Madhya Pradesh High Court
Ramkesh Paal vs The State Of Madhya Pradesh on 17 October, 2023
Author: Sanjeev S Kalgaonkar
1
IN THE HIGHCOURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL APPEAL No.6799 OF 2018
BETWEEN:-
1.RAMKESH PAAL S/O PRABHUDAYAL PAAL AGE 26
YEARS.
2. KARAN PAL S/O BHAGGU PAAL, AGE 28 YEARS'
3. PRABHU @ PAHALWAN PAAL S/O BHAGGU PAL AGE 60
YEARS
ALL R/O VILLAGE SUJED POLICE STATION BHANDER
TEHSIL BHANDER DISTRICT DATIA
.....APPELLANTS
(BY SHRI HEMANT SINGH RANA- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
THE
S
STATION AJK (DURSADA), DISTRICT DATIA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI NITIN GOYAL- PANEL LAWYER)
---------------------------------------------------------------------------------------
Reserved on : 23.08.2023
Pronounced on : 17.10.2023
----------------------------------------------------------------------------------------
This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Sanjeev S Kalgaonkar
pronounced the following:
2
JUDGEMENT
1. This criminal appeal is filed assailing the judgment and conviction
and order of sentence dated 14.08.2018 passed by the Court of Special
Judge, Datia, Special Judge (Atrocities Act), Datia in Special Case No.66
of 2014 whereby the appellants stand convicted and sentenced as under:-
Appellant Conviction Imprisonment Fine amount Default
under Section Stipulation
Ramkesh 323/34 of IPC Three months' Rs.500/-(each One months' RI
(five counts) RI(each count) count) (each count)
324/34 of IPC Six months' RI Rs.500/- One-months' RI
Karanpal 323/34 of IPC Three months' Rs.500/-(each One months' RI
(five counts) RI(each count) count) (each count)
324/34 of IPC Six months' RI Rs.500/- One months' RI
Prabhu @ 323/34 of IPC Three months' Rs.500/-(each One months' RI
Pahlwan (five counts) RI(each count) count) (each count)
324/34 of IPC Six months' RI Rs.500/- One months' RI
2. The exposition of facts, giving rise to present appeal as under:-
(i) Dashrath Ahirwar reported to Police Station Dursada, District Datia
on 28.02.2014 at 16.30 hours that on the same day, he was at his home in
village Sujed. Around 3:30 in the afternoon, Ramkesh was passing from
front of his house. He enquired from Ramkesh about assault on his
nephew Rohit. Ramkesh started abusing him in filthy language with
reference to his caste. He objected to the abuses. Ramkesh assaulted him
with iron rod (sariya) on his right shoulder. Hearing his shout, his brother
Jagmohan, Ramlal, Rohit, his wife Rajkumari and sister-in-law Sharda
rushed to the spot. Meanwhile, accused Karan armed with axe (Kulhadi),
accused Prabhu armed with wooden stick (lathi) also arrived on the spot.
Karan assaulted Jagmohan with axe on his head, Prabhu assaulted
Dashrath with wooden stick (lathi) on his left leg, Ramkesh assaulted him
with iron rod. Accused Pahlwan @ Prabhu assaulted Rohit with wooden
stick (lathi). All the three accused assaulted Jagmohan, Ramlal, Rohit,
Rajkumari and Sharda and caused injuries to them. Thereafter, accused
fled away threatening to kill them. On such allegations, Police Station
Dursada, Datia registered FIR at Crime No.18 of 2014 for offence
punishable under Sections 323, 324, 506 read with Section 34 of IPC and
Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act. The injured Dashrath, Jagmohan Lal, Rohit, Sharda,
Rajkumari were forwarded for medico legal examination at CHC,
Bhander. In X-ray examination, fracture of humerus bone on right hand
of Rohit was found. Statements of witnesses were recorded. Relevant
seizures were made. On conclusion of investigation, final report was filed
before the Special Court under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Datia.
(ii) Learned Special Judge, Datia framed charges for offence
punishable under Section 3(1)(10) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act and Section 323 read with Section 34
(6 counts), Section 324, in the alternative, Section 324 read with Section
34 of IPC, Section 325, in the alternative, Section 325 read with Section
34 of IPC and Section 506 of IPC against the accused. On completion of
trial, learned Special Judge, Datia convicted and sentenced the appellants
as aforementioned vide judgment dated 14.08.2018. Learned Special
Judge acquitted the accused for offence punishable under Section 325, in
the alternative, Section 325 read with Section 34 of IPC and Section 506
of IPC and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.
