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HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SB: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.631/1994
Munna and others.
Vs.
State of Madhya Pradesh.
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Shri Satish Chaturvedi, Advocate for the appellants.
Shri J.K.Jain, Deputy Advocate General for the State.
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Date of hearing : 21.05.2010
Date of judgment : 01.07.2010
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JUDGMENT
All the six appellants have preferred this appeal challenging
their conviction and order of sentence passed by First Additional
Sessions Judge, Raisen in ST No.128/92 decided on 15/6/1994.
2. All the appellants except appellant Munna are convicted for
offence under Sections 147, 307 read with Sections 149 and 342 of IPC
and sentenced for rigorous imprisonment of 6 months, 3 years and 3
months respectively, whereas appellant Munna has been convicted for
offence under Sections 148, 307 and 342 of IPC and sentenced to
rigorous imprisonment of 1 year, 3 years and 3 months respectively.
3. During the pendency of this appeal, appellant Prakash was
found missing since last 12 years and therefore it is presumed under
Section 108 of Evidence Act that he is no more and vide order dated
5/4/2010 his appeal has been dismissed as deemed to have been
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abated.
4. According to the prosecution, on 2/3/1991 at about 3:00 AM
in the morning, complainant Hari Narayan (PW-5) was sleeping with
his brother Kashiram (PW-6) in his field situated in the territory of
Village Mankapur. At about 3:00 AM in the morning all the appellants
and one Gambhir came to the field and took the complainant Hari
Narayan to the house of Prakash. They forced some cloth upon his
mouth to avoid shouting. In the house of Prakash, accused Prakash,
Gambhir and Prahlad held the complainant and accused Munna gave
two blows of axe over the head and back of Hari Narayan. Accused
Hakim , Sitaram and Ratiram had also assaulted him by hands.
Complainant Hari Narayan was confined in the room till the morning.
At about 12 O’clock witness Sukhram (PW-10) and Chowkidar Dammu
came to the room and contacted the complainant Hari Narayan, who
informed the entire incident to them. They took him to the Police
Station in a bullock cart. Hari Narayan lodged an FIR Ex.P-9 in Police
Station Silwani at about 4:45 PM. Police had sent the complainant for
his medical examination. Dr. S.K.Singhai in his report Ex.P-13 has
found that the complainant had four incised wounds at left parietal
region, left shoulder, left scapular region and right lumbar area. In his
opinion, injuries of scapular and left shoulder were grievous and other
injuries were simple in nature. All the injuries could be caused by sharp
cutting instrument. Station House Officer Shri Rajiv Vyas (PW-11) on
investigation had seized blood stained earth, plane earth and blood
stained pillow from the spot and prepared a seizure memo Ex.P-8.
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Similarly he had seized an axe from accused Munna from his house for
which accused Munna had given information under Section 27 of the
Evidence Act. The seized property was directed to forensic science
examination. After due investigation police filed challan (charge sheet)
before Judicial Magistrate First Class, Silwani, who committed the case
to the Sessions Court, Raisen vide order dated 8/5/1992. The Sessions
Judge, Raisen transferred the case to First Additional Sessions Judge,
Raisen. Appellants abjured the guilt and pleaded false implication.
5. The learned Additional Sessions Judge on the basis of
evidence of complainant Hari Narayan (PW-5), Kashiram (PW-6),
Hargovind (PW-7), Aman Singh (PW-8) and Sukhram (PW-10) and the
corroboration with FIR and medical report found that the appellants
had made an unlawful assembly and in furtherance of their common
object accused Munna attempted to murder the complainant Hari
Narayan. It was further found that the appellants confined
complainant Hari Narayan in the house of Prakash. Accused Munna
had deadly weapons with him and therefore learned Additional
Sessions Judge, Raisen, convicted and sentenced as mentioned in para
2 of this judgment.
6. Heard both the parties.
7. Complainant Hari Narayan (PW-5) has stated in the trial
Court that all the accused came to the field where he was sleeping with
his brother Kashiram (PW-6) and took him to the residence of accused
Prakash. In the room some of the accused has held the hands etc. of
the complainant whereas accused Munna gave 2-3 axe blows over the
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head and back of the complainant. He has also stated that accused
Hakim gave him some slaps whereas accused Sitaram kicked him by
shoes. He has further stated that he remained unconscious till 6 AM in
the morning. When Dammu came to the spot, the complainant told him
about the incident. Thereafter Dammu @ Hargovind (PW-7) brought
the witness Sukhram (PW-10) and ultimately Sukhram (PW-10) and
Hargovind (PW-7) took him to the Police Station Silwani in a bullock-
cart.
