1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
CRIMINAL APPEAL NO. 2320/2006
Ram Sevak and 13 others
Versus
The State of Madhya Pradesh
For the appellants : Shri Amit Jain, Advocate
no.1,2,4 & 11
For the appellants : Shri Jafar Khan
no. 3 to 10 and
12 to 14
For State : Shri Yogesh Dhande, Penal Lawyer
PRESENT:
HON'BLE SHRI JUSTICE G.S.SOLANKI
Date of hearing:10/02/2011
Date of Judgment:11/02/2011
JUDGMENT
The appellants have preferred this appeal against
the impugned judgment dated 29/11/2006 passed by Third
Additional Sessions Judge, Sagar in S.T. No. 192/2005,
whereby the appellants have been convicted u/s 325/149
of IPC and sentenced to RI for four years and fine of Rs.
5,000/- (each) with default stipulations and u/s 323/149 of
IPC and sentenced to RI for six months (each) and
appellants no.1,2,3,4,6,8,11,12,13 & 14 additionally
convicted u/s 147 and sentenced to RI for six months and
fine of Rs. 1,000/-(each) with default stipulations. The
appellants no.5, 7,9, & 10 additionally convicted u/s 148 of
IPC and sentenced to RI for one year and fine of Rs.
1,000/-(each) with default stipulations.
2. Being aggrieved the appellants filed this criminal
appeal u/s 374(2) of the Code of Criminal Procedure.
3. The facts of the prosecution case in short are that on
27/03/2005 at about 12’00 O’clock complainant Durga
Prasad (PW-6) went to village Gadholi alongwith
Veerendra (PW-2), Sumer and Shivraj. They were going
towards the village from the house of Man Singh. Accused
Gangaram having Katrana, Raja Sahay having Tabal Raja
having iron rod, Mehtab having Lathi, Nandram having
Lathi, Badan having Farsha, Ramswaroop having Lathi,
Ram sevak s/o Hallu having Lathi, Leeladhar having Lathi,
Ghanshyam having Lathi, Ramsahay having Rod, Khuman
having Lathi and Shivdayal having Lathi came there and
accused Gangaram told that Durga Prasad made his son,
Sarpanch.
4. Due to the rivalry from Sarpanch election Gangaram
assaulted by katarna to Durga Prasad (PW-6) but same
was stucked to Virendra PW-2. Second blow of Katarna
was made on the foot of Durga Prasad. Accused Ram
Prasad assaulted complainant by Tabal. Appellant Badan
assaulted Veerendra, therefore, complainant Durga
Prasad-PW-6, Veerendra PW-2 and Sumer, Gaya Prasad
received injuries on the hue and cry and assuming that
Viredndra had been died. Accused persons ran away from
the spot. Complainant Badri Prasad lodged report Ext-1
at police station Gopalganj District Sagar injured and
persons were sent for medical examination. They were
examined by Dr. B.R. Agrawal (PW-4). Appellants were
arrested and after usual investigation they were charge
sheeted before trial Court.
5. The trial Court framed the charges u/s 147, 148,
307/149, 323/149, 325/149. The appellant/accused
abjured the guilt and pleaded false implication.
6. On perusal of evidence on record the trial Court
acquitted the appellant/accused u/s 307/149 of IPC.
However, they have been convicted and sentenced as
mentioned herein above.
7. Learned Counsel for appellant submitted that trial
court committed error in not appreciating the evidence on
record, in its proper perspective. He further submitted
that trial Court held all appellants guilty u/s 325/149 of
IPC. He further submitted that the trial court failed to see
the fact that incident was occurred in village and initially
there was only four appellants at the time of incident and
afterward on hue and cry other appellants were
assembled there, therefore there was no unlawful
assembly, whom committed the offence in furtherance of
their common object. He further submitted that
appellants Gangaram, Badan, Ramsahay s/o-Suraj Singh
and Ram Sahay s/o.-Paran Singh were remained in
custody more than 11 months and others also remained in
custody not less than 5 months, therefore, in the event of
conviction they may be convicted for jail sentence already
undergone and fine.
8. Learned counsel for state justified and supported
the judgment and finding of the trial Court.
9. I have perused the impugned judgment, evidence
and other material on record. Complainant Badri Prasad
PW-1 admitted in para 8 of his cross examination that
primarily appellant Gangaram, Mehtab, Raja and Badan
were assembled and appellant Gangaram absued Durga
Prasad and assaulted him by Katarna which was strucked
to the Veerendra PW-2. Durga Prasad PW-6 in para 8 of
his cross examination admitted that he and other injured
persons proceeded with appellants/accused and all of
were singing song of Holi (Fag). He further admitted that
all accused persons were not came together in beginning
but they were assembled afterward.
