Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 408 (MP)

Arshad Ahmed Khan v. State of Madhya Pradesh

2008-03-13

S.L.KOCHAR

body2008
Judgement By this appeal, the appellant seeks to set aside the judgment dated 7th December, 1994 rendered by the learned First Addl. Sessions Judge, West Nimar Barwani in Sessions Trial No.73/91, thereby convicting the appellants under Section 307 IPC, and sentencing him to undergo R.I. for four years and to pay a fine of Rs. 500/-, in default of payment of fine to suffer imprisonment for three months. 2. This appeal was listed in weekly as well as daily cause lists, but none appeared for the appellant. On 15.10.07, none had appeared on behalf of the appellant, therefore, the appeal was listed on 02.01.08. On this date also, none appeared, but the record shows that the appellant appeared in the office and marked his presence and also he was given the date for appearance as 28.04.08. On 07.02.08, 08.02.04, 14.02.08, 15.02.08, 22.02.08, 05.03.08 and 11.03.08, none had appeared for and on behalf of the appellant. The appellant is not present even today. Therefore, in view of the Supreme court judgments rendered in the cases of Benisingh v. State of U.P. ( AIR 1996 SC 2439 : 1996 Cri LJ 3491. Kishansingh v. State of U.P. (1996) 9 SCC 372 and Dharampal and others v. State of U.P. Judgment Today 2008 (Vol.I) SC 172 : 2008 Cri LJ 1016 the appeal is heard finally on merit. In the case of Banesingh (supra), the Supreme Court, in para 16 has observed as under :- "Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instruction and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure of justice. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted." 3. According to the prosecution case on 08.01.91, the complainant Nanuram along with his friends Chandika Pratap (PW-2) and Abhay Kumar (PW-3) was going in the evening at 4.30 P. M. from Julvaniya road towards Bhilatkheda. At that moment, the appellant reached to them and abused Chandika Pratap in the name of his mother and while delivering threats to finish him, took out a knife from his pocket and struck two knife-blows causing injuries in his abdomen. Anil Kumar intervened and separated them. In spite of this intervention, the appellant dealt third blow causing injury on the head of Chandika Pratap. During the course of rescuing, Anil Kumar also sustained injuries by knife. The appellant fled away from the place of occurrence with knife. Nanuram (PW-1) lodged the report Ex.P/1 on the same day at 5.00 P.M. Police stepped into investigation and prepared the spot map. The appellant was nabbed on 09.01.91 and on his disclosure statement, knife was seized. After completion of investigation, the appellant was charge-sheeted for the aforementioned offence. It is worth while to mention here that the charge-sheet was filed against Anil also but he has been discharged by the learned trial Court at the stage of framing of charge by order dated 22.08.91. 4. The appellant denied the charge and examined DW1 Anil Kumar and DW-2 Nuru. According to the defence witnesses, Nanuram, Abhay Kumar and Chandika Pratap were having chain, knife and pistol respectively. They all started assaulting the appellant Arshad. On intervention by DW-1 Anil Kumar, the complainant and his companions ran away. The appellant did not cause any injury by knife to Chandika Prasad. The learned trial Court, on conclusion of trial and hearing both the parties, convicted and sentenced the appellant as indicated hereinabove. 5. Having heard learned counsel for the State and after perusing the entire record as well as memo of appeal, this Court does not find any substance in this appeal. The learned trial Court, on conclusion of trial and hearing both the parties, convicted and sentenced the appellant as indicated hereinabove. 5. Having heard learned counsel for the State and after perusing the entire record as well as memo of appeal, this Court does not find any substance in this appeal. 6. PW-1 Nanuram has deposed that on the date of incident in the evening at 4.30 p.m., he himself, PW-3 Abhay and PW-2 Chandika Pratap were walking on Julvaniya road. At that juncture, the appellant reached over there and abused them filthily in the name of mother and sister of Chandika Pratap and also took out a knife from his pocket to assault him. The appellant inflicted two knife blows causing injuries on his abdomen. Chandika Pratap sustained one injury at left side and second at right side of the abdomen. This witness and Anil tried to intervene, even then, the appellant inflicted third blow on the head of Chandika Pratap. During the course of rescuing Chandika Pratap, Anil also sustained injury at his hand. According to this witness Nanuram, eight to ten days prior to the incident, there was some sort of verbal quarrel between the appellant and PW-3 Abhay Kumar and in that quarrel, Chandika Pratap admonished, the appellant because of which, the appellant assaulted Chandika Pratap. The further say of this witness is that Chandika Pratap became unconscious. He was taken to the hospital and he lodged the report Ex.P/1. Chandika Pratap was referred from Rajpur Hospital to Barwani Hospital for treatment. In cross-examination, he denied the defence suggestion that on account of dispute on cricket game, they went to beat the appellant Arshad having revolver, chain and knife. He also denied that they threatened the appellant and were pacified by Nuru and Babulal. He also denied that PW-3 Abhay wielded the knife which caused injuries to Anil and during the course of scuffle between the appellant and Abhay, Chandika Pratap sustained injuries. He expressed his ignorance about lodging of any report by the appellant against them. In cross-examination of this witness, nothing substantial has come out which may attach vulnerability to his testimony. Neither the appellant filed any report lodged by him regarding the incident as suggested nor did he suffer any injury during the course of incident. 