Madhya Pradesh High Court
Mrinal Sharma vs The State Of Madhya Pradesh on 14 July, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRIMINAL APPEAL NO.522 OF 2022
(MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA
PRADESH)
Gwalior, Dated :14-07-2022
Shri Sameer Kumar Sharma - Father of Appellant No.1 and
Husband of Appellant No.2 is present in person.
Shri PPS Vajeeta - Public Prosecutor for respondent/State.
Heard on IA No.7578/2022. This is third application for suspension of sentence and grant of bail to appellant no.1.
2. The appellant no.1 has been convicted for the following offences :
Conviction U/s Sentence Fine Default (in lieu of fine) 307 of IPC 7 years RI 5,000/- 6 months RI
3. In the application, it is mentioned that on 10/3/2022 the counsel for the appellant no.1 withdrew the application and second application was withdrawn on 8/4/2022. It is mentioned in the application that the applications were withdrawn with an oblique motive not to grant bail to appellant no.1, whereas bail is the constitutional right of an accused. It is further mentioned in the application that the allegations made against the appellant no.1 would make out an offence under Section 323 of IPC only. It was also mentioned that the rest of the arguments shall be advanced on the date of hearing.
4. It is submitted by the Pairokar of appellant no.1 that the police had no authority to register the FIR for offence under Section 307 of IPC and should have registered the FIR for offence under Section 323 of IPC and could have enhanced the offence only after receiving the medical documents, but in the present case, the FIR was lodged directly under 2THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) Section 307 of IPC, which clearly indicates malafide intention of the Investigating Officer. Furthermore, there is nothing on record to show that the injuries sustained by the victim were dangerous to life. No fracture of skull bone was found. Unless and until the skull bone suffers fracture, no offence under Section 307 of IPC would be made out. Furthermore, the police had referred the injured for MLC to the Government Hospital, but the complainant with an intention to manipulate the things, went to the private hospital, namely, Sahara Hospital and got himself admitted. The private hospital is not entitled to issue any MLC. The weapon of offence was not produced. If a boy aged about 37 years gives repeated blow on the head of the injured, then his head would not have remained intact. It is submitted that in fact at first FSL report was not received and only after the orders of the Trial Judge, specifically at the instance of the Trial Judge, the FSL report was sent projecting that the blood was found on the weapon seized from the possession of the appellant no.1. Even otherwise, there is no blood group to show that the blood found on the weapon seized from the possession of the appellant no.1 belongs to the complainant. Furthermore, in the seizure memo, Ex.P/2 the place of seizure of weapon is not mentioned. The Remand Magistrate had also scolded the police for not filing the medical documents. Thus, it is clear that they have filed the fabricated and forged medical documents. The appellant no.1 had prayed for examination of CMHO as well as CSP to prove that the private hospitals are not competent to issue MLC, but the Trial Court by order 3 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) dated 16/12/2021 wrongly rejected the prayer and accordingly, the appellant no.1 has filed IA No.5661/2022, which is an application under Section 391 of Cr.P.C. for taking additional documents on record.
5. Per contra, the application is vehemently opposed by the counsel for the State. It is submitted that on earlier occasions, the bail applications were withdrawn after arguing the matter at length. It is further submitted that for making out an offence under Section 307 of IPC, it is not necessary that the victim must suffer a fracture of skull / parietal bone. The knowledge or intention on the part of the accused is sufficient to make out an offence under Section 307 of IPC. It is further submitted that it is incorrect to show that a private hospital is not entitled to treat the injured. The information given by the CMHO by his letter dated 5/12/2013 merely mentions that the hospitals which have been registered under Madhya Pradesh Upcharya Grih Tatha Rujopchar Sambandhi Sthapna Me Reistrikaran Tatha Anugyapan Niyam, 1997 have not been authorized to issue any MLC. From this letter, it cannot be inferred that any person who is a victim of an offence, cannot be treated by any private hospital. It is the primary duty of a doctor to treat the victim of an offence. It is submitted that in the present case, it is clear from the medical documents of the injured Shankarlal, Ex.P/3 that the injured was brought by Shitaldas, Constable, posted in Police Station Jhansi Road, Gwalior. Fracture of lateral side of scapula was found. Shankarlal (PW-5) has specifically stated in paragraph 9 of his cross- examination that the police had requested him to go to JAH for MLC, but 4 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) since it was already late in the night and, therefore, he had requested the police that there may not be any doctor in the Government Hospital and since he has suffered serious injuries, therefore, he may be taken to some best hospital and accordingly, he was taken to Sahara Hospital. It is submitted that the medical document, Ex.P/3, also clearly shows that the injured was brought by a police Constable. From the medico legal report, Ex.P/3, it is clear that the injured had suffered following injuries:
i- One lacerated wound, 6 cm X 3 cm X (illegible) deep on occipital region of head.
ii- Lacerated wound 5 cm X 2 ½ cm over left
parietal region of head.
iii- Lacerated wound over right parietal region, 4 cm
X 2 cm X crush deep.
iv- Lacerated wound on nose, 1 cm X 0.5 cm X bone
deep with swelling.
v- Swelling on left wrist and palm.
