Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 31 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 5804 of 2023
BABULAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Akash Rathi, learned counsel for the appellant.
Shri H.S. Rathore, learned Government Advocate for the respondent/State.
Heard on : 08.08.2024
Pronounced on : 31.08.2024
This criminal appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the court passing the
following :
JUDGMENT
The present appeal has been filed on behalf of the appellant under Section 374 being disgruntled by the order dated 14.03.2023 Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM passed in Sessions Trial No. 110/2021, whereby the appellant has been convicted for the offence under Section 307 of the Indian Penal Code, 1860 (hereinafter referred as to 'IPC') for 5 years with fine of Rs.25,000/- and default stipulation and acquitted the appellant for the offence under Section 294 of IPC.
02. The Prosecution case in a nutshell is that on 01.02.2021 at about 5:30 in the evening, the complainant-Anokchand @ Praveen and his elder brother went to the market, where after completing work, his elder brother was ought to sit on motorcycle, at the same time, accused Babu @ Babulal came with stick (lathi) and started to abuse his elder brother Trilok, on stopping him, accused Babu @ Babulal said, "you made home at my land, I will kill you". Thereafter, with intention to kill, accused assaulted Trilok on the head and left hand. Due to which, blooding was started and Trilok, elder brother of the complainant, fell down. Accused fled away from the spot. The incident was seen by some relative and nearby the persons. They admitted him in the hospital. An FIR was lodged by the complainant bearing Crime No. 25/2021 for the offence punishable under Sections 294 & 307 of IPC at Police Station Balakwada, District Khargone.
03. In turn, after completion of investigation, charge-sheet was filed and the case was committed to the Session Judge and thereafter, appellant was charged for offence under Sections 307 & 294 of IPC. He abjured his guilt and took a plea that he had been falsely implicated in the present crime and prayed for trial.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM04. In order to bring home the charges, the prosecution has adduced as many as 09 witnesses namely the Anokchand @ Praveen @ Aanya, complainanat (PW-1), Trilok, injured (PW-2), Sanjay (PW-
3), Meetharam (PW-4), Dr. Chandresh Dixit, Medical Officer (PW-
5), Laxmansingh Rathore, ASI (PW-6), Kailash Patidar (PW-7), Dr. Animesh Damani, Consulting Plastic Surgeon (PW-8) and Varun Tiwari (PW-9). On behalf of defence, 02 witnesses namely Gulabchand Patel (DW-1) and Gokul Patel (DW-2) were produced.
05. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 14.03.2023 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 307 of IPC while acquitted him from the charges under Section 294 of IPC.
06. Learned counsel for the appellant submits that the appellant is innocent and the learned trial Court has convicted the appellant wrongly without considering the evidence available on record. Counsel for the appellant further submits that the appellant has not caused any fatal injury to the injured because there is nothing on record to show that the injured has received serious injury. Only one blow was given by the appellant. It is further submitted that there are material contradictions and omissions in the statements of the prosecution witnesses but the learned trial Court has erred in ignoring the same and in convicting the appellant. It is further submitted that there was previous enmity between the parties, the incident had Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM happened all of a sudden, there is no knowledge and intention or motive to assault the injured, no deadly weapon was carrying by the accused, hence, the offence shall not travel more than the offence under Section 335 of IPC, but the learned trial Court has wrongly convicted appellant under Section 307 of IPC without considering the evidence available on record. On these grounds, he prays for setting aside the impugned judgment and acquit the appellant.
07. In alternate, learned counsel for the appellant also submits that the learned trial Court has convicted the appellant under Section 307 of IPC and sentenced for 05 years R.I., he has suffered approximately one year and six months in custody. It is contended that as per statement of Dr. Chandresh Dixit, Medical Officer (PW-5), only two injuries (one on temporal part of the head and another one on right ear) were found on the body of injured. At the time of initial treatment, the injured was conscious. The appellant has used only a stick (lathi). The defence witnesses viz. Gulabchand Patel and Gokul Patel have stated in their statements that there was already hostility between them with regard to property. Therefore, counsel prays for reduction of the sentence to the period already undergone or as the Court may deem fit in the interest of justice.
08. Learned Government Advocate for the respondent/State has opposed the prayer. Inviting the attention of this Court towards the conclusive paragraphs of the impugned judgment, he has also submitted that the injured has received the injuries caused by the appellant and the learned trial Court has rightly convicted the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM appellant by sentencing him appropriately. Hence, prays for dismissal of the appeal.