7. PW-2 Chandika Pratap, the victim has also stated almost all the same thing against the appellant. In cross-examination of this witness, nothing substantial has come out which may attach vulnerability to his testimony. Neither the appellant filed any report lodged by him regarding the incident as suggested nor did he suffer any injury during the course of incident. 7. PW-2 Chandika Pratap, the victim has also stated almost all the same thing against the appellant. According to him, on account of dispute over cricket game before eight days, the appellant got annoyed and assaulted him by knife on the date of incident causing two injuries on his abdomen and even after intervention by Anil and PW-1 Nanuram, the appellant dealt third blow by knife on his head. He was admitted in Barwani hospital and remained hospitalized there for 15 days as an indoor patient. In cross-examination, he accepted the defence suggestion that the appellant was playing in their team and there was a quarrel on cricket ground between the appellant and Abhay (PW-3) in Rajpur town. In cross-examination, he denied the defence suggestion that at many times quarrel took place between the appellant and Abhay and because of inimical terms, he along with Abhay and Nanuram had gone to assault the appellant at his house. 8. It would be apposite to mention here that neither the appellant filed any report nor any medical report if he was assaulted by the complainant party as suggested in cross-examination. He also denied that the witness Abhay dealt a knife blow which caused injury to Anil and said that Anil sustained injury on his intervention and he sustained injury while snatching the knife from the appellant. Chandika Pratap (PW-2) has expressed his ignorance regarding lodging of any report by the appellant and denied the defence suggestion that the appellant was sitting at the flour mill of Anil and he was called by them. In cross-examination of this witness also no material omission, improvements or contradictions are brought on record. His statement is fully corroborated by the statement of PW-1 Nanuram. The version of injured Chandika Pratap is also fully corroborated by the statement of PW-3 Abhay Kumar who deposed that when they were going on walk, the appellant abused Chandika Pratap and assaulted him by knife causing two injuries on abdomen and even on intervention, the appellant gave third blow causing injury on his head. The version of injured Chandika Pratap is also fully corroborated by the statement of PW-3 Abhay Kumar who deposed that when they were going on walk, the appellant abused Chandika Pratap and assaulted him by knife causing two injuries on abdomen and even on intervention, the appellant gave third blow causing injury on his head. In cross-examination, he admitted about verbal quarrel with the appellant on cricket ground before eight days and in the said quarrel, Chandika Pratap favoured this witness Abhay and admonished the appellant on which the appellant told him not to interfere between them and he would see Chandika Pratap in future. He also denied the defence suggestion about making attack by him, PW-1 Nanuram and PW-2 Chandika Pratap by knife, cycle-chain and revolver. 9. The statement of injured Chandika Pratap (PW-2) is fully corroborated by Dr. PW-5 R.S. Tomar who had examined him and found one penetrating injury on right hypochondrium, second penetrating injury over left hypochondrium and third incised injury on right parietal region of scalp. Dr. Tomar gave primary treatment and referred him for x-ray examination. He proved his MLC report Ex.P/3. Dr. Tomar also proved the injury sustained by Anil vide MLC report Ex.P/4. It is pertinent to mention here that all the three witnesses have specifically stated that when Anil intervened into quarrel, he also sustained injuries at the hand of the appellant and this fact is also mentioned in the First Information Report Ex.P/1. The knife seized from the appellant was shown to Dr. Tomar in Court and Dr. Tomar opined that these injuries could be caused by this knife to Chandika Pratap. He proved the query report Ex.P/5 . There is no conflict between the medical evidence as well as the eye witnesses account. 10. PW-6 Rajendra has proved the seizure of knife and arrest of the appellant vide Ex.P/5/6 and P/7. In cross-examination he denied the defence suggestion that the documents were already written prior to his reaching at the Police Station. PW-7 Girish turned hostile. He was the witness regarding quarrel taken place between the appellant and Chandika Pratap in Rajpur. He was confronted with his case-diary statement Ex.P/8. The statement of this witness is of no avail to any of the parties. 11. PW-7 Girish turned hostile. He was the witness regarding quarrel taken place between the appellant and Chandika Pratap in Rajpur. He was confronted with his case-diary statement Ex.P/8. The statement of this witness is of no avail to any of the parties. 