JUDGMENT
The State has preferred this appeal against the judgment dated 26.12.1995 passed in Criminal Appeal No. 43/1994 by the Second Additional Sessions Judge, Khandwa whereby the respondents were acquitted from all the charges. The respondents were convicted and sentenced for commission offence punishable under Sections 447, 325/34 of IPC by the Judicial Magistrate First Class, Khandwa vide judgment dated 29.9.1994 in Criminal Case No. 1060/1992.
2. The prosecution case, in short, is that on 10.3.1992 at about 3:30 PM the complainant Kamalchand Patel (PW-2) was at his field situated near the Village Nagchun, Police Station Moghat Road, Khandwa. A crop of wheat was standing in his field. The respondents were his land neighbours, who were trying to create a pipeline through his field to irrigate their field. The complainant objected them to do so, because due to that pipeline, his crop would damage, then a quarrel took place between the parties. Respondent Bharat Kumar held the victim Kamalchand Patel whereas respondent Bhailal assaulted him on his various parts of the body by a stone. Thereafter the respondent Bharat Kumar also assaulted him by a stick. Complainant Kamalchand Patel lodged an FIR at 4:30 PM on the same day at Police Station Moghat Road, Khandwa. He was sent for his medico legal examination and treatment to the main hospital, Khandwa. Dr. Rakesh Narayan (PW-1) examined him and gave a report Ex.P-1. He found 5-6 injuries to the victim on his various parts of the body. In X-ray report of Kamalchand Patel, there was a fracture of 5th metacarpal bone in the hand of the complainant. After due investigation, a charge sheet was filed before the concerned Magistrate.
3. The respondents abjured their guilt. They did not take any specific plea but they have stated that they were falsely implicated in the matter. In defence, one Gendalal (DW-1) was examined.
4. After considering the evidence adduced by the parties, learned Judicial Magistrate First Class Khandwa vide judgment dated 29.9.1994 convicted the respondents for commission of offence punishable under Sections 447, 325/34 of IPC and sentenced them for three months’ simple imprisonment with fine of Rs. 100/- and one year's rigorous imprisonment with fine of Rs. 1,000/-. In default of payment of entire fine amount, an additional SI for three months was directed. In appeal, the learned Second Additional Sessions Judge, Khandwa allowed the appeal of the respondents and acquitted them from all the charges.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellant-State has submitted that conviction and sentence directed by the learned Judicial Magistrate First Class was correct. There was no enmity between the parties, and therefore there was no possibility of false implication of the respondents. The learned Second Additional Sessions Judge without any basis has allowed the appeal, and therefore it is prayed that the respondents be convicted and sentenced accordingly.
7. On the other hand, learned counsel for the respondents has supported the impugned judgment of the learned Second Additional Sessions Judge, Khandwa. He submits that the acquittal directed by the learned Additional Sessions Judge appears to be correct.
Witnesses were interested. Defence witness was to be believed. In alternate, it is also submitted that the respondents have faced the trial, appeal and present appeal against acquittal, for last 20 years. Respondent Bharat was a young youth of 21 years at the time of incident. Under such circumstances, they may not be sent to the jail for such offences triable by the Court of JMFC.
8. After considering the submissions made by learned counsel for the parties and considering the evidence adduced by both the parties before the trial Court, it appears that Kamalchand Patel (PW-2) has stated in the trial Court that on 10.3.1992 at about 3:30 PM in the noon when he went to his field at Village Nagchun, he found that the respondents had created a pipeline from his field, but neither they were permitted to do so nor they had done such an act in the past. When the complainant objected, both the respondents visited in his field. Respondent Bharat Kumar held him and both of them abusing him with vulgar words. Thereafter Bharat Kumar threw the victim on the earth by holding his neck, whereas Bhailal assaulted him by a stone. Thereafter Bharat Kumar also assaulted him by a stick causing injuries on his legs and hands. Banshilal (PW-3) and Rasheed came to the spot to save the victim. Banshilal (PW-3) corroborated the version given by the complainant, though he has admitted that he was leasee of the complainant in that field, whereas Rasheed was not at all examined. Prahlad (PW-5) has also corroborated the statement of the complainant, whereas defence witness Gendalal (DW-1) has stated such type of irrigation by pipeline was being done by the respondents since 3-4 years and he did not hear about any quarrel.
