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Appeal No.297 of 1398 gppenants Indra Nath Panigram and Others Versus V‘f gResponden‘ The State of Madhya Pradesh § ‘ o POST FOR JUDGMENT ON 1$}4\JANUARY, 2011 Sdl- Manindra Mohan Shrivastava ‘\ Judge ‘ HIGH COURT OF CHHATTISGARH : BILASPU R Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. Criminal Appeal NO.297 of 1998 AppeHants ‘ Indra Nath Panigrahi and Others Versus Respbndent The State of Madhya Pradesh Criminal Appeal under Section 374 of the Code of Criminal Procedure Present?- Shri Malay Kumar Bhaduri, counsel for the appellants No.1 to 4. Shri Avinash K. Mishra, counsel for appellant No.5. Shri Satish Gupta, Gqvt. Advocate for the State. JUDGMENT (Delivered on 25-1-2011) This appeal is directed against judgment of conviction and order of sentence dated 29—01—1998 passed by the 3rd Additional Sessions Judge,— Jagdalpur in Sessions Trial No.88/1 994, by which, the Court below after holding the appellants No.1 to 4 guilty for commission of offence punishable under Section 148 and sentenced to undergo R l for one year under Section 307 read wrth Section 149 IPC and sentenced to undergo R.l. for five years with fine of Rs.500/— under Section 323 read with’ Section 149 of the l.P.C. and sentenced to undergo R.l. for six months. Appe‘llant—Jayant has been found guilty of commission of the aforesaid offences under Section 109 of the l.P.C. for abetting the appellants No.1 if to 4 to commit offences stated hereinabove and sentenced to undergo R.l. t for five years and fine of Rs.500/—. In all cases where fine has been imposed, it has also been ordered that in default of payment of fine, appellants would undergo additional R.l. for six months. r 2. Case of the prosecution is that on 02-07-1993 at 07.30 A.M. in the morning at Gumdel, appellants formed unlawful assembly and armed with deadly weapons, with a common intention attempted to commit murder of Jagdish and Brihaspati and assauited and caused injury to Sukumari and ¥ Yugraj iand thereby committing offences under sections stated above. Agains the appetia No.5, the allegation is tha he abetted the other t nt t ‘ appells to commit the offences stated hereinabov, and therefore, he is ant e also bngt-held guilty for commission of the offences alleged against the ei appellts No.1 to 4. It is the case of the procution that Jagdish Acharya, PNV.2 has been nurturing mango op on Najul land adjoining his land for 15 years and on the date of incident, accused-Indra Nath came‘on spot to cllect the failed branches of mango tree which was o resiste by Sukumari, P.W.4, upon which, the appellant oposed, d p wereter Kalawati, Mahesh and Rudra Nara came from their house haf ayn along ith Debra d Manji an other accused also came from their w an d house nd arrived at the st armed with deadly weapons. Appellant- a po Jayant an Chandradhawaj (who have been acquitted) abetted comision of ime. The appellnts No.1 to 4 with the help of club and as Aa, axe, saulted Jagdish chary P.W.2, Sukumari, P.W.4, Brihaspati, .W.1 and Yraj, P.W.3, who sustained injuries. They were admitted in P ug the sital for treatment. 3. I the hospital, on the oral report of Jagdish Acharya, P.W.2, Head n Constale Anukul Chand, P.W.8 record Dehati Nalishi on 02-07-1993 b de vide Ex.P-2. The injured persons we sent for medical examination. Dr. er Jay Singh Shende, P.W.6 examine Jagsh, Sukumari an Brihaspati. d di d it . an se cr l d ms cr a hop Jagdish was found having sustained as mariy as 20 injuries out of which, some of.the injuries were found to have been caused- by sharp weapon and rest10f the injuries were found to have been caused by the hard and blunt object and amongst various injuries, one incise wound in left parietal region of the head measuring 2x0 5 c m x skin deep, one lacerated wound on left part of the head measuring 3x O O5 c m x skin deep, swelling on right portion of the head measuring 5x2,c.m., swelling on various parts of i the body‘was found and upon X-Ray, right forearm and right thumb was found broken and was grievous in nature and other injuries were found to be simple in nature. The report of Doctor is Ex.P-6. Brihaspati P.W.1 was also examined by Dr Jay Singh Shende P W6 who was found to have received as many as four Injuries out of one lacerated wound under right ear measuring 2x0.05 c.m., one lacerated wound on