Madhya Pradesh High Court

Phool Singh @ Phooli vs The State Of M.P. on 20 April, 2023

Author: Deepak Kumar Agarwal

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          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                                         BEFORE
         HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                            ON THE 20th OF APRIL, 2023

                     CRIMINAL APPEAL NO. 807 OF 2004

       BETWEEN:-

       PHOOL SINGH ALIAS PHOOLI SON OF
       KALYAN SINGH, AGED 32 YEARS,
       OCCUPATION KASTHKARI, RESIDENT
       OF VILLAGE RATBAI      PRESENT
       RESIDENTOF   ADITYA      NAGAR,
       MORAR,     DISTRICT   GWALIOR
       (MADHYA PRADESH)
                                                                        ........APPELLANT

       (SHRI ARUN PATERIYA - LEARNED COUNSEL FOR THE
       APPELLANT )

       AND

       STATE OF MADHYA PRADESH THROUGH
       POLICE   STATION  MORAR, DISTRICT
       GWALIOR (MADHYA PRADESH)



                                                                      ........RESPONDENT

       (SHRI VIRENDRA PAL - LEARNED COUNSEL FOR THE
       RESPONDENT- STATE)

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Reserved on                           :       13TH of APRIL, 2023.
Delivered on                          :        20th of APRIL, 2023
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       This APPEAL having been heard and reserved for JUDGMENT,
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coming on for pronouncement this day, the Court pronounced the

following:

                                JUDGMENT

The appellant has preferred this criminal appeal under Section 374 of CrPC against the judgment of conviction and order of sentence dated 18-10- 2004 passed by Fifth Additional Sessions Judge and Special Judge (MPDVPK Act), Gwalior in Special Sessions Trial No. 32 of 2004, while acquitting the appellant of offence under Section 394 read with Section 397 of IPC and Section 13 of MPDVPK Act, convicting him for offence under Section 307 of IPC and sentencing him to undergo seven years RI with fine of Rs.5,000/- with default stipulation and further convicting him for offence under Section 25(1-B)(A) of the Arms Act with fine of Rs.500/- and sentencing him to undergo one year RI with fine of Rs.500/- for offence under Section 27 of the Arms Act with default stipulation. All the sentences have been directed to run concurrently.

(2) In brief, prosecution case is that complainant Amit Yadav lodged a dehati nalishi Ex.P1 with ASI, ML Maurya, Police Station Morar, District Gwalior on 29-10-2003 at around 07:15 pm to the effect that on the date of incident i.e. 28-10-2003 he had gone for performing Diyabati at Sonkala Marriage House, Chaurah No.7 and saw that the appellant-accused is roaming in the house and on seeing him, he tried to flee away from there. Thereafter, he told him as to why he is roaming. On that, after giving a threat, appellant- accused thereafter fled away from there. On the next date i.e. 29-10-2003 in the morning, when he along with his brother Arun Yadav had gone for morning walk and reached near MES Boaster, Chaurah No.6, appellant- accused met them and with intention to kill opened fired from his katta due to

