Umrao Singh Piraji vs The State Of M.P.
2022 Latest Caselaw 13811 MP

                                                         1
                    IN THE HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                    BEFORE

                               HON'BLE SHRI JUSTICE SUJOY PAUL

                                   ON THE 27th OF OCTOBER, 2022

                              CRIMINAL APPEAL No. 487 of 2000

   BETWEEN:-
1. UMRAO SINGH PIRAJI S/O PIRAJI, AGED ABOUT 28 YEARS
   BABULAL S/O JAGANNATH, AGED ABOUT 23 YEARS,
2. R/O - VILLAGE-KAYASTA PIPLIYA,
   TEHSIL-SANWER, DISTRICT-INDORE (MADHYA PRADESH)
                                                                                             .....APPELLANTS

   (MS. RASHMI PANDIT, ADVOCATE)


   AND
   THE STATE OF M.P.,
   THROUGH POLICE STATION-SANWER, DISTRICT-INDORE (MADHYA PRADESH)
                                                                                            .....RESPONDENT

   (SHRI G.S. CHOUHAN, DEPUTY GOVERNMENT ADVOCATE)
   -------------------------------------------------------------------------------------------------------------------

      This appeal coming on for final hearing on this day, the Court delivered the
following:

                                              JUDGMENT

This criminal appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') assails the judgment dated 31.03.2000 passed in Sessions Case No.457/1998, whereby three accused persons were convicted for committing offence under Section 326/34 of Indian Penal Code, 1860 (for short 'IPC'). Undisputedly, one such accused namely; Antar Singh did not turn up at the time of pronouncement of judgment and therefore an arrest warrant was issued against him.

The other two accused persons namely; Umrao Singh and Babulal have jointly filed this appeal assailing the impugned judgment.

2. The facts in short are that on 31/05/1998, at around mid-night, the complainant Bhanwar Singh along with his two sons Ajab Singh and Liladhar was sleeping in his agricultural field. The accused persons armed with Dharia, Farsa and Lathi reached to the agricultural field of complainant. They started assaulting complainant Bhanwar Singh. As per the prosecution story, Antar Singh caused injury by means of Dharia on both the legs of the complainant. Appellant No.1 assaulted him by means of a Farsa because of which injuries were caused on both the hands of the complainant. Babu Singh caused injury by means of a wooden piece because of which certain injuries were caused on the back of hand of complainant. After hearing the cries of complainant and his sons, Nandram (PW/8) sleeping in a nearby agricultural field came to the scene of crime. When Nandram reached there, the accused persons fled away.

3. The prosecution story shows that at the place of incident, an electric bulb was providing light in which the sons of complainant and Nandram (PW/8) have seen the incident. The wife of complainant also reached to the scene of crime. The complainant was initially taken in a bullockcart followed by a Matador and FIR was promptly lodged by injured Bhanwar Singh at 7:30 AM in Police-Station-Sanwer, District-Indore (M.P.). The investigation commenced and injured Bhanwar Singh was medically examined by Doctor S.K. Silawat (PW/5). He found seven injuries on his body. It is stated that his dying declaration was also recorded.

4. The investigating agency, in turn, recovered plain and blood stained soil from the place of incident. Statements of Santosh, Nandram, Ajab Singh and Ratanbai were also recorded. The Investigating Officer (IO) G.J. Verma arrested the accused persons and as per information furnished by them, a bamboo (lathi) was recovered from Umrao, whereas Dharia and a similar Lathi was recovered from Antar Singh and Babu Lal respectively.

5. In turn, on committal, the matter came to the Sessions Court. The accused persons abjured the guilt. The Court below framed the charges under Section 307 read with Section 34 of IPC. The defense of the accused persons was that because of personal rivalry, they were falsely arraigned. In support of their stand, they produce Badridas (DW-1) and Karan Singh (DW-2). The Court below framed three questions for its determination and after recording the evidence and hearing the parties, came to hold that accused persons are not guilty for committing offence under Section 307 and in alternatively, Section 307/34 of IPC. While acquitting the accused persons from the said offences, the Court below opined that prosecution could establish its case beyond reasonable doubt that accused persons have caused grievous injuries to the complainant and therefore they are guilty for committing offence under Section 326/34 of IPC. The accused persons were directed to undergo sentence of four years of Rigorous Imprisonment.

6. Ms. Rashmi Pandit, learned counsel for the appellants urged that the appellants have been falsely implicated because of personal animosity between them and the complainant. The main accused is Antar Singh who could not be arrested by the prosecution. He remained absent even on the date of pronouncement of judgment.