right ear measuring ‘1X 1.5x0.5 c.m., one lacerated wound on left part of the head measuring l2.5x0.5 c.m. x skin deep and one scratch on the left leg measuring 1.5 x 0.5 c.m. was found. After X—Ray’, all the injuries were found to be simple in .nature and report Ex.P-8 was given. Yuvraj was also medically examined lby Dr. Jay Singh Shende, P.W.6 and swelling on the back side of the lhead measuring 3x2 c.m. was found and it was opined in medical report Ex.P-10 that the same could be caused by hard and blunt object. The Doctor on ienquiry from the Police Station, reported that the injury on the head of Jagdish was on vital part and in the absence of medical treatment, the same was capable of causing death. lt was also stated that the injury causedboniBrihaspatiin his ear and on his head on vital parts and in case of obstruction, it could cause death. Dr. K. R. Morya, P.W.10 examined : t 1‘ M Sukumari on 02—07-1993 and found two injuries, one Iacerated wound on the left‘ part of the head measuring 5x2 c.m.X’bone deep and one‘ lacerated wound under the left eye measuring 5x3 c.m., which were found to be simple in nature. Dr. Morya, P.W.1O stated on enquiry that the injury was capable of causing death. 4. Dehati Naiishi, Ex.P-2 was sent to Kotwaii, Jagdalpur which was report EXP—23, was lodged by Assistant Sub Inspector P. L. Sahu, P.W.11. hlead Constable Shekhar Lal on the basis of Dehati Nalishi, Ex.P- 2 and report EXP-23, registered crime under Crime Number 116 of 1993 vide report‘Ex.P-24. alnvestigating Ofhcer V. N. Singh, P.W.7 seized wearing of Sukumari recorded statements of Jagdish and all other victims. The clothes were sent for examination and chemical report. Dr. Govind Singh, P.W.5 vide his report Ex.P-5 reported fracture on right hand an‘d nd the deep of left thumb of Jagdish. Spot map was prepared by Patwari after completion of investigation. Charge sheet was filed in the Court of Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Sessionls Judge, Jagdalpur, which was received on transfer by the 3rd Additional Sessions Judge, Jagdalpur for trial under Sessions Trial No.88/1994. On the basis of the material in the charge sheet, the learned trial Court framed charges on the appellants as stated hereinabove. ln order to‘prove his case, the prosecution has examined Brihaspati, P.W.1, Jagdish Acharya, P.W.2, Yugraj, P.W.3, Sukumari, P.W.4, Dr. Govind Singh, P.W.5, Dr. Jay Singh Shende, P.W.6, V. N. Singh, P.W.7, Anukul Chand, P.W.8, Shekhar Lal, P.W.9, Dr. K. R. Morya, P.W.10 and P. L. Sahu, P.W.11. v i l ' 5. The appellants were examined under‘Section 313 of the Cr.P.C., in ‘ which, ‘they denied the incriminating evidence and circumstances appearing against them and they claimed that the mango tree and the i land beicnged to them and’that Jagdish Acharya and Sukumari assaulted them and further that the victims are the aggressors, who assaulted them. 6. In;their defence, the appellants examined Chandradhawaj Joshi, 3 D.w.1, Tulsi Ram Pande, D.w.2, Sanjéy Rai Choudhary, D.w.3 and K. K. Nag, D.\N§‘;4; The appellants also produced documentary evidence being ‘the khasra entries of the land in dispute and Rojnamchasana No.59 of Police Station Nagarnat. 7. The learned trial Court after relying upon the testimony of prosecution witnesses No.1 to 4 and on a finding that the injuries caused f on Jagdish and Brihaspati were serious in nature and disbelieving the I defence version convicted the appellants No.1 to 4 for the offences stated 1 hereinabove. lt is relevant to mention here that the appellant No.5-Jayant : has beenf convicted under Section 109 of the l.P.C. for abetting appellants No.1 & 2lfor committing offences found to have been committed by them. Rest of the accused persons were acquitted of the charges. 