Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 159 (MP)

SHEIKH AHMED v. STATE OF M. P.

2012-02-02

U.C.MAHESHWARI

body2012
JUDGMENT : 1. This appeal is directed by the appellant/accused under section 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 20-6-1996 passed by the Xth Addl. Sessions Judge, Jabalpur in S.T. No. 951/93 convicting the appellant under section 307 of the Indian Penal Code for RI 5 years with fine of Rs. 2000/-. In default of depositing the fine amount further RI six months has been awarded. 2. The facts giving rise to this appeal in short are that on dated 3-3-1991 at about 14.35 in the noon, complainant/victim Taj Mohammad lodged the FIR at P.S Omti, Jabalpur contending that today in the morning, on account of flying the dust while cleaning the premises as also on account of some earlier incident between Shahjahaan (PW 4) and Shamshad (PW 7) his wife and daughter and the appellant relating to purchase of clothes, the appellant slapped his daughter Shamshad Begam. At the time of aforesaid incident, he was not present but on his returning from the market because of aforesaid he also slapped the appellant, on which, he was subjected to blows of knife by the appellant resultantly he sustained the injuries on the right side of his chest, right leg and left thigh. At the same time, Bhura alias Shannu, the father of the appellant also came and gave him the blows of the stick by which also he sustained injuries. Immediately after the incident the victim went to the aforesaid Police Station and lodged the FIR (Ex.P/2). On which, he was sent to the hospital, whereafter his medical examination, his MLC report (Ex.P/10) was prepared by Dr. O. P. Verma (PW.8), from where for further treatment he was referred to Medical College, Jabalpur where again his medical report (Ex.P/16) was prepared. The appellant and his father were arrested, the interrogatory statements of the witnesses were recorded. During the course of the investigation, the co-accused Bhura alias Sannu died. After completion of the investigation, the appellant was charge-sheeted for the offence of section 307 read with section 34 of the Indian Penal Code. 3. After committing the case to the Sessions Court, on framing the charge against the appellant for the offence of section 307 of the Indian Penal Code, he abjured the guilt, on which, the trial was held. 3. After committing the case to the Sessions Court, on framing the charge against the appellant for the offence of section 307 of the Indian Penal Code, he abjured the guilt, on which, the trial was held. On appreciation of the evidence, by holding him guilty for such offence, he was punished with the sentence as mentioned above, on which, he has come to this Court with this appeal. 4. In pendency of this appeal, with the joint signatures of the appellant and the complainant, IA No. 21764/11, an application permitting them to compound the impugned offence, was filed. As the impugned offence was not made compoundable under section 320 of the Criminal Procedure Code, hence such application, even after verification of the averments of the same, was not allowed. However, keeping in view the circumstance that on affirming the impugned judgment of conviction, the impact of such compromise, could be taken into consideration for reducing the awarded jail sentence of the appellant, the facts stated in such IA, were verified on dated 12-1-2012 by calling the victim in the Court. On such verification, the victim stated before the Court that in pendency of this appeal, he developed good and harmonial relations with the appellant and, in such premises, he wants to enter in the alleged compromise. He also said that he did not have any objection, if by allowing such compromise, the appellant is acquitted from the alleged charge. But, instead to allow such application, it was directed that, on arising the occasion, the impact of compromise shall be considered by the Court for reducing the awarded jail sentence of the appellant at the time of final hearing. So, in such premises, subject to affirmation of the impugned judgment of conviction of the appellant, the Court has to consider the aforesaid intention of the complainant also. 5. Shri Rajkumar Verma, learned counsel for the appellant after taking me through the evidence and the exhibited papers of the charge-sheet said that on adopting the lenient view to consider the matter in the light of the alleged injury of the victim it was not the case of more than section 324 of the Indian Penal Code and the appellant has been wrongly convicted under section 307 of the Indian Penal Code. He further said that the story putforth by the prosecution has not been supported by any independent source of the evidence or independent witnesses except by the victim Taj Mohammad (PW 2), his wife Shahjaan (PW 4) and daughter Shamshad Begam (PW 7) while, on recording the deposition of sister of the victim Bhuri (PW 1), the alleged eye-witness of the incident, has not supported the case of the prosecution and turned hostile. The other independent listed eye witness, namely Mohd. Nazeer (PW 5) and Mohd. Nasir (P.W.6) have also not supported the case of the prosecution and turned hostile. So, in view of the earlier enmity factor between the parties as stated above, mere on the basis of the deposition of the victim and his family members, the interested witnesses, the