Jharkhand High Court

Mahadeo Ram vs The State Of Jharkhand on 1 December, 2023

Author: Subhash Chand

Bench: Subhash Chand

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                       Criminal Appeal (SJ) No. 575 of 2011

(Against the judgment of conviction dated 11th August 2011 and the order of sentence
dated 16th August 2011 passed by the learned 1 st Additional Judicial Commissioner,
Khunti in S.T. No. 436 of 2006)
                                ------
Mahadeo Ram, Son of late Lakhan Ram, Resident of Village- Jardag, PO &
PS Karra, District Khunti                       ....      ..... Appellant

                                      Versus
The State of Jharkhand                                     ...     .... Respondent

                                  PRESENT

          HON'BLE MR. JUSTICE SUBHASH CHAND
                                    -------
      For the Appellant          : Mr. B.R. Rochan, Advocate
      For the State              : Mr. Bishambhar Shastri, APP
                                    -------
                                JUDGMENT

CAV on 17th October 2023 Pronounced on Ist December 2023 Per, Subhash Chand, J.

This criminal appeal has been preferred against the judgment of

conviction dated 11.08.2011 and order of sentence dated 16.08.2011 passed

in S.T. No.436 of 2006 arising out of Karra P.S. Case No.18 of 2006

corresponding to G.R. No. 209 of 2006 by the learned 1st Additional

Judicial Commissioner, Khunti whereby the learned court below had

convicted the appellant for the offence under section 307 of the Indian Penal

Code and sentenced with rigorous imprisonment of five years and a fine of

Rs.3,000/-. In default of payment of fine the appellant/convict was directed

to undergo rigorous imprisonment of three months.

2. The brief facts leading to this criminal appeal are that the

informant Tulsi Ram had given the written information with these

allegations that on 13.04.2006 all have gone to sleep after having taken food

in night. In the intervening night of 13.04.2006 at 2 O'clock the informant 2 Cr. Appeal (SJ) No. 575 of 2011

felt pain in his stomach and he went out of the house to respond the call of

nature in the nearby bari. When he came back to his house Mahadeo Ram,

son of late Lakhan Ram armed with tangi came and assaulted him. First

blow was given by Mahadeo Ram on his head which was resisted by him

and he sustained injury on his left hand. He shouted for rescue but the

accused continued to assault with tangi which hit on his head, on his left

elbow, right thigh. In the meantime, his brother Kalinder Ram, his son

Ashok Kumar and his father attracted there and the accused fled away. In

injured condition, he was carried to Khunti hospital. From there he was

referred to RIMS. It appeared that because the food was not given to

Mahadeo Ram for some days by the informant, therefore he had made

attempt to commit murder of informant. On this written information, the

Case Crime No. 06 of 2006 was registered under section 307 read with 324

of IPC against the accused Mahadeo Ram. The investigating officer after

concluded the investigation filed charge-sheet against Mahadeo Ram for the

offence under section 307 and 324 of IPC to the concerned Magistrate. The

court of Magistrate took cognizance and committed this case for trial to the

court of sessions.

3. The Court of Additional Judicial Commissioner-III, Khunti

framed charge against the accused for the offence under section 307 and 324

of IPC. The charge was read over and explained to him who denied the

charge and claimed to face the trial.

4. On behalf of prosecution to prove the charge against the

accused Mahadeo Ram in documentary evidence filed the written

information exhibit-1, the signature on the written information of Jivdhan

Ram Ganjhu as exhibit-1/1, formal FIR exhibit-2, injury report exhibit-3.

3 Cr. Appeal (SJ) No. 575 of 2011

5. In oral evidence on behalf of prosecution examined PW-1

Ashok Kumar, PW2- Birendra Ram, PW3- Jagdish Mahadeo, PW4- Ram

Narayan Ram, PW5- Tulsi Ram, PW6- Jivdhan Ram Ganjhu, PW7- Basant

Saw, PW8- Khalindra Ram and PW9- Dr. Vijay Kumar.

