Madhya Pradesh High Court
Kailash Kumawat vs The State Of M.P on 9 January, 2013
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
(1)
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
CRIMINAL APPEAL NO.363 of 1997
Kailash Kumawat.
Versus.
State of M.P.
For appellant : Shri Amit Verma, Advocate.
For respondent : Shri Lalig Joglekar, Panel Lawyer.
JUDGMENT (ORAL)
(09.01.2013.) U.C. MAHESHWARI J.
This appeal is directed by the appellant/accused under section 374 of the Cr.P.C being aggrieved by the judgment dated 30.1.1997 passed by the III Addl. Sessions Judge, Bhopal in Sessions Trial No.327/95 whereby he is convicted and sentenced under section 326 of the IPC for RI 3 years with fine of Rs.1000/-, in default of depositing the fine for further six months simple imprisonment.
2. The facts giving rise to this appeal in short are that on 16.6.95 at about 8 O' Clock in the morning the victim/complainant Ajay Dua (PW 2) lodged the FIR at P.S. Piplani, Bhopal against the appellant contending that yesterday on 15.5.95, appellant Kailash under influence of liquor, abused him with filthy languages and also threatened to give him a blow of knife and today at about 7 O' Clock in the morning, after stationing his auto- rickshaw when he was standing at the auto-stand of Piplani, appellant Kailash came and abused him with filthy languages, at the same time, the driver Shankar also came there in whose presence, after taking out the knife (2) from his pocket, appellant Kailash gave him the first blow on right side of his abdomen and second blow on his right thigh, resultantly, he sustained the injuries with bleeding. Subsequent to the incident, appellant fled away from the spot. Soon-after the incident, he came to the police station and lodged the report. On such report, the crime was registered against the appellant for the offence of section 307,294 and 506 of the IPC. The victim was sent to the hospital, where after medical examination, his MLC report (Ex,P/7) was prepared by the then CMO Dr. Mukul Sharma. Looking to the nature of the injuries he was referred to consultants of surgical branch and orthopedic branch, on which, they have given their opinion and Dr.S.K.Saxena (PW 4) had also carried-out surgery of the victim with respect of abdomen of the victim. After arresting the appellant and interrogating the witnesses, the prima facie ingredients of the aforesaid offence were made out against the appellant, on which, he was charge- sheeted for the same.
3. After committing the case to the Sessions Court, on evaluation of the charge-sheet, the charges of the above mentioned offence were framed against the appellant. He abjured the guilt, on which, the trial was held. After recording the evidence, on appreciation of the same, the appellant was acquitted from the above mentioned charge of section 307,294 and 506-B of the IPC, instead it, he was held guilty under section 326 of the IPC and sentenced as stated above. Being dissatisfied with such conviction and sentence, the appellant has come to this court with this appeal.
4. I have heard counsel for the appellant and learned panel lawyer at length.
(3)
5. Shri Amit Verma, learned counsel of the appellant argued the case mainly to modify the impugned conviction from section 326 of the IPC to section 324 of the IPC. He also placed his reliance on the MLC report Ex.P/7 as also the deposition of doctor who examined the victim on being referred by the CMO of the concerning hospital and had also given treatment to the victim. By referring the deposition of such witness it was stated that such doctors have not found any distinguishable nature and situation of the injuries stated by the CMO in the MLC report (Ex.P/7) in which only two incised wounds, one on the abdomen near umbilicus chord and another at the left thigh, was found. According to such MLC report, no vital organ of the victim was damaged in any manner by the aforesaid any of the injuries and, in such premises, such injuries could not be treated to be grievous in nature. It being caused by hard and sharp weapon, the person like appellant, could be convicted only under section 324 of the IPC and not under section 326 of the IPC. He also said that in the lack of recording the deposition of the CMO Dr. Mukul Sharma who prepared the MLC report, so also in the absence of any explanation regarding non-examination of such doctor, are the sufficient ground to hold the aforesaid injuries to be simple in nature for modifying the offence of section 326 to section 324 of the IPC. With these submissions, he prayed for modification and remission of the jail sentence by allowing this appeal.
