DASHRATH Vs. STATE OF MP

JUDGEMENT

(1.) APPELLANT stands convicted under section 326 of Indian Penal Code ('Code' in short) and sentenced to undergo RI for three years and fine of Rs. 350/-. In default to further undergo RI for two months with the direction for setting off the period of detention from the jail sentence. Motilal (PW 1) has deposed that appellant had given a blow of axe on his back while co-accused Attoo and Jagdish had given blows of lathi on his head. Balbir (PW 2), his son, has supported Motilal (PW 1) fully. Such a story was also corroborated by first information report (Ex. P-1) lodged by Motilal (PW 1), at P.S. Pandokhar situate 9 km away from the spot within 2.30 hours. Certainly, there was no time for consultation or deliberation available to the complainant who was under the influence of occurrence at that time.

(2.) DR . Govind Singh (PW 4) had noted an incised wound on the back of Motilal (PW 1). He had noted two more incised wounds on the head of victim. According to him, injuries could be dangerous to his life. His report (Ex. P-6) discloses that the patient was at concussion stage, blood pressure was 80 x 40 mm of HG. Pulse was 100 per minute. Vomiting was present. Clotted blood was present. The case was referred to CMO, Madhav Dispensary, Gwalior for X-ray of skull, A.P. lateral, and the X-ray of the back of the body and further treatment. However, X-ray reports had not come on record. Certainly, condition of patient was due to injuries caused to his head which were not attributed to the appellant. Such head injuries were attributed to co-accused who have been acquitted by the Court below. In absence of X-ray report, it could not be held that the injury caused by appellant was either dangerous to life or grievous. Certainly, if the other co-accused were responsible for the precarious condition of victim and such co-accused persons responsible for causing the said injuries have been acquitted, appellant could not be convicted under section 326/34 of the Code taking into account the injuries caused to his head. Certainly, no common intention can be attributed to appellant with the co-accused who have been acquitted by the Court below. In this state of evidence, appellant could have been convicted only under section 324 of the Code and not under section 326 of the Code. However, vehement argument of Advocate for appellant that he could not be convicted on the same evidence on which co-accused were acquitted by the Court below, has no substance in it. If the learned trial Court has extended benefit of doubt to other co-accused, the appellant does not become entitled for acquittal. The Courts have power to sift grain from chaff and to believe the truth and to discard the untruth and thus can believe a witness in part only.

(3.) THUS , appeal is allowed in part. Conviction is altered to one under section 324 of the Code. Appellant is acquitted under section 326 of the Code. Sentence is modified. Appellant is on bail. The trial Court shall realize the fine amount and disburse the part of the same to the complainant as directed by this Court.