Saudan Singh @ Chotu vs The State Of Mp
2021 Latest Caselaw 9095 MP

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Cr.A. No.671/1998                                      -1-




                                        Cr.A. No.671/1998

                           Soudan Singh @ Chotu and others

                                                      Vs.

                                   State of Madhya Pradesh

...............................................................................................................
          Shri Rajesh Yadav, learned counsel for the appellants.

      Ms. Bharti Lakkad, learned government advocate for the
respondent/State.
.................................................................................................................

                                JUDGMENT

(Passed on this 22nd day of December, 2021)

The appellants have preferred this present appeal under Section 374 of Code of Criminal Procedure (in short "Cr.P.C") being aggrieved by judgment of conviction dated 27.05.1998 passed by II Additional Sessions Judge, Ratlam in Sessions Trial No.97/97 by which the appellant No.3- Shyam has been convicted for the offence under Section 307 of Indian Penal Code (in short "IPC") and sentenced to undergo 7 years' rigorous imprisonment along with fine of Rs.1000/- and in lieu of payment of fine amount further to undergo 6 months' rigorous imprisonment. The appellant No.1- Soudan Singh and appellant Nos.2- Dinesh Dubey have been convicted for the offence under Section 307 r/w 34 of IPC and sentenced to undergo 5 years' rigorous imprisonment along with fine amount of Rs.1000/- and in lieu of payment of fine amount further to undergo 6 months' rigorous imprisonment.

02. During pendency of this appeal, both the parties have HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

entered into a compromise and they have moved applications i.e. I.A. No.131/2019 and I.A. No.132/2019 for recording their compromise. This Court vide order dated 23.01.2019 came to a conclusion that offence under Section 307 of IPC is non- compoundable, therefore, I.A. No.131/2019 and I.A. No.132/2019 are not maintainable and accordingly, these applications are hereby dismissed.

03. Brief facts of the case are that there was a friendship between Lalchand and Goriya. Lalchand had to receive payment for the bricks supplied to Shyam. On 6.02.1997, Lalchand PW-6 and Dinesh PW-8 went to take payment from Shyam but, Shyam started abusing them in filthy manner, therefore, Goriya returned from there without saying anything. At about 09.30 p.m., Goriya was sitting outside of the Ansar Cycle Store along with Lalchand, the appellants/accused persons- Shyam, Soudan Singh and Dinesh Dubey came there and Shyam asked Goriya, "why are you demanding money" and he stabbed Gupti on the abdomen of Goriya, due to which Goriya sustained grievous injuries and he was brought to hospital where his MLC was conducted and he launched Dehati Nalishi. On the basis of Dehati Nalishi, F.I.R. was registered against the appellants.

04. Dr. B.L. Chaturvedi, PW-1 examined the victim and found a cut injury of 1 ½'' X 1'' on the abdomen region and the omentum was coming out from the wound. The injury was found serious in nature, which was operated by Dr. R.P. Sinha PW-4 and it was also found that due to above injury, a cut injury was found on liver and peritoneum cavity and during operation, wound was stitched. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

During investigation, police recovered Gupti from the possession of the appellant-Shyam. Blood stained Baniyan and Shirt were also found from victim Goriya. All the articles were sent for medical analysis and as per FSL report, human blood was found over all the articles and accused persons were arrested. After completion of the entire investigation, charge-sheet was filed under Section 307 r/w 34 of IPC against the appellants/accused persons before the Judicial Magistrate First Class, Alot, Distt.- Ratlam who committed the case to the court of Sessions Judge, Ratlam, which was transferred to II-Additional Sessions Judge, Ratlam for trial. The trial court on the basis of the allegations made in the charge-sheet framed charges for the offence punishable under Section 307 r/w 34 of IPC.

05. All the appellants abjured their guilt and pleaded innocence in the trial court. In order to bring home the guilt, the prosecution examined as many as 11 witnesses and placed Ex.P-1 to Ex.P-25 on record. The defence of the appellants is of false implication. Same defence was taken forthwith in their statements recorded under Section 313 of Cr.P.C. In support of their defence, they also examined one witness as defence witness. The trial court after due consideration of the evidence available on record convicted the appellants / accused persons as referred herein above.

