Madhya Pradesh High Court
Mahesh Chandra & Ors. vs The State Of M.P. on 8 March, 2018
Criminal Appeal No.1023/1998 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
BEFORE HON. MR. JUSTICE S.C. SHARMA
Criminal Appeal No.1023/1998
Maheshchandra & Another
versus
State of Madhya Pradesh
Ms. Pooja Jain, learned counsel for the appellants.
Ms. Nidhi Bohra, learned Government Advocate for the respondent/State.
____________________________________________________________________ Judgment ( Passed on this 8th day of March, 2018 ) The present Criminal Appeal is arising out of the judgment of conviction dated 26.08.1998 passed by the 5 th Additional Sessions Judge, Ujjain in Sessions Trial No.51/1997, whereby the learned Sessions Judge has convicted the present appellants under Section 307/34 of the IPC each and sentenced them to 5 years rigorous imprisonment each and fine of Rs.1,000/- each with a default stipulation.
2. The facts of the case reveal that on 19.10.1996 at about 10:45 pm, when the complainant Rajesh was roaming around in the city to see idol of goddess Durgaji near Nayapura Tarana, his way was blocked by Mahesh and Manish and it was alleged that Manish assaulted him by a knife. He was taken to the hospital by Dipesh and Ritesh and the First Information Report (Exhibit-P/8) was lodged in the matter with quite promptitude.
3. The Station House Officer referred him for medical treatment (Exhibit-P/9) and he was examined by doctor (Exhibit-P/5) and the Criminal Appeal No.1023/1998 2 complainant was having a wound of ¾ x ½ inches above his chest below collar bone.
4. The statement of witnesses were recorded under Section 161 of the Cr.P.C., and thereafter, the charge-sheet was filed. The charge was framed under Section 307/34 of the Indian Penal Code. The prosecution has examined as many as eight witnesses in support of the prosecution case and they are the complaint himself Rajesh Jain (P.W-1), Israr (P.W-2), Dipesh (P.W-3), Manoj (P.W-
4), Dr. Dheeraj Gandhi (P.W-5), Dr. K.C. Upadhyay (P.W-6), Darbar Singh (P.W-7) and Satendra Singh Sisodiya (P.W-8).
5. Dipesh (P.W-3) and Manoj (P.W-4), who were the eye witnesses turned hostile. The complaint has stated before the trial Court that the appellants Maheshchandra caught hold of him and Manish Joshi inflicted injury upon him.
6. Dr. K.C. Upadhyay (P.W-6), who has examined the complainant at 11:15 pm has stated before the trial Court that there was a wound measuring ¾ x ½ and there was a cavity deep cut and as it was bleeding, the complainant was referred to Ujjain Hospital.
7. The complainant Rajesh (P.W-1) was treated at Choithram Hospital, Indore and Dr. Dheeraj Gandhi, Consultant at Choithram Hospital has examined him and he has also stated about the injury.
8. One Dr. Nanoria was operating surgeon and he has not been examined before the trial Court. Undisputedly the factum of incident, the stab wound inflicted upon the body of the complaint has been proved before the trial Court.
9. Learned counsel for the appellant has argued before this Court that there was only one injury and it was certainly not a life threatening injury. There was cut in the artery, which was operated by Dr. Nanoria, however, as stated earlier, Dr. Nanoria has not been Criminal Appeal No.1023/1998 3 examined. Dr. Dheeraj Gandhi (P.W-5) in his statement has stated that death was possible on account of excessive bleeding and in those circumstances, the appellants have been convicted for the offence under Section 307/34 of IPC. It has further been stated by learned counsel for the appellants that there are a lot of omissions and contradictions in the statements of prosecution witnesses.
10. Learned Government Advocate has supported the impugned judgment and has submitted that the same may be affirmed.
11. This Court has carefully gone through the entire evidence available on record. It is true that there are minor omissions and contradictions in the statement of prosecution witnesses, but it does not give any benefit to the appellants. So far as the injuries are concerned, the complainant has received only one injury.
12. Learned counsel for the appellants has argued before this Court that the appellants are not the hardcore criminal. This is the first and the only case registered against them and they have undergone about a month's of sentence and by no stretch of imagination, they could have been convicted under Section 307/34 of the IPC, as there was no intention or knowledge that the act will result into death and the appellants will be held guilty of murder.
13. Learned counsel for the appellants has placed reliance upon a judgment delivered in the case of Sarju Prasad v/s State of Bihar reported in A.I.R. 1965 SC 843 and her contention is that in similar circumstances in case of single injury and keeping in view the other factors, the conviction under Section 307 of the IPC has been set aside and the appellant therein has been convicted under Section 324 of the IPC. Paragraphs 3 to 11 of the aforesaid judgment reads as under:-
3. It is common ground that the act for which the appellant has been convicted under! Section 307 consisted of Criminal Appeal No.1023/1998 4 causing an injury in the vital region of Shankar Prasad's person but that no vital organ of Shankar Prasad was actually cut as a result of this injury. Learned counsel for the appellant, therefore, contends that the injury was a simple one and that as it was not such as was in the ordinary course of nature likely to result in death the offence falls not under Section 307 but under Section 324, I. p. C. According to learned counsel, before a person can be found guilty of the offence of an attempt to commit murder the prosecution must establish that the actual act which the assailant is shown to have committed was such as would in the ordinary course of nature have resulted in death and that here as the injury was a simple one, no vital organ of Shankar Prasad having been damaged, it does not fall within the purview of Section 307, I. P. C. It was no doubt held in Reg v. F. Cassidy, 4 Bom HC (Cr.) 17 which was followad in Martu v. Emperor, 15 Bom LR 991 that for a person, to be convicted under Section 307, I. P. C. the act done must be an act done under such circumstances that death might be caused if the act took effect, that is to say, the act must be capable of causing death in the natural and ordinary course of things. But these decisions were not followed by the same High Court in Wasudeo Balwant Gogte v. Emperor, ILR 56 Bom 434 : (AIR 1932 Bom 27.9).
