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Madhya Pradesh High Court · body

2009 DIGILAW 1241 (MP)

INDER KUMAR v. STATE OF MADHYA PRADESH

2009-11-04

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Additional Sessions judge, Lakhnadon, District Seoni in S. T. No. 90/06, decided on 13. 11. 06. ( 2. ) APPELLANT has been convicted under Section 307 of ipc and sentenced to rigorous imprisonment for seven years with fine of Rs. 5000/-, in default further rigorous imprisonment for three months, by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 14. 6. 06 about 8oclock in the evening at village Paudi when complainant dayaram was taking his meals at his house, appellant inder Kumar came there, kicked and pushed the doors of his house and abused the complainant. When complainant dayaram came out of his house and asked the appellant why was he abusing him, appellant gave him an axe blow in his chest region with intent to kill him; as complainant Dayaram turned his back, appellant gave another axe blow on his back resulting into serious injuries, and fled away. The FIR of the incident was lodged by complainant Dayaram at Police Station chhapara, on the basis of which an offence was registered against the appellant and was investigated. Injured Dayaram was sent for medical examination. Blood stained and plain earth was seized from the spot. Blood stained clothes of the injured were also seized. During investigation, the axe used in the commission of offence was also seized at the instance of the appellant. The seized articles were sent for forensic examination. After due investigation, appellant was prosecuted under Section 307 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication. ( 5. ) LEARNED Additional Sessions, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for commission of the offence under Section 307 of IPC, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel appearing on behalf of the appellant submitted that the trial court erroneously convicted the appellant without there being any cogent and reliable evidence and without any independent corroboration. Learned counsel for the appellant further submitted that in any case no offence under Section 307 of IPC was made out against the appellant and case would not travel beyond the ambit of Section 324 of IPC. ( 7. Learned counsel for the appellant further submitted that in any case no offence under Section 307 of IPC was made out against the appellant and case would not travel beyond the ambit of Section 324 of IPC. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 8. ) PERUSED the evidence on record. Complainant dayaram (P. W-1) categorically deposed in his evidence that at the relevant time at night, when he was taking his meals appellant Inder Kumar came to his house, hurled abuses and when he came out, appellant gave an axe blow on his chest, when he turned appellant gave another blow on his back. He tried to apprehend the appellant, but he fled away. Then he lodged the report at Police station Chhapara. The FIR (Ex. P-14)was recorded by Inspector Arvind Dhahake (P. W-8) on the same day at Police Station Chhapara. ( 9. ) THE evidence of complainant Dayaram (P. W-1) also stands duly corroborated by the testimony of his wife Sakhiya bai (P. W-2 ). She also deposed that appellant gave two axe blows to her husband. There is also corroborative medical evidence of Dr. A. K. Lakra (P. W-4) on record. Dr. A. K. Lakra (P. W-4), who examined complainant Dayaram on 15. 6. 06, found an incised wound of 6 x 2 cm size on the left side of his chest on laterally anterior aspect and another incised wound of 5 x 2 cm on the left side of his scapula over posterior aspect. According to Dr. A. K. Lakra (P. W-4), both these injuries could be caused by hard and sharp object. Dr. Vinod Navkar (P. W-9) also deposed that injured Dayaram S/o Dharmu was admitted in the hospital on 15. 6. 06 and on his examination he had found two stitched wound on his person and was given treatment as per bed head ticket (Ex. P-19 ). There are no reasons to discard the aforesaid medical evidence. ( 10. ) THOUGH complainant Dayaram (P. W-1) and his wife sakhiya Bai (P. W-2) were extensively cross-examined, but nothing has been elicited in their cross-examination so as to disbelieve their basic version that appellant gave two axe blows to the complainant causing injuries on his chest region and scapular region. Though these witnesses were confronted with their police statement Ex. ) THOUGH complainant Dayaram (P. W-1) and his wife sakhiya Bai (P. W-2) were extensively cross-examined, but nothing has been elicited in their cross-examination so as to disbelieve their basic version that appellant gave two axe blows to the complainant causing injuries on his chest region and scapular region. Though these witnesses were confronted with their police statement Ex. D-1 and Ex. D-2 respectively as to the omission of certain facts, but the omissions are not such so as to discard their entire testimony. Even if, there is no independent corroboration as such to the evidence of complainant Dayaram (P. W-1) and his wife Sakhiya Bai (P. W-2), but their evidence could not be rejected on this ground, particularly when there was due medical corroboration to their evidence. The FIR of the incident was also lodged soon after the incident. There are no reasons to doubt that appellant was falsely implicated. ( 11. ) IN fact, it was aptly proved from the evidence on record that appellant voluntarily caused injuries to complainant dayaram (P. W-1) by means of an axe, which is a sharp edged weapon. ( 12. ) THE next crucial question for consideration is whether appellant assaulted the complainant with intent to kill him? ( 13. ) EVIDENTLY, there was no such previous enmity, which could be a motive or the reason for attempting at the life of the complainant by the appellant. There was also no evidence of any fracture having been caused to complainant Dayaram. The medical evidence does not indicate that the injuries caused to the complainant were such which had in fact endangered his life so as to attract Clause Eighthly of Section 320 of IPC. On the other hand, it is evident from the testimony of Dr. Vinod Navkar (P. W-9) that complainant Dayaram (P. W-1) was discharged only after three days on 18. 6. 06. There are no such other facts on record to indicate that appellant actually intended to cause death of complainant Dayaram. If the appellant had any intention to kill him, he would have given repeated axe blows on the person of complainant Dayaram (P. W-1 ). ( 14. ) IN the aforesaid facts, it could not be safely concluded that appellant actually intended to kill the deceased and attempted to cause his death; as such no case under section 307 of IPC was proved against the appellant. ( 14. ) IN the aforesaid facts, it could not be safely concluded that appellant actually intended to kill the deceased and attempted to cause his death; as such no case under section 307 of IPC was proved against the appellant. ( 15. ) HOWEVER, as discussed above, it was duly proved that appellant voluntarily caused hurt to complainant Dayaram by means of an axe, a sharp edged weapon; his act, therefore, would be covered within the ambit of offence under Section 324 of IPC. ( 16. ) IN the wake of aforesaid, the conviction of appellant under Section 307 of IPC deserves to be altered to one under section 324 of IPC. Accordingly, the conviction of the appellant inder Kumar under Section 307 of IPC is altered to one under section 324 of IPC. ( 17. ) AS regards the sentence, it is submitted that the appellant has already undergone the sentence of nearly three years as he could not furnish bail pursuant to the orders passed by this Court. It is also submitted that the appellant is a poor person, who could not even furnish bail, his sentence of fine should also be moderately reduced. ( 18. ) CONSIDERING the submissions as advanced and in view of the fact that the conviction of the appellant under section 307 of IPC has been altered under Section 324 of IPC, the impugned sentence of imprisonment of seven years as well as the sentence of fine imposed on him also needs to be modified and reduced. ( 19. ) CONSEQUENTLY, the conviction of appellant under section 307 of IPC and impugned sentence of imprisonment and fine awarded to him are set aside. His conviction is altered under Section 324 of IPC for which he shall suffer rigorous imprisonment for three years and pay a fine of Rs. 3000/-(rupees three thousand only), in default further rigorous imprisonment for two months. The period of imprisonment already undergone by the appellant shall be set off against the substantive term of his imprisonment of three years. ( 20. ) THE amount of fine, if realized, shall be paid to injured Dayaram as compensation for injuries caused to him. Appeal stands allowed to the extent indicated above.