Chhutkan @ Ghanshyam vs State Of M.P.
2021 Latest Caselaw 7880 MP

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                       Criminal Appeal Nos. 786/2007 & 948/2007

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

     SB: HON. SHRI JUSTICE S.A.DHARMADHIKARI
               Criminal Appeal No. 786/2007
                   Chutkan alias Ghanshyam
                             Vs.
                         State of M.P.
               Criminal Appeal No. 948/2007
                           Jagdish
                             Vs.
                         State of M.P.
______________________________________________
     Shri Anand Gupta, Advocate for the appellant in Cr.A.
No.786/2007.
     Shri M.K.Choudhary, Advocate for the appellant in Cr.A.
No.948/2007
     Shri B.P.S.Chauhan, Public Prosecutor for the
respondent/State.

                       JUDGMENT

(Delivered on this 26th day of November, 2021)

This common judgment shall govern the disposal of these inter-linked appeals that arise out of the judgment dated 6/10/2007 passed by Additional Sessions Judge, Chachoda, District Guna in Sessions Trial No. 402/06, whereby appellants Jagdish and Chutkan alias Ghanshyam respectively stand convicted under sections 307 and 307/34 of the IPC and each of them is sentenced to undergo R.I. for 7 years with fine of Rs.1000/-, in default to suffer additional R.I. for 1 year.

Criminal Appeal Nos. 786/2007 & 948/2007

2. Prosecution story, in nutshell, is that on 9/10/2006, at about 9.45 PM, complainant Shyambabu (PW9), a member of Forest Committee, was discharging his duties as Security Guard on a Public Road at Chachoda near Bag Bageshwar. There, he saw that 3-4 persons were troubling an old man. Upon complainant's objection, two of them caught hold of him, while appellant Jagdish, with an intention to kill, stabbed him with a knife on left side of his abdomen. Blood started oozing out and intestine came out. The co-accused persons exhorted and on hearing the shrieks, Santosh and Shyam came on the spot, seeing whom the miscreants fled away. The complainant recognized appellant Jagdish. Upon such report, FIR (Ex.D/2) was registered for the offence punishable under section 307 read with 34 of the IPC. Complainant Shyambabu was medically examined by Dr. Rajendra Verma (PW5), who prepared MLC report (Ex.P/7). Upon discovery memo (ExP/3) of appellant Jagdish, a knife was recovered from him vide seizure memo (Ex.P/4) and appellants were apprehended vide arrest memo (Ex.P/2).

3. After investigation, charge sheet was submitted in the committal court, which in turn, committed the case to the court of Sessions for trial.

4. The learned trial Court framed charges which were denied by the appellants, who claimed to be tried. The prosecution examined as many as 9 witnesses whereas no witness was examined in defence. The sessions Court on the basis of evidence adduced before it, convicted and sentenced the appellants as mentioned above.

Criminal Appeal Nos. 786/2007 & 948/2007

5. Learned counsel for the appellants contended that the trial Court has erred in appreciating the evidence on record. It is submitted that weapon of offence was not recovered from appellant Chutkan nor he is alleged to have caused any injury to the complainant. The only allegation against him is of catching hold of stick of the complainant. The incident has occurred without premeditation and in a heat of passion, therefore, no common intention could be attributed to appellant Chutkan. Dr. Rajendra Verma (PW5) has deposed that the injury received by complainant was not dangerous to life. It is a case of single blow. Appellant Chutkan has been arraigned after 20 days of the incident on 29/10/2006 upon second intimation (Ex.D/8) furnished by the complainant, in which also, the complainant has not clarified as to how he came to know about the name of appellant Chutkan. Thus, no primacy could be attached thereto, moreso in view of the fact that in his statement recorded on 10/10/2006 at Hospital, the complainant had not taken the name of appellant Chutkan. In paragraph 6 of his deposition, complainant Shymababu Sharma (PW9) has admitted that he came to know about the name of Chutkan during Test Identification Parade, but the fact remains that no such Test Identification Parade was ever conducted during investigation nor the trial Court was in receipt of record pertaining to any such TIP. Prosecution has not examined Devilal, the elderly person who is said to be the genesis of incident. The prosecution has not been able to prove presence of appellant Chutkan nor he could be said to be having common intention to convict him with the aid of S.34

Criminal Appeal Nos. 786/2007 & 948/2007

of the IPC.

