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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  15th May,  2009  and  appeal

abated.

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

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

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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

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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).

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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

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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.