8. Witnesses Kashiram (PW-6), brother of complainant and
Aman Singh (PW-8), father of complainant, have stated that Kashiram
came in the night to inform Aman Singh that the accused took the
complainant Hari Narayan. Kashiram again reached to the spot and
saw the incident and again informed his father regarding the incident
where Aman Singh did not confirm the evidence of Kashiram that he
saw the incident. However, Aman Singh has stated that in the early
morning he went to the Police Station Silwani where he was directed to
go and search his son and ultimately he again went to the Police
Station with Chowkidar Hargovind and Sukhram, who took the
complainant Hari Narayan to the Police Station. But such statement of
Aman Singh was missing in his case diary statement Ex.D-3. It is clear
that neither Kashiram visited his house in the night nor Aman Singh
went to the Police Station Silwani in the early morning. For the sake of
argument, if it is presumed that Kashiram went to inform Aman Singh
regarding the incident, then the consequential action of Aman Singh
and Kashiram seems to be unnatural. They could visit the spot
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immediately with the help of Chowkidar Hargovind and could take the
complainant Hari Narayan to their house in the night itself, therefore
looking to the action of Kashiram and Aman Singh, their testimony is
not believable. It seems that Kashiram could not see any one at the
time when his brother was taken away from the field, because he was
sleeping. Similarly Aman Singh could not know about the incident till
he met with his son Hari Narayan on the way to Silwani.
9. In this case only eye witness remains is the complainant
Hari Narayan. Chowkidar Hargovind (PW-7) and witness Sukhram
(PW-10), cousin of the complainant were the persons who contacted
after the incident, but it is strange that none of them have stated in the
Court that Hari Narayan told anything about the incident to them.
Neither Hargovind nor Sukhram are declared hostile and their
testimony has been accepted as it is, therefore inference can be drawn
that Hari Narayan did not tell anything about the incident to Hargovind
or Sukhram. The evidence of Hari Narayan is corroborated by FIR
Ex.P-9, but it is clear from the statements of Hari Narayan, Hargovind
and Sukhram that at about 9 AM in the morning Hargovind contacted
the complainant Hari Narayan and within an hour they took him to the
Police Station Silwani. As per particulars shown in the FIR Ex.P-9 it is
clear that Village Mankapur was only 10 kms away from Silwani and
therefore complainant could reach Silwani from Mankapur by bullock-
cart within two hours, hence it was expected that the report must have
been lodged at about 12:30 PM on that day. Therefore, it is clear that
FIR is delayed by at least 4 hours and that period is sufficient to cook
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up the exaggerated story.
10. The complainant Hari Narayan claims that he was brought
unconscious to the Police Station, but his such statement is not
corroborated by the evidence of witnesses Sukhram and Hargovind. It
is clear that Sukhram and Hargovind had a talk with the complainant
Hari Narayan at the house of Prakash and therefore from that time it
will be presumed that the complainant Hari Narayan was conscious
since morning. Hari Narayan has admitted in para 8 of his statement
that he remained unconscious till 6 AM in the morning.
11. By above discussion, it is clear that FIR is delayed and it
could be cooked one. But due to delay in FIR, entire prosecution story
cannot be thrown out. It is the duty of the Court to pick up the grains
from chaff. complainant Hari Narayan has stated that he was confined
in the room of Prakash’s house. Station House Officer Shri Vijay Vyas
(PW-11) has prepared the spot map Ex.P-2 in which he has indicated
that there were some blood spots found in the room of Prakash, but his
evidence could not be corroborated by report of FSL, as no report has
been received from the FSL. Therefore, it cannot be said that spots
found by Shri Vijay Vyas (PW-11) were of human blood. On the contrary
witness Hargovind has stated that he found the complainant Hari
Narayan lying in an open room meant for keeping the cattle from
where he could go anywhere. Complainant Hari Narayan states that he
was confined in a room but in cross examination he admits that he
could talk with Sukhram and Hargovind from the place where he was
lying. If he was confined in the room, and the door was closed from the
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outside, he could not talk with Chowkidar Hargovind or his cousin
Sukhram, therefore evidence of Hargovind may be accepted that he
was lying in an open place of Prakash’s house. Therefore, there is no
case of confining the complainant Hari Narayan anywhere. The
learned Additional Sessions Judge erred in holding that the appellants
were guilty of offence under Section 342 of IPC.