So far as appellant Jagdish is concerned, it is submitted that as the incident occurred in dark night, it was not possible to identify the assailant. Appellant was not known to the prosecution witnesses and no test identification parade was conducted. The complainant has only taken the name of appellant Jagdish, but the FIR does not detail his parentage or address, therefore, the said evidence was not sufficient to link appellant Jagdish with the crime. Doctor has opined that the said penetrating injury was also possible from Gupti or Ballam and not just through knife which is allegedly seized from appellant Jagdish. Besides, no chemical examination report is available on record in respect of the said knife. The offence does not fall within the ambit of S.307, IPC as it is a case of single blow and there was no previous enmity. The incident occurred only in the course of a brawl that ensued in respect of an old man, who has not been examined by the prosecution. Even as per medical evidence, the injury was not dangerous to life and and could have been self inflicted. Therefore, at the most the offence under S.324, IPC could have been made out.

6. Per contra learned Public Prosecutor has drawn our attention to the reasoning assigned by the trial Court. It is submitted that name of appellant Jagdish finds mention not only in the FIR (Ex.D/2) but also in the second intimation (Ex.D/8) furnished by the complainant. The stab injury was caused on vital part of the body viz. abdomen and the injured was referred for treatment to District Hospital, Guna where he remained under treatment for about 21 days. The

Criminal Appeal Nos. 786/2007 & 948/2007

weapon of offence viz. Knife was recovered from appellant Jagish vide seizure memo (Ex.P/4). Besides, Chikku alias Akash (PW4), who was there on the spot, had seen Chutkan catching hold of Stick of complainant. His evidence is corroborated by the evidence of complainant (PW9). As such, the trial Court has not committed any error in convicting and sentencing the appellants, as aforesaid, and the appeal, being devoid of any merit and substance, is liable to be dismissed.

7. We have heard learned counsel for the parties and perused the evidence on record.

8. Before appreciating other evidence brought on record, it would be apt to advert to the medical evidence. The MLC of injured Santosh (PW3) was conducted by Dr.Rajendra Verma (PW5) vide Ex.P/7. He noted as under:-

"1. Penetrating injury - 1 x .2 x 2 inch over left side of abdomen caused by hard and sharp object. Omentum comes out through wound which is inserted inside the wound and two stitches given and sent for surgeon for needful."

He referred the case to Surgical Specialist at District Hospital, Guna.

Dr. Rajendra Verma (PW5) in paragraph 2 of his cross- examination, has deposed that he had noticed only one injury as mentioned in Ex.P/7. He had not noticed any other injury or complaint of any pain. In paragraph 3 he deposed that the injured was not in a serious condition and was fully conscious.

Criminal Appeal Nos. 786/2007 & 948/2007

9. Now, adverting to the other evidence available on record, Shyambabu Sharma (PW9) is the complainant. In the examination-in-chief, he has deposed that he knows appellants Jagdish and Chutkan. On 9/10/2006, being member of Forest Committee, he was on duty for protection of Teak at Bagh Bagheshwar. Santosh Singh, Shyam Singh, Santosh Maali and one other person were with him on the Fort ground. When he went down the Fort for checking near Kali Mata Temple, he found that 2-3 persons were standing there. Appellants Jagdish and Chhutkan were scolding an old man. When he asked them as to why they were harassing the old man, appellant Chhutkan caught hold of his Stick, while appellant Jagdish stabbed him above his naval. He further deposed that appellant Chhutkan had caught hold of the stick, pushed and scuffled with him. Hearing his shrieks, Santosh and Shyam Rajput came on the spot and took him to Hospital at Chachoda where FIR (Ex.D/2) was lodged. After MLC, he was referred to District Hospital at Guna. He has also proved the second information (Ex.D/8) furnished by him. Thereafter, he remained in the hospital for 20-25 days. In his cross-examination, he deposed that he knew Chutkan since his birth. He had properly seen the miscreant who had caught hold of his stick. However, in the next breath he said that he was not aware of the name of Chutkan. He further deposed that the Police personnel had conducted Test Identification Parade and then he came to know about the name of accused, whereafter he had lodged the report (Ex.D/8). During identification Parade, he had identified Chutkan as accomplice of Jagdish. He further deposed that during identification, he came to know the

Criminal Appeal Nos. 786/2007 & 948/2007

name of Chutkan, and before it he used to know him by face. In paragraph 8 of the cross-examination, he admitted that he had received only one injury in the incident and no other injury was caused to him. In paragraph 9 of the cross- examination, he deposed that at the time of incident, Shyam Singh and Santosh Singh were not on the spot. In paragraph 15, he deposed that appellant Chhutkan had caught hold of his stick, while he was talking to appellant Jagdish. He further deposed that Shyam Singh and Santosh Singh were about 100 meter away from the spot.

