Shanker @ Shankerlal vs The State Of M.P.
2022 Latest Caselaw 7555 MP

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  IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                       BEFORE
          HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                     CRIMINAL APPEAL No.1789 of 1997

   Between:-


    Shankar @ ShankarLAL,
    AGED ABOUT 20 YEARS, S/O
    RAMESHWAR PRASAD SAHU, R/O
    PARIYAT,     POLICE   STATION
    PANAGAR, DISTRICT-JABALPUR
    (M.P.)
                                                                     ......APPELLANT
   (BY SHRI RISHABH SINGH, ADVOCATE )

    AND

   THE   STATE               OF       MADHYA
   PRADESH.
                                                                      ...RESPONDENT


   (BY SHRI ADITYA NARAYAN GUPTA, GOVERNMENT
   ADVOCATE)
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       Reserved on : 12.05.2022

       Delivered on : 02.06.2022

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This appeal coming on for final hearing this day, Justice Dinesh Kumar
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Paliwal, passed the following:

                                 JUDGMENT

This criminal appeal under Section 374 (2) of the Cr.P.C has been filed by the appellant Shankar @ Shankarlal against the judgment of his conviction and order of sentence dated 14.08.1997 passed by 7th ASJ, Jabalpur in ST.No.535/94 whereby he has been convicted for commission of offence under Section 307 of IPC and has been sentenced to undergo rigorous imprisonment for a period of 5 years.

2. The prosecution story in short is that on 29.09.1994 at about 1:25 PM Ashok Choudhary, resident of Pariyat appeared at PS. Panagar along with his mother and lodged report stating that he is a resident of Pariyat and deals in leather. Today, at around 1:00 PM he along with his mother Jamni Bai had gone to Shankar's tea shop to have tea. After having tea, when they did not pay price of tea, Shankar got annoyed and scolded him. At this, he asked him that he is not fleeing and will make the payment. Some altercation took place between them but all of sudden Shankar took out a knife from his shop and gave one knife blow on his abdomen and another knife blow on the left side of axillary fossa. Shankar also threatened him to kill. Matter was pacified by his mother and others present there.

3. On the basis of above narration given by complainant Ashok Choudhary, an FIR Exhibit-P/4 at FIR No.42/94 was registered in P.S Panagar for commission of offence under Section 307 of IPC by ASI R.S.Pathak P.W-3. He sent him to District Hospital for medical examination. In P.H.C. Panagar Shankar was examined by Dr. G.K.Upadhyay P.W-9 who found

one stab wound 2cm x 1cm Peritoneum Deep on the umbilical region and another stab wound 1 1/2 x 1/2 cm muscle deep over the posterior axillary fossa, bleeding. He referred him for further treatment to Victoria Hospital, Jabalpur. In Victoria Hospital Dr. Pramod Kumar Pathak P.W-8 treated injured Ashok and found blood present in peritoneum cavity, rent was seen in peritoneum membrane connecting with stab wound of abdomen. He found stab wound 2cm x 1cm peritoneum deep on the umbilical region. According to him, injury found in the abdomen of injured was dangerous to life.

4. In course of investigation, SI R.K.Mishra P.W-7 on the basis of disclosure memo given by Shankar recovered a knife from accused Shankar and prepared seizure memo Exhibit-P/2. He along with seized knife sent Exhibit-P/7 query letter for getting doctor's opinion about the nature of injury and seized knife. He seized injured Ashok Choudhary's bed-head- ticket from Victoria Hospital and prepared seizure memo Exhibit-P/8. He recorded statement of witness Mukesh. He arrested accused and prepared arrest memo Exhibit-P/9. ASI R.S.Pathak P.W-3 seized Ashok's underwear and prepared seizure memo Exibit-P/3. He visited the place of occurrance and prepared spot map Exhibit-P/5. He seized plain earth and blood stained earth from the spot and prepared seizure memo Exhibt-P/6.

5. After completion of investigation, Police Panagar filed charge-sheet against the appellant/accused Shankar before Judicial Magistrate First Class, Jabalpur, for commission of offence under Section 307 of IPC, who in his turn committed the case to the Court of Sessions.