8. Learned counsel for the appellants vehemently argued that the conviction of the appellants is wholly unsustainable in law. Learned icounsel argued that from the evidence available on record, it has been . proved by the defence that sumcient degree of probability that the land in dispute and the mango tree belonged to the accused persons and the lvictims had entered into their land and removing the failed branches of the 13 11 l l l l ‘ l l l mango tree and when the appellants resisted, injuries were caused on ‘ them with the help of weapons which found to have been proved. He ‘ submits that Jagdish and others were aggressors. Learned counsel further submitted that it has been proved that the appellants Indra nath, Kalawati, V Rudra Narayan and Mahesh had sustained injuries but'the prosecution 1 has compietely failed to explain how those injuries were received bythe appellant‘s, and therefore, the entire case of the prosecution becomes ‘ highly ddubtful. He further submits that in the absence of explanation of ‘cf t injuries on the persons i.e. appellants No.1 to 4, in the absence of any corroborationsof evidence of the interested witnesses, which alleged to have been received injuries, the appellants were entitled for benefit of doubt. He further submitted that even according to the story of the iprosecution, the manner in which the incident has happened, it is 1 apparently a case of free tight between the parties, and therefore, the , appellants could not be committed with the aid of Section 149 of the l.P.C. l and each of the appellants coUld not be fastened liability in respect of the ‘ overt acts alleged to be done by the other appellants. Learned counsel further airgues that under no circumstances, case of commission of offence under Section 307 of the IPC can be said to have been made out, as the injuries on vital parts of Jagdish and Brihaspati are only simple in nature, and therefore, considering the circumstances in which, the incident f happened and’the appellants also having sustained injuries, it would not travel beyond the scope of Section 323 of I.P.C. w 9. In addition, learned counsel for the appellant No.5 submitted that he had not played any role and on a vague evidence of he only stating to beat the victims, his conviction under Section 109 of the l.P.C. is wholly unsustainable in the eye of Iaw. In support of their submission, learned counsel for the appeilants placed reliance in the case of Shivaji Ganu Naik v. State of Maharashtra and another, 1999 Cr.L.J. 471, Munir Khan V. State of U.P., 1971 Cr.L.J. 288 (Vol.77 C.N.95), Lakshmi Singh and Others etc., v. State of Bihar, AIR 1976 Supreme Court, 2263, State of H. P. V. Krishan Chand and others, 2000 Cr.L.J. 2143, Budura Digal and others v. State of Orissa, 1997 Cr.L.J. 996, Narendra Singh v. State bFM.P., 2001 (II) M.P.W.N. 70, Mohar Rai V. State of Bihar, AIR 1968 Supreme Court 1281 (V-55 C 246), Gulji v. State of M.P., 1985 § M.P.W.N. 297, Eknath Ganpat Aher & Others vs. State of Maharashtra and others, 2010 (3) C.G.L.J. 57 (SC), Nankun & others vs. State of M.P. (Now C.G.), 2010(2) C.G.L.J. 483 (DB) and Jai Narain Mishra and others v. The State of Bihar, 1972 Cr.L.J. 469 (V-78 C116). 10. Dr. Jai Singh Shende, P.W.6 has deposed that appellant—Jagdish was brought for medical examination on 02-07-1993. Upon examination, followirtg injuries found on the person of Jagdish :- A. l lncise wound in the parietal region of right side of the head measuring 2x0.5 c.m. x skin deep, which was caused by hard l and sharp object. B. i ln respect of injuries no.2 to 20, he deposed that those injuries ‘ were caused by hard and blunt object. C. Injury No.8, upon X-Ray of right forearm, it was found to be broken. D. Injury No.9 was found to be grievous in nature. . E. Injuries No.1 to 7 and 10 to 20 were found to be simple in nature. He also deposed that the injury No.1; 2 & 4twhich were caused on the head, were on vital parts and in the absence of proper treatment, it was capable of causing death as stated by him in his report Ex.P—7. In his examinatiOn, he stated in para—13 that injury No.1, 2 & 4 are simple in nature. 11. Dr. Jay Singh Shende, P.W.6 has also proved injury on the person Brihaspatifand stated that he sustained three injuries of being lacerated wound caused‘in the right ear, under the right earand on the head. He has deposed in para-4 of his examination that injuries were simple in nature. He has also deposed that in case of obstruction, injury No.1 and injury No.3 were capable of causing death. Dr. Jay Singh Shende, P.W.6 having examined Yugraj and proving injury, has also deposed that the injuries were simple in nature, which was caused by hard and blunt object. ln so far as injury on the head of Yugraj is concerned, Dr. Jay Singh Shende, P.W.6 has deposed that the same could be caused by falling. 