6. The statement of accused under section 313 of Cr.PC was

recorded, he denied the incriminating circumstances in evidence against him

and refused to file any defense evidence.

7. Learned trial court after having heard the rival submission of

leaned APP on behalf of the State and learned counsel on behalf of the

accused, passed the impugned judgment of conviction vide order dated

11.08.2011 holding guilty the appellant Mahadeo Ram for the offence under

section 307 of IPC and sentenced him vide order dated 16.08.2011 with

imprisonment for five years and a fine of Rs.3,000/- and in default of

payment of fine additional imprisonment of three months was directed to

undergo.

8. Aggrieved from the impugned judgment of conviction and

sentence, this criminal appeal has been preferred on the ground that the

impugned judgment of conviction and sentence passed by court below is bad

in the eye of law and the learned trial court has not appreciated the evidence

on record in proper prospective. There was no independent witness of the

occurrence. All the witnesses were the interested witnesses whose testimony

could not be believed. The FIR of this case was also lodged the belated

which shows that FIR was lodged after thought.

The motive of the occurrence as alleged in the FIR itself is also

not proved. The weapon used in the alleged offence and also the blood

stained soil and clothes were not seized by the investigating officer, same 4 Cr. Appeal (SJ) No. 575 of 2011

were not sent to FSL. No specific questions were put to the

appellant/convict under section 313 of Cr.PC and prayed to allow the appeal

by setting aside the impugned judgment of conviction and sentence and to

acquit the appellant.

9. I have heard the learned counsel for the appellant and learned

APP on behalf of the State and perused the material on record.

10. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed by the court below the evidence

adduced on behalf of the prosecution, oral and documentary, which is to be

appreciated is being reproduced hereinbelow:

10.1 PW1- Ashok Kumar in his examination-in-chief says, the

occurrence is of 13.04.2006. It was 2:15 hours. He came out after having

heard the sound of his father and saw Mahadeo Ram armed with tangi who

was assaulting to his father. His uncle and grand-father also came there. All

made Mahadeo Ram to flee away. His father sustained injury on the head,

on the shoulder and on the left leg as well. He was rushed to Khunti Hospital

from there was referred to RIMS.

In cross-examination this witness says the handle of the tangi

was about 3 inch, he cannot say the length of the tangi.

10.2 PW2- Birendra Ram in his examination-in-chief says

occurrence was of 13.04.2006 at 2 O'clock of night, he was sleeping in his

house. He having heard the noise came out of his house and saw his elder

father Tulsi Ram lying in pool of blood and came to know that Mahadeo

Ram had assaulted him with tangi.

In cross-examination this witness says that he did not see the

occurrence from his own eye.

5 Cr. Appeal (SJ) No. 575 of 2011

10.3 PW3- Jagdish Mahadeo in his examination-in-chief says

having heard the hullah he came to the place of occurrnce and saw Tulsi

Ram injured in his house, came to know that Mahadeo Ram had assaulted.

In cross-examination this witness says that he did not see the

occurrence from his own eye.

10.4 PW4- Ram Narayan Ram in his examination-in-chief says

occurrence was of 13.04.2006 at 2:15 in night, he having heard the hullah

came out of the house and saw Tulsi Ram in injured condition. He had

sustained injury on his head, shoulder, left hand and thigh. Wound were

caused by the tangi. Tulsi Ram had told him that Mahadeo Ram had

assaulted him.

In cross-examination this witness says that he did not see the

occurrence from his own eye.

10.5 PW5- Tulsi Ram in his examination-in-chief says on

13.04.2006 the occurrence was of 2:15 of night he came out of his house to

respond the call of nature when he came back to his house Mahadeo Ram

came there armed with tangi assaulted him and sustained injury on his left

hand, head, thigh and shoulder. Hearing the hullah his brother Kalinder

Ram, his son Ashok Kumar and his father also came there. All made

Mahadeo Ram to flee away from there. He was rushed to the Khunti hospital

thereafter he was referred to RIMS. His fardbeyan was recorded on

16.04.2006 in the hospital which bears his signature it was also signed by

his father and marked as exhibit-1 and 1/1.

