Raju @ Rajeev vs The State Of Madhya Pradesh Thr on 13 July, 2020

[Cites 14, Cited by 1]

Madhya Pradesh High Court

Raju @ Rajeev vs The State Of Madhya Pradesh Thr on 13 July, 2020

Equivalent citations: AIRONLINE 2020 MP 850

:: 2 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) (1) This criminal appeal under Section 374 of Cr.P.C assails the judgment of conviction of the trial Court dated 13.1.2017 passed by First Additional Sessions Judge, District Gwalior in Sessions Trial No.149/2014, whereby appellant no.1 has been convicted under section 307 of IPC and sentenced to suffer 7 years RI with a fine of Rs.5000/- and in lieu of default of payment of fine further imprisonment of six months RI and appellant no.2 has been convicted under section 307/34 of IPC and sentenced to suffer 7 years RI with fine of Rs.5000/- and in lieu of default of payment of fine further imprisonment of six months RI.

(2) As per the prosecution story the incident is said to have taken place on 20.10.2013 when the injured as well as the appellants were going towards the Airport Road Tiraha. The complaint has been lodged by the injured Avneesh (PW.2) on the basis of which Dehati Nalishi was got registered (Ex.P.2). As per the prosecution story, it is alleged that on 19.10.2013 the accused Kirti wife of the injured along with other co-accused Raju came to Gwalior as Kirti was having D.Ed. examination, which was scheduled to be held on 20.10.2013 at Greenwood Public School, Adityapuram, Gwalior. It is alleged that on 19.10.2013 at 12:00 PM the accused Kirti has telephoned Raju Dixit the other accused, who came there by his motorcycle and three of them came to Gwalior on the motorcycle of :: 3 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) Raju. Avneesh and his wife went to Anjana's house, who is said to be the cousin (Chacheri Behan) of Kirti and Raju went back by his motorcycle. On 20.10.2013 when Kirti and Avneesh were going to the Examination Centre, at that time Kirti has made a phone call to Raju and he came to Gwalior by his motorcycle and all three of them went to the Greenwood Public School (the Examination Centre). After the examination was over, Raju, Kirti and the complainant/ injured Avneesh sat on the motorcycle of Raju and on the request made by the Raju that he has some work at the Airforce Centre all of them went towards the Air Force Centre. Near the Air Force Centre Raju stopped the motorcycle, Kirti caught hold of the hands of Avneesh and Raju has inflicted knife injuries to Avneesh all over the body including the vital parts. Thereafter assuming that Avneesh has expired they left him there and went away.

(3) On the basis of the aforesaid, Dehati Nalishi and thereafter the FIR (Ex.P.8) was registered. It is submitted that Avneesh was taken to Sahara Hospital, Gwalior by Ambulance 108 and at Sahara Hospital his complaint was got recorded by Mahaveer Singh (PW.4). On the basis of the aforesaid information, the FIR was got registered at Crime No. 313/2013 at Police Station Maharajpura, District Gwalior. During the course of investigation, the police authorities have prepared the spot map and memorandum of 27 of Evidence Act, :: 4 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) seizure memo and other relevant documents and has recorded the statements under section 161 of Cr.P.C.

(4) After completion of the investigation, charge-sheet has been filed and the matter was put to trial. The accused have denied the incident and stated that they have been falsely implicated in the case, therefore, they were put to trial. During the trial 13 prosecution witnesses were examined as Meenakshi (PW.1, Avneesh (PW.2), Dr. P.C. Saxena (PW.3), Mahaveer Singh (PW.4), Akhilesh Sharma (PW.5), Manish Dwivedi (PW.6), Lakhan Singh Rajput (PW.7), Anjana (PW.8), Amar Singh Kushwah (PW.9), Sobren Singh (PW.10), Amit Mishra (PW.11), Dr. M.G. Barua (PW.12) and Udhhav Singh Parmar (PW.13) and other relevant documents were exhibited before the Trial Court.

