Anil S/o Shri Lakhanlal vs The State of M.P.

This criminal appeal is directed against the judgment passed by the learned Sessions Judge, Dhar in Session Trial No.247/1997 dated 20.02.1998 whereby the learned Sessions Judge found him guilty under Section 326 of IPC and sentenced him to 5 years rigorous imprisonment and fine of Rs.5,000/- and he was further ordered to undergo 1 year rigorous imprisonment, in case of default in payment of fine.

According to the prosecution story, the incident took place on 12.061997 at about 3:15 pm. The complainant Sajanbai lodged a report in Police Station Nalchha, District Dhar in which she stated that she was a resident of village Bagdi. After death of her husband, she had been living with her sister Resham in village Kalasura. Her land was situated in village Bagdi. Adjacent to her land, a land belonging to her brother-in-law Gabbu, the present appellant was situated. She submitted an application for demarcation of land belonging to her brother-in-law. On the date of incident, the village Chowkidar, Girdhawar Patwari came on the land for demarcation. It was alleged that the appellant came there with a naked sword in his hand, and thereafter, he used abusive language against the complainant and then gave multiple blows by sword on her. Due to this, she sustained injuries on her head, neck, left hand and left foot. Thereafter, the present appellant was caught by the village Chowkidar and the constable, who came with the party of the Revenue Officials, who came there for demarcation of the land.

The matter was reported to Police Station Nalchha on which a crime under Sections 294, 307 of IPC was registered at Crime No.94/97. She was medically examined. The constable Rameshchand was also medically examined, who also sustained simple injuries while he was trying to save the complainant, and thereafter, a charge-sheet was filed under Sections 294, 353, 307 of IPC & Section 25 of Arms Act.

The learned Sessions Judge framed charges under Section 307 of IPC only. The accused abjured his guilt. His defence was that the complainant Sajanbai was not residing in the village. She sold the land that fell in her share to one Badri S/o Mukund Amlada while the land was in his possession. The complainant murdered her husband and now she was residing with one Rajaram while the children of his brother were residing with him and due to this reason, he was falsely implicated in this case.

Learned Sessions Judge recorded evidence of prosecution witnesses as well as the defence witnesses, and thereafter, found the present appellant guilty under Section 325 of IPC and sentenced him as aforesaid. Learned Sessions Judge also ordered amount of compensation of Rs.2,500/- to be paid to the complainant and Rs.250/- to constable Rameshchand, who sustained injuries during the incident.

Aggrieved by this order of conviction and sentence, the present appeal is filed on various grounds, inter-alia, that (i) According to the medical evidence produced by the prosecution, the injuries found on body of the complainant were not of grievous nature as described under Section 320 of IPC. (ii) Learned Sessions Judge ordered amount of compensation of Rs.250/- to be paid to constable Rameshchand for which no charge was framed against him. (iii) The present appellant belonged to scheduled tribes and normally the members belonging to scheduled tribes are not imposed any fine by Sessions Court.

(iv) The independent witnesses Kailash and Mangilal were declared hostile even then the learned trial Court convicted the present appellant, and accordingly, the conviction is bad in law.

(v) According to the evidence available, at the most, the present appellant could be convicted under Section 324 IPC but he was convicted under Section 326 IPC, and therefore, the learned trial Court erred in convicting him under Section 326 IPC.

Learned counsel for the State opposes the appeal and submits that the order passed by the learned Sessions Judge was in accordance with provisions of law. The prosecution successfully proved his case, and therefore, no interference is called for. He prays that the appeal should be dismissed.

In the present case, the prosecution examined as many as 10 witnesses. Kailash (P.W.-10) and Mangilal (P.W.-2) turned hostile. According to them, they were not present when the demarcation was being done of the land. P.W.-3 Babulal Patwari, who went there to demarcate the land, in his statement, only stated that he heard, noise and when he reached there, he saw the complainant in injured condition. Constable Rameshchand (P.W.-

4) is a police personnel, he went on the spot alongwith Babulal (P.W.-3) to maintain law and order as some trouble was anticipated. He specifically stated in his statement that the present appellant gave blows by sword on Sajanbai, due to which she sustained injuries on head, neck, left hand and left foot. It was also mentioned by him that he also sustained injuries during the incident. Dr. V.K. Bhandari (P.W.-5) is a radiologist, who took X- Ray of the complainant and found fracture in her left fibula bone of her left foot and ulna bone of her left hand. Sanjanbai (P.W.-6) is the complainant. She supported the prosecution story and she was extensively cross-examined on aspect. She admitted in her cross-examination that she was facing trial for murder of her husband. She was acquitted from the trial Court, however, appeal was pending before this Court. Dr. N.K. Dhakad was the Medical Officer, who examined the prosecutrix on 12.06.1997. He found in all four incised wounds on her body. One was on her left wrist, the second wound was on her left foot on outer side, the third was on her left hand palm and fourth was on her head on left side. Badri Prasad (P.W.-8) is the scribe, who lodged first information report which is Ex.P-14 and Pratap Rai (P.W.-9) is the Investigating Officer. Dr. M.K. Borasi (P.W.-10) is also a Medical Officer, he answered a query sent to him during the investigation and gave his opinion which is exhibited as Ex.P-18. He opined that in absence of proper treatment, death was possible. Injury on her left wrist and left foot was grievous in nature, as there was corresponding fracture and he also opined that there is likely of living permanent scar on her body.

After going through the statements of complainant Sajanbai (P.W.-6) and constable Rameshchand (P.W.-4), it is apparent that there statements are reliable, as they are supported by the medical evidence. Though constable Rameshchand is a police personnel, however, he went with the other revenue officials, who went there to demarcate the land. There was no prior enmity of this witness with the appellant, and therefore, his evidence cannot be disbelieved merely on the ground that there was a police personnel. He himself witnessed the incident and therefore, his testimony is reliable. No other discrepancy has been pointed out in their statements by the learned counsel for the appellant to make their statements unreliable, and therefore, believing on their statements, it is apparent that the incident as stated by the complainant took place and she sustained injuries.

The question now comes whether in this case conviction can be made under Section 326 IPC as it is apparent from the oral evidence. In this case, the complainant suffered two fracture one is ulna bone of her left hand and another one is fibula bone of her left foot. She also sustained incised wounds. Under Section 326 of IPC, the instrument should be for shooting, stabbing or cutting or any instrument which was used as a weapon of offence, is likely to cause death. In the present case, sword was used, which is used itself a weapon used for cutting and also it could cause death, and therefore, in considered opinion of this Court, the learned trial Court rightly convicted the present appellant under Section 326 of IPC and in this finding, no interference is required now.

Learned counsel for the appellant submits that the trial Court erred in awarding compensation of Rs.250/- to constable Rameshchand (P.W.-4). It is not mentioned in the charge that he also sustained injuries, however, it was the case of the prosecution from very beginning that the constable Rameshchand also sustained injuries during incident. He was also medically examined. Dr. R.K. Dhakad (P.W.-7) examined him on 12.06.1997 and prepared the medical report on Ex.P-16 which was proved by the prosecution. Causing simple injury is a lesser offence of Section 307 IPC, and therefore, independent charge was not required. Secondly, even if it is assumed that the mention of injuries in charge was necessary by awarding the compensation to constable Rameshchand, no prejudice is caused to the present appellant, therefore, looking to the amount of compensation awarded on constable Rameshchand, no interference is called for.

Accordingly, in considered opinion of this Court, this appeal is devoid of merit and liable to be dismissed and dismissed accordingly.