Madhya Pradesh High Court
Imrat @ Patiram vs The State Of M.P. on 6 November, 2015
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.2459/1997
Imrat @ Patiram @ Dinamaru
VERSUS
State of Madhya Pradesh
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Shri Narendra Nikhare, Advocate appointed from the side of
High Court Legal Services committee on behalf the appellant.
Shri Bramhadatt Singh, Public Prosecutor for the State/
respondent.
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J U D G M E N T
(Delivered on the 6th day of November, 2015) The appellant has preferred the present appeal being aggrieved with the judgment dated 30.9.1997 passed by the First Additional Sessions Judge, Betul in S.T.No.4/1997, whereby the appellant has been convicted of offence under Section 307 of IPC and sentenced to 7 years Rigorous Imprisonment.
2. The prosecution's case, in short, is that, on 13.9.1996, at about 10.30 p.m., the complainant Ramlal (P.W.9) was returning to his house from the house of Bhaiyalal (P.W.1) at village Pandra (Police Station Ranipur, District Betul). He was accompanied by his wife Phullo Bai (P.W.5). When Ramlal reached near his house, suddenly the appellant Imrat @
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Criminal Appeal No.2459 of 1997 Dinamaru emerged in front of the complainant Ramlal and threatened to kill him. Thereafter, he gave two blows of dagger to the abdomen of the victim and immediately ran away. Ramlal and his wife Phullo Bai started shouting and therefore, witnesses Bhaiyalal (P.W.1), Kailash (P.W.2) and Shankar (P.W.4) reached the spot. Ramlal told them about the assailant and the incident. The witness Kailash has claimed before the police that he saw the incident. Ramlal was taken to the Police Sation Ranipur, where he had lodged an FIR, Ex.P/9. He was sent for his medico-legal examination and treatment. Dr.K.S.Ahirwal (P.W.10) examined the complainant Ramlal at Community Health Center, Ghodadongri and gave his report, Ex.P/10. He found two stab wounds to the victim Ramlal on his abdomen. He referred him to the District Hospital, Betul. Dr.G.P.Choubey (P.W.12), a surgical specialist treated and operated on the abdomen of the complainant Ramlal. He found a cut on the bladder in Ramlal's abdomen and therefore, that cut was stitched and the abdomen was again closed. He found that the external injury was co-related with the internal injury caused to the complainant Ramlal. He prepared a bed-head ticket, Ex.P/15 and also OPD slip, Ex.P/14. During investigation, a dagger was recovered from the appellant, which was sent to Dr.Ahirwal for its examination. In report of FSL, Ex.P/18, blood was found on the dagger recovered from the
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Criminal Appeal No.2459 of 1997 appellant. After due investigation, a charge-sheet was filed before the JMFC, Betul, who committed the case to the Court of Sessions and ultimately, it was transferred to First Additional Sessions Judge, Betul.
3. The appellant abjured his guilt. He took a plea that his sister was married to Shankar, son of the complainant and she was ousted from the house by Shankar. She was peacefully residing with the appellant and due to that enmity, a false case has been lodged against the appellant. However, no defence evidence was adduced.
4. First Additional Sessions Judge, after considering the prosecution's evidence, convicted the appellant of offence under Section 307 of IPC and sentenced as mentioned above.
5. In the present case, after filing of the appeal, the appellant was released on bail vide order dated 13.11.1998 but, when the appeal was called for hearing, no one appeared for the appellant and therefore, show cause notice was issued to the appellant to appear before the Court. However, he did not appear thereafter and therefore, an arrest warrant was issued.
After trying for his appearance for two years, no warrant could be served upon the appellant. On 20.10.2015, he was brought before the Court from District Jail, Betul after compliance of the arrest warrant and he prayed that his matter being an old appeal may be heard finally and he may be given legal aid, so
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Criminal Appeal No.2459 of 1997 that he may contest his appeal and therefore, Shri Narendra Nikhare, Advocate from the panel of High Court Legal Services Committee, who has vast experience in dealing with the criminal cases, was appointed to argue the matter on behalf of the appellant and thereafter, I have heard the learned counsel for the parties.
6. Initially the contention of the defence counsel is that various witnesses have accepted that it was dark at the time of the incident due to rain clouds. It was not possible for the complainant to see the culprit and therefore, it is not established that the appellant was the person who caused injuries to the complainant Ramlal. On the basis of the aforesaid contention, if the evidence given by various witnesses is considered, then Bhaiyalal (P.W.1), Kailash (P.W.2), Shankar (P.W.4), Phullo Bai (P.W.5), Phool Kali @ Nani Bai (P.W.8) and Ramlal (P.W.9) have stated that the complainant Ramlal went to the house of Bhaiyalal to request for some food and on his return, near his house, the appellant gave two blows of dagger on his abdomen and thereafter, ran away. On shouting of Phullo Bai (P.W.5), Bhaiyalal (P.W.1), Kailash (P.W.2), Shankar (P.W.4) and Phoolkali @ Nani Bai (P.W.8) went to the spot and they found Ramlal to be injured, who told them that the appellant Imrat @ Dinamaru gave two blows of dagger and injured him. Out of these witnesses, Kailash (P.W.2), who
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Criminal Appeal No.2459 of 1997 initially claimed to be an eye witness has partly turned hostile. He did not claim that he saw the incident. He has stated that when he went to the spot after hearing the cries, he found the complainant Ramlal to be injured but, he did not ask as to who assaulted him, whereas Bhaiyalal, Shankar and Phullo Bai have accepted that the incident took place at night during the rainy season and it was dark and it was not possible for a person to even see his own hands. Such statements are given by the witnesses Bhaiyalal, Shankar and Phullo Bai in the cross- examination, whereas Ramlal (P.W.9) has stated that though it was a night during rainy season, there were no dark clouds in the sky at the time and he could identify the appellant.
