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Madhya Pradesh High Court · body

2009 DIGILAW 1024 (MP)

Munna v. State of M. P.

2009-08-25

S.S.DWIVEDI

body2009
JUDGMENT 1. The appellant has preferred this criminal appeal under Section 374 (2) of Cr.P.C. feeling aggrieved by the impugned judgment of conviction and sentence dated 24.7.2003 passed by Second Additional Sessions Judge, (FTC), Ganj Basoda district Vidisha in S.T. No. 183/2000, whereby held the appellant/accused guilty under Section 307 read with 34 of IPC and sentenced to 2 years 3 months RI with fine of Rs.500/-; in default of payment of fine further 3 months RI. 2. Briefly stated facts of the case are that on 6.5.2000 the complainant Avadh Narayan Gmjar S/o. Ajab Singh was going to sell the Milk in the morning at 7 am, at that time, appellant/accused Munna together with other co-accused Avadh Narayan S/o. Pratap (who is found to be below the age of 18 years, hence, his charge sheet has been filed before the Juvenile Court) came there and thereafter, it is alleged that both the accused persons abused the complainant and thereafter, present appellant/accused Munna had caught hold the hands of the complainant and thereafter, co-accused Avadh Narayan had caused an injury to the complainant by means of knife on left side of abdominal area. The matter has been reported to the police Station Ganj Basoda on which basis, the police had registered a case under Section 307/34 of IPC and sent the complainant for medical examination to the government hospital where Dr. K.K. Shrivastava (PW1) examined the complainant and found one stab wound on left side of the abdominal area. During investigation, spot map has been prepared; accused persons have been arrested and after due investigation, charge sheet has been filed. 3. Appellant/accused abjured the guilt and his defence was of false implication. Learned trial Court after due appreciation of the entire evidence on record by the impugned judgment held the appellant/accused guilty for the offence under Section 307/34 of IPC and sentenced him as stated hereinabove. Aggrieved by which, the appellant has preferred this appeal. 4. Heard learned counsel for both the parites and perused the record and impugned judgment. 5. It is submitted on behalf of the appellant that there is no specific allegation against the appellant that he had also caused any injury to the complainant. Aggrieved by which, the appellant has preferred this appeal. 4. Heard learned counsel for both the parites and perused the record and impugned judgment. 5. It is submitted on behalf of the appellant that there is no specific allegation against the appellant that he had also caused any injury to the complainant. Similarly, it is also not apparent that while catching hold the hands of the complainant this appellant was having any knowledge that co-accused Avadh Narayan was having a knife in his possession, therefore, common intention for causing any injury to the complainant cannot be inferred and in such circumstances, the learned trial Court has wrongly held the present appellant guilty for the offence punishable under Section 307 with the aid of Section 34 of IPC, hence, it has been prayed for setting aside of the impugned judgment passed by the Trial Court. 6. In reply, learned Public Prosecutor appearing for the State supported the impugned judgment and prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant, the prosecution has examined complainant Avadh Narayan (PW5) who clearly stated that first of all accused Munna came there and started abusing him and therefore he caught hold the hands then co-accused Avadh had caused an injury by means of knife to him. In cross-examination, he also admitted that appellant/accused Munna was also having a bicycle and milk tank He is also involved in the business of milk. Initially, some abuses took place in between him and the accused Munna. Accused Munna was not having any knife and in such circumstances, it is not apparent on the basis of statement given by the complainant Avadh Narayan (PW5) that peresent appellant/accused Munna was also having knowledge that co-accused Avadh was having knife by which he may cause any injury to the complainant. If that being so, then certainly by simple abuses to the complainant this cannot be inferred that this appellant/accused was having any common intention for causing any injury to the complainant by means of a knife. 8. Independent witness present on the spot namely Da1chana (PW 6) has not proved any fact against the appellant. He has been declared hostile by the prosecution. 8. Independent witness present on the spot namely Da1chana (PW 6) has not proved any fact against the appellant. He has been declared hostile by the prosecution. Similarly, second witness Pradeep (PW 7), before whom the complainant immediately narrated the incident, has also only proved the fact that the complainant Avadh informed him that co-accused Avadh had caused injury to the complainant Avadh but he has not stated that accused/appellant Munna had also caught hold his hands at that time. Similar is the statement of Kanhaiyalal (PW8) who has also not stated that accused/appellant Munna was also present on the spot and caught hold the hands of the complainant. Other witness Omnarayan (PW 9) has also not proved the presence of the appellant/accused Munna on the spot. This witness has also been declared hostile by the prosecution. Ajab Singh (PW11) is the father of the complainant Avadh Narayan and he only stated as narrated to him by the complainant Avadh Narayan. 9. Thus, on perusal of the entire evidence on record, there is no specific fact proved against the appellant/accused that he was having previous knowledge that co-accused Avadh was having any knife by which he may cause any injury to the complainant, on which basis, common intention for causing any injury to the complainant can be found proved against the appellant. 10. Dr. K.K. Shrivastava (PW1) proved the injury sustained to the complainant which is a stab wound found on left side of the chest, for which, proved the report Ex. P/l. 11. Thus, on re-appreciation of entire evidence on record, in my considered opinion the prosecution has failed to prove beyond reasonable doubt that appellant/accused was having any common intention with co-accused Avadh for causing any stab wound to the complainant, on which basis, with the aid of Section 34 this appellant can be held guilty for the offence punishable under Section 307 of IPC. 12. Resultantly, appeal preferred by the appellant succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is hereby set-aside and the appellant is acquitted from the charge under Section 307 read with 34 of IPC. Fine amount, if any, deposited by the appellant be refunded to him. The appellant is on bail, his bail bond stands discharged forthwith. 13. Appeal stands disposed of accordingly. The impugned judgment of conviction and sentence passed by the trial Court is hereby set-aside and the appellant is acquitted from the charge under Section 307 read with 34 of IPC. Fine amount, if any, deposited by the appellant be refunded to him. The appellant is on bail, his bail bond stands discharged forthwith. 13. Appeal stands disposed of accordingly. A copy of this order be sent to the trial Court for compliance.