Mangesh vs State of Madhya Pradesh

N.K. Gupta, J.—This criminal appeal is preferred by the appellant being aggrieved by the judgment and order of sentence dated 18/6/2010 passed by the 5th Additional Sessions Judge (Fast Track Court), Chhindwara in ST No.146/2009, whereby the appellant was convicted of offence punishable under Section 325/ 34 of IPC and sentenced to three years'' rigorous imprisonment with fine of Rs. 5,000/-.

The prosecution''s case, in short, is that on 28.4.2009 complainant Samlobai and her daughter prosecutrix (PW-2) went to attend the marriage in the house of one Shabilal. At about 10:00 PM complainant found the prosecutrix to be missing. At about 2:00 AM in the night the complainant came back to her house whereas the prosecutrix came back at about 7:00 AM in the morning. When the complainant asked about the delay, then the prosecutrix told that accused Golu took her forcefully in a jungle (forest) and committed rape upon her. On 29.4.2009 at about 2:00 PM when the complainant was going to fetch the water, she saw accused Golu. When the complainant asked about his conduct, then quarrel took place. Co- accused Golu directed the appellant Mangesh to bring a base of gaiti (pick axe) and the appellant supplied that wooden base. Accused Golu assaulted the victim Samlobai with the base of gaiti, and therefore she sustained injuries on head and left elbow. An FIR was lodged at the concerned police station and a case was registered of offence under Sections 363, 366, 376, 323, 294/ 34 of IPC. After due investigation, a charge sheet was filed before the Court of Judicial Magistrate First Class, Chhindwara, who committed the case to the Court of Sessions and ultimately it was transferred to the 5th Additional Sessions Judge, Chhindwara.

The appellant-accused abjured his guilt. He took a plea that he was falsely implicated in the matter. In defence Anna (DW-1) and Meena (Dw-2) were examined.

The learned Additional Sessions Judge after considering the evidence adduced by the parties convicted co-accused Golu of the various offences, whereas the present appellant was convicted of offence under Section 325/ 34 of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties.

Samlobai (PW-2), prosecutix (PW-2), Rajni (PW-6) and Reena @ Rajiya (PW-7) are examined as eye-witnesses, whereas Rajni has stated that when she reached to the spot, Samlobai was taken in an auto-riksaw and she found her to be injured. The prosecutrix (PW-2) has stated that the incident of rape took place with her. She did not say that she was present when assault was caused to her mother Samlobai. Reena @ Rajiya has stated that quarrel took place between Samlobai and accused Golu. Golu demanded a stick from appellant Mangesh, who brought a stick and handed over to co-accused Golu and thereafter Golu assaulted her with that stick. Dr. Sunil Jain (PW-4) had examined the victim Samlobbai and gave his report Ex.P-8. He found two blunt injuries to her. Out of them, one was on her occipital region of the head and second was on her left elbow. In the X-ray report Ex.P-23 proved by Dr.N.S.K. Belariya (PW-13) a fracture was found in left ulna bone of the victim Samlobai. Hence, it is proved that accused Golu assaulted the victim causing a grave injury on her elbow.

The appellant as well as his co-accused tried to say that Golu had a right of private defence against the victim Samlobai. However, Samlobai was bare handed and she was asking the accused Golu as to how he dared to commit rape upon her daughter. Initially both the parties were unarmed and thereafter accused Golu demanded a stick from the appellant and appellant brought it. Looking to the circumstances, no right of private defence was accrued to accused Golu, and therefore the appellant cannot get the advantage of such defence taken by co- accused Golu as told by the defence witness Anna (DW-1). If the victim would have assaulted accused Golu by the base of gaiti and she would obtain that gaiti, then counter FIR must have been lodged by the accused Golu.

So far as the common intention of the appellant is concerned, it would be apparent that the appellant himself did not assault the victim Samlobai, but he was present and he specifically provided a heavy stick, which was a base of gaiti, and therefore at the time of supply of that stick, he would have the knowledge that his co-accused would assault the victim by that heavy stick and certainly a fracture would be caused due to impact of that stick. Hence the common intention of the appellant can be presumed due to his overt-act that he supplied a heavy stick to co-accused Golu. Hence the appellant was having the common intention that the co-accused would assault the victim by a heavy stick and to cause a grave injury, therefore the trial Court has rightly convicted the appellant of the offence under Section 325/ 34 of IPC.

So far as the sentence is concerned, the appellant was the first offender, who was only 19-21 years of age at the time of incident. If he would have below 21 years of age, then he was to be released on probation. He did not participate radically in the crime and he remained in the custody for 47 days. He has already deposited the fine amount of Rs. 5,000/- before the trial Court. Under these circumstances, it is a good case in which the remaining jail sentence of the appellant may be reduced to the period for which he remained in the custody.

On the basis of the aforesaid discussion, the present appeal filed by the appellant Mangesh is hereby partly allowed. The conviction of the appellant of offence under Section 325/ 34 of IPC is hereby maintained, but his jail sentence is reduced to the period for which he remained in the custody. There is no change in the fine amount. The appellant has shown the receipts to show that he has already deposited the fine amount before the trial Court.

At present the appellant is on bail, therefore his presence is no more required, therefore it is directed that his bail bonds shall stand discharged.

A copy of this judgment be sent to the concerned trial Court with its record for information.