Ramsushil and Another vs State of Madhya Pradesh

N.K. Gupta, J.—Vide judgment dated 23.8.2005 passed by the learned JMFC Amarpatan District Satna in Criminal Case No. 76/2003 the applicants were convicted for the offence under Sections 323/34 and 325/34 of IPC and sentenced with one month''s RI and one year''s RI with fine of Rs. 200/-. In Criminal Appeal No. 177/2006 the learned Additional Sessions Judge Amarpatan vide judgment dated 6.1.2007 maintained the conviction for the offence u/s 323/34 and 325/34 of IPC but sentenced with a fine of Rs. 200/- and six months'' RI with fine of Rs. 200/-. Being aggrieved with the judgments of both the Courts below, this criminal revision is preferred by the applicants. Prosecution case, in short, is that on 8.12.2002 at about 1:00 PM a quarrel was initiated between the applicant Rajmani and one Sabhapati father of the complainant Satyajit and Rajmani scuffled with Sabhapati. Thereafter Satyajit and his brother intervened in the matter to save his father, and then Ramsushil, Medni, Chhotelal, Anil Kumar and 3-4 persons came with sticks and started assaulting the victims. Rajmani had assaulted by a stick on the mouth of the victim Satyajit, who sustained a severe injury on his lip. Various other persons were also injured. Ultimately, an FIR was lodged on 8.12.2002 which was recorded in a Rojnamcha. The victims Sabhapati and Satyajit were sent to the Civil Hospital, Ram Nagar. Dr. R.P. Garg (PW-5) had examined the victims. He gave his report Ex. P-2 and Ex. P-3 for the victims Sabhapati and Satyajit. He found two injuries to each of them, but for injury No. 2 of the victim Satyajit, he found that gums were tied but swollen. The blood was collected in the base of gums and two incisor teeth were found missing from the socket. Blood was oozing and therefore he found that the injury No. 2 caused to the victim Satyajit was grave. After due investigation, a charge sheet was filed before the competent Court.

The applicants-accused abjured their guilt. They did not take any specific plea. However, Ramadhar Dwivedi (DW-1) was examined.

The trial Court after considering the evidence adduced by the parties convicted and sentenced the applicants as mentioned above, whereas the fate of the criminal appeal was as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the applicants has contended that the injury caused to the victim Satyajit was not grave. If the evidence of Dr. R.P. Garg (PW-5) is considered, then he has accepted that if an assault is caused to a person, who did not have such teeth in his mouth, then such injury could be caused by assault given by a stick. But the symptom mentioned by Dr. R.P. Garg (PW-5) for the injury No. 2 indicates that the socket of both the teeth were filled up by bleeding and the gums were swollen. If such stroke was given on the teeth of victim Satyajit and his teeth were missing prior to the incident then due to the stroke, such perfused bleeding could be caused, if other teeth were damaged or they were in a position that those could be removed, but Dr. R.P. Garg (PW-5) did not find such a situation. Therefore, his report is acceptable that due to the assault caused on the mouth of victim Satyajit, he sustained injuries and he lost his two teeth.

The learned counsel for the applicants has submitted that Satyajit (PW-1) did not say in his case diary statement as well as in the FIR Ex. P-5 that he lost his teeth, and therefore it cannot be said that his teeth were broken in the incident. Satyajit (PW-1) has stated in his statement that the accused Rajmani gave forceful push by end of the stick on the mouth of the victim Satyajit, and therefore his lip was injured and two teeth were broken. Under such circumstances, if the details relating to broken of teeth were not given by the victim in his case diary statement, then it cannot be said that he did not have any teeth prior to the incident or his version can be discarded if no X-ray was done. Therefore, looking to the nature of the injury as proved by Dr. R.P. Garg (PW-5), the testimony of Satyajit (PW-1) is acceptable. It would be apparent that by forceful stroke of a stick on the mouth of victim Satyajit, he lost his two teeth, and therefore the injury caused to the victim Satyajit was grave.

Satyajit (PW-1), Sabhapati (PW-2), Mahendra (PW-3) and Upendra (PW-4) have stated that the applicant Rajmani gave a push by the edge of the stick on the mouth of the victim Satyajit causing lost of two teeth and the accused Ramsushil assaulted the victim Sabhapati. The testimony of these witnesses were duly corroborated by the FIR lodged on the same very day along with the medical report proved by Dr. R.P. Garg (PW-5). The testimony of both the victims was duly corroborated by the statements of Mahendra and Upendra. In the cross examination no material contradiction could be obtained. Under such circumstances, it was proved beyond doubt that the applicant Rajmani voluntarily caused a grave hurt to the victim Satyajit and he also assaulted the victim Sabhapati voluntarily causing hurt. It is also established that the applicant Ramsushil assaulted the victim Sabhapati. However, it cannot be said that he had common intention with the co-accused Rajmani in assaulting the victim Satyajit.