10. Santosh Singh Rajput (PW1) has deposed that on 9/10/2006, at about 9-9.30 PM, he was on night duty and was sitting at Fort near Kalimata Temple along with Shyam Singh and Santosh Mali. They heard the shrieks of complainant coming from near the temple located downhill. They went down and asked Shyambabu, who informed him that he had been stabbed by Jagdish and Chutkan was along with him. In paragraph 5 of his cross-examination he has deposed that he was informed about the name of Chutkan by the complainant on the spot itself. In paragraph 7 of his cross-examination, he deposed that complainant Shyambabu had informed about the name of Chutkan at the time of filing report. In paragraph 8, he admitted that he had reached the spot after the incident and he had not seen anybody assaulting Shyambabu.

11. Shyam Singh (PW2), who is security personnel in the Forest Department, has deposed that on 9/10/2006, he along with Santosh Singh and Santosh Mali was sitting on

Criminal Appeal Nos. 786/2007 & 948/2007

the stairs of the Fort. Suddenly, they heard the cries of complainant Shyambabu Sharma and immediately reached the spot. There they found that Shyambabu Sharma was lying in an injured condition, who, upon asking, informed them that he had been stabbed by Jagdish. He admitted that he did not see any inflicting the injury. In paragraph 4 of his cross-examination, he deposed that Shyambabu had only informed about the name of Jagdish.

12. Santosh Mali (PW3), Security Guard in the Forest Department, has deposed that he was on duty and was sitting along with Santosh Singh and Shyambabu Sharma at some height on way to Bagwas. They heard the cries of someone coming from downwards. On reaching the spot, they found that 2-3 persons were fleeing whom he could not saw properly. He was informed by complainant Shyambabu Sharma that he had been stabbed by appellant Jagdish. In paragraph 4,he admitted that he had not seen the incident.

13. Chikku alias Akash (PW4) is an independent witness. He deposed that on the date of incident, at about 8-9 PM, he had gone to Kali Mata Temple situated near Chachoda Fort. There, he saw that Chutkan and Jagdish both had come there. He had identified both of them. He also saw that an old man came there. Thereafter, Jagdish and Chutkan reached near that old man and caught him. On this, complainant Shyambabu who was on duty, asked them as to why they were harassing the old man. Then, Jagdish left that old man and scuffled with Shyambabu and thereafter stabbed him in the stomach. Chutkan had caught hold of

Criminal Appeal Nos. 786/2007 & 948/2007

stick of Shyambabu. As Shyambabu screamed, Shyamsingh, Santosh Singh and son of Maali came on the spot. Then Jagdish and Chutkan came towards this witness with knife, due to which he fled away. In paragraph 14 of his cross- examination, he deposed that he knows Chutkan for last 2-3 years as he used to come to his house for taking broom etc. He further deposed that he also knew Jagdish for last 2-3 years. Though this witness has been subjected to length cross-examination, yet nothing substantial could be elicited so as to dislodge his testimony.

14. S.S.Tomar (PW8) is the Station House Officer. He has proved spot map (Ex.P/5). Satyaprakash Saxena (PW6) is the ASI. He has proved FIR (Ex.P/2), seizure memo of blod stained shirt (Ex.P/8), seizure memo of knife recovered at the instance of appellant Jagdish (Ex.P/3) and various other statements recorded during investigation. Dhan Singh (PW7) is the Head Constable, who has proved seizure memo (Ex.P/8). Though these witnesses were cross-examined at length, yet nothing could be elicited to render the prosecution case doubtful.

15. From the above evidence, it is clear that all the witnesses including the complainant Shyambabu (PW9) have taken the name of Jagdish as the assailant who stabbed in his stomach, as well as, the role of appellant Chutkan in catching hold of the stick of complainant who was on forest duty. Their testimony is consistent in that respect, though there are minor contradictions in the evidence of Santosh Singh (PW1) with regard to the divulging of name of

Criminal Appeal Nos. 786/2007 & 948/2007

Chutkan by the complainant, but the same do not go to the root of the case so as to render the prosecution story doubtful. Besides, the presence of appellants Jagdish and Chutkan on the spot and their role is well established by evidence of independent witness Chikku alias Akash (PW4) who was present on the spot. It is noteworthy that the evidence of an injured witness must be given due weightage being a stamped witness and thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he would spare the actual assailants in order to falsely implicate someone else. Testimony of an injured witness has its own relevancy and efficacy as he has sustained injury at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Testimony of an injured witness is accorded a special status in law and such witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness has to be relied upon unless there are convincing grounds for the rejection of his evidence. (State of UP vs Naresh & ors. (2011 (4) SCC 324) and Abdul Sayeed vs State of Madhya Pradesh (2010 (10) SC 259), referred to). Besides, it is well settled that FIR is not a substantial piece of evidence and minor contradictions and omissions that do not go the root of the case are not sufficient to render the prosecution story doubtful.