impugned conviction of the appellant, could not be upheld and firstly prayed for extending acquittal to the appellant. He further argued that in case the Court affirms the impugned conviction of the appellant then in that circumstance, keeping in view the intention of the victim to compound the offence with the appellant so also taking into consideration that the alleged incident was happened long before in the year 1991 and subsequent to it, there is no other criminal antecedent or history of the appellant and, he being first offender, his awarded jail sentence be reduced upto the period for which he has suffered the jail during pendency of the trial between 4-3-1991 to 10-7-1991 i.e. 4 months and 7 days in judicial custody and since 20-6-96 the date of the impugned judgment till passing the order by this Court for suspension of his remaining jail sentence on 8-10-1996 i.e. 3 months and 14 days, the total period of 7 months and 26 days, by enhancing the amount of fine under discretion of the Court and prayed to allow this appeal accordingly. 6. On the other hand, responding the aforesaid arguments, Shri Pramod Kumar Chourasia, learned Panel Lawyer by justifying the impugned conviction and sentence said that the same being based on proper appreciation of the evidence and looking the nature of the incident, do not require any interference at this stage either for modification of the offence or for reducing the awarded jail sentence in any manner and prayed for dismissal of this appeal. 7. 7. After hearing the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial Court. On perusing the deposition of the victim Taj Mohammad (PW 2), it is apparent that the aforesaid alleged incident, as stated by him in the FIR (Ex.P/2), has been proved by him on all material circumstance of the incident. His testimony is further supported by the eye-witnesses, his wife Smt. Shahjaan (PW 4) and his daughter Shamshad Begam (PW 7). According to their deposition, on account of some trifling dispute regarding flying the dust during cleaning the premises and some quarrel with respect of purchasing of clothes, on giving a slap by the victim to the appellant, in response of the same the appellant, gave him blows of knife to victim, resultantly he sustained various injuries on different part of his person. Although, the sister of the appellant Bhuri (PW 1) and other alleged eye-witness Mohd. Nazeer (PW 5) and Mohd Nasir (PW 6), on recording their deposition had turned hostile but in view of the available medical evidence with respect of the injuries of the victim sustained in the alleged incident, even after turning the above mentioned independent witnesses hostile, the testimony of the victim and his wife and daughter could not be discarded only to extend acquittal to the appellant. It is not always necessary that the story putforth by the victim or interested witnesses should be corroborated by any independent source of the evidence, if in view of the other available evidence like medical evidence or expert evidence, the testimony of the victim and other relative witnesses appears to be reliable then even on re-appreciation of the evidence, the conviction of the accused like the appellant could not be interfered at the stage of appeal. In such premises, I have not found any infirmity or perversity in the findings of the trial Court holding guilty to the appellant for the alleged incident, therefore, till this extent the findings of the trial Court is hereby affirmed. 8. Coming to consider the question whether in the light of the injury sustained by the victim in the alleged incident, the conviction of the appellant under section 307 of the Indian Penal Code is sustainable or it requires some interference for modification at this stage. 8. Coming to consider the question whether in the light of the injury sustained by the victim in the alleged incident, the conviction of the appellant under section 307 of the Indian Penal Code is sustainable or it requires some interference for modification at this stage. As ready reference, I would like to reproduce the description of the injuries sustained by the victim in the alleged incident which has been stated by Dr. O. P. Verma (P.W.8) in the MLC report (Ex.P/10) :- "1. Stab wound 1" x 1" x depth can't be measured on the left side of chest by hard and sharp cutting object. No definite opinion can be given. 2. Incised wound 1cm x1cm on the left buttock by hard and sharp cutting object. Simple. 3. Incised wound 1 cm x 1 cm x 2 cm on posterior aspect of left thigh by hard and sharp cutting object. Simple. Case referred to Medical College, Jabalpur." It is apparent from the aforesaid report that after medical examination and providing initial treatment, looking to the nature of some injuries, the victim was referred to Medical College Jabalpur for further treatment. At that time, no definite opinion regarding nature of the injury No. 1 and 2 was given by the doctor while the injury No. 3 was stated to be simple in nature. 9. On examination of the victim in Medical College Jabalpur, as per its report Ex.P/16, the following injuries were found :- "1. Incised wound on glacial region 2 cm x ½ cm muscle deep repaired in single large with thread. 2. I/W on lateral aspect of middle part of the thigh size 2.5 cm x ½ cm muscle deep repaired in single large with thread. 