According to the prosecution story, initially a quarrel took place between the applicant Rajmani and the victim Sabhapati. Rajmani scuffled with Sabhapati and thereafter Satyajit intervened in the matter, and therefore Rajmani assaulted him by a stick on his mouth, but Satyajit (PW-1) did not allege that the accused Ramsushil assaulted him by any weapon. Similarly, Sabhapati (PW-2) has stated that Ramsushil held both the hands of the victim Satyajit when the accused Rajmani assaulted the victim Satyajit. However, Satyajit was the person, who sustained injuries should have also stated that the applicant Ramsushil held his hands. Witnesses Mahendra and Upendra did not say that the applicant Ramsushil held the hands of the victim Satyajit when the applicant Rajmani assaulting him. If the assault caused to the victim Satyajit is assessed, when push was given from the end of a stick on his mouth, then it could be given when the assailant was in front of the victim. If the applicant Ramsushil would have held the hands of the victim Satyajit, then the face of the victim Satyajit could not be in front of the applicant Rajmani so he could give a push by the end of the stick, and therefore when such a fact was not told by the victim Satyajit in the FIR Ex. P-5 or Rojnamcha dated 8.12.2002, then it cannot be said that the applicant Ramsushil held the hands of the victim Satyajit when the applicant Rajmani was assaulting him. If the witnesses Sabhapati and Satyajit are disbelieved to this fact, then there was no over-act against the applicant Ramsushil that he participated in the assault caused by the applicant Rajmani upon the victim Satyajit, and therefore his common intention cannot be presumed with the co-accused Rajmani for the offence u/s 325 of IPC. Hence, both the courts below have committed an error of law in convicting the applicant Ramsushil for the offence u/s 325/34 of IPC.

So far the sentence is concerned, the applicant Ramsushil is to be convicted for the offence u/s 323 of IPC for which a fine of Rs. 200/- is imposed upon him. Though as stated by the learned counsel for the applicants that he is a Government servant, but fine for offence u/s 323 of IPC is not a penalty of offence of molar turpitude and by such imposition of fine, the same would not cause any adverse effect in his service, and therefore looking to the quantum of fine, there is no need to interfere in the sentence directed against the applicant Ramsushil.

So far as the sentence of the applicant Rajmani is concerned, he was imposed a fine of Rs. 200/- for the offence u/s 323 of IPC and looking to the fine amount, there is no need to make any interference in that sentence. However, he is sentenced with six months'' RI with fine for the offence u/s 325 of IPC. The contention of the learned counsel for the applicants can be accepted that the applicant Rajmani was the first offender and he assaulted the victim Satyajit only for once. He was not intended to cause a grave injury to the victim Satyajit. He has faced the trial, appeal and revision for last 12 years. Looking to his harassment whereas he remained for 11 days in the custody during the appeal and revision, it would be proper not to impose a further jail sentence upon the applicant No. 2 Rajmani. His sentence may be reduced to the period for which he remained in the custody by enhancing the fine amount.

On the basis of the above discussion, the instant revision filed by the applicants is hereby partly allowed. The conviction and sentence for the offence u/s 325/34 of IPC passed against the applicant No. 1 Ramsushil is hereby set aside. He is acquitted from that charge. The remaining conviction is maintained. There is no change in the fine amount for the offence u/s 323 of IPC. The sentence of the applicant No. 2 Rajmani for the offence u/s 325 of IPC is reduced to the period for which he remained in the custody, but the fine amount is enhanced from a sum of Rs. 200/- to a sum of Rs. 5,000/-. The applicant No. 2 is directed to deposit the remaining fine amount before the trial Court within two months, failing which he shall undergo six months'' RI. If fine is deposited by the applicant No. 2 before the trial Court, then a sum of Rs. 4,000/- be provided to the victim Satyajit S/o. Shri Sabhapati resident of Village Maryadpur, Police Station Amarpatan District Satna by way of a compensation.

At present the applicants are on bail. Their presence is no more required, and therefore it is directed that their bail bonds shall stand discharged. A copy of this order be sent to both the courts below along with their records for information and compliance. The trial Court is directed that if fine is not deposited within the stipulated time, then the provisions of Section 68 of IPC shall be followed.