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2022 DIGILAW 1259 (ALL)

Santram v. State of U. P.

2022-08-08

KARUNESH SINGH PAWAR

body2022
JUDGMENT : 1. Heard Shri Raj Kumar Sharma, learned amicus curiae for the appellant and Shri S.K. Ojha, learned A.G.A. for the State. 2. The present jail appeal has been filed against the judgment and order dated 27.02.2019 passed by Additional Sessions Judge, Meerut in Session Trial No. 277/2017, crime No. 390/2016, under Sections 452/307/504/506 I.P.C., P.S. Hastinapur, District Meerut whereby the appellant has been convicted under Sections 307 I.P.C. to undergo seven years simple imprisonment with a fine of Rs.2000/-, under Section 452 I.P.C. to undergo two years of simple imprisonment with a fine of Rs.1000/-, under Section 504 I.P.C. to undergo two years of simple imprisonment with a fine of Rs.1000/- and under Section 506 I.P.C. to undergo two years of rigorous imprisonment with a fine of Rs.1000/-, with default provisions. 3. The prosecution case as per the written report is that the brother-in-law of Raju son of the informant Kanwar Pal came since few days to do the agricultural work. Santram (accused-appellant) who is from the village of the informant and is a scoundrel person by threatening to Raju, he used to take money for drinking liquor. Today on 21.10.2016 in the evening Santram demanded money for liquor and when Raju did not gave money, then Sant Ram threatened him to teach a lesson. After sometime at around 6:20 PM, Raju, the complainant and his son Kanwar Pal were talking inside the house, then Sant Ram came abusing inside the house with a knife in his hand forcibly and by telling that he will not leave Raju alive today, he after catching hold of Raju with an intent to kill attacked from knife in his abdomen. In a pursuit to save by the complainant, the second blow was inflicted by the appellant in the stomach of Raju and as a result thereof his intestine came out. While raising alarm, the complainant tried to catch, the accused Santram turned and ran hurriedly and in this process, in the iron gate his head crushed, still he ran away. Raju was taken from ambulance. After this a written report given by the complainant Vijay Pal and on the basis of that chik F.I.R. was registered on the same day. 4. The injured Raju was examined at Community Health Centre, Hastinapur, Meerut. Raju was taken from ambulance. After this a written report given by the complainant Vijay Pal and on the basis of that chik F.I.R. was registered on the same day. 4. The injured Raju was examined at Community Health Centre, Hastinapur, Meerut. He received incised wound 9 cm x 2 cm depth on the left side of abdomen, 12 cm below left nipple. The second injury was also an incised wound 2 cm x 5 cm, bone depth right side of chest 13 cm below right nipple. These injuries were kept under observation. Doctor opined that the injury caused by a sharp edged object and bleeding was fresh. A supplementary report was prepared wherein x-ray of chest and ultrasound were done which were found to be normal. The investigating officer after taking examination of the prosecution witnesses prepared the site plan and after completing the investigation has submitted the charge sheet under Section 452/307/504/506 I.P.C. Learned trial court vide order dated 21.06.2017 has framed the charges on the appellant-accused under Section 452/307/504/506 I.P.C. 5. PW-1 in his examination-in-chief has reiterated the prosecution version written in the written report clearly stating that Santram with a knife in his hand came inside the house and with an intent to kill caused two blows on the stomach of Raju and prior to that on the same day i.e. 21.10.2016 Santram demanded money from Raju for drinking liquor and when Raju refused to pay, Santram after extending threats went away. In the cross, he has stated that he had not seen Santram abusing and threatening Raju. He has also stated that money was not demanded in front of him. It has been further stated that the incident took place in his house and when he came out from the house he saw Santram running after assaulting Raju with knife, however, had not seen Santram stabbing Raju. He has further stated that apart from him and his son there was no one else. 6. PW-2 is Raju (injured witness) has stated that on 21.10.2016 in the evening Santram demanded money from him for drinking liquor which he refused to give and then Santram threatened him to teach lesson and went away. He has further stated that apart from him and his son there was no one else. 6. PW-2 is Raju (injured witness) has stated that on 21.10.2016 in the evening Santram demanded money from him for drinking liquor which he refused to give and then Santram threatened him to teach lesson and went away. After some time, at about 6:20 PM, while he was sitting with PW-1 and his son inside their house and were talking, then Santram armed with knife abusing forcibly came inside the house and told him that he will not leave him leave him alive today. After saying this, with an intent to kill, he attacked upon him with knife which came in his stomach and he got injured. After raising alarm, the accused-appellant Santram ran away. In the cross, he has stated that he was attacked by Santram twice in the stomach. He has lastly stated that after some time Rishipal also came there. 