Takesingh vs The State Of M.P.
2022 Latest Caselaw 3065 MP

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                                                                                            Cr.A. No.227/2000




                                         Cr.A. No.227/2000


                                        Takesingh Singh

                                                      Vs.

                                State of Madhya Pradesh

...............................................................................................................
          Shri A. Siddiqui, learned counsel for the appellant.

          Ms. Geetanjali Chaurasia, learned panel lawyer for the
respondent/State.

............................................................................................................


                                 JUDGMENT

(Passed on this 4th day of March, 2022)

This appeal has been preferred by the appellant under Section 374 of Code of Criminal Procedure (in short "Cr.P.C.") against the impugned judgment dated 31.01.2000 passed by the Additional Sessions Judge, Agar, Distt.-Shajapur in Sessions Trial No.120/98 whereby appellant has been convicted under Section 307 of Indian Penal Code (in short IPC) and sentenced to undergo 5 years' rigorous imprisonment with fine of Rs.800/- with usual default stipulation.

02. The prosecution story in short is that on 09.12.1997 at about 3 p.m., the complainant Ishwar Singh was grazing his cattle in his field and also watching the crop of wheat of his field. Some 4-5 cattle of appellant- Take Singh entered into his field and destroyed HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

the crops of wheat so the complainant turned the cattle out of his field and complainant made complaint to the appellant/accused regarding loss committed by the cattle. The accused asked about the loss. The complainant showed the loss, on this the accused inflicted 4-5 time by stick to the complainant. Due to which, the complainant sustained several injuries on his head, chest and nose. At the time of incident, accused also threatened him for life. Hearing his cries, Lalu and Lakhansingh came there and they saved the complainant. On the same day, complainant lodged F.I.R. at police station-Agar.

03. Dr. Sanjay Khandelwal, PW-3 conducted MLC of the victim Ishwar Singh and found one lacerated wound of ½'' X ¼''x skin deep on the right parietal region of the head. Abrasion and swelling at fronto, parieto temporal region with lid. Bruises with swelling on left upper arm laterally bruises on right side of the lumber region. He opined that injuries are caused by a hard and blunt object within 24 hours. He also advised for X-ray of scull and left upper arm and the victim was referred to District Hospital, Shajapur.

04. Dr. N.K. Gupta, PW-8 also examined the victim and he opined that there was fracture on right parietal bone and that injury was grievous in nature and also dangerous to life. During investigation, Sub-inspector Abdul Gaful Mansuri PW-9 prepared the spot map and arrested the accused and recovered a blood stained stick from his possession. The victim Ishwar Singh was admitted at Rajshree Nursing Home, Indore. His bed tickets HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

and papers of treatment were also seized by the police. The blood stained stick was sent for examination to the concerned doctor and Dr. P.P. Choubey opined that victim person sustained bone injury on scull by the above stick.

05. After completion of the investigation, charge-sheet was filed. The Judicial Magistrate First Class, Agar committed the case to the Court of sessions which was transferred to Additional Sessions Judge, Agar. The trial court on the basis of the allegations framed charges under Section 341, 307 and 506(Part-II) of IPC.

06. The appellant abjured his guilt and pleaded his innocence in the trial. In order to bring home the guilt, the prosecution examined as many as 10 witnesses and placed Ex.P-1 to Ex.P-16 on record. The defence of the appellant was of false implication and defence examined two defence witnesses. The trial court after considering the submissions advance by the learned counsel for the parties and scrutinizing the entire evidence available on record convicted the appellant/accused under Section 307 of IPC and sentenced him as referred herein above.

07. Learned counsel for the appellant submits that learned trial Court has failed to appreciate the facts and circumstances of the case as well as the impugned judgment is bad in law and the learned trial court is erroneous in the facts and law. Trial court has failed to appreciate the evidence on record reasonably hence, the judgment is illegal. The trial court has failed to appreciate the fact that prosecution has failed to prove its case beyond reasonable HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

doubt with the support of some independent witnesses and the fact that the alleged incident happened on a spur of moment and on sudden provocation and no deadly weapon has been used. Trial court has committed illegality in relying on hearsay witnesses. The impugned judgment is illegal and erroneous and without jurisdiction, hence, the same is liable to be set aside. It is prayed that present appeal be allowed and appellant be acquitted from the charge under Section 307 of IPC.