7. At night during rainy season, if clouds were densely collected in the sky, then it was not possible for anyone to view the culprit but, the position of the clouds could have changed within a small period of time and therefore, if Ramlal specifically states that he saw the appellant who assaulted him, then he cannot be disbelieved due to the version given by the witnesses Bhaiyalal, Shankar and Phullo Bai. If cross-examination of witness Phullo Bai is perused then, it would be clear that being an old woman she could not see properly, she would have felt that the night was dark. Her cross-examination indicates that she is a rustic woman, who could not understand the questions asked. However, all these three witnesses have accepted that
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Criminal Appeal No.2459 of 1997 the complainant Ramlal had immediately told them that it was Dinamaru @ Imrat, who assaulted him. Hence, the testimony of the complainant Ramlal cannot be disbelieved on the ground that due to darkness, he could not see the actual culprit. It was also submitted by the learned counsel for the appellant that the complainant Ramlal has accepted in the cross-examination that he became unconscious after the incident and he remained unconscious for 3 days during surgery etc. According to the complainant Ramlal, he appended his signature on the FIR, Ex.P/9 after 3 days of the incident and that actually the FIR was lodged by his son Shankar and therefore, this testimony of the complainant Ramlal cannot be believed. It appears that Ramlal has stated in the cross-examination about his unconsciousness to create an impression before the Court that he was seriously injured. FIR has been lodged at Police Station Ranipur and it was not possible for the investigation officer to take the FIR register to the hospital. He could get the FIR registered in the name of Shankar or Phullo Bai or he could have prepared a Dehati Nalshi and thereafter, FIR could be registered. Sub Inspector Ajay Dubey (P.W.13) has accepted that FIR, Ex.P/9 was lodged by Ramlal and he was not unconscious at that time. Dr.K.S.Ahirwal (P.W.10) has stated in the cross-examination that the complainant Ramlal was not unconscious when he was examined by Dr.Ahirwal. At that
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Criminal Appeal No.2459 of 1997 time, he was talking about his injuries. Under these circumstances, it is clear that Ramlal was conscious at the time of the incident and thereafter, he immediately informed about the assailant and the incident and also he had lodged a timely FIR, Ex.P/9. The incident took place at 10.30 in the night. The Police Station was 13 kms away and sufficient time was required for Shankar etc. to take the complainant Ramlal to the Police Station and still the FIR was lodged at about 1.00 a.m. i.e. 2½ hours after the incident. Hence, FIR, Ex.P/9 was promptly lodged and it cannot be said that delay has been caused in lodging the FIR.
8. It is admitted by both the parties that the appellant is nephew of the complainant Ramlal and his sister was also married to Shankar, son of the complainant Ramlal. According to the complainant's side, the sister of the appellant Imrat left the house of Shankar and abandoned her 3 children, whereas according to the appellant, Shankar ousted his wife and she was forced to reside with the appellant. On the basis of the aforesaid admission, it is possible that the appellant Imrat had a feeling of enmity with family of the complainant Ramlal because according to him, his sister was ousted after being cruely treated by the complainant Ramlal and his family members. However, if sister of the appellant herself left the house of her husband Shankar, Ramlal and his family would
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Criminal Appeal No.2459 of 1997 not have any grievance against the appellant and therefore, it was not possible for the complainant Ramlal to blame the appellant if he could not identify the actual culprit. However, enmity is a double edged weapon. A human being can assault his enemy or the enemy can be falsely implicated in the crime. Therefore, for placing reliance upon the testimony of the complainant, it was necessary to prove it through corroboration with other circumstantial evidence.
9. In the present case, the testimony of the complainant Ramlal has been duly corroborated by the witnesses who have accepted that soon after the incident, the complainant Ramlal told the name of the assailant as well as gave the description of the incident. He had lodged a named FIR with full description within a reasonable time and similar injuries were found to the complainant as alleged by him and therefore, the testimony of the complainant Ramlal was duly corroborated by various witnesses like Bhaiyalal, Shankar and Phullo Bai. His testimony was corroborated by the timely lodged FIR and medical evidence. Hence, the trial Court has rightly believed the testimony of the complainant Ramlal that it was the appellant who assaulted him twice. Learned counsel for the appellant has submitted that as per allegations made by the complainant Ramlal, the appellant suddenly emerged before him and gave two blows of dagger to his abdomen and
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Criminal Appeal No.2459 of 1997 immediately ran away. Hence, the appellant did not intend to kill the deceased. Hence, the appellant could not be convicted of offence under Section 307 of IPC. In support of his contention, the learned counsel for the appellant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of "Sarju Prasad Vs. State of Bihar", [AIR 1965 SC 843] , in which it is held that to sustain conviction under Section 307 of IPC the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury.