3. Feeling aggrieved by the impugned judgment of conviction and
order of sentence, this appeal is filed on the following grounds:-
(i) Learned trial Court has failed to consider material contradictions and
inconsistencies in the testimony of prosecution witnesses. The independent
witness Bhagwan Das (PW-10) did not support the prosecution case.
(ii) No independent witnesses of locality were examined by the police in
spite of availability.
(iii) As per the prosecution case, there was previous enmity between the
parties, therefore, the prosecution evidence was doubtful.
(iv) Learned trial Court failed to appreciate the evidence properly.
4. On aforementioned grounds, it is requested that the impugned
judgment dated 14.08.2018 be set aside and the appellants be acquitted.
5. Per contra, learned counsel for the State submits that the trial
Court committed no error in convicting the appellants. The sentence of
trial Court in circumstances of a case is appropriate, therefore, the appeal
deserves to be dismissed.
6. Heard both the parties and perused the record.
7. The points for determination in this appeal are as under:-
(i) Whether learned trial Court committed error in appreciation of
evidence on record?
(ii) Whether trial Court committed an error in sentencing the accused
instead of extending them benefit of the Probation of Offenders Act,
1958?
8. Dashrath Ahirwar (PW-2) stated that accused Ramkesh has
assaulted his nephew Rohit. Around 3:30 in the afternoon. He asked
Ramkesh why he had assaulted Rohit. Ramkesh started abusing him with
reference to his caste, he took objection to abuse. Accused Ramkesh
assaulted him with iron rod (sariya) on his right shoulder (bhakhora). As
he shouted, his brother Ramlal, his nephews Rohit and Jagmohan, wife
Rajkumari and sister-in-law Sharda came to spot. Karan assaulted with
axe on head of Jagmohan, Prabhu @ Pahlwan assaulted Jagmohan on his
leg with lathi, Pahalwan assaulted Rajkumari on her back with lathi,
Pahalwan assaulted Sharda and Rohit with lathi. He had lodged report
(Ext.P-2). They were forwarded for medico legal examination. No
material contradiction or inconsistency is available in the testimony of
Dashrath.
9. The testimony of Dashrath (PW-2) is corroborated by other injured
witnesses Jagmohan (PW-3), Ramlal (PW-4), Sharda (PW-5), Ramkumari
(PW-6) and Rohit (PW-7).
10. Learned counsel for the appellants referring to inconsistencies in
the statements of these witnesses contended that all witnesses relate to
same family and there had been previous dispute between the parties,
therefore, their testimony is not worthy of credence. Learned counsel also
contended that the witnesses have exaggerated the incident with regard to
injuries caused by the accused.
11. Learned counsel for appellants further contended that independent
eye witness, Bhagwandas (PW-10) did not support the prosecution. No
other independent witness was examined by the prosecution. It is trite law
that in partisan communities, independent witness seldom comes forward
to depose, therefore, failure of examination of independent witness
cannot be a sole reason to discard the case of prosecution. In case of
Masalti v. State of U.P., AIR 1965 SC 202, it was observed -
14. Mr Sawhney has then argued that where witnesses giving evidence in a
murder trial like the present are shown to belong to the faction of victims, their
evidence should not be accepted, because they are prove to involve falsely
members of the rival faction out of enmity and partisan feeling. There is no
doubt that when a criminal court has to appreciate evidence given by witnesses
who are partisan or interested, it has to be very careful in weighing such
evidence. Whether or not there are discrepancies in the evidence; whether or
not evidence strikes the court as genuine whether or not the story disclosed by
the evidence is probable, are all matters which must be taken into account. But
it would, we think, be unreasonable to contend that evidence given by
witnesses should be discarded only on the ground that it is evidence of partisan
or interested witnesses. Often enough, where factions prevail in villages and
murders are committed as a result of enmity between such factions, criminal
courts have to deal with evidence of a partisan type. The mechanical rejection
of such evidence on the sole ground that it is partisan would invariably lead to
failure of justice. No hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has to be cautions in
dealing with such evidence; but the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct.
