Madhya Pradesh High Court

Narendra & Ors. vs The State Of M.P. on 8 February, 2022

Author: Anil Verma

        1                                                                            CRA No.1107/1998


                   HIGH COURT OF MADHYA PRADESH
                          BENCH AT INDORE
             (SINGLE BENCH: HON. MR. JUSTICE ANIL VERMA)

                          Criminal Appeal No.1107/1998

1.      Narendra
        S/o Poonamchandra Rathroe,
        Aged - 21 years,
        R/o - Panchkua, Shankarpura,
        Ujjain.

2.      Banshilal S/o Baijnath,
        Aged 19 years,
        R/o - Nagjhiri, Ujjain                                                     .... Appellants

                                              Versus

State of M.P. through P.S. Chimanganj Mandi,
Ujjain (M.P.)                                                                    .... Respondent
------------------------------------------------------------------------------------------------------
        Shri N.S. Bhati, learned counsel for the appellants.
        Ms. Bharti Lakkad, learned PL for the respondent/State.
----------------------------------------------------------------------------------------------
Whether approved for reporting :


                                          JUDGMENT

(Delivered on 8/2/2022) 1/ This appeal has been preferred by the appellants under Section 374 of Code of Criminal Procedure ( in short "Cr.P.C.") against the impugned judgment dated 16.9.1998 passed by the 5th Addl. Sessions Judge, Ujjain in S.T. No.266/97, whereby the appellant Banshilal has been convicted under Section 307 of Indian Penal Code (in short "IPC") and sentenced to 5 years R.I. and the appellant Narendra has been convicted for the offence under Section 307/34 of IPC and under Section 25(1-B)(b) of Arms Act and sentenced to undergo 5 years R.I. and 2 years R.I. respectively.

2/ Brief facts of the case are that on 17.7.1997 at about 10.45 a.m. complainant/victim Omprakash was going to Ujjain by his bicycle. When he reached near well situated between the village Panwasa and Shankarpur, at that time both the appellants/accused came there and intercepted him. Then appellant Narendra gave him blow by sword and co-appellant Banshilal attacked upon him by using of knife, due to which complainant Omprakash

sustained grievous injury on his abdomen and his omentum was coming out from the wound. He also sustained a cut wound over his left thigh. Both the accused also threatened him that they will kill him. Victim Omprakash was brought to the Govt. Hospital, Ujjain and police was informed. Thereafter complainant lodged Dehati Nalishi at Govt. Hospital, Ujjain and on the basis of Dehati Nalishi, FIR has been registered against the appellants. The MLC of the victim was also conducted.

3/ Dr. M.D. Sharma (PW-1) examined the victim and found a stab wound having size 1¼" x ½" x cavity deep. Omentum was coming out from there. He also found a cut wound of size 3/4" x 1/4" x 3/4" on the left side of the thigh. The injuries were found to be grievous in nature, which was operated by Dr. R.S. Dangarh (PW-2). It was also found that due to the above injury a cut injury was found on the left side of the abdomen, due to which a cut was also found over the small and large intestine and during the operation wound was stitched.

4/ During investigation on the basis of memorandum statement under Section 27 of the Evidence Act given by the accused persons, police recovered sword from the possession of appellant Narendra and a knife from the possession of co-appellant Banshilal. Blood stained shirt, baniyan and pant were also seized from the victim Omprakash. Seized sword and knife were sent with query to the Dr. M.D. Sharma and he has given a query report that injuries found over the body of victim have been caused by the seized sword and knife. All the articles were sent for the chemical analysis to the FSL, Sagar. As per the FSL report, human blood has been found on the seized knife and sword. Upon completion of entire investigation charge sheet has been filed against the appellants before the JMFC, Ujjain, who has committed the case to the Court of Sessions, which was transferred to the 5th Addl. Sessions Judge, Ujjain for trial. The trial Court on the basis of the allegations made in the charge sheet, framed the charges for the offence punishable under Section 307, 307 read with Section 34 of IPC and Section 25(1-B)(b) of Arms Act.