08. Learned panel lawyer for the respondent/State has supported the impugned judgment of conviction by submitting that trial court on proper appreciation of evidence has recorded the finding and the same does not call any interference.

09. Heard the learned counsel for the parties and perused the record of the trial court with due care.

10. In order to appreciate the merits of the rival contentions in right perspective, it is necessary to advert the medical evidence on record. Dr. Sanjay Khandelwal, who conducted MLC of the victim Ishwar Singh has proved undermentioned injuries over the body of the victim Ishwar Singh.

(1) One lacerated wound having size of ½'' x ¼''x skin deep on the right parietal region of the head with haematoma

(2) Abrasion with swelling at right fronto, parieto temporal region with lid size of the abrasion ½'' x ½'' scull 4x3''.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

(3) Bruises with swelling on left upper arm laterally 1/3 3x2'' .

(4) Bruises on right side of the lumber region size ½'' x ¼''.

11. As per his opinion, the injuries were caused by a hard and blunt object within 24 hours. He advised for X-ray for the injuries Nos.1 and 2. The patient was referred to district hospital for X-ray management of head injury. Dr. Khandelwal admitted in his cross- examination that at the time of his examination, the condition of Ishwar Singh was not critical. In the cross-examination, the appellant did not challenge the aforesaid injury on the body of victim Ishwar Singh. The appellant did not challenge the statement of Dr. Sanjay Khandelwal. MLC report Ex.P-1 and query report Ex.P-2 were given by him, therefore, there is no reason to disbelieve the statement and the report given by him.

12. Dr. N.K. Gupta, PW-8 the then assistant surgeon posted at District Hospital, Shajapur testified that victim Ishwar Singh was admitted in district hospital, Shajapur. While during his X-ray examination, a fracture was found on right parietal bone which was grievous hurt. It may be dangerous for life. He has given X- ray report Ex.P-8 along with X-ray report Ex.P-9 and Ex.P-11. Dr. N.K. Gupta also stated in his statements that he is well aware of hand writing and signature of Dr. P.P. Choubey, who had been worked with him and Dr. Choubey has been died. He testified the query report Ex.P-12 so given by Dr. Choubey and bed tickets of the victim of Ex.P-13 and Ex.P-14. He also stated in his statement HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

that Dr. N.K. Rathore has referred the victim to the MY Hospital, Indore, therefore, his letter dated 10.12.1997 (Ex.P-15).The statement of Dr. N.K. Gupta was not seriously challenged by the appellant during his cross-examination, therefore, the statement of Dr. N.K. Gupta cannot be disbelieved. Hence, the statements of Dr. Sanjay Khandelwal PW-3 and Dr. N.K. Gupta PW-8 are reliable and already supported by MLC Ex.P-1 and query report Ex.P-2 and X-ray report Ex.P-8 and X-ray plate Ex.P-9 to Ex.P-

12. Bed hall tickets Ex.P-13 and Ex.P-14. Therefore, on the basis of above entire medical evidence, it has been proved that victim Ishwar Singh sustained serious bone injury over his head caused by hard and blunt object.

13. Now, the second question of consideration is whether the appellant is author of the above injury or not.

14. As per statement of the victim Ishwarsingh (PW-4) in para 1 he has very categorically stated that at the time of incident he was grazing his cattle near his well and also gardening his field, at that time 4-5 cattle of appellant Takesingh entered into his field and destroyed the crops of wheat, therefore, he was trying to repulse the cattle out of his field, at that time accused Takesingh came on the spot and started arguing and abusing him and gave 4-5 blow of stick due to which he sustained several injuries over his chest, head and hand and blood was oozing out from the wound. After hearing his cry Lakhan and Lalu came their and also saved him otherwise the appellant would have been killed him. After lodging the FIR he was sent to Agar Hospital where his MLC has been HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

conducted. The statement of victim Ishwarsingh is corroborated by statement of Lalu (PW-5), Lakhan (PW-6) who reached on the spot during the incident and witnessed the whole incident. Manohar Singh (PW-1) and Vijay Singh (PW-2) corroborated that they saw the victim Ishwarsingh just after the incident and Ishwarsingh told them that he was beaten by Takesingh by wooden stick and he had sustained various injuries.

