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Madhya Pradesh High Court · body

2012 DIGILAW 609 (MP)

Guddu alias Sameer v. State of M. P.

2012-06-26

N.K.GUPTA

body2012
JUDGMENT : Thiscriminal appeal is preferred by the appellant being aggrieved by the judgmentdated 9/5/1996 passed by the Sessions Judge, Betul inST No.81/1995, whereby the appellant was convicted for commission of offencepunishable under Section 307 of IPC and sentenced for five years' rigorousimprisonment with fine of Rs.100/-. In default of payment of fine amount, anadditional RI for three months was directed. 2.Prosecution case, in short, is that on 22/1/1995 the victim Mohd . Anees (PW-1) was working on his paan thaila situated at Tikari Road , Betul . At about 8:00 PM the victim Mohd . Anees went to Lalli Chowk after closure of his paan thaila . After sometime he came back to his paan thaila , then he found thatthe appellant and other co-accused persons were standing near his thaila . A sum of Rs.15/- was due towards the appellant Guddu and therefore victim Mohd . Anees demanded that sum from appellant Guddu .The appellant with the help of other co-accused persons viz. Sallu @ Salim and Abid assaulted the victim Mohd . Anees by aknife. He assaulted the victim on his abdomen and left thigh for 2-3times. Mohd . Shafi (PW-2), brother of thevictim after getting news of the incident rushed to the spot. Hetried to engage an auto- riksaw but in the meantimewitness Moin Khan (PW-10) and Tanvir (PW-4) took the victim to the District Hospital , Betul and thereafter to the Padhar Hospital in a jeep. Mohd . Shafi went to the hospital and asked his brother about theincident. On the information received from his brother, he gave Dehati nalishi (FIR) Ex.P-3 tothe concerned police officers, who came to the hospital. Victim Mohd . Anees wasreferred to the doctors for his examination and treatment. In district hospital Betul Dr. M.L.Rathore (PW-5) examined the victim Mohd . Anees and found two stab wounds. One on the left abdomen andanother on the left thigh. One side of each wound was clean cut whereassecond side of wound was irregular. The wound caused in abdomen was deep toperitoneal cavity. In Padhar Hospital Dr. Anil Alikatti (PW-7) treated the victim Mohd . Anees . Victim was vomiting blood at that time. A surgery was done in Padhar Hospital by this witness and he found that some portion of intestine was cut due to thatwound caused in abdomen of victim Mohd . Anees . In Padhar Hospital Dr. Anil Alikatti (PW-7) treated the victim Mohd . Anees . Victim was vomiting blood at that time. A surgery was done in Padhar Hospital by this witness and he found that some portion of intestine was cut due to thatwound caused in abdomen of victim Mohd . Anees . Bladder was also found cut in length of 1.5 cm. Blood was oozing from themesentery and bladder. As per his opinion, death of the victim could be causedin ordinary course of the nature due to that injury if surgery was not doneupon him. After due investigation, a challan wasfiled by the police before the Chief Judicial Magistrate, Betul and thereafter case was committed to the Sessions Judge, Betul . 3.The appellant-accused abjured his guilt. He did not take any specific plea in defence but simply stated that he was falsely implicated inthe matter. No defence evidence was adduced. 4.After considering the prosecution, the learned Sessions Judge, Betul convicted the appellant for commission of offencepunishable under Section 307 of IPC and inflicted the sentence as mentionedabove, but acquitted the other co-accused persons namely Abid and Sallu @ Salim . 5.I have heard the learned counsel for the parties. 6.Learned counsel for the appellant-accused has submitted that there was noenmity between the appellant and the victim, on thecontrary they were friends. Omnibus allegations were made against three personsbut a compromise took place out the Court between the victim and otherco-accused persons, therefore the present appellant was falsely implicated inthe matter by saving the others. Incident took place in a spur of moment. Theinjuries were not fatal in nature. No offence under Section 307 of IPC is madeout against the present appellant. In support of his contention, learnedcounsel for the appellant has placed his reliance on the judgment of the Hon'ble Division Bench of this Court in the case of “ Kanhaiyalal Vs. State of Madhya Pradesh”, (1985 WN Note336). It is also submitted that the present case is much old and the appellantis suffering custody and attending the proceeding since long. He has sufferedfor 17 years due to this case and appeal. Under such circumstances, where hisage was only 18 years at the time of incident, jail sentence of the appellant maybe reduced to the period which he has already undergone in the custody. He has sufferedfor 17 years due to this case and appeal. Under such circumstances, where hisage was only 18 years at the time of incident, jail sentence of the appellant maybe reduced to the period which he has already undergone in the custody. 