6. Learned Additional Sessions Judge framed charge under Section 307 of

IPC against accused but he did not plead guilty and claimed to be tried.

7. In support of the case, prosecution has examined as many as 9 witnesses. Rohini Prasad P.W-1, Veni Prasad Kushwaha P.W-2, R.S.Pathak P.W-3, Madhusudan P.W-4, Ashok P.W-5, Jamni Bai P.W-6, R.K.Mishra P.W-7, Pramod Kumar Pathak P.W-8 and Dr. G.K.Upadhyay P.W-9. In defence, accused has examined Manoj Kumar Vishwakarma D.W-1.

8. Learned Additional Sessions Judge after recording evidence of prosecution and defence witnesses and hearing the parties, convicted the appellant [email protected] for commission of offence under Section 307 of IPC and sentenced him as aforementioned.

9. Being aggrieved by the conviction and sentence imposed upon appellant/ accused, this appeal has been filed on the ground that learned trial Court has not properly appreciated the evidence of the witnesses. It has not considered omission and contradictions appeared in the evidence of complainant Ashok Choudhary P.W-5, his mother Jamni Bai P.W-6 and in the evidence of other witnesses. Prosecution has failed to prove the ingredients of Section 307 of IPC. There was no evidence on record that injuries caused to the injured by the appellant /accused was sufficient in the ordinary cause of nature to cause his death, therefore, learned trial Court was not justified in convicting the appellant accused for commission of offence under Section 307 of IPC. Learned trial Court has not taken into consideration the fact that incident took place on the spur of the moment as injured was not making payment of tea consumed by him and his mother. Hence, appellant ought not to have been held guilty for commission of offence under Section 307 of IPC. At the most, offence falls under Section

326 or 324 of IPC. It was also submitted by the learned counsel for the appellant that sentence imposed upon the present appellant was disproportionate and therefore, it has been prayed that it should be reduced to the period already undergone by the appellant/ accused.

10. On the other hand, learned Government Advocate has supported the impugned judgment of conviction and sentence passed by the trial Court and submitted that prosecution has proved its case beyond all reasonable doubts. Learned trial Court has not committed any error in convicting the appellant accused for commission of offence under Section 307 of IPC as evidence of Ashok P.W-5 is of sterling quality and stand corroborated from the ocular evidence of his mother Jamni Bai P.W-6 who at the time of commission of offence was present on the spot and it find further corroboration from the medical evidence and promptly lodged FIR.

11. I have heard rival submissions put forth by learned counsel for the parties and perused the trial Court record.

12. Injured Ashok Choudhary P.W-5 in his evidence has deposed that he knew accused. On 20.01.1994 at around 1-1:15 PM, he alongwith his mother Jamni Bai had gone to accused's tea shop to have a cup of tea. After having tea, when appellant/ accused asked them to pay price of tea, he told him that he will make the payment after some time, but, accused asked him to make payment then and there . He told him that he would pay the money after arrival of his father. At this accused told him that if he does not pay price, he may kill him. In the meantime, he saw one jeep with banner going towards Pariyat side. When he and his mother moved little forward to see the jeep, one little boy shouted from the back "Ashok Save Yourself" at

this, when he turned back, accused gave one knife blow on his left armpit and another blow on his abdomen. He fell down there. Thereafter, accused fled away from there by sitting in the same jeep. His mother took him to P.S Panagar and from there he was taken to Victoria Hospital. He remained admitted in Victoria Hospital for 26-27 days.

13. The aforesaid evidence of Ashok Choudhary P.W-5 finds corroboration from the direct evidence of his mother Jamni Bai P.W-6. She has deposed that two years ago at around 1 PM, he along with his son Ashok had gone to have tea at Shankar's shop. After having tea Shankar had asked them to pay price of tea, when Ashok told him that he is making payment of tea, Shankar told "Saale chamre paise de nahi to jaan se maar denge". When she told that she is making payment just now accused told "Chamariya tujhe bhi jaan se maar denge". Thereafter, Shankar gave knife blows in the left armpit and abdomen of Ashok. On raising of alarm by her Ramprasad, Veer Singh and Arjun reached there and took Ashok to Panagar police station. From police station Ashok was taken to P.H.C. and from there he was taken to Victoria Hospital, Jabalpur.

