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Madhya Pradesh High Court · body

2017 DIGILAW 436 (MP)

Veera Alias Bheera v. State of M. P.

2017-04-03

G.S.AHLUWALIA

body2017
JUDGMENT : G.S. AHLUWALIA, J. 1. This criminal appeal has been filed under section 374 of CrPC 1973 against the judgment dated 29.07.2016 passed by Sessions Judge, Gwalior in ST No. 224/1990 by which the appellant has been convicted under Section 307 of IPC and has been sentenced to undergo the rigorous imprisonment of five years and a fine of Rs. 1000/- with default imprisonment. 2. Before adverting to the facts of the case, it would be necessary to consider the conduct of the appellant during the trial. On 04.10.1990, the record of the case was received by the Sessions Court after committal. The charges were framed by order dated 22.11.1990. The evidence of the witnesses were recorded and statement of the appellant under Section 313 of IPC was also recorded and, thereafter, the appellant prayed for sometime to examine the defence witnesses. On 18.09.1996, the appellant did not appear before the Trial Court and, accordingly, his personnel bond and bail bond were forfeited and arrest warrants were issued. Thereafter, even the co-accused Sukha did not appear before the Trial Court and, accordingly, as there was no possibility of arrest of the appellant and the co-accused Sukha in the near future, therefore, by order dated 13.10.1999, the Trial Court issued perpetual arrest warrant against the appellant and the co-accused Sukha and sent the record to the record room. It appears that on 16.05.2016, the appellant was arrested by the police and was produced before the Trial Court. As on earlier occasion, the appellant had prayed for time for examining the witnesses in his defence, therefore, by order dated 22.06.2016 and 05.07.2016, an opportunity was given to produce the defence witnesses. On 13.07.2016, the counsel for the appellant again prayed for time for examining the witnesses in his defence but as the matter was an old one and sufficient opportunities were given to the appellant to examine witnesses in his defence, therefore, the Trial Court rejected the prayer for grant of more opportunities for examining the witnesses in his defence and fixed the case for final arguments on 19.07.2016. On 19.07.2016 again a short adjournment was sought for final arguments and, accordingly, on 22.07.2016, the final arguments were heard and the judgment has been passed on 29.07.2016. Thus, it is clear that this incident is of 1990. On 19.07.2016 again a short adjournment was sought for final arguments and, accordingly, on 22.07.2016, the final arguments were heard and the judgment has been passed on 29.07.2016. Thus, it is clear that this incident is of 1990. The charge-sheet was filed on 01.10.1990 and, thereafter, the case was committed to the Sessions Court and the evidence of the witnesses as well as the statement of the accused under section 313 of CrPC 1973 were recorded and ultimately the appellant did not appear before the Trial Court on 18.09.1996 and, accordingly, the arrest warrants were issued and ultimately, by order dated 13.10.1999, perpetual arrest warrants were issued and the appellant has been taken into custody on 16.05.2016. It is also not out of place to mention here that the co-accused Sukha is still absconding. As the incident had taken place in the year 1990 and the appellant did not appear before the Trial Court on 18.09.1996 and ultimately perpetual arrest warrants were issued on 13.10.1999 and the appellant could be arrested with great difficulty in the year 1996, therefore, it would be proper to hear this matter finally instead of keeping it pending. The counsel for the appellant also prayed that the matter be heard finally. Accordingly, under these circumstances, the case is heard finally. 3. The prosecution story in short is that on 01.02.1990, the complainant Mansa Ram lodged a FIR on the allegation that at about 4:00 PM, he had gone to his field and was having a double barrel gun with him. When he was coming back from the field, at that time, the co-accused Shukha Punjabi and the appellant Mira Punjabi asked for the gun for firing. When the complainant refused to handover the gun to the appellant and the co-accused Sukha, the co-accused Shukha Punjabi caught hold the complainant from his back and exhorted the appellant that he should kill the complainant. It was alleged that the appellant, with an intention to kill the complainant, assaulted him by means of farsa for thrice causing injuries on the occipital area in the right side of the head above the ear, one injury on the right shoulder and one injury on the right arm. The complainant shouted for seeking help and, at that time, one Prakash and Suresh came there and intervened in the matter. The complainant shouted for seeking help and, at that time, one Prakash and Suresh came there and intervened in the matter. On the basis of the FIR lodged by the complainant, the accused persons were arrested. The police, after recording the statements of the witnesses and completing the investigation, filed the charge-sheet. 