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Madhya Pradesh High Court · body

2003 DIGILAW 455 (MP)

State of M. P. v. Tarun

2003-03-26

DEEPAK VERMA, N.K.JAIN

body2003
JUDGMENT 1. This appeal against acquittal, filed by the State with the leave of the Court, is directed against the judgment dated 11.7.1995 passed by 13th Addl. Session Judge, Indore in ST No. 446 of 1991 acquitting accused-respondent Tarun together with Nagu alias Ravindra of the charge under section 307 and 307/34, IPC 2. Leave has been granted only as against accused-respondent Tarun. 3. It is no more in dispute that on the relevant date, i.e., 5.1.1991, accused Tarun was a tenant of complainant Bholaram, in a house situated at Badi Gwaltoli Indore Complainant Bholaram, together with his family, also occupied a portion of the said house. According to the prosecution, then existed some disputes between the complainant and accused Tarun over vacation of the house. It is alleged that or 5.1.1991, in the morning around 9 O'clock accused Tarun accompanied by co-accused Nagu trespassed into the portion of the house occupied by the complainant and knifed him causing injuries on his face and left thigh. A report of the incident vide Ex. P-l was lodged by Bholaram himself the same morning a 9.30 a.m. at PS Palasia. Bholaram was go examined medically. Accused- respondent was arrested and the knife used by him in the said incident was recovered in the wake of information given by him in police custody. After other necessary investigation, accused were charge sheeted, which ended in their acquittal as aforesaid. 4. We have heard Shri G. Desai, learned public prosecutor for appellant State and Shri R.K. Bhadang, learned counsel for respondent. 5. As regards the incident, Bholaran (PW 1), his wife Shantibai (PW 2) and granddaughter Ku. Rachna (PW 3) have narrated the story already stated hereinbefore. They all have uniformly testified that it was the accused-respondent Tarun who had assaulted Bholaram by means of knife causing injuries on his face and thigh. We have very carefully examined their depositions and we see absolutely nothing to discredit their sworn testimony. It is true that they are relative of each other, rather family members. But this by itself is no ground to disbelieve their testimony, which otherwise inspire confidence and finds full corroboration from the prompt FIR Ex. P-I lodged by Bholaram himself and the medical evidence of Dr. S.K. Tiwari (PW 16). As per the evidence of Dr. It is true that they are relative of each other, rather family members. But this by itself is no ground to disbelieve their testimony, which otherwise inspire confidence and finds full corroboration from the prompt FIR Ex. P-I lodged by Bholaram himself and the medical evidence of Dr. S.K. Tiwari (PW 16). As per the evidence of Dr. Tiwari, the complainant-injured had two incise, wounds -- one on the face right side and the other on left thigh as 'detailed in the report Ex. P-8A. Dr. Tiwari has clearly opined that both these injuries could be caused by knife. 6. The incident had taken place inside the house of the complainant and as such the presence of his family members in the house was but natural. 7 Yet another important corroboration is found in the testimony of Ashok Kumar (PW 15) who incidentally has been examined twice. In both of his statement, before the Court, he has testified that he, was in his shop situated near his house, and on hearing cries when he came to his house, he saw accused Tarun fleeing from the spot with a knife in his hand. He also found his father having injuries on his face and thigh. This res gestae evidence of Ashok also could not be challenged by the defence in cross-examination. 8. Although other witnesses, namely Kishore (PW 8) and Pooranlal (PW 9) both tenants in the said house, have no supported the prosecution story and denied to have witnessed any such incident however, they both admit that they saw 'injuries on the person of Bholaram. It appears that they did not want to incur displeasure of any of the two parties and therefore, pleaded their ignorance about the incident. They have been declared hostile by the prosecution and when confronted with their earlier police statements Ex. P-5 and Ex. P-6, they totally resiled therefrom. Obviously, both these witnesses have been suppressing truth and their testimony cannot be pressed into service to disprove the charge against accused-respondent. 9. We have gone through the judgment rendered by the trial Court and it is seen that the finding of not guilty is based on mere surmises and conjectures. There was no material before the Court to hold that there was possibility of someone else assaulting the complainant. 9. We have gone through the judgment rendered by the trial Court and it is seen that the finding of not guilty is based on mere surmises and conjectures. There was no material before the Court to hold that there was possibility of someone else assaulting the complainant. The Court below also erred in disbelieving the witnesses on the ground that they an relative witnesses. As observed by the Apex Court in Dalvir [ AIR 1977 SC 472 ]: "moreover, a close relative who is a very natural witness cannot be regarded as an interested witness." In another case of Dilip Singh [ AIR 1953 SC 364 ]. it was observed that: "a close relative would be last person to screen the culprit and falsely implicate an innocent person." 10. It will be thus seen that there is overwhelming evidence on record to show that the accused-respondent Tarun die assault complainant Bholaram by means of knife causing injuries on his face and thigh. However, the question still remains as to what offence. if any, the accused had committed. 11. Both the injuries on the person of the complainant were simple in nature inasmuch as second doctor, namely, Dr. Kulkarni, who had examined the complainant and given opinion that the injury was grievous has not been examined as a witness. There is nothing on record to show that the complainant had suffered fracture of any bone underlying any of the two injuries. There is also no evidence of disfiguration of face. No vital organ of the body was affected. Under the circumstances, it cannot be said that the accused had intended to cause death of the complainant. His act did not travel beyond S. 324, IPC. We, accordingly, hold accused Tarun guilty under S. 324, IPC. 12. We have heard the accused and hi counsel on the point of sentence. The incident took place way back on 5.1.1991 On the date of the incident, the accused was below 21 years of age. The interest of justice would, therefore, be served by releasing the accused under the provision of the Probation of Offenders Act. 13. This appeal thus succeeds in part and to the extent indicated above. The judgment of acquittal rendered by the trial Court is set aside and instead, the accused respondent Tarun is convicted under S. 324, IPC. The interest of justice would, therefore, be served by releasing the accused under the provision of the Probation of Offenders Act. 13. This appeal thus succeeds in part and to the extent indicated above. The judgment of acquittal rendered by the trial Court is set aside and instead, the accused respondent Tarun is convicted under S. 324, IPC. However, instead of passing any sentence forthwith, he is directed to hi released on his entering into a bond of Rs 5,000/- with one surety in the like amount to the satisfaction of the trial Court that he shall appear and receive sentence when called upon during one year from the date of furnishing of the bond as the Court may direct and in the meantime to keep peace and be of good behaviour. The bond a aforesaid be furnished within 30 days.