14. Aforesaid evidence of Ashok P.W-5 and Jamni Bai P.W-6 does not find corroboration from evidence of Madhusudan P.W-4 who has been declared hostile. Rohini Prasad P.W-1 is independent witness of memorandum Exhibit-P/1 and seizure memo Exhibit-P/2 but he has not supported the preparation of aforesaid memos before himself. Veni Prasad Kushwaha P.W-2 is a witness of seizure memo Exhibit-P/3, he has also not supported the recovery of a sealed packet before himself.

15. Ashok P.W-5 in his cross-examination has stated that he manufactures

and mends shoes and chappals. He has denied suggestion offered by the defence that accused had not given any knife blow upon his person. In para 3 of cross-examination, he has admitted that in Exhibit-D/1 police statement, he had not disclosed the fact that two other boys were also there along with Shankar. As far as the evidence of Ashok P.W-5 is concerned, it is little exagerrated but no material anomoly or inconsistency is found in his evidence. In cross examination, he has been firm and consistent and has specifically stated that it was appellant/ accused Shankar who had given two knife blows on his person causing injuries on his abdomen and armpit.

16. The aforesaid evidence of Ashok P.W-5 finds full corroboration from the evidence of his mother Jamni Bai P.W-6 who at the time of incident was present on the spot. The evidence of Jamni Bai about causing knife injuries by appellant accused on the person of Ashok has remained unrebutted in cross- examination. In cross-examination she has specifically stated that she had seen Shankar giving knife blows on the person of Ashok. In so far as the truthfulness and reliability of evidence of Ashok P.W-5 is concerned, that stand fully corroborated from ocular evidence of his mother Jamni Bai P.W-6 an eye witness.

17. Dr. G.K.Upadhyay P.W-9 in his evidence has deposed that Ashok son of Gaya Prasad Choudhary aged 20 years old was brought before him by constable Dev Narayan of P.S. Panagar. He had examined Ashok Choudhary and had found following injuries on his person:

(i) stab wound 2cm x 1 cm peritoneum deep on the umbilical, bleeding.

(ii) stab wound 1 1/2 x 1/2cm, muscle deep on the posterior axillary fold

bleeding.

(iii) Blood vomiting

He was conscious. Injuries were caused by sharp and pointed object within three or four hours of the examination. He had referred injured to Victoria Hospital for further treatment. He has proved MLC report Exhibit-P/9. Dr. G.K.Upadhyay P.W-9 further deposed that on 04.03.1994, he had received Exibit-P/7, letter from the police along with seized knife. He had seen the knife but had not given any definite opinion about injuries found on the person of Ashok could have been caused by that knife or not. He has proved his signature on A to A part of Exibit-P/7.

18. Dr. P.K.Pathak P.W-8 has deposed that he had treated Ashok son of Gaya Prasad Choudhary who was admitted in surgery ward of Victoria Hospital. He had sustained knife injury on his abdomen. He had operated his wounds, patient's bed-head-ticket runs in 16 pages and A to A part of Page No.4 of bed-head-ticket bears his signatures. He further deposed that injury found on the person of injured could have been dangerous to life in ordinary course of nature as it was caused on the vital part of the body.

19. In cross-examination Dr. P.K.Pathak P.W-8 stated that injury was caused by some sharp edged weapon. He has made it clear that injury was on the abdomen and it was deep up to intestines. Therefore, in absence of proper treatment death was possible. There are no reasons to disbelieve the aforesaid medical evidence of Dr. G.K.Upadhyay P.W-9 and Dr. P.K.Pathak P.W-8.