which it was hit at the left side of back of his brother Arun Yadav, as a result of which his brother Arun Yadav fell on the ground and thereafter, snatched gold chain of 4 tola wearing by his brother Arun Yadav. Appellant was accompanied with another person whose beard is hair growing on his chin and cheeks. Thereafter, he in an auto brought his brother Arun Yadav to Kalyan Memorial Hospital, Morar and admitted him. On the basis of such information, aforesaid dehati nalishi was recorded vide Ex.P1 and matter was enquired. On the basis of dehati nalishi, FIR vide Ex.P4 was recorded at Crime No. 811 of 2003 for offence under Section 307 of IPC. Injured Arun Yadav was medically examined by Dr.PC Saxena (PW16) and he was operated by Dr. KG Sharma (PW18). During investigation, spot map vide Ex.P2 was prepared. Bloodstained and plain earth were collected. Statement of complainant was recorded. On 03-02-2004, appellant was arrested and on the basis of his memorandum from his village Ratbai, a 315 bore katta with live cartridges were seized. Statement of witnesses Hari Singh and Niranjan Singh were recorded on 01-11-2003 and thereafter, statement of defence witness Arun Dixit (DW1) was recorded on 3-11-2003 and on 4-11-2003 statement of injured Arun Yadav was also recorded. Naksha Panchnama was prepared by Patwari. Seized Katta and cartridges were sent to Arms Mohrair for its examination. Sanction for prosecution under Arms Act was received from the District Magistrate and after completion of investigation and other formalities, charge sheet was filed before competent Court from where the case was committed to the Special Court. appellant Appellant abjured his guilt and pleaded complete innocence. He pleaded that just before one day of the alleged incident a marpeet was committed with complainant party, therefore, he has been falsely implicated in the case. In his defence, he has examined Arun Dixit as DW1.The prosecution in order to prove its case examined as many as 18 witnesses. After conclusion of trial, the trial Court vide impugned

judgment convicted and sentenced the appellant, as stated above. (3) Challenging the impugned judgment of conviction and order of sentence, it is submitted by learned counsel for the appellant that the judgment passed by trial Court is contrary as well as foreign to law. The evidence of prosecution witnesses is contradictory to each other. The medical evidence is not fully corroborated as there are some omissions and contradictions in the evidence of complainant Amit Yadav (PW1) and injured witness Arun Yadav (PW2) which creates prosecution story doubtful. It is further contended that statement of injured Arun Yadav was recorded on 04-11-2003 whereas alleged incident took place on 29-10-2004. The Investigating Officer Anita Mishra (PW14) in her statement has deposed that the injured was in unconsciousness while Dr. K.G Sharma (PW18) who had conducted operation of injured Arun Yadav in his statement Ex.D4 deposed that at about 07:00 in the morning the injured was in consciousness and further deposed that 29 th October, 2003 till 03-11-2003 injured was in consciousness. Therefore, evidence of Investigating Officer Anita Mishra (PW14) is not reliable. It is further contended that Dr. P.C. Saxena (PW16) had also recorded dying declaration of injured vide Ex.D3 after taking his signature which shows that njured was also in consciousness. In his dying declaration, the injured Arun Yadav vide Ex.D3 stated that gunshot fire was made from a distance of 15 ft but this fact was denied by him in his Court statement. There is also discrepancy in the statement of eye-witness. The trial Court has wrongly disbelieved the evidence of Arun Dixit (DW1). There is no intention of causing gunshot fire at injured Arun Yadav by the present appellant. He has been falsely implicated. On one hand, learned trial Court after marshalling evidence of prosecution evidence and documents produced before it, acquitted the appellant of charge under Section 394 read with Section 397 of IPC and Section 13 of MPDVPK Act and on the other hand, committed illegality while passing the impugned

judgment in convicting and sentencing the appellant for offence under Section 307 of IPC as well as offence under the Arms Act. Hence, prayed that appellant deserves acquittal and the impugned judgment deserves to be set aside.

(4) In reply, the learned counsel for the State supported impugned judgment of conviction and sentence and submitted that there being no infirmity in the impugned judgment of conviction and sentence and the findings arrived at by the Trial Court do not require any interference by this Court. Hence, prayed for dismissal of this appeal.

(5) Heard learned counsel for the parties and also gone through the evidence of following material prosecution witnesses:- (6) PW1 Amit Yadav in para no.5 of his cross-examination deposed that he had brought his brother injured Arun Yadav in a two-seater so as to the doctor made a call and said that it is a case of MLC and upon calling by the doctor, police reached the hospital from police station Morar. He in his cross- examination deposed that he had narrated about going to the marriage house along with his elder brother on 28-10-2003 at the time of lodging dehati nalishi with the police and if this fact is not written, then it might be known to the police. This witness admitted that Sonkala marriage house where they had gone on 28th, there are residential houses and the people used to reside therein. This witness had mentioned this fact in his police report Ex.P1 that when he opened the luck, Phooli Jat was already inside the marriage house. If the fact of unlocking the house is not written in Ex.P1, then he cannot explain any reason. This witness further in para 8 of his cross-examination deposed that he has an information of this fact that on 28-10-2003, in the evening a quarrel was occurred with Phooli at Sonkala Marriage House. In that regard, a report was lodged in Police Station Morar. On the basis of said report, the case was registered in police station Morar against his brother Chettu Yadav and