(5) On the basis of the oral and documentary evidence available on record, the learned Trial Court has arrived at the conclusion that prosecution was successful in proving the case against the accused persons and accordingly the appellant no.1 was convicted under section 307 of IPC and sentenced to suffer seven years R.I. and appellant no.2 was convicted under section 307/34 of IPC and sentenced to suffer seven years R.I. vide judgment of conviction dated 13.1.2017.

(6) Being aggrieved by the aforesaid judgment of conviction, the :: 5 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) present appeal has been filed before this Court. (7) It is argued by the counsel for the appellant that the lodging of the report by injured Avneesh (PW.2) does not appear to be correct, and the same is highly suspicious. He has drawn attention of this Court to the Dehati Nalishi (Ex.P.2) dated 20.10.2013 and has argued that the injured was hospitalized in Sahara Hospital at 4:05 PM, whereas Ex.P.2 and the statement of Mahaveer Singh (PW.4) clearly shows that injured was hospitalized at around about 2:30 PM. At that time when the injured was hospitalized he was in an unconscious condition. He has drawn attention of this Court again to the statement of Mahaveer Singh (PW.4), who has stated that on getting information with respect to the fact that one injured person is lying near the Air Force Tiraha, he went to the spot and found Avneesh badly injured. It is further submitted that there are 14 injuries on the body of the injured and he was in an unconscious position. The statement of Avneesh is also being read over to this Court and it is argued that he has specifically stated that after getting injured he became unconscious and he regain his consciousness in Sahara Hospital at about 3:00 AM. Thus, the recording of Dehati Nalishi by the injured Avneesh appears to be improbable and factually incorrect. It is submitted that the aforesaid vital aspect of the case has not been taken into consideration by the :: 6 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) learned Trial Court.