In cross-examination this witness says accused Mahadeo Ram

is his cousin brother. At the time of occurrence his father and his son both

were sleeping in the same northern room. The house of Mahadeo Ram is in 6 Cr. Appeal (SJ) No. 575 of 2011

western side of his house. After having sustained injury he did not become

unconscious. It is wrong to say that Mahadeo Ram was in hit of unsound

mind at the time of occurrence. It is wrong to say that the injuries was

sustained by him on account of calling from the motorcycle.

10.6 PW6- Jivdhan Ram Ganjhu in his examination-in-chief says

occurrence is of 13.04.2006 he was sleeping in his room having heard the

hullah raised by Tulsi Ram he came out and saw Mahadeo Ram armed with

tangi who was assaulting to Tulsi Ram. Tulsi Ram sustained injury and fell

down on the ground. His younger son Kalinder Ram and his grandson

Ashok Kumar was also attracted there. Tulsi Ram was rushed to the hospital

Khunti and thereafter was referred to RIMS.

In cross-examination this witness says Mahadeo Ram was his

nephew (bhatija).

10.7. PW7- Basant Saw in his examination-in-chief says on

16.04.2006 he was ASI in the police station concerned and he recorded the

fardbeyan of the informant in RIMS hospital. The investigation of the

aforesaid case crime was handed over to him. He first recorded the

restatement of informant and thereafter recorded the statement of Kalinder

Ram, Jivdhan Ram Ganjhu, Ram Narayan Ram, Birendra Ram and others.

On 22.04.2006 he recorded the restatement of informant, he

identified the signature on the formal FIR marked exhibit-2.

10.8 PW8- Kalindra Ram in his examination-in-chief says that the

occurrence was of 13.04.2006 it was 2:15 O'clock in night he was sleeping

in his room. Having heard the rescue call raised by Tulsi Ram he came out

and saw Mahadeo Ram assaulting him with tangi. His nephew Ashok

Kumar and his father also came there and made Mahadeo Ram to flee away.

7 Cr. Appeal (SJ) No. 575 of 2011

Tulsi Ram was rushed to the hospital by them to Khunti from there he was

referred to RIMS.

In cross-examination this witness says Tulsi Ram injured his

elder brother. There was moon light in the night at the time of occurrence.

He and Ashok Kumar both were sleeping in the nearby room and having

heard hullah immediately reached at the place of occurrence and the blood

was also at the place of occurrence.

10.9 PW9- Dr. Vijay Kumar in his examination-in-chief says on

14.04.2006 he was Lecturer in RIMS, he conducted the medical examination

of Tulsi Ram there were following injuries on his body:

(i) Lacerated wound over left shoulder size 3" X 1" X 1"

mussle deep (ii) lacerated wound over left temporal bone size 3" X 1" X 1"

(iii) lacerated wound over mid thigh right side size 1½" X 1" X muscle deep

(iv) Sharp cut injury over left wrist 1" above joint bone deep and laceration

of all exlensor lender of fingers. Wound bone deep size 4" X 2" X 1".

The nature of injury was grievous. The fracture was at the

radius bone of hands. All the injuries may be caused by tangi. The injury

report is in his pen and bear signature marked exhibit-3.

11. The prosecution case is based on direct evidence.

12. The eye witnesses of the occurrence are PW5 Tulsi Ram injured

himself, PW1- Ashok Kumar, son of informant, PW6- Jhivdhan Ram

Ganjhu father of informant, PW8- Khalindra Ram brother of informant Tulsi

Ram.

13. PW5- Tulsi Ram is the victim of the occurrence and is the

injured eye witness. He has stated that on the intervening night of 13/14.