There was a profuse bleeding from nose & ear. Nasal bone was also found to be fractured. Extra-axial hematoma was also found in left temporal region with thin, small hematoma in right anterior temporal region, which is evident from CT scan, Ex.P/11.
6. It is submitted that the mother of the appellant no.1 was tried and the allegations against her are that she had assaulted on the hand of the injured. If the intention of the complainant was to falsely implicate the 5 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) family members of the Pairokar of appellant no.1, then he could have made more serious allegations against the mother of appellant no.1, i.e. appellant no.2. It is further submitted that in fact it appears that the Pairokar of appellant no.1 is in the habit of making allegations against the Judges. It is really unfortunate that the Pairokar of appellant no.1 has alleged that the FSL report has been received only at the instance of the Trial Judge.
7. So far as the FSL report is concerned, it is submitted that human blood was found on the weapon seized from the possession of the appellant no.1.
8. So far as non-mention of the place from where the iron rod was seized is concerned, even if it is presumed that the prosecution has failed to prove the seizure of weapon, still it would not give any dent to the prosecution case, specifically when the direct evidence finds full corroboration from the medical evidence. It is further submitted that the Pairokar of appellant no.1 is himself conceding that the allegations of assault on the head of the injured may amount to an offence under Section 323 of IPC. Even in the bail application, it is mentioned that at the most the offence can be under Section 323 of IPC. It is further submitted that for making out an offence under Section 307 of IPC, the nature of injury is not material. The intention and knowledge that it may cause death of the injured is material, which can be inferred from the weapon used as well as the part of the body which was chosen for causing injury. Head is undisputedly a vital part of the body and four 6 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) lacerated wounds were found on his head.
9. Heard learned counsel for the parties.
10. After the allegation was made that the FSL report was received only at the instance and help of the Trial Judge, when this Court raised objection to the conduct of the Pairokar of making allegations against the Judges, then he tendered his apology. Although this conduct of the Pairokar of the appellant no.1 cannot be appreciated, but considering the fact that he immediately realized his mistake and tendered his apology, therefore, this submission does not require any further discussion.
11. It is well established principle of law that for making out an offence under Section 307 of IPC the nature of injury is not material. It is the intention or knowledge that if somebody does an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, then an offence under Section 307 of IPC would be made out.
12. The Supreme Court in the case of Vasant Vithu Jadhav Vs. State of Maharashtra reported in (2004) 9 SCC 31 has held intention to kill or knowledge that death will be caused, is an essential ingredient. It is not necessary that bodily injury capable of causing death should have been inflicted.
13. The Supreme Court in the case of Jage Ram and others Vs. State of Haryana reported in (2015) 11 SCC 366 has held that for the purposes of conviction under Section 307 of IPC, the prosecution has to 7THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) establish the intention to commit murder and act done by the accused. To justify the conviction under Section 307 of IPC, it is not essential that fatal injury capable of causing death should have been caused. The intention of the accused is to be gathered from the circumstances, like the nature of weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused, nature of injury and severity of blows given etc.
14. The Supreme Court in the case of State of M.P. Vs. Kanha alias Omprakash reported in (2019) 3 SCC 605 has held as under:-
"13. The above judgments of this Court lead us to the conclusion that proof of grievous or life- threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent."
15. In the present case, four lacerated wounds were found on the head of the injured. The Supreme Court in the case of Sadakat Kotwar and another Vs. The State of Jharkhand by judgment dated 12/11/2021 passed in Criminal Appeal No.1316/2021 has held as under:-
"4.1 ......As the deadly weapon has been used causing the injury near the chest and stomach which can be said to be on vital part of the body, the appellants have been rightly convicted for the offence under Section 307 read with Section 34 8 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) of the IPC. As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles, when the deadly weapon
- dagger has been used, there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC.
5. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court. Now so far as the reliance placed upon the decision of this Court in Jai Narain Mishra and Ors. Vs. State of Bihar, (1971) 3 SCC 762 is concerned, on facts such decision shall not be applicable more particularly considering the subsequent decisions as well as the weapon used, nature of injuries caused on the vital part of the body."
16. So far as the competence of the private hospitals to treat the victim of an offence is concerned, the appellant no.1 has relied upon the letter dated 5/12/2013 written by the CMHO, Gwalior. Although the said letter has been filed alongwith IA No.5661/2022, an application under Section 391 of Cr.P.C., but it is clear that even such a suggestion was given to the doctor and an application was also filed to examine CMHO to prove this letter and thus, it cannot be said that the appellant no.1 has brought this letter for the first time before this Court. It is well established principle of 9 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) law that the application under Section 391 of Cr.P.C. must be considered at the time of final hearing, however, for the sake of decision on this application for grant of bail, letter dated 5/12/2013 is taken into consideration. This letter merely mentions as under:-
**-------,e-,y-lh- gsrq bl dk;kZy; }kjk fdlh Hkh futh vLirky @ uflZaxgkse dks }kjk vf/kd`r ugha fd;k x;k gSA**
17. From the plain reading of this letter, it cannot be gathered that even if a victim of offence is brought to the private hospital, then the private hospital in spite of serious condition can refuse to treat him unless and until the formality of preparing his MLC is completed in a Government Hospital.
18. Be that whatever is may.
19. In the present case, injured Shankarlal (PW-5) has specifically stated in paragraph 9 of his cross-examination that since it was night and he was not sure that whether any doctor would be available in the Government Hospital or not and accordingly, he had requested the Police Officer to take him to private hospital and accordingly, he was taken to Sahara Hospital. Even as per the medico-legal report, Ex.P/3, it is clear that the injured was brought by Police Constable posted in Police Station Jhansi Road, Gwalior. Thus, it cannot be said that Sahara Hospital should have refused to treat the injured merely on the ground that he has not been referred by a Government Hospital. Furthermore, it is the case of the appellant no.1 that at the most it can be a case punishable under Section 323 of IPC. This court has already considered the law relating to 10THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) the offence under Section 307 of IPC. Once repeated blows were given on the head of injured Shankarlal, then the intention and knowledge on the part of appellant no.1 can be presumed.
20. So far as the discrepancy in the recovery memo of iron rod from the possession of appellant no.1 is concerned, without entering into the controversy as to whether the recovery was properly effected or not, it is suffice to mention that even assuming that the weapon of offence was not seized, but still it would not give any dent to the prosecution case.
21. The Supreme Court in the case of Rakesh and another Vs. State of UP and another reported in (2021) 7 SCC 188 has held as under:-
"12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non....."
22. The Supreme Court in the case of Gulab Vs. State of UP by judgment dated 9/12/2021 passed in Criminal Appeal No.81/2021 has held as under:-
17 The deceased had sustained a gun-shot injury 11 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and 3.In Sukhwant Singh v. State of Punjab, Dr A S Anand (as the learned Chief Justice then was) speaking for a two-judge Bench held:
"21. There is yet another infirmity in this case. We find that whereas an empty [sic] had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty [sic] and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent."
(emphasis supplied) The above extract which has been relied upon by the learned Counsel for the appellant emphasises that in a 12 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) case where injury has been caused by a firearm, the opinion of the ballistic expert is of considerable importance where both the firearm and the crime cartridge had been recovered during the investigation. Failure to produce the expert opinion in such a case affects the creditworthiness of the prosecution case. 18 However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab, has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held:
"41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that 13 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr Purushottam is right in contending as a 14 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
(emphasis supplied) 19 Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted:
"18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross- examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non- examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses."
23. Before concluding this order, this Court would like to mention that the first two bail applications were withdrawn after arguing at length. This Court is aware of the fact that while deciding the bail applications, 15 THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRIMINAL APPEAL NO.522 OF 2022 (MRINAL SHARMA AND ANOTHER VS. STATE OF MADHYA PRADESH) the Court must not consider the merits of the case in detail, but in IA No.7578/2022 it was mentioned that bail applications were withdrawn by the Court orders with an oblique motive not to grant bail to appellant no.1 and further, the Pairokar of appellant no.1 without realizing as to whether repeat application should be argued on the basis of changed circumstance or not, argued for about 45 minutes on merits. Under these circumstances, this Court was left with no other option but to consider his submissions in detail.
24. Consequently, IA No.7578/2022 fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2022.07.15 19:42:36 +05'30'