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2012 DIGILAW 232 (CHH)

KAMLESH SAHU v. STATE OF C. G.

2012-09-13

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 24-04-2004 passed by Sessions Judge, Raipur in Sessions Trial No.347/2003. By the impugned judgment, accused/appellant Kamlesh Sahu has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo simple imprisonment for 6 months. 2. Case of the prosecution, in brief, is as under :- Dudhbai (PW-5) is mother of injured Gajju (PW-4). On 25-5-2003, at about 4:00 pm, a quarrel took place between Gajju (PW-4) and Panna Lal (father of the appellant) due to partition of the property. On this account, in the midnight of 25/26-5-2003, the appellant entered the house of Gajju (PW-4) and assaulted him with a Gupti. At that time, Gajju (PW-4) was sleeping. When the appellant gave first Gupti blow on the abdomen of Gajju (PW-4), he woke up. The appellant gave another Gupti blow on his chest. Gajju (PW-4) screamed. Having heard the screaming of Gajju (PW-4), Dudhbai (PW-5) woke up. The appellant fled away from the place of occurrence. Dudhbai (PW-5) saw the appellant fleeing from the place of occurrence. Gajju (PW-4) was taken to Medical College Hospital, Raipur for treatment where he was admitted. Dudhbai (PW-5) lodged a report in Police Station, Saraswati Nagar, where Dehati Nalishi (Ex.P-5) was recorded. Thereafter, regular First Information Report (Ex.P-7) of Crime No.70/2003 under Section 307 IPC and Section 25 of the Arms Act was registered in Police Station, Saraswati Nagar. Gajju (PW-4) was sent to Ambedkar Hospital, Raipur for medical examination vide Ex.P-6. Dr. Smt. S. Phuljhele (PW-3) examined Gajju (PW-4) and gave her report vide Ex.P-9, in which, she found- (i) stab wound over right side of chest on the 5th intercostal space 2.5cm lateral to mid clavicular line, (ii) stab wound on right constal margin 7th intercostal space 2.5cm medial to mid clavicular line, (iii) incised wound right hand palmer aspect 1cmX0.5cm and (iv) incised wound right hand dorsul side about 1.5cmX0.5cm subcutaneous deep. In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex.P-1. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-2 and, at his instance, Gupti was seized vide EX.P-3. Bed Head Ticket was seized vide Ex.P4. In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex.P-1. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-2 and, at his instance, Gupti was seized vide EX.P-3. Bed Head Ticket was seized vide Ex.P4. Full pant of Gajju (PW-4), which was stained with blood, was also seized vide Ex.P-12. Site-Map was prepared vide EX.P-13. Seized articles were sent to Forensic Science Laboratory, Raipur vide Ex.P-16. FSL report (Ex.P-18) was received therefrom. In Ex. P-18, article A - blood stained soil, article C - pant of the injured and article D - Gupti were found stained with blood. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Raipur, who, in turn, committed the case to the Court of Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Vivek Rathore, learned counsel for the appellant argued that the evidence of Gajju (PW-4) is full of contradictions. Dudhbai (PW-5) has not identified the appellant. She is mother of injured Gajju (PW-4). She is highly interested witness. He further argued that in FSL report (Ex.P-18), it is not mentioned that the seized Gupti was smeared with human blood. The origin of blood is also not mentioned in the said report. Therefore, the conviction recorded by the learned Sessions Judge against the appellant is not sustainable and the appellant deserves to be acquitted. 4. On the contrary, Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the material available on record with utmost circumspection. Conviction of the appellant is based on the evidence of injured Gajju (PW-4) and Dudhbai (PW-5). 6. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280 , the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Conviction of the appellant is based on the evidence of injured Gajju (PW-4) and Dudhbai (PW-5). 6. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280 , the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. ........ 22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". ........." 7. In Mano Dutt and another Vs. State of Uttar Pradesh (2012) 4 SCC 79 , the Hon'ble Supreme Court observed as follows: "30. ........ Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. 31. We may merely refer to Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 , where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. 31. We may merely refer to Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 , where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 , Malkhan Singh v. State of U.P., (1975) 3 SCC 311 , Machhi Singh v. State of Punjab, (1983) 3 SCC 470 , Appabhai v. State of Gujarat, 1988 Supp SCC 241, Bonkya v. State of Maharashtra, (1995) 6 SCC 447 , Bhag Singh v. State of Punjab, (1997) 7 SCC 712 , Mohar v. State of U.P., (2002) 7 SCC 606 (SCC p. 606 b-c), Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 , Annareddy Sambasiva Reddy v. State of A.P., (2009) 12 SCC 546 and Balraje v. State of Maharashtra, (2010) 6 SCC 673 ).] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629 , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness 'sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459 ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.' 30. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." 8. Gaiju (PW-4) deposed that the appellant is son of his father's elder brother (Tau). A quarrel had taken place between him and his Tau due to partition of the property. At that time, the appellant had threatened him. He further deposed that after taking meal in the night, he slept in his house. Gaiju (PW-4) deposed that the appellant is son of his father's elder brother (Tau). A quarrel had taken place between him and his Tau due to partition of the property. At that time, the appellant had threatened him. He further deposed that after taking meal in the night, he slept in his house. At about 1:30 am (midnight), the appellant entered his house and gave Gupti blow on his abdomen. He woke up. The appellant gave another Gupti blow on his chest. He screamed. Having heard his screaming, Dudhbai (PW-5) woke up. He shouted that Kamlesh (the appellant) had assaulted him and he was running away. Thereafter, he became unconscious. 