other brothers. This witness further stated in para 9 of his cross-examination that he had deposed in his police diary statement until he reached, accused snatched a gold chain of 4 tola from neck of his brother and ran away. If the said fact is not written in Ex.D1, then it might be known to the police. In para 14 of his cross-examination, this witness further stated when he lodged dehati nalishi Ex.P1 at 07:30 pm, his brother was in unconscious. He further admitted in para 16 of his cross-examination that at the time of preparation of spot map Ex.P2, it was shown to inspector that at which place he was standing at the time of incident and from which distance the incident was seen, if the said fact is not mentioned in Ex.P2, then he cannot explain the reason. In para 17 of his cross-examination, he further deposed when Phooli opened fire, at that time, he was standing at a distance of 4-5 feet. In para 23 of his cross- examination, this witness deposed that as soon his brother fell down on sustaining gunshot injury so as to Hari Singh arrived on the spot and he also knows to Niranjan Thakur whose house is already situated opposite to the place of incident. He did not see Nirnjan Thakur on the spot. He also admitted that as soon as on sustaining gunshot, his brother fell down on the ground and the people were gathered thereafter.

(7) PW2 Arun Yadav in para 2 of his examination-in-chief has deposed that appellant accused Phooli Jat was seen standing by tying his handbag in front of Chaurah No.6 and he was 3-4 feet away from him and he took out a country-made pistol and tried to open fire. When he reached behind me, then he pushed him and opened fire at his back due to which his intestine came outside and on sustaining gunshot, he fell down on the ground. Accused thereafter snatched a gold chain of 4 tola from his neck. This witness in para 4 of his cross-examination deposed that after 29 th, he was in unconscious due to which he did not have any information as to whether the police personnel had arrived the hospital or not. This witness himself stated that my major operation

was taken place. In para no.5 of his cross-examination, he further deposed that he had narrated the fact of semi-consciousness in his statement Ex.D2. He did not mention ''A to A'' in his police statement Ex.D2 that he became unconscious and how this fact was mentioned at ''A to A'' of Ex.D2 by police. This witness further in para 8 of his cross-examination stated that as soon as the main gate was opened and he reached inside, accused Phooli Jat was found roaming in marriage house. If above said fact was not mentioned in Ex.D2, then he cannot explain the reason. This witness has denied that at that time, Phooli did not gave any threat to him. He came to know after this incident that Phooli had lodged a report in police station Morar regarding marpeet against him and his brothers on 28 th. This witness in para 11 of his cross-examination deposed that complainant Amit was in a distance of 20 ft, if this fact of 20 ft. is not written in Ex.D2, then he cannot explain the reason. The gunshot was fired from his abdomen side. He did not see any pellet and cartridge lying on the spot. He had not caught hold of accused on the spot and only pushed him away. In para 12 of his cross-examination he further deposed that he had narrated this fact in his police statement Ex.D2 that his intestine come out from abdomen on the spot and on sustaining gunshot, he fell down and at that time, Phooli was armed with country-made pistol and snatched a gold chain by carrying country-made pistol. He cannot explain any reason why the said fact was not mentioned in Ex.D2. During the entire incident, only one fire was made on the spot. In para 15 of his cross-examination, this witness denied that he had given statement Ex.D3 to police in complete consciousness as far as it is to say that this fact is not mentioned in Ex.D3. His brother Amit Yadav had gone for roaming along with him, he cannot say anything about it. (8) Dr. PC. Saxena (PW16) had conducted MLC of injured Arun Yadav and as per MLC, a gunshot wound of entry wound of 1½ cm in diameter with oblique direction, charring and tattooing on the abdomen and one gunshot exit

