Gendalal and Others vs State of Madhya Pradesh

N.K. Gupta, J.—The appellants have preferred this appeal against the judgment dated 29.11.2011 passed by the learned Sessions Judge, Narsinghpur in S.T.No.211/2010, whereby the appellants were convicted for offence punishable u/s 307 or 307 read with section 34 of IPC and each sentenced for 7 years'' rigorous imprisonment with fine of Rs.1,000/-. In default of payment of fine, each of them has to undergo for one year''s additional rigorous imprisonment. The appellants are also convicted for offence punishable u/s 452 of IPC and each sentenced for 3 years'' rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, each of them has to undergo for 3 months'' additional rigorous imprisonment. Prosecution''s case, in short, is that, on 28.8.2010, At about 8 p.m. in the evening, the victim Ram Singh (P.W.3) was taking his dinner in his residence situated at village Bakori, Police Station Mungwani, District Narsinghpur. The appellants came to the house of the victim and started abusing. The complainant Tulsa Bai prohibited them to say such abuses. In the meantime, Ram Singh came out of the house. The appellant Gendalal, who kept a Baka (Daggar) in his hand assaulted on the nose of the victim Ram Singh, by which his nose was cut and also some portion of upper jaw was cut. His tongue was also teared. Ram Singh fell on the Earth. He was looked after by Tulsa Bai. The other appellants, who had sticks in their hands ran away from the spot. The victim Ram Singh was taken to the nearest hospital. Dr.M.L.Ahirwar (P.W.1) examined the victim Ram Singh at District Hospital, Narsinghpur and gave his report Ex.P/1, in which he had stated that an inverted ''V''-shaped incised wound was found on the nose of the victim Ram Singh. Nasal bone and upper jaw of the victim Ram Singh was found cut. Also, the tongue of the victim was teared into two parts. He referred the patient to the District Hospital, Narsinghpur.

The complainant Tulsa Bai immediately lodged an FIR to the out-post of District Hospital, Narsinghpur, which was registered as Ex.P/5. The FIR was transferred to the Police Station Mungwani for further registration. The appellant Gendalal was arrested and one Baka (Daggar) was seized from him. Blood stained clothes of the victim Ram Singh was also seized. After due investigation, a charge-sheet was filed before the JMFC, Narsinghpur, who committed the case to the Sessions Court.

The appellants abjured their guilt. The appellant Gendalal took a specific plea that his wife Devki Bai has lodged a report against Ram Singh, Mahendra, Sukhram and Rajkumar and therefore, he was falsely implicated by the victim Ram Singh. No defence evidence was adduced by the appellants.

The learned Sessions Judge after considering the evidence adduced by the prosecution, convicted the appellants for the offences punishable under sections 452 and 307 or 307 read with section 34 of IPC and sentenced them as mentioned above.

I have heard the learned counsel for the parties.

During the pendency of this appeal, the victim Ram Singh has applied for the compromise and he has shown his voluntariness to do the compromise and sought permission for the same. Also a compromise memo is filed in want of permission to do compromise.

Learned counsel for the appellants has submitted that no common intention of the remaining appellants is proved and therefore, no offence punishable u/s 307 of IPC or any inferior offence of the same nature is made out against the appellants, except the appellant Gendalal, either directly or with help of section 34 of IPC. Similarly, it was accepted by the complainant Tulsa Bai in FIR, Ex.P/5 that a quarrel took place when Ram Singh came out of the house and therefore, no house trespass was done by any of the appellants. They could not be convicted for the offence punishable u/s 452 of IPC. It is submitted that if any compoundable offence is found to be constituted then, benefit of compromise may be given to the appellants. In alternate, it is submitted that while consideration of the sentence to the appellants, the factum of compromise may be considered.

On the other hand, learned Panel Lawyer has submitted that conviction and sentence directed by the trial Court appears to be correct and no interference can be done in the judgment passed by the trial Court. Neither the offence u/s 307 nor offence u/s 452 of IPC is compoundable therefore, the effect of compromise may be considered only in reduction of the sentence.

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered that whether the appellants cannot be convicted for offence punishable u/s 452 of IPC? Whether the appellant Gendalal assaulted the victim Ram Singh in such a manner that he sustained fatal injuries? Whether the appellant can be convicted for offence punishable u/s 307 or 307 read with section 34 of IPC? What would be the effect of the compromise? And whether the sentence passed against the appellants can be reduced?

In the present case, Tulsa Bai (P.W.2), Ram Singh (P.W.3) and Jyanti Bai (P.W.6) were examined as eye witnesses. Out of them, Jyanti Bai has accepted that she was inside the house and she could not know as to what happened in front of the house. Tulsa Bai and Ram Singh have stated that the appellants came to the house of Tulsa Bai and started abusing. When Ram Singh came out of the house to console the appellants then, the appellant Gendalal assaulted him with a Baka. In the FIR Ex.P/5, it would be apparent that the incident took place when Ram Singh came out of his house. Therefore, it is not at all proved that the appellants entered in the house of the victim Ram Singh with or without any weapon and therefore, it is no where proved that they committed any house trespass. They could not be convicted for offence punishable u/s 452 of IPC or any inferior offence of the similar nature. Learned Sessions Judge erred in convicting the appellants for the offence punishable u/s 452 of IPC.

