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Madhya Pradesh High Court · body

2008 DIGILAW 840 (MP)

SHIVCHANDRA s/o RAMRAJ v. STATE OF M. P.

2008-07-09

S.L.KOCHAR

body2008
JUDGMENT : The appellants abovenamed have preferred this appeal against their conviction under section 307 and 307 read with section 34 of the Indian Penal Code and sentence of R.I. for seven years and fine of Rs. 5,000/, in default of payment of fine to suffer additional R.I. for six months to appellant Ashok and R.I. for three years and fine of Rs. 2,000/- and in default of payment of fine to suffer additional R.I. for three months to appellants Shivchandra, Ganpat and Umashankar each, passed by the learned Special Judge [under S.C. & S. T. (Prevention of Atrocities) Act,] Ujjain in Special S.T. No. 92/2004 by judgment dated 4-12-2007. 2. According to the prosecution case on 26-10-2003, the complainant Raju alias Laxminarayan and his wife Reena were going on bicycle. When they reached near the house of Dr. Rathore, the appellants stopped him and asked Raju as to why he got arrested their nephew Ramu and also started abusing him. Appellant Ashok was armed with a knife. Other appellants made exhortation for assaulting Raju to Ashok by knife and Ashok inflicted knife blows causing injuries to Raju on rib area, chest, leg, scapula region and other parts of the body. The incident was intervened by Deepu and Kanhaiya on which the appellants fled away from the scene of occurrence. Reena (PW-1), wife of the complainant, lodged the report Ex.P/1 at Police Out Post Birlagram, on the basis of which at P.S. Nagda crime was registered vide Ex.P/9. Injured Raju was sent to Government Hospital, Nagda where he was admitted and treated. Investigating Officer prepared the spot map Ex.P/2 and arrested the appellants. The arrest memos are from Ex.P/4 to P/6. At the instance of appellant Ashok, a knife was seized. Police also seized blood stained and controlled earth as well as the clothes of injured and sent all these articles for examination to the Forensic Science Laboratory. On completion of investigation, charge-sheet was filed against the appellants for commission of offence under section 307 and in the alternative under section 307 read with section 34 of the Indian Penal Code as well as under section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989 (for short 'The Act'). 3. The appellants denied the charges and their defence was that because of inimical terms with the complainant, they have been falsely implicated. 3. The appellants denied the charges and their defence was that because of inimical terms with the complainant, they have been falsely implicated. They have examined DW-1 Ramnarayan Singh and also filed the report Ex.D/3 lodged by Smt. Janki, wife of Ashok against complainant Raju and other three persons regarding incident of beating dated 18-11-2003, report Ex.D/4 lodged by Ashok against injured Raju dated 4-2-2004 regarding commission of robbery and another report Ex.D/6 lodged by Umashankar for commission of offence under sections 457 and 380 of the Indian Penal Code dated 23-2-2006. Learned trial Court, after examining the prosecution and defence witnesses and hearing both the parties, while acquitting the appellants for the offence under section 3(2)(v) of the Act, convicted the appellant Ashok under section 307 and other appellants under section 307 read with section 34 of the Indian Penal Code and sentenced them as shown hereinabove. 4. Learned counsel for the appellants has submitted that in view of the statements of PW-1 Reena, PW-3 injured Raju (PW-3) and Kanhaiyalal (PW-10) as well as the medical evidence of PW-6 Dr. Anil Dube and PW-5 Dr. Radha Charan Chaturvedi, the offence against the appellants Shivchandra, Ganpat and Umashankar would be made out under section 324/34 and against appellant Ashok under section 326 of the Indian Penal Code. Learned counsel has also submitted that the victim Raju is a habitual offender having criminal record and faced more than 14 criminal cases and still some cases are pending against him and on the date of incident, he picked up quarrel with Ashok and lodged a false report implicating all the brothers. 5. On the other hand, learned counsel appearing for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 6. Having heard learned counsel for the parties and after perusing the entire record, it emerged that only appellant Ashok was having a knife and caused injuries with it to Raju (PW-3). Other appellants were not having any weapon in their possession. Complainant PW-1 Reena, wife of the injured improved her statement in Court that the appellant Ganpat was having a country-made pistol in his hand, but on confrontation with the First Information Report regarding omission of this fact, she failed to explain such a material and important omission in the First Information Report as well as in her case diary statement Ex.D/1. Her this version is not corroborated by injured PW-3 Raju. PW-3 Reena and PW-3 Raju have specifically stated that the appellant Ashok used knife for causing injuries and other appellants made exhortation . Though both these witnesses have not stated about possession of knife by appellant Shivchandra, Ganpat and Umashankar, but PW-10 Kanhaiyalal showing his loyalty towards the injured and prosecution case, improved his version up to the extent that all the appellants were having knives and Ashok caused injuries by knife whereas others were facilitating him by surrounding the victim and instigation. PW-10 Kanhaiyalal was confronted with his case-diary statement Ex.D/2 wherein the material fact that other appellants were having knives in their possession, is not mentioned and he failed to explain this important omission which amounts to material contradiction in his case-diary statement. 