Madhya Pradesh High Court
Shahjad vs The State Of Madhya Pradesh on 14 October, 2019
Author: Virender Singh
Bench: Virender Singh
8
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Single Bench: Hon'ble Shri Justice Virender Singh
Criminal Appeal No.6272/2018
Shahjad
Vs.
State of Madhya Pradesh
Shri Bhaskar Agrawal, learned counsel for the appellant.
Shri R.S Darbar, learned counsel for the respondent/State.
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Whether approved for reporting: Yes/No
JUDGMENT
(Delivered on _14/10/2019) Shri Bhaskar Agrawal, learned counsel for the appellant. Shri R.S.Darbar, learned public prosecutor for respondent State. With consent of the parties the matter is heard finally. This is an appeal against judgment and order dated 25.6.2018 passed in Sessions Trial No.324/2015, whereby, the learned Session Judge, District Indore has convicted the appellant under Section 307 of IPC and sentenced him to undergo 5 years R.I with fine of Rs.1000/- in default of payment of fine further to undergo three months R.I.
2. The facts giving rise to present appeal are that on 21.1.2015 at about 4:00 in the evening when the complainant Shahrukh had gone to see his Aunt (Mausi), her neighbour Shahjad (appellant) was scolding her as water thrown by her in the street had splashed on his clothes and had dirtied them. The complainant tried to exhort him, but he got annoyed, started abusing him and suddenly took out a knife from pocket and gave a blow on right side of chest, which started bleeding. Salman, Shahrukh and other persons intervened and rescued him and took him to the hospital.
3. On receiving information, the police also reached in the hospital 8 and deduced Dehatinalsi ExP/1, which was registered at Crime No.108/15 under Section 294, 307 of IPC (Ex.P/12). The police carried out investigation, prepared spot map Ex.P/14, arrested the accused (Ex.P/4), interrogated him and recovered knife article B from his possession (Ex.P/5&6), obtained treatment papers of the complainant, raised query to the doctors in respect of nature of injuries of the complainant, which was replied stating that the injuries might have been dangerous to life if would not have been treated on time, raised query as to whether the injury may be caused by the knife recovered from the accused, which was also replied in positive (Ex.P/7,8(1) to 8(12), 9, 10 & 11), sent the knife and shirt of the complainant to the FSL, who confirmed presence of human blood on both the articles (Ex.P/17-19). After completing investigation, the charge sheet was filed, which culminated in the conviction and sentence of the appellant as stated in para 1 above.
4. The appellant has preferred this appeal on the grounds that judgment and order of the learned trial Court is contrary to the law and facts on record. The learned trial Court has grossly erred in punishing the appellant under Section 307 of IPC, while the facts mentioned in the charge sheet itself do not constitute any such offence. To constitute such offence, two key requirements are necessary, first; intention of the offender must be to kill the victim and second; nature of injury ought to have been such that in ordinary course of nature it could have caused death. The evidence is not available on record to establish both these ingredients. As per the prosecution case itself the appellant gave only one knife blow, which shows that he had no intention to kill the injured. Nature of the injury is not defined or disclosed in the MLC report Ex.P/9 prepared immediately after the alleged incident.
5. It is further contended that the complainant has admitted in paragraph 4 of his cross examination that there was no previous enmity between both of them. Though he has stated that he remained in the 8 hospital for 12-15 days, but treatment papers show that he was admitted on 21.1.2015 and discharged 26.1.2015, thus, remained in hospital only for six days and was never readmitted in any hospital for any kind of further treatment, therefore the nature of injury of the complainant was not even grievous as the same does not fall withing the purview of Section 320 of the IPC. The trial Court has failed to consider that query report submitted with the charge sheet is belated and cannot be looked into. the learned trial Court has taken the story of the prosecution as true, while the injury sustained by the complainant was not on any vital part of the body. In such situation, in view of judgment passed in Kamdev Vs. State of M.P. reported in 2007(1) MPWN 98 and Gopal Tiwari Vs. State of M.P. reported in 1999 (2) MPWN 31, the appellant cannot be convicted under Section 307 of IPC.
