1 HIGH COURT OF MADHYA PRADESH JUDICATURE AT JABALPUR Criminal Appeal No. 2051/1999 PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Buttan Lal and 3 others Vs. State of Madhya Pradesh *** Shri S.K. Dixit with Shri Sankalp Kochar, learned counsel for the appellants. Ms Kamlesh Tamrakar, learned Panel Lawyer for the State. Shri A. Usmani, learned counsel for the complainant/objector. Criminal Revision No. 1754/1999 Bhagwan Das Khambra Vs. Batanlal and four others *** Shri A. Usmani, learned counsel for the applicant/petitioner/appellant. Ku. Kamlesh Tamrakar, learned Panel Lawyer for the State. Shri S.K. Dixit, learned counsel for the respondents/non-applicants No.1 to 4. _____________________________________________________ Date of hearing: 25/01/2011 Date of Judgment: 05/07/2011 J U D G M E N T Learned Additional Sessions Judge, Bhopal passed the impugned judgment dated 27.7.1999 in S.T. No. 373/96, whereby appellants/respondents No. 2 1 to 4 (in Criminal Revision No.1754/1999) have been convicted under Section 307 read with Section 34 of the IPC and sentenced to undergo Rigorous Imprisonment for 3-3 years with fine of Rs.2,000/- (each). In default they shall suffer further Simple Imprisonment for 3 months. 2. The aforesaid appeal and criminal revision arose out of the same judgment and order, therefore, they are being disposed of by this common judgment. 3. Being aggrieved, the appellants have filed this criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 as well as being aggrieved, complainant Bhagwan Das Khambra has filed the revision petition under Section 397/401 of the Code of Criminal Procedure. 4. Prosecution case in short is that on 29.9.1996, complainant Bhagwan Das Kambra cultivating the field which was purchased from brother of accused persons Ghanshyam. It is alleged that appellant Dayaram, Buttan Lal, Prem Narayan and Brijesh came there and told him that why he ploughing the field, which belonged to them. Complainant Bhagwan Das told them that he purchased the same from Ghanshyam. It is further alleged that appellants Dayaram and Buttan Lal having ballam and appellants Brijesh and Prem Narayan having axe, assaulted him in furtherance of their common intention, thereby complainant 3 Bhagwan Das seriously injured and fell down. A tractor driver saved him. Uttam (PW1), companion of Bhagwan Das, lodged report Ex.P/1 at police station Bilkhiriya. Injured Bhagwan Das was sent for his medical examination and treatment. Dr. M.S. Khan (PW2) examined Bhagwan Das and found as many as seven incised wound, two abrasions and pain & swelling on the right forearm as well as lower region of the leg and prepared the MLC report Ex.P/12. Dr. C.P. Bhatnagar (PW7) took the X-ray of complainant and found fracture on radius bone of left forearm. X-ray Plate is Ex.P/14 and X-ray report is Ex.P/15. Dr. D.K. Singh (PW8) also treated Bhagwan Das and being a RSO prepared a report Ex.P/16-B and opined that injuries caused to Bhagwan Das might be dangerous to life if not treated timely. 5. After usual investigation, the appellants were charge sheeted before the Judicial Magistrate, First Class, Bhopal. 6. Learned Judicial Magistrate, First Class, Bhopal committed the case to the Court of Sessions. Learned Additional Sessions Judge framed the charges against the appellants under Section 307 read with Section 34 of the Indian Penal Code. Appellants abjured the guilt and pleaded that they have been falsely implicated. Shankar Lal (DW1) and Dr. A.K. Chaturvedi (DW2) have been examined as defence witnesses. 4 7. On completion of trial and on appraisal of evidence on record, learned Additional Sessions Judge convicted and sentenced the appellants as mentioned herein above. Hence this appeal. 8. Learned counsel for the appellants submitted that the trial Court committed error in not appreciating the evidence on record in its proper perspective. Learned counsel further submitted that the trial Court has wrongly recorded the conviction under Section 307 of IPC against the appellants, therefore, he prays for setting aside the impugned judgment and also prays for acquittal of the appellants. 9. On the other hand, learned Panel Lawyer for the State as well as the counsel for the revisioner petitioner supported the conviction recorded by the trial Court. Counsel for the revisioner petitioner further submitted that the trial Court failed to award the appropriate sentence to the appellants, therefore, he prays for enhancement of the sentence. 