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2024 DIGILAW 691 (MP)

Shriram @ Tinku v. State of M. P.

2024-11-05

DINESH KUMAR PALIWAL

body2024
ORDER 1. This Criminal appeal under section 374(2) of Criminal Procedure Code has been filed by the appellant- Shriram @ Tinku against the judgment of conviction and order of sentence dated 30.7.2021 passed by Ist Additional sessions Judge, Waraseoni District Balaghat in Sessions Trial No. 46/2019, whereby appellant has been convicted for the offence punishable under section 307 of IPC and has been sentenced to 07 years R.I. and fine of Rs.2000/-, in payment of default of fine, shall further undergo R.I. for a period of 2 months. 2. The prosecution story, in short, is that on 9.6.2019 at around 5.30 P.M. Ku. Udasa and her brother and sister were sitting outside their home in the courtyard. Her father Gunaram Damahe was coming from bus stand side. In the meanwhile, appellant who resides nearby her house, was standing outside the house. When his father Gunaram Damahe reached near his own house, appellant-accused due to previous enmity of burning old house, brought an axe from his house and assaulted him causing injuries on head, temple, back and waist due to which Gunaram fall on the earth and appellant/accused ran inside his house. Injured Gunaram was taken to the Govt. hospital Khairlanji and thereafter alongwith her cousin brother Durga Mandrole went to police station to lodge F.I.R. 3. On the basis of complaint, on 9.6.2019 Police Khairlanji District Balaghat registered the F.I.R No.164/2019 for commission of offence under section 307 of IPC. Dr.Nagendra Pal working in CHC Khairlanji examined injured and prepared the report Ex.P/16 regarding fatal injuries caused to injured. On the same day, Inspector Puran Sharma seized blood stained and simple sand from the scene of incident and prepared seizure memo Ex.P/3. Statements of witness Ku. Udasa and Shyam Kumar were recorded. On 10.6.2019, spot-map Ex.P/2 was prepared. Statement of witness Durga Prasad was recorded. On 11.6.2019, an application to prepare map of incident (Ex.P/18) was transmitted to Tehsildar and statements of witness Nirasha Damahe and Malti Bai were recorded. On 12.06.2019 accused was arrested and arrest memo Ex.P/10 was prepared, memorandum Ex.P/11 was recorded and weapon axe was recovered from possession of the accused. Query about nature of injuries was made from the Doctor. Patwari prepared the spotmap Ex.P/4. 4. After investigation charge sheet was filed before the JMFC, Waraseoni, who in turn, committed the case to the Court of Sessions. Query about nature of injuries was made from the Doctor. Patwari prepared the spotmap Ex.P/4. 4. After investigation charge sheet was filed before the JMFC, Waraseoni, who in turn, committed the case to the Court of Sessions. Learned Ist Additional Sessions Judge, Waraseoni District Balaghat framed charge against the appellant/ accused for commission of offence under section 307 of IPC. Accused abjured his guilt and claimed to be tried. 5. Learned Additional Sessions Judge, Waraseoni after recording the evidence of prosecution witnesses and hearing counsel for the parties, held the accused-appellant guilty for commission of offence under section 307 of IPC and sentenced him as mentioned in para-1. 6. Being aggrieved by the conviction and sentence imposed upon the appellant-accused, this appeal has been filed. 7. Learned counsel for the appellant has submitted that no fatal injury was caused to the injured which would make out a case under section 307 IPC. At the most the offence under section 325 of IPC is made out. Injured Gunaram (P.W.2), Ku. Udasa Damahe (P.W.1), Nirasha Damahe (P.W.3), Shyam Kumar (P.W.9) and Malti Bai (P.W.4) are interested witnesses and there evidence has not been corroborated with the independent prosecution witnesses. The evidence of aforesaid witnesses suffers from contradictions and omissions and they have admitted the factum of previous enmity with the appellant with regard to burning of old house. It is further contended that the learned Trial Court has committed error in convicting the appellant for commission of offence under section 307 of IPC. It is lastly submitted that the alleged incident has taken place in the year 2019. More than 5 years have elapsed and since the incident and during this period, no offence has been registered against the appellant. It was also submitted by the learned counsel for the appellant that the sentence imposed upon the appellant is disproportionate and has prayed that it should be reduced to the period already undergone by the appellant/ accused. 