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2013 DIGILAW 1576 (MP)

Anand v. State of M. P.

2013-12-19

N.K.GUPTA

body2013
JUDGMENT N.K. Gupta, J. Since both the appeals arose from the same judgment dated 19.8.1997 passed by the learned Additional Sessions Judge, Waraseoni, therefore, they are decided by this common judgment. 2. The appellant Narendra was convicted for the offence punishable under section 307 of IPC and sentenced for 3 years Rigorous Imprisonment with fine of Rs.500/-, whereas the remaining appellants were convicted for the offence punishable under section 323 of IPC and each sentenced with Rigorous Imprisonment for 3 months vide judgment dated 19.8.1997 passed by the learned Additional Sessions Judge, Waraseoni, District Balaghat in S.T.No.37/1992. Being aggrieved with the aforesaid judgment, the appellants have preferred the present appeal. 3. The facts of the case, in short, are that, on 14.7.1991, at about 9.55 p.m., Dr. Suresh Kumar Kawde (P.W.8), posted as Assistant Surgeon at Primary Health Center, Tirodi had sent a note to SHO, Police Station Tirodi, District Balaghat that the victim Shekhar was brought in the hospital having injuries caused by hard and sharp objects. Therefore, the SHO had sent a requisition to Dr. Kawde for recording his report after medico legal examination. Dr. Kawde recorded the MLC report, Ex.P/8 and he found that the victim sustained two incised wounds. One on left buttock and second one on the abdomen. There was swelling found near the abdomen and the victim was referred to District Hospital, Balaghat. Dr. G.P. Dubey (P.W.7) found various blood vessels of the victim cut under the wound caused in the abdomen. 2-3 liters of blood was found in the abdomen. It was cleaned and surgery was done. In the opinion of Dr. Dubey, injury of the abdomen was sufficient to cause death of the victim Shekhar. The police recorded the statement of the victim Shekhar and other persons and also seized a Gupti near a Nala. Shirt of the appellant Narendra was also seized and such seized articles were sent for forensic analysis. After due investigation, a charge-sheet was filed before the JMFC, Waraseoni, who committed the case to the Court of Sessions and ultimately, it was transferred to the Additional Sessions Judge, Balaghat. 4. The appellants abjured their guilt. They did not take any specific plea in the case and therefore, no defence evidence was adduced. 5. After due investigation, a charge-sheet was filed before the JMFC, Waraseoni, who committed the case to the Court of Sessions and ultimately, it was transferred to the Additional Sessions Judge, Balaghat. 4. The appellants abjured their guilt. They did not take any specific plea in the case and therefore, no defence evidence was adduced. 5. The learned Additional Sessions Judge, Waraseoni, after considering the prosecution's evidence acquitted the accused Bablu @ Rajendra and Anand from the charges of offence punishable under section 307 of IPC but, convicted them for offence punishable under section 323 of IPC, whereas the appellant Narendra was convicted and sentenced as mentioned above. The accused Arif was acquitted from all the charges. 6. I have heard the learned counsel for the parties at length. 7. In the present case, Shekhar Meshram (P.W.4) has stated that in July, 1991, at about 10 p.m. in the night, he had closed his liquor shop and he was going to his house to take meals. He was following one Kashiram, who was going in front of him. Near a calvert, the appellants stopped the victim and they quarreled on the point as to why the victim Shekhar took a quarrel with one Tahalram in the past. The appellant Narendra assaulted him by a Gupti in his abdomen on the left side and thereafter, the appellants Bablu @ Rajendra and Anand assaulted him by fists. On his shouting, Yogesh and Kashiram came to the spot and thereafter, the appellants ran away. Yogesh and Kashiram took him to Dr. Kawde at Primary Health Center, Tirodi. Yogesh Kumar (P.W.5) has submitted that at the time of the incident, he was standing near a Pan thela and after hearing the cries of Shekhar, he ran towards him and found that blood was oozing from his abdomen and therefore, he took the victim Shekhar to the hospital. The trial Court made several attempts to procure the attendance of the witness Kashiram but, it was found that he left his given address and his new address could not be traced by the police and therefore, the witness Kashiram could not be examined. 8. The trial Court made several attempts to procure the attendance of the witness Kashiram but, it was found that he left his given address and his new address could not be traced by the police and therefore, the witness Kashiram could not be examined. 8. ASI Shri Narendra Kumar (P.W.10) had tried to connect the case with seizure of Gupti seized by the memo, Ex.P/1 and a shirt of the appellant Narendra was also seized by memo, Ex.P/12 and all such things were sent to the Forensic Science Laboratory for analysis. It was not stated by the investigation officer that Gupti was found in possession of the appellants and therefore, by seizure of a Gupti found at an open place, no evidence is created against the appellants. Similarly, in FSL report, Ex.P/15 and Ex.P/16 and report of the Serologist Ex.P/17, no human blood was found on Gupti and therefore, it cannot be said that the seized Gupti was the same which was used for the offence. Similarly, in the report, Ex.P/15 blood was found on the shirt of the appellant Narendra. However, in report of Serologist, Ex.P/17, it could not be established that the blood found on the shirt of the appellant Narendra was human blood and therefore, seizure of the shirt of the appellant Narendra has no evidentiary value in the present case, therefore, it would not be necessary to discuss the evidence relating to seizure of Gupti or seizure of the shirt. 