There is a large body of decisions of other High Courts to the same effect as the decision in Gogte's case, ILR 56 Bom 434 :
(AIR 1932 Bom 279). There, Beaumont C. J. referring to Cassidy's case, 4 Bom HC (Cr.) 17 has observed:
"If the reasoning of the learned Judges in that case be right as to the construction of Section 307 and if the act committed by the accused must be an act capable of causing death in the ordinary course, it seems to me that logically the section could never have any effect at all. If an act is done which in; fact does not cause death, it is impossible to say that that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in Section 307 is merely a question of degree. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder (which is Cassidy's case), it is no doubt certain that no death will result from the act. But equally certain is it that no death will result if the accused fires a revolver at his enemy in such circumstances that in fact, whether through defect of aim, or the activity of the target, the bullet and the intended victim will not meet. If, however, Section 307 does not cover the case of a man who fires a gun at his enemy with intent to kill him but misses his aim, it is difficult to see how the section can ever have any operation."
4. After pointing out that this decision was not followed by the Allahabad High Court in Queen Empress v. Niddha, ILR 14 All 38 the learned Chief Justice continued:
Criminal Appeal No.1023/1998 5"The words 'under such circumstances' refer to acts which would introduce a defence to a charge of murder, such as, for instance, that the accused was acting in self-defence or in the course of military duty. But if you have an act done with a sufficiently guilty intention and knowledge and in circumstances which do not from their nature afford a defence to a charge of murder, and if the act is of such a nature as would have caused death in the usual course of events but for something beyond the accused's control which prevented that result, then it seems to me that the case falls within Section 307."
5. Thus according to the learned Chief Justice the act to fall within Section 301 must be such that but for the intervention of some circumstance it would, if completed, have resulted in, death. There is no evidence in this case that a fatal injury or an injury to a vital organ was prevented by any intervening circumstance.
6. All these decisions were considered by this Court in Om Prakash v. State of Punjab, and though Cassidy's case, 4 Bom HC (Cr.) 17 was not expressly dissented from the actual view taken by this Court is more in consonance with the view taken by Beaumont C. J. in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279) and the view taken by the Allahabad High Court in Niddha's Case, ILR 14 All 38 than that taken in Cassidy's case, 4 Bom HC (Cr.) 17. In Gogte's case, ILR 56 Bom 434:
(AIR 1932 Bom 219) no injury was in fact occasioned to the victim Sir Earnest Hotson, the then acting Governor, due to a certain obstruction. Even so, the assailant Gogte was held by the court to be jointly (sic) under Section 307 because his act of firing a shot was committed with a guilty intention and knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view was approved by this Court. Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Section 307.
7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I. P. C. cannot possibly be brought home to the appellant The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew Criminal Appeal No.1023/1998 6 each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment.
8. The only other question then is whether the appellant intended to cause such in jury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death.
9. It is true that the witnesses say that the appellant used a chhura. It is also true, that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore, it cannot be said that it was sufficiently for to penetrate the abdomen deep enough to cause an injury to a vital organ which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore, unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him.
10. In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I. P. C. In our Criminal Appeal No.1023/1998 7 opinion, it amounts only to an offence under Section 324, I.P.C.
11. Mr. Kohli then brings to our notice the fact that the appellant is below 21 years of age and that, therefore, Section 6 of the Probation of Offenders Act, 1958 precludes the Court from sentencing him to a term of imprisonment in respect of an offence which is not punishable with death or imprisonment for life. This Act has been applied to the State of Bihar vide:
Notification No. DPS/118-JL dated June 4, 1959. Therefore, as was done by this Court in Ramji Missar v. State of Bihar, we, while allowing the appeal partially, remand the matter to the High Court to consider the appropriate order to be passed by applying the provisions of Section 6 of the Probation of Offenders Act.
14. Sections 307 and 324 of the IPC reads as under:-
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z's table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section Criminal Appeal No.1023/1998 8 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
15. In the present case, the operating Dr. Nanoria has not been examined for the reasons best known to the prosecution. He was the best witness to give an opinion in respect of the injury, as he has carried out an operation of allegedly joining the artery and the nerve. The evidence of other doctors is a hearsay evidence based upon the statement given to them by Dr. Nanoria, and therefore, the benefit has to be given to the present appellants.
16. Another important aspect of the case is that there are two other independent eye-witnesses and for the reasons best known to the prosecution, they have not been examined before the trial Court.
17. In the considered opinion of this Court keeping in view the fact that there was no intention on part of the present appellants to cause injury, which might have resulted into the death of the complainant, the present criminal appeal deserves to be partly allowed and is accordingly allowed. The conviction of the present appellants under Section 307 of the IPC is hereby set aside, however, they are convicted under Section 324 of the IPC. Their sentence of 5 years rigorous imprisonment is hereby set aside. The appellants have already undergone one month's sentence and the judgment of conviction is of the year 1998. They are regularly marking their presence before the Registry of this Court twice a year, and therefore, they are awarded sentence of one year rigorous imprisonment each along with the fine of Rs.25,000/- each on Criminal Appeal No.1023/1998 9 account of the fact that they have committed an offence under Section 324 of the IPC. As they have already undergone a month's sentence, therefore, the period of sentence already undergone by the present appellants shall be reduced from the sentence of one year. They shall be released on depositing the fine of Rs.25,000/- each and the fine amount be given to the complainant. In case of non- payment of the fine, they will serve a sentence of six months rigorous imprisonment each.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.03.16 17:38:32 +05'30'