8. On the other hand, learned Government Advocate has supported the impugned judgment passed by the trial Court and submitted that the prosecution has proved its case beyond all reasonable doubt. Learned trial Court has not committed any error in convicting the appellant/ accused for commission of offence under section 307 of IPC as evidence of injured Gunaram (P.W.2) stands corroborated by the evidence of eye witnesses Ku. Learned trial Court has not committed any error in convicting the appellant/ accused for commission of offence under section 307 of IPC as evidence of injured Gunaram (P.W.2) stands corroborated by the evidence of eye witnesses Ku. Udasa Damahe (P.W.1), Nirasha Damahe (P.W.3), Shyam Kumar (P.W.9) and Malti Bai (P.W.4) and medical evidence of Dr. Nagendra Pal (P.W.10). 9. I have heard rival submissions of the learned counsel for the parties and perused the record. 10. In support of its case, prosecution has examined as many as 11 witnesses viz; Ku. Udasa Damahe (P.W.1), injured Gunaram Damahe (P.W.2), Nirasha Damahe (P.W.3), Malti Bai Patel (P.W.4), Ravi (P.W.5), Durga Prasad (P.W.6), Manoj (P.W.7), Mahendra Tiwari (P.W.8), Shyam Kumar (P.W.9), Dr. Nagendra Pal (P.W.10) and Inspector Puran Sharma (P.W.11). However, no defence witness was examined on behalf of the accused. 11. Injured Gunaram (P.W.2) in his deposition has deposed that 4-5 months ago he was coming back to his home from work. Appellantaccused armed with an axe came and assaulted him twice on his head because of which he became unconscious and fell down. On getting conscious, he found himself in the hospital. 12. The evidence of Gunaram (P.W.2) is further corroborated by evidence of his daughter Ku. Udasa Damahe (P.W.1), Nirasha Damahe (P.W.3), Shyam Kumar (P.W.9) and Malti Bai (P.W.4) and medical evidence of Dr. Nagendra Pal (P.W.10). 13. Sub Inspector Puran Sharma (P.W.11) in his evidence has deposed that on 9.6.2019 complainant Ku. Udasa Damahe had lodged a report Ex.P/1. He seized the blood stained and simple sand and prepared seizure memo Ex.P/3. He also prepared the spot map Ex.P/2. As blood stained clothes were not found, he prepared a memo Ex.P/14. He also recorded the statements of Ku. Udasa, Shyam Kumar and Durga Prasad. He submitted an application Ex.P/18 before Tehsildar for preparing spot map and recorded the statement of Nirasha Damahe and Malti Bai Damahe. He seized the towel of accused Shriram @ Tinku and prepared seizure memo Ex.P/9. He arrested the accused and prepared arrest memo Ex.P/10. He also prepared the memorandum of accused before witnesses Ex.P/11. The weapon of crime axe was recovered from the possession of accused and prepared seizure memo Ex.P/12. He sent the axe for query to Govt. hospital Khairlanji for opinion Ex.P/17. He recorded the statement of injured Gunaram and Deval Bai.. 14. Ravi (P.W.5) is a witness of seizure memo. He also prepared the memorandum of accused before witnesses Ex.P/11. The weapon of crime axe was recovered from the possession of accused and prepared seizure memo Ex.P/12. He sent the axe for query to Govt. hospital Khairlanji for opinion Ex.P/17. He recorded the statement of injured Gunaram and Deval Bai.. 14. Ravi (P.W.5) is a witness of seizure memo. He has deposed the axe was seized from nearby house of accused. This witness has been turned hostile. Durga Prasad (P.W.6) has deposed that no map was prepared before him and no towel was seized before him. He has deposed that the documents does not bear his signatures. Manoj (P.W.7) is witness of memo. Mahendra Tiwari (P.W.8) has deposed that being posted as Patwari he had prepared the spot map Ex.P/4. 15. Dr. Nagendra Pal (P.W.10) in his examination has deposed that he had examined injured Gunaram and had found incised wounds on head, eye, chin, left hand, back and waist and also swelling in left eye and left parotid region. He had referred the injured to district hospital for further treatment. 16. Injured Gunaram (P.W.2) in his deposition has deposed that 4-5 months ago he was coming back to his home from work. Appellantaccused armed with an axe came and assaulted him twice on his head because of which he became unconscious and fell down. His evidence stands corroborated by the evidence of eye witnesses Ku. Udasa Damahe (P.W.1), Nirasha Damahe (P.W.3), Shyam Kumar (P.W.9) and Malti Bai (P.W.4) and medical evidence of Dr. Nagendra Pal (P.W.10). 17. To constitute the offence under section 307 of IPC, the Supreme Court in the matter of Parsuram Pandey and Others v. State of Bihar - (2004)13 SCC 189 has held as under :- "15. To constitute an offence under section 307 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 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. 