10. In the light of aforesaid discussion, if facts of the present case are examined then it would be apparent that in the FIR, the complainant Ramlal had mentioned that the appellant gave a threat to kill him and thereafter, he assaulted him but, in his statement before the Court, he did not prove anything which was said by the appellant and therefore, it is clear that the prosecution could not prove any declaration made by the appellant that he intended to kill the complainant Ramlal.
Dr.Ahirwal (P.W.10), who examined the complainant gave a report, Ex.P/10, in which he found following injuries:-
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Criminal Appeal No.2459 of 1997 (1)Stab wound of size 1 x 0.2 x 2.5 cms outside the umbilicus region of the abdomen.
(2)Stab wound oblique in upward direction having size 3 x 0.3 x 3 cms, 9 cms above the umbilicus region on the abdomen.
Dr.Ahirwal referred the patient for surgery etc. Dr.G.P. Choubey (P.W.12) has found that upon opening of the abdomen, there was a cut of ½ x 1/3 cms on the bladder and the bladder was stitched and after cleaning the blood clots, the abdomen was closed. According to him, if treatment was not given to the deceased within time, he could die. It would be apparent that the victim sustained injuries in the night of 12.9.1996 and his surgery was done on 13.9.1996 when he was brought at District Hospital, Betul and the complainant survived for at least 12-14 hours before surgery could be performed. Hence, the injuries caused to the victim cannot be said to be fatal in nature. Injury could be said to be a fatal one, if it is sufficient to cause death in natural course of life. Dr.Choubey did not opine that cut found in the bladder was sufficient to cause death of the victim in the course of natural life. He found that clot was deposited on the cut of bladder and no fresh blood was found oozing from the bladder. Hence, surgery was done to repair the bladder but, when blood was not oozing from the wound, it cannot be said that it was sufficient to cause death of the complainant Ramlal
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Criminal Appeal No.2459 of 1997 in natural course of his life. Hence, on the basis of the opinion given by Dr.Choubey and Dr.Ahirwal, it cannot be said that the complainant Ramlal had sustained any fatal injury. However, the injury sustained by the victim Ramlal falls within the category of Section 320 (8) of IPC and therefore, it could be considered as a grave injury.
11. The conduct of the appellant as established by the complainant clearly indicates that the appellant suddenly emerged before the complainant, gave two blows in haphazard manner and thereafter, ran away. Looking at his conduct, it cannot be said that he had intended to kill the complainant Ramlal. Hence, in the light of judgment passed by the Apex Court in case of Sarju Prasad (supra), offence committed by the appellant does not fall within the purview of Section 307 of IPC but, it shall fall within the purview of Section 326 of IPC.
Additional Sessions Judge has committed an error in convicting the appellant for offence under Section 307 of IPC.
12. In this connection, the judgment passed by the Apex Court in case of "Shivpujan Chamar Vs. State of Bihar", [AIR 1991 SC 1642] may be perused, in which it was held that looking at the injuries etc., where it could not be said that the accused had intended to kill the deceased, only offence under Section 326 of IPC shall constitute. Since the charge of offence under Section 307 of IPC was framed against the appellant, he
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Criminal Appeal No.2459 of 1997 could be convicted for a minor offence of the same nature. Under these circumstances, the conviction of the appellant can be altered to offence under Section 326 of IPC.
13. So far as the sentence is concerned, learned counsel for the appellant has cited the judgment passed by Hon'ble the Apex Court in case of "A.C.Gangadhar Vs. State of Karnataka", [AIR 1998 SC 2381], in which it was held that accused caused grave injury by an axe with great force on forehead of the victim and one year's Rigorous Imprisonment was found sufficient for the crime.
14. In the present case, the appellant was a first offender, who has faced trial and appeal for last 18 years. He remained in custody for more than one year and 3 months during the trial and appeal and therefore, in the light of judgment passed by the Apex Court in case of A.C.Gangadhar (supra), the appellant may be inflicted with the sentence for which he remained in the custody during the trial and appeal.
15. On the basis of the aforesaid discussion, the appeal filed by the appellant Imrat @ Patiram @ Dinamaru is hereby partly allowed. His conviction as well as sentence recorded for offence under Section 307 of IPC are hereby set aside. However, he is convicted of offence under Section 326 of IPC and sentenced to the period which has already undergone by the
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Criminal Appeal No.2459 of 1997 appellant in the custody during the pendency of the trial and appeal.
16. The appellant is in jail at present and therefore, it is directed that a supersession warrant be issued, without any delay, so that he may be released from the jail as early as possible.
17. Copy of the judgment be sent to the Court below along with its record for information and compliance, if any.
(N.K.GUPTA) JUDGE 06/11/2015 Pushpendra