Madhya Pradesh High Court
Buddhe Lal And Ors. vs The State Of M.P. on 12 May, 2022
Author: Rajeev Kumar Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
ON THE 12th OF MAY, 2022
CRIMINAL APPEAL No. 978 of 1998
Between:-
CHHIDILAL S/O BUDDHELAL, AGED ABOUT 22
YEAR S , R/O VILLAGE SAKRI THANA UGALI
DISTRICT SEONI (MADHYA PRADESH)
.....APPELLANT
(NONE FOR THE APPELLANT)
AND
THE STATE OF MADHYA PRADESH THROUGH
THE POLICE STATION, UGALI, DISTRICT SEONI
M.P. (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AKHILENDRA SINGH, GOVERNMENT ADVOCATE)
This appeal coming on for final hearing this day, the Court passed the
following:
ORDER
This criminal appeal has been filed against the judgment dated 27/03/1998
passed by Sessions Judge, Seoni in S.T. No.104/1995, whereby learned
Sessions Judge found appellant Chhidilal and co-accused Buddhelal guilty for
the offence punishable under Section 307 read with Section 34 of the IPC and
Section 323 of the IPC and sentenced them under Section 307 read with
Section 34 of IPC, which is graver to undergo R.I. for three years with fine of
Rs.500/- each and found co-accused Jaimat Bai guilty for the offence
Signature Not Verified
SAN punishable under Section 323 of the IPC and sentenced her to fine Rs.500/-.
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST 2. It is pertinent to mention here that this appeal was filed by appellants
Buddhelal (dead), Chhidilal and Jaimat Bai (dead), but during the pendency of
appeal appellant No.1 Buddhelal and appellant No.3 Jaimat Bai died, so the
coordinate Bench of this Court vide orders dated 20/09/2019 and 07/04/2022
abated the appeal regarding appellant No.1 Buddhelal and appellant No.3 Jaimat
Bai respectively. So, this judgement is confined only upto appellant No.2
Chhidilal.
3. Brief facts of the case are that on 11/04/1995 at around 4:00 P.M.
co-accused Jaymat Bai was removing the Kavelu (Roof Tiles) of the hut of
Sitabai located at village Sakri. When Sitabai objected, co-accused Jaymat Bai
assaulted her with Kavelu and co-accused Buddhelal assaulted her with a stick.
When Dulichand and Pramila Bai came to rescue her, appellant Chhidilal and
co-accused Buddhelal assaulted Dulichand with sticks on his head. Appellant
Chhidilal and Co-accused Jaimat Bai also assaulted Pramila Bai. In the incident
Sitabai, Pramila and Dulichand sustained injuries. Sitabai lodged the report of
the incident at Police Station Ugali, District Seoni. A.K. Raikwar, Station House
Officer wrote that report in the Rojnamcha (Daly Diary) and sent Sitabai,
Pramila and Dulichand for medical examination and on receiving their medical
examination report he took the permission to investigate the crime from JMFC,
Seoni and after investigation filed Complaint No.03/1995 before JMFC, Seoni
against appellant Chhidilal and co-accused Buddhelal and Jaimat Bai for the
offence punishable under Sections 323/ 34 of the IPC. On the complaint,
learned JMFC registered Criminal Case No.655/1995 and framed the charge
against the appellant Chhidilal, co-accused Buddhelal and Jaimat Bai for the
offences punishable under Section 323 of IPC and tried the case. During the
Signature Not Verified
SAN
trial of the case, JMFC called the quarry report regarding the nature of injuries
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
sustained by the injured Dulichand in the incident. Prosecution took a quarry
report from Dr. Vinod Navakar (PW-5) who treated injured Dulichand. He gave
the report to the effect that Dulichand's injuries were grievous in nature. Because
of complications it may have proved fatal in lack of proper treatment. On
receiving that report learned JMFC observing that prima facie offence under
Section 307 of the IPC was made out against the appellant Chhidilal and co-
accused Buddhelal and Jaimat Bai committed the case to the Court of Sessions.
