Veersingh Kushwah vs The State Of Madhya Pradesh
2021 Latest Caselaw 900 MP

     1      THE HIGH COURT OF MADHYA PRADESH
                     Criminal Appeal 8401/2019
              Veer Singh Kushwah Vs. The State of M.P.

Gwalior, Dated:19/03/2021

         Shri Vinod Kumar Upadhyaya, Counsel for the appellant

         Shri B.P.S. Chouhan, Counsel for the State.

1.

Record of the Court below has been received.

2. Today the case is fixed for consideration of I.A. No.17339 of

2020 for suspension of sentence and grant of bail.

3. It is submitted by the Counsel for the appellant, that since, the

appellant has already undergone actual jail sentence of more than 3

years, out of the total jail sentence of Rigorous Imprisonment of

Seven years, therefore, the appeal may be heard finally.

4. Accordingly, the Counsel for the parties are heard finally.

5. This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 21-8-2019 passed by

Vth Additional Sessions Judge, Guna in S.T. No.115/2018, thereby

convicting the appellant for offence under Section 307 (2 nd part) and

under Section 326 of I.P.C. and sentenced him to undergo the

rigorous imprisonment of seven years and fine of Rs.1500/-, in

default to undergo rigorous imprisonment of 6 months. Since, the

offence under Section 326 of I.P.C. is minor offence, therefore, no

separate sentence has been awarded.

6. The prosecution story in short is that on 17-3-2018 at about

14:32, the complainant Hansraj Meena lodged a F.I.R., alleging that 2 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

the appellant and the injured Bhuralal were the employees of Birbal

Singh being the dumper drivers. The appellant had stolen diesel from

the dumper, and a complaint was made by the injured to the owner,

therefore, on 12-3-2018 at about 5:30 A.M., hot talk took place

between the appellant and the injured. The appellant started abusing

the injured. When it was objected by him, then the appellant

assaulted him by means of a Wheelpana on his head and face for

three to four times, as a result of which, the injured fell unconscious.

Birbal Singh also reached on the spot. After noticing him, the

appellant ran away. The injured was taken to hospital by the

complainant and Birbal Singh, where first aid was given. Since, the

injuries were serious, therefore, the injured was taken to Kota and

was admitted in Sudha Hospital. Information to the relatives of the

injured has been given. It was also alleged that due to the injuries,

the injured Bhuralal has not regained consciousness.

7. The police registered crime No. 40 of 2018 at Police Station

Myana, Distt. Guna for offence under Sections 323,294,506 and 307

of I.P.C.

8. The statements of witnesses were recorded, the medical

documents of the injured were collected, one Wheelpana was seized

from the possession of the appellant, plain and blood stained earth

was seized from the spot, spot map was prepared and after 3 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

completing investigation, the police filed charge sheet for offence

under Sections 294,323,326,307,506 of I.P.C.

9. The Trial Court by order dated 9-7-2018 framed charges under

Sections 307,326,294 and 506 Part II of I.P.C.

10. The appellant abjured his guilt and pleaded not guilty.

11. The prosecution, in support of its case, examined Bhuralal

(P.W.1), Nainji @ Nainaram (P.W.2), Birbal Vishoi (P.W.3), Hansraj

(P.W.4), Ghasilal (P.W.5), Pappu Lal Meena (P.W.6), Jabarilal

(P.W.7), Dr. D.S. Panduliya (P.W. 8), Mahesh Chandra Meena

(P.W.9), Bhanvar Singh Rajput (P.W.10), Dr. Seetaram Raghuvanshi

(P.W.11), Amritlal, I.O. (P.W. 12), Dr. Kapil Jain (P.W. 13), and

Ashok Singh (P.W. 14). The appellant did not examine any witness

in support of his defence.

12. The Trial Court by Judgment and sentence dated 21-8-2019,

acquitted the appellant for offence under Section 294, 506 Part 2 of

I.P.C. and convicted the appellant for offence under Sections 326 and

307 of I.P.C. for causing injuries to Bhuralal (P.W.1) and sentenced

him to undergo rigorous imprisonment of seven years with default

imprisonment.