7.On the contrary, learned counsel for the State has supported the impugnedjudgment mainly on the ground that the offence under Section 307 of IPC is verywell constituted against the present appellant and looking to the gravity ofoffence, the instant appeal filed by the appellant may be dismissed. 8.In the present case only three questions are to be considered. Firstly, thatthe appellant assaulted the victim by a knife, secondly as to whether offenceunder Section 307 of IPC is constituted against the present appellant or notand thirdly as to whether any interference can be done in the sentenceinflicted by the trial Court. 9.It is submitted by learned counsel for the appellant that in the FIR Ex.P-3omnibus allegations were made that the victim Mohd . Anees was assaulted by three accused persons with the helpof a knife. But during the trial a compromise took place between the remainingaccused persons and the victim. All the witnesses were saving those two accusedpersons and shifted their guilt upon the present appellant. 10.Contention of learned counsel for the appellant cannot be accepted in the lightof the statement given by the victim Mohd . Anees (PW-1). He has specifically mentioned that it was the appellant Guddu ,who assaulted him on his abdomen and left thigh by a knife. He did not allegeanything against co-accused Abid and Sallu @ Salim that they assaultedhim by any weapon. Under such circumstances, it would be apparent that originalversion of the victim was that the appellant assaulted him by a knife on hisabdomen and thigh. The FIR was lodged by witness Mohd . Shafi (PW-2), brother of the victim, who was not the eye-witness in the case. He took the information from the victim when victim was admitted to the Padhar Hospital in a serious condition. Under such circumstances, the complainant could lodgethe FIR in an omnibus manner on the basis of information given by the victim insuch a critical condition. But when the victim was examined by the police underSection 161 of Cr.P.C . only then he has categoricallymentioned that it was the appellant Guddu whoassaulted him in his abdomen and thigh by a knife. Under such circumstances, the complainant could lodgethe FIR in an omnibus manner on the basis of information given by the victim insuch a critical condition. But when the victim was examined by the police underSection 161 of Cr.P.C . only then he has categoricallymentioned that it was the appellant Guddu whoassaulted him in his abdomen and thigh by a knife. Under such circumstances, itcannot be said that omnibus allegations were made against all the three personsand thereafter the present appellant was chosen as a main culprit. On thecontrary, it is apparent from the statement of the victim that the appellantwas the culprit who assaulted him by a knife. 11.The evidence given by the victim Mohd . Anees is duly supported by the statement of witness Mohd . Shafi (PW-2) that thevictim informed him about the incident soon after the incident. However,witness Jamal (PW-3), Tanvir (PW-4) and Moin Khan (PW-10) have turned hostile. They did not supportthe fact that they saw the incident. Moin Khan(PW-10) and his companions have stated before the trial Court that they tookthe victim to the hospital only in an injured condition, but the victim did notsay anything about the name of the culprit etc. However, no enmity isestablished against the present appellant so that victim could allege theground of enmity against the appellant. On the contrary, it is established thatprior to this incident, the victim and present appellant were friends. Under such circumstances, the evidence given by the victim Mohd . Anees is dulysupported by the FIR and medical evidence. 