06. Learned counsel for the appellants submits that trial court has erred while relying upon the statements of the witnesses and discarding the defence version. It was wrong held that appellant- Shyam caused injury to one Goriya and other accused persons with common intention along with Saudan caused such injuries. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

The injuries sustained by victim Goriya was not serious in nature and statements of both the doctors are not reliable. In absence of clear medical evidence, it should not be held that it is a case of Section 307 r/w 34 of IPC. The prosecution has not proved the case beyond reasonable doubt and statements of Goriya are not supported by other witnesses. Therefore, it is prayed that the present appeal be allowed and the appellants be acquitted from all the charges.

07. Per contra, learned panel lawyer for the respondent/State has supported the impugned judgment and order of conviction by submitting that learned trial court on proper appreciation of evidence has recorded the conviction and same does not call for any interference.

08. Heard the learned counsel for the parties and perused the record of the trial court with due care.

09. In order to appreciate the merits of the rival contentions in the right perspective, it is necessary to first advert the medical evidence on record. Dr. B.L. Chaturvedi, who conducted MLC of the victim Goriya has proved the under mentioned injuries over the abdomen of the victim Goriya. One incised wound having size 1 ½'' X 1'' over abdomen, but depth could not be measured due to omentum was also coming out of the wound and condition of the patient was serious. Above injuries seem to be caused by sharp cutting object within one hour of examination. The victim was referred to civil hospital, Jaora. His MLC report is Ex.P-1. Dr. B.L. Chaturvedi has also stated in his statements that after HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

inspection of the said weapon, he opined that injury was serious in nature and caused by the said arms. His query report is Ex.P-2. In the cross-examination, the appellant did not challenge the above statements of Dr. B.L. Chaturvedi and also the report Ex.P-1 and Ex.P-2 given by him, therefore, there is no reason to disbelieve his statement and above reports proved by him.

10. Dr. R.P. Sinha, PW-4, the then surgical expert posted at civil hospital, Ratlam testified that victim Goriya was admitted in district hospital at Ratlam and he had sustained injuries on the apigestic region of the abdomen due to which he was operated by him. He found that there was a cut injury in the middle lope of the liver having size ¾'' X ¼'' and blood was oozing from the wound, which was repaired. A cut was found on the peritoneum cavity, which was also repaired. The victim was admitted in the ward till 24.02.1997 and his medical slips are Ex.P-10 to Ex.P-16. The statement of Dr. R.P. Sinha was not challenged by the appellants during his cross-examination, therefore, unrebutted statements of Dr. R.P. Sinha PW-4 cannot be disbelieved. Hence, the statements of Dr. B.L. Chaturvedi PW-1 and Dr. R.P. Sinha PW-4 are unrebutted and reliable and already supported by MLC report Ex.P-1, query report Ex.P-2 and other treatment slips Ex.P-10 to Ex.P-15, therefore, on the basis of the entire medical evidence, it had been proved by the prosecution that victim Goriya sustained grievous injuries over his abdomen caused by using sharp cutting weapon.

11. Now, the next question for consideration is whether the appellant is the author of the injuries or not. The victim Goriya HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

PW-9 stated in his statement that on 16.02.1997 at about 08.30 p.m., he was sitting close to cycle shop of Ansar along with Lalchand and at that time, all the accused persons came there and Shyam started abusing him saying, "You need too much money" and he stabbed Gupti in his abdomen and blood started oozing out and then all of the accused persons fled away from the spot. Goriya also narrated that about 8 days prior to the date of the incident, Lalchand demanded money from the father of Shyam for the brick supplied to him and Lalchand sent Dinesh to Shyam for demanding the payment at that time, Shyam started abusing him in filthy language and threatened him by showing knife.

12. Goriya further stated in his statements that his brother Iqbal and Lalchand brought him to the hospital and when the police came there, he launched a report Ex.P-20. He was sent to hospital for treatment, then he was admitted in the hospital at Ratlam, where he remained for 16-17 days. Test identification parade was conducted in the jail and he identified Dinesh at that time. The eye witness Lalchand PW-6 has also deposed in his statements that at the time of incident, he was sitting before cycle shop of Ansar at that time Shyam came there and he stabbed Gupti over the abdomen of Goriya. Dinesh PW-8 has also stated in his statements that his elder brother Lala supplied about 2000 bricks to the appellant -Shyam and when his mother went to house of Shyam for taking payment of the bricks then family members of Shyam told her that brick are not good and they will pay accordingly. Dinesh turned hostile and not supported the prosecution version.