13. Challenging the impugned Judgment and Sentence passed by

the Court below, it is submitted by the Counsel for the appellant, that

the Trial Court committed material illegality by convicting the 4 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

appellant for offence under Section 326 as well as 307 of I.P.C. for

causing injuries to Bhuralal (P.W.1). Further, the Court below has not

given any importance to the defence of the appellant that, the injuries

were sustained by Bhuralal (P.W.1) by flying stones because of

blasting. In the alternative, it is further submitted that under the facts

and circumstances of the case, the jail sentence of seven years is

excessive and the same may kindly be reduced to already undergone.

14. Per contra, the Counsel for the State has supported the

judgment and sentence passed by the Court below.

15. Heard the learned Counsel for the parties.

16. Dr. D.S. Panduliya (P.W. 8) has stated that he had examined the

injured Bhuralal (P.W.1) and found one lacerated wound on forehead

size 14 x 5 x1 cm. Another lacerated wound size 3 x 0.5 x 0.5 cm

was also found on forehead. The MLC report is Ex. P.7.

17. Dr. Seetaram Raghuvanshi (P.W.11) has stated that he had done

x-ray of the head of the injured and found comminuted fracture of

frontal parietal bone. The Ex-ray report is Ex. P.7B and Ex-ray Plate

is Ex. P.8. Dr. Kapil Jain (P.W.13) had treated the injured Bhuralal

(P.W.1) who has stated that when the injured Bhuralal (P.W.1) was

brought, he was unconscious and was not in a position to give any

statement. He had operated the injured. The operation of the face of

the injured was done by Dr. S.K. Bhardwaj, whereas this witness had 5 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

operated the head of the injured. The injured remained hospitalized

from 13-3-2018 to 25-3-2018. The medical documents are the

photocopies which contain his signatures and since, this witness was

examined through video conferencing, therefore, the documents were

sent through e-mail, and he identified his signatures. It appears that

the medical documents were not marked Exhibit. But one thing is

clear that multiple operations of face and head of the injured Bhuralal

(P.W.1) were carried out and he remained hospitalized from 13-3-

2018 to 25-3-2018.

18. Thus, it is clear that not only the injured sustained two

lacerated wounds on his forehead, but he remained hospitalized for

about 13 days, and was operated upon. Further, the injured had

sustained comminuted fracture of his frontal parietal bone of skull.

19. Now the question for determination is that whether the

prosecution has succeeded in establishing that it was the appellant

who caused injuries to the injured Bhuralal (P.W.1) or not?

20. Bhuralal (P.W.1) has stated that the incident took place at about

5-5:30 A.M. He was accompanied by Nainaram. The appellant came

along with Wheelpana and assaulted the injured on his head. As

this witness had fallen unconscious, therefore, was not in a position

to say that for how many times, he was assaulted. After about 18

days of incident, this witness regained consciousness completely. The 6 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

appellant did not say anything prior to assaulting him (The Trial

Court has also noticed injury mark on the forehead and head of the

injured). It was also stated that all the injuries were caused by the

appellant and the appellant wanted to kill him. This witness was

cross examined. In cross examination, it was admitted that blasts are

conducted on the site as there are 2-3 mines in Kherai plot. He also

admitted that lot of persons work there. He also admitted that it is

true, that stones are excavated by blasting. But this witness denied

the suggestion that he sustained the injuries because of flying stones

due to blasting. This witness reasserted that since, he was assaulted

by the appellant by wheelpana therefore, he had sustained injuries.

He also denied the suggestion that this witness had taken a loan of

Rs. 5,000 from the appellant and since, he was not inclined to repay

the loan, therefore, the appellant has been falsely implicated. He

further stated that he was taken to Kota by the owner for treatment

purposes. He further stated that since, he was not in a position to

lodge the report, therefore, FIR was not lodged by him. He further

denied the suggestion that he and his owner have falsely implicated

the appellant.

21. Nainji (P.W.2) is also an eye witness who has stated that the

incident took place at about 5-5:30 A.M. He was sleeping by the side

of the injured Bhuralal (P.W.1). At that time, the appellant came 7 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

there with a wheelpana and assaulted on the head of the injured

Bhuralal (P.W.1). Although he succeeded in apprehending the

appellant on the spot, but subsequently he ran away. 8-10 persons

had come on the spot and thereafter the owner was informed. The

police had seized blood stained wheelpana and blood stained bed

from the spot. The injured was initially taken to Guna Hospital from

where he was referred for a hospital at Kota. The police had also

seized blood stained earth and plain earth vide seizure memo Ex. P.2.