15/ Learned counsel for appellant submits that there are some discrepancies between ocular evidence and medical evidence. Although Lalu @ Lalaram (PW-5) stated that accused gave a blow of lathi upon the chest of victim Ishwarsingh but as per the statement of Dr. Sanjay Khandelwal (PW-3) no injury was found over his chest. Dr. Khandelwal also stated that he found a bruise over lumbar region of the back but as per statement of victim and other witnesses, victim has not sustained any injury over his back. But it is remarkable that statement of victim Ishwar Singh and other eye witnesses were recorded after 2 years of the incident therefore, all these contradictions are not treated as material contradiction. In this regard the Hon'ble Supreme Court in the case of Yunis @ Kariya Vs. State of M.P. reported in (2003) 1 SCC 425 has held as under:-

"6. Coming to the alleged discrepancy between medical evidence and evidence of the eyewitnesses, it is to be noted that at least three injuries referred to by the autopsy surgeon and forming part of the medical evidence and as stated by the eyewitnesses are common. These three injuries are by themselves sufficient to cause death. The autopsy surgeon has not mentioned the knife injury on the back side of the buttock and another injury. The mere HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

non mention of the two injuries by the autopsy surgeon does not and cannot lead to rejection of the prosecution case. The two injuries might have escaped the notice of the doctor. Both the courts below have found the prosecution case to be fully established and proved beyond any doubt whatsoever and we see no reason to take a different view."

16/ Learned counsel further contended that Lakhan Singh (PW-

6) is nephew of victim Ishwar Singh and Lalu (PW-5) was servant of victim Ishwar singh and Manohar Singh (PW-1) and Vijay Singh (PW-2) are the cousins of victim Ishwarsingh, therefore all these witnesses are interested witness and their statement cannot be relied upon.

17/ The Supreme Court in the case of Mahavir Singh Vs. State of M.P. reported in (2016) 10 SCC 220 has held as under:-

"18. The High court has attached a lot of weight to the evidence of the said Madho Singh (PW-9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.

19. A contradicted testimony of an interested witness cannot be usually treated as conclusive. The said Madho Singh (PW-9) has admitted that he has been a witness in another case against the accused for the deceased. Here HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

it is to be seen that the said Madho Singh (PW-9) has been acting as a pocket witness for the family. Further, the credibility of this independent witness can be challenged on the fact that the commotion was only heard by the said Madho Singh (PW-9) whereas the rest of the members of the locality did not come for help. As Madho Singh(PW-9) is a chance witness as well as an interested witness herein, causes suspicion and does not inspire confidence. This admission by Madho Singh (PW-9) not only forces us to doubt the veracity of his own deposition but also has created doubts on the version of Gambhir Singh (PW-7)."

18/ 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.

19/ A.S.I. Abdul Gafur Ansari (PW-9) stated that on 21.5.1997 he has prepared spot map (Ex.P-4) in presence of witness Lalu and he has also recovered a bamboo stick from possession of accused Takesingh by seizure memo (Ex.P-7). Lalluram (PW-5) also supported the fact of preparing of spot map (Ex P-4). Dashrath Singh (PW-7) also supported that blood stain bamboo stick has been recovered from accused by police before him. 20/ The prosecution case proves beyond reasonable doubt and it is proved that the appellant with an intention to kill the victim gave him several blow of sticks due to which victim sustained HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.A. No.227/2000

grievous injuries which were fatal to his life also, therefore, the conviction under Section 307 of IPC is hereby upheld. 22/ So far as the quantum of sentence is concerned, the trial court has awarded sentence of rigorous imprisonment for 5 years with fine of Rs.800/- to the appellant. The appellant was aged about 22 years at the time of incident and he has long life to live. As per record the appellant remained in jail for 42 days. The incident is of the year 1997. Hence, while upholding the conviction of the appellant under Section 307 of IPC, I deem it proper to reduce the quantum of sentence imposed upon him from 5 years to 2 and half years.

23/ Consequently, present criminal appeal is partly allowed by maintaining the conviction under Section 307 of IPC by reducing the sentence from 5 years to 2 and half years. The fine amount is also maintained. Appellant is on bail. His bail bond stands cancelled. He is directed to appear before the trial court on 25.3.2022 so as to undergo remaining sentence awarded to him. If he fails to do so, the trial court shall take necessary steps including issuance of warrant of arrest for his production before the court so as to undergo the sentence awarded to him. The order of disposal of the property as pronounced by the trial Court is also affirmed.

Let a copy of this order along with the record of the trial Court be sent back to the concerned trial Court for due compliance.

(Anil Verma) Judge BDJ Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.03.05 13:39:51 +05'30'