4. The Trial Court, by order dated 22.11.1990, framed charges against the appellant and the co-accused Sukha for offences punishable under Sections 307, 394/34 of IPC. 5. The appellant abjured his guilt and pleaded not guilty. 6. The prosecution, in support of its case, examined Prakash (PW-1), Suresh (PW-2), Dr. Prem Narayan Kuber (PW-3), Mansa Ram (PW-4), Kisan Lal (PW-5), Someshwar Singh (PW-6), J.P. Pathak (PW-7) and Karan Singh Rawat (PW-8). 7. The appellant did not examine any witness in his defence in spite of repeated opportunities. 8. The question which arises for determination in the present appeal are as follows:- (1) Whether the complainant Mansa Ram (PW-4) had received any injuries? (2) Who is the author of the injuries. (3) What is the nature of the injuries sustained by the complainant Mansa Ram. 9. So far as the injuries sustained by the complainant Mansa Ram are concerned, the prosecution has examined Dr. Prem Narayan Kuber (PW-3) who has stated in his evidence that on 01.02.1999, he was posted in Dabra on the post of Assistant Surgeon and, on that date, the injured was brought by Constable Shiv Kumar and on medical examination, he found the following injuries:- (1) Incised wound 9 cm x 1 cm x bone deep and bone was found cut beneath wound on middle part of the head. (2) Incised wound on occipetal area of head of 8 cm x 1 cm x bone deep and the bone was found cut beneath wound. (3) Incised wound 3 cm x 1 cm x skin deep on right side of head and above ear. (4) Incised wound of 5 cm x 1 cm x 1 cm on right shoulder and (5) An incised wound 4 cm x 1 cm x 1 cm on right arm. 10. All these injuries were caused by sharp cutting object. The copy of the MLC report is Ex.P/3. 11. (4) Incised wound of 5 cm x 1 cm x 1 cm on right shoulder and (5) An incised wound 4 cm x 1 cm x 1 cm on right arm. 10. All these injuries were caused by sharp cutting object. The copy of the MLC report is Ex.P/3. 11. The injured was sent for x-ray and in x-ray, fracture on frontal and occipetal bone of skull, fracture of Achronomious on right scapular region was seen and the x-ray report is Ex.P/4 and the x-ray plates are Ex.P/5 and P/6. Dr. Prem Narayan Kuber (PW-3) has specifically stated that as the injuries were caused on the vital parts of the body of the injured, therefore in the ordinary course of nature, these injuries were dangerous to life. This witness has further stated that dying declaration of the complainant Mansa Ram (PW-4) was recorded by the Tahsildar and this witness had given a certificate to the effect that the injured is in fit state of mind. In cross-examination, this witness has admitted that the police did not send the weapon for query and the x-ray of the complainant was not done by this witness but he has merely given the report on the basis of the x-ray plate which were placed before him. Although, this witness was cross-examined in detail but the MLC report of the injured was not challenged in the cross-examination of this witness. Thus, it is clear that the injured Mansa Ram (PW-4) had received five incised wound out of which three were on the head and one was on the shoulder and fifth one was on the right arm. Beneath injuries no. 1 and 2, bone was found cut and, accordingly, in the x-ray, the fracture was found. Although, this witness has admitted in his cross-examination that the x-ray of the complainant Mansa Ram was not done either by him or in his presence but in view of the fact that in the MLC itself, it was specifically mentioned that the bone, beneath wound no. 1 and 2, were found cut, clearly shows that the injured Mansa Ram (PW-4) had suffered fractures because of the injuries caused by the appellant. 12. So far as the question that who is the author of these injuries is concerned, the prosecution has examined Mansa Ram (PW-4), Prakash (PW-1), Suresh (PW-2). 13. 1 and 2, were found cut, clearly shows that the injured Mansa Ram (PW-4) had suffered fractures because of the injuries caused by the appellant. 