12. Dr. K. R. Morya, P.W.1O having examined Sukumari, has deposed that she has sustained two injuries one being lacerated wound on the left ‘ part of the head measuring 5x2c.m.x skin deep and the other injury under the left eye measuring 5x3c.m. and in para-’2 of his deposition, has stated that the injuries were simple in nature. He has further deposed that one injury caused on Sukumari was capable of causing death. He has stated thatgopinion could be given only after X-Ray whereas in response to other v“ \/ question, it was opined that the injury was under the eye capable of causing death as contained in his report EXP—26. l 13. On the basis of medical evidence come on record and has proved by the prosecution except injury at S.No.8 namely fracture in the forearm and injury No.9-fracture in the right thumb inflicted on Jagdish and other injuriesiwere found to be simple in nature. In respect of injuries sustained by Brihaspati, it has been deposed b‘y Dr. Jay Singh Shende, P.W.6 that unIessjtQere was obstruction, it was not capable of causing death. In respect of injury No.3, it has been deposed by Dr. Jay Singh Shende, P.W.6 thatsit was caused on vital part and in case of obstruction, death was probabie. Thus, evidence of the Dr. Jay Singh Shende, P.W.6 is quite vague: Therefore, it is thus clear that all the injuries sustained by Brihaspati were simple in nature. injury caused on Yugraj has also been stated to be simple in nature. ln so far as injury sustained by Sukumari is concerned, there is no specific opinion with regard to lacerated wound on the left side of the head but in respect of other injuries which are under the eyes, it has been stated that the same was simple in nature. However, in para-3 of Dr. K. R. Morya, P.W.10, it has been stated that the injury no.2 caused under the eyes, death was probable. ln the examination, he has stated? that both the injuries could be caused by falling. He has further stated: that his reply to the questionnaire on 15-09—1 993 without seeing the injuries. 11 Jagdish Acharya, P.W.2 in his deposition has stated that on 30-06—1993, he had cut the branches of the mango tree and that they had planted the tree on the government land. Brihaspati, P.W.1 and Yugraj, 10 P.W.3, who are sons of Jagdish, P.W.2, who had said to have been 1 reached 3the place of incident where Father Jagdish, P.W.2 and Mother- Sukumafi, P.W.4 were also present. Jagdish, P.W.2 has admitted in para- : 17 of his; deposition that the accused-appeilant are taking away the wood, J upon which, she had obstructed and further says that she was at home and his sons were not at home. s 15. sukumari, P.W.4 has deposed that the mango tree belongs to her t and she had cut the tree on the date of the mcrdent also and the appellants had come to pick up the same on the spot, upon which, she resisted whereafter Indra Nath and kalawati started quarreling. ln‘ her examination, she states that she had gone to fetch water; when she came to know that Indra Nath has gone to pick up the woods cut from mango tree, and then she reached at the spot and stated Indra Nath not to'take away the wood. 16. Other two witnesses and victims namely Brihaspati, P.W.1 and Yugraj, iP.W.3, have deposed that they have reached at the spot after some time when his father and mother assaulted, however, they are unable to depose specmcally regarding genesrs of the dispute 17. In their accused statement recorded under Section 313 of the Cr.P.C.; learned counsel for the appellants have stated that the Victims were the aggressors and they had come and assaulted. Assistant Sub Inspector K. K. Nag,'D.W.4 has stated that‘lndra Nath had lodged a repOrt in) we: i i on 02-07—1993 regarding mango tree being cut by Jagdish along with his sons Brihaspati and Yugraj and that when he asked them to stop, he'was _ ‘ W 11 assaulted with the help of lathi by Jagdish, his sons Brihaspati and Yugraj ‘ and his wife Sukumari, due to which, he received injury on his head and § the blood has come out. Rojnamchasana contains that Indra Nath has i also sustained injury on the Ieft Ieg and Mahesh Prasad also sustained . injury onithe left thigh and right hand. Rojnamchasana contains that Smt. i Kalawatiisustained injury on her left hand, knee and tingers and the same ‘ have been caused at 11 on 02-07-1993. 