7. PW-3 Kanwar Pal, in chief has supported the prosecution case and while reiterating the prosecution version, he has also said that in the evening around 6 PM Santram came inside his house and started demanding money from Raju for drinking liquor. Upon refusal by Raju, he went away abusing. After some time he came armed with knife and abusing forcibly entered into their house and told Raju that today he will not leave him alive and gave two knife blows in the stomach of Raju. Upon alarm being raised, the villagers came and Rishipal also came. In the cross, he has stated that he did not see Santram talking to Raju and when he came out, Rishipal was coming to his house. 8. PW-4 Vijay Kumar is a formal witness who has proved chik F.I.R. and primary GD. 9. PW-5 is Rishi Pal Singh in whose presence at the time of assault has been denied by PW-1, PW-2 and PW-3 and all three witnesses have said that he came after assault was already made. 10. PW-6 is doctor Satish Chandra who has medically examined the injured. He further stated that the injuries have come from sharp edged weapon, however, are simple in nature. He has also said that two incised wounds were found on the body of the injured and such injury may not cause death. 11. 10. PW-6 is doctor Satish Chandra who has medically examined the injured. He further stated that the injuries have come from sharp edged weapon, however, are simple in nature. He has also said that two incised wounds were found on the body of the injured and such injury may not cause death. 11. PW-7 Gaurav Gupta who conducted the operation of the injured and prepared a supplementary report. He has also stated that on the basis of supplementary report, he could not say that on which part of the stomach, the injured sustained injuries. He has denied the suggestion that the injuries could not have caused death. He further denied suggestion that the injuries were simple in nature. 12. PW-8 is the investigating officer who has conducted the investigation and has supported the prosecution case. The statement of the accused under Section 313 Cr.P.C. were recorded where his defence was of denial and while denying the incident he has stated that he has been falsely implicated due to enmity. 13. Learned counsel for the appellant submits that there is inconsistency in the statement of the prosecution witnesses. The medical report does not corroborate the prosecution version and nature of the injury does not attract the offence under Section 307 I.P.C. 14. Learned A.G.A. has opposed this contention submitting that grievous injury is not a sin qua non for bringing home the charges under Section 307 I.P.C. 15. Perusal of the site plan which is exhibited as Exh. Ka-4 prepared by the investigating officer, shows that the occurrence has been committed inside the house of Vijay Pal Singh (PW-1). The testimony of the injured witness Raju corroborates the prosecution case who has clearly said that he had been assaulted twice by the appellant. PW-1 in his chief, though has claimed himself to be eye witness of the occurrence, however, in his cross, he has again said that the incident took place inside his house and he did not see Santram talking to Raju or abusing or threatening him rather when he came out, he only saw Santram running after stabbing Raju. Thus, PW-1 though has not seen the appellant stabbing Raju, however, he saw him running after stabbing Raju. PW-1 has corroborated the testimony of PW-2. Thus, PW-1 though has not seen the appellant stabbing Raju, however, he saw him running after stabbing Raju. PW-1 has corroborated the testimony of PW-2. Likewise PW-3 Kanwar Pal, in the examination-in-chief, has claimed himself to be the eye witness, however, in the cross he has stated that he did not see Santram stabbing Raju rather he has stated that after hearing alarm when he came out, Santram was gone. He has stated that he has not seen Santram stabbing Raju, thus, PW-3 is also not the eye witness of the incident, however, he was very much present in the house and had heard the alarm and when he came out, he saw that Raju has held his stomach and there were two wounds of knife on his stomach and thus his presence cannot be doubtful. PW-3 has supported the prosecution version. 