Madhya Pradesh High Court
Sanjay vs The State Of M.P. on 13 March, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S. Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:6996
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S. KALGAONKAR
ON THE 13th MARCH, 2025
Criminal Appeal No. 1176 of 1999
SANJAY
Versus
STATE OF M.P.
Appearance:
Shri Dharmendra Keharwar - Advocate for the appellant.
Shri Romil Verma - Govt. Advocate for the respondent/State.
Shri Jitendra Bohare - Advocate for the respondent/complainant.
ORDER
This appeal having been heard and reserved for orders, coming on for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the following:
This criminal appeal u/S 374 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.', hereinafter) is filed assailing the judgment of conviction and order of sentence dated 24.08.1999 passed by learned Additional Sessions Judge, Kannod, Distt. Dewas in S.T. No. 85/1998, whereby the appellant - Sanjay was convicted for the offence punishable u/S 307 of IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 1,000/- with default stipulation of imprisonment for 03 months on non-2
NEUTRAL CITATION NO. 2025:MPHC-IND:6996 payment of fine. For the sake of convenience appellant - Sanjay shall be referred to as "accused" hereinafter.
2. The exposition of facts giving rise to present appeal is as under:
Yusuf S/o Ahmed Hussain was returning home from bus stand of Kannod around 20:15 hrs on 27.02.1998. Sanjay Jhanjhot intercepted him and inquired about manhandling with Chintu. Yusuf did not respond. Sanjay slapped him and abused him in filthy language. Yogendra Yadav and Chintu caught hold of him. Sanjay picked up a Razor blade (ustara) from nearby barber shop and assaulted Yusuf on left side of chest. Accused threatened to kill him. Chotu Bhartiya intervened. P.S. Kannod registered FIR at Crime No. 43/1998 for offence punishable u/S 307, 294, 506, 341 and 34 of IPC against Sanjay Jhanjhot, Yogendra Yadav and Chintu Karpele. Yusuf was forwarded for medico legal examination. The Medical Officer opined that the injured caused on chest of Yusuf could be life threatening. On completion of investigation, final report was submitted.
3. Learned trial Court framed charges of offence punishable u/S 307 r/w 34, Section 294 r/w 34 of IPC and Section 506 and 341 of IPC against Sanjay. Similar charges were framed against Yogendra and Chintu. On completion of trial, after hearing both the parties, learned trial Court acquitted all the accused from charge of offences punishable u/S 294 and 506 of IPC. Accused Chintu and Sanjay were acquitted of charge for offence punishable u/S 307 r/W 34 of IPC. Appellant - Sanjay was acquitted of the charge for offence punishable u/S 341 of IPC. Learned trial Court convicted the accused Yogendra and Chintu for offence punishable u/S 341 of IPC. Chintu was given the benefit of the Probation of Offenders Act and Yogendra was sentenced to fine of Rs. 500/-. Learned trial Court 3 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 convicted the accused Sanjay for offence punishable u/S 307 of IPC and sentenced him as stated in para 1 of the judgment.
4. The impugned judgment of conviction and order of sentence is assailed in the appeal by accused/appellant - Sanjay on the following grounds:
1. Learned trial Court committed error in relying on the evidence of injured - Yusuf and Shamshuddin (PW-7), who was an interested chance witness. Shamsuddin was not named as an eye-witness in the FIR.
2. The injury caused to Yusuf was not grievous in nature. Dr. Kailash Devda(PW-12) has opined that injury may be dangerous to life.
3. No independent witness from thickly populated area has been examined.
4. Learned trial Court lightly brushed aside the material omissions and contradictions in the testimonies of prosecution witnesses.
5. The prosecution failed to prove the motive on the part of the appellant.
On these grounds, it is prayed that the impugned judgment of conviction and order of sentence be set aside and appellant be acquitted.
5. Learned counsel for the appellant in addition to the grounds mentioned in the appeal submits that prosecution had failed to prove the intention of committing murder. It was a sudden incident. The appellant was not armed with any weapon. Learned counsel further contends that 26 years have elapsed since the incident. Both the parties have amicably settled the 4 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 dispute. The factum of compromise is duly verified. Therefore, in view of the judgment of Apex Court in the case of Gian Singh Vs. State of Punjab (2012) 10 SCC 302, appellant be acquitted on compromise between the parties.
6. Per contra, learned counsel for the State submits that the trial Court has committed error in convicting the appellant. The injury of incised wound was caused on vital part, chest of injured - Yusuf. In view of medical opinion, the trial Court has rightly convicted the appellant for the offence punishable u/S 307 of IPC. The appeal is meritless and deserves to be dismissed.
7. Heard, both the parties and perused the record.
8. The following points for determination arise in the matter:
(i) Whether the appellant deserves a judgment of acquittal in view of amicable settlement between the parties?
