Madhya Pradesh High Court
Aarif vs The State Of Madhya Pradesh on 23 October, 2024
Author: Milind Ramesh Phadke
Bench: Prem Narayan Singh, Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-IND:31149
1 CRA-9965-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 9965 of 2022
AARIF AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sanjay Kumar Sharma - advocate for the appellants.
Shri Surendra Gupta, learned Govt. Advocate for the State.
Reserved On:23.09.2024
Delivered On: 23.10.2024
JUDGEMENT
1. The present appeal is filed against the judgment of conviction and sentence dated 21.09.2022, passed by the learned Third Additional Session Judge, District Ratlam (M.P.) in ST No.26/2012, whereby, the appellant has been convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo 07 years R.I. with fine of Rs.5000/-.
2. As per the prosecution case, on 10/11/2011 at around 22:00, complainant/Injured Jafar along with his brother Suleman and his cousin brother Ellu were going on scooter to have a tea at Hat Road Ghati Ratlam. When they reached, accused Aarif and Aashiq .@ Aasif met him and tried to Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 2 CRA-9965-2022 stop their scooter due to financial matter and started abusing the complainant, when they tried to stop accused from doing so, appellant Aarif attacked with intention to kill him with knife and stabbed on his left abdomen. Accused Aashiq punchéd and slapped Suleman and Etlu after that they runaway. Complainant's brother Suleman and Ellu took him Hospital. In Hospital Dehati Nalisi was recorded. On the basis of Dehati Nalisi, offence u/s 307, 341, 294,323 r/w 34 IPC was registered FIR No. 477/11. The police during the investigation recorded the statements of witnesses, and present appellants and co-accused persons were arrested.
3. On the basis of Dehati Nalisi, offence u/s 307, 341, 294,323 r/w 34 IPC was registered FIR No. 477/11. After investigation, the police filed chargesheet against the accused before JMFC, Ratlam for commission of offence under Section 307/34 of IPC. Learned Judicial Magistrate First Class committed the case to the Court of Sessions, Ratlam from where it was transferred to the learned Third Additional Sessions Judge, Ratlam for consideration.
4. The appellants were tried and charged under Sections 307, 341, 294, 323, 34 and 25-A of Arms Act. They abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial.
5. In support of the case, the prosecution has examined as many as 10 witnesses namely Ellu (PW-1), Sulema (PW-2), Ramjani (PW-3),Madanlal (PW-4), Rohit Sharma (PW-5), Dr. Bharat Ninama (PW-6), Dr. Sudarshan Odiya (PW-7), Rajendra Prasad Shrivas (PW-8), Sudeep (PW-9), Anwar Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 3 CRA-9965-2022 Husain (PW-10). No witness has been adduced by the appellants in their defence.
6. The learned Trial Court on appreciation of the evidence and arguments adduced by the parties, finally concluded the case and convicted the appellants for the commission of the offence punishable under Section 307/34 of IPC, vide the impugned judgment.
7. Learned counsel for the appellants, being crestfallen by the aforesaid finding of the Trial Court, submitted that that since the there is a single blow in the matter, hence, the offence under Section 307 of IPC cannot be made out against the appellant and if the case of the prosecution is taken as it is, the case of the prosecution would not travel more the offences under Section 326 of IPC. He further submitted that the statement of injured Jafar has been recorded by the prosecution. All witnesses are related and interested witnesses, thus on the basis of their testimonies, the appellant can not be convicted.
8. Alternatively, counsel for the appellants has further argued on the point of sentence also and prays that since the appellant Arif has already suffered more than two years and Asif has already suffered more than seven months of their incarceration out of the seven years, their jail sentence be reduced to the period already undergone. It is further submitted that the appellants deserve some leniency as the appellants already suffered the ordeal of the trial since 2011 i.e. for a period of 13 years. It is further submitted that this appeal be partly allowed and the sentence awarded to the appellants be reduced to the period already undergone by enhancing the fine Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 4 CRA-9965-2022 amount and giving compensation amount.
9. Learned counsel for the respondent/state has opposed the prayer and prays for dismissal of the appeal by supporting the impugned judgement.
10. In backdrop of the rival submissions and evidence available on record, the point for determination in this appeal is as to whether the findings of the learned trial Court regarding conviction and sentencing the appellants under Section 307/34 of IPC is incorrect in the eyes of law and facts?
11. In order to evaluate the prosecution evidence, at the outset, the statement of eye witness (PW-1) is required to be considered. The witness has submitted that accused Asif caught the injured Jafar and thereafter accused Arif has caused injury by knife on the abdomen of Jafar. Thereafter, he took the injured to the Ratlam Hospital thereafter he referred to the Indore Hospital.Sulema (PW-2) and Ramjani (PW-3) has also supported the same fact in the same manner. The statements of this three witnesses have not been rebutted in their cross-examination.
