Madhya Pradesh High CourtKalyan Singh vs The State Of Madhya Pradesh Judgement ... on 21 November, 2013Bench:A.K. Shrivastava,Vimla Jain1                   Cr.A. No. 1773/13

     HIGH COURT OF MADHYA PRADESH JABALPUR

     DIVISION BENCH:
          Hon'ble Shri Justice A.K. Shrivastava &
          Hon'ble Smt. Justice Vimla Jain


             CRIMINAL APPEAL NO. 1773/2013

APPELLANTS : 1.      Kalyan Singh S/o Shri Aman Singh
                     Chadhar

                2.   Aman Chadhar, S/o Ram Singh Chadhar

                3.   Ganpat, S/o Aman Chadhar

                4.   Rammu alias Ramesh, S/o Aman
                     Chadhar

                     All residents of Village Bamhori Subedar,
                     P.S. Sultanganj, District Raisen, M.P.

                                Versus


RESPONDENT:          State of Madhya Pradesh through Station
                     House Officer, Police Station Sultanganj,
                     District Raisen, M.P.


Shri Sharad Verma, learned counsel for the appellants.

Shri Pramod Chourasiya,         Public   Prosecutor      for   the
respondent/State.


                      JUDGMENT(21.11.2013)

Per Justice A.K. Shrivastava:Feeling aggrieved by the judgment of conviction and

order of sentence dated 11.07.2013 passed by learned Additional

Sessions Judge, Begumganj, District Raisen in Sessions Trial2                    Cr.A. No. 1773/13No. 70/2010 convicting the appellants under Sections 302/34,

325/34 and also underSection 325/34IPC and thereby

sentencing them to suffer rigorous imprisonment for life, 4 years

RI and 4 years RI respectively and further imposing the fine with

default stipulations as mentioned in the impugned judgment, the

appellants/accused have knocked the doors of this Court by

preferring this appeal underSection 374(2)of the Code of

Criminal Procedure, 19732.          No exhaustive statements of fact are required to be

narrated for the purpose of disposal of this appeal since in

elaboration they are mentioned in para 3 of the impugned

judgment. However, for ready reference, it would be condign to

mention here that in the open field the incident had occurred in

which as per the case of prosecution one Har Kishan (hereinafter

referred to as the deceased) had died on account of wielding

lathi blows by the present appellants. It is the further case of the

prosecution that these accused persons also wielded lathi blows

upon injured Smt. Kamla and Sukun Bai. Initially a case was

registered underSection 307/34IPC by police station Sultanganj,

District Raisen against the appellants. However, on account of

death of the deceased the offence was registered underSections

307,302and325read with 34IPC.3                       Cr.A. No. 1773/133.         After the investigation was over a charge sheet was

submitted in the Committal Court which committed the case to

the Court of Session where the appellants were tried. The

learned Trial Judge on the basis of the averments made in the

charge-sheet framed charges punishable underSections 302and325/34IPC   (two   counts)   against   all    the    accused

persons/appellants. Needless to say, the charges were denied by

the appellants and they requested for the trial. In order to bring

home the charges, the prosecution examined as many as 15

witnesses and also placed Ex. P/1 to P/32 the documents on

record. The defence of the appellants is of false implication and

the same defence they set-forth in their statement recorded

underSection 313Cr.P.C. However, in support of their defence,

they did not choose to examine any witnesses.4.         The learned Trial Judge on the basis of the evidence

placed on record came to hold that all the accused persons

committed the offence punishable underSection 302/34IPC.

Further the learned Trial Judge came to hold that they have

caused grievous injuries to Smt. Kamla Bai (PW-2) and Ku.

Sakun Bai (PW-3) and thus committed the offence underSection

325/34and eventually convicted the appellants and passed the

sentence which we have mentioned hereinabove.4                    Cr.A. No. 1773/135.          In this manner, this appeal has been filed by the

appellants assailing the judgment of conviction and order of

sentence.6.          The contention of Shri Verma, learned counsel for the

appellants is that the eye witnesses are the interested witnesses

and the learned Trial Court erred in placing reliance upon their

testimony. An alternative submission has also been put forth by

learned counsel that as per prosecution's own case all the

accused persons wielded lathi upon the hands, back and legs of

the deceased, but, no injury was inflicted on any vital part of the

body like head and abdomen region. Learned counsel further

submits that during the course of wielding lathi, if one blow of

lathi was landed on the rib region of the deceased since there

was no intention to kill him, at the most the case would rest underSection 325/34IPC and if that is the position since all the

accused persons are in jail for near about three years and nine

months, that would be the appropriate punishment for them.7.          On the other hand, Shri Chourasiya, learned public

prosecutor argued in support of the impugned judgment and

submitted that learned Trial Judge has assigned cogent reasons

holding that appellants have committed the offence underSection 302/34IPC and looking to the injuries sustained by Smt.