12. So far as the question that who is the author of these injuries is concerned, the prosecution has examined Mansa Ram (PW-4), Prakash (PW-1), Suresh (PW-2). 13. As the Trial Court has acquitted the appellant for offence under Section 394 of IPC and, therefore, the facts of this case will be considered only in order to find out that whether the prosecution has succeeded in establishing the guilt of the appellant for an offence under Section 307 of IPC or not. 14. Mansa Ram (PW-4) is the victim and in his evidence, he has stated that on 01.02.1990, it was the evening and was the time of sunset and he had gone to his field for protection of crop and when he was coming back, he was having a double barrel gun with him. At that time, the appellant and the co-accused Sukha snatched his gun from his hand and the appellant assaulted the injured by means of a farsa on his head, shoulder and hand. In the meanwhile, the nearby villagers Suresh and Prakash came there and the accused persons ran away by taking his gun with him. The FIR Ex.P/8 was lodged by him and, thereafter, he was sent for medical examination. His statement was recorded by the Tahsildar in the hospital itself and he remained admitted in the hospital for seven days. This witness was cross-examined. He has specifically stated that he had informed the Tahsildar about the nature of the assault and by the time the witnesses Prakash and Suresh reached near the complainant, the accused persons had ran away. It is further stated by this witness, in his cross examination, that the FIR was lodged in the police station itself and, thereafter, he was shifted to hospital and the remaining written proceedings took place in the hospital. He denied that the FIR was lodged on the next date in the hospital. He further denied the suggestion given by the counsel for the appellant that the appellant had not snatched the gun and he had not assaulted him. He further denied that he had fall unconscious and he was taken to the police station and the hospital. 15. He denied that the FIR was lodged on the next date in the hospital. He further denied the suggestion given by the counsel for the appellant that the appellant had not snatched the gun and he had not assaulted him. He further denied that he had fall unconscious and he was taken to the police station and the hospital. 15. Prakash (PW-1) has stated that at the relevant time, he was in his field which is situated near Chinnaur Road and Suresh (PW-2) was also with him. He further stated that the appellant and the co-accused Sukha are not known to him as they are the resident of a nearby village. It is stated by this witness that along with Mansa Ram, the appellant and the co-accused Sukha were also coming and the complainant Mansa Ram was caught hold by the co-accused Sukha and the appellant started assaulting him by farsa. The victim Mansa Ram started shouting and, thereafter, this witness and Suresh (PW-2) rushed towards the place of incident and, by that time, the accused persons ran away after snatching the gun from Mansa Ram. This witness has further stated that the co-accused Sukha had fired a gunshot towards him from the gun which was snatched from the injured Mansa Ram. Thereafter, the injured Mansa Ram went to the police station along with his son Kisanlal to lodge the FIR. It was further denied that any farsa was seized from the possession of the appellant. He further denied that the seizure memo Ex.P/1 bears his signatures. It is important to mention here that since this witness was not declared hostile, so far as the seizure of farsa is concerned, by the prosecution, therefore, this part of the evidence is binding on the prosecution. In cross-examination, this witness has admitted that one criminal case is pending against him in the Sessions Court, Gwalior. At the time of the incident, the son of the complainant Kisanlal was not present on the spot. The field of Balram, Kasi, Sambhu Dayal etc. are situated at nearby place of incident. He further stated that except the appellant and the co-accused Sukha, there was no other person on the spot. This witness has further stated that he had also gone along with injured to lodge the FIR and the FIR was lodged in his presence. The field of Balram, Kasi, Sambhu Dayal etc. are situated at nearby place of incident. He further stated that except the appellant and the co-accused Sukha, there was no other person on the spot. This witness has further stated that he had also gone along with injured to lodge the FIR and the FIR was lodged in his presence. When the FIR was lodged, the victim had already regained some consciousness. He further denied the suggestion given by the counsel for the appellant that this witness has falsely implicated the appellant. 