(8) Another argument raised by the counsel for the appellant is that the presence of the appellant no.1 Raju on the place of the incident is again doubtful. As per the prosecution story Kirti and Raju both went to the Greenwood Public School, Gwalior for their D.Ed Examination, but from the statement of Principal of the School has been recorded as PW.1 Meenakshi, wherein she has stated that Kirti was having her examination for which the Register showing the attendance of Kirti and her Roll Number for the examination was produced before the Court. But as far as examination of Raju is concerned she is categorically stated that there was no examination of Raju in their Centre as there was no enrollment of Raju in their Centre. It is submitted that as per the prosecution story itself and the statement of Avneesh on 19.10.2013 all three of them came to Gwalior by motorcycle of Raju and thereafter Raju went back to Bhind leaving Kirti and Avneesh at their cousin sister's house (Chacheri Bua) and on the next date i.e. 20.10.2013 when Kirti along with Avneesh were going for the Examination Centre, Kirti has called Raju and thereafter they came on his motorcycle and all of them went to the Examination Centre. But, the fact remains that the distance from Gwalior to Bhind is approximately 60 to 70 kilometers, therefore, it is not possible that immediately on phone call Raju :: 7 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) could have arrived at Gwalior and took them to the Examination Centre, coupled with the fact that there was no registration or examination of Raju in the Greenwood Public School, where the Examination Centre of Kirti was scheduled. Even the statement of cousin sister of Kirti who was examined as PW.8 has shown presence of Kirti and Avneesh only. Under these circumstances presence of Raju at the place of occurrence is highly doubtful. It is submitted that the aforesaid vital aspect of the case has not been taken into consideration by the learned Trial Court. Counsel for the appellant has further drawn attention of this Court to the statement of Dr. P.C. Saxena (PW.3), who in his report Ex.P.4 has categorically stated that when he has examined the injured for the first time at about 5:00 PM on 20.10.2013 he was in semi unconscious state. Therefore, the recording of Dehati Nalishi by the injured Avneesh is highly doubtful and creates a serious doubt over the entire prosecution story. It is argued that the aforesaid vital aspect of the case has not been properly considered by the learned Trial Court and the judgment of conviction has been passed. It is further argued by the counsel for the appellants that the place of incident is also doubtful. Dehati Nalishi Ex.P.2 shows the place of incident to the Air Force Road Tiraha, whereas the spot map Ex.P.3 shows the place of incident to be Bhonderi Tiraha, near Air Force road. Thus, :: 8 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) there is difference in the spot of incident in both the documents. It is argued that there is big distance between the two places shown in Dehati Nalishi and spot map. Even the Investigating Officer (PW.13) Udhhav Singh Parmar has shown the place of incident to be Bhonderi Tiraha. Therefore, it is not clear from the prosecution version that what is the place of incident. This again goes to show create a serious doubt over the prosecution story. It is further argued that the defence taken by the accused has not been considered properly by the Trial Court, wherein they have categorically stated that the incident has taken place as a result of an accident, wherein the injuries have sustained to Avneesh. It is argued that they have been falsely implicated in the case owing to the fact that there was some dispute with respect to demand of dowry between husband and wife owing to which a false report has been made by the husband taking advantage of accident in which he has sustained injuries. The ground taken by the accused Kirti to the effect that she was writing a personal diary which has been clearly stated by her in her statement, but could not produce the diary owing to the fact that the same was kept with her mother-in-law and she refused to give the diary to her. There is nothing on record to show that there was any relationship between Raju and Kirti. Even the husband has also not objected for coming to Gwalior with Raju on one motorcycle. This clearly goes to show :: 9 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) that there was no motive of Raju to have inflicted injuries to Avneesh. In such circumstances, in absence of any motive to inflict injuries to the complainant coupled with the fact that the presence of Raju on the occurrence of spot is also doubtful. The conviction given by the learned Trial Court is highly unjustified. Counsel for the appellant has further argued that in the statement of Mahaveer Singh (PW.4), who was a first person who has seen the injured and has called the Ambulance 108 by which he has taken the injured to Sahara Hospital, Gwalior. It is submitted that he has shown the time of reaching the Hospital to as 2:30 PM, whereas the case-sheet of Avneesh clearly goes to show that he was admitted at 4:21 PM in the Hospital. Thus, there is a difference of 2 Hours. It is improbable that for two hours the statement of Avneesh was not recorded by any of the Doctors. This clearly goes to show that Avneesh was not in conscious position to give the statement or get the complaint recorded again creates a serious doubt over the prosecution story itself. It is submitted that there are material contradictions and omissions in the statements of the material witnesses and the same has not been taken into consideration by the learned Trial Court properly, therefore, the conviction of the appellants by the Trial Court is unjustified. (9) It is further argued that it is a settled position of law that the suspicion however strong may be could not take the place of the :: 10 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) proof. Therefore, in absence of any cogent evidence to the effect which goes to show the presence of Raju on the spot of incident coupled with the fact that recording of Dehati Nalishi by PW.2 is also doubtful. The conviction of appellant is highly unjustified and is against the evidence available on record. Therefore, he prays that the judgment of conviction be set aside and appellants be acquitted of all the charges. It is further argued that the conviction given by the learned Trial Court is for seven years R.I., out of which they have already undergone for a considerable period of custody. Therefore, in the alternative if the court is of the conclusion that the conviction given by the learned Trial Court is justified then alternative prayer is that looking to the custody period they may be released enhancing some fine amount.

