Babulal vs The State Of M.P.
2022 Latest Caselaw 9802 MP

                                                          1


                                 IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE ANIL VERMA

                                             ON THE 18TH OF JULY, 2022

                                         CRIMINAL APPEAL No. 816 of 1998

                           Between:-
                           BABULAL S/O UMRAO,
                           AGED - 35 YEARS,
                           R/O NEHRU NAGAR,
                           INDORE (MADHYA PRADESH)
                                                                          .....APPELLANT
                           (BY SHRI AVINASH SHIRPURKAR,
                           LEARNED SENIOR COUNSEL
                           WITH SHRI YOGESH GUPTA, ADV.)

                           AND

                           STATE OF MADHYA PRADESH,
                           THROUGH P. S. M. I. G.,
                           INDORE (MADHYA PRADESH)
                                                                         .....RESPONDENT
                           (BY SHRI HEMANT SHARMA, GA)

                          Reserved on             :     16/06/2022
                          Delivered on            :     18/07/2022
                               This appeal coming on for final hearing this day, the court
                          passed the following:
                                                  JUDGMENT

Signature Not Verified This appeal has been preferred under Section 374 of Code of Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment dated 09/07/1998 passed by the XIV Additional Sessions Judge, Indore in Sessions Trial No.177/1998, whereby the appellant has been convicted for offence punishable under Section 307 of the Indian Penal Code, 1860 (in short "IPC") and has been sentenced to undergo 10 years rigorous imprisonment with fine of Rs.2,000/- with default stipulation of 02 years rigorous imprisonment. 02- The brief facts of the case are that complainant Bholaram and appellant both are relatives. On 22/01/1996 while the complainant Bholaram was standing on the road, at that time appellant came out from his home and told the complainant that "how your dare to come here". There was some old dispute between them regarding some money transaction. Then the appellant took out a knife with an intention to kill him and gave two blows of knife on complainant's abdomen, due to which complainant feel down on the spot. He was taken to a Hospital. After that Rajendra launched an FIR. MLC was conducted by Dr. Sanjay Kumar Bhatnagar (PW-5). Two cut injuries were found over his abdomen and omentum was coming out. Doctor opined that both the injuries were grievous in nature and were caused by some sharp and blunt object within 24 hours of the examination. Spot map was prepared by the Investigating Officer. During investigation a knife was recovered from the possession of the present appellant and the same was sent for FSL examination. Signature Not Verified03- After completion of entire investigation, charge sheet was filed Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

under Section 307 of the IPC against the appellant / accused before the Chief Judicial Magistrate, Indore, who committed the case to the Court of Sessions, Indore, which was transferred to the XIV Additional Sessions Judge, Indore for trial. The trial Court on the basis of the allegation levelled in the charge sheet framed charge for offence under Section 307 of the IPC. The appellant abjured his guilt and pleaded his innocence before the trial Court. 04- In order to bring home the guilt, the prosecution has examined as many as eight witnesses and placed Exhibit-P/1 to P/13 on record. The defence of the appellant is of false implication, but he did not examine any witness in his defence. The trial Court after due consideration of the entire evidence available on record convicted and sentenced the appellant as referred herein above. 05- Learned counsel for the appellant submits that the trial Court has erred in relying upon the statement of the prosecution witnesses and discarding the defence version. There are so many material contradictions and omissions in the evidence of the complainant Bholaram (PW-1), therefore, his statement cannot be relied upon. The prosecution has not examined available independent eye-witness Lalchand, therefore, adverse inference can be drawn against the prosecution. Rajendra (PW-2) and Manohar (PW-3) both are interested witnesses and they are not the eye-witnesses, hence, their evidence cannot be relied upon. The statement of complainant Signature Not VerifiedBholaram was not supported by the medical evidence. Independent Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

seizure witnesses have been turned hostile. The judgment passed by the trial Court is contrary to law and facts on record. The prosecution could not prove the guilt of the appellant beyond reasonable doubt. Therefore, this appeal be allowed and the appellant be acquitted from the charge under Section 307 of the IPC.