04.2006 at 2:15 in the night he felt pain in his stomach and went out of the 8 Cr. Appeal (SJ) No. 575 of 2011

house to respond the call of nature. When he came back to his house, he saw

Mahadeo Ram armed with tangi who assaulted him with the tangi

repeatedly whereby he sustained injury on his head, hand, thigh, shoulder

and other parts of body. Hearing the alarm raised by him his son Ashok

Kumar who was examined as PW1, his father PW6- Jhivdhan Ram Ganjhu

and his brother PW8- Khalindra Ram also attracted there. All of them made

Mahadeo Ram to flee away from there. They took him to the hospital in

Khunti where from he was referred to RIMS. He gave the written

information his fardbeyan was recorded on 16.04.2006 in the hospital by the

police officer which marked as exhibit-1 and on the same the case crime was

registered. This witness also says that the assailant/ accused Mahadeo Ram

was his cousin brother. He also stated that having sustained the injury he did

not become unconscious.

13.1. The testimony of this witness PW5- Tulsi Ram who is the

injured eye witness and victim of the occurrence is found in consonance

with the contents of the FIR, the written information of which was given

by him marked as exhibit-1 and also found in consonance with his

restatement under section 161 of Cr.PC. No contrary conclusion could

be drawn on behalf of the prosecution from the testimony of this

witness.

13.2. The testimony of an injured eye witness holds much

significance reason being here injured witness will never conceal the real

culprit.

13.3 The Hon'ble Apex Court in "Vijay Shankar Shinde v. State of

Maharashtra" AIR 2008 SC 1198 held:

"8. Though the Trial Court observed that PWs 9 and 11 may have tried to exaggerate because former was the widow and 9 Cr. Appeal (SJ) No. 575 of 2011

latter was injured victim, the evidence of PWs 12 and 13 establish the prosecution version.

9. The Trial Court was not justified in holding that because PW11 was an injured witness he may have reason to falsely implicate the accused. However, as rightly observed by the Trial Court and the High Court, the evidence of PWs 12 and 13 does not suffer from any deficiency. PWs 11, 12 and 13 were cross- examined at length but nothing substantial could be elicited to destroy the credibility of their version. As a matter of fact, the evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant.

10. The Trial Court as well as the High Court have rightly placed reliance on the evidence of the eye-witnesses and as noted above their evidence was clear and cogent."

14. The eye witnesses of the occurrence are also PW1- Ashok

Kumar, PW6- Jhivdhan Ram Ganjhu, PW8- Khalindra Ram. PW1

Ashok Kumar is the son of informant (injured). PW6- Jhivdhan Ram Ganjhu

is the father of informant (injured) Tulsi Ram and PW8- Khalindra Ram is

the brother of injured informant Tulsi Ram.

14.1 From the testimony of all these eye witnesses it is found that

PW1 Ashok Kumar, PW6- Jhivdhan Ram Ganjhu and PW8- Khalindra

Ram all the three were also sleeping in the very house in separate room

who having heard the hullah raised by injured PW5- Tulsi Ram came

out of the room and all the three saw Mahadeo Ram armed with tangi

who was assaulting to Tulsi Ram. All these three witnesses says that

hearing hullah they immediately came out of the room and made assailant

Mahadeo Ram to flee away from there. All these three witnesses have also

stated that they had seen the assailant Mahadeo Ram inflicting injuries

with tangi as such the testimony of these three eye witnesses also

corroborates the testimony of injured eye witness PW1- Tulsi Ram.

10 Cr. Appeal (SJ) No. 575 of 2011

There is no contradiction in the statement of all these three eye witnesses

given before the trial court and also their statement under section 161 of

Cr.PC.

14.2. The learned counsel for the appellant had raised the plea that

these eye witnesses PW1- Ashok Kumar, PW6- Jhivdhan Ram Ganjhu,

PW8- Khalindra Ram are the interested witness and close relative of the

injured Tulsi Ram therefore their testimony cannot be believed.

