Kailash vs The State Of Madhya Pradesh
2021 Latest Caselaw 248 MP

                                      1   CRA Nos.4695 and 5812 of 2017 & 935 of 2018

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

            S.B.: Hon'ble Shri Subodh Abhyankar J.

                  Criminal Appeal No.4695 of 2017
                  Siyaram S/o Ramswarup Pathak
                                Versus
                      State of Madhya Pradesh
                          ***************

                  Criminal Appeal No.5812 of 2017
                   Kailash S/o Roshan Kumawat
                               Versus
                     State of Madhya Pradesh
                         ***************

                                AND
                  Criminal Appeal No.935 of 2018
                   Ankush S/o Suresh Kushwaha
                               Versus
                     State of Madhya Pradesh
                         ***************

        Shri Bipin Kumar Singh, Counsel for the appellant - Siyaram
(in Cr.A. No.4695/2017).
        None appears for appellant - Kailash (in Cr.A. No.5812/2017).
        Shri Rajesh Joshi, Counsel for the appellant - Ankush (in Cr.
A. No.935/2018).
        Shri Bhaskar Agrawal, Panel Lawyer for the respondent/State.


                                *****
                           JUDGMENT

(Delivered on 26/02/2021)

1. This judgement shall also govern the disposal of other

connected appeals as all these three appeals have arisen out of the

judgement dated 30.10.2017 passed in S.T. No.880/2012 by VIIth

A.S.J., Indore whereby finding the appellants guilty, the learned

Judge of the trial Court has convicted them as under:-

      Conviction                        Sentence
     Section Act Imprisonment        Fine             Imprisonment in
                                                      lieu of Fine
     307/34   IPC 7 years R.I.       Rs.2000/-        4 months S.I.
     324/34   IPC 2 years R.I.       Rs.800/-         40 days S.I.
     506 II   IPC 4 months R.I.      Rs.300/-         20 days S.I.

2. At the outset, Counsels appearing for the appellants have

submitted that they are not pressing the appeals on merits, however,

looking to the period of incarceration of the appellants, seeking

reduction in their jail sentence to the period already undergone by

them. Shri Bipin Kumar Singh, Counsel for the appellant - Siyaram

has also submitted that no overt act is attributed to him by the the

injured witnesses hence he cannot be convicted with the aide of s.34

of IPC.

3. In Criminal Appeal No.5812/2017 (Kailash vs. State) as

nobody has appeared, hence this Court has requested to Shri Bipin

Kumar Singh, Counsel to address this Court on behalf of the

appellant - Kailash.

4. Before adverting to the facts of the case, so far as the relief of

the sentence already undergone by the appellants is concerned, on the

issue of reduction of sentence, this court can fruitfully rely upon a

decision of the Supreme Court, in the case of State of M.P. v.

Mohan, (2013) 14 SCC 116, relevant paras of the same read as under

:-

"10. PW 14, the doctor, has explained the nature of injuries and use of the firearm for causing the injuries. The firearm, it is proved, was used repeatedly against the complainants, causing bodily hurt. This Court had occasion to consider the scope of Section 307 IPC in Sadha Singh v. State of Punjab [(1985) 3 SCC 225 : 1985 SCC (Cri) 359], wherein the trial court awarded the substantive sentence of three years of rigorous imprisonment and also imposed a fine, which were reduced by the High Court to a period of three months of imprisonment already undergone by the accused, but by enhancing the fine. This Court held that the reduction of the sentence was not justified. In that case also, the doctor opined that the injuries were caused by firearm, just like the present case. This Court, reversing the judgment of the High Court and upholding that of the trial court, held as follows: (SCC p. 229, para 8) "8. If the learned Judge had in mind the provisions of Section 360 CrPC so as to extend the benefit of treatment reserved for first offenders, these appellants hardly deserve the same. Admittedly, both the appellants were above the age of 21 years on the date of committing the offence. They have wielded dangerous weapons like firearms. Four shots were fired. The only fortunate part of the occurrence is that the victim escaped death. The offence committed by the appellants is proved to be one under Section 307 IPC punishable with imprisonment for life. We were told that the appellants had hardly suffered imprisonment for three months. If the offence is under Section 307 IPC i.e. attempt to commit murder which is punishable with imprisonment for life and the sentence to be awarded is imprisonment for three months, it is better not to award substantive sentence as it makes mockery of justice."