Kamla Bai (PW-2) and Ku. Sakun Bai (PW-3) they have rightly5                    Cr.A. No. 1773/13been convicted underSection 325/34IPC and hence it has been

prayed that this appeal be dismissed.8.         Having heard learned counsel for the parties, we are

of the considered view that this appeal deserves to be allowed in

part.9.         So far as the contention of learned counsel for the

appellants that the evidence of eye witnesses namely Smt.

Kamla Bai (PW-2) and Ku. Sakun Bai (PW-3) that they are not

reliable is concerned, we do not find any merit in the submission

because both these ladies are not only the eye witnesses but

they are the injured also because the genesis of occurrence

started when the accused persons/appellants started wielding

lathis upon them.10.        On bare perusal of the testimony of Smt. Kamla Bai

(PW-2) who is the wife of the deceased and who is also the

author of the FIR Ex. P/3, it is gathered that the incident had

occurred in the field when her daughter Ku. Sakun Bai (PW-3)

was uprooting the unwanted grass from the field where the wheat

was sown. On that field, there is one temporary structure Dhabua

in which deceased was taking rest. Adjoining to her field, the field

of accused persons is situated. According to this witness, indeed

the accused persons have encroached upon the government

land. It has also been deposed by her that all the accused6                    Cr.A. No. 1773/13persons were making a temporary 'maidh' (mound) upon her

agricultural land and when she requested them not to do so, all

the accused persons started wielding lathi upon her. On seeing

this, her daughter Ku. Sakun Bai (PW-3) screamed and was

calling her father deceased Har Kishan. However, before

deceased Har Kishan could reach there all the accused persons

by leaving this witness, rushed towards her daughter Sakun Bai

(PW-3) and started giving lathi blows to her. Thereafter they went

to the temporary structure (Dhabua) where all the accused

persons started causing injuries to the deceased by lathi.

According to this witness, the lathi blows were dealt on the

hands, back and legs and also on the chest of the deceased.

After wielding the lathi blows upon the deceased, all the accused

persons ran away from the place of occurrence. This witness has

also proved the FIR (Ex. P/3). She has also deposed that

deceased could not survive and died after 8 hours of the incident

i.e. 4.1.2010 and the dead body was brought to the hospital. This

witness was also cross-examined at length but nothing has been

carved out in order to hold that her testimony was not reliable.11.        We have examined the testimony of this witness from

different angles and by paying heed upon her cross-examination

we find her evidence is clear, cogent and trustworthy and the

learned Trial Court did not err in placing reliance upon the7                       Cr.A. No. 1773/13testimony of this witness.12.          The testimony of author of the FIR/injured Smt. Kamla

Bai (PW-2) has been corroborated by the evidence of another

injured witness Ku. Sakun Bai (PW-3) who, in the same manner

has deposed the entire episode occurred before her. Hence, we

are of the considered view that both these eye witnesses are

quite reliable and rightly they have been relied by learned Trial

Court. We may further add that if the eye witnesses are the

injured   witnesses,     certainly    their   testimony    carries    great

weightage.13.          The testimony of the aforesaid eye witnesses is

further corroborated by the evidence of MLC Doctor R.K. Wlem

(PW-6) who found as many as 10 injuries on the person of the

deceased and they are mentioned in the postmortem report Ex.

P/24. For ready reference, it would be condign to reproduce

those injuries which are thus:-(1)   A Bruise 5 cm x 2 cm Rt side of the
                        forehead

                  (2)   A Bruise 9 cm x 4 cm Rt side of the
                        chest middle part frontal region

                  (3)   Multiple Bruise 3 cm x 1 ½ cm to 5
                        cm x 2 cm lateral side of left arm.(4)   An abrasion with Bruise 6 cm x 2 cm
                        upper part of Lt shoulder.(5)   A Bruise 5cm x 3 cm Lt. Wrist ext
                        surface.8                   Cr.A. No. 1773/13(6)   A Bruise 7 cm x 3 cm Lt thigh frontal
                       part upper.(7)   A Bruise 8 cm x 4cm Lt leg middle
                       part Back side.(8)   A Bruise 4 cm x 3 cm Rt wrist Ext.surface

                 (9)   Multiple Bruise 3 cm x 2 cm to 5 cm x
                       2 cm on Rt Arm Lateral