6. It is also submitted that the incident took place all of sudden, in a spur of moment, there was premeditation, preparation or intention, no prior enmity was there, only single injury was caused, depth of injury is no where mentioned in the MLC report, the appellant has no criminal antecedents, he has already spent 19 months in jail, therefore, he be acquitted from the charge or in alternate his conviction be converted into one under Section 324 of IPC and he sentence be reduced for the period already under gone.
7. Reliance is placed upon the cases of 2007(1) MPWN 98, Gopal Tiwari Vs. State of M.P. reported in 1999 (2) MPWN 31 and Lakshmi Chand and another Vs. State of UP reported in (2018) 9 SCC 704.
8. Per contra, learned Pubic Prosecutor has opposed the appeal stating that the prosecution has successfully established that it was the appellant, who caused dangerous to life injury to the victim, therefore, he is not entitled for any leniency. He prayed for dismissal of the appeal.
9. Complainant Shahrukh is examined by the prosecution before the 8 trial Court as witness no.1. He has categorically narrated that on the date of the incident; the accused embroiled in altercation with his aunt. As he reached on the spot and tried to exhort him, he inflicted knife on his right side of chest. In short cross examination his statement could not be rebutted. Mohd Ali (PW-5), Jaiboon bi (PW-6) and Haroon Nisha (PW-7) have supported his statement. Though there is some variation in the sequence of the incidence but on the substantial point, statements of all these witnesses are more or less the same. Dr. Rohit Meshram (PW-
9) and Dr. Jafar Pathan (PW-10) have supported the case of the prosecution stating that just after the incident they had examined the injured and found corresponding injury. Statements of both these doctors have not been challenged on the issue that the injury was caused to the complainant. Further support is also available in the form of statements of Head Constable Jai Prakash Tiwari (PW-11) and S.I, Y.S. Raghuvanshi (PW-13), who have stated in their unrebutted testimony that after receiving information Jai Prakash Tiwari (PW-11) reached hospital, scribed Dehatinalshi on the narration of the complainant and S.I., Y.S. Raghuvanshi (PW-13) visited the spot, prepared the spot map, arrested the accused and recovered knife from his possession. Statements of these witnesses get corroboration from Dehatinalsi (Ex- P-1), Seizure of Shirt (Ex-P-2) treatment papers, discharge ticket etc. (Ex-P-7,8,9), query report (Ex-P-10), arrest memo, disclosure statement and seizure of knife (Ex-P-4,5&6) and query in respect of the knife (Ex- P-11). Nothing contrary is available on record, therefore, the trial Court has rightly held the accused guilty for assaulting the complainant and causing him injury.
10. There is slight change regarding narration of the incident in the Dehati Nalishi and police and Court statements of the witnesses. The witnesses have slightly improved their statements before the Court stating that after some verbal altercation with the complainant, the accused went to his house, came back with a knife and inflicted the 8 same, while in Dehati Nalishi and Police Statement, they have stated that at the time of altercation, the accused took out knife from the pocket of his trouser and inflicted the same. But this variation is not challenged before the trial Court and even after this variation, the substance remains the same. Their is no change in the statements of the witnesses that there was some altercation between the offender and the victim and that the offender caused injury to the victim by knife. Therefore, it does not makes the Court statements of the witnesses suspicious.
11. Now the question remains as to what was the nature of the injury and what offence is attributed to the appellant.
12. Immediately after the incident, the injured was taken to the District Hospital, Indore where Dr. Jafar Pathan PW/10 examined him and found 2X1/2 inch incised wound over right side of the chest. He was not expert, therefore, referred him to MY Hospital, Indore, where Dr. Rohit Meshram PW/9 examined him. He confirmed the injury observed by Dr. Pathan and has given details of the injuries caused to the complainant. Dr. Meshram has stated that the injury was 4 cm below the right nipple at anterior auxiliary line and it was 5 cm long and 1 cm wide. Lung was visible from the injury. Air was leaking out from the lung. He immediately inserted ICD tube and sutured the wound. In para no.2 of his statement, he has stated that this injury was dangerous to life, if would not have been treated on time. Thus, it is clear that the accused targeted vital part of the body and caused injury by knife, which penetrated upto the lungs, made them open to danger the life, filling the chest with blood and air, which needed immediate operation and insertion of ICD tube to take it out. Looking to the danger to the life, Dr. Meshram immediately operated the patient after seeking consent of the family members. and inserted the ICD tube. The injured was hospitalized and remained there under observation and post operative care for next 5 days. It was only thereafter, he came out of 8 danger. The treatment history also indicates the seriousness of the injury caused to the victim. This entire evidence is corroborated by Ex.P/7, P/8, which runs into 12 pages and P/9. In examination-in-chief as well as in his cross-examination, Dr. Meshram has clearly stated that the injury was on vital part of the body. The lung was visible and air was leaking and it was dangerous to life, if would not have been treated on time. The accused has not challenged this statement. Nothing is on record to disbelieve this statement and to defer from opinion of Dr. Meshram, therefore, argument advanced by the learned counsel for the appellant that the act of the appellant does not fall within the purview of section 307 of the IPC is not conceivable.
13. Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court and various High Courts rendered in the cases of Ramchandra vs. State of MP reported in 1989 MPWN 2 118, Gopal Tiwari Vs. State reported in 1999(2) MPWN 31, Sanju Prasad Vs. State of Bihar reported in AIR 1965 SC 843, Jaynarayan Mishra Vs. State reported in AIR 1972 SC 1764, Kishore Kumar @ Kishore Vs. State of Kerela reported in 2001 CR.L.J 2137, Moolchand Vs. State of MP reported in 2008 (8) MPWN 85 and Kailash VS. State of MP reported in 1993 (2) MPWN 39.
14. In Ramchnadra case (Supra) nature of injuries were not mentioned in the medical report, therefore, the case was treated as one under section 324 of the IPC but in the present case, description of injuries is mentioned in the medical report. Treatment papers are also proved by the prosecution and in unchallenged testimony, Dr. Meshram has stated that it was dangerous to life, therefore, this judgment does not apply in the present case.
15. In Gopal's case (Supra), the injury was small and was not on vital part of the body and was simple in nature.
16. In Sanju Prasad (Supra) case also the injury was not vital part of 8 the body and the seized article (chopper or Chhura) was not produced before the Court, therefore, the court found that it was not in possession to observe that whether it was sufficiently long to penetrate the abdomen deep enough to cause injury to vital organ.
17. In Jayprakash case (supra), all three injuries were simple in nature and fourth injury was not of such nature which would have necessarily caused death.
18. In Moolchand case (Supra) a simple lacerated wound was caused on forehead by stone.
19. In Kailash case (supra) simple injuries were found and Doctor was of the opinion that the death was not possible or probable from them.
20. Therefore, all the judgments cited by the appellant are clearly distinguishable no facts and therefore, on the basis of these judgements, conclusion as suggested by the learned counsel for the appellant cannot be arrived at.
21. Second contention of the learned counsel for the appellant is that there was no intention to kill the injured but in this case, the accused was carrying knife with him, which was later recovered from his possession. He inflicted the same on the chest of the victim. He repeated his blow and caused other injuries also, therefore, intention of the accused can easily be gathered from the facts and circumstances of the case. Further the conclusion of the trial Court that the intention of the accused was to kill the victim finds support in the Dehati Nalish recorded immediately after the incident, where it is mentioned that the intention of the accused was to kill the injured. The injured Shahrukh PW/1 has stated before the Court that when he intervened in the altercation between the accused and his aunt, the accused told him to remain away else he will kill him also. This evidence has not been challenged in any manner at any stage by the accused, therefore, at this stage, it cannot be said that he was having any other intention then the 8 one expressed by him at the time of the incident followed by the injury caused by him and the weapon used in causing the injury.
22. Thus, the evidence sufficiently shows that not only intention of the accused was to cause death of the victim but he converted his intention into action which caused danger to the life of the victim, who was only 19 years old boy at the time of incident, therefore, arguments advanced by the learned counsel for the appellant is not sustainable.
23. Looking to the evidence available on record, it can be safely concluded that the intention of the accused was to kill the victim and he caused injury which was dangerous to life, therefore, learned trial court has rightly convicted the accused under section 307 of the IPC and there is no scope for interference by this Court.
24. The appellant is awarded 5 years IR which does not seem excessive or disproportionate, therefore, I do not find any reason to interfere in the impugned order on this account also.
25. Therefore, the appeal deserves to be and is dismissed hereby.
(Virender Singh) Judge sourabh Digitally signed by SOURABH YADAV Date: 2019.10.15 10:17:06 +05'30'