Madhya Pradesh High Court
Dinesh vs The State Of M.P. on 30 March, 2022
Author: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 30th OF MARCH, 2022
CRIMINAL APPEAL No. 2728 of 1998
Between:-
DINESH, S/o VEERENDRA SINGH THAKUR, AGED
ABOUT 21 YEARS, R/O GARHA PHATAK, JAGDISH
MANDIR, P.S. LORDGANJ, DISTRICT JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SANDEEP DUBEY - ADVOCATE)
AND
THE STATE OF M.P. THROUGH POLICE STATION
GARHA, DISTRICT JABALPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI HARISH SHUKLA - PANEL LAWYER )
This appeal coming on for final hearing this day, the court passed the
following:
JUDGMENT
T his Criminal Appeal under Section 374(2) of the Code of Criminal
Procedure has been filed by the appellant Dinesh against the judgment of
conviction and order of sentence dated 13.11.1998 passed by the learned
Additional Sessions Judge/Special Judge NDPS Act, Jabalpur in S.T. No.
307/1995, whereby the appellant has been convicted for commission of offence
punishable under Sections 452 and 307 of IPC and has been sentenced to undergo
rigorous imprisonment for a period of two years and fine of Rs.500/- for
commission of offence under Section 452 of IPC and rigorous imprisonment for a
period of seven years and fine of Rs.1000/- for commission of offence under
Section 307 of IPC. He was further directed to undergo rigorous imprisonment for
a period of three months and one year in default of payment of fine imposed upon
him under Section 452 and 307 of IPC.
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2. The prosecution story in short, is that on 04.01.1995 Anandam (PW-5)
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resident of Shaktinagar, Garha lodged an F.I.R. in P.S. Garha, stating that she
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does house hold work. Today she was at her home, at around 02:15 p.m. Dinesh
Thakur alongwith one other boy came to her house and enquired about Sharma Ji,
she told him that, he is in MPEB Office and usually returns around 05:00 p.m., at
this, the boy who had come with Dinesh went back. Dinesh came inside her quarter
and asked for drinking water, at this her grand son Murli gave him water. Dinesh
sat down there and said that he will go after meeting Sharma Ji. At around 03 p.m.
when she went towards kitchen side all of sudden he gave a knife blow on her back
causing injury near her waist, when she turned, he gave another knife blow from the
front side causing injury on her abdomen. She screamed "save-save" at this Dinesh
fled away. She fell down. In the mean time, her grand son Murli, Veena, Smt.
Shukla, reached there. Four days ago, Dinesh had worked in her house, due to
which she knows his name. She has been brought from vehicle to lodge report by
K.P. Mudoriya, Basant Pate and Bhanumati. Owing to causing of injuries by knife,
her sari has torn and blood has oozed. Within 15 minutes of the incident at about
03:15 p.m., the matter was reported to the Police Station Garha, Jabalpur. F.I.R.
was registered at Crime No. 8/1995 for commission of offence under Section 307
of IPC.
3. After investigation, charge-sheet was filed before the learned Magistrate
who in his turn committed the case to the Court of Sessions.
4. Learned Additional Sessions Judge framed charges against the accused
for commission of offences under Section 452 and 307 of IPC. Accused abjured
his guilt and claimed to be tried.
5. In support of the case, prosecution has examined as many as 10
witnesses. Smt. Rekha Shukla (PW-1), M.K.Shukla (PW-2), S. Murli (PW-3),
Venkat Subramnyam (PW-4), Smt. Anandam (PW-5) injured, Beena (PW-6),
Shridhar (PW-7), S.S. Nair (PW-8), Smt. Madhu Saxena (PW-9) and J.L. Jhariya
(PW-10). Where as appellant/accused has not examined any witnesses in his
support.
6. Learned Additional Sessions Judge after recording the evidence of
prosecution witnesses found the present appellant/accused guilty and sentenced
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SAN him as aforesaid.
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Date: 2022.03.31 11:40:09 IST 7. Being aggrieved by the conviction and sentence imposed upon
appellant/accused, this appeal has been filed on the ground that there was no
independent witness and therefore, learned trial Court has committed error in
relying solely on the testimony of injured Anandam (PW-5). There was no motive
for the appellant to cause injury. He has falsely been implicated in this case.
Anandam (PW-5) in her cross-examination has admitted that she had not lodged
any report with the police. During the course of arguments, it was also submitted
b y learned counsel for the appellant that the sentence imposed upon the present
appellant is disproportionate and prays that it should be reduced to the period
already undergone by the appellant/accused.
8. On the other hand, learned Panel Lawyer for the respondent/State has
supported the impugned judgment passed by the trail Court and has submitted that
prosecution has proved its case beyond the all reasonable doubt. Learned trial
Court has not committed any error in convicting the appellant/accused for
commission of offence under Section 452 & 307 of IPC.