09. In the backdrop of rival submissions, the question for determination for deciding this appeal is as to whether the findings of learned trial Court regarding conviction and punishment of the appellant under Section 307 of IPC is incorrect in the eyes of law and facts or not.
10. In view of the aforesaid statements, having gone through the record of trial Court, it is evident that Trilok (PW-2) has supported the prosecution case and narrated in his examination-in-chief that accused Babulal assaulted him with stick (lathi). Further, he was taken for treatment to Kasrawad and further referred to Indore. The statement of this witness has not been rebutted in his cross- examination and also finds support from the testimonies of Anokchand (PW-1) and Meetharam (PW-3). The statements of Anokchand (PW-1) and Meetharam (PW-3) have also not been controverted in their cross-examination.
11. Learned counsel for the appellant has adverted to some discrepancies in the statements of the witnesses, but during whole arguments, he is not able to point out any discrepancies or contradictions which hit the root of the case.
12. With regard to the discrepancies in the statements of witnesses, the Hon'ble Apex Court in Babasaheb Apparao Patil v. State of Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM Maharashtra [AIR 2009 SC 1461] the Hon'ble Apex Court held as under:-
"12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence."
13. Here, it has to be kept in mind that this Court is not testing the legality of acquittal of the appellant for the offence under Section 294 of IPC. However, in this appeal on the basis of evidence available on record, this Court is satisfied that the findings of learned trial Court is in accordance with law and facts to the extent that appellant Babulal has inflicted the injury to the injured. It is also well settled principle that the maxim "falsus in uno falsus in omnibus" has no application in India. Hon'ble Supreme Court in the case of Shaktilal Afdul Gaffar Khan Vs. Basant Raghunath Gogle reported in (2005) 7 SCC 749 has held as under :-
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM".....it is the duty of Court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence."
14. Learned counsel for the appellant has also expostulated that due to enmity, the statements of prosecution witnesses can not be relied upon. Certainly, in this case, the defence witnesses namely Gulabchand Patel (DW-1) and Gokul Patel (DW-2) have stated that the complainant and his brother had previous enmity with appellant regarding their property. On this aspect, the law is well settled that enmity is double edged sword, and on the basis of enmity witnesses cannot be branded as liar. Recently in the case of Nagraj Reddy Vs. Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM State of Tamilnadu, 2023 LawSuit (SC) 687, the observation of Hon'ble Apex Court is condign to quote here as under :-
"13. Undisputedly, Narayanappa (PW1) is an interested witness, being the brother of the deceased. He has also admitted that there existed previous enmity between the parties. As held by this Court in a catena of cases including a recent decision in the case of Khema alias Khem Chandra etc. Vs. State of Uttar Pradesh, 2022 SCC Online (SC) 991 previous enmity is a double edged sword. On the one hand, it provides for the motive and on the other hand, the possibility of false implication cannot be ruled out."
15. In view of the aforesaid propositions, the testimony of the witnesses cannot be discredited or wiped out only on the basis previous enmity or trivial contradictions which are not touching the root of case. As such the aforesaid contention is also not liable to be accepted. However, in such type of cases, the Court is bound to test and enquire the testimony of injured witness and other witnesses who are supporting the prosecution case.
16. Here, it is pertinent to mention here that Trilok (PW-2) is an injured witness, after injury, he fell down on the ground. Hence, his statement has special status in the eyes of law. With regard to the testimony of injured witness, the Hon'ble Apex Court in the case of [Chandrashekar Vs. State of Tamilnadu reported in (2017) 13 Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM SCC 585], endorsing another case of the Supreme Court, viewed as under :-
10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follows:
"28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
17. In addition to that, the prosecution case has also been well supported by Dr. Chandresh Dixit, Medical Officer (PW-5) and Dr. Animesh Damani (PW-8). The testimonies of these medical witnesses have not been rebutted in their cross-examination and therefore, they are supporting the said injuries of Trilok (PW-2). Furthermore, the testimonies of complainant and injured have also been corroborated by FIR and the respective Assistant Sub Inspector, Laxman Singh (PW-6). The testimony of Investigating Officer, Varun Tiwari (PW-9) also inspires confidence regarding the fact that injured had received Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM injuries due to assault of appellant. Hence, the prosecution case with regard to grievous injuries received by injured Trilok (PW-2) has been proved beyond reasonable doubt.
18. Now, turning to the next limb of arguments wherein learned counsel for the appellant has submitted that said offence is not coming in purview of Section 307 of IPC but rather it came in purview of Section 335 of IPC.