9. In the present case, conviction is to be considered on the sole testimony of the victim Shekhar Meshram. The testimony of the victim Shekar Meshram was corroborated by the witness Yogesh Kumar that soon after the incident, he found that injury was caused to the victim Shekhar but, Yogesh Kumar did not say that he saw the appellants running away from the spot or Shekhar informed him that who assaulted him. It is also apparent that the testimony of the victim Shekhar was duly established by Dr. Suresh Kumar Kawde (P.W.8) and Dr. G.P. Dubey (P.W.7). The victim Shekhar has stated about the nature of assault. The doctors found the injuries of the same nature upon him. It is not the case of robbery etc. and therefore, there was no possibility that the victim Shekhar could not identify the unknown persons. Suresh Kumar Kawde (P.W.8) and Dr. G.P. Dubey (P.W.7). The victim Shekhar has stated about the nature of assault. The doctors found the injuries of the same nature upon him. It is not the case of robbery etc. and therefore, there was no possibility that the victim Shekhar could not identify the unknown persons. By evidence of Yogesh Kumar, it is proved that there was some light of tube-light illuminated near the spot and therefore, identification of the appellants is not doubtful. 10. The appellants did not say anything in their statements that they were implicated due to a particular enmity. No suggestion of enmity was given to the victim Shekhar. The victim Shekhar himself told that a dispute took place between him and one Tahalram and he denied to give liquor to Tahalram on a particular day but, after sometime he provided liquor to that Tahalram. On the basis of that dispute, the appellants restrained the victim on the road and assaulted him in such a manner. 11. In absence of a particular enmity, there was no reason to the victim Shekhar to state against the appellants falsely. Hence where the testimony of the victim Shekhar is partly corroborated by the witness Yogesh and duly corroborated by the medical reports, it appears to be acceptable and it is proved beyond doubt that the appellant Narendra gave him a stroke of Gupti in his abdomen, whereas, the other appellants assaulted him by fists. 12. Since the appellants Anand and Bablu @ Rajendra assaulted the victim by fists and the trial Court has acquitted them for the offence punishable under section 307 of IPC and no counter appeal was filed by the State then, there is no need to discuss about the common intention of the appellants Anand and Rajendra. It is proved against them that they assaulted the victim Shekhar by fists though no sudden or grave provocation or no right to private defence was accrued to them and therefore, it is established that they voluntarily caused hurt to the victim Shekhar. So far as the guilt of the appellant Narendra is concerned, he gave a powerful stroke of Gupti in the abdomen of the victim Shekhar and due to that stroke, 2-3 blood vessels were found cut and 2-3 liters of blood was found in his abdomen. Dr. So far as the guilt of the appellant Narendra is concerned, he gave a powerful stroke of Gupti in the abdomen of the victim Shekhar and due to that stroke, 2-3 blood vessels were found cut and 2-3 liters of blood was found in his abdomen. Dr. G.P. Dubey (P.W.7) has opined that the injuries was sufficient to cause death of the victim in the routine course of life and therefore, it was a fatal injury. For constitution of offence punishable under section 307 of IPC, intention of the accused can be considered by his conduct. In the present case, the appellant Narendra gave a powerful assault of a Gupti to the victim Shekhar on his vital part abdomen and therefore, his intention can be presumed that he was intended to kill the victim though he did not give any second blow. In this context, as per law laid by Hon'ble the Apex Court in case of “Nasir Sikander Sheikh Vs. State of Mahastra”, [ AIR 2005 SC 2533 ], constitution of offence punishable under section 307 of IPC may be considered on the facts of each and every case and if knife is inserted in the vital part of body of the victim like abdomen then, offence under section 307 of IPC shall be made out. Under such circumstances, it would be apparent that the appellant Narendra has committed offence under section 307 of IPC. 13. On the basis of the aforesaid discussion, it would be apparent that the conviction directed by the trial Court against the appellants was appropriate and no interference can be done in the conviction. So far as the sentence is concerned, it is apparent that the appellants Anand and Rajendra @ Bablu assaulted the victim by fists only and no visible injury was caused due to that assault. They have faced the trial and appeal since the year 1992. Looking to their guilt and their harassment for appearing before the various Courts during the pendency of trial and appeal and the fact that they remained in the custody for 10 days during the trial and appeal then, it is a fit case in which, the appellants Rajendra and Anand may not be sent to the jail again and their sentence may be reduced to the period for which they remained in the custody by imposing some fine amount. So far as the sentence of the appellant Narendra is concerned, in the light of judgment passed by Hon'ble the Apex Court in case of “State of Madhya Pradesh Vs. Salim”, [(2005) Cr.L.J. 3435], sentence directed against the appellant Narendra appears to be appropriate. No lenient view can be taken in favour of the appellant Narendra in the present case. 14. On the basis of the aforesaid discussion, the appeal filed by the appellants Anand and Rajendra @ Bablu is hereby partly allowed. Their conviction for offence punishable under section 323 of IPC is hereby maintained but, sentence is reduced to the period for which they remained in the custody. However, a fine of Rs.10,000/- is imposed on each of them for offence punishable under section 323 of IPC. They are directed to deposit the remaining fine amount before the trial Court within two months from today, failing which they shall undergo for 3 months rigorous imprisonment. The appeal filed by the appellant Narendra is hereby dismissed in toto. He is directed to surrender before the trial Court within 15 days from today, so that he may be sent to the jail for execution of remaining jail sentence. 15. A copy of the order be sent to the trial Court along with its records for information and compliance. Attention of the learned Additional Sessions Judge, Waraseoni is invited to the provisions of section 68 of IPC that if fine amount is not deposited within the stipulated period then, the appellants shall be arrested for execution of default sentence and as and when fine amount is deposited, they shall be released.