Madhya Pradesh High Court
Chandrabhan Kirar vs The State Of Madhya Pradesh on 20 September, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
Cr.A. No.6838/2021
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No.6838 of 2021
BETWEEN:-
CHANDRABHAN KIRAR S/O
MULAYAM KIRAR, AGED ABOUT 28
YEARS, OCCUPATION
AGRICULTURIST R/O VILLAGE
CHIKHLI, POLICE STATION DEORI,
DISTRICT RAISEN (M.P.)
.....APPELLANT
(BY SOURABH BHUSHAN SHRIVASTAVA - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
THROUGH: POLICE STATION,
TENDUKHEDA, DISTRICT
NARSINGHPUR (M.P.)
.....RESPONDENT
(BY SHRI AKHILENDRA SINGH - GOVERNMENT ADVOCATE)
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Reserved on : 08.09.2023
Pronounced on : 20.09.2023
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This criminal appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Justice Achal Kumar
Paliwal pronounced the following:
Cr.A. No.6838/2021
2
JUDGMENT
This appeal has been filed by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (in short "the Cr.P.C.") against judgment dated 25.10.2021 passed by learned Third Additional Sessions Judge, Gadarwara, District Narsinghpur (MP) passed in Sessions Trial No.175/2015, whereby the appellant has been held guilty for commission of offence under Section 307 of IPC and sentenced to undergo R.I. for 10 years with fine of Rs.2000/- and under Section 25(1-B)(b) of Arms Act and sentenced to undergo R.I. for 1 years with fine of Rs.1000/-, with default stipulation.
2. That, the case of the prosecution in brief is that on 4.11.2014, complainant Govind Yadav lodged a report at Police Station Deori, District Raisen, to the effect that on 4.11.2014 at about 5 p.m., he was coming back with his wife by New Star bus & when bus reached at village Kherua, NH12 and as soon as it stopped, then, Chandrabhan Kirar of village Chikhli boarded the bus and asked complainant's wife to accompany him, when she refused, then, appellant Chandrabhan assaulted complainant's wife Rachna Bai with knife on the chest and thereafter, he got down from the bus and fled away. Complainant's wife and appellant were having illicit relations. Appellant used to ask complainant's wife to elope with him and that he will keep her as his wife. Complainant's wife Rachna Bai had refused to accompany the appellant. On account of that, on 24.10.2014 appellant had thrown stone at his house and there was also a dispute with him on account of above. Appellant has assaulted complainant's wife with knife with the intention to kill him.
Cr.A. No.6838/2021 33. On the basis of narration of above facts, ASI Dhanraj Raghuwanshi (PW-9) lodged FIR Ex.P-1. Dr. Kamlesh (PW-8) examined injured Rachna Bai and prepared report Ex.P/12. Inspector Govind Singh Rajput (PW-10) registered FIR Ex.P/15 on the basis of Ex.P/1. During investigation, Inspector Govind Singh Rajput prepared site map Ex.P/2 and also recovered blood stained blouse of Rachna Bai vide recovery memo Ex.P/5. Thereafter, Govind Singh Rajput (PW-10) recorded statement of witnesses Govind Yadav (PW-1), Rachna Bai (PW-2). Inspector Govind Singh recorded accused's memorandum Ex.P/18 and in pursuance of above memorandum, recovered knife vide recovery memo Ex.P/9. During investigation, recovered knife was sent to Dr. Kamlesh Silavat (PW-8) for query and query report is Ex.P/14. Incriminating articles were also sent for FSL vide draft Ex.P/16 and FSL report is Ex.P/17.
4. After completion of investigation, charge-sheet was filed against the appellant Chandrabhan Kirar under Section 307 of IPC and 25(1-B)
(b) of Arms Act in the Court of JMFC Tendukheda and same was committed to the court of Sessions Court for trial as per law.
