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Madhya Pradesh High Court · body

2020 DIGILAW 319 (MP)

Gopal Singh v. State of M. P.

2020-02-27

VIRENDER SINGH

body2020
JUDGMENT 1. The present appeal is preferred by the appellants against the judgment and order dated 18.9.2019 rendered in Sessions Trial No. 148/2018 by 3rd Additional Sessions Judge, Dewas, whereby the learned trial Court convicted the appellants under sections 307, 307/34 (both two counts) of the IPC for causing life threatening injuries to Gopal and Shankar and has awarded 7-7 years RI for each offence and fine of Rs. 1000/-1000/-. In default of further to undergo two months RI. 2. The prosecution case in brief is that there was some dispute between the complainant and the appellants on account of some money transaction. On the date of incident, when the complainant saw the appellants ambushing on the way, when he was going to the house of his sister, he apprehended that while returning home they may cause some incident, therefore he requested his brother-in-law Shankar to leave him upto the border of his village. When they were coming back at about 09:30 a.m., the appellants assaulted them. They were having sticks and swords in their hands stating that they will kill the complainant, both the appellants inflicted sword and stick and caused injuries on the head and hands of the complainant Gopal and Shankar. They both were taken to the hospital. Gopal lodged Dehati Nalishi Ex.P-1, Crime No.165/2018 was registered by deducing FIR vide Ex.P-20, both the injured were sent to the hospital vide requisition Ex.P-23, Dr.Pawan Patidar PW/9 examined them and found 1-1 incise wound on the backside of head of Gopal and Shankar. He also found abrasion on right index finger of Gopal. Dr. Patidar advised for X-ray/CT Scan. No bone injury was fond by Dr.Vikas Gupta PW8 on CT Scan. Report of Dr. Patidar is Ex.P-12-13, their admission slip and treatment papers are Ex.P-14-19. CT Scan report authored by Dr.Gupta PW8 is Ex.P-10-11. The police seized shirt and baniyan of Gopal vide seizure memo Ex.P-2, plain and blood stained soil from the spot vide seizure memo Ex.P-3. The police apprehended the appellants vide arrest memo Ex.P-4-5, recorded their memorandum statement Ex.P-5-6 and recovered Lathi from Gopal and sword from Dhansingh vide seizure Memo Ex.P-2-3. The police visited the spot and prepared spot map Ex.P-8, recorded statement of witnesses, send the seized article to the FSL vide letter Ex.P-23. FSL report is Ex.P-24. FSL confirms presence of human blood on the article sent to it. The police visited the spot and prepared spot map Ex.P-8, recorded statement of witnesses, send the seized article to the FSL vide letter Ex.P-23. FSL report is Ex.P-24. FSL confirms presence of human blood on the article sent to it. After completing the investigation, the police filed charge sheet. 3. The appellants were charged under sections 341, 307 (two counts), 307/34 (two counts) of the IPC, in addition, appellant Dhansingh was also charged under section 25(1B) (b) of the Arms Act. After the trial, the charge under section 341 of the IPC and under section 25(1B)(b) of the Arms Act were not found proved and the appellants were acquitted from those charges but the offence under sections 307, 307/34 of the IPC was found proved and the appellant were convicted and sentenced as stated in para No.1 above. 4. The appellants have preferred this appeal on several grounds but during the arguments learned counsel for the appellants submitted that from the evidence produced by the prosecution for the offence under section 307 of the IPC is not made out. At the most, offence under section 324 of the IPC is made out. Both the appellants and the complainant have compromised the case. The compromise is filed and is verified by the Principal Registrar of this Court, therefore, the appellants be acquitted in the wake of compromise between the parties or their sentence be reduced to the period already undergone, which is more than six months. 5. Learned public prosecutor has supported the judgment. 6. In the wake of arguments advanced by the learned counsel for the appellants, this Court has examined the evidence produced by the prosecution before the trial Court with a limited purpose as to whether the offence under sections 307, 307/34 of the IPC is made out or not. 7. Before the trial Court, none of the injured namely Gopal PW1 and Shankar PW4 or the eye-witnesses Jitendra PW5 (son of Shankar) have stated that intention of the appellants was to kill them. Other witnesses Shivpal PW2, Dharmendra PW3, Mohansingh PW7 have not supported the case of the prosecution and have been declared hostile. Dr. Patidar PW9 who has examined the injured Gopal and Shankar medically have found incise wound on the back side of head on Gopal and Shankar and abrasion on left index finger of Gopal. Other witnesses Shivpal PW2, Dharmendra PW3, Mohansingh PW7 have not supported the case of the prosecution and have been declared hostile. Dr. Patidar PW9 who has examined the injured Gopal and Shankar medically have found incise wound on the back side of head on Gopal and Shankar and abrasion on left index finger of Gopal. He advised X-ray/CT Scan of both the injured and stated that the opinion regarding nature of the injury will be given after Xray/CT scan report. On CT Scan, Dr. Vikas Gupta, found no bone injury. There is nothing on record that any of he Doctor had ever opined that the injury was dangerous to the life in any manner. Thus, there is neither any direct evidence that the intention of the appellants were to kill the complainant Gopal and his companion Shankar nor there is any scientific/medical evidence that any of the injury of the injured Gopal and Shankar was dangerous to the life in any manner or there is nothing to infer the conclusion that the injury was dangerous to the life. 8. The trial Court has discussed this issue in paras No. 51 to 54 of the impugned judgment considering that the injury was caused by sharp edged weapon on the vital part of the body, therefore, it can be inferred that the intention of the appellants was to cause death or at least they were having knowledge that by their act they may cause death of the complainant and his companion, therefore, the act can be considered to the effect that the appellants had caused injury knowingly that by that injury they may cause death, therefore, their act falls within the scope and ambit of section 307 of the IPC but looking to the nature of injury and absence of any direct evidence, this conclusion is not sustainable in the eyes of law, therefore, needs correction. 9. After going through the entire evidence produced by the prosecution, particularly the statement of Gopal, Shankar and Jitendra, who all three were the best witnesses to say as to with what intention and purpose the injuries were caused to them and also the statements of Dr. Patidar and Gupta, in the considered opinion of this Court, injury cannot be considered dangerous to life. Therefore, the trial Court has erred in convicting the appellants under sections 307 and 307/34 of the IPC. 10. Patidar and Gupta, in the considered opinion of this Court, injury cannot be considered dangerous to life. Therefore, the trial Court has erred in convicting the appellants under sections 307 and 307/34 of the IPC. 10. Considering the alternate prayer of the appellants and looking to the compromise between the parties and keeping in view six months sentence already served out by the appellants, this Court find it appropriate to accede the prayer of the petitioner to reduce their sentence to the period already undergone. 11. In view of the aforesaid, the appeal is partly allowed. 12. The conviction of the appellants is converted from sections 307, 307/34 of the IPC to sections 324 and 324/34 of the IPC and their sentence is reduced to the period already undergone with fine awarded by the learned trial Court. 13. The appellants are in jail. They be set at liberty forthwith, if not required in any other case. 14. The order of trial Court regarding disposal of the case property is hereby confirmed. 15. With the aforesaid, the present appeal stands partly allowed and disposed off.