14.3. This plea raised by learned counsel for the appellant is not

found sustainable reason being that the presence of all these three

witnesses who are the eye witness of the occurrence is very natural.

Their presence at the place of occurrence cannot be doubted because

they were also in their rooms in the very house in which the injured

Tulsi Ram was assaulted by the appellant/convict.

14.4. The time of occurrence was 2:15 of night the presence of all

these eye witnesses at the place of occurrence cannot be disbelieved reason

being they came out having heard hullah, out of the adjoining room in which

they were sleeping. The place of occurrence is the courtyard of the house of

informant in which all these three witnesses the son of Tulsi Ram, PW1

Ashok Kumar and the father of informant PW6- Jhivdhan Ram Ganjhu and

brother PW8- Khalindra Ram all awoke having heard the hullah raised by

injured Tulsi Ram and they made the assailant flee away from there. Their

presence at the place of occurrence is not shaked in the cross-

examination on behalf of the defense while cross-examining all these

three eye witnesses.

14.5. The Hon'ble Apex Court in "Ashok Kr. Choudhary v. State of

Bihar" AIR 2008 SC 2436 has held that 11 Cr. Appeal (SJ) No. 575 of 2011

"7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive."

14.6. The Hon'ble Apex Court held in "Ravishwar Manjhi v. State

of Jharkhand" (2008) 16 SCC 561:

"30. Out of seven eyewitnesses, PW 7 was not believed by the courts below. PWs 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eyewitnesses were related to the deceased. However, we do not hesitate to add that only on that ground their evidences should not be disbelieved."

14.7. The Hon'ble Apex Court in "Mahavir Singh v. State of M.P."

(2016) 10 SCC 220 held:

"18. The High Court has attached a lot of weight to the evidence 12 Cr. Appeal (SJ) No. 575 of 2011

of the said Madho Singh (PW 9) as he is an independent witness.

On perusal of the record, it appears that the said person already

had deposed for the victim family on a number of previous

occasions, that too against the same accused. This being the

fact, it is important to analyse the jurisprudence on interested

witness. It is a settled principle that the evidence of interested

witness needs to be scrutinised with utmost care. It can only be

relied upon if the evidence has a ring of truth to it, is cogent,

credible and trustworthy. Here we may refer to chance witness

also. It is to be seen that although the evidence of a chance

witness is acceptable in India, yet the chance witness has to

reasonably explain the presence at that particular point more so

when his deposition is being assailed as being tainted."

14.8. As such in view of the time, place of occurrence which is inside

the house of the informant and the informant (victim) and the eye witnesses

all were the family members of the informant victim and were also sleeping

in their respective rooms in the very house who came out having heard the

alarm raised by the informant-victim and saw the assailant armed with tangi

assaulting to informant PW5- Tulsi Ram. The testimony of all these three

eye witnesses is found cogent and trustworthy same has ring of truth

and as such being the relative of the injured PW5- Tulsi Ram the same

cannot be discarded.

15. The testimony of the injured eye witness PW5- Tulsi Ram

and also the testimony of the eye witnesses PW1- Ashok Kumar, PW6-

Jhivdhan Ram Ganjhu, PW8- Khalindra Ram is corroborated with the

medical evidence. The injury report of injured PW5- Tulsi Ram has been

proved by PW9 Dr. Vijay Kumar. This witness in his statement has stated

that he conducted the medical examination of Tulsi Ram on 14.04.2006. He 13 Cr. Appeal (SJ) No. 575 of 2011

was posted as a Lecturer in RIMS at that time. He found the following

injuries on the body of injured Tulsi Ram: (i) Lacerated wound over left

shoulder size 3" X 1" X 1" mussle deep (ii) lacerated wound over left

temporal bone size 3" X 1" X 1" (iii) lacerated wound over mid thigh

right side size 1½" X 1" X muscle deep (iv) Sharp cut injury over left

wrist 1" above joint bone deep and laceration of all exlensor lender of

fingers. Wound bone deep size 4" X 2" X 1".

