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Madhya Pradesh High Court · body

2010 DIGILAW 11 (MP)

Kashmir Singh v. State of M. P.

2010-01-05

A.K.SHRIVASTAVA

body2010
Judgment Shrivastava, J. ( 1. ) Feeling aggrieved by the judgment of conviction and order of sentence dated 3/7/2003 passed by learned Special Judge and Additional Sessions Judge, Guna in J. Session trial No, 88/2001 convicting the appellant No. 1 -Kashmir Singh under section 307 of IPC and appellant No. 2- Suresh Singh under section 307/34 of UPC and thereby sentencing them to suffer rigorous imprisonment of five years and fine of Rs. 1,000.00 and in default to suffer further rigorous imprisonment of one month each, this appeal has been preferred by the appellants under section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) In brief the case of prosecution is that on 8/11/2000 Balisingh went to police station Cant, District Guna and lodged a report that Kashmir Jat and his family members were having enmity with the complainant party and on account of several cases, the complainant left the village Richhora and has started residing at Ashoknagar. On the date of incident viz. 8/11/2000 this Balisingh alongwith his father, namely, Ajmer Singh (hereinafter referred to as the injured) was going to Ashoknagar in a bus No. MP-08 F-8859 and both of them were sitting on the front side of the seat of bus. The bus after travelling upto certain distance when stationed nearby the Income Tax Office, these persons noticed that the appellants are also sitting on a seat in the bus. These two persons thought that appellants may quarrel with them, as a result of which, they tried to alight from the bus. However, at that juncture, appellant No.2- Suresh Singh insisted appellant No. 1 - Kashmir Singh to cause fire, as a result of which, appellant Kashmir Singh caused katta fire resulting into injury on the abdominal region of the injured. The blood started oozing from the wound and in between, both the appellants ran away from the bus. ( 3. ) On lodging of the First Information Report, the criminal law was triggered and was set in motion. The investigating agency sent the injured for medical treatment as well as to obtain his MLC report; the spot map was prepared; blood stained clothes were sent for chemical examination; statement of the witnesses were recorded; appellants were arrested and at the instance of appellant Kashmir Singh, a katta, which was used as a weapon in commission of the offence, was seized. ( 4. ( 4. ) After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the Trial Court for the trial. ( 5. ) The learned Trial judge on the basis of the allegations made in the charge- sheet, framed charge punishable under section 307 of IPC against appellant Kashmir Singh and under section 307/34 of IPC against appellant Suresh Singh. The learned Trial Judge also framed charge punishable under section 25/27 of the Arms Act against appellant Kashmir Singh. Needless to emphasis, both the appellants abjured their guilt and pleaded complete innocence. ( 6. ) In order to bring home the charges, prosecution examined as many as fifteen witnesses and placed Ex.P/1 to Ex.P/12 the documents on record. The defence of appellants is of false implication and the same defence they set forth in their statements recorded under section 313 of Cr.P.C. and in support of their defence they also examined Rajesh Singh (DW-1) and Ramratan (DW-2). ( 7. ) The learned trial Judge on the basis of evidence placed on record came to hold that charges under Section 25/27 of the Arms Act are not proved against the appellant Kashmir Singh and evantually, acquitted him from those charges. However, on the basis of evidence on record, the learned trial Judge came to hold that the appellant Kashmir Singh has committed the offence under section 307 of IPC while appellant Suresh Singh has committed an offence under section 307/34 of IPC and eventually convicted them and passed the sentence, which I have mentioned hereinabove. ( 8. ) In this manner, this appeal has been preferred by the appellants assailing their judgment of conviction and order of sentence passed by learned trial Court. ( 9. ) Vehemently, it has been contended by learned counsel for the appellants that nowhere in the FIR (Ex.P/4) and in the case diary statement (Ex.D/2) the author of the FIR, namely, Balisingh (PW-6) has so stated that appellant Suresh Singh insisted appellant Kashmir Singh to cause fire and if that is the position, this would amount to a material improvement and, therefore, the learned trial Court erred in convicting the appellant Suresh Singh under section 307/34 of IPC. By inviting my attention to the testimony of injured Ajmer Singh (PW-5) it has been contended that in his case diary statement (Ex.D/1) nowhere the factum of causing katta fire has been stated by this appellant and, therefore, in absence of any positive evidence that there is any premeditation of any preplanning, appellant Suresh Singh has been wrongly convicted under section 307/34 of IPC. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Kishore Kumar alias Kishore v. State of Kerala, 2001 Cri.LJ. 2137. Learned counsel has also placed reliance on division Bench decision of this Court Manoj alias Balkrishana v. State of M.P., 2005 (4) MPHT 422 . ( 10. ) It has also been put forth by learned counsel for the appellants that if the evidence of the injured Ajmer Singh (PW-5) and eye-witness Balisingh (PW-6) is considered in proper perspective, it would be difficult to hold that appellant No. 1 - Kashmir Singh caused katta fire resulting into the injury sustained by the injured and, therefore, learned trial Court erred in convicting the appellants. ( 11. ) On the other hand Shri Khedkar, learned Public Prosecutor for the respondent/State, has argued in support of the impugned judgment. ( 12. ) Having heard learned counsel for the parties I am of the considered view that this appeal deserves to be allowed in part. ( 13. ) So far as the role assigned to appellant No. 2- Suresh Singh is concerned, according to me, he has been wrongly convicted with the aid of section 34 of IPC. On going through the testimony of injured Ajmer Singh (PW-5) as well as eye-witness Balisingh (PW-6), this Court finds that there is material improvement in their testimony because nowhere in the FIR (Ex.P/ 4) as well as in the case diary statement of injured Ajmer Singh (Ex.D/1) as well as in the case diary statement of Balisingh (Ex.D/2) it has at all been so mentioned by these witnesses that appellant No.2-Suresh Singh insisted appellant No.1- Kashmir Singh to cause katta fire. Thus, according to me, the statement of these two witnesses in this regard in the Court saying that appellant Suresh Singh insisted appellant Kashmir Singh to cause katta fire is nothing but a material improvement. Thus, according to me, the statement of these two witnesses in this regard in the Court saying that appellant Suresh Singh insisted appellant Kashmir Singh to cause katta fire is nothing but a material improvement. There is no other evidence on record in order to hold that there was any premeditation or pre-planning in between two appellants and, therefore, according to me, in absence of any cogent evidence, appellant No.2-Suresh Singh has been wrongly convicted by learned trial Court under section 307/34 of IPC. His conviction under this Section is hereby set aside. The decision of Supreme Court Kishore Kumar (supra) and the Division Bench decision of this Court Manoj alias Balkrishna (supra) placed reliance by learned counsel for the appellants are applicable in the present facts and circumstances. ( 14. ) The question now hinges as to whether offence under section 307 of IPC has not been found to be proved against appellant Kashmir Singh or not. In this context, I have gone through the evidence of injured witness Ajmer Singh (PW-5) who has categorically stated that appellant Kashmir Singh caused katta fire resulting into injury on his abdomen. The evidence of this witness is corroborated by the evidence of eye-witness Balisingh (PW- 6). On going through the evidene of Dr. Seetaram Raghuvanshi (PW-1) and Dr. Anil Vijayvargiya (PW-4), this Court finds that firearm, injury has been caused on the abdominal region of the injured and, therefore, according to me, learned trial Court did not commit any error in covicting the appellant Kashmir Singh under section 307 of IPC. The conviction of this appellant Kashmir Singh under section 307 of IPC is hereby affirmed. ( 15. ) It has been then contended by learned counsel for the appellants that appellants No. 1 -Kashmir Singh has suffered jail sentence from 18.12.2000 to 3.7.2003 and after the judgment passed by learned trial Court he has also suffered jail sentence of near about eight months and thus in total he has already suffered jail sentence of near about 44 months. The learned trial Court has passed the sentence to suffer five years rigorous imprisonment. Looking to the facts and circumstances, I am of the view that the appellant No.1-Kashmir Singh shall be enlarged for the period he had already undergone. ( 16. ) Resultantly, this appeal succeeds in part. The learned trial Court has passed the sentence to suffer five years rigorous imprisonment. Looking to the facts and circumstances, I am of the view that the appellant No.1-Kashmir Singh shall be enlarged for the period he had already undergone. ( 16. ) Resultantly, this appeal succeeds in part. The judgment of conviction and order of sentence passed by learned Trial Court against appellant No.2- Suresh Singh is hereby set aside and he is acquitted from this charge. The appellant No. 1-Kashmir Singh has already suffered a jail sentence of near about 44 months and this would be the appropriate punishment for the offence which he has committed. Both the appellants are on bail, their bail bonds are hereby discharged.