9. At present in the instant case it is not to be decided about the rights of the respondents relating to irrigation. There is no enmity shown between the complainant and the respondents. Complainant lodged the FIR soon after the incident. He sustained some injuries in the incident and Dr. Rakesh Narayan (PW-1) found 5-6 injuries to the victim on his body specifically on his hands and legs. One incisor was also injured in his jaw. Dr. D.R Bhatia (PW-4) has proved his report Ex.P-7 and found a fracture of 5 metacarpal bone in the hand of the victim. Under such circumstances, where no enmity was proved and testimony of the victim duly confirmed by two eye-witnesses, FIR and medical report, then it is proved that the respondents assaulted the victim and he sustained fracture due to that incident.
10. When a person assaults the victim by a weapon, then it is presumed that he knew about the result of that assault, and therefore such type of assault may be considered to be caused voluntarily. It is true that water was flowing in the pipeline which was created in the field of the complainant and complainant has every right to object it. For such objection, neither any right of private defence was created in favour of the respondents nor any sudden or grave provocation was caused to them. Under such circumstances, it is apparent that the victim was assaulted by the respondents voluntarily causing him a fracture in one of the metacarpal bones to him.
11. It is nowhere clear that, whose assault caused fracture to the victim, but it is apparent that both the respondents had assaulted the victim either by a stone or by a stick, and therefore common intention of both the respondents can be presumed to each and another. Under such circumstances, learned JMFC has rightly convicted the respondents for commission of offence punishable under Section 325/34 of IPC, and therefore learned Second Additional Sessions Judge has committed an illegality in acquitting the respondents from all charges.
12. Since the complainant and his witnesses are reliable and quarrel took place in the field of the complainant, therefore it is apparent that respondents went inside the field of the complainant and done the crime as mentioned above, and therefore they have committed the crime of trespass in the field of complainant. The learned JMFC has rightly convicted the respondents for commission of offence punishable under Section 447 of IPC even.
13. As far as sentence is concerned, contention of learned counsel for the respondents can be accepted that the respondents were deprived from irrigation to their crops, and therefore they could do such an act in reaction. The victim sustained a fracture on a small bone like metacarpal bone, therefore offence under Section 325 of IPC is not so grave. They have also suffered the harassment due to trial, appeal and present appeal against acquittal for last 20 years, and therefore looking to their harassment etc. it would not be proper to send them again in the jail after convicting them. But looking to their crime, an appropriate sentence of fine may be imposed.
14. On the basis of aforesaid discussion, the appeal filed by the State is allowed. The judgment dated 26.12.1995 passed by the Second Additional Sessions Judge, Khandwa in Criminal Appeal No. 43/1994 is hereby set aside by affirming the judgment dated 29.9.1994 passed by the JMFC Khandwa in Criminal Case No. 1060/1992. The respondents are convicted for commission of offence punishable under Sections 447 and 325/34 of IPC and instead of sending them in jail, fine of Rs. 500/- is imposed upon each of the respondents for commission of offence under Section 447 of IPC and in default of payment of fine, they shall undergo 15 days' RI, whereas for commission of offence punishable under Section 325/34 of IPC a fine of Rs. 9500/- is imposed upon each of the respondents and in default of payment of fine, each of them shall liable to undergo one year's RI. The respondents are directed to deposit the fine amount before the trial Court within two months from today. If fine amount is deposited, then a sum of Rs. 10,000/- be provided to the complainant Kamalchand Patel S/o Sitaram Patel, R/o Khakadpura, Khandwa, as a compensation out of that fine amount.
15. Presence of the respondents is no more required, and therefore it is directed that their bail bonds shall stand discharged.
16. A copy of this judgment be sent to the trial Court with its case file for information and compliance.