13. Learned counsel for the appellants submits that there are so HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

many material contradictions and omissions in the statements of Goriya PW-9 and the statements of the eye witness Lalchand PW-

6. It is true that Goriya stated that at the time of incident, Shyam abused him in filthy language but, Lalchand did not disclose the version of specific words of filthy language. Goriya stated that prior to the incident, Dinesh was sent for demanding the payment of the bricks supplied to Shyam at that time Shyam abused him and knife was shown to him. But Lalchand did not support this version even Dinesh has also not stated regarding any such incident. But, this Court finds that such contradictions and omissions are trivial in nature and neither material nor sufficient to wholly discard these witnesses.

14. In the case of State of A.P. Vs. Vs. Pullugummi Kasi Reddy Krishna Reddy (2018) 7 SCC 623, the Supreme Court has held as under:-

"Discrepancies which do not shake the credibility of the witnesses and the basic version of the prosecution case to be discarded. If the evidence of the witnesses as a whole contains the ring of truth, the evidence cannot be doubted."

15. In the cases of State of M.P. Vs. Chhaakkilal and others and Ramveer and Chhaakki Lal and another, 2018 (4) Crimes 238 (SC), it has been observed that finding recorded by trial Court is entitled to great weight. The same cannot be interfered with unless vitiated by serious error. It is also observed that the evidence as a whole having a ring of truth cannot be discarded merely because the maker is a related witness. Conviction can be based on evidence of solitary eye witness. It is further observed that HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

omissions or lapses in investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

16. Learned counsel for the appellant submits that there are some discrepancy between the ocular evidence and evidence of the eyewitnesses, but no material discrepancy has been found in the statement of the victim Goriya (PW-9) and eyewitness Lalchand (PW-6). Although, Goriya has stated that Shyam had stabbed Gupti in his abdomen and Dr. B.L. Chaturvedi PW-1 supported it. Some injury was found in the abdomen and the omentum was coming out of the wound but it it not material contradictions. In this regard the Hon'ble Supreme Court in the case of Yunis @ Kariya Vs. State of M.P. reported in (2003) 1 SCC 425 has held as under:-

"6. Coming to the alleged discrepancy between medical evidence and evidence of the eyewitnesses, it is to be noted that at least three injuries referred to by the autopsy surgeon and forming part of the medical evidence and as stated by the eyewitnesses are common. These three injuries are by themselves sufficient to cause death. The autopsy surgeon has not mentioned the knife injury on the back side of the buttock and another injury. The mere non mention of the two injuries by the autopsy surgeon does not and cannot lead to rejection of the prosecution case. The two injuries might have escaped the notice of the doctor. Both the courts below have found the prosecution case to be fully established and proved beyond any doubt whatsoever and we see no reason to take a different view."

17. Learned counsel further contended that eye witness Lalchand PW-6 and his brother Dinesh PW-8 were the friends of victim Goriya, therefore, being interested witnesses, their statements cannot be relied upon.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

18. The Supreme Court in the case of Mahavir Singh Vs. State of M.P. reported in (2016) 10 SCC 220 has held as under:-

"18. The High court has attached a lot of weight to the evidence 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.

19. A contradicted testimony of an interested witness cannot be usually treated as conclusive. The said Madho Singh (PW-9) has admitted that he has been a witness in another case against the accused for the deceased. Here it is to be seen that the said Madho Singh (PW-9) has been acting as a pocket witness for the family. Further, the credibility of this independent witness can be challenged on the fact that the commotion was only heard by the said Madho Singh (PW-9) whereas the rest of the members of the locality did not come for help. As Madho Singh(PW-9) is a chance witness as well as an interested witness herein, causes suspicion and does not inspire confidence. This admission by Madho Singh (PW-9) not only forces us to doubt the veracity of his own deposition but also has created doubts on the version of Gambhir Singh (PW-7)."

19. The Supreme court in the case of Harbeer Singh Vs. Sheeshpal & Ors., reported in (2016) 16 SCC 418 has held as under:

"18. Further, the High court has also concluded that these witnesses were interested witnesses and their testimony was HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.