16. Suresh (PW-2) has also supported the prosecution case and his evidence is also to the effect that he was working in his field and was about 400 steps away from the place of incident. At that time, he heard the shouts of the victim Mansa Ram. The co-accused Sukha caught hold the victim Mansa Ram and the appellant assaulted the injured by means of farsa. The co-accused Sukha snatched the gun from the hand of the complainant Mansa Ram. It is further stated by this witness that when he enquired from the victim about the incident, then he told him that as the appellant and the co-accused were asking for his gun for firing and since he had refused to give the same, therefore, he has been assaulted. When this witness tried to chase the accused persons, then the co-accused Sukha, with an intention to terrorize the witnesses, had also fired at them. This witness was also cross-examined in detail. In cross-examination, he admitted that the agricultural fields of other persons are also situated near the place of incident. He further admitted that before he could reach on the spot, the gun from the hand of Mansa Ram was already snatched. A suggestion was given to this witness that in fact it is Mansa Ram who had informed that the appellant had assaulted him but that suggestion was specifically denied by this witness and this witness specifically stated that in fact he himself had seen the incident. It is further stated by this witness that when they picked up the complainant, he was in an unconscious condition but he regained consciousness while they were taking him to the police station. It is further stated that the victim Mansa Ram had lodged the FIR in presence of this witness. 17. It is further stated by this witness that when they picked up the complainant, he was in an unconscious condition but he regained consciousness while they were taking him to the police station. It is further stated that the victim Mansa Ram had lodged the FIR in presence of this witness. 17. Thus, from the evidence of Mansa Ram (PW-4), Prakash (PW-1) and Suresh (PW-2), it is clear that when the accused persons demanded gun from Mansa Ram for the purposes of firing the same and when the injured Mansa Ram refused to hand over the gun, he was assaulted by the appellant. The evidence of these witnesses is further corroborated by the evidence of Kisanlal (PW-5) who has stated that he was near the garden of one Magju Ram, he found that his father was being brought by Prakash and Suresh. His father was unconscious at that time and he was informed by Prakash and Suresh that the appellant and the co-accused Sukha had assaulted his father by means of farsa. This witness has further stated that his father regained consciousness when he reached to the police station and from there his father was shifted to the hospital. 18. Thus, it is clear that the evidence of Prakash (PW-1) and Suresh (PW-2) is corroborated by the evidence of Kisanlal (PW-5) who has specifically stated that Prakash and Suresh had brought his father in an unconscious condition. Therefore, the presence of Suresh and Prakash on the place of the incident cannot be ruled out. 19. Under these circumstances, it is clear that the appellant had assaulted injured Mansa Ram by means of farsa. 20. J.P. Pathak (PW-7) is Investigation Officer who was posted as Town Inspector, Police Station Dabra, District Gwalior. On 02.02.1990, he prepared the spot map Ex.P/2 and on 07.02.1990, vide arrest memo Ex.P/4), he arrested the co-accused Sukha and the appellant. He further stated that at the time of the arrest, he had seized the farsa from the possession of the appellant and a gun from the possession of the co-accused Sukha. The seizure memo of farsa is EX.P/01. During the investigation, he had recorded the statements of the witnesses and had seized the blood stained earth as well as the plain earth from the spot vide seizure memo Ex.P/11. The seizure memo of farsa is EX.P/01. During the investigation, he had recorded the statements of the witnesses and had seized the blood stained earth as well as the plain earth from the spot vide seizure memo Ex.P/11. This witness has also identified the farsa as "Article A" which was seized from the possession of the appellant. This witness was cross-examined but no question was put to this witness disputing the seizure of farsa from the appellant. 