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Madhya Pradesh High Court · body

2008 DIGILAW 202 (MP)

Gopal v. State of M. P.

2008-02-05

A.P.SHRIVASTAVA

body2008
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 30.6.2000 passed by the III Additional Sessions Judge, Shivpuri (M.P.) in STNo.57/93 by which the appellant No.1 Gopal and appellant No.2 Trilok Singh have been convicted under section 326 of IPC and sentenced to undergo rigorous imprisonment for four years each with a fine of Rs.5,000/- each. Appellant No.3 Lakkhu alias Lakhan Singh has been convicted under section 326 read with section 34 of IPC and sentenced to undergo rigorous imprisonment for four years with a fine of Rs.5,000/-. Further, all the appellants have also been convicted under section 367 of IPC and sentenced to undergo rigorous imprisonment for four years each with a fine of Rs.1,000/- each with default stipulations. 2. During the pendency of this appeal, appellant No.4 Pappu alias Satpal expired, therefore, this appeal so far as it relates to the appellant No.4 Pappu alias Satpal is dismissed being abated. 3. The case of the prosecution, in short, is that on 4.10.1992 Kalyan Chand Jain (PW2) alongwith Babulal Yadav (PW4) lodged the report at Police Station Kotwali that his brother Munnalal Jain (PW1) was having hotel which was dismantled due to encroachment and Yadav Hotel which belongs to Trilok Singh and Gopal was shifted towards the drain. As the hotel of Munnalal was running nicely, therefore, the appellants had enmity with the complainant Munnalal and on the previous night at about 11:00 p.m. when Munnalal was going to his house after closing the hotel near Bhairo Temple, on the way, Babulal also sat on his scooter. On the way, appellants Trilok, Gopal, Pappu Yadav and Lakkhu alias Lakhan Singh alongwith co-accused Hakim Singh, Rakesh, Karan Singh (acquitted by the trial Court) came in a jeep and they caught Munnalal and Babulal, threw on the ground, beat them and took them to the National Park and cut both the hands of Munnalal. When Babulal resisted, Karan Singh inflicted butt of the rifle on his face due to which he sustained injuries. Babulal ran away from the spot and informed the incident to Kalyanchand, brother of Munnalal, who lodged the report which is Ex.P-2. Somebody brought Munnalal to the hospital and he was treated there. After investigation, charge-sheet was filed and the case was committed to the Court of Session. Babulal ran away from the spot and informed the incident to Kalyanchand, brother of Munnalal, who lodged the report which is Ex.P-2. Somebody brought Munnalal to the hospital and he was treated there. After investigation, charge-sheet was filed and the case was committed to the Court of Session. The charges against the appellants were framed under sections 148, 307/149, 364, 201 and 323/149 of IPC but after conclusion of the trial, the appellants have been convicted by the trial Court as stated in para 1 of this judgment and three co-accused were acquitted as mentioned in para 55 impugned judgment rendered by the trial Court. 4. Counsel for the appellants submits that this case rests upon the sole testimony of Munnalal (PW1) because Babulal (PW4) who was present at the time of incident has not supported the prosecution case and the report lodged by Kalyan Chand (PW3) brother of Munnalal is only the informant of the case who got information from Babulal and Babulal had not supported the prosecution case. It is further submitted that the testimony of Munnalal is not free from doubts and unless the testimony of a single witness is truthful and inspires confidence to the Court, the conviction cannot be safe and the trial Court has not appreciated the evidence in the right direction. It is further submitted that on the same set of evidence, three accused persons were acquitted by the trial Court, therefore, the appellants have wrongly been convicted by the trial Court. 5. Counsel for the respondent-State submits that in the incident both the hands of the injured Munnalal were amputated by the appellants No.1 and 2 with the help of appellant No.3 by baka and sword. Although Babulal has been declared hostile but he supported to some extent that there was some maarpeet done by the persons who had come in a jeep although he denied to recognize them. Further, the statement of Munnalal is trustworthy and fully supported by the medical evidence. Therefore, the story which was written in the first information report was got corroborated by ocular and medical evidence and the trial Court has rightly convicted the appellants. 6. Further, the statement of Munnalal is trustworthy and fully supported by the medical evidence. Therefore, the story which was written in the first information report was got corroborated by ocular and medical evidence and the trial Court has rightly convicted the appellants. 6. Kalyan Chand (PW3) is the brother of Pappu alias Munnalal and he told that some enmity was developed due to business of hotel with the appellants and on the previous night Babulal (PW4) informed that in the night when he was sitting on the scooter of Munnalal, the appellants came there, hit the scooter and took away both of them in a jeep and the hands of Munnalal were amputated by the appellants. He lodged the report which is Ex.P-2. In para 20, the witness deposed that Babulal (PW4) had informed him that appellant Gopal and Trilok amputated the hands of his brother Munnalal (PW 1). Although some minor contradictions and omissions appeared in the statement of the witness but they are not relevant and material in particular. 