(ii) Whether, the appellant had caused injury to Yusuf with such knowledge or in such circumstances that if Yusuf had died, appellant would be guilty for his murder?
(iii) Whether, learned trial Court committed error in convicting the appellant for offence punishable u/S 307 of IPC?
9. Point for determination No.1 - Reasons for conclusion
10. During the pendency of the appeal, the complainant/injured has approached this Court with the compromise petition - I.A. No. 3439/2019 and 3440/2019. The factum of compromise is duly verified. The Court, on 5 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 verification of compromise, reserved the same for consideration at the time of final hearing.
11. The appellant is convicted for offence punishable u/S 307 of IPC for inflicting injury on chest of Yusuf by a sharp edged Razor blade(ustara). The incident happened at a public place near the bus stand. It has ramification on the public order. Therefore, in view of the judgment of Apex Court in the case of Narinder Singh and Others Vs. State of Punjab (2014) 6 SCC 466, this Court is of the considered opinion that the appellant does not deserve a judgment of acquittal merely on the basis of amicable settlement between the parties. The relevant observations of the Apex Court are as under:
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed.
Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. (emphasis added)"
12. Point for determination No.2 and 3 - Reasons for conclusion 6 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 The reasons and conclusion for both points are inter-dependent, therefore they are considered analogously.
13. Yusuf Khan(PW-1) stated that Sanjay intercepted him near Kannod bus-stand and asked him about manhandling with Chintu. He did not respond. Sanjay slapped him. When he was about to move, Yogendra Yadav and Chintu caught hold of him. Sanjay picked up a Razor blade(Ustara) from a barber shop and assaulted him. He sustained injuries on left side of chest. He went to Police Station and lodged report(Exhibit-P/1). The testimony of Yusuf remained unrebutted in cross examination.
14. Shamshuddin(PW-7) corroborated the testimony of Yusuf Khan(PW-1). Shamshuddin(PW-7) stated that Sanjay confronted Yusuf regarding beating of Chintu. Yusuf did not response. Sanjay slapped him. Thereafter, Sanjay brought a Razor blade (ustara) from the Barber shop and assaulted Yusuf with Razor blade (ustara) on left side of the chest. There is no material inconsistency or contradiction in the testimony of the injured Yusuf and eye- witness Shamshuddin.
15. Learned counsel for the appellant contended that Shamshuddin(PW-7) was not named as witness in the FIR. Learned trial Court dealt with this contention in Para-18 of the judgment to conclude that presence of Shamshuddin on the spot of incident cannot be doubted. His testimony is believable in view of the fact that he has not a related or interested witness. The reasons and conclusion of trial Court are appropriate.
16. Dr. Kailash Dewada(PW-12) examined Yusuf around 09.45 p.m. on 27.02.1998 at Civil Hospital, Kannod and found three incised wounds on left side of his chest. Dr. Dewada(PW-12) opined that the injuries were caused by hard and sharp object. The injuries were on vital part and could be life 7 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 threatening. The injuries were caused within 24 hours of the examination. Thus, the medical evidence also corroborates the testimony of Yusuf Khan(PW1).
17. Head Constable Prabhudayal(PW-10) proved First Information Report written at the instance of Yusuf Mohammad on 27.02.1998. The prompt and consistent First Information Report corroborates testimony of Yusuf Khan under Section 157 of the Evidence Act. The S.H.O. Kannod, Dinbandhu Singh Tomar(PW-11) proved the recovery of a Razor blade(ustara) at the instance of accused Sanjay. The seizure of blood stained earth from the spot of incident verifies the place of occurrence of the incident near bus-stand Kannod.
18. The learned trial Court has dealt with minor inconsistencies in the prosecution evidence and concluded that it is proved beyond doubt that accused Sanjay had voluntarily inflicted injuries on left side of chest of Yusuf in the evening of 27.02.1998 by hard and sharp object Razor blade(ustara). This conclusion, being appropriate, is affirmed.
19. Now, the question for consideration is whether the appellant intended to cause such injury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury, as is likely to cause death.
20. The learned trial Court, in para - 27 of the judgment, observed that there was no prior plan to commit murder of Yusuf. None of the accused was armed with any weapon at the time of incident. Sanjay first confronted Yusuf with regard to manhandling of Chintu. After altercation, Sanjay picked up an ustara from Barber shop. It goes to show that there was no pre-meditation or prior 8 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 plan to cause death of Yusuf. Learned trial Court, considering these aspects, acquitted co-accused Chintu and Yogendra of offence punishable under Section 307 read with Section 34 of IPC. However, relying on the same set of evidence, learned trial Court committed an error in concluding that Sanjay has caused injury to Yusuf with such intention and in such circumstances, that if Yusuf had died, Sanjay would have been guilty for murder. The conclusion of learned trial Court is erroneous in view of the factual scenario and the circumstances reflected by the evidence and considered by the learned trial Court in Para - 27 of the judgment.
