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Madhya Pradesh High Court · body

2008 DIGILAW 989 (MP)

Moolchand v. State of M. P.

2008-08-07

SUSHMA SHRIVASTAVA

body2008
JUDGMENT 1. Appellant has preferred this appeal challenging his conviction and order of sentence passed by Additional Sessions Judge, Khurai, District Sagar in S.T. No. 56/93 decided on 24.3.1994. 2. Appellant has been convicted under section 307 of IPC and sentenced to five years' rigorous imprisonment with fine of Rs. 3,000/-, in default simple imprisonment for six months. by the impugned judgment. 3. According to prosecution, on 24.11.1992 about 6:30 in the evening at village Gadhola, when complainant Veerendra Singh was going to his field, he noticed co-accused Tantu @ Chandrahhan running in nervous state. As he moved ahead, he heard the screams of Dev Singh and found him lying injured with head injury. Complainant Veerendra Singh then came back to village and informed his brother Kashiram. Injured Dev Singh was then taken to the village by them and thereafter to Police Station in a jeep. It was informed by injured Dev Singh that appellant Moo1chand had assaulted him with a stone on his head with intent to kill him. The FIR of the incident was lodged by complainant Veerendra Singh at Police Station Khurai, on the basis of which an offence was registered against the appellant and was investigated. Injured Dev Singh was sent for medical examination and was admitted in the hospital. Blood stained earth and plain earth and a blood stained stone weighing 15 kg and other things were seized from the spot. After due investigation, appellant and coaccused Tantu @ Chandrabhan were prosecuted under section 307/34 of IPC and were put to trial. 4. Appellant and co-accused Tantu @ Chandrabhan abjured the guilt and pleaded false implication. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted co-accused Tantu @ Chandrabhan of the charge under section 307/34 of IPC, but found the appellant guilty, convicted and sentenced him under section 307 of IPC as aforesaid by the impugned judgment. Hence, this appeal. 6. Learned counsel for the appellant submitted that the trial Court gravely erred in relying upon inconsistent and unreliable testimony of the prosecution witnesses without due medical corroboration and erroneously convicted the appellant, though no case under section 307 of IPC was proved against him. 7. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. 8. Arguments of both the sides were heard. 7. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. 8. Arguments of both the sides were heard. Record of the lower Court perused. 9. It is clearly borne out from the evidence of injured Dev Singh (PW 1) that appellant Moolchand had assaulted with a stone on his forehead, when he was lying in the field of Veerendra Singh. Complainant Veerendra Singh (PW 2) had also seen Dev Singh (PW 1) lying injured in his field and bleeding from his head. The FIR of the incident (Ex. P-1) was also admittedly lodged by Veerendra Singh (PW 2), which was recorded by Town Inspector Ramesh Chandra Sharma (PW 3) on 24.11.1992 at 9:30 p.m. 10. PW 1 Dev Singh was cross-examined at length and it was suggested that the victim could not see the appellant assaulting him, as he was sleeping at the time of occurrence. However, PW I Dev Singh categorically deposed in his evidence that he had seen appellant Moolchand striking him with a stone on his forehead and by that time he had awakened. 11. Although, there was no other eye witness to the incident, yet there were no reasons to disbelieve the statement of victim Dev Singh (PW 1) that he had seen the appellant assaulting him with a stone on his forehead. Appellant was also named in the FIR (Ex. P-1) lodged soon after the incident. Appellant Moolchand was also named as the assailant even in the dying declaration of the victim (Ex. D-2) recorded by Dr. Rakesh Saxena (PW 11) on the same day on 24.11.1992 about 10:30 at night. In view of these facts, there were no reasons to doubt the statement of injured Dev Singh (PW 1) that appellant Moolchand had assaulted him with a stone on his forehead. His statement also stood substantially corroborated by the medical evidence. Dr. Rakesh Saxena (PW 11), upon his medical examination at primary health Center Khurai, had found a lacerated wound of 5 em x 2 em x bone deep over his scalp on left frontal area and another lacerated wound of 2-112 em x 1-114 em x bone deep on the forehead centrally, caused by hard and blunt object with a contusion of 3 em diameter over his left upper eyelid. Dr. Dr. Rakesh Saxena (PW 11) also deposed that injuries found on the forehead of injured Dev Singh could have been caused by a stone even in a single stroke. There were no reasons to disagree with the aforesaid medical evidence. 12. It was also evident from the testimony of Dr. V.K. Mishra (PW 9) that injured Dev Singh had also suffered a fracture in his frontal bone on account of injuries caused to him. 13. It was, thus, clearly established from the evidence on record that appellant Moolchand had assaulted Dev Singh and thereby voluntarily caused grievous hurt causing a fracture in his frontal bone. 14. The next question that remains to be examined is whether the appellant had assaulted the victim with intention to cause his death. It is manifest from the evidence of injured Dev Singh (PW 1) that appellant Moolchand had given him only one blow on his forehead by the stone. Dr. Rakesh Saxena (PW 11) also opined that three injuries found on the forehead of the injured could have been caused even by a single blow given by stone. A blow by a stone could well cause three injuries simultaneously at the places where it was landed. Although, PW 1 Dev Singh deposed that appellant had enmity with him, but it is quite evident that appellant Moolchand had given a single blow to the victim. If the appellant had any intention to kill him, he would have used some lethal weapon or at least could give repeated blows. In view of these facts, it could not be safely concluded that the appellant intended to kill the victim (PW 1) or assaulted him with an intention to cause his death. Thus, no case under section 307 of IPC was actually proved against the appellant. 15. However, as stated above, it was clearly established from the evidence on record that appellant had caused grievous hurt to the victim (PW 1) by hard and blunt object like a stone causing fracture in his frontal bone. Therefore, the. conviction of the appellant recorded under section 307 of IPC deserves to be altered to one under section 325 of IPC. 16. Therefore, the. conviction of the appellant recorded under section 307 of IPC deserves to be altered to one under section 325 of IPC. 16. As regards the sentence, learned counsel for the appellant submitted that the appellant has already suffered imprisonment for one year, seven months and six days, and the incident of the case is also of the year 1992, therefore, impugned sentence of imprisonment be reduced to the period already undergone by him. 17. Considering the submissions as advanced and the facts and circumstances of the case, including the fact that the incident of the case herein is very old and the appellant has already suffered imprisonment for one year, seven months and six days, interest of justice would be sub-served if the impugned sentence of imprisonment awarded to the appellant is modified and reduced to the period already undergone by him for the offence under section 325 of IPC. 18. Accordingly, the appeal is partly allowed. The conviction of the appellant under section 307 of IPC, as recorded by the trial Court is altered to one under section 325 of IPC and his sentence of imprisonment is also modified and reduced to the period already undergone by him. However, the sentence of fine imposed on the appellant is maintained, which shall be the sentence of fine for the offence under section 325 of IPC. Appeal is accordingly disposed of.