According to the evidence given by Tulsa Bai and Ram Singh, the appellant Gendalal assaulted the victim Ram Singh by a Baka in a sudden manner. A suggestion was given to the various witnesses that in past Devki Bai, wife of the appellant Gendalal had lodged an FIR against the victim Ram Singh and his other relatives and a criminal case was also pending against them but, that fact may be a reason of enmity but, it cannot be said that the appellant Gendalal was falsely implicated due to that case. Looking to the injuries of the victim Ram Singh, it was not possible that the victim Ram Singh and Tulsa Bai had relieved the actual culprits and lodged an FIR against the appellant Gendalal and other appellants. Under such circumstances, it cannot be said that the appellants are falsely implicated in the matter. Enmity is a double edged weapon because due to enmity, one party can falsely be implicated and on the other hand that any party can assault upon the another party. In the present case, looking at the evidence of Ram Singh and Tulsa Bai, duly supported by the FIR, Ex.P/5 and injury report, Ex.P/1 proved by Dr.M.L.Ahirwar, it is proved beyond doubt that the appellant Gendalal assaulted the victim Ram Singh with a Baka (Daggar).

Looking at the injury caused to the victim Ram Singh, it is apparent that the injury was fatal in nature. By that one assault, the appellant cutted not only the nasal bone but, also upper jaw of the victim Ram Singh and his tongue was also teared into two parts. Under such circumstances, though the appellant did not assault for the second time but, his first powerful assault indicates his intention that he was intended to kill the victim Ram Singh and therefore, he was guilty of the offence punishable u/s 307 of IPC. The learned Sessions Judge has rightly convicted the appellant Gendalal for the offence punishable u/s 307 of IPC.

However, it is apparent that the appellants were abusing the victim Ram Singh in front of his house and when he came out, the appellant Gendalal assaulted him with a dagger. It is no where mentioned that remaining appellants had assaulted the victim or provoked the appellant Gendalal to do such an act. On the contrary, after viewing that assault, they ran away from the spot. Under such circumstances, it is possible that the remaining appellants were not aware that the appellant Gendalal would assault the victim in such a manner. Under such circumstances, no overt-act of the remaining appellants is established by which it can be said that that had any common intention with the appellant Gendalal. The remaining appellants had neither assaulted the victim Ram Singh by any manner nor they had any common intention with the appellant Gendalal and therefore, they could not be convicted for the offence punishable u/s 307 of IPC or for any inferior offence of the same nature either directly or with help of section 34 of IPC. Under such circumstances, the learned Sessions Judge has erred in convicting the remaining appellants for the offence punishable u/s 307 read with section 34 of IPC.

So far as the sentence is concerned, the appellant Gendalal remained in the custody from 30.8.2010 to 21.10.2010 during the trial and thereafter, he remained in the custody since 29.11.2011 till today and therefore, he remained in the custody for 9 months and 24 days till today. Though the offence done by the appellant Gendalal is grave but, at present the victim Ram Singh has entered into the compromise and since the offence committed by the appellant was not compoundable therefore, permission to compromise is not granted. Consequently, the compromise applications are hereby disposed off accordingly but the effect of the compromise may be seen in adjudication of the sentence. Looking to the factum of compromise, the custody period of the appellant Gendalal appears to be an appropriate sentence in the case and therefore, jail sentence of the appellant Gendalal may be reduced to the period, which he has already undergone in the custody.

On the basis of the aforesaid discussion, compromise applications are not allowed, they are dismissed. The appeal filed by the appellants is hereby partly allowed. Conviction as well as the sentence directed for the offence punishable u/s 452 of IPC is hereby set aside for all the appellants, whereas conviction and sentence directed for the offence punishable u/s 307 read with section 34 of IPC is hereby set aside for the appellants except for the appellant Gendalal. The appellants Manoj, Raju and Devki Bai are acquitted from all the charges. Conviction for the offence punishable u/s 307 of IPC directed against the appellant Gendalal is hereby maintained but, his sentence is reduced to the period, which he has already undergone in the custody but, there is no change in the fine amount. The appellants who are acquitted shall be entitled to get the fine amount back, if they have deposited it before the trial Court.

Registry is directed to issue a supersession warrant against the appellant Gendalal, so that he may be released forthwith, if he has deposited the fine amount.

The remaining appellants are on bail and their presence is no more required before this Court therefore, it is directed that their bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court forthwith with its record for information and compliance.