The police had seized wheelpana from the possession of appellant

vide seizure memo Ex. P.3 and the memorandum of the appellant is

Ex. P.4. Hansraj was also sleeping at a nearby place. This witness

was also cross examined and a suggestion was given that the injured

sustained injuries by flying stones because of blasting but the said

suggestion was denied by the appellant. He further stated that when

the police had come on spot, the wheelpana was already lying on the

bed.

22. Birbal Vishnoi (P.W.3) is the supervisor who has stated that he

had gone to village Khadagpur where he found that Bhuralal (P.W.1)

who was working as driver was lying in an injured condition and

bones of his forehead were broken and were visible with naked eye.

This witness was informed by Bhuralal (P.W.1) that he was assaulted

by the appellant. Thereafter, this witness took the injured to Guna 8 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

hospital, where first aid was given and from their he was shifted to

Sudha Hospital, Kota. This witness has not seen the incident. This

witness has stated that he was informed by the injured himself,

whereas the injured Bhuralal (P.W.1) has stated that after the assault

he became unconscious. Therefore, this witness, so far as it relates to

information given by the injured, is not reliable.

23. Hansraj (P.W.4) is yet another eye witness who has stated that

he was sleeping along with the injured and Nainji in the office. On

hearing some noice, he woke up and found that the appellant was

running away after assaulting the injured Bhuralal (P.W.1) by

wheelpana. Thereafter, this witness did not go to the hospital along

with injured. In cross examination, this witness has stated that on

16th he went to Sudha Hospital. However, this witness has disowned

the Dehati Nalishi.

24. Ghasilal (P.W.5) is not an eye witness, but he was informed by

Nainji. After receiving the information, this witness went to Sudha

Hospital as the injured is his younger brother.

25. Pappulal Meena (P.W.6) is the cousin brother of the appellant,

and is also not an eye witness, but was informed by Nainji.

26. Jabrilal (P.W. 7) is a witness of seizure of blood stained and

plain earth from the spot. This witness has also denied the

suggestion that the injured had sustained injuries from the flying 9 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

stones.

27. Mahesh Chandra Sharma (P.W. 9) has stated that Constable

Pradeep Singh Raghuvanshi had brought dehati nailshi and

accordingly, he had registered the F.I.R. in crime No. 40/2018 for

offence under Sections 323,294,506 and 307 of IPC, Ex. P.7A.

28. Bhanwar Singh (P.W. 10) had written the Dehati Nalishi in

Sudha Hospital. This witness has stated that Dehati Nalishi, Ex. P.6

was written on the information given by Hansraj, whereas Hansraj

has disowned the Dehati Nalishi.

29. Amritlal (P.W.12) is the investigating officer, who had prepared

the spot map, Ex. P.5 on the information given by Hansraj. The plain

and blood stained earth was seized by this witness vide seizure memo

Ex. P.2 The appellant was arrested on 22-3-2018 vide arrest memo

Ex. P.10. The memorandum of appellant is Ex. P.4 and vide seizure

memo Ex. P.3. Wheelpana was seized from the possession of the

appellant. Wheelpana was marked as Article A. This witness was

cross examined, who stated that wheelpana was seized after about 10

days of incident. He denied the suggestion that wheelpana was

seized from the spot.

30. Ashok Singh (P.W.14) is a constable posted in Police Station

Myana in whose presence, wheelpana was seized vide seizure memo

Ex. P.3.

       10      THE HIGH COURT OF MADHYA PRADESH
                      Criminal Appeal 8401/2019
               Veer Singh Kushwah Vs. The State of M.P.

31. If the evidence which has been led by the prosecution is

considered, then it is clear that the prosecution has failed to prove

that wheelpana was seized from the possession of the appellant.

Nainji (P.W.2) has stated that wheelpana was lying on the spot, and

was seized by the police. Further, as no FSL report has been filed by

the prosecution to show that any blood stains were found on

Wheelpana, this Court is of the considered opinion, that it cannot be

said that any wheelpana was seized from the possession of the

appellant.

32. However, non-seizure of weapon of offence from the

possession of the accused, would not demolish the prosecution story.