7. Criticizing the prosecution story, Ms. Pandit urged that the incident had taken place at the mid night. It is not believable that in a dim light of an electric bulb, Nandram (PW/8), the so called independent witness identified the present appellants. The Court below has based its judgment on the deposition of Nandram (PW/8). As per his deposition, he was sleeping in the agricultural field of Madanlal which was four agricultural field away from the scene of crime. In his cross-examination, he could not narrate the distance between two places namely where he was sleeping and the place where alleged assault took place. Apart from this, when PW/8 was confronted with his statement recorded under Section 161 of Cr.P.C., he candidly admitted that he cannot throw light as to why in his said statement it is not mentioned that two sons of

complainant Bhanwar Singh were also present at the time of incident. Thus, this independent witness is not reliable and is "independent" for namesake.

8. On the strength of aforesaid contention, it is urged that the statement of sons of Bhanwar Singh namely Liladhar and Ajab Singh are also not trustworthy because it is highly doubtful whether both the sons remained present at the time of the incident. Had it be the case that they were present, the so called independent witness (P/8) would have certainly deposed it in his statement recorded under Section 161 of Cr.P.C.

9. The prosecution could recover Lathis from the present appellants which is not a deadly weapon. Ms. Pandit further argued that the sons of injured were interested witnesses and, therefore, their statements are liable to be discarded.

10. The next and last limb of argument of Ms. Pandit is that the necessary ingredients for attracting Section 326 of IPC are not available in the present case. In support of aforesaid contention, reliance is placed on Gwalior Bench order dated 03rd January, 2019 passed in MCRR No. 5920/2018 (Ram Singh and Others vs. State of M.P.).

11. Sounding a contra note, Shri Gaurav Singh Chouhan, learned Deputy Government Advocate for the State supported the impugned judgment. He submits that seven injuries were caused, description of which clearly shows that some injuries were grievous in nature. The injured and independent witness supported the prosecution story and there is no reason to disbelieve it.

12. The parties confined their arguments to the extent indicated above.

13. I have heard the parties at length and perused the record. At the outset, I deem it proper to deal with the order passed by Gwalior Bench in Ram Singh (Supra) on which reliance is placed. It is worth noticing that in the said case the petitioners therein challenged the order dated 12.11.2018 passed by trial Court whereby application filed under Sections 227 and 228 of Cr.P.C. has been rejected and charges under various Sections including Section 326 r/w Section 34 of I.P.C. were framed against the petitioners. The Gwalior Bench disposed of the revision mainly on the ground that

weapon allegedly used by petitioners was a "lathi" which is not a dangerous weapon. Apart from this, the Bench found that M.L.C. of injured shows that injuries are not covered under Section 320 of I.P.C.

14. In the instant case, the subject matter of challenge is a judgment of conviction based on the evidence lead by prosecution. Before the Court, two Doctors entered the witness box namely Dr. S.K. Silawat (PW/5) and Dr. Kailash Janwal (PW/7). (PW/5) has deposed that as many as seven injuries were found on the complainant. The injuries are as under:-

"1. Incised wound on the right hand palm below the index finger and middle finger.

2. Penetrating wound on the right hand upper arm ½ " x ½ " x 1/4" size.

3. Contused swelling on the left knee 4x2" size.

4. Lacerated wound on the left leg 1/1"x 1/4"x1/4" size.

5. Lacerated wound on the left leg middle 2"x1/4"x 1/4 " muscular.

6. Compound fracture of the right leg 3" from knee, 2"x1/2"x bone coming from wound.

7. Abrasion on the back of the chest 1/2"x 1/2" size."

15. Dr. Kailash Janwal (PW/7) proved the X ray reports (Ex.P-9 and P-10) and also his report based on said X rays (Ex.P-8). On the right leg of Bhanwar Singh, there were multiple fracture.

16. Section 320 of the IPC reads as under:-

"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

(First) - Emasculation.

(Secondly)--Permanent privation of the sight of either eye. (Thirdly)-- Permanent privation of the hearing of either ear, (Fourthly)--Privation of any member or joint. (Fifthly)-- Destruction or permanent impairing of the powers of any member or joint.

(Sixthly)-- Permanent disfiguration of the head or face.

(Seventhly)--Fracture or dislocation of a bone or tooth. (Eighthly)--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

(Emphasis supplied)

17. The 'fracture' of a bone falls within the ambit of 'grievous hurt' as per Section 320 of I.P.C. Thus, the order of Gwalior Bench in Ram Singh (Supra) cannot be pressed into service in a case of this nature.