9. Injured/complainant Smt. Anandam (PW-5) has deposed that she knew
the accused Dinesh. Ten days prior to incident Dinesh had worked for three days
in her house. On 04.01.1995 Dinesh came to her and told that he has been sent by
Bala Sahab, at this she asked him to come in the evening, but he said, Sahab has
asked him to wait. Thereafter, he asked her to give drinking water. Two other
persons had also come with him. She asked her 8 years old grand-child to give
them water and went towards kitchen to work there, in the meantime accused
Dinesh came in her kitchen, gave a knife blow on her back and when she turned, he
gave another knife blow on her stomach. When she screamed, accused and other
boys went away from there. She called her neighbors. Mr. & Mrs. Shukla and
other neighbor came there and took her to the Police Station. She had lodged
F.I.R. Ex.P-6 and "A" to "A" part of it bears her signature. She was subjected to
cross-examination but nothing could be elucidated in her cross-examination. She
has been consistent in her evidence. Accused was well known to her as he had
worked in her house, some days ago. In para-10 of her cross-examination, she has
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made it clear that she had gone to the police station and her son had lodged the
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report and she had put her signature on Ex.P-6 in Medical College.
Date: 2022.03.31 11:40:09 IST
10. Learned counsel for the appellant argues that F.I.R. (Ex.P-6) in Police
Station Garha was not lodged by the injured/complainant, therefore, same cannot
be relied on. Learned trial Court has committed error in accepting the F.I.R. The
argument is not worth acceptance as J.L. Jhariya (PW-10), scribe of the F.I.R.
(Ex.P-6) has deposed that, he had taken down the F.I.R. as per the narration given
by injured/complainant Anandam (PW-5) but no question was put to J.L. Jharia
(PW-10) in this regard in his cross examination. Therefore, arguments advanced by
learned counsel for appellant in this regard is untenable.
11. The evidence of injured/complainant Anandam (PW-5) finds further
corroboration from the evidence of Shridhar (PW-7) the grand son of Anandam
(PW-5). Shridhar (PW-7) has deposed that he knew the accused. He had caused
injuries to his grand-mother by means of knife. He is the boy who was present in
the house and had given drinking water to accused/appellant. Thus, the evidence of
Anandam (PW-5) finds corroboration from the evidence of eye witness Shridhar
(PW-7).
12. Smt. Rekha Shukla (PW-1) has deposed that after hearing the scream,
when she reached to the house of Anandam, she had found injuries on her
stomach. Anandam had informed her that injury has been caused to her by Dinesh.
Though she is not an eyewitness but just after the incident, when she reached to the
house of Anandam, Anandam told her that it was Dinesh who had caused injuries
to her.
13. S.Murli (PW-3) the grand child of injured complainant Anandam has
deposed that when he after hearing scream of her grand mother reached there, he
found injuries on the back and stomach of his grand mother and she had informed
him that one boy has caused injuries to her.
14. Venkat Subramnyam (PW-4) is the son of Anandam, he has deposed
that in the month of December accused had worked for three days in his house.
When he was returning after getting his vehicle repaired, his mother was being
taken to the hospital. In Medical College, Jabalpur his mother had informed him
that the boy who had worked in the house had caused injuries to her.
15. Beena (PW-6) has also supported the statement of S.Murli (PW-3) and
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Date: 2022.03.31 11:40:09 IST Venkat Subramnyam (P.W.-4).
16. Thus, as far as the evidence of Anandam (PW-5) is concerned, that
find corroboration not only from the evidence of eye-witness Shridhar (PW-7) but
also from the evidence of other prosecution witnesses. Just after the incident, she
has informed her neighbors who had reached on the spot hearing her screams that
it was accused Dinesh who had caused injuries to her by means of knife.
17. Dr. Madhu Saxena (PW-9) in her evidence has deposed that on
04.01.1995 in Medical College, Jabalpur, Anandam W/o Venkateshwaram aged
about 56 years was brought by Police Constable J.L. Jharia of P.S. Garha, District
Jabalpur (M.P.). She had examined her and had found found following injuries on
her person:
"(i) Stab wound of 2" deep x 1½" long on the left side of umbilicus.
(ii) Stab wound of 1½" deep x 1" long on the left side of back, between
10-11 & 12 ribs level."
She had referred Anandam (PW-5) to the R.S.O. for further treatment. She
has proved MLC report (Ex.P-8).
18. In the present case, the evidence of injured/complainant Anandam (PW-
5) stand corroborated with the evidence of eye-witness and with the evidence of
other witnesses who just after the incident, reached on the spot and medical
evidence. In this case, it cannot be overlooked that assailant was known to the
complainant as some days ago he had worked in her house, therefore, assailant
was well known to the injured/complainant. Hence, so far as the identity of
assailant is concerned, there can be no doubt that the complainant had duly
identified the assailant as his name is also mentioned in the F.I.R. (Ex.P-6) which
has been lodged within 15 minutes of the incident.
19. Learned counsel for the appellant has submitted that the nature of
injuries has to be taken as simple in nature as the prosecution has not proved it by
any evidence to show that the injuries were life threatening or grievous in nature.
From the evidence of the prosecution witnesses, it is clear that the
appellant/accused had inflicted the injuries to Anandam. From the evidence of Dr.