12.Learned counsel for the appellant has invited attention of this Court thatthere is a lot of contradiction between the number of injuries as stated by thevictim and those that were found by the doctor. It is true that number of injuries are different on these two ends, but aperson who was assaulted in such a manner that his bladder and mesentery werecut. Some portion of the intestine was also cut. Victim was vomiting blood, hence it was not possible for him to remember numberof strokes given by the appellant. Therefore by suchcontradictions, the testimony of the victim Mohd . Anees cannot be disbelieved. Under suchcircumstances, learned Sessions Judge has rightly held that it was the presentappellant Guddu who assaulted the victim Mohd . Anees by a knife. Victim was vomiting blood, hence it was not possible for him to remember numberof strokes given by the appellant. Therefore by suchcontradictions, the testimony of the victim Mohd . Anees cannot be disbelieved. Under suchcircumstances, learned Sessions Judge has rightly held that it was the presentappellant Guddu who assaulted the victim Mohd . Anees by a knife. 13.Learned counsel for the appellant has relied upon the judgment of the Hon'ble Division Bench of this Court in the case of Kanhaiyalal (supra) to show that since nature of the injurywas not fatal, the alleged offence falls under Section 324 of IPC. Actually,looking to the factual aspects of the case, the judgment passed by the Hon'ble Division Bench of this Court in the case of Kanhaiyalal (supra) is not applicable in the present case.In this connection, the relevant portion of the judgment of the Hon'ble Apex Court in the case of “State of Maharashtra Vs. Balram Bama Patil & others”, (1983CRI.L.J. 331) may be referred in which it is held as under: “Tojustify a conviction under this section it is not essential that bodily injurycapable of causing death should have been inflicted. Although the nature ofinjury actually caused may often given considerable assistance in coming to afinding as to the intention of the accused, such intention may also be deductedfrom other circumstances, and may even, in some cases, be ascertained withoutany reference at all to actual wounds..................................... Itis not necessary that the injury actually caused to the victim of the assaultshould be sufficient under ordinary circumstances to cause the death of theperson assaulted. What the Court has to see is whether the act, irrespective ofits result, was done with the intention or knowledge and under circumstancesmentioned in this section. An attempt in order to be criminal need not be thepenultimate act. It is sufficient in law, if there is present an intent coupledwith some overt act in execution thereof.” 14.In the light of the aforesaid judgment of the Hon'ble Apex Court , it is tobe considered that what was the intention or knowledge of the appellant. It istrue that the incident was not pre-planned. A quarrel took place between theparties in a sudden manner. It is also true that the appellant and the victimwere friends in the past. But it is observed by Dr. Anil Alikatti (PW-7) that the victim was vomiting blood. It istrue that the incident was not pre-planned. A quarrel took place between theparties in a sudden manner. It is also true that the appellant and the victimwere friends in the past. But it is observed by Dr. Anil Alikatti (PW-7) that the victim was vomiting blood. His mesentery, intestine and someportion of the bladder were found cut and if surgery was not performed uponhim, then injuries were sufficient to cause his death in ordinary course. Undersuch circumstances, it is apparent that the present appellant assaulted thevictim in his abdomen with a force so that knife pierced the abdomen of thevictim as well as other portion of the abdomen. Looking to the opinion of theDr. Anil Alikatti (PW-7), the injuries caused inabdomen of the victim were fatal in nature and if surgery was not performed,then certainly the victim would have died because the vital organs of thevictim were found cut in his abdomen. Secondly, it is alleged that theappellant assaulted the victim for at least two times. First in his abdomen andsecond on his thigh, and therefore his intention is visible. If he had notintended to kill the victim, then there was no need to give another assault tothe victim by a knife. In such circumstances, in the light of the judgment ofthe Hon'ble Apex Court in the case of Balram Bama Patil (supra), it would be apparent that the appellant wasintended to kill the victim, and therefore offence under Section 307 of IPC ismade out against the present appellant. The learned Sessions Judge has rightlyconvicted the appellant for commission