18. The complainant Bhanwar Singh (PW/1) in his statement deposed that he was sleeping with his sons Liladhar and Ajab Singh. Antar Singh caused injuries by means of Dharia on his leg. There were multiple injuries caused by Dharia. Umrao Singh caused injury by means of Farsa whereas Babu Singh used a Lathi having an iron part. Both the sons cried for help and therefore Nandram (PW/8) came to the place of incident. He also proved his FIR which was promptly recorded within few hours of the incident.

19. The son of complainant Liladhar (PW/2) also deposed his statement in the same line. Ratanbai, wife of the complainant (PW/3) deposed that she got information about the incident from her son Ajab Singh at around 01:00 AM. She alongwith bullock-cart reached to the place of incident and found grievous injuries on the body of her husband. She also deposed that promptly a report was lodged in Sawner Police Station. She identified the accused persons. The complainant, his son and wife deposed that all the accused persons threatened the complainant few days back that if he continues to work with Ramesh Maharaj, he will be murdered. Another witness Santosh (PW/4) turned hostile.

20. As noticed above, Dr. S.K. Silawat (PW/5) has proved the nature of injuries in his deposition. Madan (PW/6) also turned hostile. Dr. Kailash Jonwal (PW/7) proved the X- ray and his report. In this judgment, the statement of Nandram (PW/8) is also criticized by the learned counsel for the appellants.

21. A microscopic reading of statement of Nandram (PW/8) does not inspire confidence. As per his deposition, he was sleeping in the agricultural field of Madanlal which was four agricultural fields away but during the cross-examination, he could not narrate about the approximate distance between the said two fields. Similarly, there is an omission in his statement recorded under Section 161 of Cr.P.C. (Ex.D/2) if examined in juxtaposition with his own statement relating to presence of sons of Bhanwar Singh at the scene of crime. Thus, I find substance in the argument of learned counsel for the appellants that his statement is not trustworthy and the Court below has committed an error in placing reliance on his statement. Ramesh (PW/9) deposed that he provided one Ox to the wife of the complainant so that cart can reach to the agricultural field where the injured Bhanwar Singh was lying.

22. The consequence of discarding the statement of Nandram (PW/8) is that it becomes doubtful whether both the sons of the complainant were also present at the scene of crime. However, it is worth noting that as per the Indian Evidence Act, the number of witnesses or in other words, quantity of witnesses is not material for the purpose of examining the prosecution story. What is material is the quality of evidence. If a singular witness's statement is of sterling quality, the conviction can be recorded based there upon. Moreso when such statement is corroborated by other evidence like medical evidence etc.

23. In the considered opinion of this Court, the statement of complainant is clear and unambiguous. No dent could be caused to the said deposition during cross examination. Both the doctors aforesaid, made it clear about the nature of injuries caused to the complainant. At the cost of repetition, the injuries fall within the ambit of Section 320 of IPC.

24. Since this Court is not giving stamp of approval to the impugned judgment on the basis of statements of sons of complainant and Nandram (PW/8), the arguments relating

to 'related' witnesses fades into insignificance and need not be answered in this judgment.

25. The defence witnesses although made an attempt to put-forth a defence but the Court below has considered the said statements in sufficient detail and in my opinion, the Court below has rightly disbelieved the said statements. The Court below rightly found that the statements of defence witnesses Badridas (DW/1) and Karan Singh (DW/2) rather establishes that the wife of complainant reached the place of incident at the mid night to assist him.

26. A person sleeping in his agricultural field (complainant) was beaten-up and grievous injuries were caused to him. This cannot be an outcome of any sudden fight. Such incident can take place only when it is well designed and there exists a motive behind it. Thus, by no stretch of imagination, this Court can believe that incident was innocuous in nature.

27. In view of foregoing analysis, in my opinion, the prosecution could establish its case beyond reasonable doubt. The Court below has not committed any error of law in recording conviction under Section 326/34 of IPC. The sentence is also not harsh or disproportionate which warrants interference by this Court. Since, the Court below has taken a plausible view, no interference is warranted by this Court. The appeal sans substance and is hereby dismissed. The appellants were enjoying the benefit of suspension of sentence, hence shall forthwith surrender to undergo the remaining part of the jail sentence.

28. The appeal is dismissed.

(SUJOY PAUL) JUDGE Arun / Aiyer Digitally signed by JAGDISHAN AIYER DN: c=IN, o=HIGH COURT OF MADHYA

JAGDISH PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=a447e9805af75a6ef46d4975800d abec4b062d9acd7546137cc740fb3cea160 3,

AN AIYER pseudonym=3917928A3AE7A87FD8C5B90 E99C8443C3C374C7B, serialNumber=792833C4F82AE97E2F684A 6820ED44AD2B4B44A3D238FD6282963DA 8B6BF7ADD, cn=JAGDISHAN AIYER Date: 2022.10.27 22:48:31 +05'30'