21. Someshwar Singh (PW-6) has stated that on 01.02.1990, he had written the FIR which is Ex.P/8 and the FIR was lodged by the complainant Mansa Ram. After recording the same, he had read over the FIR to the complainant Mansa Ram. In the cross-examination, this witness has specifically denied the suggestion given to him that the FIR was lodged on the next date in the police station. 22. So far as the seizure of farsa from the possession of the appellant is concerned, Prakash (PW-1) had specifically stated that no farsa was seized from the appellant in his presence and even the seizure memo Ex.P/1 do not contain his signatures. Although, J.P. Pathak (PW-7), who had investigated the matter, had specifically stated that the farsa was seized from the possession of the appellant vide seizure memo Ex.P/1 and further he was not cross-examined on this issue by the counsel for the appellant but as the Trial Court has given a finding that since Prakash (PW-1) was not declared hostile by the prosecution on the question of non-seizure of farsa, therefore, the prosecution has failed to prove the seizure of farsa from the possession of the appellant. 23. It is submitted by the counsel for the appellant that once the prosecution has failed to prove the seizure of the weapon from the possession of the appellant, then the evidence of the prosecution witnesses with regard to assault made by the appellant becomes doubtful and, therefore, the prosecution evidence should be discarded. 24. The submissions made by the counsel for the appellant is misconceived and is hereby rejected. It is well established principle of law that non-seizure of a weapon of offence would not make the prosecution evidence unreliable. 25. The Supreme Court in the case of Mohd. 24. The submissions made by the counsel for the appellant is misconceived and is hereby rejected. It is well established principle of law that non-seizure of a weapon of offence would not make the prosecution evidence unreliable. 25. The Supreme Court in the case of Mohd. Jamiludin Nasir vs. State of West Bengal, (2014) 7 SCC 443 , Amit vs. State of U.P. (2012) 4 SCC 107 , Ram Singh vs. State of Rajasthan, (2012) 12 SCC 339 , Nankaunoo vs. State of U.P. (2016) 3 SCC 317 , Mritunjoy Biswas vs. Pranab @ Kuti Biswas and Another, (2013) 12 SCC 796 has held that the non-recovery of the weapon of crime would not be sufficient to throw the prosecution case over Board. When the evidence which has been laid by the prosecution is reliable and worth reliance, non-recovery of the crime weapon would not be fatal to the prosecution case. 26. Thus, if the direct evidence is reliable and beyond any doubt, then non-recovery of the weapon of offence will not make the prosecution case unreliable. 27. Under these circumstances, even if the Trial Court has found that the prosecution has failed to prove the recovery of farsa from the possession of the appellant, that by itself would not be sufficient to hold the direct evidence, which has been led by the prosecution as unreliable. If the evidence of Mansa Ram (PW-4), Prakash (PW-1) and Suresh (PW-2) is considered in the light of the evidence of Kisanlal (PW-5) and the fact that the FIR was lodged at about 19:15 that means within less than 2 hours, the name of the appellant and the co-accused is mentioned in the FIR as the assailants, this Court is of the view that the evidence of Mansa Ram (PW-4), Prakash (PW-1), Suresh (PW-2) is worth reliance and hence the appellant is held guilty of causing injury to the injured Mansa Ram. 28. The next question for consideration is that what is the nature of the injuries which were caused by the appellant to Mansa Ram (PW-4). 29. In order to attract the offence under Section 307 of IPC, the prosecution must prove that the offence was committed by the accused with an intention or knowledge that it may cause death or hurt. The next question for consideration is that what is the nature of the injuries which were caused by the appellant to Mansa Ram (PW-4). 29. In order to attract the offence under Section 307 of IPC, the prosecution must prove that the offence was committed by the accused with an intention or knowledge that it may cause death or hurt. The intention or knowledge on the part of the accused is to be inferred from the role played by an accused in the offence. 