16. It has been contended on behalf of the appellants that the offence does not fall within the purview of S.307 of the

Criminal Appeal Nos. 786/2007 & 948/2007

IPC as there was no previous animosity. Besides, the injury caused has not been held by the doctor to be dangerous to life. Therefore, at the most the offence under S.324 of the IPC could be made out. It has further been contended on behalf of appellant Chutkan that he did not share the common intention under S.307 of the IPC as the incident occurred in heat of passion and without premeditation.

17. As per the testimony of injured witness Shyambabu Sharma, the incident occurred when during night duty he found that appellants Jagdish and Chutkan were scolding an old man. When he objected to, appellant Chutkan caught hold of his Lathi, whereas appellant Jagdish stabbed in his stomach. So far as the role of appellant Jagdish is concerned, he acted with the intention or knowledge that such action might cause death and dealt a knife blow on the stomach of complainant, which is a vital region. Although the injury has not been found dangerous to life by the doctor, yet the Apex Court in the case of Jage Ram Vs. State of Haryana ((2015)11 SCC 366) has categorically held that to justify a conviction under section 307 of the IPC, it is not essential that fatal injury capable of causing death should have been caused. Further, in the case of State of M.P. Vs. Kanha ((2019)3 SCC 605), it has been held that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the IPC. For the purpose of conviction under S.307, the intention and act of accused are to be seen. Though the incident occurred in a heat of passion, yet appellant Jagdish clearly had the knowledge that stabbing in the stomach may eventually lead

Criminal Appeal Nos. 786/2007 & 948/2007

to death of the victim. Thus, he cannot be spared of his culpability under S.307, IPC.

So far as the role of appellant Chutkan is concerned, the same is of catching hold of Stick of complainant. Appellants Jagdish and Chutkan were scolding an old man when complainant, being on security duty, intervened and then an altercation ensued between them, in the course whereof Chutkan caught hold of Stick of the complainant, whereas Jagdish stabbed him. From the surrounding circumstances, appellant Chutkan cannot be said to be sharing the common intention of attempting upon the life of complainant. It cannot be held that appellant Chutkan knew beforehand that appellant Jagdish was about to stab the complainant with a knife and that is why he caught hold of his stick, since there was no premeditation or meeting of minds before the incident nor any animosity has been proved from record. Thus his conviction under section 307/34 cannot be sustained. It is also noteworthy that there is only one stab injury on the body of injured and no other injury has been noticed by the doctor. As such, the act of appellant Chutkan also does not fall within the definition of S.319 of the IPC, though the same clearly falls within the ambit of S.352 of the IPC.

18. Appellant Jagdish has already suffered custodial sentence of about 30 months and 85 days, while appellant Chutkan has put in incarceration of 1 month and 78 days. The incident is of the year 2006. About fifteen years have already elapsed. As such, no useful purpose would be served by sending them back to jail. Accordingly, the conviction of

Criminal Appeal Nos. 786/2007 & 948/2007

the appellant Jagdish under S.307 of the IPC, as awarded by the trial Court, is maintained. However, conviction of appellant Chutkan alias Ghanshyam is altered from S.307/34 to one under S.352 of the IPC. Custodial sentences of both the appellants are reduced to the period already undergone by them. However, fine sentence as awarded to appellant Jagdish is enhanced to Rs.50,000/- (Rupees fifty thousand only). He is directed to deposit the said amount with the trial Court within one month from today, failing which he shall suffer R.I. for 1 year. The fine amount of Rs.50,000/- (Rupees fifty thousand only) so deposited shall be disbursed to injured Shyambabu Sharma (PW9) by the trial Court as compensation under section 357 of the Cr.P.C.

19. In the result, Cr.A. Nos.786/2007 and 948/2007 stand allowed in part.

A copy of judgment be also sent to the trial Court along with the record for compliance.

Copy of this judgment be retained in the connected appeal.

(S.A DHARMADHIKARI) JUDGE

(and)

ANAND SHRIVASTAVA 2021.11.26 15:57:59 +05'30'