On that, Sessions Trial No.104/1995 was registered, which was tried by learned
Sessions Judge, Seoni. Learned Sessions Judge framed charges against the
appellant Chhidilal and co-accused Buddhelal for the offences punishable under
Sections 307 of the IPC and in the alternate under Sections 307/34 and 323 of
the IPC and against co-accused Jaimat Bai for the offence punishable under
Section 323 of the IPC and tried the case. Appellant Chhidilal and co-accused
Buddhelal & Jaimat Bai abjured their guilt and took the defence that they have
falsely been implicated in the offence. In the incident Dulichand, Sitabai and
Pramila Bai assaulted appellant Chhidilal and co-accused Buddhelal & Jaimat
Bai. In the incident they also sustained injuries. In this regard they also
produced injury reports of co-accused Buddhelal (Ex.D-1), appellant Chhidilal
(Ex.D-2), co-accused Jaimat Bai (Ex.D-3) and injury report of Bhagirath (Ex.D-
4) and also produced Narottam (DW-1) in their defence. However, after the trial
learned Sessions Judge found appellant and co-accused Buddhelal guilty for the
offences punishable under Section 307 read with Section 34 of the IPC and
Section 323 of the IPC and sentenced them under Section 307 read with
Section 34 of IPC, which is graver, to undergo R.I. for three years with fine of
Signature Not Verified
SAN
Rs.500/- each and found co-accused Jaimat Bai guilty for the offence
Digitally signed by ANURAG SONI
punishable under Section 323 of the IPC and sentenced her to fine Rs.500/-
Date: 2022.05.17 17:29:07 IST
with default clause. Being aggrieved by the judgement, appellant has preferred
this appeal.
4. Appellant Chhidilal has averred in his appeal memo that on the date
of incident i.e. 11/04/1995 appellant and co-accused Buddhelal & Jaimat Bai
were repairing the hut, which was purchased by them from Dashra for a sum of
Rs.2,200/- by registered sale deed and Dashra also gave possession of that hut
to them. At the time of incident said hut was in possession of appellant and co-
accused. Even in the revenue record the names of appellant and co-accused
were recorded. In the incident complainant party i.e. Dulichand, Sitabai and
Pramila were the aggressor. On the date of the incident i.e. 11/04/1995 at about
04:00 P.M. when appellant Chhidilal and co-accused Buddhelal & Jaimat Bai
were carrying out repair of the said hut, Dulichand, Pramila and Sitabai tried to
take possession of said hut from them and consequently altercation took place
between them. In the said incident, appellant and co-accused Buddhelal &
Jaimat Bai also sustained injuries and they also lodged the report regarding the
incident, but no action was taken by the Police on that report, so the appellant
and co-accused filed a private complaint. On that complaint, learned JMFC
registered Criminal Case No.310/1996 against Dulichand and others and
committed the case to the Court of Sessions. On that S.T.No.122/1997 was
registered. Learned Sessions Judge frame charges against Dulichand and other
co accused for the offence punishable under Section 447, 294, 323 of the IPC
and after trial learned Sessions Judge found them guilty for the offence
punishable under Sections 323 of the IPC and sentenced them to fine of
Rs.500/- each. Learned Sessions Judge without considering the fact that in the
Signature Not Verified
SAN
incident Dulichand, Pramila and Sitabai tried to take possession of the said hut
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
from the applicant and co-accused forcibly and complainant party i.e.
Dulichand, Sitabai and Pramila were the aggressors, wrongly found appellant
guilty for the aforesaid offences.
5. On the other hand learned counsel for the State submitted that from
the statement of prosecution witness guilt of the appellant is proved beyond
reasonable doubt, so learned trial Court did not commit any mistake in finding
the appellant guilty for the aforesaid offence.
6. Point of determination in this appeal is whether the conviction by the
learned trial Court to the appellant under Section 307 read with Section 34 of
the IPC and Section 323 of the IPC and the sentence awarded by the trial Court
is liable to be set aside for the reasons stated in the memo of appeal.