11. This Court in State of M.P. v. Sangram [(2009) 17 SCC 370 : (2011) 1 SCC (Cri) 1034 : AIR 2006 SC 48] took strong exception in the manner in which the High Court, while disposing of the criminal appeal, reduced the sentence without application of mind. That was also a case where the accused was charge-sheeted for offence punishable under Section 307 IPC. The trial court imposed the sentence of seven years' rigorous imprisonment, which was reduced by the High Court to one year, without stating any satisfactory reasons for reduction of sentence. This Court held as follows: (SCC p. 371, para 4) "4. The High Court has not assigned any satisfactory reason for reducing the sentence to less than one year. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting complete non-application of mind. There is absolutely no consideration of the evidence adduced by the parties."

12. We are of the view that in spite of various judicial pronouncements of this Court, we have come across several cases where the High Courts are committing the same mistake and reducing the sentence without application of mind and stating no reasons. In a

case where the accused persons have already been found guilty under Section 307 IPC, we fail to see how the sentence of about 20 to 50 days or 211 days in the case of accused Ummed Singh, would be an adequate sentence. Sentence already undergone, in our view, is not commensurate with the guilt established. If the High Court considers it fit to reduce the sentence, it must state reasons, for the reduction.

13. The High Court, in our view, while reducing the sentence, has not properly appreciated the scope of Section 307 IPC under which the respondents were found guilty. The relevant portion of Section 307 reads as follows:

"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..."

14. The High Court was of the opinion that the injuries have not been caused on the vital parts of the body. In order to attract Section 307, the injury need not be on the vital parts of the body. In order to attract Section 307, causing of hurt is sufficient. If anybody does any act with intention or knowledge that by his act he might cause death and hurt is caused, that is sufficient to attract life imprisonment. Section 307 uses the word "hurt" which has been explained in Section 319 IPC and not "grievous hurt" within the meaning of Section 320 IPC. Therefore, in order to attract Section 307, the injury need not be on the vital part of the body. A gunshot, as in the present case, may miss the vital part of the body, may result in a lacerated wound, that itself is sufficient to attract Section 307. The High Court is, therefore, in error in reducing the sentence, holding that the injury was not on the vital part of the body. Period undergone by way of sentence also in our view is not commensurate with the guilt established.

15. We also have to remind ourselves the object and purpose of imposing adequate sentence. Reference may be made to the judgment of this Court in State of M.P. v. Saleem [(2005) 5 SCC 554 : 2005 SCC (Cri) 1329 : AIR 2005 SC 3996] : (SCC pp. 558-59, paras 8-10) "8. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

9. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect

of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'."

16. We, therefore, find no good reason to interfere with the judgment of the trial court. Consequently, the appeal is allowed and the judgment of the High Court reducing the sentence is set aside and the judgment and order of the trial court are restored." (emphasis supplied)

5. On the anvil of the aforesaid dictum, it has to be seen if the

sentence of the present appellants deserves any leniency or not. In

brief the facts of the case are that on 03.04.2012 at around 8:30 AM

when the complainant Sarita was at her home, at that time appellant

Siyaram and his friends the other two appellants came and assaulted

her with knife.

6. It is alleged that appellant Kailash caught hold of the

complainant, whereas appellant Ankush stabbed her in the abdomen

and when complainant's son Ankur also came to rescue her, he was

also inflicted knife injuries on the left side of the chest by the

appellant Ankush and thereafter the appellants ran away from the

spot. The complainant was taken to the Bhandari Hospital, where she

and her son were admitted and thus, on the basis of the Dehati

Nalshi Ex.P/1 recorded in the Hospital, FIR was registered at Crime

No.250/2012 vide Ex.P/2. Complainant Sarita PW-2 also gave her

dying declaration Ex.P/3. A query was also sent to the doctor

regarding the injuries suffered by the injured Ankur. The accused

persons were subsequently arrested and the knife used in the incident

was also recovered at the instance of appellant Ankush.

7. Learned Judge of the trial Court after recording the evidence

has convicted the appellants as aforesaid.

8. Counsels for the appellants have submitted that there are

material discrepancies in the deposition of the witnesses and even

assuming the incident to be true, the sentence awarded to the

appellants is on higher side.

9. Counsel for the State, on the other hand, has opposed the

prayer and submitted that no case for interference in the impugned

judgment is made out as sentence awarded to the appellants is also

just and proper under the facts and circumstances of the case and

thus, it is submitted that the appeals be dismissed.