12. Dr. Bharat Ninama (PW6) has deposed that the injured had brought to hospital by his friend Imran. In medical examination he had found stab wound of 2x1 c.m. on left side of abdomen near naval on external side caused by hard and sharp object. He advised an X-ray. Injured was in conscious condition and admitted to surgical ward for further treatment. He further deposed that query letter was sent to him for opinion by police station Industrial Area, Ratlam, he was asked to whether injury on person was dangerous to life and caused by knife, in reply he had given is opinion Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 5 CRA-9965-2022 Ex.P.14 that it was dangerous to life. He has further stated that knife was also sent to him and after examining it he had given his opinion on Ex.P.14 itself that injury sustained by Jafar could be caused by the aforesaid knife.
13. Another witness Dr. Sudershan Odiya (PW-7) assistant professor of M.Y. Hospital Indore, examined injured Jafar. He deposed that there was injury on abdomen when he brought to hospital. Injured was in serious condition there were a wound in large intestine and gastric gland. The injured had been treated since 11-11-2021 to 24-11-2021.
14. Learned counsel for the appellants has expostulated that all witnesses are related and interested witnesses, thus on the basis of their testimonies, the appellant can not be convicted. Certainly, the witnesses are related to each other. On this aspect in the case of " Dilip Singh vs. State of Punjab" reported as AIR 1953 SC 364, the full Bench of Hon'ble Supreme Court observed in para 26 as under:
"26. ......... Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
15. Further in the case of Masalti vs. State of Uṭtar Pradesh reported in [AIR 1965 SC 202] wherein it has been held in para 14 as under:
Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56NEUTRAL CITATION NO. 2024:MPHC-IND:31149 6 CRA-9965-2022 "14. .......... There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."
16.As such, the argument regarding interested witnesses is also appears to be feeble arguments. So far as the relatedness and interestedness is concerned, in a recent decision laid down by Hon'ble Apex Court in the case of Laltu Ghosh vs. State of West Bangal AIR 2019 SC 1058 is relevant to be referred here:
"This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 7 CRA-9965-2022 or other reasons, and thus has a motive to falsely implicate the accused".
17. Now, the question is as to whether the testimony of injured person Jafar regarding their injuries caused knife is able to inspire confidence ?
18. On this aspect, the statement of Dr. Bharat Ninama (PW-6) is significant. He has deposed that the injured had brought to hospital by his friend Imran. In medical examination he had found stab wound of 2x1 c.m. on left side of abdomen by hard and sharp object which may be caused by knife. He advised an X-ray.
19. In this sequence, another witness Dr. Sudershan Odiya (PW-7) assistant professor of M.Y. Hospital Indore, examined injured Jafar. He deposed that there was injury on abdomen when he brought to hospital. Injured was in serious condition there were a wound in large intestine and gastric gland. The injured had been treated since 11-11-2021 to 24-11-2021.
20. In the MLC report, the nature of injury has been examined. In this regard, the provisions of Section 320 of IPC is required to be referred to, which reads as under:-
24. 320. Grievous hurt.--The following kinds of hurt only are desig‐ nated as "grievous":--
(First) -- Emasculation.Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56
NEUTRAL CITATION NO. 2024:MPHC-IND:31149 8 CRA-9965-2022 (Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
21. The 8th point of the aforesaid provision defines that any hurt which endangers life would be grievous. Since, Dr. Bharat Ninama (PW-6) and Dr. Sudershan Odiya (PW-7) have explicitly elucidated that the injury was dangerous to life, hence, the findings of learned trial Court regarding grievous injury, is found infallible and intact.
22. Now, the question is as to whether the injury was caused with intention or knowledge to kill the injured. In this case, it is fact that the prosecution has not set up the case that the said injuries were sufficient to cause death in the ordinary course of nature.
23. In order to justify the conviction under Section 307 of IPC, the Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 9 CRA-9965-2022 Court has to examine the nature of the weapon used and the manner in which it is used. In addition to that severity as well as number of the blows and the part of body where the injuries are inflected, are also taken into account to determine the nature of the offence.
24. Further, in view of the reports and the nature of the injuries, it cannot be ascertained that the accused has intention to murder, or knowledge as to the fact that the injured would be killed by this injury. Undisputedly, this is a case of single blow and the prosecution has also not setup that the said injury was sufficient to cause death in the ordinary course of nature. In this regard, The Hon'ble Apex Court in the case of Jai Narayan Singh vs. State of Bihar [AIR 1972 SC 1764] mandated as under:-...
