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2024 DIGILAW 695 (MP)

Shankarsingh v. State of M. P.

2024-11-06

PRAKASH CHANDRA GUPTA

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JUDGMENT : PRAKASH CHANDRA GUPTA, J. All the appeals arise out of the common judgment dated 22.10.1999 passed by the Additional Sessions Judge and Special Judge, Indore, in S.T. No.458/1995, by which the appellants/accused persons Kailash and Prakash have been convicted u/s 307 of IPC and were sentenced to 7 years of R.I. with fine of Rs.2,000/- each. Appellant Shankar Singh has been convicted u/s 307 r/w 34 of IPC and sentenced to 5 years of R.I. and fine of Rs.1,000/-, with default stipulation. 2. Facts of the prosecution case in brief are that there was some monetary dispute between injured Ajay (PW-1) and accused persons Prakash and due to the same, on 08.06.1995, at around 11:30 PM, when the accused persons Kailash, Prakash and Shankar Singh came to the house of the injured, they took him out for a walk. When they reached at the spot, the accused Shankar caught hold both the hands of the injured. Accused persons Kailash and Prakash assaulted the injured by means of Gupti and knife with intent to kill him. The injured sustained several injuries on his body parts. He raised alarm for his rescue. Then, Chotu (PW-8) and Sajay (PW-9) came at the spot. Thereafter, the accused persons fled away from the place of incident. After the incident, the injured returned home. He narrated the incident to his mother Jaishree (PW-4) and brother Sanjay (PW-6). The injured was taken to Police Station and FIR (Ex. P-1) was recorded by A.S.I. V. P. Vidrohi (PW-12), at the instance of Sanjay (PW-6). Dr. K. K. Verma (PW-15) examined injured Ajay and had given MLC report (Ex. P-17). 3. During investigation, SHO D. S. Tambe (PW-14) inspected the place of incident and prepared spot map (Ex. P-2) at the instance of Sanjay (PW-6). He seized blood stained and plain soil from the spot vide seizure memo (Ex. P-3). On 20.06.1995, he arrested the accused persons Prakash, Kailash and Shankar vide arrest memo (Ex. P-8, 9 and 10). On the same day, he recorded memorandum statement of the accused Kailash and Prakash vide memo (Ex. P-11 and P-13). He seized a knife and a Gupti at the instance of accused persons Kailash and Prakash respectively vide seizure memo (Ex. P-12 and P-14). SHO D.S. Tambe (PW-14) sent the aforesaid knife and Gupti towards Dr. K.K. Verma (PW-15) for examination and opinion vide letter (Ex. P-18). P-11 and P-13). He seized a knife and a Gupti at the instance of accused persons Kailash and Prakash respectively vide seizure memo (Ex. P-12 and P-14). SHO D.S. Tambe (PW-14) sent the aforesaid knife and Gupti towards Dr. K.K. Verma (PW-15) for examination and opinion vide letter (Ex. P-18). After examination, Dr. K.K. Verma (PW-15) had given opinion that all the injuries sustained by the injured may have been caused by the aforesaid knife and Gupti. The SHO D.S. Tambe (PW-14) also sought an opinion from Dr. K.S. Chaudhary (PW-10) through letter (Ex. P-7) dated 11.07.1995. On the same day, Dr. K.S. Chaudhary (PW-14) had given his opinion that injuries sustained by the injured were grievous in nature and dangerous to life. 4. On 07.07.1995, inspector Vishwanath Singh Senghar (PW-13) seized blood stained and ripped shirt and pant of injured Ajay from father of the injured namely Harishankar (PW-3) vide seizure memo (Ex. P-4). On 22.07.1995, the seized articles were sent to FSL, Indore for chemical examination vide letter (Ex. P-15). FSL report (Ex. P-16) was received from FSL, Indore. Statement of the witnesses were recorded u/S 161 of Cr.P.C. After completion of investigation, charge-sheet has been filed before concerning JMFC. The case was committed for trial before Sessions Judge, Indore and the same was made over to the trial Court. 5. Learned trial Court had framed charges against the accused persons. The accused persons abjured their guilt and claimed to be tried. In turn to prove its case, the prosecution examined 16 witnesses. After completion of prosecution evidence, the accused persons were examined u/S 313 of Cr.P.C. The accused persons Prakash and Shankar Singh had taken defence that at the time of the incident, they were not present at the spot and they were present at their duty. Accused Kailash took defence that at the time of the incident, he was also not present at the spot rather he was in his house. Accused Shankar examined his father Bhawar Singh (DW-1) and Om Prakash Jariya (DW-2). Accused Kailash examined his mother Geetabai (DW-3). Accused Kailash has not examined any witness in his defence. 