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Madhya Pradesh High Court · body

2012 DIGILAW 822 (MP)

Ashok v. State of M. P.

2012-08-28

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order dated 17.3.1998 passed by learned 11th Additional Sessions Judge in Sessions Trial No.23/1991 convicting the appellant under section 307 IPC and thereby sentencing him to suffer 7 years RI and fine of Rs.1,000/- in default further RI of 3 months, the appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. No exhaustive statement of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that complainant-injured Firoz Khan is a labour and he has gone to obtain a machine in which the cement and ballots are mixed and the mixture is used in building construction. At that juncture some boys arrived there and the appellant was hurling abuses to the complainant and when the complainant asked him not to hurl the abuses, he took out a knife and dealt its blow on the abdomen region of the injured. A report was lodged and the case was registered under section 307 IPC. 3. After investigation took place, a charge-sheet was submitted before in the Committal Court who committed the case to the Court of Sessions and from where it was received by the trial Court for the trial. 4. The learned trial Judge framed charge under section 307 IPC which was denied by the appellant and eventually the trial was commenced and the prosecution examined the witnesses and also proved certain documents. 5. The defence of appellant is false implication but in support of his defence he did not choose to examine any witness. 6. The learned trial Judge on the basis of evidence placed on record arrived at a finding that appellant has committed the offence under section 307 IPC as a result of which convicted him and passed the sentence which I have mentioned hereinabove. 7. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 8. The contention of Shri Anil Ojha, learned counsel for the appellant is that the appellant is not known to the injured earlier and there is no material on record that there was any enmity between them and if that would be position, why appellant will stab the injured and, therefore, by allowing this appeal, the conviction of appellant be set aside. 9. 9. An alternative submission has also been put forth by him that in case this Court comes to the conclusion that on account of stabbing the injured single injury has been sustained by the complainant, at the most the case would come within the ambit and scope of section 324 IPC. Learned counsel further submits that appellant had already suffered a jail sentence of three months and two days and this would be the sufficient punishment for inflicting a single injury and, therefore, it has been prayed that appellant may not be sent back behind the bars again because incident had occurred almost 22 years ago since it occurred on 20.8.1990. Learned counsel has also submitted that there is deformity in both the hands of the appellant and by all these facts keeping in mind, the appropriate sentence be passed. 10. On the other hand, Shri Parmar, learned Public Prosecutor argued in support of the impugned judgment and has submitted that cogent reasons have been assigned by learned trial Court holding the appellant to be guilty under section 307 IPC and looking to the seriousness of the offence, rightly he has been sentenced to 7 years RI and hence this appeal be dismissed. 11. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed in part. 12. In the present case the injured Firoz Khan (PW1) has specifically stated in his testimony that on the date of incident the appellant after asking his name and the address dealt a knife blow on his abdominal region and after causing injury he fled from the place of occurrence. The injured thereafter was coming to his maternal uncle’s home but on the way he fell down and his maternal uncle Chhote Khan shifted him to the hospital. Further he has stated that appellant is not known to him earlier to the incident but the persons who assembled there were saying that the name of assailant was Ashok. Further he says that after receiving the injury he was sent to M.Y. Hospital where the doctor examined him and he was admitted in the Hospital for 15 days. 13. Despite there being a roving cross-examination over him, nothing has been carved out in order to hold that appellant did not cause knife injury on the person of the injured (PW1). 13. Despite there being a roving cross-examination over him, nothing has been carved out in order to hold that appellant did not cause knife injury on the person of the injured (PW1). The test identification parade was also arranged by the investigating agency in which the appellant was correctly identified by the complainant. 14. The statement of the complainant has been corroborated by the evidence of doctor Surendra Dubey (PW4) who on examining the complainant found solitary incised wound 1”x1/2” up to the epigaphic depth. Doctor Surendra Dubey (PW4) has also proved the MLC report (Ex.P-2) of the complainant. Thus, the statement of the complainant-injured has been corroborated by the medical evidence also and, therefore, according to me, the learned trial Court has rightly decided that appellant caused knife injury on the person of the injured. 15. The question now hinges as to what offence the appellant has committed and what should be the appropriate sentence. Since the solitary knife blow has been dealt by the appellant and looking to its size, since it is 1”x1/2” deep upto epigaphic region, the appellant has committed the offence under section 324 IPC. The conviction of appellant is thus altered from section 307 to 324 IPC. The incident had occurred 22 years ago since it occurred on 20.8.1990 and, therefore, it would not be justifiable to send the appellant behind the bars after such a long period but this would not end the matter and the appellant should feel that he has committed the offence of causing hurt by knife to the injured. Therefore, the amount of fine is enhanced from Rs.1,000/- to Rs.30,000/- (Rs. Thirty thousand) and this amount shall be treated as compensation under section 357 CrPC and be paid to the injured. 16. It has been stated at bar by learned counsel for the appellant that a sum of Rs.1,000/- as imposed by learned trial Court towards fine has already been deposited in the trial Court. If that would be the position, the appellant shall deposit the balance amount of Rs.29,000/- (Rupees Twenty Nine thousand only) in the trial Court on or before 31.10.2012 failing which he shall undergo jail sentence of three years. If that would be the position, the appellant shall deposit the balance amount of Rs.29,000/- (Rupees Twenty Nine thousand only) in the trial Court on or before 31.10.2012 failing which he shall undergo jail sentence of three years. After the balance amount of Rs.29,000/- (Rupees Twenty Nine thousand only) is deposited by the appellant, the same shall be paid to injured/complainant Firoz Khan s/o Chand Khan, r/o Dogargaon, Mhow, District Indore who was examined as PW1 towards compensation under section 357 CrPC. Learned trial Court is, hereby, directed to pay the entire amount of Rs.30,000/- (Rs. Thirty thousand) to aforesaid injured.The bail bonds of appellant shall be cancelled only after appellant deposits the balance amount of Rs.29,000/-. The appellant is hereby directed to appear before the trial Court on 17.9.2012. In case appellant fails to appear on this date the learned trial Court shall issue perpetual arrest warrant against the appellant and also issue notice to his surety and may pass necessary orders against the surety. In case appellant appears on 17.9.2012 and deposits the some amount of compensation and not the entire amount, the learned trial Court shall give a date which should not beyond 31.10.2012. It is further made clear that in case appellant fails to deposit the amount of Rs.29,000/- (Rupees Twenty Nine thousand only), he shall undergo the jail sentence of 3 years R.I. 17. The Registry is hereby directed to send the original bail bond papers of the appellant to learned trial Court so as to enable him to issue notice etc. to the surety and the photo copy thereof shall be retained in this file. 18. This appeal is allowed to the extent indicated hereinabove. After deposit of amount of compensation of Rs.29,000/- (Rupees Twenty Nine thousand) by the appellant the bail bonds of appellant shall stand cancelled.