The nature of the injuries were grievous and the above

injuries were opined to be caused by tangi. This injury report has been

proved by PW9 Dr. Vijay Kumar as exhibit-3.

15.1. From the perusal of the injury report it is found that injury no.1

is the lacerated wound over the left shoulder. Injury no.2 is also the lacerated

wound over the left temporal bone 3" X 1" X 1". Injury no.3 is the lacerated

wound over the right thigh and injury no.4 is the sharp cut injury over left

wrist. All these four injuries corroborate the testimony of the injured

witness PW5- Tulsi Ram and also the testimony of the other eye witnesses

PW1 Ashok Kumar, PW6- Jivdhan Ram Ganjhu, PW8- Khalindra Ram. All

these witnesses have narrated the injuries which were sustained by the

injured Tulsi Ram inflicted by the appellant/convict Mahadeo Ram with

tangi.

15.2. As such the ocular evidence adduced on behalf of prosecution is

also corroborated with the medical evidence.

16. The ocular evidence adduced on behalf of prosecution is also

corroborated with the testimony of the investigating officer PW7- Basant

Sao. PW7- Basant Sao, investigating officer has stated that he has recorded

the statement of injured Tulsi Ram, his son Ashok Kumar, his father Jivdhan 14 Cr. Appeal (SJ) No. 575 of 2011

Ram and his brother Khalindra Ram. In his testimony no contradiction

could be drawn on behalf of the defence in cross-examination in regard

to the statement recorded by him of all the eye witnesses under section

161of Cr.PC who also gave their statement during trial which is in

consonance of their statement under section 161 Cr.PC.

17. On behalf of appellant this plea was also raised that the

investigating officer neither sent the blood stained soil and cloth, nor

recovered the weapon used in commission of the alleged offence. As such

the same is fatal to prosecution case. This plea raised by the learned

counsel for the appellant is not found sustainable reason being the

prosecution case is based on direct evidence. In case of a direct evidence

the recovery of the weapon used in commission of the offence not

sending them for examination to the FSL or not sending the blood

stained soil is not fatal. So far as the place of occurrence is concerned not

only the injured eye witness but all the eye witnesses and investigating

officer who inspected the place of occurrence there is no ambiguity in

regard to the place of occurrence. As such not sending the blood stained

soil and non-recovery of the weapon is not found fatal as the

prosecution case is based on direct evidence.

17.1. The Hon'ble Apex Court held in "Mohd. Jamiludin Nasir v.

State of W.B" (2014) 7 SCC 443:

"57. As far as the contention made on behalf of the appellant that non-production of the weapon used in the attack is fatal to the case of the prosecution is concerned, the reliance placed by the learned Additional Solicitor General upon the decision in Ram Singh v. State of Rajasthan [Ram Singh v. State of Rajasthan, (2012) 12 SCC 339 : (2013) 4 SCC (Cri) 661] would meet the said contention. In paras 8 and 10, this Court has also held 15 Cr. Appeal (SJ) No. 575 of 2011

that the non-production of the weapon used in the attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is also rejected."

17.2. The Hon'ble Apex Court in "State of Punjab v. Hakam Singh"

2005 (7) SCC 408 held:

"13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident."

18. Herein the provisions of section 307 of IPC would be pertinent

which is reproduced hereinbelow:

"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 [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life-convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]"

18.1. The ocular evidence which is found trustworthy and cogent and

is corroborated with the medical evidence. All the ingredient for the offence

or attempt to murder is made out as the appellant/convict had assaulted

with deadly weapon tangi to the injured PW5- Tulsi Ram. The repeated

blow given by him on the several body part of the injured as on 16 Cr. Appeal (SJ) No. 575 of 2011

shoulder, hand, thigh and temporal region. All these injuries, as per

medical evidence, were grievous in nature. The injury no.2 was on

temporal region which is vital part of the body. The repeated blow given

by the appellant Mahadeo Ram with tangi to the injured PW5- Tulsi

Ram causing grievous injuries shows his intention and knowledge to

commit murder, as on account of causing such injuries death would

have caused of the injured. As such the offence under section 307 of IPC

is squarely made out against the appellant/convict from the prosecution

evidence.

