Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 197 (MP)

Suraj v. State of M. P.

2015-02-13

SUSHIL KUMAR GUPTA

body2015
JUDGMENT: Sushil Kumar Gupta, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 28.9.2012 passed by learned Ninth Additional Sessions Judge, Gwalior in Sessions Trial No. 420/2011 convicting the appellants under Section 307/34 and 323 of Indian Penal Code, 1860 (in short "Code, 1860") and thereby sentencing them to suffer seven years' rigorous imprisonment with fine of Rs.2000/- (Rupees Two Thousand), in default, further rigorous imprisonment of six months and to suffer six months, the appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Code, 1973"). 2. In brief, the case of prosecution is that on dated 24.6.2011 at about 12:10 in the night Rajesh was sat on the roof of his house, at that time Kallu Mahore, who belongs to the family of the complainant came and abused Rajesh and pressurized him to compromise in a case otherwise he will kill him. Along with Kallu one more person was also there. When Rajesh denied to compromise, then Kallu along with other co- accused person with an intention to kill Rajesh stabbed him on the head by means of Knife, due to which Rajesh sustained grievous injuries. When complainant shouted then the neighbours assembled and called Ambulance by which Rajesh was taken to Hospital. The complainant Ramshree Bai (PW.1) has made oral report at Police Station, on which the FIR (Ex.P.1) was registered against the accused persons for the offence punishable under section 307/34 of Code, 1860. The police after registering the offence took up the investigation and after its completion a charge-sheet was submitted under sections 307/34 of Code, 1860 in the committal Court which on its turn committed the case to the court of Session and from where it was received by the trial court for trial. 3. The learned Trial Judge framed charges punishable under Sections 307/34 of Code, 1860 against the appellants. Needless to emphasize both the accused persons abjured their guilt and pleaded complete innocence. 4. In order to prove the charges, the prosecution examined as many as nine witnesses and placed Ex.P/1 to P/13 the documents on record. Though the defence of accused person is of false implication. 5. Needless to emphasize both the accused persons abjured their guilt and pleaded complete innocence. 4. In order to prove the charges, the prosecution examined as many as nine witnesses and placed Ex.P/1 to P/13 the documents on record. Though the defence of accused person is of false implication. 5. The learned Trial Court after appreciating and marshalling the evidence came to hold that all the appellants have committed the offence under Sections 307/34 and 323 of Code, 1860 and eventually convicted them and passed the sentence which is mentioned in the impugned judgment. 6. In this manner, the present appeal has been filed by the appellants assailing the judgment of conviction and order of sentence. 7. Learned counsel for the appellants submits that the learned Trial Court mis-appreciated the evidence of eye-witnesses and the judgment is not based on proper appreciation of evidence. It is also submitted that oral evidence of complainant is not supported by medical evidence. At the time of incident; injured Rajesh (PW.2) was under intoxication. There was no injury found in C.T. Scan. Injured Rajesh sustained only simple injury on the head and no injury dangerous to life was found on the head. He further submitted that the learned Trial Court committed error in holding the appellants guilty under section 307 of Code, 1860 because it was not established by the prosecution evidence that intention of appellants were to commit murder of injured Rajesh. In alternate learned counsel for the appellants further submitted that even the case of prosecution is accepted entirely at the most this is the case of under section 324 of Code, 1860. In support of his contention he placed reliance on the judgment of the Hon'ble Apex Court in the case of Pashora Singh and another Vs. State of Punjab, : AIR 1993 SC 1256 and Gopal Singh Vs. State of Uttarakhand : (2013) 7 SCC 545 . 8. On the other hand learned Panel Lawyer for the State justified and supported the judgment of conviction and sentence passed against the appellants and submitted that it was amply proved by the prosecution evidence that appellants attempted to commit murder of Rajesh and prayed for dismissal of appeal. 9. I have heard the learned counsel for the parties and perused the judgment and evidence on record carefully. 9. I have heard the learned counsel for the parties and perused the judgment and evidence on record carefully. Prosecution case mainly rested on the evidence of injured Rajesh (PW.2) and his mother Ramshree Bai (PW.1). Other witnesses Deepak Mahore (PW.3), Brijmohan (PW.4) were the witnesses of memo (Ex.P.7 and Ex.P.8) and seizer of knife (Ex.P.9) did not support the prosecution case, therefore, they were declared hostile. Dr. O.P.S. Chauhan (PW.7), who examined the injured Rajesh in J.A. Group of Hospitals Gwalior and found following injuries: "1. Incised wound over mid forehead "V" shaped 2.2 cm x 3.1 cm x 1 cm muscle deep. 2. Multiple incised wounds over the occipital parietal junction of different size 3.2 x 1 cm to 6.2 x 1 cm six in number. Bone deep. Bleeding present. 10. Dr. O.P.S. Chauhan opined that injuries were caused by hard and sharp edged weapon. He did not give any opinion about the nature of the injuries and stated that final opinion about the nature of injuries could be given only after x-ray examination and opinion of surgeon. His injury report is Ex.P.11. 