6. On the other hand, Shri Lalit Joglekar, PL by justifying the impugned conviction of the appellant said that the findings and the approach of the trial court are based on proper appreciation of the evidence and also is in conformity of law. The impugned judgment does not require any (4) interference at this stage either for acquittal or reduction of the jail sentence and prayed for dismissing this appeal.
7. Having heard the learned counsel at length, I have carefully gone through the record along with the impugned judgment so also the case law cited on behalf of the appellant in the matter of Ghulam Sabir Amir Khan Vs. Emperor-AIR (29) 1942 Peshawar 21(2) so also in the matter of Sarju Prasad Vs. State of Bihar-AIR 1965 SC -843.
8. It is apparent fact that immediately after the incident the victim went to police station and lodged the report from where he was sent to the hospital where his MLC report was prepared in which the corresponding injuries were found on his person. So, in such premises even in the absence of corroboration by any independent witness with respect of the actual incident, in the light of the above mentioned chain of the circumstance, the trial court has not committed any error in holding guilty to the appellant for the alleged incident. So, on such aspect, the findings of the impugned judgment holding guilty to the appellant for the alleged incident does not require any interference at this stage. Consequently, such finding and the approach of the trial court are hereby affirmed.
9. It is noted that the FIR of the incident has been proved by the victim himself while the injuries have been proved by Dr. S.K.Saxena (PW 4) as well as by Dr. Yogesh Balwapuri (PW 5) who had given treatment to the victim after being referred by the then CMO Dr. Mukul Sharma.
10. True it is that the CMO Dr. Mukul Sharma has not been examined in the matter to prove the initial MLC report P/7 which has been proved by the above mentioned other doctors. It is also apparent fact that no any positive (5) explanation has been putforth by the prosecution about non-examining the aforesaid Dr. Mukul Sharma but such circumstance does not make any difference in the matter because immediately after referring the victim the above mentioned senior Dr. S.K.Saxena and Dr. Yogesh Balwapuri examined him and found the same injuries as found by Dr. Mukul Sharma. According to their deposition they have not found any distinguishable feature in the alleged injury. So, this court has to decide the matter keeping in view the nature of the injury stated in the MLC report Ex.P/7 prepared by the CMO Dr. Mukul Sharma. As per the MLC report Ex.P/7, on examining the victim, following injuries were found on the person of the victim :-
"1. Incised wound 2 ½" away from umbilicus right side laterally measuring 2 ½" x 1 ½" x depth to be explored. Bleeding present.
2. Incised wound left thigh lateral aspect middle 1/3, 5" x 2 ½" x muscle deep. Bleeding present.
Opinion: Injuries caused by hard and sharp object. They are fresh and caused within 6 hours. For nature of injuries referred to (1) surgical specialist and (2) Orthopedic specialist. "
11. It is apparent from the aforesaid that the doctor while preparing such report has not given any opinion that any of such injury was sufficient to cause the death of a victim. But the same was referred to consultant for opinion and it is apparent on record that during investigation, no such opinion in writing was given by any of the treating doctors. So, in such premises the trial court has not committed any error in extending acquittal to the appellant from the charge of section 307 of the IPC but looking to the nature of the aforesaid injuries it is also apparent that although such injuries (6) are incised wound sustained near umbilicus and it is in the nature of stab injury but as per deposition of Dr. S.K.Saxena and Dr. Yogesh Balwapuri, no vital organ of the victim was found in damage condition. As such, no vital organ was damaged from the aforesaid injuries and it is settled proposition of the law the accused of criminal case is always convicted and sentenced for such act which he actually committed and not of such act which he could have committed and did not commit. My aforesaid approach is based on Ghulam Sabir Amir Khan Vs. Emperor-AIR (29) 1942 Peshawar 21(2) in which it was held as under :-
"The only act which could fall within the purview of S.307 is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events and accused's criminal liability must be limited to the act which he in fact did, and cannot be extended so as to embrace the consequence of another act which he might have done but did not do."