7. On the point that appellant Chhidilal and co-accused Buddhelal
assaulted Dulichand with stick and caused injury on his head, Dulichand (PW-2)
clearly deposed that in the incident appellant Chhidilal and co-accused
Buddhelal caused injury on his head with stick. In this regard his statement is
also corroborated by the statement of eyewitnesses of the incident/injured
Sitabai (PW-3) and Gannulal (PW-4). They have also stated that in the incident
appellant Chhidilal and co-accused Buddhelal assaulted Dulichand with a stick
on his head. In this regard the statement of Dulichand (PW-2) is also
corroborated from the statement of Dr. Smt. S.K. Kothari (PW-1), who
examined Dulichand soon after the incident and gave an injury report (Ex.P-1).
Dr. Smt. S. K. Kothari (PW-1) deposed that on 11/04/1995 she examined
Dulichand and found one lacerated wound on his parietal region and one
lacerated wound over his nose, which were caused by a hard and blunt object.
Signature Not Verified
SAN
On that point, there is no contradiction in the statements of Dulichand (PW-2)
Digitally signed by ANURAG SONI
and other eyewitnesses of the incident/injured i.e. Sitabai (PW-3) and Gannulal
Date: 2022.05.17 17:29:07 IST
(PW-4). So, there is no reason to disbelieve the statement of Dulichand (PW-2)
up to that point. Hence, it is proved that in the incident appellant Chhidilal and
co-accused Buddhelal assaulted Dulichand with a stick, due to which he
sustained injury on his head and nose.
8. But, as far as the nature of injury sustained by Dulichand (PW-2) in
the incident is concerned, Dr. Smt. S.K. Kothari (PW-1), who examined
Dulichand soon after the incident neither mentioned in her report (Ex.P-1) nor
deposed anything in evidence regarding the nature of injury sustained by
Dulichand in the incident. Though, Dr. Vinod Navkar (PW-5), who examined
Dulichand (PW-2) on 12/04/1995 has stated that Dulichand's head injury was
grievous in nature. Probably due to that injury pyogenic meningitis was caused
to Dulichand. Looking to the nature of the injury and the complications
involved, if Dulichand was not treated, he was likely to die. Dulichand's head
injury could have led to Dulichand's death in the absence of treatment. In this
regard his statement is also corroborated by the query report (Ex.P-7) given by
him. But Dr. Vinod Navkar (PW-5) in his cross-examination clearly admitted
that he did not find any fracture on Dulichand's skull and he also admitted that
he considered the head injury to be grievous therefore he mentioned this fact in
the report and there was no other reason. This shows that Dr. Vinod Navkar
(PW-5) treated the said injury as grievous merely on the ground that the injury
was caused over the head. Whereas, an injury caused over the head cannot be
said to be grievous unless it is of any kind mentioned in Section 320 of the
Indian Penal Code. From his cross-examination it also appears that he gave a
report merely on the basis of assumption that pyogenic meningitis was caused
Signature Not Verified
SAN
to Dulichand due to the head injury sustained by him in the incident. So only on
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
the basis of the statement of Dr. Vinod Navkar (PW-5) it also cannot be said
that pyogenic meningitis was caused to Dulichand due to the injury caused by
appellant and co-accused in the incident.
9. Dr. S.K. Shrivastava (PW-6) has also stated that he treated
Dulichand in the District Hospital, Seoni. He found that he had suffered from
pyogenic meningitis, which was probably caused due to the head injury. In this
regard, he had also given the reports Ex.P-8 and Ex.P-9, but from his statement
also it is clear that he gave that opinion only on the basis of probabilities.
Therefore, only on the basis of the opinion given by Dr. S.K. Srivastava (PW-
6), it cannot be concluded with certainty that Dulichand had pyogenic
meningitis due to the head injury. Although, from the statement of Dr. S.K.
Srivastava (PW-6) it appears that Dulichand was admitted in District Hospital,
Seoni for treatment from 12/04/1995 to 06/06/1995, but no such evidence is on
record which shows that Dulichand remained in severe bodily pain, or unable to
follow his ordinary pursuits for 20 days. Therefore, even on the basis that
Dulichand was hospitalized for more than 20 days, it cannot be concluded that
the injuries suffered by Dulichand were grievous in nature. Hence, only on the
basis of the statement of Dr. Smt. S.K. Kothari (PW-1), Dr. Vinod Navkar
(PW-5) and Dr. S.K. Shrivastava (PW-6) it cannot be said that in the incident
Dulichand sustained any grievous injury.