3. I/W in right groin size about 2 cm x ½ cm muscle deep- explored- haematoma evacuated, venous bleeds ligated wound repaired in single large. 4. I/W in left 2nd ICS size about 2.5 cm x ½ cm x deep upto pleural space (air was coming out) repaired in single large. 5. I/W in right forearm posterior-lateral aspect- size about 2 cm x ½ cm muscle deep repaired in single large with thread." In support of such report, instead the treating doctor Mr. N. K. Agarwal, Dr. Praduman Pan (P.W.10) who was working with the said Dr. N. K. Agarwal and was acquainted with his signatures, was examined by the prosecution. 5. I/W in right forearm posterior-lateral aspect- size about 2 cm x ½ cm muscle deep repaired in single large with thread." In support of such report, instead the treating doctor Mr. N. K. Agarwal, Dr. Praduman Pan (P.W.10) who was working with the said Dr. N. K. Agarwal and was acquainted with his signatures, was examined by the prosecution. He by proving the aforesaid report, categorically stated that out of the aforesaid alleged injuries, the injury No. 4 was dangerous to the life. As due to such injury the blood was collected in the lungs of the victim for which surgery was also carried-out as per medical papers of the Medical College Ex.P/16 and P/17. 10. On going through the deposition of aforesaid both the witnesses along with the medical papers and the MLC report, I have found that due to the aforesaid injury No. 4 incised wound which was caused by hard and sharp cutting weapon like knife, the same was sufficient to cause death in the ordinary course of the nature if the same was not treated within time. So, in such premises, the aforesaid injury No. 4 was squarely covered with the spirit of earlier part of section 300 of the IPC in which the category of culpable homicide amounting to murder has been defined. So, in such premises, the approach of the trial Court holding guilty to the appellant for the offence of section 307 of the Indian Penal Code does not require any interference at this stage, hence such findings of the trial Court are also hereby affirmed. 11. Coming to consider the alternate prayer of the appellant's counsel for reducing the jail sentence of the appellant is concerned, in the available circumstances, I have found some substance in it. As alleged, the alleged incident was committed by the appellant under the heat of passion in response of slap given to him by the complainant/victim. Although, looking to the nature of the incident, the benefit of right of private defence could not be extended to the appellant but the fact remains that on account of such earlier incident, this incident was happened. Besides this, in last near about 20 years, the appellant has suffered the mental agony of the present matter. During this period, he appeared before the trial Court as well as before this Court. Besides this, in last near about 20 years, the appellant has suffered the mental agony of the present matter. During this period, he appeared before the trial Court as well as before this Court. He did not possess any criminal antecedent or history, except the present case and besides this, he has already suffered near about 7 months and 26 days either in judicial custody before releasing on bail or subsequent to the impugned judgment till passing the order for suspension of his jail sentence by this Court as stated above. 12. Apart the above, in pendency of the appeal, the relations between the appellant and the complainant has become harmonial and in such premises the complainant has also filed an application permitting him to compound the offence with the appellant. Although in view of the provision of section 320 of the Criminal Procedure Code, the offence of section 307 is not made compoundable, therefore, such application could not be allowed and the matter could not be disposed of finally in terms of the compromise but its impact could be taken into consideration for reducing the awarded jail sentence of the appellant. So, considering all these circumstances, after affirming conviction of the appellant under section 307 of the Indian Penal Code, instead to send him again to jail for facing the remaining jail sentence, I deem fit to reduce his jail sentence upto the period of 7 months and 26 days for which he has already undergone by enhancing the amount of fine. 13. My aforesaid view for adopting the lenient view to reduce the awarded jail sentence of the appellant is based on the principle laid down by the Apex Court in the matter of Ishwarlal vs. State of M. P., (2008) 15 SCC 671 which is also based on another earlier case of the Apex Court in the matter of Ram Pujan vs. State of U.P., AIR 1973 SC 2418 . 14. In view of the aforesaid discussion by affirming the conviction of the appellant under section 307 of the IPC, this appeal is allowed in part and the awarded jail sentence of the appellant in such section is reduced from five years to the aforesaid period of 7 months and 26 days suffered by him in jail, as stated above, by enhancing the amount of fine from Rs. 2000/- to Rs. 6000/-. 2000/- to Rs. 6000/-. The enhanced sum of the fine is to be deposited within 90 days from today, failing which he has to suffer further one year RI. Till this extent, the impugned judgment is modified while the other findings of the same are hereby affirmed. The bail bonds of the appellant are hereby discharged. 15. Appeal is allowed in part as indicated above.