18. The Investigating Officer- V. N. Singh, P.W.7 has stated in para—10 V i‘ kof his cross—examination that accused Indra Nath had lodged a report on 02-07-1993 in the Police Station Nagarnar and on such report being lodged, Indra Nath, Rudra Narayan, Mahesh Prasad and Kalawati were sent for medical examination of the injuries received by them, which has been recorded in Rojnamchasana dated 02—07-1993 vide Ex.D-5. Rojnamchasana No.59 proved by V.- N. Singh, P.W.7 as D-5 as one and 3 the same, has filed by the defence and proved by K. K. Nag, D.W.4 as Ex.D-6. Contents of Rojnamchasana proved the fact that information was ‘ received? at 11.00 Hrs. and report was lodged in the Police Station 1 Nagarnar by Indra Nath. In the morning at 08.00 A.M., Jagdish along with . his sonsi Brihaspati and Tuni and wife Sukumari had arrived at the spot and assaulted by Iathi, upon which, Indra Nath received blow on his head resultingi in injury and blood had come out. Rojnamchasana also records 3 thatMahesh Prasad, Kalawati and Rudra Narayan also received injuries. ‘ i 19. gChandradhawaj Joshi, D.W.1 has stated that on 02-07—1993 at 08.30 A.M. in the morning, he saw Jagdish, Yugraj, Brihaspati and I I I I ,. 12 Sukumari running and at the place of the incident, Jagdish pushing and pulling down Kaiawati on the road and dragging. He has also stated that when Indra Nath proceeded to rescue his wife, Jagdish inflicted Iathi blow on the head of Indra Nath, due to which, Indra Nath set on the road. in his cross-examination, he has stated that on 03—07-1993 at about 4 P.M., V. N. Singh, P.W.7 of Police Station Nagarnar had approached him and asked regarding the incident. Though, he has stated that he is the cousin i of Kaiawati and has brotherly relation with Indra Nath, his version is not liable to» be disbelieved only on this ground because in the -£Rojnamchasana Ex.D-5, it has been recorded that Chandradhawaj Joshi, D.W.1 has seen the incident. Moreover, other defence witness, Tulsi Ram Pande, D.W.2 also corroborates the version of Chandradhawaj Joshi, D.W.1, Who is an independent witness and not related to any of the i parties. He has stated that on 02-07—1 993, Jagdish and his sons cut the branches of the mango trees standing on the land' of Kaiawati, which resulted into a quarrel between the parties and when Indra Nath, Kaiawati and their sons Rudra Narayan and Mahesh Prasad loading the wood in the bulldck cart, Jagdish, his wife Sukumari and his sons Brihaspati and Yugraj arrived at the spot, he saw that Indra Nath had received injury on his headj and blood was oozing. He also says that the accused persons ‘ beaten more than the victims. In cross-examination also, he has stated l "} that when accused persons were taking away wood, Sukumari had asked l , l them not to take away. He has clearly stated that he does not relate to any of the parties. ‘ $;1. l l 13 ‘ 20. Records of Sessions Trial show that the appellants had filed copy of complaint lodged by lndra Nath and others against Jagdish and others. i They have also filed certified copy of the application of the Police Station i for examination of injuries received by lndra Nath, Rudra Narayan, Kalawati and Mahesh Prasad and the Doctor has given opinion in each of the cases. The opinion shows that each of them have received injuries. Kalawatil is said to have been received as many as four injuries whereas Rudra Narayan and Mahesh Prasad have also received injuries. The opinion shoT/vs that Mahesh Prasad also received incise wound on the left t frontal bOne. lndra Nath, who was reported to have received incise wound on centre of£occipital bone and other injuries also. Though, the concerned Police Officer, who sought medical opinion on the injuries sustained by Jagdish, Kalawati, Rudra Narayan and Mahesh Prasad, has not been examined nor the Doctor has given his opinion. Other evidence‘which has been discussed above, clearly goes to prove that each of the accused had sustained injuries. The evidence of Jagdish, P.W.2 reads that he had gone to save his wife and at the spot, he was assaulted by the appellants. According to Sukumari, P.W.4, when she learnt about the appellants taking away wood, she reached at the place of incident and resisted. Evidence of Brihaspati, P.W.1 and Yugraj; P.W.3 would show that when they reached the spot and found their mother lying on the road and that they were also assaulted. They have also stated that their Father Jagdish also assaulted. 21. I From the evidence which has come on record, it is proved that not only the