10. Injured Dulichand (PW-2) himself did not state that appellant
Chhidilal and co-accused Buddhelal caused injury with intent to kill him. On the
contrary it appears from the record that quarrel took place between appellant,
co-accused Buddhelal & Jaimat Bai and Dulichand regarding possession of hut
Signature Not Verified
SAN
and in the incident both the parties sustained injuries.
Digitally signed by ANURAG SONI
11. So, in the considered opinion of this Court, learned trial Court
Date: 2022.05.17 17:29:07 IST
committed a mistake in holding that the appellant Chhidilal and co-accused
Buddhelal assaulted Dulichand with intent to kill him or caused injury which was
grievous in nature or dangerous to life. What only appears from the statement of
prosecution witnesses that appellant Chhidilal and co-accused Buddhelal
assaulted Dulichand with a stick and caused simple injury, and merely resulting
in an offence under Section 323 of the IPC against the appellant Chhedilal .
12. Learned Trial Court also held the appellant Chhidilal guilty for the
offence punishable under Section 323 of IPC for voluntarily causing simple hurt
to Pramila Bai in the incident, although the trial Court has not awarded any
sentence to him for that offence. These findings of the trial Court also do not
appears to be correct. Learned Trial Court itself held that there was a free fight
between the parties in the incident to take possession over the hut. This fact is
also proved from the injury reports of the appellant Chhidilal, co-accused
Budhelal and Jaymatbai (Ex.D-1 to Ex.D-3), which show that appellant
Chhidilala, co-accused Buddhelal & Jaimat Bai had also sustained injuries in the
incident. In the case of a free fight, every person shall be deemed to be
responsible only for his own act. Prosecution has not produced Pramila Bai in
evidence. Other eyewitnesses of the incident Dulichand (PW-2), Sitabai (PW-3)
and Gannu Lal (PW-5) in their Court statements have not stated that appellant
had also assaulted Pramila Bai during the incident . So in the considered opinion
of this Court, the trial Court committed a mistake in finding appellant Chhidilal
guilty under Section 323 of the IPC for causing simple injury to Pramila Bai.
Hence the conviction of the appellant Chhidilal under Section 323 of the IPC
for causing simple injury to Pramila Bai is set aside.
Signature Not Verified
SAN
13. As discussed above in the considered opinion of this Court, the trial
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
Court committed a mistake in finding the appellant Chhidilal guilty for the
offence punishable under Section 307 read with Section 34 of IPC. Merely the
offence for causing simple hurt to Dulichand under Section 323 of IPC is made
out against the appellant Chhidilal. So, appeal is partly allowed and the
conviction of the appellant Chhidilal is altered from Section 307 read with
Section 34 of IPC to Section 323 of IPC and he is acquitted from the charge
under section 323 of IPC for causing simple hurt to Pramila Bai.
14. So far as sentence is concerned, from perusal of record it appears
that at the time of incident appellant Chhidilal was a young boy aged about 19
years and he has been facing the trial since 1995. It also appears that the
appellant has already undergone more than two months in jail, so looking at the
facts and circumstances of the case, the sentence already undergone by
appellant Chhidilal would be sufficient in the given facts and circumstances of
the case. So, the impugned judgment and order of conviction of the appellant
for the offence punishable under Section 307 read with Section 34 of the IPC is
altered to Section 323 of IPC and sentence of appellant Chhidilal is reduced to
the period already undergone. Appellant is on bail, so his bail bond stands
discharged.
15. A copy of this judgment be sent to the concerned trial Court for
information and necessary compliance.
16. With the aforesaid, appeal stands disposed of in the terms indicated
above.
Certified copy as per rules.
Signature Not Verified
SAN
(RAJEEV KUMAR DUBEY)
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
JUDGE
as
Signature Not Verified
SAN
Digitally signed by ANURAG SONI
Date: 2022.05.17 17:29:07 IST