5. Learned trial Court framed charges against appellant under Section 307 of IPC and 25(1-B)(b) of Arms Act and the same were read over to appellant & appellant pleaded not guilty & he claimed to be tried for the offences, he was charged with. To bring home the charges against the appellant, the prosecution examined in all 11 witnesses and also brought on record documentary evidence through aforesaid witnesses. After completion of prosecution evidence, appellant was examined u/s 313 Cr.P.C. and he pleaded total denial & stated that prosecutrix's husband had seen him in the bus, therefore, on account of same, he assaulted him Cr.A. No.6838/2021 4 with the knife and during scuffle, the knife which prosecutrix's husband was carrying, hit injured. To save his husband, he has been falsely implicated in the case. He is innocent. After evaluating the evidence that came on record, the learned third Additional Sessions Judge, vide judgment dated 25.10.2021,, convicted & sentenced the appellant as mentioned above.
Submissions of learned counsel for the appellant:-
6. Learned counsel for the appellant submits that the learned trial Judge has wrongly convicted and sentenced the appellant. Learned trial court has not properly appreciated the statement of prosecution witnesses.
There are lot of contradictions and omissions in the depositions of prosecution witnesses. It is apparent from the testimony of PW-1 that, it is victim's husband, who was carrying knife and not the appellant and there was a scuffle between the appellant and victim's husband and in the said scuffle, victim got injured by the said knife. Trial Court has not considered the defense of appellant. Alternatively, it is also urged by the counsel for the appellant that as parties have compromised the matter, therefore, appellant may be sentenced with the period already undergone by him. In this connection he has relied upon 1986 CRiLJ 1280 (Mohan Rathor vs. State of Madhya Pradesh) and 2006 CriLJ 1227 (Ayyub and ors. Vs. State of Uttaranchal). On the basis of above, it is prayed that impugned judgment of conviction and sentence deserves to be set aside & appellant be acquitted of the charges leveled against him. Submissions of Learned Government Advocate:-
7. Learned counsel for the State has vehemently opposed the contentions made by the learned counsel for the appellant and has supported the impugned judgment. He further submits that learned trial Cr.A. No.6838/2021 5 Court has properly appreciated the evidence on record and has rightly convicted & sentenced the appellant, as above. Hence, the appeal is liable to be dismissed.
8. I have heard learned counsel for the parties and perused the record of the trial Court minutely.
Findings:-
9. Perusal of prosecution evidence reveals that prosecution case primarily rests on the evidence of eye-witness Govind Yadav (PW-1) and Rachna Yadav (PW-2) who are husband and wife and they have deposed almost identically. Rachna Yadav (PW-2) has deposed in her examination-in-chief as under:-
**1- eSa U;k;ky; essa mifLFkr vfHk;qDr pUnzHkku fdjkj dks tkurh gwaA og esjs xkao dk gSA ?kVuk vkt ls yxHkx nks o"kZ igys dh gSA eSa vkSj esjs ifr vkSj esjh cPPkh vius ek;ds xzke <ksHkh ls cl }kjk xzke ph[kyh tk jgs FksA mlh cl esa vfHk;qDr pUnzHkku Hkh FkkA rsanw[ksM+k ls yxHkx 5 fd-eh- vkxs cl igaqpus ij tc cl enuiqj ds ikl :dh Fkh] pUnzHkku ls dgk fd esjs lkFk Hkkx pyksa] eSaus mlds lkFk tkus ls euk dj fn;k] rks blh ckr ij ls pUnzHkku us pkdw fudkydj esjs lhus esa ?kksai fn;k] eq>s [kwu vkus yxk vkSj pUnzHkku cl ls dwndj Hkkx x;kA eSa csgks'k gks xbZ FkhA ?kVuk esjs ifr xksfoUn] cl ds Mzk;oj] daMDVj vkSj xkao ds izgykn j?kqoa'kh us ns[kh gSA 2- ?kVuk ds iwoZ ls gh pUnzHkku eq>s ijs'kku djrk Fkk vkSj eq>ls cksyrk Fkk fd esjs lkFk Hkkx pyksA eSa mls euk dj nsrh FkhA blh ckr ls og eq>ls cqjkbZ j[krk FkkA blh dkj.k ls mlus tku ls ekjus ds bjkns ls eq>s pkdw ekjkA**
10. Perusal of depositions of Govind Yadav (PW-1), Rachna Yadav (PW-2), Mangilal (PW-3), Mohan Sahu (PW-4), S.I. Dhanraj Raghuvanshi (PW-9), I.O. Govind Singh Rajput (PW-10), Dr. Kamlesh Silavat (PW-8) and medical reports Ex.P/12 to P/14, F.IR. Ex.P/1, Spot Map Ex.P/2 and appellant's examination under Section 313 of Cr.P.C.Cr.A. No.6838/2021 6
reveal that present incident had occurred in the bus, in which appellant and prosecution witnesses/complainant/injured Govind and Rachna were travelling and in the said bus Rachna got injured from knife and has sustained injuries in the abdomen.