5/ Both 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 10 witnesses and placed Ex.P/1 to P/26 on record. The defence of the appellants is of false implication. Same defence was taken by them in their statements recorded under Section 313 of Cr.P.C. In defence the

appellants did not examine any witness. The trial Court after due consideration of the evidence available on record, convicted and sentenced the appellants/accused persons as referred herein-above.

6/ Learned counsel for the appellants submits that trial Court has erred while relying on the statement of prosecution witnesses and discarding the defence version. It was wrongly held that appellants had caused injuries to victim Omprakash with common intention. Injuries sustained by the victim Omprakash were not serious in nature. No independent witness has been examined by the prosecution. Material witnesses have not been examined by the prosecution. Complainant Omprakash has admitted previous enmity with the appellants in his statement. Appellant Banshilal was not named in the FIR and no identification parade has been conducted by the prosecution. The complainant Omprakash himself has admitted that he had fell down along with his bicycle into a 15 feet deep pit. There are so many contradictions and omissions in the statement of complainant Omprakash, therefore, his evidence is not reliable. Seized weapons were not produced before the prosecution witnesses and article were not marked during the evidence. Prosecution has not proved the case beyond reasonable doubt. Both the appellants were aged about 19 and 21 years at the time of incident and they deserve for benefit of probation. Therefore, it is prayed that present appeal be allowed and both the appellants be acquitted from all the charges.

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

8/ Heard learned counsel for the parties and perused the record of the trial Court with due care.

9/ In order to appreciate merits of the rival contentions in right perspective, it is necessary to first advert the medical evidence on record.

10/ Dr. M.D. Sharma (PW-1), who had conducted the MLC of the victim Omprakash, has proved the under mentioned injuries over the abdomen of the victim Omprakash:-

(i) One stab wound having size 1¼" x ½" x cavity deep over the left side of the abdomen and omentum was coming out from there.

(ii) One incised injury having size 3/4" x 1/4" x 3/4" on the left side of the thigh.

The above injuries seem to be caused by sharp cutting object. Victim was admitted in B Ward. His MLC report is Ex.P/1. Dr. M.D. Sharma has also stated in his statement that after inspection of said sword and knife, he opined that such injuries were caused by the said weapons. His query report is Ex.P/3. In the cross-examination the appellants did not seriously challenge the above statement of Dr. M.D. Sharma and also the report Ex.P/1 and query report (Ex.P/3) given by him. Therefore, there is no reason to disbelieve his statement and the above report proved by him.

11/ Dr. R.S. Dangarh (PW-2), the then RSHO (Surgery) posted at District Hospital, Ujjain testified that victim Omprakash was admitted in the District Hospital at Ujjain and he had sustained injuries over his abdomen and left thigh. The injury on the abdomen was operated by him and he found that there is a cut injury in the small and large intestine and a injury over the left thigh, which was repaired. The victim was admitted in the hospital from 17.7.1997 to 5.8.1997. His bed ticket Ex.P/4 to P/14 has been written by him. He also opined that injury over the abdomen was serious in nature and dangerous to life and injury on the left thigh was simple in nature. His opinion is Ex.P/15.

12/ The statement of Dr. M.D. Sharma (PW-1) and Dr. R.S. Dangarh (PW-2) were not specifically denied by the appellants during their examination under Section 313 of Cr.P.C. Dr. M.D. Sharma (PW-1) has denied in his cross-examination that above injuries may be caused accidentally due to twice falling upon a sharp cutting object. No serious dispute was raised by the defence to the nature and status of the above mentioned injuries. No material contractions and omissions have been found in the statement of Dr. M.D. Sharma (PW-1) and Dr. R.S. Dangarh (PW-2) and MLC report (Ex.P/1), query report (Ex.P/3) and report (Ex.P/15), therefore, statement of Dr. M.D. Sharma (PW-1) and Dr. R.S. Dangarh (PW-

2) seems to be reliable and on the basis of above medical evidence, it has been proved that victim Omprakash has sustained dangerous injuries on his abdomen and it was also dangerous for his life.