10. By careful screening of aforementioned statement of
complainant and injured persons, it is clear on record that
primarily complainant and accused persons were singing
song of Holi (Fag) and thereafter Gangaram, Mehtab, Raja
and Badan all four were came together and assaulted
complainant and other persons and thereafter other
accused persons came with their weapon of offence and
assaulted the complainant party.
11. It is clear from aforementioned evidence on record
that primarily there was no unlawful assembly and trial
Court failed to appreciate these facts on record, therefore
the finding of the trial Court in regard to unlawful
assembly and offence committed in furtherance of
common object of the assembly is not sustainable in the
eye of law, therefore, these findings is liable to be set
aside.
12. In aforementioned circumstances we have to assess
the individual liability of appellants/accused persons.
13. Complainant Badri Prasad PW-1 deposed that
appellant/accused Gangaram assaulted Durga Prasad by
Katarna but same Katarna was hit to the Virendra PW-2
but this fact was not supported by Durga Prasad and
Veerendra himself. However, Veerendra deposed that
when Gangaram assaulted Durga Prasad he came to
rescue and appellant Badan assaulted him by Farsha on
his head.
14. Dr. B.R. Agrawal (PW-4) examined the Veerendra
PW-2 and found a lacerated would measuring 3″ x 1″,
bonedeep and he was advised for x-ray.
15. Dr. Ganesh Diwakar PW-5 deposed that he examined
injured Virendra and took x-ray and found limier fracture
in frontal part of the head. X-ray report is Ext-P-10.
16. Durga Prasad deposed that appellant/accused
Gangaram assaulted him by Katarna on his left leg.
However, Dr. B.R. Agrawal (PW-4) found lacertaed wound
on left leg place and Dr. Ganesh Diwarkar PW-5 found
communated fracture on tibia bone of left leg. He further
deposed that Khuman has assaulted by Lathi on his
fingers. Dr. Ganesh Diwakar PW-5 found a fracture on 4th
and 5th metacarpal bone of left hand, his X-ray report is
Ext-P-11.
17. In these circumstances Virednra PW-2 received
fracture on his head which was caused by Badan
appellant/accused.
18. Durga Prasad Pw-6 received fracture on Tibia bone
of his left leg which was caused by appellant/accused
Gangaram and fracture on metacarpal bone of Durga
Prasad was caused by accused/appellant Khuman.
19. In these circumstances accused Badan Gangaram
and Khuman are liable tobe convicted u/s 325. Other
appellant/accused persons who were came on spot
afterward having their respective weapon of offence.
According to Dr. B.R. Agrawal injuries on the body of
Badri Prasad was of simple in nature and caused by hard
and blunt object, therefore, all other appellant/ accused
persons are guilty of offence
u/s 323 of IPC.
20. In these circumstances, the trial Court committed
the illegality in not appreciating the evidence on record in
its proper perspective. Thus, the appeal is partly allowed.
The appellants Badan, Raja & RamSahay S/o.-Suraj Singh
are acquitted to the charges u/s 148 of IPC. The
appellants Ram Sevak, Laxmi, Leeladhar, Mehtab,
Ghanshyam, Khuman, Nandram, Ramsahay s/o.- Paran
Singh and Ramswaroop are acquitted to the charges u/s
147. All appellants are acquitted to the charges u/s
325/149, 323/149 of IPC. Instead appellants Badan,
Gangaram and Khuman are convicted u/s 325 of IPC and
all other appellants are convicted u/s 323 of IPC.
21. Considering the facts and circumstances of the case
in which incident was took place on the spur of moment
and appellants were in jail the appellant Badan 11 months
and 21 days, Gangaram 10 months and 21 days, appellant
Khuman about 4 months, if they are convicted for jail
sentence to period already undergone and fine of Rs.
2,500/- (each) then in the ends of Justice would be met
out. All other appellants were in jail some are more than
six months like Ramsevak, Nadram, Ramsahay and all
other are not less than four months.
22. In these circumstances appellants Ramsevak, Shiv
Dayal, Laxmi, Raja, Leeladhar, Mehtab, Ramsahay s/o
Suraj, Ramsahay s/o-Paran Singh, Nandram, Ramswaroop,
Ghanshyam are convicted for the offence u/s 323 of IPC
and sentenced to the jail sentence already undergone and
fine of Rs. 1,000/- (each) their ends of Justice would be
met out.
23. All the appellants are on bail, their bail bond and
security bond stands discharged, if fine amount already
deposited, set off will be given by the Trial Court.
(G.S.SOLANKI)
Judge