. Although, all of them unequivocally deposed that Kotwar Birju (PW5) was instrumental in taking them to the Police Station yet, his evidence lent support to the plea of defence. Moreover, on one hand, the prosecution failed to examine any independent witness despite the fact that the second incident had taken place in broad day light in an inhabited area and on the other, Jagbhan Singh (DW1) and Shri Ram (DW2), residing in the vicinity, came forward to substantiate the defence version.
17. These contradictions on material points were sufficient to characterize the prosecution version as to the alleged second assault by the appellants as untrue. The learned Judge, therefore, committed serious error by relying upon such untrustworthy evidence. Consequently, the conviction of the appellants for the offence under Section 323 of IPC is liable to be set-aside.
18. Coming back to the earlier incident of assault, it may be seen that even solitary statement of Rambharat (PW2) supported by a substantially consistent FIR and medical evidence was sufficient to prove that the injuries, found on his forehead and skull, were caused with axes by A2 and A4. Further, as pointed out already, the defence that these injuries were caused by a stone thrown by A3 was also inherently improbable. In this view of the matter, it was established beyond reasonable doubt that A2 and A4 were the authors of incised wounds found on the person of Rambharat. However, learned trial Judge quite oblivious of principle enshrined in Section 71 of IPC not only proceeded to convict A2 under Section 326 as well as under Section 307 of IPC but also passed separate sentences for the same overt act resulting in these injuries. Further, the injury No. (1) could also not be designated as grievous for the reasons assigned already. This apart, in absence of cogent evidence, it was also not possible to hold, with reasonable certainty that the injuries found on the body of Rambharat were inflicted inside his house.
19. Describing the backdrop leading to incident, Rambharat (PW2) clearly stated that the only grievance the appellants had against him concerned trespass by his cattle into their field. He fairly conceded that had the appellants so desired they would have killed him. In these circumstances, the axe injuries on forehead and parietal regions, though material, were not conclusive to prove intention or knowledge as contemplated under Section 307 of IPC. Accordingly, the acts of A2 and A4 for which the other appellants were constructively liable would fall under Section 324 of the IPC Pashora Singh v. State of Punjab relied on.
20. Thus, from the prosecution evidence re-appreciated above, charges for offences punishable under Sections 450, 326, 324 (for causing incised injury to Arjun) and Section 323 read with Section 34 of IPC were not proved beyond a reasonable doubt. Accordingly, they deserved acquittal of these offences. Further, on facts, learned ASJ could not have convicted them under Section 307 of IPC as the overt act of A2 and A4 constituted offence punishable under Section 324 only making other appellants jointly liable under Section 34 of IPC.
21. The appellants have already suffered imprisonment for more than 2 months. The offence as found proved against them was committed as back as on 29/11/1991. Thereafter, a period of nearly 16 years has elapsed. In these circumstances no useful purpose would be served by sending them back to jail. Taking into consideration seriousness of their acts and consequences thereof interest of justice would be met if the sentence of imprisonment is reduced to the period already undergone and amount of fine is suitably enhanced for being paid to the complainant Rambharat as compensation Ramesh v. State of U.P. referred to.
22. Consequently, the appeal is allowed in part. Conviction of appellants No. 2 and 4 namely Harnam Singh and Devi Singh under Section 307 is altered to one under Section 324 and that of other appellants No. 1 and 3 namely Kunjan Singh and Chittar Singh for the offence under Section 307 read with Section 34 of IPC is converted to one under Section 324 read with 34 of IPC and instead of consequent custodial sentences for various periods, each one of them is sentenced to imprisonment for a term already undergone by him and to pay a fine of Rs. 2500/- and in default of payment thereof to suffer simple imprisonment for a period of 3 months. The amounts of fine already deposited by each one of them shall be adjusted accordingly. The convictions for all other offences in question and consequent sentences passed against the appellants are hereby set-aside and instead they are acquitted of the remaining charges.
Appeal partly allowed.