(10) Per contra, State counsel has denied all the arguments raised by the counsel for the appellants. It is submitted that it is a clear cut case of section 307 IPC as 14 injuries were inflicted by the appellants to the injured which are found to be grievous in nature. It is submitted that there is a prompt Dehati Nalishi registered by PW.2 the injured. It is argued that as soon as the information to Mahaveer Singh (PW.4) was received regarding the injured he went to the spot and found Avneesh lying in injured position. He was in semiconscious state and was groaning. It is argued that he has :: 11 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) called the Ambulance 108 and injured was taken to Sahara Hospital, Gwalior. The statement of doctor, who have done the MLC is read over to this Court as PW.3, his statement was considered in para no.16 of the judgment, wherein he has categorically stated that the injured was in semiconscious state. The aforesaid aspect gives strength to the arguments raised by the prosecution that the injured is the author of Dehati Nalishi. It is further argued that there were 14 injuries on the body of the injured. Thus, as soon as he reached the hospital then immediately the treatment was given to him and thereafter the police authorities were permitted to record dehati nalishi. Counsel for the State has drawn attention of this Court to statement of PW.1 Meenakshi the Principal of the Greenwood Public School, who has categorically stated in her statement that on 20.10.2013 the D.Ed. examination was held in his school, wherein the accused Kirti has participated. She has produced the details pertaining to the records as Ex.P.1 i.e. the Attendance Register wherein the presence of Kirti was marked. This clearly establishes the fact that the Kirti went to Greenwood Public School for examination along with Avneesh and Raju. Thus, the prosecution story to the aforesaid aspect is clearly established. As far as presence of other accused Raju is concerned, he has drawn attention of this Court to the statement of injured Avneesh, who has categorically stated that he :: 12 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) along with his wife and Raju went to the Greenwood Public School, which was the Examination Centre of his wife and he left Raju and his wife to the Examination Centre and after completion of the examination on request of Raju that he was having some work in Air Force Centre, therefore, all the three went to Air Force Centre Tiraha on the motorcycle of Raju and on reaching near the Tiraha of Air Force Centre, Raju stopped the motorcycle and Kirti caught hold of hands of Avneesh and Raju has inflicted knife blows. It was further stated that the knife blows were inflicted on the vital parts of the body i.e. neck etc., as a result of which he was not in a position to even shout. He was badly injured and he fell down and assuming that he is dead, both the accused persons flee away from the place of incident. It is submitted that the statement of Avneesh (PW.2), who is the husband of Kirti has remained consistent in his statement throughout and there are no contradictions in his statement. There were 14 injuries found on the body of the injured which was duly corroborated by medical evidence. He has read over the statement of doctor, who has examined the injured on the initial stage. The doctor has found 14 injuries on the body of Avneesh and all the injuries were inflicted by sharp cutting weapon like knife. There is a recovery of knife from Raju. Thus, the story of the prosecution is fully corroborated by the testimony of the injured witness as well as :: 13 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) medical evidence. Thus, the learned Trial Court has rightly found the accused guilty of committing the offence and they were rightly convicted. It is further contended that the statement of Anjana (PW.8), who is said to be cousin sister of Kirti, who has turned hostile in the matter is of no help to the accused as the statement of hostile witness to the extent in support of prosecution story can be read into. It is submitted that Anjana in her statement has categorically stated that Kirti came to Gwalior along with her husband for giving examination for which the Centre was Greenwood Public School. She came on 19.10.2013 a day before the examination. Thus, the prosecution story to the aforesaid extent is duly corroborated by the statement of Anjana (PW.8). Coupled with the other circumstances and considering the statement of P.W.2 the injured it is clearly established that the accused persons have inflicted injuries to Avneesh. All the injuries were inflicted by a sharp-cutting object i.e. knife and were found to be medically corroborated. It is further argued that there were 14 injuries found on the body of Avneesh i.e. repeated blows by knife were inflicted which clearly establishes the intention of the accused persons. Thus, after inflicting the injuries when Avneesh fell down the accused persons thought that Avneesh was dead and leaving Avneesh there they ran away. But, the fact remains that Avneesh survived and was :: 14 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) taken to Hospital and was medically treated, by which his life was saved. The doctor in his statement has stated that due to the medical treatment given to the injured he is survived otherwise the injuries were fatal and dangerous to life.