21. Apparently, there was no pre-plan or pre-meditation to cause death of Yusuf by accused Sanjay. During altercation, in a fit of the moment, Sanjay picked up a Razor blade(ustara) from nearby barber shop and assaulted Yusuf. Therefore, no intention to cause death can be inferred from the obtaining circumstances of the incident.
22. It is pertinent to mention that on medico-legal examination of Yusuf, Dr Dewada has opined as under :-
"Because injuries are on vital parts, it may be dangerous to life, exact opinion will be given after observation under surgical specialist M.Y.H. Indore. The patient is referred to M.Y.H., Indore for management"
23. Later, same medical officer, without consulting the surgical specialist, responded to query that since the injury was caused on chest by Ustara, it may be dangerous to life. The medical papers available on record show that no bony injury was revealed on X-ray of chest of Yusuf. It goes to show that none of the ribs was fractured. No injury had caused damage to any vital organ of Yusuf and he was discharged within 10 days of the incident from M.Y. Hospital, Indore as stated by him in Para-6 of evidence. However, the 9 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 discharge slip on record shows that he was discharged on 07.03.1998 i.e. eight days after the incident. Thus, the injury inflicted cannot be treated to be grievous or of such a nature as is sufficient, in the ordinary course of nature, to cause death.
24. In view of this discussion, the prosecution had failed to prove that appellant/accused Sanjay had intention to cause death of Yusuf. His act was not so imminently dangerous that it must in all probability caused death of Yusuf or he caused such an injury, as is likely to cause death of Yusuf. Consequently, the prosecution had failed to prove that the accused Sanjay had caused injury to Yusuf with such knowledge or in such circumstances that if Yusuf had died, appellant would be guilty for his murder.
25. Therefore, the learned trial Court committed an error in convicting the accused Sanjay for offence punishable under Section 307 of IPC. Accused/appellant Sanjay is acquitted of the charge for offence punishable under Section 307 of IPC. However, the offence punishable under Section 324 of IPC is clearly made out against the accused, therefore, in exercise of powers under Section 386 of the Code of Criminal Procedure, 1973 accused/ appellant Sanjay is convicted for offence punishable under Section 324 of IPC. [Sarju Prasad Vs. State of Bihar (AIR 1965 SC 843 relied)]
26. Now, the propriety of sentence is considered. The learned trial Court had convicted and sentenced the appellant Sanjay for offence punishable under Section 307 of IPC for Rigorous Imprisonment of seven years. The arrest memo shows that Sanjay was aged around 24 years and was pursuing B.Com Final Year at the time of alleged incident. No criminal antecedent was reported against the appellant. Minor altercation over manhandling with Chintu, a friend of accused, aggravated into scuffle and in a fit of the moment, Sanjay picked 10 NEUTRAL CITATION NO. 2025:MPHC-IND:6996 up an ustara and assaulted Yusuf, who was also of same age. Almost 26 years have lapsed since the incident. The assailant and the injured must have moved in their life. The pain of injury and agony of the incident might have diminished. Both the parties have resolved their differences and amicably settled the dispute. A compromise petition was proposed before this Court. In view of this, further incarceration of appellant/accused Sanjay may reignite the enmity. In view of these facts and circumstances, the ends of justice would be served by reducing the sentence of imprisonment and enhancing the fine to compensate injured Yusuf.
27. Accordingly, the impugned sentence is set aside and it is directed that appellant Sanjay shall undergo sentence of imprisonment equivalent to the period of custody undergone by him. He shall also be liable to pay fine of Rs. 7,500/- failing which, he shall undergo Rigorous Imprisonment for three months. The fine amount already deposited shall be adjusted. After deposit of the fine amount, an amount of Rs.5,000/- be paid to the injured Yusuf S/o Ahmed Khan R/o Kannnod under Section 357 of the Code of Criminal Procedure. The order with regard to disposal of property by the trial Court is affirm ed.
The Registry is directed to remit record of the trial Court forthwith alongwith the copy of this judgment.
(SANJEEV S KALGAONKAR) JUDGE sh/-
SEHAR Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=BENCH AT INDORE, 2.5.4.20=900ec6fc757798eaeb3df7 HASEE a32860bd3298415a4d1c2d914362 13f2568c8f27da, postalCode=452001, st=Madhya Pradesh, serialNumber=E7DBBA955B262C04 N B8413251CE7FB6F0B7DBA610C57F 1559C08BF6C6F5DD40D4, cn=SEHAR HASEEN Date: 2025.03.13 17:58:53 +05'30'