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. For the purpose of section 307 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. 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 the necessary ingredient of section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under section 302 of the IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the fire arm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under section 307 of IPC. “ 18. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under section 307 of IPC. “ 18. As per the aforesaid judgment of the Supreme Court, for the purpose of commission of an offence under section 307 of the IPC, it is material that there should be an intention or knowledge of the offence and secondly the act done for the purpose of carrying out the intention. 19. The same principle of law is reiterated by the Supreme Court in the matter of Sumersingh Umedsingh Rajput v. State of Gujarat - (2007)13 SCC 83 . The same reads as under :- "14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of section 307 are: (i) an intention of or knowledge relating to commission of murder; and (ii) the doing of an act towards it." 20. From the aforesaid judgments, it is clear that intention of or knowledge relating to commission of murder and doing of an act towards it are the essential ingredients to constitute offence under section 307 of IPC. In the present case, injured Gunaram reached near his own house, appellant/ accused also reached in front of his house armed with an axe. It has come in the evidence that assault was made due to previous enmity between the parties. The injury caused was sufficient to cause death in ordinary course of nature as complainant remained hospitalized for 7 days for treatment and injury was caused in head which is vital part of human body. 21. To justify the conviction under section 307 of IPC, the Court has to see whether the act was done with an intention to commit murder. 21. To justify the conviction under section 307 of IPC, the Court has to see whether the act was done with an intention to commit murder. The nature of injuries caused may be of assistance in giving a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapon used, parts of the body where the injury was caused, severity of injury and other facts of the case. In this case only 11 injuries have been caused out of which 07 are incised wounds. Hence, on the basis of the testimony of witnesses, it is established that prosecution has been successful in proving the fact that accused caused injuries to victim with an intention to cause his death. Therefore, I am of the view that learned trial Court was justified in holding the appellant/ accused guilty for commission of offence under section 307 of IPC. 22. In the result, the conviction and sentence imposed upon the appellant/ accused for the offence under section 307 of IPC is upheld. However, it cannot be overlooked that there was previous enmity between the parties over burning of old house. Appellant is in jail from 12.6.2019. As per report dated 27.7.2024 received from Superintendent, District Jail Balaghat, appellant has undergone 5 years and 5 month of actual jail sentence and with remission has undergone jail sentence near about 6 years and two months. Thus, considering the prayer of learned counsel for the appellant and balancing the aggravating and mitigating facts of the present case, I am of the opinion that interest of justice would be served if sentence of 7 years R.I imposed on the appellant is modified and reduced to the period already undergone by him and by enhancing the fine amount. 23. In view of aforesaid, the sentence of 7 years R.I is modified and reduced to the period already undergone by the appellant Shriram @ Tinku by enhancing the fine amount from 2000/- to Rs.15,000/- (Rs.Fifteen Thousands) which shall be paid to injured Gunaram Damahe (P.W.2) as per trial Court’s order with regard to payment of compensation. 24. With the aforesaid modification in the jail sentence and enhancing the fine amount, this appeal is partly allowed. 25. Registry is directed to prepare super session warrant after complying with all the legal formalities. 24. With the aforesaid modification in the jail sentence and enhancing the fine amount, this appeal is partly allowed. 25. Registry is directed to prepare super session warrant after complying with all the legal formalities. Registry/ trial court is further directed to inform Superintendent of District Jail, Balaghat about this judgment and appellant be released forthwith, if not required in any other case. A copy of this judgment alongwith trial Court record be sent down to the trial Court for information and necessary compliance.