18.2. The Hon'ble Apex Court in "State of M.P. v. Harjeet Singh"

2019 (20) SCC 524 held:

"5.6.3. If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 IPC would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing "hurt" is sufficient to attract Section 307 IPC. [State of M.P. v. Mohan, (2013) 14 SCC 116 : (2014) 4 SCC (Cri) 119] 5.6.4. This Court in Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] held that: (SCC p. 370, para 12)

12. For the purpose of conviction under Section 307 IPC, 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 17 Cr. Appeal (SJ) No. 575 of 2011

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."

19. So far as the plea raised by the learned counsel for the appellant

that while recording the statement of convict under section 313 of Cr.PC the

specific questions were not put to the accused showing incriminating

circumstances in this case. Herein from the very perusal of the statement of

convict/appellant under section 313 of Cr.PC it is found that the specific

question was also put to the accused even if, for the shake of argument, in

detail, the evidence has not been explained there is nothing to show on

behalf of convict/appellant that what prejudice was caused to him by

not explaining the evidence while recording statement under section 313

of Cr.PC.

19.1 The Hon'ble Apex Court in "Liyakat and another v. State of

Rajasthan" 2014 4 Crimes (SC) 271 held:

26. The decisions of this Court quoted hereinabove would show the consistent view that a defective examination of the accused under Section 313 Cr.P.C. does not by itself vitiate the trial. The accused must establish prejudice thereby caused to him. The onus is upon the accused to prove that by reason of his not having been examined as required by Section 313 he has been seriously prejudiced.

29. The Court apprised the accused persons in a very elaborate manner about the incident that took place, the sequence of events and the material on evidence brought on record. The accused persons were fully aware about all these evidences. The appellants did not raise the question before the trial court that any prejudice has been caused to them in examination under Section 313 Cr.P.C. The burden is on the accused to establish that by not apprising all the incriminating evidences and the inculpatory 18 Cr. Appeal (SJ) No. 575 of 2011

material that had come in the prosecution evidence against them, prejudice has been caused resulting in miscarriage of justice. In the instant case, we are of the definite view that no prejudice or miscarriage of justice has been done to the appellants.

19.2. In the case in hand from the very perusal of the statement of

convict under section 313 of Cr.PC it is found that the question no.1 was put

to him that the evidence of the witnesses was explained to him he replied the

same positively. The question no.2 was that on 14.04.2006 at 2:15 in the

night he assaulted with tangi with intent to commit murder of Tulsi Ram this

question was replied by him in negative. As such on behalf of the appellant/

convict nothing is shown neither at the stage of trial nor at the stage of

appeal that what prejudice was caused from the statement under section 313

of Cr.PC of convict to the appellant. While the burden of proof also shifts

upon the accused to show the prejudice caused to him not explaining

any incriminating circumstances in evidence if any.

19.3. The Hon'ble Apex Court in "Alister Anthony Pareira v. State

of Maharashtra" (2012) 2 SCC 648 held:

"61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating 19 Cr. Appeal (SJ) No. 575 of 2011

evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice."

20. In view of the analysis of the evidence as given hereinabove, I

am of considered view that the prosecution has been successful to prove the

charge framed against the appellant/convict beyond reasonable doubt). The

impugned judgment of conviction and order of sentence passed by the court

below needs no interference and this criminal appeal deserved to be

dismissed.

21. This criminal appeal is, hereby, dismissed. The impugned

judgment of conviction and order of sentence passed by the court below is,

hereby, confirmed.

22. The appellant/convict is on bail, his bail bonds are cancelled

and the sureties are discharged from their liabilities. The appellant is

directed to surrender before the trial court. The trial court is also directed to