11. Dr. Jasmeet Singh (PW.9) treated injured Rajesh in Neurosurgery Department stated that on 25.6.2011 C.T. Scan of injured Rajesh was taken, but no injury was found in C.T. Scan and he was discharged from the Hospital on 26.6.2011 because his condition was good. Case-sheet of treatment is Ex.P.13. In cross-examination he admitted that no opinion was given by him because no injury was found in C.T. Scan. 12. After sincerely appreciating the evidence of Dr. O.P.S. Chauhan and Dr.Jasmeet Singh, I am of the opinion that injured Rajesh did not sustain any grievous injury or any injury which was dangerous to life. 14. On coming to the oral evidence of injured Rajesh (PW.2) who stated in his examination-in-chief that before five months in the night at about 11-12'o clock he gone to the roof to search his mother where both the appellants were sleeping. On hearing his voice both woke up and appellant Suraj gave a stone blow to him and both thrown him on the roof then other appellant gave a knife blow on his head. At that juncture his mother came there to save him, then appellants also abused her and beaten her by means of kicks. On hearing his voice both woke up and appellant Suraj gave a stone blow to him and both thrown him on the roof then other appellant gave a knife blow on his head. At that juncture his mother came there to save him, then appellants also abused her and beaten her by means of kicks. He sustained injuries on his head after that appellants fled from the spot by jumping from the roof of the house. 15. He again stated in para 2 of his statement that he had a quarrel with Vijay Mahore, brother of the appellant Kallu and Kallu was pressurized him to compromise in that case, but he denied to compromised, due to this enmity appellant assaulted to him with the knife. 16. Ramshree Bai (PW.1) also supported the testimony of Rajesh (PW.2). She stated in para no.1 of her statement that appellants assaulted Rajesh with knife on head. She has also stated that after fleeing of accused from the spot, she lodged the report (Ex.P.1) then police came and took her son in Ambulance to Hospital. Deepak Mahore (PW.3) and Brijendra (PW.4) in their statement denied the recording of memo about the discovery and recovery of knife from Kallu. These witnesses declared hostile. 17. So far as the testimony of Rajesh (PW.2) and Ramshree Bai (PW.1) are concerned nothing has been brought in their cross- examination to discredit their statements. In cross-examination of Ramshreebai in para 6 one suggestion was put up by the defence that there had a quarrel between Vijay brother of Kallu and her son Rajesh and Vijay beated to her and her son Rajesh. This suggestion admitted by this witness itself proved that the previous enmity and genesis of this incident. 18. The evidence of injured Rajesh (PW.2) stood corroborated from the FIR (Ex.P.1) lodged by her mother Ramshree Bai (PW.1) immediately after the occurrence and the statement of Ramshree Bai (PW.1) also corroborated from the FIR. 19. The evidence of injured Rajesh (PW.2) also finds corroboration from the evidence of Dr. O.P.S. Chauhan (PW.7). 20. On appreciation of above evidence, I am satisfied that it was amply established that appellants assaulted Rajesh with knife and beaten Ramshree Bai with legs. 21. Learned counsel for the appellants submitted that prosecution failed to prove that appellants had any motive against the injured Rajesh. O.P.S. Chauhan (PW.7). 20. On appreciation of above evidence, I am satisfied that it was amply established that appellants assaulted Rajesh with knife and beaten Ramshree Bai with legs. 21. Learned counsel for the appellants submitted that prosecution failed to prove that appellants had any motive against the injured Rajesh. He further submits that there was nothing on record to indicate that appellants were prevented to cause further or serious injuries to Rajesh because of any intervention by somebody. The injuries to Rajesh were not proved to be fatal, grievous or dangerous to his life. 22. It is true that incised wounds were caused by the appellants on the head of Rajesh, but all the aforesaid injuries were simple in nature. If appellants intended to cause the death of Rajesh they were not prevented to fulfill their desire since none intervened to prevent them from doing so. It is true that accused may be held liable for the offence under section 307 of Code, 1860, even if no injury was suffered by victim, but when injuries have been caused to victim the intention or the knowledge of the assailants could be gathered objectively from the nature of injuries on the part of body whereon the injuries were caused. It is important to mention here that Dr. O.P.S. Chauhan (PW.7) did not say that injuries found on the head of Rajesh were grievous or dangerous to his life. In the circumstance of the case in hand, in my opinion it remains in the reason of suspicion whether appellants intended or knew that by their acts they would cause the death of Rajesh, therefore, it would be preferably to hold that they intended to cause hurt to Rajesh with deadly weapons making appellant no.1-Suraj alias Pakoda is liable to punish under section 324 of Code, 1860 and appellant no.2-Kallu alias Raju alias Baba is liable to punish under section 324/34 of Code, 1860. Under such circumstances in the light of the verdict passed by the Hon'ble Apex Court in the case of Pashora Singh (supra) the appellants could not be convicted for the offence punishable under section 307 of the Code. In the case of Pashora Singh (supra) conviction was reduced from offence punishable under section 307 of Code to under section 326 of Code. 23. In the case of Pashora Singh (supra) conviction was reduced from offence punishable under section 307 of Code to under section 326 of Code. 23. In view of the foregoing discussion, the conviction of appellant no.1- Suraj alias Pakoda under section 307 of Code, 1860 is hereby altered to section 324 of Code, 1860 and the conviction of appellant no.2-Kallu alias Raju alias Baba under section 307/34 of Code, 1860 is hereby altered to section 324/34 of Code, 1860 for causing injury to Rajesh. The conviction of appellants on other count i.e. section 323 of the Code for causing injuries to Ramshree Bai is affirmed. So far as the question of sentence is concerned, learned counsel for the appellants submitted that incident in question occurred in the year 2012 and they have already suffered the agony of trial before the Trial Court as well as Appellate Court and they are in custody since 29.6.2011 and they have already suffered more than 3 1/2 years of jail sentence which is maximum sentence provided under section 324 of Code, 1860, therefore, according to me, it would be appropriate that they shall be released for the period they have already undergone. However, I have not interfered with the quantum of amount of fine which has been imposed by the learned Trial Court. Accordingly, If these appellants have already undergone the sentence which I have imposed, they be set at liberty forthwith, if not required in any other case. 24. Accordingly, the appeal is hereby allowed in part.