9. Dudhbai (PW-5) deposed that Gaiju (PW-4) is her son and the appellant is son of her husband's brother (Jeth). On the date of incident, at about 4-5 pm, a quarrel took place between Gaiju (PW-4) and Pannalal- father of the appellant. At that time, the appellant was present and he threatened Gaiju (PW-4). In the midnight, at about 1-2 am, her son Gaiju (PW-4) shouted that the appellant assaulted him due to which she woke up and she saw that the appellant was running away from there. Gaiju (PW-4) had sustained injury on his chest and he had become unconscious. She further deposed that Gaiju (PW-4) was taken to Medical College Hospital, Raipur and she lodged report (Ex.P-5). 10. Dr. Smt. S. Phuljhele (PW-3) deposed that on 26-5-2003, she examined Gaiju (PW-4) and gave her report Ex.P-9, in which, she found – (i) stab wound over right side of chest on the 5th intercostal space 2.5cm lateral to mid clavicular line, (ii) stab wound on right constal margin 7th intercostal space 2.5cm medial to mid clavicular line, (iii) incised wound right hand palmer aspect 1 cmX0.5cm and (iv) incised wound right hand dorsul side about 1.5cmX0.5cm subcutaneous deep. She further deposed that she referred the injured to Surgical and Orthopedic Department for further examination. The duration of the injuries was within 0-6 hours. 11. Date and time of the incident was 26-5-2003, at about 1:30 am (midnight) and the FIR (Ex.P-7) was lodged on the same day at about 3:30 am, i.e., within 2 hours. It appears that the FIR (Ex.P-7) was lodged without delay. 12. I have carefully perused the evidence of Gajju (PW-4) and Dudhbai (PW-5). 11. Date and time of the incident was 26-5-2003, at about 1:30 am (midnight) and the FIR (Ex.P-7) was lodged on the same day at about 3:30 am, i.e., within 2 hours. It appears that the FIR (Ex.P-7) was lodged without delay. 12. I have carefully perused the evidence of Gajju (PW-4) and Dudhbai (PW-5). Gajju (PW-4) specifically deposed that on the date of incident, the appellant assaulted him with Gupti. Dudhbai (PW-5) also deposed that having heard shout of her son Gajju (PW-4), she woke up and she saw the appellant running away from her house. Their evidence are corroborated by medical evidence. From the above, it is apparent that the testimonies of Gajju (PW4) and Dudhbai (PW-5) are reliable and cogent. 13. Now, it is to be seen whether the offence of the appellant is punishable under Section 307 IPC. 14. Shri Vivek Rathore, learned counsel for the appellant argued that it is obvious from the statement of Gajju (PW-4) itself that the quarrel had taken place between the father of the appellant and Gajju (PW-4). Dr. Smt. S. Phuljhele (PW-3) did not depose that the injuries were grievous in nature. The prosecution did not prove the nature of the injuries. He further argued that looking to discharge ticket (Ex.P-11), it appears that Gajju (PW-4) was admitted in hospital on 26-5-2003 and was discharged from hospital on 4-6-2003, i.e., after 10 days. Therefore, it appears that the injuries sustained by Gajju (PW-4) were not grievous in nature. The prosecution has not been able to prove that the injuries sustained by Gajju (PW-4) were fatal to his life, therefore, offence is punishable under Section 324 IPC. The appellant remained in jail from 27-5-2003 to 9-7-2003 and from 24-4-2004 to 3-12-2004, i.e., for about 8 months and 20 days. The ends of justice would be met if the appellant is sentenced for the period already undergone by him. 15. Shri R.R. Sinha, learned Panel Lawyer for the State opposed the above arguments. 16. Gajju (PW-4) deposed that on the date of incident, at about 4 pm, quarrel took place between him and father of the appellant and the appellant threatened him. At about 1:30 am (midnight), the appellant entered his house and gave Gupti blow on his abdomen and chest. Dr. Smt. S. Phuljhele (PW3) examined Gajju (PW-4) and found stab wound on chest, abdomen and hand. At about 1:30 am (midnight), the appellant entered his house and gave Gupti blow on his abdomen and chest. Dr. Smt. S. Phuljhele (PW3) examined Gajju (PW-4) and found stab wound on chest, abdomen and hand. She referred the injured to Surgical and Orthopaedical Department. 17. To constitute an offence under Section 307 IPC, the following ingredients of the offence must be present- (a) An intention or knowledge relating to commission of murder and (b) doing of an act towards it. For the purpose of Section 307, what is material is the intention or knowledge, and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with the intention of causing death but which fails to bring about intended consequence on account of initiation on account of intervening circumstances. The intention or knowledge of the cause must be such as a necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307 IPC, there can be no offence of attempt to murder. 18. In the instant case, it is established that the quarrel took place between Gajju (PW-4) and father of the appellant. The appellant entered the house of Gajju (PW-4) armed with Gupti and gave Gupti blow on the abdomen and chest of Gajju (PW-4). Therefore, offence of the appellant falls within the purview of Section 307 IPC. 19. For the foregoing reasons, I do not find any infirmity in the finding recorded by learned Sessions Judge. 20. Coming to the question of sentence, I see that injuries No.1 and 2 invite the applicability of Section 307 IPC. The other injuries were on hand. The incident happened in the year 2003. I, therefore, feel that the sentence of 7 years awarded to the appellant is somewhat excessive. 21. Therefore, I partly allow this appeal. The conviction of the appellant under Section 307 IPC is affirmed, however, jail sentence awarded to him is reduced from 7 years to 5 years rigorous imprisonment. Sentence of fine is also affirmed. The appellant shall forthwith surrender before the trial Court to serve the remaining jail sentence, if any. Appeal Dismissed.