11. From the overall evidence on record, including appellant's examination under Section 313 of Cr.P.C., it is apparent that the sole question for determination before this Court is whether it is appellant who assaulted the victim Rachna by knife in the bus or during scuffle between the appellant and Rachna's husband, Rachna got injured from the knife which was being carried by her husband. It is correct that Govind (PW-1) has admitted in his cross-examination that he was carrying knife but on behalf of appellant, no such suggestion has been given to any of the prosecution witnesses that appellant was not carrying any knife. It is also correct that Govind (PW-1) and Rachna (PW-2) have admitted in their cross-examination that there was scuffle between Govind and appellant. But they have denied that during scuffle, knife carried by Govind hit Rachna and on account of that she got injured.
12. Perusal of testimony of Govind and Rachna reveals that there are no material contradictions/ omissions/ improvement/ discrepancies in their statements inter se and it is also clear that they have not been contradicted with their Police Statements. Further cross-examination of above witnesses reveal that in their cross-examination, nothing has come out to show that they are deposing falsely and they are not reliable witnesses.
13. Further testimony of Govind (PW-1) and Dhanraj Raghuvanshi (PW-9) reveals that FIR Ex.P/1 has been immediately lodged on the date of incident itself and there is no delay in lodging the same. Further Cr.A. No.6838/2021 7 testimony of Govind and perusal of FIR (PW-1) reveals that there are no contradictions between Govind's court deposition and FIR Ex.P/1. Hence, FIR Ex.P/1 also corroborates testimony of Govind (PW-1).
14. In this connection, recovery of knife is also important. I.O. Govind Singh Rajput (PW-10) has deposed that on 18.11.2014 at bus stand village Jamunia, he interrogated accused/appellant in the presence of witnesses and accused had told him that he had concealed the knife near Madan Dam under big stone and he will get it recovered & prepared memorandum Ex.P/8. Thereafter, in pursuance of above memorandum, Investigating Officer Govind Singh Rajput (PW-10) recovered knife after appellant presented the same vide recovery memo Ex.P/9. Perusal of PW- 10 I.O. Govind Singh Rajput's testimony shows that he has been extensively cross examined on the point of memorandum and recovery on behalf of appellant but nothing substantive has come out in his cross- examination so as to impeach the credibility of Investigating Officer. Further, there is nothing in his cross-examination which would show that on the point of memorandum and recovery, the witness is not reliable/creditworthy. Therefore, in view of testimony of Investigating Officer, it is immaterial/of no consequence that witnesses of memorandum and recovery Rajiv Kumar Shrivastava (PW-5) and Parvat Singh Prajapati (PW-7) have turned hostile and have not supported the I.O. Govind Singh Rajput (PW-10) on memorandum and recovery from the appellant.
