Hitendra Singh vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

This appeal filed u/s 374 of the Cr.P.C. by Hitendrasingh challenges the judgment dated 20.12.99 passed by the 1st Additional Sessions Judge, Mandsaur in S.T. No.6/99 convicting the accused for offence u/s 326 of the IPC and sentenced to RI for 4 years with fine of Rs.5,000/-, in case of default of payment of fine he was to undergo an additional sentence of 6 months RI and u/S.452 of the IPC he was also convicted and sentenced to RI for 6 months with fine of Rs.1000/-, in case of default of payment of fine he was to undergo an additional sentence of 3 months RI. He was also convicted u/S.323/34 of the IPC and sentenced to RI for three months. All the sentences shall run concurrently. Brief facts necessary for elucidation are that on 13.02.98 the complainant Radheshyam was performing the death ritual dinner in the community at Sitamow and all his relatives were present. Goverdhan Singh resident of Garoth had also come to the dinner and when near Gopal Gwala near Lohari Chowk he was alighting from the vehicle; when accused Hitendra Chouhan, who was driving a 407-vehicle did not allow him to proceed and there was a verbal altercation between them. Several people were came to attend the dinner intervened and pacified them and after having dinner they were all sleeping. The door to the room was opened and tube-light was burning. At about 11 PM in the night accused Hitendra along with his companions Dharmendrasingh, Anil, Nirmal, Nilesh, Darvar and Ashis came wielding several weapons entered the school building and due to the prior incident, being aggrieved; accused Hitendra, started assaulting the sleeping Goverdhan and the relatives of the complainant with the hockey sticks. The hockey stick broke down and the pointed side was plunged into the eyes of Goverdhan with the intention to kill him and he started bleeding from the eyes. Dharmendra Sharma, Nirmal Bairagi and Ashis also assaulted with the lathis to Ramgopal and brother Lala. Nilesh also pelted the stone at Ramgopal and Darvarsingh removed the knife, however since many people intervened the accused after hurling abuses of mother and sister and threatening them with life left the place. The incident was witnessed by Bapulal Bihari and his relatives. Thereafter the FIR Ex.P/15 was filed at 11.30 PM at the police station for offence u/s 307 of the IPC. The accused was then duly committed by the Judicial Magistrate, Sitamow after arrest. The trial Court on considering the evidence however convicted the accused Ramgopal for offence u/s 323/34 of the IPC and accused Hitendra was convicted u/s 326 since offence u/s 306 of the IPC was not made out. Moreover, the Trial Court has acquitted the other accused since their presence could not be proved as public had gathered and there is no specific evidence regarding the same. The accused Hitendra was however convicted only for offence u/s 326 of the IPC since the injury sustained was caused by hockey stick and there was no intention to murder. Being aggrieved the appellant has filed the present appeal.

Learned Counsel for the appellant has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses. Moreover Counsel urged that although the appellant has a criminal record; at the time of incident he was only a student below 22 years of age and did not intend to cause any grievous injury to the injured Goverdhan. The dispute had arisen all of a sudden due to non-grant of side and in fact the injury had been caused by the hockey stick which was wielded by the injured Goverdhan himself. Moreover none of the ocular witnesses P.W.2 Bihari, P.W.3 Shyamlal have supported the prosecution case and in fact they were not the ocular witnesses but witnesses of res gestae since they came upon the place of occurrence after the assault had taken place. Kailash P.W.4 has categorically stated that he could not recognise accused Hitendra in Court. He only knew about the quarrel that had taken place and his statement has not been controverted nor has this witness been declared to be hostile and the prosecution is therefore bound by his statement and the same can be used in defence by the accused according to the Counsel. Similarly Govind P.W.5 has not identified the accused and Counsel submitted that there was no material evidence on record to substantiate the offence and the appellant was therefore entitled to the acquittal. In alternate Counsel has prayed that if the Court is satisfied regarding the conviction the custodial sentence be reduced to the period already undergone.

Learned Counsel for the State has per contra stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed. On considering the above submissions, I find that the impugned judgment is based on valid and cogent reasons and proper marshalling of evidence and no infirmity can be found with the impugned judgment of the trial Court. I have no hesitation in upholding the conviction for the accused for offence under Sections 326, 452 & 323/34 of the IPC. However, considering the fact that the appellant was only 22 years of age at the time of incident and a student, the alternate prayer of the Counsel for the appellant being limited and reasonable is allowed in the interest of justice. The custodial sentence is reduced to the period already undergone. However, the fine amount is further raised by Rs.5,000/-; which shall be paid to the injured Goverdhansingh as compensation u/s 357 of the Cr.P.C. within a period of two months from the date of this judgment. On failure to pay the fine within the stipulated period and the appellant shall undergo the remaining sentence as directed by the lower Court.

With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellant is in jail. Upon depositing the enhanced fine amount, he shall be set at liberty forthwith if not required in any other case.

A copy of this judgment be sent to the concerned lower Court for compliance.