(11) Recording of Dehati Nalshi by Avneesh has been considered in para 16 of the judgment by the learned Trial Court, wherein elaborate discussion has been made by the Trial Court and Trial Court has categorically observed that Avneesh (PW.2), the injured was the author of Dehati Nalishi and there is no dispute with respect of the same. The arguments advanced by the counsel for the accused that the spot of incident was shown to be different in the Dehati Nalishi and spot map memo. The aforesaid argument is of no help to the accused as Uddhav Singh Parmar (PW.13) has categorically stated that as soon as the information with respect to the injured was received he went to the place of spot of commission of offence. The spot is between the Air Force Tiraha and Bhonderi Tiraha. He has drawn attention of this Court to the statement of Avneesh (PW.2) and has argued that PW.2 in his statement has categorically stated that Bhonderi Tiraha is just ahead of Air Force Tiraha and the place of incident the boundary wall of Potato Research Centre was on both the sides. The maps discloses the same position, wherein the place of incident was shown to be adjoining to the boundary wall of the Potato :: 15 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) Research Centre. Coupled with the fact that there is a categorical statement made by Avneesh that the incident has taken place ahead of Air Force Tiraha. The distance between Air Force Tiraha and Bhonderi Tiraha is not more than 1 Kilometer. Therefore, the place of incident was between Air Force Tiraha and Bhonderi Tiraha. Thus, there is no material contradiction in the statement of witnesses and the spot map showing the place of incident. The aforesaid argument is of no help to the accused. The learned Trial Court has rightly found the place of incident to be between Air Force Tiraha and Bhonderi Tiraha. It is further argued that the prosecution has proved the case beyond reasonable doubt by leading cogent evidence which is supported by medical evidence. Thus, the learned Trial Court has not committed any error in convicting the accused persons. He has prays for dismissal of the appeal. (12) Heard the learned counsel for the parties and perused the record.

(13) From perusal of the record, it is seen that categorical statement made by Avneesh (PW.2) the injured, that he was inflicted injuries by Raju and the other co-accused Kirti has helped Raju. He has clearly stated that Kirti has caught hold of his hands and Raju has inflicted injuries by knife. The injuries found on the body of the injured Raju were medically corroborated. 14 injuries were :: 16 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) found by the Doctor. And all the injuries were incised wounds which could have been inflicted by sharp cutting weapon. There is a recovery of knife from Raju. Thus, the injuries found on the body of the injured are medically corroborated. The argument regarding the recording of Dehati Nalishi by PW.2 injured is concerned, it is being categorically stated by Avneesh (PW.2) that he has got recorded the Dehati Nalishi. The PW.4 Mahaveer Singh has categorically stated in his statement that on getting information with respect to the injured, he went on the spot and called Ambulance 108, by which he was taken to Sahara Hospital, Gwalior. He was in semi-unconscious state. The aforesaid statement was also supported by the statement of Dr. P.C. Saxena (PW.3), who has initially treated the injured. The Doctor has also categorically stated that he was found injured in semi-unconscious state. Therefore, the complaint recorded in the form of Dehati Nalishi find weightage and support from the statements of Avneesh (PW.2), Mahaveer Singh (PW.4) as well as Dr. P.C. Saxena (P.W.3).

(14) The prosecution story further find supports from the fact that the examination was to be held on 20.10.2013 and the Centre of the accused Kirti was Greenwood Public School, where she appeared in the examination on 20.10.2013. The aforesaid aspect was proved and established by the statement given by the Principal of the Greenwood :: 17 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) Public School, who has produced the document having acknowledgment of Kirti. Thus, the prosecution story to the aforesaid extent is fully proved by leading cogent evidence and there is no doubt with respect to the same. As far as presence of Raju is concerned the injured Avneesh (PW.2) has categorically given a statement against Raju. It is stated that from the statement it is clear that Raju has inflicted knife injuries when Kirti caught hold of the hands. All the three were going on motorcycle and Raju suddenly stopped the motorcycle near the Air Force Tiraha and there the incident has taken place. There is recovery of knife from Raju. The Dehati Nalishi is also prompt on the basis of which the FIR was got registered. Thus, there is sufficient material available on record which have proved the prosecution story beyond any reasonable doubt. The learned Trial Court has not committed any error in passing the judgment and convicting the accused appellant for offence under section 307 of IPC.

(15) It is a settled position of law that mere minor discrepancies in the statement of material witnesses is of no help to the accused persons, when there are other circumstances available on record to establish the prosecution story. The Hon'ble Supreme Court in the case of Birju Vs. State of M.P., (2014) 3 SCC 421, has observed as under:

:: 18 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) "9. PWs 1 to 4 and 7 fully and completely supported the case of the prosecution. PW1, the grand-father of the child, PWs 2, 3, 4 and 7 have depicted an eye-to-eye picture of what transpired on the fateful day. Their version is consistent and highly reliable. The eyewitnesses' version is fully corroborated with the post-mortem and FSL reports. PW6, of course, has been declared as hostile, but the evidence of a hostile witness cannot be discarded as a whole and the relevant parts thereof, which are admissible in law, can be used, either by the prosecution or the defence.