of offence punishable under Section 307of IPC. 15.It is true that the present appellant and the victim were friends prior to theincident. The quarrel started due to payment of very small amount of Rs.15/-and during the quarrel the appellant lost his temper and assaulted the victimin such a manner. The appellant is facing the trial and appeal since the year1995 i.e. for last 17 years. He remained in custody for 40 days. It is alsoadmitted that the appellant was 18 years old at the time of incident. His ageis mentioned in the judgment of the trial Court to be 18 years of age. In sucha tender age, it is possible that due to lack of maturity, the appellant coulddo such a crime. Thereforeall these facts may be considered for consideration of sentence of theappellant. His ageis mentioned in the judgment of the trial Court to be 18 years of age. In sucha tender age, it is possible that due to lack of maturity, the appellant coulddo such a crime. Thereforeall these facts may be considered for consideration of sentence of theappellant. In the case of “ Tarak Nath Singh & another Vs. State of WB”, [1998 SCC ( Cri )587] the Hon'ble Apex Court reduced the sentence ofthe accused to the period which he has already undergone in the custody byenhancing the fine amount but the period of custody of the accused in that caseis not known. 16.Learned counsel for the appellant has placed his reliance on the order of thisCourt in the case of “Sanjay alias Sanju Patil & another Vs. State of Madhya Pradesh”, [ 2004(2)MPHT 1 ( NOC )] in which the appellant wasconvicted for commission of offence punishable under Section 307 of IPC, buthis sentence was reduced to the period which he had undergone in the custody.In that case such period was computed to be 19 days only. In this connection,the order of the Honble Apex Court in the case of “State of MP Vs. Badri alias Bhuru ”, ( AIR 2006 SC 571 ) may be referred in which such type of orders are deprecated. It was criticized thatsentence lesser than one year was granted in such a grave offence without anybasis. In the light of the judgment passed by the Hon'ble Apex Court in the caseof Badri alias Bhuru (supra), the order passed in the case Sanjay alias Sanju Patil (supra) cannot be considered as a precedent in thepresent case. 17.In the light of the judgment of the Hon'ble ApexCourt in the case of Badri alias Bhuru (supra) it appears that while considering the various facts that the appellantwas of tender age, he has faced the trial for a longer period, he remained incustody for sometime, then custody period to be considered proportionate to theoffence committed by the accused in the case. Under such circumstances, theorder passed by the Single Judge in the case of Sanjay alias Sanju Patil (supra) appears to beper in curium. In the present case, when the appellant remained in the custodyfor only 40 days, then his sentence cannot be reduced to the period which hehas already undergone in the custody. Under such circumstances, theorder passed by the Single Judge in the case of Sanjay alias Sanju Patil (supra) appears to beper in curium. In the present case, when the appellant remained in the custodyfor only 40 days, then his sentence cannot be reduced to the period which hehas already undergone in the custody. In such circumstances, considering theage of the appellant at the time of incident and the period in which he hassuffered the trial and appeal, it would be essential to reduce his jailsentence appropriately by enhancing the fine amount. 18.On the basis of aforesaid discussion, the appeal filed by the appellant ispartly allowed. The conviction directed by the Court below for commission ofoffence punishable under Section 307 of IPC is hereby maintained, but hissentence is reduced from five years' rigorous imprisonment to two years'rigorous imprisonment by enhancing the fine amount from Rs.100/- toRs.10,000/-. The appellant is directed to deposit the remaining fine amountbefore the trial Court within a period of two months from today, failing whichhe shall undergo rigorous imprisonment for two years in addition. 19.The appellant is on bail, therefore he is directed to surrender before thetrial Court within one month and after his surrender, the trial Court shallsend him to undergo the remaining jail sentence. It is also directed that iffine amount is deposited, then entire amount may be given to the victim Mohd . Anees S/o Mohd . Yusuf ,resident of Azad Ward Tikari , Betul (MP) by way of a compensation .