10. I have heard the parties and perused the impugned judgment, evidence and other material on record. 11. Complainant Bhagwan Das (PW6) deposed that on 29/9/1996, when he was ploughing the field at about 12 - 1.00 O'clock, appellants Buttan Lal and Dayaram came there. He further deposed that 5 appellant Prem Narayan and Brijesh also followed them. Appellants Buttan Lal and Dayaram having ballam with them and appellants Prem Narayan and Brijesh having axe with them. He also deposed that the appellants told him to stop the ploughing and claimed that it is their field. He further deposed that appellant Brijesh assaulted him by means of an axe on his head, at the same time, appellant Dayaram assaulted him by ballam on his back side. Appellant Prem Narayan also assaulted him by an axe on his head. He further deposed that Dayaram and Buttan Lal assaulted him by ballam, as a result of which he fell down. Hukumchand (PW3) and Balwant Singh (PW5) took him to the police station from where he was sent to hospital for treatment. 12. Uttam (PW1) has not supported the prosecution case. He has been declared hostile, however, he admitted his signature on FIR Ex.P/1. He further admitted that Prem Narayan and Brijesh having axe and Dayaram having a ballam, assaulted the complainant. He further admitted that Balwant Singh (PW5) and Hukumchand (PW3) were present near the place of incident and after the incident, he lodged the report Ex.P/1. In this way, he partly supported the version of the complainant Bhagwan Das (PW6). 13. The version of complainant Bhagwan Das (PW6) find further support by statement of eye witnesses Hukumchand (PW3) and Balwant Singh 6 (PW5). The name of these witnesses find place in first information report as well as they remained undeviated in their cross-examination. In these circumstances, their presence at spot appears to be believable. When I carefully perused the statement of complainant Bhagwan Das (PW6), I found that he deliberately avoided the presence of other two assailants, who assaulted him by lathi. This fact duly proved on record by Nisar Ahmed Rizvi (PW10), Naib Tahsildar, who recorded so called dying declaration of Bhagwan Das. Despite this fact version of complainant Bhagwan Das is duly corroborated by Uttam (PW1), Hukumchand (PW3) and Balwant Singh (PW5) and find further corroboration by first information report and medical evidence. 14. Dr.M.S. Khan (PW2) deposed that he found in all 12 injuries on the body of complainant Bhagwan Das, out of which injuries No. 1 to 6 and 9 have been caused by hard and sharp object and injuries No. 7, 8 and 10 to 12 have been caused by hard and blunt object. He further deposed that patient is in grave condition of shock, therefore, he advised X-ray of left and right forearm and right leg and chest. He also deposed that opinion regarding injuries can be taken from Surgical Specialist. 15. Dr. C.P. Bhatnagar (PW7), Radiologist found fracture on radius bone of right forearm. X-ray report of same is Ex.P/15 and X-ray Plate is Ex.P/14. 7 16. Dr. D.K. Singh (PW8) deposed that being a RSO of Jaiprakash Hospital, Bhopal, he treated complainant Bhagwan Das (PW6) and opined after considering the case sheet and Pre-MLC report Ex.P/12 that injuries No. 1 to 6 and 9 may be caused by hard and sharp object and other injuries may be caused by hard and blunt object. He further opined that injuries were fresh in nature and in natural course dangerous to life, if treatment not executed in time. However, he admitted in his cross-examination that the patient has been treated in time and aforementioned injuries would not be dangerous to life as Ex. P/16-B. 17. On the basis of aforesaid opinion of Dr. D.KI. Singh (PW8), learned counsel for the appellants submitted that since injuries were not found to be sufficient to cause death because no fracture on the vital part of the body as well as no vital organ of Bhagwan Das has been cut, therefore, trial Court committed illegality in recording the conviction under Section 307 of the IPC against the appellants. He placed reliance on AIR 1965 SC 843, Sarju Prasad Vs. State of Bihar, AIR 1972 SC 1764, Jai Narain Mishra and others Vs. The State of Bihar and 1993(1) MPWN 64, Nanlia Vs. State of M.P. 18. On the other hand, learned counsel appearing on behalf of the revisioner petitioner and State, justifying the conviction recorded under Section 307 of IPC and prays for enhancement of sentence. 8 They placed reliance on ILR (2009) M.P. 1552, State of M.P. Vs. Kashiram & others and AIR 1983 SC 305, State of Maharashtra Vs. Balram Bama Patil and others. 