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SAN Mdhu Saxena (PW-9), it is clear that the nature of the injuries was not explained by
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the prosecution.
20. The question whether both the injuries caused to the victim was
sufficient to cause death or not. In Section 307 of IPC the term "hurt" has been
used which has been explained in Section 319 of IPC and not "grievous hurt"
which has been explained in Section 320 of IPC. If a person causes hurt with the
intention or knowledge that he may cause death, it would attract Section 307 of
IPC. In the case in hand, the accused has acted with the intention or knowledge
that his action might caused death and hurt is caused then the provisions of
Section 307 of IPC would be applicable. For an offence under Section 307 of IPC
merely causing hurt is sufficient.
21. Hon'ble Apex Court in Jageram Vs. State of Haryana (2015)11 SCC
366 held as under:
"1 2 . For the purpose of conviction under Section 307 of IPC,
prosecution has to establish (i) intention to commit murder and (ii)
the act done by the accused. The burden is on the prosecution that
accused had attempted to commit the murder of the prosecution
witness. Whether the accused person intended to commit murder of
another person would depend upon the facts and circumstances of
each case. To justify a conviction under Section 307 of IPC, it is not
essential that fatal injury capable of causing death should have
been caused. Although the nature of injury actually caused may be
of assistance in coming to a finding as to the intention of the
accused, such intention may also be adduced from other
circumstances. The intention of the accused is to be gathered from
the circumstances like the nature of the weapon used, words used by
the accused at the time of incident, motive of the accused, parts of
the body where the injury was caused and the nature of injury and
severity of the blows given etc."
22. Hon'ble Apex Court in the case of State of M.P. Vs.Kanha @
Omprakash AIR 2019 SC 713 has held as under:
"The above judgment of this Court led us to the conclusion that
proof of grievous or life threatening hurt is not a sine qua non for
the offence under Section 307 of the Panel Code. The intention of
the accused can be ascertained from the actual injury, if any, as well
as from surrounding circumstances. Among other things, the nature
of the weapon used and the severity of the blows inflicted can be
considered to infer intent".
23. On the basis of above discussion, it can be said that whether there was
intention to kill or knowledge that death will be caused is a question of fact and
would depend on the facts of a given case. The injury inflicted by the accused was
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simple or minor will not by itself rule out application of Section 307 IPC. The
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determinative question is the intention or knowledge as the case may be and not the
nature of the injuries.
24. In the present case, it cannot be overlooked that accused Dinesh armed
with deadly weapon knife entered into the house of Anandam and inflicted injuries
by means of knife on the vital part of her body. After making aforesaid
preparations, I am of the view that, the same is enough for the purpose of Section
452 of IPC.
25. Accused/appellant Dinesh has caused one injury on abdomen of the
injured by knife i.e. sharp edged weapon. Even if it is not proved that injury was
sufficient to cause death. Abdomen is a vital part of body. It also cannot be
overlooked that appellant/accused has caused repeated blow on the person of
injured Anandam. Thus, learned trial Court has not committed any error in
believing the evidence of injured witness Anandam (PW-5), eye-witness Shridhar
(PW-7) and other witnesses who reached on the spot just after the incident and to
whom Anandam informed that the injuries have been caused on her person by the
appellant/accused. Further the averments made in the F.I.R. are supported with the
medical evidence of Dr. Madhu Saxena (PW-9) who found the injuries on
abdomen and back of the injured who is a 56 years old lady.
26. Taking all these facts into consideration, I do not found any perversity
or illegality in the findings of the learned Lower Court. The conviction of appellant
under Section 452 and 307 of IPC does not suffer from any legal infirmities and
therefore, no interference in such findings is called for.
27. Learned counsel for the appellant states that the sentence awarded to the
appellant, is disproportionate and prays that it may be reduced to 05 years.
28. In this regard, I find that, out of two injuries caused to the complainant,
one was on vital part of her body. However, both the injuries were not life
threatening may also be taken into consideration. Taking this fact in to
consideration, I find that sentence of 07 years rigorous imprisonment awarded to
the appellant is likely on higher side and therefore, it may be reduced up to 05
years rigorous imprisonment in place of 07 years rigorous imprisonment for
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commission of offence under Section 307 of IPC. Sentence of 02 years rigorous
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imprisonment awarded to the appellant/accused for commission of offence under
Section 452 of IPC is confirmed. Both the sentences as ordered by the trial Court
shall run concurrently.
29. Accordingly, this appeal is partly allowed. The sentence awarded to
the appellant is modified as above.
30. Appellant Dinesh is on bail, his bail bond shall stands discharged. He is
directed to surrender before the Court of learned Chief Judicial Magistrate,
Jabalpur immediately for undergoing the remaining sentence. If appellant/accused
Dinesh fails to surrender for undergoing jail sentence till 18.04.2022, learned Chief
Judicial Magistrate, Jabalpur shall take necessary steps to arrest him and commit
him to jail for undergoing the remaining jail sentence.
(DINESH KUMAR PALIWAL)
JUDGE
Amitabh
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Date: 2022.03.31 11:40:09 IST