11. PW-8 Balwant was the eye-witness, but he did not support the prosecution case, therefore, he was declared hostile and was confronted with his case-diary statement Ex.P/9. PW-9 Dr. Kailash Malviya proved the X-ray report and X-ray plate Ex.P/10 and P/11 respectively. PW-10 Dr. Dattatray Sangle was on emergency duty in the District Hospital at Barwani. He had examined the injured PW-2 Chandika Pratap and had given him glucose saline. PW-11 Dr. Madan Mohan Mody was the in- charge of the ward and was treating the patient Chandika Pratap. Dr. Mody proved Bed Head Ticket Ex.P/12 of Chandika Pratap. This surgical specialist has deposed that on examination of Chandika Pratap he found one incised wound on right hypochondrium and second incised wound on left side of hypochondrium region of abdomen. Both wounds were bleeding. Omentum was protruding from left hypochondrium region. After medically examining the patient, he opined for operation and also operated Chandika Pratap. On operation, he found injury to liver to gall bladder and abdomen. One hole was also detected in the large intestine. His abdomen was containing bilious bumour. In magacolon area of large intestine there was a cut. All these injuries were operated upon by this doctor. According to Dr. Mody, Chandika Pratap was admitted in the hospital on 08.01.91 and was discharged on 20.01.91. He also proved his notes as well as the signatures on Bed Head Ticket Ex.P/12. Ex.P/13 is the reply to query by this witness given to police and in his opinion, the injuries were sufficient in ordinary course of nature to cause death. 12. PW-12 Mahendrea has proved the memorandum statement of appellant Ex.P/14 with regard to knife which was seized by the police at the instance of the appellant through seizure-memo Ex.P/15. But, in cross-examination, he has stated that for recovery of knife, he had not gone with the police at the house of the appellant and knife was already lying in the Police Station. In this view of the matter, the evidence of this witness about recovery of knife is of no assistance. 13. But, in cross-examination, he has stated that for recovery of knife, he had not gone with the police at the house of the appellant and knife was already lying in the Police Station. In this view of the matter, the evidence of this witness about recovery of knife is of no assistance. 13. PW-13 R.C. Solanki, Town Inspector has proved the First Information Report Ex.P/1 lodged by PW-1 Nanuram and other steps taken by him in investigation of the crime. His statement has not been challenged in cross-examination by the appellant and defence suggestion is denied by this witness that the appellant himself had come to the Police Station with a knife. 14. The defence has examined DW-1 Anil and DW-2 Nuru. Both have given different story than the prosecution case. According to them PW-1 Nanuram, PW-2 Chandika Pratap and PW-3 Abhay came towards his flour-mill. At that time DW-2 Nuru was also with him. Witness Abhay called the appellant and also abused him. Thereafter, all the three assaulted the appellant by cycle-chain, knife and pistol. He separated them and while doing so, he sustained injuries by knife. This is true that this witness sustained injury in the same incident and this fact is mentioned in the First Information Report Ex.P/1, but his version as also the version of defence witness Nuru are not corroborated by any report lodged by both these witnesses or by the appellant. No medical report is filed by the appellant to substantiate his version and no such suggestion was given to the Investigating Officer PW-13. Burden on defence is not as onerous as on the prosecution to prove its case, but merely giving suggestion to witnesses and examining the defence witnesses, the version of defence would not be accepted unless it is substantiated and corroborated by material particulars. In absence of any report lodged by the appellant or defence witnesses and medical report sustaining injury by the appellant, simply ipse dixit of defence would not be accepted. 15. The appellant was having ill-will with the victim Chandika Pratap. They had quarrel before eight days on cricket ground and thereafter, with the deadly weapon like knife the appellant caused serious injuries on abdomen of Chandika Pratap. 15. The appellant was having ill-will with the victim Chandika Pratap. They had quarrel before eight days on cricket ground and thereafter, with the deadly weapon like knife the appellant caused serious injuries on abdomen of Chandika Pratap. He dealt third blow even after intervention by Anil causing injury on head, are sufficient circumstances to establish that he had intention to commit murder of Chandika Pratap and with such intention he caused injuries to him and if Chandika Pratap would have died, the appellant would have been liable for commission of culpable homicide amounting to murder. PW-12 Operating Surgeon Dr. Mody has specifically opined that the injuries were sufficient in the ordinary course of nature to cause death. 16. In this view of the matter, this Court is in full agreement with the learned trial Court that the appellant has committed the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code. (See : Bipin Bihari v. State of M.P. [( 2007 (Vol. I) SCC (Cri) 25 : 2006 AIR SCW 5060)] and Laxmansingh v. State of Haryana, 2007 (Vol. I) SCC (Cri) 123 : 2006 Cri LJ 4041). 17. As a result of the discussion as aforesaid, this Court does not find any merit in this appeal. It is accordingly dismissed. The impugned judgment of conviction and sentence is hereby affirmed. The appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on 12.05.08 and upon his surrender, the trial Court shall send him to jail for serving out the remainder part of his sentence. On failure of the appellant to appear and surrender before the trial Court on the specified date, the trial Court shall take suitable action against the appellant and his surety in accordance with law under intimation to this Court. Appeal dismissed.