7. Babulal (PW4) only corroborated the prosecution case to the extent that in the jeep seven persons came, took Pappu alias Munnalal and also beat him but reason for quarrel was not known to him. The way the witness gave his testimony, clearly shows that he did not want to tell the truth before the Court and won over by the defence. 8. Munnalal Jain (PW 1) is the main injured witness whose hands were amputated. He corroborated the prosecution story and deposed that he knew the appellant. On the date of incident, in the night when he was going to his house after closing his hotel, on the way, Babulal (PW4), who is his neighbour, met him and also sat on the scooter. On the way, in a jeep, appellants came and they put him and Babulal into the jeep and went towards the gate No.2 of the National Park where they took them out, laid him down on the stone, and one hand was cut by the appellant Gopal and the second was cut by appellant Trilok. Trilok was having sword in his hands while Gopal was having baka. He further stated that Pappu and Lakkhu had caught hold of his hands and Karan Singh and Hakim Singh had caught hold of his legs. Trilok was having sword in his hands while Gopal was having baka. He further stated that Pappu and Lakkhu had caught hold of his hands and Karan Singh and Hakim Singh had caught hold of his legs. The witness stated that one person brought him to the hospital whose name he does not know and got him admitted in the hospital. Shri Vinod Pathak, Naib Tehsildar, had also taken his statement. Babulal Yadav (PW4) is the neighbour. A very long cross-examination was done with the witness but the defence could not challenge the testimony of the witness on the point of amputation of the hands of Munnalal by the appellants No.1 and 2. Some contradictions and omissions appeared but they are not fatal to the prosecution. 9. Regarding the medical examination, Dr. A.K. Chagla (PW6) examined the injured Munnalal Jain. The report is Ex.P-8 : "1. Both hands from lower part of forearm completely amputated (Lt. and Rt. hand cut portion not produced at the time of medical examination). An incised wound of 7cmx2cmxbone deep in anterior aspect of forearm Lt 3 cms above the amputate part of forearm. All skin, muscle, bone and blood vessels cut, blood vessels spurting from wound, but not active bleeding seen at present. Advised x-ray of both forearms for further bone injury detected. Skin and muscle of posterior side of left forearm is intect. 2. Contusions of 6cmx6cm on Rt lower end and face reddish blue colour. 3. Abrasion of 4cmx3cm on mid nose defused swelling around the wound. 4. Contusion of 8cmx4cm reddish in colour at back of right abdomen. The doctor opined that the injury No.1 was caused by sharp edged weapon and the nature of injury was grievous while the injuries No.2, 3 and 4 were caused by hard and blunt object and they were simple in nature. 10. Dr. J.N. Sharma (PW2) also examined the portion of the amputated hand of Munnalal Jain. The report is Ex.P-1 which is as under : "the hand presented by the Police Shivpuri is examined by me and found the hand of left limb. The carples bone are seen wreckage on sceptered, rest is about with the tissue. All fingers with nails are in normal shape. On external examination, it is seen that the separated hand is caused by sharp cutting object by multiple hurts. The carples bone are seen wreckage on sceptered, rest is about with the tissue. All fingers with nails are in normal shape. On external examination, it is seen that the separated hand is caused by sharp cutting object by multiple hurts. The hand is sealed and packed in a separate packet and handed over to the police. 11. Dr. G.P. Gupta (PW11) took the x-ray of Munnalal Jain. The report is Ex.P-18 while the x-ray plates are P-16 and P-17. "1. Rt. forearm AP and lacerated 2. Lt. forearm AP and lacerated 3. Lower 1/3rd of radius and ulna bone are not seen. 4. Fracture of middle 1/3 of radius and ulna seen and lower 1/3 part of radius and ulna are not seen." 12. Dr. C.P. Suman (PW12) examined Babulal Yadav (PW4) and found all the injuries simple in nature caused by hard and blunt object. The report is Ex.P-19. 13. It is submitted by the counsel for the appellants that the first information report Ex.P-2 itself is doubtful as Babulal has not corroborated the story which was written in the first information report. Further, Kalyan Chand (PW3) lodged the report on the basis of the information given by Babulal and Babulal has himself not supported the version of Kalyan Chand (PW3). He further submits that the sole testimony of Munnalal Jain is not worthy of reliance and unless the testimony of a sole witness is credible, the Court should not accept his testimony. In support of his contention, he relied on Mohd. Iqbal M. Shaikh and others v. The State of Maharashtra, reported in 1998 CAR 305, in which it is held by the Court that if a witness is partly reliable and partly unreliable then one may look for corroboration to the reliable part of his ocular version. But if a witness is wholly unreliable the question of corroboration does not arise. Hence, an unreliable evidence cannot be basis for conviction however ghostly the crime may be. He also relied on a decision of this Court rendered in the case of Narendra Singh v. State of M.P., reported in 2006(1) MPWN 122 ], in which