6. After considering the evidence available on record, learned trial Court came to the conclusion that the appellants are guilty for the offences as mentioned above. 7. Accused Shankar examined his father Bhawar Singh (DW-1) and Om Prakash Jariya (DW-2). Accused Kailash examined his mother Geetabai (DW-3). Accused Kailash has not examined any witness in his defence. 6. After considering the evidence available on record, learned trial Court came to the conclusion that the appellants are guilty for the offences as mentioned above. 7. Learned counsel for the appellants submits that the judgment passed by learned trial Court is bad in law and contrary to the facts and evidence of the case. The evidence laid by the prosecution witnesses suffer from serious infirmity. There are material contradictions in the ocular statement of injured, as well as other witnesses and medical evidences. Therefore, statement of injured and other witnesses is not reliable. It is also submitted that Dr. K.K. Verma (PW-15) has not given any opinion in his MLC (Ex. P-17) with respect to nature of the injuries sustained by the injured and Dr. K.S. Chaudhary (PW-10) without examining the injured has given his opinion (Ex. P-7) only on the basis of treatment paper. Therefore, his opinion is not reliable and is also not admissible in the evidence. In these situation, it cannot be considered that injuries sustained by the injured were grievous in nature and were fatal to life. The trial Court without considering aforesaid material points has wrongfully convicted and sentenced the appellants in the alleged offence. Therefore, the impugned judgment is liable to be set aside. He has placed reliance on the case of Anil Kumar Singhal V State Of M.P. [2010 SCC Online MP 619] and Mohan Singh V State Of Punjab [ (1975) 4 SCC 254 ] 8. On the other hand, learned counsel for the respondent/State opposed the submissions made by the learned counsel for appellants by submitting that the prosecution succeeded to prove its case beyond reasonable doubt. Therefore, the appeals are liable to be dismissed. 9. I have heard learned counsels for the parties and perused the record. 10. The question for consideration is whether the accused persons had inflicted injury upon the injured person at the relevant time with intent to cause death? 11. Learned trial Court while passing the impugned judgment, relied on the statement of injured Ajay (PW-1), Jaishree (PW-4), Sanjay (PW-6) and Smt. Mamta (PW-11). 12. 10. The question for consideration is whether the accused persons had inflicted injury upon the injured person at the relevant time with intent to cause death? 11. Learned trial Court while passing the impugned judgment, relied on the statement of injured Ajay (PW-1), Jaishree (PW-4), Sanjay (PW-6) and Smt. Mamta (PW-11). 12. Ajay (PW-1) stated in his deposition that after taking dinner, he went to Sukanya square and when he was returning, accused Shankar caught hold him. Accused Prakash and Kailash assaulted him by means of knife and Gupti respectively on his body parts. He raised alarm but no one came there to rescue him. Thereafter, Chotu (PW-8) and Sanjay (PW-9) came there. After getting information, his mother Jaishree (PW-4) came and she took him to his house. Chotu (PW-8) and Sanjay (PW-9) have not supported the statement of Ajay (PW-1). Brother of the injured, Sanjay (PW-6) also stated in paragraph 2 of examination-in-chief that injured Ajay (PW-1) had not told anything with respect to the incident therefore, the statement of Sanjay (PW-6) is also not in support of the injured person. Jaishree (PW-4) and Smt. Mamta (PW-11) stated that after the incident when injured came to the house and told them that the accused persons have assaulted him. Therefore, it appears that Jaishree (PW-4) and Smt. Mamta (PW-11) have supported the statement of Ajay (PW-1). 13. However, Ajay (PW-1) stated that he lodged the FIR (Ex. P-1) but as per statement of Sanjay (PW-6) and ASI V.P. Vidrohi (PW-12), it appears that FIR (Ex. P-1) was recorded at the instance of Sanjay (PW-6). Therefore, on the basis of aforesaid contradictory statement of Ajay (PW-1), case of prosecution cannot be doubted. 