20. The evidence of ASI R.S.Pathak P.W-3 who recorded FIR exhibit P/4,

prepared site map Exhibit-P/5 and seized plain and blood stained earth from the place of occurrence is unrebutted. Thus, as far as the reliability and truthfulness of the evidence of Ashok Choudhary P.W-5 is concerned that stand corroborated from the ocular evidence of his mother Jamni Bai P.W-6 and it also stand corroborated from the promptly lodged FIR Exhibit- P/4 and medical evidence of Dr. Upadhyay and Dr. Pathak.

21. Learned counsel for the appellant has submitted that no blood stains were found present on the knife and doctor has not given definite opinion whether the seized knife was used in causing injuries or not. Witness of seizure memo has turned hostile. Eye witness P.W-4 Madhusudan has also turned hostile. Thus, in absence of evidence of independent witnesses, learned trial Court was not justified to convict the appellant accused for commission of offence under Section 307 of IPC only on the basis of evidence of Ashok P.W-5 and Jamni Bai P.W-6, who are interested witnesses. Thus, he has prayed that evidence of injured Ashok P.W-5 and his mother Jamni Bai P.W-6 being the evidence of interested witnesses be discarded.

22. As far as the argument of learned counsel for the appellant is concerned, undoubtedly, Dr. G.K.Upadhyay P.W-9 in his cross-examination has stated that he could not give any definite opinion whether injuries found on the person of injured were caused by the seized knife or not. But mere in the absence of definite opinion by the Doctor about seized weapon, the evidence of injured eye witness and ocular evidence of his mother who was present on the spot and is a natural witness cannot be discarded. Even if the independent witnesses of memos have turned hostile that does not

mean that evidence of injured witness and eye witness has to be disbelieved. In so far as reliability and truthfulness of evidence of injured Ashok and ocular evidence of his mother is concerned, that is almost unrebutted and finds support from promptly lodged FIR and medical evidence. Therefore, their evidence cannot be discarded or brushed aside only on the basis that witnesses of seizure have turned hostile or have not supported prosecution case or have not been examined.

23. In this case, it cannot be overlooked that appellant accused has given two knife blows on the person of injured, one on the abdomen and another on the posterior axillary region and according to Dr. P.K.Pathak P.W-8 who had operated the injuries has clearly stated that abdomen injury could have been dangerous to life if not treated well in time. As far as the offence under Section 307 of IPC is concerned, nature of offence has to be determined on the facts and circumstances of each case. If an injury is caused on the vital part of body and has been caused by deadly weapon like knife in the stomach and which was peritoneum deep up to umbilical region and was deep up to intestines and Doctor who operated the injury has described the injury dangerous to life, it cannot be said that injury was not grievous in nature.

24. It is undisputed that injury was caused by hard and sharp object knife. Although Dr. P.K.Pathak in his cross-examination has admitted that injury could have been dangerous to life if it was not treated well in time.

25. In regard to question is whether injury caused to the complainant/injured Ashok Choudhary on the abdomen was sufficient to cause his death or not, Dr. P.K.Pathak has stated that if proper treatment

was not given to the victim, his death was possible.

26. In regard to constitute the offence under Section 307 of IPC, the Supreme Court in the matter of Parsuram Pandey and Others Vs. State of Bihar - (2004)13 SCC 189 has held as under :-

"15. To constitute an offence under Section 307 twoingredients of the offence must be present:-

(a) an intention of or knowledge relating to commission of murder ; and

(b) the doing of an act towards it.

For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under Section 302 of the IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the fire arm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence

led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simplein juries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under Section 307 of IPC. "

As per the aforesaid judgment of the Supreme Court, for the purpose of commission of an offence under Section 307 of the IPC, it is material that there should be an intention or knowledge of the offence and secondly the act done for the purpose of carrying out the intention.

27. The same principle of law has been laid down by the Supreme Court in the matter of Sumersingh Umedsingh Rajput Vs. State of Gujarat - (2007)13 SCC 83. The same reads as under :-

"14. Even assuming that PW-8 received a fire arm injury which in the acts and circumstances of the case does not appear to be plausible, aving regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of Section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of Section 307 are:

(i) an intention of or knowledge relating to commission of murder; and

(ii) the doing of an act towards it."