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

07- Counsel for both the parties are heard and perused the record of the trial Court with due care.

08- In order to appreciate the merits of the rival contention in its true perspective, it is necessary to advert the medical evidence available on record. Dr. Sanjay Kumar Bhatnagar (PW-5) who conducted the MLC of the victim Bholaram has proved two cut injuries over the abdomen of the victim Bholaram. One incise wound having size of 5" x 3" x peritoneum deep and another incise wound having size of 3" x 1/4" x peritoneum deep on the right side of the abdomen, due to which omentum was also coming out from the wound No.1 and both the injuries are grievous in nature and caused by sharp edged weapon within 24 hours of the examination. His MLC report is Exhibit-P/3.

Signature Not Verified09- Dr. Bhatnagar further deposed in his statement that after Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

inspection of the knife, which was sent by the Police Station MIG, Indore, he opined that injury to the victim may be caused by the seized knife and also fatal to life. His query report is Exhibit-P/4. The appellant did not substantially challenge the above statement of Dr. Bhatnagar in his examination and also MLC report (Exhibit-P/3) and query report (Exhibit-P/4) given by him. Therefore, there is no reason to disbelieve his statement and the above reports which have been proved by him.

10- Dr. Arun Kumar (PW-8), the then surgical expert posted in the said hospital testified that the victim Bholaram, who was admitted in the MGM Medical College. He along with Dr. J. Tiwari operated the wound. During operation he found that there was a clear cut on the right hypochondrium having size of 3" x 1" cm x peritoneum deep. One more cut was found, which was having size of 5" x 3" peritoneum deep. Omentum was also coming out from the wound No.2. As per his opinion both the injuries were grievous in nature and are sufficient to cause death in due course. His report is Exhibit- P/14. During the cross-examination of Dr. Arun Kumar, nothing has been found to disbelieve his evidence. He is an expert witness. His opinion was based upon the report (Exhibit-P/14), on the basis of the statement of Dr. Sanjay Kumar Bhatnagar (PW-5), Dr. Arun Kumar (PW-8), MLC report (Exhibit-P/3), query report (Exhibit-P/4) and medical report (Exhibit-P/14). Prosecution has duly proved that Signature Not Verifiedvictim Bholaram sustained two grievous injuries over his abdomen, Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

which were caused by sharp cutting weapon and injuries are dangerous to life.

11- Now the second question arises for consideration is whether, the appellant was the author of the injuries or not. Victim Bholaram (PW-1) clearly stated in his statement that on 22/01/1996 while he was coming back to his home, on the road he was talking with his relative Lalchand, at that time accused Babulal came out from his house and told that "how you dare to come here". When Bholaram replied that why are you talking so rudely and you should clear my account by paying dues. At that time, appellant attacked upon him and during the altercation he fell down. Thereafter, present appellant gave him two blows of knife on right and left side of the abdomen. Thereafter, he went to his home and narrated the incidence to his son Manu and his friends. Thereafter, he was taken to M. Y. Hospital. 12- The son of the victim Rajendra (PW-2) also corroborated the testimony of the victim Bholaram by stating that on 22/01/1996 at about 10:00 PM when his father Bholaram returned to home, he saw the wounds over the both side of the abdomen of his father and his father told that Babulal attacked upon him by using knife with an intention to kill him. Manohar (PW-3) also supported the statement of the victim Bholaram by stating that when Bholaram came back to home he saw the injuries over the both side of his abdomen and omentum was coming out from his abdomen. Bholaram told them Signature Not Verifiedthat he was assaulted by Babulal. Jeevan Prakash (PW-4) is the eye- Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

witness of the incident has also corroborated the version of Bholaram by stating that he saw the whole incident and before him accused Babulal stabbed the knife in the abdomen of the victim. 13- Learned counsel for the appellant contended that there are certain material contradictions and omissions in the statement of the complainant Bholaram (PW-1), in his statement before the Court and before the police (Exhibit-P/1). Therefore, his testimony cannot be relied upon, but after minute perusal of the statement of Bholaram it appears that there is no material contradictions and omissions in his Court statement and police statement (Exhibit-P/1). Some contradictions and omissions which are related with the conversation with the appellant, but such contradictions and omissions are trivial in nature and neither material nor sufficient to wholly discard his testimony.