13/ Victim Omprakash (PW-4) has stated in his statement that on 17.7.1997 when he was going to the market by his bicycle and when he reached near the well of Uttam Singh, at that time appellant Narendra and Banshilal came there through a tempo and they threw him in the Pili Khadan. Narendra was carrying sword and Banshilal was carrying knife in their

hands. Firstly Banshilal gave him blow by knife, due to which he sustained injury on his left thigh. Then appellant Narendra gave him blow by sword. Again Banshilal stabbed knife on the left side of his abdomen. There was previous enmity due to the land with the appellants. At that time his son Yogesh came there and he told to Yogesh that he was beaten by Narendra and Banshilal. Then Yogesh took him to Civil Hospital, Ujjain by a tempo. There he lodged Dehati Nalishi (Ex.P/16) to the police persons. He remained admitted in the hospital for about 20 days.

14/ Yogesh (PW-6) has also deposed in his statement that on 17.7.1997 at about 11 p.m. he was informed by a cycle man that his father was lying near Pawasa. When he reached on the spot, he saw that his father was lying there in injured condition and he told him that he was beaten by Narendra and one of his companion by sword and knife. His omentum was coming out from the injury of abdomen. Nandkishore (PW-5) has also stated in his statement that Omprakash had told him in the hospital that he was beaten by Narendra and Banshilal by sword and knife. Narendra gave him blow by sword and Banshilal stabbed him by using knife and this incident was caused due to previous enmity of dispute for way.

15/ Learned counsel for the appellant submits that appellant Banshilal was not named in the FIR and no identification parade has been conducted by the prosecution, therefore, evidence against the appellant Banshilal cannot be relied upon but after perusal of the record it reveals that Dehati Nalishi was lodged by complainant Omprakash and it is written by the Sub Inspector B.C. Singh Jamra (PW-7). It is true that Banshilal was not named in Dehati Nalishi (Ex.P/16), but it is clearly mentioned that one of the companion of the appellant Narendra gave him blow by knife. Although test identification parade was not conducted by the prosecution in respect of appellant Banshilal but victim Omprakash (PW-4) has categorically stated in his statement before the trial Court that Banshilal had stabbed knife on his abdomen and he has identified Banshilal before the Court and he has stated in Para-6 of his statement that after 3-4 days of the incident he came to know the name of Banshilal. He did not know Banshilal by name at the time of lodging of Dehati Nalishi (Ex.P/16), therefore, he did not mention the name of Banshilal. This reason assigned by the victim Omprakash seems to be justified, because his statement is well supported by Yogesh (PW-6) and Nandkishore (PW-5). Although these witnesses have stated that Omprakash

had told them the name of Banshilal. Therefore, this contradiction in the statement of victim Omprakash and his Dehati Nalishi cannot be considered as material contradiction or omission.

16/ Learned counsel for the appellants contended that complainant Omprakash himself has admitted that he had fell down along with his bicycle into a 15 feet deep pit.

17/ It is true that Omprakash has admitted that he was thrown by the appellants in a pit and this fact was not mentioned by him during lodging of Dehati Nalishi (Ex.P/16). This cannot be considered as a material contradiction because Dr. M.D. Sharma (PW-1) has categorically stated in his statement that the injuries cannot be caused due to falling upon a sharp cutting object. The pit is not a sharp cutting object, therefore, contention of learned counsel for the appellants cannot be relied upon.

18/ In the case of State of Andhra Pradesh 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."

19/ In the cases of State of M.P. Vs. Chhaakkilal and others and Ramveer and Chhakki 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 eyewitness. It is further observed that omissions or lapses in investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

20/ In view of the above law laid down by the Hon'ble Apex Court, this Court is not inclined to accept the contention of learned counsel for the appellants to disbelieve the testimonies of victim Omprakash (PW-4) as well as Yogesh (PW-6) and Nandkishore (PW-5). It is true that Yogesh (PW-6) is the son of victim Omprakash and Nandkishore (PW-5) is father of the victim Omprakash. Although both the witnesses are close relatives of the victim, but both the witnesses are not the eyewitnesses and they have narrated the incident only on the basis of narration given by the victim to them just after

the incident. Therefore, these witnesses seem to be trustworthy and reliable, which are duly corroborated by the medical evidence.