Placitum
12. So, in the aforesaid premises, the person like appellant could have been convicted by the trial court for the act and injury which appellant actually caused and the victim sustained. In the available circumstances on taking into consideration the depositions of the above mentioned doctors as accepted in toto, the person like appellant could not be convicted for more than section 324 of the IPC and, in such premises, his conviction under section 326 IPC is not sustainable. Mere on the basis of length and breadth or deepness of the injury, the same could not be treated to be the grievous in nature unless the same is proved on the record by the doctor in accordance with the principle of medical jurisprudence. So, in such premises, the alleged injuries could not be deemed or held to be grievous injuries mere on (7) the oral deposition of the doctor. Even otherwise, in the lack of surgical note of Dr. S.K.Saxena on the record, such injury could not be treated to be grievous in nature. As such, in the lack of surgical note of such doctor with respect of alleged injury No.1, it could not be assumed that such injury was grievous in nature as it has not been proved on the record that which type of treatment to repair such injury was given by the doctor. Such surgical notes, prepared by the doctor, in the operation theater and the subsequent report endorsed at the back side of the MLC report, both are having the different consideration, first is preliminary evidence while the second is secondary evidence. Thus in the lack of initial surgical report on the record, mere on the basis of subsequent report mentioned at the back side of the MLC report Ex.P/7, the alleged injuries could not be deemed to be sufficient to draw an inference that such injuries were grievous in nature or amounting to an offence defined under section 326 of the IPC. My such appropriate also fortified by the principle laid down by the Apex Court in the matter of Sarju Prasad Vs. State of Bihar-AIR 1965 SC 843 in which it was held as under :-
"Accused causing injury to A in a vital region with a knife- Fact that no vital organ of A has been cut would not be itself be sufficient to take the act of accused out of the purview of section 307- But in order to bring the offence home to accused the prosecution must establish that his intention was one of the three kinds mentioned in section 300- State of mind of accused has to be deduced from surrounding circumstance and motive would be relevant circumstance- Evidence not sufficient to establish with certainty existence of requisite intention or knowledge of accused- Accused can be convicted only under Section 324 and not under Section 307." .... Placitum (8)
13. In view of the aforesaid discussion, the impugned conviction and sentence of the appellant under section 326 of the IPC is not sustainable. The same deserves to be and is hereby set aside.
14. Setting aside the conviction and sentence under section 326 of the IPC does not mean that the appellant is entitled for extending acquittal from the alleged case, in the available scenario, as discussed above, the appellant is held guilty under section 324 of the IPC. After holding guilty to the appellant under section 324 of the IPC, I proceed to consider the matter for imposition of the sentence. In the available scenario of the case, even after 17 years from the date of the incident, I am not inclined to extend the benefit of Probation of Offenders' Act to the appellant. So, such prayer made by the appellant's counsel is hereby rejected.
15. It is apparent on record that the appellant has already suffered the judicial custody of 11 days during pendency of the trial between 18.6.95 to 28.6.95 and also suffered the mental agony of the case in last near about 17 years and during this period he might have been settled in his family. So sending him again to jail by imposing additional jail sentence besides the aforesaid period which he has already undergone then in comparison to the appellant, his family has to suffer in a lot. So, in such premises, I deem it proper to convict him under section 324 IPC for the aforesaid period of 11 days which he has already suffered during pendency of the trial in judicial custody but by imposing the fine of Rs.5000/- (Rs. five thousand). The same is ordered.
16. In view of the aforesaid discussion, by allowing this appeal in part, the appellant is acquitted from the charge of section 326 IPC along with the (9) imposed sentence. Instead it, after holding him guilty under section 324 of the IPC, he is sentenced for the aforesaid period of 11 days which he has already undergone during the pendency of the trial by imposing the fine of Rs.5000/- (Rs. Five thousand). The amount of fine which was deposited in connection with the sentence under section 326 IPC, shall adjusted in the aforesaid imposed fine amount. The remaining amount of fine is to be deposited by the appellant within forty five days from today with the trial court, failing which he has to suffer further six months simple imprisonment. On depositing the aforesaid imposed fine amount, out of it, Rs.3500/- be given to the victim by calling him through summons in the trial court. If in compliance of the impugned judgment Rs.500/- has already been given to the victim then he be given only Rs.3000/- in compliance of the aforesaid direction. Till this extent, the impugned judgment is modified while the other findings of the same are hereby affirmed. The bail bonds of the appellant, if any, are hereby canceled.
17. Appeal is allowed in part as indicated above.
(U.C.MAHESHWARI) JUDGE MKL