(emphasis added)
Further, in case of State of U.P. v. Ballabh Das, (1985) 3 SCC 703, it was
observed -
3. It was contended on behalf of the appellant that the High Court erred in set-
ting aside the conviction of the respondents on the ground that all the witness-
es examined to prove the occurrence were interested persons and hence no re-
liance could be placed on their evidence. To begin with, we dare say that this
was doubtless an absolutely wrong and perverse approach. There is no law
which says that in the absence of any independent witness, the evidence of in-
terested witnesses should be thrown out at the behest (sic) or should not be re-
lied upon for convicting an accused. What the law requires is that where the
witnesses are interested, the court should approach their evidence with care
and caution in order to exclude the possibility of false implication. We might
also mention that the evidence of interested witnesses is not like that of an ap-
prover which is presumed to be tainted and requires corroboration but the said
evidence is as good as any other evidence. It may also be mentioned that in a
faction-ridden village, as in the instant case as mentioned by us earlier, it will
really be impossible to find independent persons to come forward and give ev-
idence and in a large number of such cases only partisan witnesses would be
natural and probable witnesses. This Court in Badri v. State of U.P. [(1975) 4
SCC 609 : 1975 SCC (Cri) 644 : AIR 1975 SC 1985] made the following ob-
servations: [AIR Headnote] (SCC p. 616, para 6)
" In case where a murder takes place in a village where there are
two factions bitterly opposed to each other, it would be idle to
expect independent persons to come forward to give evidence
and only partisan witnesses would be natural and probable wit-
nesses to the incident. In such a case, it would not be right to re-
ject their testimony out of hand merely on the ground that they
belonged to one faction or another. Their evidence has to be as-
sessed on its own merits."
12. Dr. R.S.Parihar (PW-11) examined the injuries of Dashrath,
Jagmohan Lal, Rohit, Sharda, Rajkumari. The testimony of Dr. R.S.
Parihar duly corroborates injuries on person of Dashrath, Jagmohan Lal,
Rohit, Sharda, Rajkumari by relevant weapons, within relevant time, at
relevant part of the body of the injured. Thus, medical evidence duly
corroborates ocular evidence of the injured.
13. Learned Counsel for appellants contended that the prosecution
witnesses have failed to state specific role of each of the accused. There is
inconsistency in prosecution evidence with regard to causing of injury to
each of the injured also. Where number of assailants have caused multiple
injuries to many injured, it is not possible to explain the act of individual
accused. In case of Annareddy Sambasiva Reddy v. State of A.P., (2009)
12 SCC 546, it was observed -
34. The omissions and discrepancies pointed out in the evidence of PW 1 and
PW 3 are only minor and do not shake their trustworthiness. It is true that nei-
ther PW 1 nor PW 3 assigned specific injuries or specific overt acts attributed to
the accused individually but looking to the nature of the incident where a large
number of persons attacked D-1, D-2, PW 1, PW 2 and PW 3, it would not have
been possible for PW 1 or PW 3 to attribute specific injury individually to each
accused. How could it be possible for any person to recount with meticulous ex-
actitude the various individual acts done by each assailant? Had they stated so,
their testimony would have been criticised as highly improbable and unnatural.
The testimony of the eyewitnesses carries with it the criticism of being tutored if
they give graphic details of the incident and their evidence would be assailed as
unspecific, vague and general if they fail to speak with precision. The golden
principle is not to weigh such testimony in golden scales but to view it from the
cogent standards that lend assurance about its trustfulness.
14. Sub Inspector - Vedram Singh Yadav (PW-13) stated that he had
written FIR (Exhibit P-2) on information of Dashrath Ahirwar on
28/02/2014. Dashrath has reported the incident at 16:30 hours on the
same day Police Station Dursada which is 5 kms away from the place of
incident at village-Sujed. There is no material inconsistency or
contradiction in evidence of the Dasrath with reference to FIR (Exhibit P-
2). Thus, prompt and consistent First Information Report corroborates the
testimony of Dashrath Ahirwar under Section 157 of the Evidence Act.
Learned Trial Court in Para 25 of the judgment committed no error in
holding that testimony of Dashrath Ahirwar is duly corroborated by
prompt First Information Report. Learned Trial Court in Para 30 of the
judgment discussed recovery of relevant weapons at the instance of
accused Ramkesh Paal, Karan Paal and Prabhu @ Pahalwan Paal.
15. Learned trial Court in Paras 17, 18, 35 and 39 of the judgment
elaborately dealt with the medical evidence with reference to the ocular
evidence on record and committed no error in holding that the X-ray of
humerus bone of right hand of Rohit is not attributable to the present
incident. Therefore, the offence under Section 325, in the alternative,
Section 325 read with Section 34 of IPC is not proved, but other injuries
caused to Rohit are attributable to the present incident.