33. In the present case, injured witness Bhuralal, (P.W.1) and

Nainji (P.W.2) have clearly stated that it was the appellant who had

assaulted the injured Bhuralal (P.W.1), whereas Hansraj (P.W.4) has

partially seen the incident, and had seen the appellant running away

from the spot, after assaulting the injured.

34. The only suggestion which has been given to the witnesses is

that since, blasting was going on, therefore, the injured had sustained

injuries by flying stones. All the witnesses have not only denied this

suggestion, but even no stone was recovered from the spot. Even no

such suggestion was given to Amritlal, I.O. (P.W.12) regarding

presence of any stone on the spot. Thus, it is clear that the witnesses 11 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

have withstand the cross examination done by the appellant.

35. After appreciating the evidence which has come on record, this

Court is of the considered opinion, that it was the appellant who

assaulted the injured repeatedly by means of wheelpana on his

forehead, which not only caused two lacerated wounds, but also

caused comminuted fracture of frontal parietal bone of skull.

36. Now the next question for determination is that what offence

has been committed by the appellant.

37. According to the prosecution, the appellant had given repeated

blows on the forehead of the injured, as a result of which the injured

Bhuralal (P.W.1), not only sustained lacerated wounds, but also

sustained comminuted fracture of Frontal parietal bone of skull. The

injured was required to undergo multiple operations and he remained

hospitalized till 28-3-2018.

38. Forehead is undoubtedly a vital part of the body. Section 307

of I.P.C. reads as under :

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 12 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

From plain reading of Section 307 of I.P.C., it is clear that the

nature of injuries is not the decisive factor, but the knowledge or

intention on the part of the accused that, if he by that act cause death,

he would be guilty of murder, is the decisive factor. Although the

nature of injuries is not vital, but in order to find out the intention or

knowledge on the part of the accused, the weapon used, the part of

the body on which the injury is caused, force with which the blow

was given, are some of the relevant factors.

39. The Supreme Court in the case of State of M.P. Vs. Kanha

reported in (2019) 3 SCC 605 has held as under :

13. The above judgments of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

40. In the present case, the allegations are that the appellant had

given repeated blows on the forehead of the injured Bhuralal (P.W.1)

by means of a wheelpana. Wheelpana is a spanner made up of metal

which is used for changing/unfastening wheels of a vehicle. Thus, it

becomes a deadly weapon, if it is used for causing injuries. The

severity of blows can be ascertained from the fact, that the injured 13 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

had sustained comminuted fracture of frontal parietal bone of skull

requiring multiple operations of head and face. Under these

circumstances, it can be easily held that the appellant not only had

the knowledge that in case if he causes any injury on the vital part of

the body of the injured, then it may cause his death, but the severity

of the blows, also clearly establishes that the appellant had caused

injuries on the forehead of the appellant, with an intention of causing

his death.

41. Accordingly, it is held that the appellant is guilty of

committing offence under Section 307 of I.P.C. The Trial Court has

also convicted the appellant under Section 326 of I.P.C. for causing

injuries to Bhuralal (P.W.1). Once, the Trial Court had already come

to a conclusion that the appellant is guilty of committing offence

under Section 307 of I.P.C., then it was not necessary to convict him

under Section 326 of I.P.C. also for causing injuries to the sole

injured Bhuralal (P.W.1). Accordingly, the conviction of the

appellant for offence under Section 326 of I.P.C. is held to be

unwarranted and accordingly, it is set aside.

42. So far as the question of sentence is concerned, the sentence

may extend to rigorous imprisonment of life. In the present case, the

Trial Court has granted rigorous imprisonment of 7 years. Looking

to the fact that the appellant assaulted the injured without any 14 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal 8401/2019 Veer Singh Kushwah Vs. The State of M.P.

provocation, at the early hours of the day at about 5-5:30 A.M., this

Court is of the considered opinion, that the rigorous imprisonment of

seven years, awarded by the Trial Court, doesnot call for any

interference.

43. Accordingly, the judgment and sentence dated 21-8-2019

passed by Vth Additional Sessions Judge, Guna in S.T. No. 115/2018

is hereby affirmed.

44. The appellant is already in jail. He shall undergo the

remaining jail sentence.

45. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.03.23 17:55:59 +05'30'