Madan Pal and Others vs State of Uttaranchal (Now State of Uttarakhand)

Prafulla C. Pant, J.—This appeal, preferred u/s 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 17.07.2001, passed by learned Sessions Judge, Haridwar, in Sessions Trial No. 304 of 1995, whereby said court has convicted accused/appellants Madan Pal, Bijendra Pal and Parasram u/s 324 read with Section 34 of I.P.C., and each one of them has been sentenced to rigorous imprisonment for a period of one year. The trial court has convicted accused/appellant No. 2 Dharmu u/s 324 of I.P.C., and he too has been sentenced to rigorous imprisonment for a period of one year. Heard learned Amicus Curiae for the appellants and learned Deputy Advocate General for the State, and perused the lower court record.

Prosecution story, in brief, is that on 18.05.1994, at about noon, PW 2 Sanjay along with his father Dayaram, grandfather Gainda and uncle Rajpal (PW 1) was working in the sugarcane field in Village Kalasiya. When accused/appellants Madan Pal, Dharmu, Bijendra Pal and Parasram armed with LATHI and DANDA came there and used foul language against PW 2 Sanjay and his father and grandfather. When PW 2 Sanjay and his uncle Rajpal (PW 1) asked the accused to desist from using foul language, the accused/appellant Dharmu picked up a spade (FAWRA) and gave an assault on the leg of PW 2 Sanjay. The other accused also assaulted with DANDA to Rajpal and Sanjay. The incident was orally reported at the Police Outpost Goverdhanpur (within the limits of Police Station Manglore, Tehsil Roorkee), on the very day (18.05.1994) at about 19.30 hours. On the basis of said oral report given by PW 1 Rajpal, a Non Cognizable Report (for short N.C.R.) (Ex. A1) was prepared by the Police at the Police Outpost. Thereafter, PW 2 Sanjay got himself medically examined, on the next day i.e. 19.05.1994, at about 8.20 p.m. in the District Board Hospital of Raisi. PW 4 Dr. Sitab Singh examined the injuries and prepared injury report (Ex. A5). When said report was produced before the Police, it appears that Section 324 was added in the N.C.R. and the crime was investigated by Sub-Inspector Gulfam Singh, who after completion of investigation, submitted charge sheet (Ex. A4) against all the four accused namely Madan Pal, Dharmu, Vijendra Pal and Parasram for their trial in respect of offences punishable under Sections 323, 324 and 504 of I.P.C.

Judicial Magistrate, Roorkee, on receipt of the charge sheet, appears to have proceeded with the case, but since the cross case of the incident was triable by the court of Sessions, this case too was committed to the court of Sessions. Learned Sessions Judge, Haridwar, on 27.09.1996, after hearing the parties, framed charge of offences punishable under Sections 323, 324 read with Sections 34 and 504 of I.P.C., against the accused Madan Pal, Bijendra Pal and Parasram Each of them pleaded not guilty and claimed to be tried. The trial court framed separate charge against the accused Dharmu relating to offences punishable u/s 323 read with Section 34, Section 324 and Section 504 of I.P.C., to which he too pleaded not guilty and claimed to be tried. On this, prosecution got examined PW 1 Rajpal (informant and eyewitness), PW 2 Sanjay (injured), PW 3 Constable Narhar Pal Singh and PW 4 Dr. Sitab Singh (Medical Officer).

Oral and documentary evidence was put to the accused u/s 313 of Cr.P.C., in reply to which they pleaded that they have been falsely implicated due to enmity. In defence, DW 1 Rampal was got examined, who gave cross version of the incident.

The trial court after hearing the parties found that the prosecution has sufficiently proved the charge of offence punishable u/s 324 read with Section 34 of I.P.C., against the accused Madan Pal, Bijendra Pal and Parasram and convicted them accordingly. The trial court further found that prosecution has proved charge of offences punishable u/s 324 of I.P.C., against the accused Dharmu and convicted him accordingly. After hearing on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 17.07.2001, passed by Sessions Judge, Haridwar, in Sessions Trial No. 304 of 1995, this appeal is preferred by the convicts.