it was laid down that direct evidence of single witness not reliable, then conviction cannot be based upon his evidence. He also relied on a decision of this Court rendered in the case of Narendra Singh v. State of M.P., reported in 2006(1) MPWN 122 ], in which it was laid down that direct evidence of single witness not reliable, then conviction cannot be based upon his evidence. He also relied on a judgment rendered by the apex Court in the case of Bhimappa Chandappa Hosamani and others v. State of Karnataka, reported in 2006(2) CAR (SC) 882, in which it is held that basing conviction on testimony of single eye-witness, the Court must be satisfied that testimony of such eye-witness is of such sterling quality that Court finds it safe to base a conviction solely on testimony of such witness. Lastly, he relied on a judgment rendered by the apex Court in the case of Deepak Rajak v. State of West Bengal, reported in 2007(3) Crimes 95 (SC), in which it is held that in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations; the benefit can be extended to another co-accused after surrender. 14. Counsel for the respondent-State submits that from the testimony of the prosecution witness namely Munnalal (PW1), it is clearly stated by the witness that his hands were amputated by the appellants No.1 and 2 and his testimony is fully corroborated by the medical evidence. From the medical evidence, it is clear that both the hands of the injured Munnalal were amputated by the appellants No.1 and 2 and the sole testimony of the witness is fully corroborated by the medical evidence and therefore, the trial Court has rightly convicted the appellants and he relied on State of M.P v. Dharkole alias Govind Singh and others, reported in 2005(3) JLJ 205 = AIR 2005 SC 44 , Vahula Bhushan alias Vehuna Krishnan v. State of T.N., reported in AIR 1989 SC 236 . 15. After having heard the learned counsel for both the sides and the propositions as submitted by them, it appears that there is no reason to disbelieve the testimony of Munnalal Jain (PW1) who has categorically stated that the appellants No.1 and 2 both have taken active part and amputated his both the hands. This fact was fully corroborated by the medical evidence and the same story was written in the first information report by the informant Kalyan Chand. This fact was fully corroborated by the medical evidence and the same story was written in the first information report by the informant Kalyan Chand. Therefore, it cannot be said that the testimony of Munnalal (PW1) is unreliable, hence, the citations as submitted by the learned counsel for the appellants will not be helpful in the present case. 16. After perusal of the evidence adduced by the prosecution and the findings recorded by the trial Court, it appears that the offence under section 326 of IPC is proved against the appellants No.1 and 2 beyond reasonable doubt and their conviction is proper. So far as appellant No.3 Lakkhu alias Lakhan Singh is concerned, looking to his overt act and the overt acts of co-accused who were acquitted by the trial Court, the case against the appellant No.3 is not proved beyond reasonable doubt on the same set of evidence when three accused persons given benefit of doubt by the trial Court, it should also be given to the appellant No.3. Therefore, his conviction and sentence under section 326 read with section 34 and section 367 of IPC is set aside as his case is distinguishable with the co-appellants No.1 and 2. 17. Lastly, it is submitted by the learned counsel for the appellants that the incident took place on 4.10.1992 and since then 18 years have elapsed. Therefore, he prayed for undergone sentence with enhancement of fine. In this regard, he relied on State of M.P. v. Munshi Singh and another, reported in 2004 CrLR (M.P.) 781. The case is of section 307 of IPC, the incident is 18 years old and the accused were on bail, therefore, sentence is reduced to the sentence already undergone by imposing a fine of Rs.50,000/-. 18. In this case, both the hands of injured Munnalal Jain (PW1) were brutally amputated by the appellants No.1 and 2 and due to this he will remain handicapped throughout his life. The act of the appellants deserves no sympathy as has been held by the apex Court in the case of State of M.P. v. Saleem @ Chamaru and another, reported in 2006(1) Vidhi Bhasvar 134 (SC), that : "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficiency of law and society could not long endure under such serious threats. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficiency of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by the Court in Sevaka Perumal v. State of T.N., reported in AIR 1991 SC 1463 . 7. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California [402 US 183=28 L Ed 2d 711 (1971)], that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment may be equitably distinguished." 19. Hence, so far as the question of sentence as awarded by the learned trial Court to the appellants No.1 and 2 is concerned, the trial Court has already taken a very liberal view, therefore, there is no need for any interference in the sentence awarded to them. Hence, the conviction and sentence of the appellants No.1 and 2 as awarded by the trial Court is hereby affirmed. Their bail bonds shall stand cancelled and they are directed to surrender before the trial Court to serve out the remaining part of their sentences. 20. In the result, this appeal stands partly allowed.