14. Dr. K.K. Verma (PW-15) stated that on 06.09.1995, he examined Ajay (PW-1) and following injuries were found:- i. Clean lacerated wound on right side of upper chest, sized 1.5’ x 0.5’. ii. Clean lacerated wound on upper chest middle, sized 1’ x 0.5’. iii. Clean lacerated wound on left side of abdomen, sized 1.5’ x 0.5’. iv. Clean lacerated wound on middle of chest, sized 1’ x 0.5’. v. Clean lacerated wound on left side of abdomen, sized 0.25’ x 0.25’. vi. Clean lacerated wound on left iliac fossa, sized 1’ x 0.5’. vii. Clean lacerated wound on left elbow, sized 3’ x 1’. viii. Clean lacerated wound on right knee, sized 1’ x 0.5’. ix. iv. Clean lacerated wound on middle of chest, sized 1’ x 0.5’. v. Clean lacerated wound on left side of abdomen, sized 0.25’ x 0.25’. vi. Clean lacerated wound on left iliac fossa, sized 1’ x 0.5’. vii. Clean lacerated wound on left elbow, sized 3’ x 1’. viii. Clean lacerated wound on right knee, sized 1’ x 0.5’. ix. Clean lacerated wound on knee joint, sized 2’ x 1’. x. Clean lacerated wound on right thigh, sized 3’ x 1’. xi. Clean lacerated wound on right wrist, sized 2’ x 1’. xii. Clean lacerated wound on lower side of right thigh, sized 2’ x 0.5’. xiii. Clean lacerated wound at the backside of the stomach (multiple). 15. The witness stated that he referred the injured to RSO surgery and RSO orthopaedics for further treatment. Witness also stated that the blood was oozing out of the injuries and the injuries were caused within six hours. In paragraph 6 of cross-examination, the witness admitted that he had not given opinion with respect to nature of the injuries. Therefore, it appears that the witness only examined the injured witness and he had found thirteen injuries on several body parts of the injured but he had not given any opinion in respect of the nature of the injury. 16. Dr. K.K. Verma (PW-15) further stated that on 22.07.1995, the police had sent a knife and a Gupti in a sealed packet for their examination and opinion. After examination of the aforesaid weapons, he had given an opinion (Ex.P-18) that injuries sustained by the injured could have been inflicted by the aforesaid weapons. 17. SHO D.S. Tambe (PW-14) stated that on 20.06.1995, he had arrested accused persons Prakash, Kailash and Shankar Singh and prepared arrest memo (Ex.P-8, 9 and 10 respectively). He further stated that during interrogation accused persons Kailash and Prakash disclosed that they had hidden a knife and Gupti in their house, accordingly he prepared a disclosure memo (Ex.P-11 and 13 respectively). He also stated that he seized a knife and a Gupti at the instance of the accused persons Kailash and Prakash and prepared seizure memo (Ex.P-12 and P-14 respectively). However, Ram Singh (PW-16) has not supported the statement of SHO D.S. Tambe (PW-14), but he admitted his signature on (Ex.P-8 – P-14) of arrest memo, disclosure memo and seizure memo. He also stated that he seized a knife and a Gupti at the instance of the accused persons Kailash and Prakash and prepared seizure memo (Ex.P-12 and P-14 respectively). However, Ram Singh (PW-16) has not supported the statement of SHO D.S. Tambe (PW-14), but he admitted his signature on (Ex.P-8 – P-14) of arrest memo, disclosure memo and seizure memo. There is no material in cross-examination of SHO D.S. Tambe (PW-14) to infer an opinion that he was prejudiced against the accused persons. Therefore, sole statement of SHO D.S. Tambe (PW-14) appears to be reliable. 18. On perusal of statement of Dr. K.S. Chaudhary (PW-10), it appears that without examining the injured, he has given an opinion in respect of the nature of injuries sustained by the injured person and stated that injuries sustained by the injured were grievous in nature and also were fatal to life. He proved his opinion A to A of (Ex.P-7). 19. After considering Mohan Singh (Supra) and other judgments of Apex Court, a Division Bench of this Court in the case of Anil Kumar Singhal (Supra) opined as under:- “17. Learned Trial Court has believed the statement of Dr. D.S. Badkul (P.W. 17) who had not seen the dead body. Only on the basis of material sent to him for opinion, he formed an opinion that death of Ramkali may be homicidal also. But on perusal of entire statement of Dr. D.S. Badkul (D.W. 17) as aforesaid opinion given by doctor concerned, it is not a conclusive proof for the fact that death of Ramkali can be homicidal in nature. This opinion has been formed only on the basis of postmortem report and photographs sent to him by the police concerned and such type of opinion cannot be the basis to form conclusive that death is homicidal in nature. For this, learned Counsel for the appellant placed reliance on the decision of Apex Court in Mafabhai Nagarbhai Raval v. State of Gujarat (2003) 7 SCC 749 wherein the Hon'ble Apex Court held here as under: “It is needless to say that the Doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the Court cannot substitute its opinion to that of the Doctor.” 