21/ Sub Inspector B.C. Singh Jamra (PW-7) has categorically stated in his statement that on 22.7.1997 appellant Banshilal had told him before the witnesses that he had kept the knife which was used in the incident in a hotel. Then he recorded his memorandum statement Ex.P/18 and at the instance of appellant Banshilal he recovered the knife vide seizure memo Ex.P/19. Then on 22.7.1997 he also recorded the memorandum statement of co-accused Narendra (Ex.P/20) under Section 27 of the Evidence Act and Narendra stated that he has kept the sword which was used in the incident in the bushes. At the instance of appellant Narendra, sword was recovered through seizure memo Ex.P/21. Then he sent both the weapons for medical examination to the concerned doctor. Statement of Sub Inspector B.C. Singh Jamra (PW-7) is well supported by the statement of Dr. M.D. Sharma (PW-

1), who had given the query report after examination of the said weapons stating that above injuries may be caused by the seized weapons.

22/ On the scrutiny of the entire evidence led by the prosecution, it is clearly established beyond all the reasonable doubts that both the appellants intercepted the complainant Omprakash and on the objection of the complainant, the appellant Narendra gave him blow by using sword and co-accused Banshilal attacked upon him by using of knife. The statement of complainant Omprakash is duly corroborated by the medical evidence as well as the statement of Yogesh (PW-6) and Nandkishore (PW-5). It is established that both the appellants caused grievous injuries to the victim/complainant Omprakash, which is also fatal for life. Hence, I do not find any infirmity insofar the reasoning given by the trial Court in respect of the appellants.

23/ Considering all the circumstances and facts available on record, it is clearly established that both the appellants were having intention or at least knowledge that their act of inflicting injuries by sword and sharp cutting weapon knife on the abdomen of injured, may cause his death. Both the appellants were armed with deadly weapon and blow was aimed at vital part of the body with sufficient force so as the injure was operated upon and he was remained in hospital for the treatment for about 17-18 days. In view of the aforesaid, the offence under Section 307, 307/34 of IPC and unde

Section 25(1-B)(b) of the Arms Act has been attracted and the trial Court has rightly convicted the appellants.

24/ So far as the grant of benefit of probation to the appellants is concerned, looking to the facts and circumstances of the case including the manner in which the incident took place and the nature of the injury caused, I do not find it to be a fit case in which it would be in the interest of justice to grant such benefit to the appellants.

25/ So far as the quantum of sentence is concerned, learned counsel for the appellants has contended that this appeal is about 23 years old and both the appellants were aged about 20 years at the time of incident and they have long life to live. Both the appellants have suffered jail incarceration for some period also. Hence while upholding the conviction of both the appellants, I deem it proper to reduce the quantum of sentence imposed upon them.

26/ In view of the reasons assigned above, this appeal is partly allowed by maintaining the conviction of appellants Banshilal and Narendra under Section 307, 307/34 of IPC and reducing their jail sentence from 5 years R.I. to 2 years R.I. Similarly conviction of appellant Narendra is also maintained under Section 25(1-B)(b) of Arms Act and his jail sentence is reduced from 2 years R.I. to 1 year R.I. Both the sentences of appellant Narendra shall run concurrently, as already directed by the trial Court.

27/ Both the appellants are on bail. Their bail bonds are cancelled and they are directed to appear before the trial Court on 28.2.2022 for undergoing the remaining part of the jail sentence awarded to them. If they fail to do so, the trial Court shall take all the necessary actions including issuance of warrant of arrest and their production before the trial Court so as to undergo the sentence awarded to them.

28/ With the aforesaid modifications, the present appeal stands disposed of.

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

C.C. as per rules.

(Anil Verma) Judge Trilok/-