"11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 IPC and sentenced to 5 years rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1 1/2" x 1/2 x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean out. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the Farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 10 CRA-9965-2022 of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death In the present case however, three injuries are of simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307 IPC but Section 326 IPC is set aside and we convict him under Section 326-IPC. His sentence of 5 years rigorous imprisonment will have to be reduced accordingly to 3 years rigorous imprisonment."
25. In a recent case of Mukesh S/o Jam Singh Damor vs. State of M.P. & Others 2022 Law Suit (MP) 165; High Court of M.P. Bench has observed as under:-
"9. It is well settled that an act which is sufficient in the ordinary course to cause death of the person, but the intention on the part of the accused is lacking, the act would not constitute an offence under Section 307 of IPC. The medical evidence has to be taken for determining the intention of the accused. The intention and knowledge of the act being one of the major factor i.e. used to decide conviction under Section 307 of IPC. Before it is held that the act Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 11 CRA-9965-2022 committed by the accused amounts to attempt to murder, it should be satisfied that the act was committed with such intention or knowledge under such circumstances that if it had caused death, it would have amounted to murder."
26. In a recent case of Panchram vs. State of Chattisgarh & Another reported in AIR 2023 SC 1801, the Hon'ble Apex has considered as under:-
"In his statement, the injured appearing as PW-1 submitted that when Munna (PW 6) shouted for help, Kantilal (PW 8) and Radheyshyam (PW 9) came there and seeing them the accused ran away. However, Kantilal (PW 8) was declared hostile. The prosecution had produced another witness Radhey Shyam (PW 7). He was also declared hostile and did not support the prosecution version. Even the scissors which was seized by the police is small scissors which is used by tailors. With the aforesaid evidence on record and the kind of weapon used, in our view the offence will not fall within Section 307 I.P.C. From the reasons for fight as are emerging on record, it doesn't seem to be pre- planned act. It, at the most, can fall within the four corners of Section 326 IPC as a sharp-edged weapon was used. The injuries were not caused with an Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 12 CRA-9965-2022 intention to cause death and were not sufficient to cause death. Hence, in our view the conviction of the appellant with respect Section 307 IPC cannot be sustained however the offence under Section 326 IPC is made out."
27. On conspectus of the aforesaid settled proposition of law and factual matrix of the case, there is nothing available on record which advert such intention or knowledge by which the offence of attempt to murder can be drawn.
28.Having gone through the record and medical reports including the statements of witnesses, this is crystal clear that the injured has received only one injury on stomach which was found grievous but it was not sufficient to cause death in ordinary course in nature. The prosecution has succeeded to prove that the said injury was caused by a sharp or dangerous object. Under these circumstances, the ingredients of Section 307 of IPC are missing in the present case, nevertheless, in purview of the aforesaid deliberations, it is established by the prosecution beyond the reasonable doubt that the appellant Arif has caused grievous injury.
29. In upshot of the aforesaid deliberations in entirety, the judgment of learned trial Court qua conviction of the appellants under Section 307 of IPC is found unsustainable and instead of Section 307 of IPC and in the light of the judgment passed by Apex court in the case of Jainarayan (supra) and Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31149 13 CRA-9965-2022 Panchram (supra), the appellants are liable to be convicted under Section 326 of IPC.
30. Now, turning to the point of sentence. Looking to the fact that the said incident of offence has happened in the year 2011 i.e. 13 years ago, no criminal antecedent for consideration has been suggested by the prosecution against the appellants, hence, considering the whole circumstances of the case, the appellants are liable to be sentenced under Section 326 of IPC for three years R.I. with fine of Rs.10,000/-.
31. In the result, the conviction and sentence imposed upon the appellants for the offence under Section 307 of IPC is set aside and instead thereof, they are convicted under Section 326 of IPC and sentenced to undergo for three years R.I. with fine of Rs.10,000/- and in default of payment of fine further undergo for three months S.I. Accordingly, the appeal is partly allowed.
32. The appellant Asif is in jail. After depositing the enhanced fine amount and after completing the aforesaid period of jail sentence, he shall be released from the jail, if not required in any other case. The appellant Asif is on bail. He is directed to surrender before the trial Court within a period of 15 days from the date of this judgment for completing the remaining part of sentence. In case, he fails to surrender, the learned trial Court shall take all steps to commit him to jail for undergoing remaining part of sentence.
33. The judgment regarding disposal of the seized property stands confirmed.
Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56NEUTRAL CITATION NO. 2024:MPHC-IND:31149 14 CRA-9965-2022
34. A copy of this order alongwith the record of the trial Court, be sent to the learned trial Court for information and necessary compliance.
35. Pending I.A., if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH) JUDGE VD Signature Not Verified Signed by: VARSHA DUBEY Signing time: 26-10-2024 13:18:56