20. Therefore, in view of the above law laid down by the Hon'ble Apex Court, this Court is not inclined to accept the contention of the learned counsel for the appellants to disbelieve the testimonies of victim Goriya PW-9 along with eyewitness Lalchand (PW-6) and other witnesses. It is true that Lalchand PW- 6 and Dinesh PW-8 are friends of the victim, but their presence on the spot was quite natural and their versions are also trustworthy and reliable, which are duly corroborated by the medical evidence and evidence of Sub Inspector Shri Prahlad Singh Tomar PW-10, who arrested the accused persons and recovered Gupti from the possession of appellant - Shyam. Sub-inspector Prahlad Singh Tomar has further stated in his statements that on 26.02.1997, he recovered one Shirt and one Baniyan from the victim Goriya vide seizure memo Ex.P-17. This witness has also stated that the seized Gupti and seized clothes of the victim were sent to FSL for chemical examination. The chemical examination report is Ex.P-

23. As per FSL report, human blood was found over the Gupti and on the seized Shirt and Baniyan of the victim.

21. But, the scrutiny of the entire evidence laid by the prosecution, it is clearly established beyond reasonable doubt that the appellant - Shyam started abusing to the victim and on the objection of the victim, he gave blow of Gupti on the abdomen of the Victim. The statement of victim Goriya PW-9 has been duly corroborated by the medical evidence as well as by the statement HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

of Lalchand PW-6. On the basis of the statements of eye witness and medical evidence, which is assessed by the doctors, the injury is serious in nature and dangerous to life, it is established that appellant Shyam had caused grievous injuries to the victim Goriya. Hence, I do not find any infirmity insofar as the reasoning given by the trial Court in respect of offence of appellant- Shyam.

22. Considering all the circumstances and facts available on record in the present case as referred above clearly shows that the appellant- Shyam was having intention or at least knowledge that his act of inflicting Gupti blow on the abdomen of the injured may cause his death. The appellant used a sharp edged weapon like Gupti which he was already carrying with him, the blow was aimed at a vital part of the body with sufficient force so as to injured was operated upon and victim remained in hospital for the treatment for 16-17 days.

23. So far as the offence regarding other appellants Soudan Singh and Dinesh Dubey is concerned, the victim Goriya has stated that all 3 accused persons came on the spot, but only Shyam abused him and stabbed Gupti on his abdomen. Victim-Goriya and eye witness Lalchand did not state anything regarding active participation of the accused /appellants Soudan Singh and Dinesh Dubey. As per the prosecution version, both these appellants were present with the accused Shyam but, they did not carry any deadly weapon at the time of incident and they did not say any thing to the victim or any other person.

24. In the case of Pandurang Vs. State of Hyderabad, as HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

reported in AIR 1955 SC 216, a three Judge Bench of Supreme Court has held that to attract the applicability of Section 34 of the Code, prosecution is under an obligation to establish that there existed a common intention, which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all.

25. In the present case, there is no evidence available on record that there existed common intention and act must have been done in furtherance of the common intention of all the accused persons, therefore, conviction of the appellants - Soudan Singh and Dinesh Dubey cannot be said to be justified and it deserves to be set aside.

26. So far as the question of sentence to the appellant - Shyam is concerned, trial court has awarded him jail sentence of rigorous imprisonment for 7 years with fine of Rs.1000/-. The appellant- Shyam was aged about 20 years at the time of incident and he has long life to live. During the pendency of the appeal, both the parties have entered into a compromise but, offence under Section 307 of IPC is non-compoundable, therefore, compromise application was dismissed. No minimum sentence has been provided for the offence under Section 307 of IPC. The incident is of the year 1997 and the appellant Shyam has suffered jail incarceration for some period also. Hence, while upholding the conviction of the appellant- Shyam under Section 307 of IPC, I deem it proper to reduce the quantum of sentence imposed upon him from 7 years to 3 years. Accordingly, criminal appeal is partly allowed to the extent the appellant - Shyam is concerned.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

27. So far as the judgment convicting the appellants- Soudan Singh and Dinesh Dubey under Section 307 of IPC is concerned, the same is set aside. The appellants- Soudan Singh and Dinesh Dubey are discharged from the charges under Section 307 r/w 34 of IPC. They are on bail, their bail bonds stand discharged. The fine amount deposited by them be returned to them.

28. So far as the criminal appeal of appellant- Shyam is concerned, the same is partly allowed by maintaining the conviction under Section 307 of IPC by reducing the sentence from 7 years to 3 years. The fine amount of Rs.1000/- is also maintained. Appellant-Shyam is on bail. His bail bonds be cancelled. He is directed to appear before the trial court on 20.01.2022 so as to undergo remaining sentence awarded to him. If he fails to do so, the trial court shall take necessary steps including issuance of warrant of arrest for his production before the court so as to undergo the sentence awarded to him.

With the aforesaid modification, the present appeal stands disposed of.

Let a copy of this judgment be communicated to the concerned trial court for necessary action.

Certified copy as per rules.

(Anil Verma) Judge N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2021.12.23 18:37:27 +05'30'