19. It is true that to justify a conviction under Section 307 of IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused as observed by the Apex Court in State of Maharashtra's case (supra) that sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 20. When I perused the evidence on record in the light of aforesaid principle of law that nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused. Though there were four accused persons having deadly weapons like ballam and axe, they caused the incised wounds as many as seven, out of which Injuries No. 1 to 5 on the head and one on the left arm and second on the right side of upper chest and other injuries No. 7, 8, 10 to 12 were caused by hard and blunt object and a fracture on lower end of right radius bone caused to complainant. 21. It is true that no bony injury was found on the vital part of the body like head or chest as well as 9 no vital organ of complainant Bhagwan Das (PW6) has been cut but this fact would not by itself be sufficient to take the act of accused out of the purview of Section 307 of IPC. In these circumstances, it is to be seen that prosecution succeeded in establishing the intention of appellant was one of the three kinds mentioned in Section 300 of IPC and that can be deduced from circumstances. 22. In Sarju Prasad's case (supra), the Hon'ble Apex Court observed that accused person has no enmity with injured Shankar Prasad and they have no motive to kill him, therefore, despite the injury on vital region with knife, it found the case proved only under Section 324 of IPC. 23. In Jai Narain Mishra's case (Supra), though the injured was assaulted by Farsa but injury found was lacerated wound. In this case, Hon'ble Apex Court observed that where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In that case also the injuries were simple in nature though caused by deadly weapons and one of the injury was endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid and appellant was convicted under Section 326 of the IPC instead of 307 IPC. In present case also Surgical Specialist Dr. D.K. Singh (PW8) opined that injuries may be dangerous to life if treatment not executed in time and he admitted in his 10 cross-examination that if injuries treated in time then they could not be dangerous to life. 24. Considering the aforesaid evidence on record alongwith the fact that dispute arose on the possession of land and as per defence witness Dr. A.K. Chaturvedi (DW2), who treated appellants Prem Narayan and Buttan Lal on 1/10/1996, after two days of the incident, found simple injuries on their persons. Since appellants were not produced the document of their possession of disputed land and they reached to the spot having deadly weapons in their hands and other two persons also having lathis, trial Court rightly rejected the defence of appellants regarding private defence of their properties. But at the same time as mentioned hereinabove, trial Court committed illegality in recording the conviction under Section 307 of the IPC. 25. Considering the aforesaid evidence on record, it is proved that appellants were not intended to cause death of complainant Bhagwan Das (PW6). They were only intended to cause bodily injury to the complainant, therefore, they have not used such a force by which fracture on the vital part or cutting on vital organ could have been caused. In these circumstances, the offence committed by the appellants is not one under Section 307 of IPC but under Section 326 of IPC. Further, no case is made out for enhancement of sentence. 11 26. In the result, the appeal is partly allowed. Conviction recorded under Section 307/34 of IPC against the appellants is set aside and they are acquitted from the aforesaid charges/offence, instead they are convicted under Section 326/34 of IPC and sentenced to two years rigorous imprisonment and fine of Rs. 2,000/- (each) and revision petition filed by complainant Bhagwan Das for enhancement of sentence, is dismissed. 27. The appellants are on bail. Their bail bonds and surety bonds shall stand discharged. They are directed to surrender before the trial Court on or before 28/7/2011 for serving out the sentence. 28. Set off, of the period of sentence already undergone will be given by trial Court at the time of preparation of supersession's warrant against the appellants. 29. A copy of this judgment be placed in Criminal Revision No. 1754/1999. 30. Record of the trial Court be sent back immediately. (G.S. Solanki) JUDGE /07/2011 ravi