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2013 DIGILAW 215 (CHH)

THAKUR RAM v. STATE OF M. P.

2013-07-17

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against judgment dated 01-02-1997 passed by Additional Sessions Judge, Baloda Bazar, District Raipur in Sessions Trial No.332/1993. By the impugned judgment, accused/appellant Thakur Ram has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. Co-accused Awadhram and Chheduram have been acquitted of the charge framed against them. 2. Case of the prosecution, in brief, is as under: On 20-03-1993, at about 10 A.M., complainant Vishwanath (PW-3) was going to his shop on his bicycle. Appellant Thakur Ram met him on the way, caught handle of the bicycle and gave a knife blow on his abdomen. Complainant Vishwanath (PW-3) sustained injury in his abdomen and due to injury he fell down from the bicycle. Pancho Bai (PW-4) who is the wife of complainant Vishwanath (PW-3) witnessed the incident. At that time she was sitting in betel shop. Co-accused Awadhram and Chheduram came near complainant Vishwanath (PW-3) running and they also caught the neck of complainant Vishwanath (PW-3). When Pancho Bai (PW-4) reached the place of occurrence, the appellant and other co-accused persons fled from there. Complainant Vishwanath (PW-3) was taken to Primary Health Centre (PHC), Bhatapara. Dr. P. Mukundan (PW-1) examined Vishwanath (PW-3) and gave his report (Ex.P-2). Dr. P. Mukundan (PW-1) also sent an information to Police Station Bhatapara (Gram in) vide (Ex.P-1). Head Constable Jamuna Singh, on the basis of(Ex.P-1), recorded rojnamcha sanha 583 and thereafter Station House Officer R.O. Singh (PW-7) recorded First Information Report (FIR) (Ex.P-8) in Police Station Bhatapara (Gramin). Thereafter, Station House Officer R.O. Singh (PW-7) reached Primary Health Centre, Bhatapara (Gramin). Dr. P. Mukundan (PW-1) gave his report (Ex.P.-2), in which, he found incised wound of 3.5 cm x 1.5 cm below the left side of the chest and blood was oozing out from the injury. He opined that the injury was grievous in nature and caused by hard and sharp object. Injured Vishwanath (PW-3) was referred to D.K..S. Hospital, Raipur for further treatment. In further investigation, memorandum statement of the appellant was recorded under section 27 of the Evidence Act vide (Ex.P-11) and at his instance, one knife (Chaku) was seized vide (Ex.P.-12). He opined that the injury was grievous in nature and caused by hard and sharp object. Injured Vishwanath (PW-3) was referred to D.K..S. Hospital, Raipur for further treatment. In further investigation, memorandum statement of the appellant was recorded under section 27 of the Evidence Act vide (Ex.P-11) and at his instance, one knife (Chaku) was seized vide (Ex.P.-12). Blood stained soil and plain soil were seized from the place of occurrence vide (Ex.P-10). After completion of the investigation, charge-sheet was filed against the appellant and acquitted co-accused persons in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by Additional Sessions Judge, Baloda Bazar, District Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Awadhram and Chheduram. 3. Shri M.D. Dhote and Shri B.P. Gupta, learned counsel for the appellant argued that there is no independent witness. Pancho Bai (PW-4) is the wife of Complainant Vishwanath (PW-3). She is a relative and interested witness. The evidence of Complainant Vishwanath (PW-3) is full of contradictions and same is not corroborated by any independent witness. Independent witnesses did not support the case of the prosecution, therefore, the evidence of Complainant Vishwanath (PW-3) and Pancho Bai (PW-4) are not cogent and reliable. Hence, the conviction recorded by the learned Additional Sessions Judge is not sustainable in the eyes of law and the appellant deserves to be acquitted. 4. On the contrary, Shri Anant Bajpai, 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 and have also perused the record of Sessions Trial No.332/1993. The conviction of the appellant is based on the evidence of Complainant Vishwanath (PW-3) and Pancho Bai (PW-4). It is admitted that Pancho Bai (PW-4) is the wife of complainant. She is a relative witness. 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. It is admitted that Pancho Bai (PW-4) is the wife of complainant. She is a relative witness. 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, moreso, 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. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Lehna v. State of Haryana, (2002) 3 SCC 76 ; and Rizan & Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661 ) : ( AIR 2003 SC 976 )." {See also Shaukat Vs. State of Uttaranchal (2010) 5 SCC 68 , (Paragraphs 35 and 36)} 7. In Waman and others Vs. State of Maharashtra (2011) 7 SCC 295 , the Hon'ble Supreme Court held as follows: "17. In Balraje v. State of Maharashtra, (2010) 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that: (SCC p. 679, para 30) "30. ........ .if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. After saying so, this Court held that: (SCC p. 679, para 30) "30. ........ .if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. The above principles have been once again reiterated in State of U.P. v. Naresh, (2011) 4 SCC 324 . Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) "29. ..... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673 .)" 8. In Dayal Singh & ors. Vs. State of Uttaranchal AIR 2012 SC 3046 , the Hon'ble Supreme Court held thus: "10. This court has repeatedly held that an eye witness version can not be discarded by the Court merely on the ground that such eye witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye witnesses is provided to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness." 9. Complainant Vishwanath (PW-3) deposed that on the date of incident after taking his meals he was going to his shop. Complainant Vishwanath (PW-3) deposed that on the date of incident after taking his meals he was going to his shop. On the way, appellant Thakur Ram met him, caught the handle of his bicycle and gave a knife blow on his abdomen. He sustained injury in his abdomen and due to injury he fell down from the bicycle. He further deposed that Pancho Bai (PW-4) who is the wife of complainant Vishwanath (PW-3) witnessed the incident. At that time she was sitting in betel shop. Ishwarprasad (PW-5) came there and tied his injury with cloth and he took him to PHC, Bhatapara (Gram in). Pancho Bai (PW-4) deposed that on the date of incident at about 10.00 a.m. she was sitting in her shop. Complainant Vishwanath (PW-3) came on bicycle. On the way the appellant met him, caught his bicycle with one hand and gave a knife blow to complainant Vishwanath (PW-3). Complainant Vishwanath (PW-3) sustained injury on his abdomen and he raised alarm for help. She further deposed that the complainant was taken to PHC Bhatapara (Gram in). Thereafter, he was referred to D.K.S. Hospital, Raipur for further treatment. 10. Ishwar Prasad (PW-5) deposed that on the date of incident at about 10.00 a.m., the appellant caught handle of bicycle of the complainant. When he reached near Vishwanath (PW-3), he saw that complainant Vishwanath (PW-3) sustained injury in left side of his abdomen. 11. Dr. P. Mukundan (PW-1) deposed that he examined Vishwanath (PW-3) and gave his report (Ex.P-2) in which he found incised would of 3.5 cm x 1.5 cm on the left side of the chest and blood was oozing out from the injury. He opined that the injury was grievous in nature and caused by hard and sharp object. He further deposed that Injured Vishwanath (PW-3) was referred to D.K.S. Hospital, Raipur for further treatment. 12. The date and time of incident was 20-03-1993 at about 10 a.m. The complainant was taken to hospital and he reached the hospital at about 12 Noon. Dr. P. Mukundan (PW-1) sent an information to Police Station Bhatapara (Gram in) vide (Ex.P-1) at about 12.10 P.M. and Rojnamcha Sanha No. 583 was recorded. Thereafter, regular First Information Report (Ex.P-8) was registered on 20-03-1993 at about 15 hours. It appears that the FIR was recorded immediately after the incident. 13. Dr. P. Mukundan (PW-1) sent an information to Police Station Bhatapara (Gram in) vide (Ex.P-1) at about 12.10 P.M. and Rojnamcha Sanha No. 583 was recorded. Thereafter, regular First Information Report (Ex.P-8) was registered on 20-03-1993 at about 15 hours. It appears that the FIR was recorded immediately after the incident. 13. I have carefully perused the evidence of complainant Vishwanath (PW-3) and Pancho Bai (PW-4). They specifically deposed that on the date of incident, the appellant assaulted Vishwanath (PW-3) with a knife. The evidence of the complainant is corroborated by the evidence of Ishwar Prasad (PW-5) as also by medical evidence. From above, it is apparent that testimonies of Vishwanath (PW-3) and Pancho Bai (PW-4) are clinching, cogent and reliable. 