16. Learned trial Court extensively dealt with all the contradictions and
inconsistencies in the evidence of prosecution witnesses and concluded
that the accused have caused simple injuries to Dashrath, Ramlal, Rohit
and Rajkumari and Sharda in furtherance of common intention and
accused Karan has caused injury to Jagmohan by sharp edged weapon
axe in furtherance of common intention. Thus, the accused were found
guilty of offence punishable under Section 323 read with Section 34 of
IPC (5 counts) and Section 324 read with Section 34 of IPC. The finding
of learned trial Court is based on proper appreciation of evidence on
record, therefore, no interference is called for in the finding of learned
trial Court.
17. Learned counsel for the appellants relying on the judgment of Co-
ordinate Bench of this Court in case of Majboot Singh Vs. State of M.P.
order dated 07.09.2022 in Criminal Revision No.1113 of 2022 and the
judgment of Supreme Court in case of Mohd. Hasim Vs. State of U.P.
reported in 2017 AIR SCW 660 contended that the accused were
convicted for offence punishable under Section 323 of IPC. No previous
conviction was alleged against the accused, therefore, they deserve the
benefit of Probation of Offenders Act, 1958.
18. Section 4 of the Probation of Offenders Act provides for power of
the Court to release certain offenders on probation of good conduct.
Section 4 (1) of the Probation of Offenders Act reads as under:-
--(1) When any person is found guilty of having committed an offence
not punishable with death or imprisonment for life and the court by which
the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the
character of the offender, it is expedient to release him on probation of
good conduct, then, notwithstanding anything contained in any other law
for the time being in force, the court may, instead of sentencing him at
once to any punishment direct that he be released on his entering into a
bond, with or without sureties, to appear and receive sentence when
called upon during such period, not exceeding three years, as the court
may direct, and in the meantime to keep the peace and be of good
behaviour:
19. It is proved by prosecution beyond doubt that accused Ramkesh
had assaulted Dasrath, merely on his inquiry about assault of his nephew
Rohit. Accused have assaulted Dasrath, Jagmohan, Ramlal, Rohit, Sharda
and Rajkumari and caused multiple injuries. It goes to show criminality
of conduct and the nature of offence, therefore, learned Trial Court
considered it expedient to sentence the convicts instead of releasing them
on probation of good conduct. Thus, learned Trial Court has committed
no error in declining to extend benefit of Section 4 of the Probation of
Offenders Act to the appellants in the factual scenario of the case.
20. The propriety of sentence of imprisonment is considered.
Considering the socio-economic circumstances of the parties, it is
apparent that the incident happened on a trivial issue, the injuries caused
to Dasrath, Jagmohan, Ramlal, Rohit, Sharda and Rajkumari are simple in
nature. None of the injury relates to vital part of the body. Both the
parties are resident of village- Sujed. The incident happened in year 2014.
It can easily be inferred that both the parties might have proceeded with
their life. No further dispute is reported between the parties. In such a
scenario, jail incarceration may disturb peace and harmony between the
families, therefore, this appeal is partly allowed only on the point of
propriety of sentence and the impugned order of sentence is accordingly
amended as under:-
Appellant Conviction Imprisonment Fine amount Default
under Section Stipulation
Ramkesh 323/34 of IPC Nil Rs.1,000/-(each One months'
(five counts) count) RI(each count)
Till rising of the
324/34 of IPC Court Rs.1,000/- One-months' RI
Karan Pal 323/34 of IPC Nil Rs.1,000/-(each One months'
(five counts) count) RI(each count)
324/34 of IPC Till rising of the Rs.1,000/- One months' RI
Court
Prabhu @ 323/34 of IPC Nil Rs.1,000/-(each One months'
Pahlwan (five counts) count) RI(each count)
Till rising of the
324/34 of IPC Court Rs.1,000/- One months' RI
21. The fine amount deposited by appellant before trial Court shall be
set off. Further, the order of compensation is also amended to the effect
that on deposit of aforementioned fine amount, each of the injured shall
be paid Rs.3,500/- under Section 357 of Cr.P.C. as compensation.
(SANJEEV S KALGAONKAR)
JUDGE
Avi/vijay
VIJAY Digitally signed by VIJAY TRIPATHI
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
TRIP
GWALIOR,
2.5.4.20=663cb09dd950bfc3ea7ed
4f02d97ddae5364f1d4b042dbc599
21b76e812d2d6b,
postalCode=474001, st=Madhya
Pradesh,
ATHI
serialNumber=58392D8C4E7C9693
BFEEB5B46B3CA006F1127E890089
52BBEC528CE4D82551BD,
cn=VIJAY TRIPATHI
Date: 2023.10.17 17:58:49 +05'30'