28. From the aforesaid judgment also, it is clear that intention of or knowledge relating to commission of murder and doing of an act towards it are the essential ingredients to constitute offence under Section 307 of IPC.

29. In the present case it cannot be overlooked that injured along with his mother consumed tea at the shop of appellant/accused, who at the time

of commission of offence was only 20 years old young boy. Prime reason for commission of offence was non-payment of tea price by the injured Ashok, inspite of the request by accused. First of all some altercation took place between the appellant/accused and injured over the payment of tea price and when injured did not pay the price of tea and started to leave the place along with his mother, in the rage of fit appellant gave two blows on his person by the knife i.e. one on the abdomen, vital part of body, and another in the armpit, non-vital part of the body.

30. To justify the conviction under Section 307 of IPC, the Court has to see whether the act was done with an intention to commit murder. The nature of injuries caused may be of assistance in giving a finding as to he intention of the accused, such intention may also be gathered from the circumstances like the nature of weapon used, parts of the body where the injury was caused, severity of injury and other facts of the case.

31. Only two injuries have been caused one in abdomen and another on the armpit. Undoubtedly, the abdomen is vital part of the body. But it cannot be overlooked that appellant/accused has acted in state of furore as appellant and complainant had some altercation over the issue of payment of tea price consumed by injured and his mother. Therefore, it can be inferred that appellant accused did not cause injury with an intention to cause death. Hence, I am of the view that appellant/accused was not liable to be convicted under Section 307 of IPC for having given knife blow on abdomen, instead he was liable to be punished under Section 326 of IPC. Therefore, I am of the view that learned trial Court

was not justified in holding the appellant accused guilty for commission of offence under Section 307 of IPC as learned trial Court has overlooked the aforesaid vital aspect.

32. Looking to the nature of case and the evidence on record, in my opinion, the appellant accused is guilty of commission of offence punishable under Section 326 of IPC instead of 307 of IPC. So far as the period of sentence is concerned, it cannot be overlooked that incident has taken place 25 years back. Therefore, having considered all the facts and circumstance of the case, the conviction and sentence imposed upon the appellant/ accused Shankar @ Shankarlal for the offence under Section 307 of IPC is set aside and instead he is convicted under Section 326 of IPC and sentenced to undergo 3 years RI and fine of Rs.10000/-(Rs. Ten Thousand) and in default, further RI for 3 months. On payment of fine by appellant accused Rs.5000/- be paid to the injured complainant Ashok Choudhary as compensation under Section 357 (1) of Cr.P.C. Thus, appeal is partly allowed.

33. With the aforesaid modification in conviction and sentence, the appeal is partly allowed. Appellant- Shankar @ Shankarlal is on bail. His personal bond and bail bonds are hereby discharged. Appellant is directed to surrender before the trial Court for undergoing the remaining part of the jail sentence forthwith. Registry of this Court is directed to arrange for issuance of super-session warrant against the appellant. In case the appellant Shankar @ Shankarlal son of R.P.Sahu fails to surrender for undergoing remaining part of jail sentence, the trial Court shall take all necessary steps to commit him to jail for undergoing

remaining part of jail sentence.

34. With the aforesaid modification, this Criminal appeal No.1789/1997 is disposed off. A copy of judgment be sent immediately to the Trial Court along with the record for information and compliance.

(DINESH KUMAR PALIWAL) JUDGE

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ANUPRIYA Digitally signed by ANUPRIYA SHARMA CHOUBEY DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

SHARMA Pradesh, 2.5.4.20=39fa4048c7a93442ff8e79347e51ed0f 6f655c64cb6d99dcf7a36d69ef167878, pseudonym=2142156D91516ACA40F2291D4F F91E27E57BADA8,

CHOUBEY serialNumber=04B33FA62D9E8571AA55F602E A8D77DCFCFCE3A6B69011155705CFD2CEC5B 118, cn=ANUPRIYA SHARMA CHOUBEY Date: 2022.06.03 14:32:04 +05'30'