10. Heard Counsel for the parties and perused the record.

11. From the record, it is found that so far as the complainant

Sarita (PW-2) is concerned, as per her MLC and deposition of doctor

(PW-7) Manoj Kaila, she has received simple injury, however, the

description of which is as under:-

"A stab injury of 2 cm on the right side of the stomach."

12. So far as the injured Ankur (PW-3) is concerned, he received

the following injuries as per doctor Manoj Kaila (PW-7):-

"In the middle of his chest a stab wound 2 cm width.

A stab wound on the left side of his stomach.

On the left shoulder another stab wound of 2 cm width."

13. Dr. Kaila has also stated that the injuries caused to the

complainant Sarita and her son Ankur can be caused by the knife,

which has been used during the course of investigation.

14. PW-2 Sarita in her deposition has stated that the appellants had

come to her house on the pretext of apologizing to her regarding the

last night's incident and asked for water and when she came back

with a jug of water, appellant - Ankush Kushwaha caught hold of her

and pushed her on the ground and appellant Kailash stabbed her,

whereas appellant - Siyaram was standing behind these two persons

and was exhorting the other accused persons and when she shouted

and called her son Pw-3 Ankur, appellant Kailash assaulted him with

knife on his chest and stomach. Both these witnesses have not been

confronted with their 161 statements given to police wherein the

overt act is attributable to Ankush whereas subsequently in the

Court's statements, the main allegation is shifted from Ankush to

Kailash.

15. Counsels for the appellants have submitted that this is the

material omissions and contradictions on the part of the witnesses

and thus, they are entitled to plead that the sentence awarded to them

is on higher side.

16. On perusal of the injuries suffered by PW-2 Sarita, this Court

finds that she had also received injury in the nature of stab wound on

her stomach, which according to her deposition was inflicted by

Kailash.

17. In the considered opinion of this court the nature of injury

caused to Sarita may be simple, but when viewed in the light of the

case of Mohan (supra), the nature of injury is a immaterial and what

is relevant is the nature of the weapon which has been used to inflict

the injury. In the case at hand, it is not disputed that the complainant

Sarita and her son suffered multiple stab wounds and although there

is a deviation in respect of the version of the case wherein, in the

statements under Section 161 of Cr.P.C. it is alleged that it was

Ankush, who had inflicted the injury, however, in their depositions

before the Court, this overt act is attributed to Kailash. However, in

both these circumstances, the discrepancy cannot be said to be

material in any manner as both the witnesses have remained firm in

respect of the presence of all the accused persons on the spot and

merely if the overt act is attributed to other co-accused, it could not

be of any avail to the appellants. Otherwise also they have not been

confronted with their statements u/s.161 of Cr.P.C. So far as the

appellant Siyaram is concerned, Both the witnesses have been cross

examined on his behalf but his presence on the spot has remained

indelible and the allegation of his act of exhortation has also

remained unshaken.

18. It is also observed that the incident has taken place without any

provocation in the morning at around 8:30 A.M. whereby the

appellants entered into the house of the complainant Sarita on the

pretext of apologizing for their last night's behaviour where they

were causing nuisance to the other flat owners by playing loud music

and shouting after consuming liquor, but started assaulting the

complainant and her son with a knife, in a most reckless and flagrant

manner. The conduct of the appellants clearly demonstrate that they

had no concern if the complainant and her son lived or died which

also shows their lack of respect for the another human life and for

law.

19. In view of the same, although the appellants have already

suffered more than 2 - 4 years, out of 7 years imprisonment, this

Court is of the considered opinion that the appellants have been

adequately punished by the trial Court with the aide of S.34 of IPC

and the sentence of 7 years awarded to them cannot be said to be

exercised, unreasonable or unjustified. Thus, this Court finds that the

sentences so awarded to the appellants are just and proper,

commensurate to their acts and need no interference. Accordingly,

the appeals being devoid of merits are hereby dismissed.

20. Since, appellant Siyaram's sentence has already been

suspended by this Court vide order dated 21.03.2018, his bail bonds

stand cancelled. He is directed to surrender before the trial Court

immediately to serve the remaining part of his sentence.

(SUBODH ABHYANKAR) JUDGE Pankaj Digitally signed by Pankaj Pandey Date: 2021.02.26 17:33:02 +05'30'