15. Thus, in this court's opinion, from testimony of I.O. Govind Singh Rajput (PW-10), recovery of knife vide recovery memo Ex.P/9 in pursuance of memorandum Ex.P/8 is clearly established. From the testimony of Kaushal Singh (PW-11) and draft Ex.P/16, it is evident that Cr.A. No.6838/2021 8 said knife was sent for Forensic examination and report thereof is Ex.P/17. As per FSL report Ex.P/17, human blood has been found on the said knife and this fact has not been explained by the appellant in his examination under Section 313 of Cr.P.C.
16. Further testimony of Dr. Kamlesh Silavat (PW-8) and I.O. Govind Singh Rajput (PW-10) and query application/report Ex.P/14 reveal that knife recovered from the appellant was sent to Dr. Kamlesh Silavat and he has opined that injuries sustained by injured Rachna are possible from the said knife and therefore, above medical/FSL report also corroborates testimony of prosecution witnesses Govind and Rachna.
17. From the testimonies of Govind, Rachna and appellant's examination under Section 313 of Cr.P.C. and F.I.R. Ex.P/1, it appears that appellant and injured Rachna were having affair and on account of that there was animosity between Govind and appellant but it is well established that enmity is a double edged sword and on account of enmity an offence may be committed and on account of same, a person may also be falsely implicated. In view of overall evidence on record, in the instant case, it cannot be said that appellant has been falsely implicated in the instant case.
Conclusions:-
18. In view of discussion in the foregoing paras and analysis/appreciation of evidence on record, I am of the considered view that learned trial court has appreciated the evidence on record appropriately and there is no illegality or perversity in the findings recorded by the trial court. The view taken by the learned trial court is plausible one. Therefore, no interference is required regarding conviction Cr.A. No.6838/2021 9 of appellant by the learned trial court with respect to offence under Section 307 of IPC & Section 25(1-B)(b) of Arms Act.
19. So far as sentence is concerned, learned trial Court has sentenced appellant to undergo R.I. for 10 years with fine for offence under Section 307 of IPC and R.I. for 1 year with fine for offence under Section 25(1-B)
(b) of Arms Act, with default stipulation and both the sentences have been directed to run concurrently.
20. Learned counsel for the appellant after relying on 1986 CRiLJ 1280 (Mohan Rathor vs. State of Madhya Pradesh) and 2006 CriLJ 1227 (Ayyub and ors. Vs. State of Uttaranchal) submits that appellant has remained in custody from 18.11.2014 to 8.12.2014 and now he is in jail since 25.10.2021 and as parties have compromised the matter, therefore, appellant may be sentenced with the period already undergone by him.
21. This court vide order dated 20.1.2023 has dismissed I.A. No.10965/2022 relating to compromise on account of offence being non- compoundable. Hon'ble Apex Court in Ram Pujan and others Vs. State of UP, AIR 1973 SC 2418 has held that if an offence is non- compoundable & parties have compromised the matter, then, this fact may be taken into consideration while imposing the sentence.
22. In view of facts and circumstances of the case, I am of the view that it would be just and proper, if the jail sentence so awarded is modified and reduced to the period already undergone by the appellant so far.
23. Resultantly, this appeal is partly allowed to the extent as indicated above. The impugned judgment dated 25.10.2021 passed by learned Third Additional Sessions Judge, Gadarwara, District Narsinghpur (MP) Cr.A. No.6838/2021 10 passed in Sessions Trial No.175/2015, so far as it relates to conviction, is affirmed but sentence of imprisonment is modified and appellant is sentenced to the period already undergone by him.
24. A copy of this order be sent forthwith to learned trial Court Gadarwara District Narsinghpur & concerned jail for information & necessary action.
25. Present appeal is disposed off accordingly.
(ACHAL KUMAR PALIWAL) JUDGE Irfan Digitally signed by MOHD IRFAN SIDDIQUI Date: 2023.09.21 10:31:35 +05'30'