30. In the present case, as many as five incised wounds were caused by the appellant by means of a farsa and three injuries were on the head of the injured which is the vital part of the body. The forth incised wound was on the right shoulder and the fifth incised wound was on the right arm. Thus, it is clear that almost four injuries out of five were caused by the appellant on the head or the shoulder of the injured and fractures of bone were also found. 31. Thus, this Court is of the view that the manner in which the repeated blows were given by the appellant on the head and the shoulder of the injured Mansa Ram clearly shows that he was either having the intention or the knowledge that the injuries may cause death of the injured Mansa Ram (PW-4), therefore, this Court is of the considered opinion that looking to the genesis of the offence as well as the role played by the appellant by causing repeated blows on the vital part of the injured coupled with the fact that the blows were given with such a force that the bone of the head underneath the two wounds were cut clearly shows that the intention of the appellant was to kill the injured Mansa Ram (PW-4). 32. Accordingly, it is held that the prosecution has succeeded in establishing that the appellant had committed an offence punishable under Section 307 of IPC. 33. Accordingly, the appellant is held guilty for offence under Section 307 of IPC. 34. So far as the question of sentence is concerned, the Trial Court has awarded a rigorous imprisonment of five years and a fine of Rs. 1000/- with default imprisonment. 33. Accordingly, the appellant is held guilty for offence under Section 307 of IPC. 34. So far as the question of sentence is concerned, the Trial Court has awarded a rigorous imprisonment of five years and a fine of Rs. 1000/- with default imprisonment. The maximum punishment provided in Section 307 of IPC is imprisonment for life or for a term which may extend to 10 years but Section 307 of IPC do not provide minimum sentence which is to be imposed. Thus, it becomes the duty of the Court to consider the certain factors while imposing the sentence. 35. Once the legislature has bestowed upon the judicial discretion in the sentencing policy, then the discretion must be exercised by the Court with utmost care and caution by keeping in mind the nature and magnitude of the offence as well as the conduct of the appellant. 36. In this case, the following circumstances would emerge:- (1) The appellant and the co-accused demanded the gun of the injured for firing the same and the injured as a responsible citizen of India refused to hand over his gun to the appellant and the co-accused. (2) On refusal by the complainant, the co-accused caught hold the injured from his back and exhorted the appellant to kill the injured. (3) The appellant, by means of a farsa (chopper) assaulted on the head of the injured for three times as well as on the right shoulder of the injured and on the right arm of the appellant and the injuries were caused with so much of force that the bone of the occipital region of the injured was found cut beneath the wound. 37. The appellant, during trial, absconded and remained absconding for about 10 years and could be arrested with great difficulty only in the years 2016. 38. Although the subsequent conduct of the appellant in not appearing before the Trial Court may not be a material factor for considering the question of sentence but the sentencing policy has to keep in mind the deterence also. The law must adopt the corrective machinery. 40. 38. Although the subsequent conduct of the appellant in not appearing before the Trial Court may not be a material factor for considering the question of sentence but the sentencing policy has to keep in mind the deterence also. The law must adopt the corrective machinery. 40. Even after committing such a heinous offence, if the appellant had no regards for the law and from the various order sheets of the Trial Court, it appears that during the pendency of the trial, the appellant also remained in judicial custody in connection with other criminal case clearly shows that the appellant did not improve himself even after committing several criminal offences. 41. Considering the totality of the circumstances, this Court is of the view that the Trial Court has already adopted a lenient view by awarding sentence of rigorous imprisonment of five years and a fine of Rs. 1000 with default imprisonment and, therefore, the sentence of rigorous imprisonment of five years and a fine of Rs. 1000/- does not call for any interference. 42. Accordingly, the judgment and sentence passed by the Trial Court is hereby affirmed. 43. The appeal fails and is hereby dismissed.