14- In the case of State of A.P. Vs. Vs. Pullugummi Kasi Reddy Krishna Reddy reported in (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- Learned counsel further contended that eye-witnesses Manohar (PW-3), Rajendra (PW-2) and Jeevan Prakash (PW-4) are friends and close relatives of the victim Bholaram, therefore, being Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

interested witnesses their statement cannot be relied upon. 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 not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion."

Therefore, in view of the aforesaid law laid down by the Hon'ble apex Court, this Court is not inclined to accept the contention of learned counsel for the appellant to disbelieve the testimony of victim Bholaram and other prosecution witnesses. It is true that Rajendra (PW-2) is the son of the victim and Manohar (PW-

3) is the friend of the victim's son Rajendra and Jeevan Prakash (PW-

4) is also relative of the victim Bholaram but presence of Jeevan Prakash on the spot was quite natural. His testimony appears to be trustworthy and reliable, which was duly corroborated by the medical evidence and evidence of Sub Inspector Virendra Singh Gurjar (PW-

6) who prepared the spot map (Exhibit-P/10) and also recovered the blood stained knife from the possession of the present appellant. Seized knife was also sent to the FSL for chemical examination and chemical examination report is Exhibit-P/13. As per the FSL report, human blood was found over the seized vest (Baniyan) of the appellant Babulal and over the knife.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

16- After considering the entire evidence led by the prosecution, it is clearly established beyond reasonable doubt that at the time of incidence appellant Babulal started abusing victim and on the objection of the victim, he gave two blows of the knife on the vital part abdomen of the victim. The statement of the victim Bholaram is well corroborated by the statement of witnesses Jeevan Prakash (PW-

4) and also supported by the medical evidence available on record, which is assessed by the Doctors that injuries are serious in nature and are also dangerous to life.

17- Therefore, on the basis of the foregoing analysis, it is established that the appellant has caused grievous injuries to the victim with an intention to kill him. The motive of the crime is very clear. Therefore, I do not find any infirmity so far as the reasoning given by the trial Court in respect of the conviction of the appellant. Hence, the conviction of the appellant under Section 307 of the IPC is just and proper.

18- So far as quantum of sentence is concerned, learned counsel for the appellant submitted that the appellant is facing trial since 1996. Now he has turned 59 years. He has no criminal background. No other criminal case prior or after the incidence has ever been registered against the appellant. Hence, the jail sentence awarded to the appellant deserves to be reduced. The submission made by the counsel for the appellant appears to be just and proper. Appellant has Signature Not Verifiedalready suffered jail incarceration for some period. He is facing trial Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM

for last 24 years, therefore, it will be appropriate to reduce his jail sentence from 10 years to 03 years.

19- Therefore, the appeal is party allowed by maintaining the conviction under Section 307 of the IPC and by reducing the jail sentence from 10 years rigorous imprisonment to 03 years rigorous imprisonment. The fine amount of Rs.2,000/- is also maintained. The appellant Babulal is on bail. His bail bond be cancelled. He is directed to appear before the trial Court on 22/08/2022 so as to undergo the remaining jail sentence awarded to him. If he fails to do so, the trial Court shall take necessary steps including issuance of arrest warrant for his production before the Court so as to undergo the remaining jail sentence awarded to him. The order regarding disposal of the properties as pronounced by the trial Court is also affirmed.

20- With the aforesaid modifications, present appeal stands partly allowed. Let a copy of the judgment along with the record of the trial Court be sent to the concerned trial Court for its compliance.

Certified copy as per rules.

(ANIL VERMA) J U D G E Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 7/18/2022 5:58:25 PM