16. The presence of PW-5 Rishipal has been denied at the time of occurrence by PW-1, PW-2 and PW-3, therefore, his testimony is of no relevance. 17. PW-6 Doctor Satish Chandra Bhaskar has corroborated the prosecution version and has proved the two incised wounds sustained by the injured and has further corroborated that these injuries could have come from sharp edged weapon. Doctor Satish Chandra Bhaskar has conducted operation as well as ultrasound and x-ray of the injured. 18. The cumulative reading of the statement of PW-1, PW-2 and PW-3 shows that the incident took place on 21.10.2016 around 6 PM which has been committed in two parts. In the first part, the money was demanded by the appellant from the injured Raju which was denied and upon this the appellant has threatened the injured. In the second part of the incident, the appellant returned and entered into the house of PW-1 with a knife in his hand and gave two blows in the stomach of the injured, as a result thereof, he got injured. The testimony of the injured witness PW-2 is intact and has supported the prosecution case which is corroborated by the testimony of the doctor PW-6 and also of PW-1 and PW-2. 19. The testimony of the injured witness PW-2 is intact and has supported the prosecution case which is corroborated by the testimony of the doctor PW-6 and also of PW-1 and PW-2. 19. Law in this regard is settled; the testimony of the injured witness alone is sufficient to prove the charge under Section 307 I.P.C., whereas in this case apart from the testimony of the injured witness, there is corroborative medical evidence in form of injury report and the testimony of PW-6, coupled with the testimony of PW1 and PW-3 who were very much present in the same house, it is further corroborated by the testimony of the investigating officer who has prepared the site plan. 20. The testimony of the injured witnesses has a great evidentiary value and unless the compelling reasons are present, the statement of the injured witnesses cannot be discarded lightly as held by the Apex Court in the case of "State of M.P. v. Mansingh, (2003) 10 SCC 414 ". 21. On due consideration to the argument advanced by the parties as well as perusal of the record, so far as the contention of the learned counsel for the appellant that the injury sustained by the injured was simple in nature and therefore no offence under Section 307 I.P.C. is made out is concerned, it will be appropriate to extract Section 307 I.P.C. :- 307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death. Perusal of the definition shows that an act done by the accused with an intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder. The next part of Section 307 I.P.C. refers to a heavier punishment in case hurt is caused pursuant to such act. Perusal of the definition shows that an act done by the accused with an intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder. The next part of Section 307 I.P.C. refers to a heavier punishment in case hurt is caused pursuant to such act. Language of the section makes it clear that mere sustaining injury is not required to attract offence under Section 307 I.P.C., however, in case hurt is caused by such act, the punishment can be severe. Likewise it is not necessary that the injury should be such from which under normal circumstances death may be caused. In State of Maharashtra v Balram Bama Patill (1983) 2 SCC 28 , the Supreme Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted. Relevant portion of para 9 of Balram Bama Patill's case is reproduced as under :- "9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis supplied) In State of M.P. v Saleem (2005) 5 SCC 554 , the Supreme Court held as under : "13. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis supplied) In State of M.P. v Saleem (2005) 5 SCC 554 , the Supreme Court held as under : "13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." In Jage Ram v State of Haryana, (2015) 11 SCC 366 , it has been held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted. To reproduce: "12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc." In Md. Umar Ali and others Vs. Umar Ali and others Vs. State of Bihar and others, the Patna High Court held as under:- "19. It is well settled that evidence of injured eye witness cannot be discarded in toto on the ground of inimical disposition towards the accused or improbabilities of narrating the details of actual attack. His evidence has to be scrutinized with caution taking into account the factum of previous enmity and tendency to exaggerate and to implicate as many as possible. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be interested. A witness is interested only when he derives some benefit from the result of the litigation. If evidence of injured witness if otherwise reliable and trustworthy then it carries more weight and cannot be thrown away merely because it is not corroborated by any independent witness. Little discrepancies cannot make evidence of injured witness unacceptable, when his evidence as a whole has a ring of truth." 22. Hence from the discussion herein made above as well as the law laid down by the Apex Court in the case of Balram Bama Patil (supra) it is evident that proof of life threatening injury is not required for the offence under Section 307 I.P.C. rather it is the intention of the accused which matters and which can be ascertained from surrounding circumstances as well as the injury sustained, nature of the weapon used and the severity of the blows etc. In this case the accused first threatened the injured then went away and thereafter again came armed with a knife in his hand and entered into the house of PW-1 and gave two repetitive blows on the abdomen of the injured. The fact is that the accused after extending threat again came on the same day and gave two blows to the injured. Not only this while entering into the house of the injured witness PW-2 he has also told that he will not leave PW-2 alive today and thereafter gave two blows on the vital part of the body i.e. abdomen. Not only this while entering into the house of the injured witness PW-2 he has also told that he will not leave PW-2 alive today and thereafter gave two blows on the vital part of the body i.e. abdomen. The entire series of events show that first threat was given by the appellant to the injured and secondly after some time the appellant came prepared with knife in his hand and again said that he will not leave PW-2 alive today and after saying this gave two blows to the accused, coupled with the injury report of the injured PW-2 prepared by the doctor PW-6 Dr. Satish Chandra Bhaskar who has said that two incised wounds by a sharp edged weapon have been sustained by the injured has duly corroborated by the prosecution version read with testimony of PW-1 and PW-3. All these attending circumstances show that there was a clear intention to commit murder. The presence of two incised wounds on the body of the injured attracts the second part of Section 307 I.P.C. 23. In this case the contention of learned counsel for the appellant that the injuries were not grievous rather were simple has no force; the injuries found to be caused by a sharp edged weapon and they were kept under observation, x-ray and ultrasound was done; the accused had clear motive for committing the crime as he often used to take money from PW-2 for drinking liquor and on the date of occurrence since the money was refused by PW-2, the accused committed the offence after extending him threat and breaking into the house of PW-1. 24. In view of the above observation, I am of the opinion that the trial court has rightly convicted the accused under Section 307 I.P.C. read with Section 452, 504, 506 I.P.C. and therefore the jail appeal is dismissed and accordingly, the conviction order of the trial court is upheld. 25. On the question of sentence, learned amicus curiae appearing for the appellant submits that condition of the appellant is very poor and he could not arrange a lawyer so that he can apply bail in the trial court during trial. 25. On the question of sentence, learned amicus curiae appearing for the appellant submits that condition of the appellant is very poor and he could not arrange a lawyer so that he can apply bail in the trial court during trial. He was arrested on 28.11.2016 and against the maximum sentence of seven years approximately about 5 years 9 months as per custody certificate have been incarcerated by the appellant and therefore, it is submitted that looking to the fact that the appellant has no prior criminal history, he has already incarcerated more than five years in jail, the sentence of the appellant may be reduced to the period undergone by the appellant. 26. Learned AG.A. though has opposed the appeal, however, could not dispute the fact that the appellant has already undergone 5 years and 9 months approximately in jail and he is in custody since 28.11.2016. 27. On due consideration to the argument advanced by the learned counsel for the parties as well as considering the financial position of the appellant, the sentence and fine imposed by the trial court vide its judgment and order dated 27.02.2019 is reduced to the period already undergone by the appellant. 28. Let a copy of this judgment be transmitted to the learned trial court as well as concerned Jail Superintendent for compliance. Lower court record be sent back to the lower court. I appreciate the assistance rendered by Shri Raj Kumar Sharma, learned Amicus Curiae, and we direct the State Government to pay Rs.20,000/- as honorarium.