18. Unless there is something inherently defective the Court cannot substitute its opinion to that of the Doctor.” 18. Similar view has again been expressed by the Hon'ble Apex Court in another case of Mohan Singh v. State of Punjab (2007) 11 SCC 295 wherein while dealing with expert opinion the Hon'ble Apex Court, in para 7 held here as under:— “The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gun-fire only. It must first of all be noted that he is not categorical about it. The reason for his conclusion are the dimensions of the injuries. He had not seen the injuries and it would need super-human ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors.” 19. In view of principle laid down by the Hon'ble Apex Court for appreciation of expert opinion, we are of the considered opinion that opinion/statement given by Dr. D.S. Badkul (P.W. 17) cannot override the statement of Dr. V.S. Tomar (P.W. 16) who actually performed the postmortem of dead body of the deceased Ramkali and categorically found that it may be a case of suicidal, therefore, this opinion of Dr. V.S. Tomar (P.W. 16) cannot be disbelieved on the basis of opinion/statement of Dr. D.S. Badkul (P.W. 17). 20. Thus, in view of the aforesaid statement of two different doctors i.e., Dr. V.S. Tomar (P.W. 16) and Dr. D.S. Badkul (P.W. 17), we are of the considered opinion that opinion given by autopsy surgeon Dr. V.S. Tomar is found to be more reliable, on which basis, it is proved that death of Ramkali appears to be suicidal in nature.” 20. In the instant case, admittedly Dr. K.S. Chaudhary (PW-10) had not seen and examined the injuries sustained by injured Ajay (PW-1), hence, it appears that he formed his opinion only on the basis of MLC report of the injured person. It is also not disputed that Dr. K.K. Verma (PW-15), who examined the injured has not given any opinion with respect to the nature of the injuries sustained by the injured. Therefore, on the basis of the statement of Dr. It is also not disputed that Dr. K.K. Verma (PW-15), who examined the injured has not given any opinion with respect to the nature of the injuries sustained by the injured. Therefore, on the basis of the statement of Dr. K.K. Verma (PW-15), it cannot be opined that injuries sustained by the injured were grievous in nature as well as were fatal to life. Hence, in absence of reliable and acceptable evidence, it can be considered that injuries sustained by injured person were simple in nature caused by hard and sharp weapon. 21. As per defence taken by accused persons in their statement recorded u/S 313 of Cr.P.C., on the date of incident accused Kailash was at his house, accused Prakash being a home guard was on his duty as well as accused Shankar Singh being an employee of Diana Plastic Industry, Sanwer Road, Indore was also present on his duty. Father of accused Shankar namely Bhanwar Singh (DW-1) stated that on 09.06.1995 from 08:00 PM to 06:00 AM, accused Shankar was on his duty. Om Prakash Jariya (DW-2), employer of co-accused Shankar, stated that on 08.06.1995, from 08:00 PM to 06:00 AM, accused Shankar was on his duty. In the instant case, incident had taken place on 08.06.1995 at 11:30 PM, therefore, it appears that statement of both the defence witnesses are contradictory with respect to the date of the incident. Apart from that, no document has been filed to show that accused Shankar was employee of Om Prakash Jariya (DW-2). Attendance register of employee has also not been filed, therefore, statement of Bhanwar Singh (DW-1) and Om Prakash Jariya (DW-2) is not reliable. 22. Geetabai (DW-3) is mother of co-accused Kailash has stated that on the date of incident accused Shankar was present at his house, but it has not been stated by the witness that the place of incident was so far from her house that it was impossible for the accused to reach there. Therefore, statement of this witness is also not reliable. 23. On the basis of foregoing discussion, it is clear that as per statement of injured Ajay (PW-1), at the relevant time, accused Shankar Singh had caught hold him and accused persons Prakash and Kailash had assaulted him by means of knife and Gupti respectively. Therefore, statement of this witness is also not reliable. 