                 (10)Multiple Bruise 5 cm x 3cm x8
                       cmx3cm Back upper part"On bare perusal of the postmortem report we find that all the

injuries were caused by hard and blunt object and except injury

no.1 and 2, all the injuries were caused by lathi upon the hands,

legs and thighs of the deceased.14.        True, one lacerated wound has been found on the

right side of the chest and on internal examination of the dead

body, 6th and 7th ribs were found to be fractured. But, according to

us, while wielding lathi to the deceased, one of the blow must

have landed on his chest and on forehead resulting into the

fracture of the ribs. According to us, since the incident was

occurred all of a sudden on the point of making 'maidh' and

further that except injury no.2 all the injuries were not caused on

the vital part of the body of the deceased, we can infer that

intention of the accused persons/appellants was not to kill the

deceased but to cause bodily harm by inflicting injuries to him.9                    Cr.A. No. 1773/13The injury no.1 upon the forehead is a bruise but, on dissecting

the body no internal injury was found on the scalp or parietal

region.15.        Hence, according to us, looking to the evidence of

doctor and the postmortem report we find that all the appellants

have committed the offence underSection 325/34IPC. The

conviction of the appellants from 302/34IPCis accordingly

altered toSection 325/34IPC and they are sentenced to suffer

four years RI each for the offence punishable underSection

325/34IPC for causing lathi injuries to the deceased. Learned

counsel for the appellants submits that the Trial Court has

passed the sentence to deposit fine of Rs. 1000/- each to be

deposited by the appellants, apart life imprisonment. According

to us, apart from the jail sentence of four years for causing lathi

injuries to the deceased for which the appellants have been

convicted underSection 325/34IPC, they are hereby directed to

deposit further amount of Rs. 25,000/- each towards fine (in total

Rs. 1,00,000/-). Thus, the total amount of fine which now we

have imposed Rs. 1,00,000/- and also the total amount of fine

Rs. 4,000/- directed to be deposited by the learned Trial Court

against the appellants, in total Rs. 1,04,000/- (Rs.One Lac Four

Thousand only) be paid to Class I heirs ofSection 8of the Hindu

Succession Act, 1956 of Late Har Kishan, S/o Khilai, resident of10                    Cr.A. No. 1773/13Village Bamhori Subedar, Thana Sultanganj, District Raisen

equally towards the compensation underSection 357Cr.P.C. It is

further made clear that in case the learned Trial Court finds that

there is no heir of Class I, the compensation will be paid to Class

II heirs and so on. The appellants shall be released from the jail

only after they deposit the entire amount of compensation in the

Trial Court. It is further made clear that the entire amount of

compensation be paid within six months from today failing which

the appellants shall further undergo jail sentence of three years

each.16.        We have already scanned the testimony of the

aforesaid injured witnesses Smt. Kamla Bai (PW-2) and Ku.

Sakun Bai (PW-3) and we find that there is clear, cogent and

trustworthy evidence of them saying that all the accused persons

wielded lathi blows upon them. Their testimony is also

corroborated by the evidence of MLC Doctor R.K. Wlem (PW-6).

The MLC report of Smt. Kamla Bai is Ex. P/1 while that of Ku.

Sakun Bai is Ex. P/2.        We have also gone through the

reasonings assigned by learned Trial Judge convicting the

appellants underSection 325/34IPC and we find that it had

rightly passed the sentence to suffer 4 years RI and fine of Rs.

1000/- to each of the appellant.17.        Learned counsel for the appellants further submits11                   Cr.A. No. 1773/13that the punishment of fine Rs. 1000/- which has been imposed

upon each of the appellant for the offence punishable underSection 325/34IPC apart from the jail sentence, the said amount

of fine has also been deposited in the Trial Court. Looking to the

facts and circumstances of the case, we hereby direct that out of

total fine of Rs. 4000/-, a sum of Rs. 2000/- each be given to

Smt. Kamla Bai, wife of Late Har Kishan, resident of Village

Bamhori Subedar, Thana Sultanganj, District Raisen and Ku.

Sakun Bai, daughter of Late Har Kishan, resident of Village

Bamhori Subedar, Thana Sultanganj, District Raisen who

appeared in the Trial Court as PW-2 and PW-3 respectively

towards damages under Section 357 Cr.P.C.18.        Registry is hereby directed to send the record        to

learned Trial Court immediately so as to reach the said Court on

or before 16.12.2013. All the accused persons shall be produced

from jail where they are undergoing the jail sentence on this date

in the Trial Court. The learned Trial Court shall fix the dates to

comply with the directions given by this Court hereinabove. .19.        Resultantly, this appeal succeeds and is hereby

allowed in part and the sentence is modified to the extent

indicated hereinabove.(A.K.Shrivastava)                    (Smt. Vimla Jain)
          Judge                               Judge12   Cr.A. No. 1773/13rao