Reference may be made to the judgment of this Court in C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567."

(16) It is settled position of law that conviction can be made on the sole testimony of the witness. In the present case the injured Avneesh (PW.2) has categorically stated against the accused persons, which is duly corroborated and supported by the other circumstances. The injuries are also medically corroborated. Therefore, the aforesaid aspect as has been held by the Division Bench in the case of Ramnaresh Vs. State of M.P. (Criminal Appeal No.121/2006, decided on 21.2.2018) and in the case of Jagdish Prasad and others Vs. State of M.P. 1994 JLJ 443 SC, it is observed by the Hon'ble Supreme Court:

"6. As a general rule, a Court can and may act :: 19 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) on the testimony of a single witness though uncorroborated provided the testimony of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the Court will require sufficient corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614, wherein this Court has classified the testimony of a witness into three categories viz. (1) wholly reliable (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable and observed that though in the first two categories of classification, there may not be any difficulty in coming to a conclusion either accepting or rejecting the testimony but it is in the third category of cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or circumstantial."

(17) As far as intention of the accused is concerned, 14 injuries were found on the body of Avneesh, which were medically corroborated. Thus, the repeated blows were made with an intention to kill, but due to treatment he survived, therefore, offence under section 307 of IPC was already made out. The Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Harjeet Singh :: 20 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) and another, passed on 19th February, 2019 in Criminal Appeal No. 1190 of 2009 has held as under:-

"5.6 Section 307 uses the term "hurt" which has been explained in Section 319, I.P.C.; and not "grievous hurt" within the meaning of Section 320 I.P.C. If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307. This Court in R. Prakash v. State of Karnataka, held that :

"...The first blow was on a vital part, that is on the temporal region. Even though other blows were on nonvital parts, that does not take away the rigor of Section 307 IPC....... It is sufficient to justify a conviction under Section 307 if there is present 1 (2004) 9 SCC 27 15 an intent coupled with some overt act in execution thereof.

It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section."

(emphasis supplied) If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a "vital part"

of the body, merely causing 'hurt' is sufficient to attract S. 307 I.P.C.2 This Court in Jage Ram v. State of Haryana3 held that:

"12. For the purpose of conviction under :: 21 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) Section 307 IPC, prosecution 2 State of Madhya Pradesh v. Mohan & Ors, (2013) 14 SCC 116 3 (2015) 11 SCC 366 16 has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case.

To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc."

(emphasis supplied) This Court in the recent decision of State of M.P. v. Kanha @ Omprakash held that:

"The above judgements of this Court lead us to the conclusion that proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the Criminal Appeal No.1589/2018, decided on 04.02.2019. 17 severity of the blows inflicted can be considered to inferintent."

(emphasis supplied) (18) In the arguments advanced by the counsel for the accused that suspicion cannot take the place of the proof. When the presence of :: 22 :: Cr.A.No.219/2017 (Raju alias Rajeev and another ) Raju is suspicious then the conviction of Raju by the Trial Court is unsustainable. The aforesaid argument is of no help to the accused as the presence of Raju is clearly established in the statement of injured. Coupled with the fact that the injuries found on the body of the injured were also medically corroborated and there was a recovery of knife from Raju. In such circumstances, there is no doubt that the prosecution has fully proved the case beyond reasonable doubt. In the aforesaid circumstances no ground is made out for interference in the present appeal. The learned Trial Court has not committed any error in convicting the appellant for offence under section 307 of IPC and 307/34 of IPC.

(19) Appeal fails and is accordingly dismissed.

(Vishal Mishra) Judge 13/07/2020 Pawar* ASHISH PAWAR 2020.07.13 16:51:44 +05'30'

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