19. So far as the contention of learned counsel for the appellant regarding not traveling the present offence not more than the offence under Section 335 of IPC is concerned, the provisions of Section 335 of IPC is worth mentioning to refer here as under:
"335. Voluntarily causing grievous hurt on provocation.--Whoever [voluntarily] causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both."
20. Virtually, if the defence counsel wants to rely on the provision of Section 335 of IPC, the defence has to prove the fact of grave and sudden provocation. However, after going through the whole cross-
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PMexamination of the prosecution witnesses, no suggestion regarding grave and sudden provocation has been given by learned counsel for the appellant before the trial Court. The defence witnesses Gulabchand Patel (DW-1) and Gokul Patel (DW-2) have also not narrated anything regarding any provocation. Even in the examination of accused under Section 313 of IPC, accused Babulal has relied on total denial of the case. In his statement, he has not submitted anything regarding grave and sudden provocation, hence, he cannot be benefited by the provision enshrined under Section 335 of IPC.
21. Now, the question for consideration is as to whether the offence of appellant came in purview of the attempt to murder. As per the prosecution, no repeated blow was made by the appellant. Initially, the MLC conducted by Dr. Chandresh Dixit (PW-5) clearly shows that "swelling on the right temporal of the head measuring 5X4 cm and a lacerated wound measuring 4X2 cm on the right ear". The aforesaid statement of Dr. Dixit and medical report clearly shows that only two injuries were found on the head of the injured. Certainly, Dr. Dixit (PW-5), in his reply of a query, stated that the said injuries were serious in nature and the injury can be caused by a hard weapon. Initially, the injured was treated at Kasrawad Hospital and further admitted in Bombay Hospital, Indore where, after CT Scan, a fracture on right temporal bone was found.
22. Further, in view of the reports and the nature of the injuries, it cannot be ascertained that the accused has intention to murder, or Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM knowledge as to the fact that the injured would be killed by these injuries. The prosecution has also not set up that the said injuries were 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 of the four injuries which the Medical Officer Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM 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."
23. In Mahendra Singh vs. State of Dehli Administration [AIR 1986 SC 309], it is held that grievous heart caused by blunt weapon like lathi, can fall within section 325 of IPC and not under Section 326 of IPC. Likewise, in another case, Halke vs. State of M.P. [AIR 1994 SC 951], wherein it is held that the accused caused death of deceased by inflicting blows on him with stick. Head injury proved to be fatal and deceased died after a week. In this case, the accused was Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM held liable and punished under Section 325 of IPC. The following excerpts of the aforesaid judgment are worth to refer here:-
"9....................No doubt the injury on the head proved to be fatal after lapse of one week but from that alone it cannot be said that the offence committed by the two appellants was one punishable under Section 304 Part II IPC. The injuries found on the witnesses are also of the same nature and for the same they are convicted under Section 325 of IPC."
24. From the aforesaid findings of the learned trial Court, it is elucidated that the appellant has caused injuries with intention to cause grievous injury only, therefore, he cannot be convicted under Section 307 of IPC and the appellant should be convicted for voluntarily causing grievous injury punishable under Section 325 of IPC.
25. Hence, in view of the aforesaid analyses, the conviction under Section 307 of IPC is liable to be and is hereby set aside and instead of that the appellant is liable to be convicted under Section 325 of IPC. Accordingly, this appeal is partly allowed with regard to the fact that the appellant is convicted under Section 325 of IPC instead of the offence under Section 307 of IPC.
26. So far as the sentence is concerned, looking to the facts and circumstances of the case and also the fact that the appellant is not having any criminal past and he is facing criminal case since 2021, it Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM would be condign to award sentence to the appellant for two years R.I. alongwith fine of Rs.50,000/- for the offence punishable under Section 325 of IPC. In case of default of payment of fine amount, the appellant shall further undergo for 03 months S.I. The sentence already suffered by the appellant, will be adjusted inconsonance of Section 428 of Cr.P.C.
27. He be set at liberty forthwith if not required in jail in any case immediately subject to deposit the fine amount after completion of the aforesaid period. The fine amount and compensation amount, if any, deposited earlier shall be adjusted.
28. Out of the fine amount so deposited by the appellant, Rs.40,000/- be paid to the injured Trilok by the learned trial Court.
29. The judgment regarding disposal of the seized property stands confirmed.
30. A copy of this order be sent to the learned trial Court for information and compliance.
31. Consequently, the appeal is partly allowed and disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH) JUDGE Vindesh Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 8/31/2024 6:16:10 PM