Before further discussion, this Court thinks it just and proper to mention the injury suffered by PW 2 Sanjay, which was recorded by PW 4 Dr. Sitab Singh (Medical Officer) on 19.05.1994 at 8.20 p.m. The injury, which is recorded in Hindi in Ex. A5 is being translated and reproduced below:--

Incised wound 4� x � x 1 c.m. above right ankle on the posterior aspect, Clotted blood present. There was swelling in the wound.

In the opinion of PW 4 Dr. Sitab Singh, injury could have been caused by a sharp edged weapon and caused about a day before. The nature of injury was simple. PW 4 Dr. Sitab Singh has stated in the cross examination that he is B.A.M.S Doctor and under the Government Order, he was authorized to prepare the medico legal report. From the above medical evidence on record, it appears that PW 2 Sanjay did suffer injury on 18.05.1994. Now this Court has to see whether the accused/appellant Dharmu had common intention with accused/appellants Madan Pal, Bijendra Pal and Parasram in causing above injury to Sanjay (PW 2) with a spade (FAWRA) as suggested by prosecution.

PW 2 Sanjay is the injured eyewitness of the incident. He has stated that on the day of incident, at about noon, he along with his father Dayaram, grandfather Gainda and uncle Rajpal (PW 1) was working in the sugarcane field in the Village Kalasia, when accused/appellants Madan Pal, Dharmu, Bijendra Pal and Parasram came there and started hurling abuses at him and others. The witness has further narrated that the accused were asked to desist from using foul language, but they got enraged and accused Dharmu picked up a spade assaulted at his leg. The witness has further stated that other accused also assaulted him. In the cross examination, the witness has admitted that his family had enmity with the accused persons over the land in which he and his father were working. He further disclosed in the cross examination that his uncle Rajpal also suffered a blow of LATHI. He denied the allegation that he concocted the story, due to enmity with the accused.

PW 1 Rajpal has supported the statement of PW 2 Sanjay. This witness has also narrated that on the day of incident, at about noon, the accused persons armed with DANDA and LATHI came on the field and he was assaulted by the accused. He further told that accused Dharmu assaulted Sanjay (PW 2) with a spade lying there. This witness has further stated that he orally informed the Police about the incident at the Police Outpost, Goverdhanpur. PW 1 Rajpal has further told that injured Sanjay was taken in bullock cart to Hospital at Raisi, but only Compounder was available in the Hospital, who after giving some medicines asked the injured to come on the next day for medical examination of the injury by the Doctor. Accordingly, on the next day the injury was recorded by the Medical Officer.

On re-appreciation of entire evidence on record, this Court agrees with the trial court that prosecution has successfully proved the charge of offence punishable u/s 324 of I.P.C., against the accused/appellant Dharmu, and the charge of offence punishable u/s 324 read with Section 34 of I.P.C., against rest of the accused/appellants namely Madan Pal, Bijendra Pal and Parasram. As such, no interference is required on the point of conviction recorded by the trial court.

However, on behalf of the appellants learned Amicus Curiae submitted that considering the cross version of the incident stated by DW 1 Rampal it will be just and proper if the accused/appellants are given benefit of Section 4 of Probation of Offenders Act, 1958. On considering the facts and circumstances of the case, and cross version of the incident, this Court finds that it is a fit case where the convicts (appellants) should be given benefit of Section 4 of the aforesaid Act. Accordingly, this appeal is disposed of, affirming the conviction recorded by learned Sessions Judge, Haridwar, in Sessions Trial No. 304 of 1995, against the accused/appellant Dharmu u/s 324 of I.P.C., and against accused/appellants Madan Pal, Bijendra Pal and Parasram u/s 324 /34 of I.P.C. But instead of making the accused/appellants to undergo sentence of rigorous imprisonment for a period of one year (as directed by the trial court), it is directed that if the accused/appellants furnish personal bond of Rs. 20,000/- and one surety of similar amount for each one of them to keep their conduct good for one year, they shall be released on probation u/s 4 of Probation of Offenders Act, 1958, by the trial court. In case they fail to furnish the bonds as above within one month of notice received from trial court, they shall undergo the sentence of imprisonment of one awarded by the trial court. Lower Court record be sent back for compliance of this order.