14. Now, it is to be seen whether the offence comes under Section 307 IPC or not? 15. Shri M.D. Dhote and Shri B.P. Gupta, learned counsel for the appellant argued that the appellant gave only single blow to complainant Vishwanath (PW-3) and depth of the injury was not mentioned in MLC report (Ex.-P/1) and Doctor P. Mukundan (PW-1) did not mention the depth of the injury. In cross-examination, Doctor P. Mukundan (PW-1) deposed that he had not mentioned in Ex.P-2 whether the injury was muscle deep or not. They further argued that the injured/complainant Vishwanath (PW-3) was admitted in D.K.S. Hospital, Raipur, but for how many days he was admitted in D.K.S. Hospital, Raipur was not disclosed by the prosecution. Therefore, the prosecution has not been able to prove that the injury sustained by complainant Vishwanath (PW-3) was grievous in nature and fatal to his life. At the maximum, the offence is punishable under Section 324 IPC. The appellant has been in jail for near about 6 months and 20 days. The ends of justice would be met, if the appellant is sentenced for the period already undergone by him. 16. Shri Anant Bajpai, learned Panel Lawyer appearing for the State/respondent opposed the above arguments. 17. Complainant Vishwanath (PW-3) and Pancho Bai (PW-4) deposed that the appellant met the complainant on the way and gave him single knife blow and Doctor P.Mukundan (PW-1) deposed that it is true that he had mentioned nothing about the depth of the injury sustained by complainant Vishwanath (PW-3) in the medical report. 17. Complainant Vishwanath (PW-3) and Pancho Bai (PW-4) deposed that the appellant met the complainant on the way and gave him single knife blow and Doctor P.Mukundan (PW-1) deposed that it is true that he had mentioned nothing about the depth of the injury sustained by complainant Vishwanath (PW-3) in the medical report. Doctor P.Mukundan (PW-1) did not depose that if the complainant would not have been admitted in the hospital, his death was possible. He also did not depose that injury sustained by complainant Vishwanath (PW-3) was fatal to his life. 18. To constitute an offence under Section 307 IPC, two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 IPC, what is material is the intention or the 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 intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge, which is necessary ingredients of Section 307 IPC, there can be no offence of attempt to murder. 19. In the case on hand, the prosecution has not been able to prove that the appellant had intention or knowledge to commit murder. From the evidence on record, it is evident that the prosecution has been able to prove that the appellant gave single knife blow on the abdomen of complainant Vishwanath (PW-3). The injury sustained by complainant Vishwanath (PW-3) was grievous in nature. Therefore, the offence comes in purview of Section 326 IPC and not in Section 307 IPC. Therefore, the appellant is guilty for the offence under Section 326 IPC. 20. From perusal of the record, it is clear that the appellant was in jail from 23-03-1993 to 12-05-1993 i.e. 1 month and 19 days and thereafter from 01-02-1997 to 25-06-1997 i.e. near about 4 months and 24 days. Thus, the appellant remained in custody for near about 6 months and 14 days. 21. The incident took place on 20-03-1993 and the appellant was convicted and sentenced on 01-02-1997. The case remained pending near about 20 years. Thus, the appellant remained in custody for near about 6 months and 14 days. 21. The incident took place on 20-03-1993 and the appellant was convicted and sentenced on 01-02-1997. The case remained pending near about 20 years. Looking to the facts and circumstances of the case, I am of the view that ends of justice would be met, if the jail sentence awarded to the appellant is reduced to the period already undergone by him besides imposing fine. 22. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 307 IPC are set aside. Instead thereof, he is convicted under Section 326 IPC and is sentenced to the period already undergone by him. He shall also pay fine of Rs.8,000/- within 4 months, failing which he shall be liable to undergo rigorous imprisonment for 3 months. If any amount is already deposited towards fine, the same shall be adjusted in the amount of fine imposed by this Court today. Out of the total amount of fine, if deposited, a sum of Rs.5,000/- shall be paid to injured/complainant Vishwanath (PW-3) as compensation. Appeal Partly Allowed.