12. Complainant Hari Narayan has alleged that 7 persons,
including the appellants and one Gambhir took him from his field. In
FIR Ex.P-9 he narrated the fact regarding beating by axe and holding
him by accused Prakash, Munna, Gambhir, Hakim , Sitaram and
Prahalad, but in his statement before the Court he has not stated
regarding the act of assault or holding against the accused Prakash,
Prahalad and Ratiram. FIR is not a substantial piece of evidence. It is
only a corroborative piece of evidence and therefore if the complainant
Hari Narayan does not say anything against the accused Prakash,
Prahalad and Ratiram, then they cannot be said to be part of unlawful
assembly. It is clear that the FIR is delayed by 4 hours and there was
sufficient time for the complainant Hari Narayan to cook up the story
and to involve more accused persons.
13. Complainant Hari Narayan has alleged that in the house of
Prakash, accused Munna assaulted him by axe whereas accused Hakim
slapped him and Sitaram gave a kick from the side of shoe. He has not
stated anything against remaining accused persons, whereas in F.I.R. it
is mentioned that accused Hakim , Sitaram and Ratiram have beaten
him by hands. There is nothing regarding any kick given by Sitaram,
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even in the trial Court he did not alleged anything against Sitaram
except a kick from the side of shoe. This contention is clearly after
thought looking to the version mentioned in the F.I.R. Therefore,
contention of the complainant Hari Narayan may be accepted for this
fact that the accused Munna gave four axe blows, whereas accused
Hakim slapped him. No overt-act of any other accused persons is
proved.
14. The complainant has admitted in the cross examination that
he was dragged by the accused persons from his field in dark. There
was no light of electricity available in the entire way by which he was
taken to the house of Prakash. His cousin Sukhram has accepted in his
cross examination that in the night in which incident took place there
was no electricity supply in the village and, therefore, it is clear that
the complainant Hari Narayan could not see any of the accused
persons. He could identify the accused persons with the help of their
voice. However, looking to the evidence of complainant Hari Narayan
he was assaulted by Hakim and Munna, therefore, identification of
these two accused may be accepted and identification of remaining
accused is still seems to be doubtful.
15. Learned counsel for the respondent-State has urged that the
complainant Hari Narayan was taken to the house of Prakash and,
therefore, presence of Prakash may also be accepted. But this
contention cannot be accepted in such a manner. It is true that Hari
Narayan was lying in a house of Prakash, but from the entire story as
stated by complainant Hari Narayan, witnesses Hargovind and
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Sukhram, it is clear that Sukhram and Hargovind did not meet either
Prakash or any other members of Prakash in the house. Hargovind and
Sukhram have admitted that Hari Narayan was lying in the open room
of the house where there was arrangement of keeping the cattle.
Witnesses Hargovind and Sukhram visited twice the house of Prakash
and there was no restriction in talking to Hari Narayan, who was lying
in the aforesaid room without any confinement. These circumstances
show that though Hari Narayan was taken to the house of Prakash, but
Prakash and his family members were not there in the house on that
day and, therefore, neither Hari Narayan could be taken inside the
house nor he was confined, hence there was no hesitation to Sukhram
and Hargovind in talking with the complainant Hari Narayan and
taking him away from the house. Therefore, presence of Prakash at the
time of incidence is doubtful. Hari Narayan has accepted the allegation
levelled against him that he committed rape with the sister of Prakash,
therefore, persons who have done the crime with Hari Narayan left him
in the house of Prakash just to transfer their guilt over to the accused
Prakash and his companion. However, since the appeal is deemed
abated against Prakash, it is not necessary to decide the appeal against
Prakash.
16. On the basis of aforesaid discussion, it is clear that the
complainant Hari Narayan could not be brought from his field by one
or two persons, therefore, his evidence can be accepted that there
were six persons involved in the crime. Out of them he could identify
only accused Munna and Hakim Singh, therefore, it is clear that the
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unlawful assembly was made out, but except these two accused, it is
not proved that the accused Gambhir, Sitaram and Prahlad had
participated in the unlawful assembly, therefore, except the accused
Hakim and Munna, none of other appellants could be convicted for
offence under Section 147 of IPC, therefore, the appellants except
Munna and Hakim Singh cannot be convicted for other offence with
the help of Section 149 or Section 34 of IPC, as their presence is not
proved beyond reasonable doubt.
