SUNIL KUMAR PANDEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellants have preferred this appeal being aggrieved by the judgment dated 13-6-2000 passed by the Vth Addl. Sessions Judge, Bhopal in sessions Trial No. 339/98, whereby each of them have been convicted under sections 325 and 325/34 of the IPC with the punishment suffered by them in judicial custody with fine of Rs. 4,000/ -. In default of it, further S. I. one month was awarded.

(2.) THE facts giving rise to this appeal in short are that on dated 25-9-98 at about 6 O'clock in the morning, wife of appellant Narbadeshwar was digging the soil at the back side of the hut. The same was objected by the wife of complainant Rajeswar Prasad Tripathi. In response to it, appellant Nos. 1 and 2, namely, Sunil Kumar Pandey and Narmadeshwar Prasad came there with rod and threatened the complainant's family to kill them. Under such fear, Santosh the son of the complainant was going to lodge a report by scooter. He was restrained and apprehended by appellant No. 1 Sunil Pandey and also subjected to a blow of iron rod on his head by which Santosh fell down. He was again subjected to a blow of stick by appellant No. 2 on his leg. The blood was profused from such injuries. The incident was seen by Rambadan, Meena, Ramratan and simhal. The complainant and victim Santosh went to Police Station, govindpura and lodged a report from where the victim was sent to hospital. On medical examination, his MLC report was prepared. During investigation, after arresting the appellant and interrogating the witnesses, the alleged implements, i. e. , rod and stick were seized from the appellants. After completion of the investigation, the appellants were charge-sheeted for the offence punishable under Sections 307/34 of the IPC. The case was committed to the Sessions court, where on framing the charges for the aforesaid sections against the appellants, they abjured the guilt, on which, the trial was held. The same was concluded in conviction of the appellants under Sections 325,325/34 of the IPC instead of Section 307/34 of the IPC, for which each of them were punished with the punishment as mentioned above. The same is under challenged in this appeal.

(3.) SHRI Amit Verma, learned Counsel for the appellants assailed the impugned conviction on the ground that the story putforth by the prosecution has not been proved by any independent source of the evidence. Although, the incident took place at a public place in day-light but in view of the previous enmity between the parties, in the absence of any independent evidence, the alleged conviction is not sustainable. He elaborated his arguments by saying that the deposition of Shiv Kumari (P. W. 3), the mother of the victim, could not be considered for any purpose as her case-diary statement was not recorded during investigation. The inter se inconsistency in the statements of Rajeshwar Prasad and Santosh Kumar have also not been considered by the Trial Court. He also said that in the absence of X-ray plate or the skiagrams, the X-ray report was not admissible. Thus, the alleged conviction of the appellants under Sections 325, 325/34 is not sustainable. According to him, in such situation, the appellants could not be held guilty for more than offence of Section 323 of the IPC as the fracture on the head of the victim has not been proved by admissible evidence the skiagrams, and also prayed for such modification. He further said that on such modification or in any case, the appellant No. 1 could not be punished with the jail sentence because he was below 19 years of the age on the date of the incident as per the arrest memo (Exh. P-10) and was entitled for extending the benefit of mandatory provision of Section 6 of Probation of Offenders Act. So far appellant No. 2 is concerned, he said that he being first offender having no criminal antecedents or history, is also entitled for such benefit. With these submissions, he prayed for allowing his appeal accordingly.