7. On over all perusal of the evidence adduced by the prosecution, it is as clear as day light that the appellant Ashok was having knife with which he caused injuries total eight in number to PW-3 Raju and Raju was admitted in the hospital from 26-10-2003 to 6-11-2003. He was also operated upon as is clear from the statement of PW-5 Dr. Radha Charan Chaturvedi. Dr. Chaturvedi also proved the bed-head ticket and other documents Ex. P/9-A to D. PW-6 Dr. Anil Dube attended the injured Raju, first in point of time and finding his condition serious, referred him to Jan Sewa Hospital, Nagda. It is true that both these doctors have not given specific opinion about nature of injuries, but looking to the period of admission of injured as indoor patient in the hospital, injuries sustained by him as described by Dr. Dube on vital parts of the body i.e. right chest, left ribs and other parts of the body, in total eight in number and all being stab wounds, is sufficient to hold that the appellant Ashok was having intention to commit murder of complainant Rajli and if he would have died, the appellant Ashok would have been guilty of commission of culpable homicide amounting to murder. The accused persons have admitted and also adduced evidence in defence regarding their inimical terms with injured PW-3 Raju. 8. The accused persons have admitted and also adduced evidence in defence regarding their inimical terms with injured PW-3 Raju. 8. There is sufficient evidence available on record to establish motive for commission of offence punishable under section 307 of the Indian Penal Code and in the considered opinion of this Court, offence under section 307 of the Indian Penal Code is clearly made out against appellant Ashok. 9. Now the crucial point for determination is, whether the other appellants with the aid of section 34 of the Indian Penal Code having common intention to commit murder of Raju with appellant Ashok and in furtherance of said common intention, Ashok dealt knife blows to Raju and if he would have died, these appellants would have been liable for commission of murder, or not. In the opinion of this Court, since all these three appellants were not having any weapon in their hands and they have not caused any injury to Raju as well as there is no evidence available on record that the appellant Ashok was brandishing knife in his hand because of which these appellants could gather knowledge of possession of knife by Ashok and use thereof. In absence of this evidence, it would be very difficult to say that these three appellants were having knowledge of the fact that Ashok was having knife and would cause injuries to Raju. 10. So far as exhortation is concerned, there is material contradiction in the statements of PW-1 Reena and PW-3 Raju as well as in their police statements for use of words for making exhortation. It is also not the prosecution case that these three appellants caught hold of Raju and facilitated the appellant Ashok for causing injuries by knife. A general and omnibus statement has been given by PW-3 Raju regarding beating to him by these three appellants, but no other injury was found on his person except the stab wounds caused with knife by Ashok. The evidence of exhortation by its nature is a weak type of evidence and looking to the inimical terms between two groups, possibility of false implication of all the brothers along with Ashok cannot be ruled out. The evidence of exhortation by its nature is a weak type of evidence and looking to the inimical terms between two groups, possibility of false implication of all the brothers along with Ashok cannot be ruled out. PW-1 Reena has no-where stated that these three appellants also assaulted Raju and on this aspect the version of Reena as well as Raju in Court is contradictory with their case-diary statements as well as the First Information Report. The Apex Court in the case of Jainul Haque vs. State of Bihar, AIR 1974 SC 45 in para 8 has observed thus- "All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under section 323 read with Section 114 Indian Penal Code. The High Court has found the evidence of the eye-witnesses to be unsatisfactory. It has also found that the eye witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convincing. We would therefore, accept the appeal, set aside the conviction of the appellant and acquit him." 11. In view of the above, in the considered view of this Court, the appellant Shivchandra, Ganpat and Umashankar cannot be convicted for any offence, because of weak kind of evidence of interested and partisan witnesses for exhortation which is punishable with the aid of section 114 of the Indian Penal Code. 12. In view of the above, in the considered view of this Court, the appellant Shivchandra, Ganpat and Umashankar cannot be convicted for any offence, because of weak kind of evidence of interested and partisan witnesses for exhortation which is punishable with the aid of section 114 of the Indian Penal Code. 12. Learned counsel for the appellants, on the question of sentence of appellant Ashok, has submitted that he is a first offender and young man of 30 years having responsibility to maintain his family consisting of wife and children. At the time of incident he was 25 years of age and is facing this prosecution since last four years, therefore, his jail sentence may reasonably reduced. 13. Having considered the arguments advanced by the learned counsel for the appellants as also the surrounding circumstances, in the opinion of this Court, ends of justice would be served to reduce the jail sentence of appellant Ashok from seven years to five years and enhance the fine amount from Rs. 5,000/- to Rs,. 7,000/-. 14. Ex consequenti, this appeal is allowed in part. The conviction and sentences of appellants No. 1 Shivchandra, No. 2 Ganpat and No. 3 Umashankar are hereby set aside. They are on bail, their bail and surety bonds shall stand discharged. The conviction of the appellant No. 4 Ashok as passed by the trial Court, is maintained, but his jail sentence is reduced from seven years to R.I. for five years and sentence of fine is enhanced from Rs. 5,000/- to Rs. 7,000/-. In default of payment of fine, he shall suffer additional R.I. for one year. On realization of the amount of fine, Rs. 5,000/- shall be paid as compensation to the injured PW-3 Raju. 15. Office is directed to send a copy of this judgment to the trial Court along with its record for compliance.