17. Learned trial Court convicted the appellants for offence
under Section 307 of IPC. Learned counsel for the appellants before
the lower Court accepted the medical report Ex.P-13 and, therefore,
concerned Dr.S.K.Singhai could not be examined in the Court, whereas
the report Ex.P-13 is an important document for consideration of
offence under Section 307 of IPC. In the report Ex.P-13, Dr.
S.K.Singhai has mentioned that injuries No.1 and 2 were grievous
whereas remaining injuries were simple in nature. In the report
Ex.P-13, there were four injuries, which are as under:-
(i) Incised wound of size 4 ½” x ½” x bone deep on left parietal
region of scalp and there was cut mark on the skull bone.
(ii) Incised wound of size 3″ x ½” x bone deep on left shoulder.
(iii) Incised wound of size 2″ x ½” x bone deep on left scapular region
2″ blow from injury No.2.
(iv) Incised wound of size 4 ½” x ½” x muscle deep on right lumbar
area.
Looking to the injury report, it is clear that neither any vital
organ was damaged nor there was any fracture to any bone of the
complainant. It is not clear that on what basis Dr. S.K.Singhai has
mentioned that injuries No.1 and 2 were grievous. As per the
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provisions of Section 320 of I.P.C., it is clear that injuries No.1 and 2 do
not come in the category of grievous injuries, therefore, injuries of the
complainant Hari Narayan may be considered to be simple injuries.
Though axe blows were given on skull and shoulder, but looking to the
injuries, these blows were not forceful and no intention of causing
death can be attributed from the side of accused Munna.
18. Learned counsel for the appellants has placed his reliance
on the dictum led by this Court in the case of “Moolchand Vs. State
of Madhya Pradesh, 2008 (2) MPLJ (Cri) 498”, in which the
conviction was altered from Section 307 to Section 325 of IPC, because
there was one blow of stone given at the forehead of the deceased and
it was observed that intention of the appellant to cause death was not
established. In the present case, blows given by the appellant Munna
were not forceful, one blow was on vital part of the body i.e. head, but
only a simple injury is caused and, therefore, intention of killing cannot
be presumed on the basis of evidence of the complainant and medical
report prepared by Dr. S.K.Singhai.
19. On the basis of above discussion, accused persons cannot be
punished for offence under Section 307 of IPC. The overt-act as
established with the help of the prosecution evidence comes under the
category of offence under Section 324 of IPC only. The charge under
Section 324 of IPC is minor and of the same nature as of charge under
Section 307 of IPC and, therefore, under the head of charge under
Section 307 of IPC, the accused can be convicted for offence under
Section 324 of IPC without addition to any charge.
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20. On the aforesaid discussion, it is doubtful that the
appellants Ratiram, Sitaram and Prahlad were present at the time of
incidence and, therefore, they cannot be convicted for any of the
offence. It is very clear that the complainant Hari Narayan was not
confined at any place, therefore, offence under Section 342 of IPC is
not made out against any of the appellants. The overt-act of Munna
comes within the purview of Section 324 of IPC only, whereas appellant
Hakim may be convicted for offence under Section 324 of IPC with the
help of Section 149 of IPC.
21. On the basis of above discussion, appeal is allowed for
appellants Ratiram, Sitaram and Prahlad. Conviction and sentence
against these three appellants is hereby set aside. They are acquitted
from all the charges levelled against them. Their bail bonds and
sureties are discharged. The appeal of appellants Munna and Hakim
Singh is partly allowed. They are acquitted from the charges of Section
342, 307 of IPC, but their conviction for the offence punishable under
Section 148 or 147 of IPC is maintained. Accused Munna is also
convicted under Section 324 of IPC whereas the appellant Hakim Singh
is convicted under Section 324 read with Section 149 of IPC. Looking
to the facts and duration of the trial, the sentence of appellant Munna
for offence under Section 148 IPC is reduced to the sentence of 3
months’ rigorous imprisonment, whereas the sentence of appellant
Hakim Singh for offence under Section 147 IPC is reduced to the
sentence of 2 months’ rigorous imprisonment. They shall undergo for a
period of 6 months’ rigorous imprisonment for offence under Section
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324 or Section 324/149 of IPC. The custody period of these two
appellants will be adjusted in their jail sentence. All the sentences shall
run concurrently.
22. Accordingly, appeal is disposed off being partly allowed and
modification of sentence.
(N.K.Gupta)
Judge
01/07/2010.
Ansari