Devi Singh and Vijay Singh vs The State of Madhya Pradesh Home Department

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 441 OF 2010

DEVI SINGH Appellant(s)

VERSUS

STATE OF MADHYA PRADESH Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) This appeal arises out of judgment and order dated 12th

August, 2008 passed by the High Court of Madhya Pradesh at

Gwalior in Criminal Appeal NO.74 of 2001 in which the

appellants, namely, Devi Singh and Vijay Singh were convicted

under Sections 326 and 324 I.P.C. and sentence of imprisonment

imposed upon them by the Trial Court under Section 326 was

reduced from three years to two years by the High Court while

maintaining the sentence of imprisonment of three years imposed

upon the appellants-accused by the Trial Court under Section

324 I.P.C.

(2) During the pendency of this appeal, second appellant-Vijay

Singh died consequently his name was struck off from the array

of the parties vide order dated 15 th May, 2009 and appeal Signature Not Verified

abated.

Digitally signed by MAHABIR SINGH Date: 2018.09.12 09:55:09 IST Reason:

(3) On the date of occurrence i.e. 20th December, 1995,

deceased-Chunni Lal was going to his khaliyan (field) along 2

with his cattle and his cattle entered the fields of Harijans

and an altercation took place between Toran, Lalia & Krishna on

one side and Balam & others including the appellants on the

other.

(4) Case of the prosecution is that Phool Chand (PW-13) and

Udham Singh (PW-1) were attacked in the said incident. Chunni

Lal and Udham Singh, injured persons, went to the police

station where in the Diary statement, the statement of Chunni

Lal was recorded (Ex.P-38), based upon which and initially case

was registered under Sections 307, 147, 148 and 149 I.P.C.

After Chunni Lal succumbed to his injuries, F.I.R. was altered

to Section 302 I.P.C. The Trial Court inter alia convicted the

first appellant-Devi Singh under Section 326 I.P.C. for causing

injuries to injured witness-Uddham Singh (PW-1) and under

Section 324 I.P.C. for causing injuries to the deceased-Chunni

Lal and sentenced him to undergo imprisonment for three years.

For conviction under Section 326 I.P.C. he was sentenced to

undergo rigorous imprisonment for three years. In the appeal,

as noted above, the High Court affirmed the conviction of the

appellant-Devi Singh under Section 326 I.P.C. and Section 324

I.P.C. but reduced the sentence of imprisonment only under

Section 326 I.P.C. and maintained the sentence of imprisonment

under Section 324 I.P.C.

(5) We have heard Ms. Pragati Neekhra, learned counsel

appearing for the appellant and Ms. Swarupama Chaturvedi,

learned counsel appearing for the respondent-State and also 3

perused the impugned judgment of the High Court and considered

the evidence/materials on record.

(6) Learned counsel for the appellant has taken us through the

evidence of Phool Chand (PW-13) to contend that Phool Chand

(PW-13) has not stated anything about the appellant-Devi Singh

in causing injuries to the deceased-Chunni Lal and, therefore,

the conviction of the appellant under Section 324 I.P.C. for

causing injuries to the deceased-Chunni Lal is not sustainable.

Learned counsel for the appellant has also submitted that Udham

Singh (PW-1) has turned hostile and in the absence of any overt

evidence, the Trial Court as well as the High Court ought not

to have relied upon Ex.P-38, the alleged statement, recorded

from Chunni Lal (since deceased) to convict the appellant.

(7) The conviction of the first appellant-Devi Singh is based

upon the evidence of Phool Chand (PW-13) who was also injured

in the occurrence and Ex.P-38, diary statement, recorded from

deceased-Chunni Lal by the Investigating Officer.

(8) As pointed out by the Trial Court in Ex.P-38, the

deceased-Chunni Lal has clearly stated about the overt act of

the appellant-Devi Singh and Vijay Singh (deceased-accused) who

had attacked him with lathis. Chunni Lal sustained injuries on

his left thigh and on left occipital region of the head as

stated in the post-mortem certificate and evidence of Dr. M.K.

Jain (PW-4). The statement of Chunni Lal in Ex.P-38 is

strengthened by the medical evidence of Dr. M.K. Jain (PW-4). 4

The appellant-Devi Singh was convicted under Section 324 I.P.C.

for causing injuries to the deceased-Chunni Lal. Conviction of

the appellant under Section 324 I.P.C. is based upon the proper

appreciation of oral evidence and Ex.P-38 - Diary statement of

the deceased-Chunni Lal and the medical evidence. We do not

find any good ground to interfere with the conviction of the

appellant under Section 324 I.P.C. Since injuries caused by

Devi Singh also contributed to the death of Chunni Lal, in our

considered view the conviction of the appellant-Devi Singh

under Section 324 I.P.C. may not have been proper. He should

have been placed on par with the other accused. However, since

the State has not preferred any appeal against the same, we are

not inclined to go into the correctness of the same.

(9) So far as the question of sentence is concerned, the High

Court for the conviction under Section 326 I.P.C. has reduced

the sentence of imprisonment of the appellant from three years

to two years but maintained the sentence of imprisonment under

Section 324 I.P.C. as three years. Since the occurrence was of

the year 1995, way back 23 years ago, in which the appellant-

Devi Singh allegedly wielded lathi in causing injuries to the

deceased-Chunni Lal, having regard to the passage of time and

the nature of weapon wielded by the appellant and also

considering the facts and circumstances of the case, the

sentence of imprisonment of the appellant-Devi Singh under

Section 324 I.P.C. is reduced to two years. However,

conviction of the appellant-Devi Singh under Section 326 and 5

sentence of imprisonment of two years is affirmed.

(10) The appeal is partly allowed.

(11) The appellant shall surrender within a period of four

weeks from today to serve the remaining sentence failing which

he shall be taken to custody. The appellant shall be entitled

to set off the sentence of imprisonment, if any, already

undergone by him.

(12) A copy of this order be sent to the concerned trial court

for necessary action.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, SEPTEMBER 5, 2018.