23. On the basis of foregoing discussion, it is clear that as per statement of injured Ajay (PW-1), at the relevant time, accused Shankar Singh had caught hold him and accused persons Prakash and Kailash had assaulted him by means of knife and Gupti respectively. Right after the incident, the injured narrated the incident to his mother Jaishree (PW-4) and sister Smt. Mamta (PW-11). Both the aforesaid witnesses also supported the statement of Ajay (PW-1). His statement is further supported by Dr. K.K. Verma (PW-15). There is no material omission and contradiction in their statement, therefore, their statement is reliable and it is clear that the accused person/appellant Shankar Singh had caught hold the injured and Prakash and Kailash had assaulted him by means of knife and Gupti respectively in furtherance of their common intention, thereby the appellants/accused persons had voluntarily caused injury to the injured by dangerous weapons. 24. It is apposite to reproduce here Section 324 of IPC, the verbatim of which runs as under:- “324. Voluntarily causing hurt by dangerous weapons or means – Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallon, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 25. In the instant case, on perusal of statement of Ajay (PW-1), it appears that the appellants had enough opportunity to kill the injured. However, several injuries had been inflicted upon the injured, but doctor Dr. K.K. Verma (PW-15) had not mentioned the severity of injuries received by the injured in the MLC report or in his statement. There is no evidence in the case to show that injuries sustained by the injured were grievous in nature or the appellants were acting with intent to kill the injured. K.K. Verma (PW-15) had not mentioned the severity of injuries received by the injured in the MLC report or in his statement. There is no evidence in the case to show that injuries sustained by the injured were grievous in nature or the appellants were acting with intent to kill the injured. Therefore, it appears that the prosecution has failed to prove offence u/S 307 or 307 r/w 34 beyond reasonable doubt, however, the prosecution has succeeded to prove offence u/S 324 r/w 34 of IPC beyond reasonable doubt against the appellants, but the trial court without considering the aforesaid material and evidence available on record has wrongly convicted and sentenced the appellants u/S 307 and S.307 r/w 34 of IPC. Therefore, the impugned judgment is liable to be interfered to the aforesaid extent. 26. Learned counsel for the appellants submits that the incident is of year 1995. The appellants have suffered the ordeal of trial for around 29 years. Appellant Prakash has completed incarceration of more than 9.5 months. Appellant Kailash has completed incarceration of around 05 months and appellant Shankar has completed incarceration of around 34 days. Therefore, it is prayed that the appellants be sentenced to the period already undergone by increasing the fine amount. 27. On perusal of custody report dated 12.10.2024 (as on the same day) of Central Jail, Indore, appellant Prakash completed incarceration of 09 months and 29 days and appellant Kailash completed incarceration of 05 months and 01 day. It also appears from the record that during trial appellant Shankar was in custody for 20 days, thereafter he was also in custody on the date of impugned judgment i.e., 22.10.1999 to 05.11.1999. Hence, it appears appropriate that if the sentence of the appellants is reduced to the period already undergone by increasing the fine amount, the same will meet the ends of justice. 28. Consequently, the appeals are partly allowed. The conviction of appellants u/S 307 and 307 r/w 34 of IPC is altered to S.324 r/w 34 of IPC. The jail sentence of the appellants is reduced to the period already undergone by them and fine amount is increased to Rs.10,000/- each, with default stipulation of 04 months of simple imprisonment. The fine amount shall be paid to the injured Ajay (PW-1). Appellants Kailash and Prakash are in jail, accordingly, they shall be released, if not required in any other case. The fine amount shall be paid to the injured Ajay (PW-1). Appellants Kailash and Prakash are in jail, accordingly, they shall be released, if not required in any other case. The bail bond of the appellant Shankar shall stand discharged upon payment of the fine amount. 29. Copy of this judgment alongwith records of the trial Court be sent to the learned trial Court for necessary compliance. Registry is directed to supply copy of this order to the appellants. 30. Accordingly, the appeals are disposed off CC as per rules.