wound of ½ cm in diameter on the left lumber region with no charring and tattooing and no bleeding were found . He advised for x-ray of abdomen of the injured. MLC report is Ex.P12. The gun bullet was removed from abdomen of injured Arun Yadav. Dr. Saxena in para no.3 of his cross-examination deposed that when he had conducted examination of injured, at that time, injured was fully conscious and his signature was put at ''A to A'' of Ex.P12. This witness admitted that there was only one wound of sustaining gunshot on the person of injured Arun Yadav which is injury no.1 and injury no.2 is a wound of taking out of bullet of injury no.1. As per injury no.1, he had sustained gunshot in abdomen and it was coming out from backside. It was not happened that there was any entry wound of gunshot at the back of injured. This witness further admitted in para 4 of his cross-examination that said injury sustained by Arun Yadav might be of about 5 am in morning. He himself did not conduct any treatment of injured Arun Yadav. He further stated that he is familiar with blackening, charring and tattooing marks. This witness also admitted that the place where wound of passing of bullet at the back, no charring and tattooing were found and if they were found, then it must have been mentioned in Ex.P12. Dr. KG Sharma (PW18) in his evidence deposed that looking to the condition of injured Arun Yadav on account of bleeding from abdomen, he had conducted his operation and the report is Ex.P13.

(9) The important thing to be borne in mind in determining the question in the present appeal as to whether the offence committed by appellant with an intention or knowledge of constituting murder of injured Arun Yadav or not ?

(10) Section 307 of IPC runs as under:-

"Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is

caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."

(11) In the matter of Bakshish Singh vs. State, reported in AIR 1952 Pepsu l38, it is observed that if a man commits an act with such intention and knowledge and under such circumstances that if death had been caused the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual course of the events but for something beyond his control which prevented that result his act would be punishable as an attempt to murder.

(12) In the matter of Hari Singh vs. Sukhbir Singh & Others, reported in (1988) 4 SCC 551, the Hon'ble Apex Court held that while examining whether a case of commission of offence under Section 307 IPC IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner, in which, it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307 IPC.

(13) Essential ingredients required to be proved in the case of an offence

under Section 307 of IPC are :-

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:

(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause an injury and thereafter hurt, it is punishable with imprisonment for life".

(14) For holding guilty under Section 307 of IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court has to see that whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. It is sufficient in law, if there is intention coupled with some

overt act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. In order to amount to an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim.

(15) In the case of Mohindar Singh vs. State of Punjab, reported in AIR 1960 Punj 135, it is observed that the offence of attempt to commit murder punishable under Section 307 IPC is constituted by the concurrence of mens rea followed by an actus reus. An intent per-se is not an attempt. It implies purpose and attempt is an actual effort made in execution of the purpose. From the steps directed towards the objective sought, the criminal intent must be logically inferable. The attempt for purposes of Section 307 IPC should stem from a specific intention to commit murder, and this blameworthy condition of mind may be gathered from direct or circumstantial evidence, including the conduct of the accused. Apart from the necessary mens rea, the actus reus must be more than a preliminary preparation. The means must be apparently, though not really suitable, so that they can be adapted to the designed purpose. (16) In the case of Abdul Wahid vs. State of U.P., reported in 1980 CrLJ (NOC) 77 (All), it was held as follows:-

"Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307 IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon

used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. To constitute an offence under Section 307 IPC the intention or knowledge must be such as is necessary to constitute murder. The intention is to be gathered from the nature of the weapon used and the parts of the body where the injuries are inflicted and no conviction is legally permissible unless the prosecution proves the ingredients of Section 300 IPC of which intention or knowledge play a vital role. '' (17) On going through the evidence of complainant Amit Yadav (PW1) and the injured witness Arun Yadav (PW2) as well as the medical evidence and the law laid down by the Hon'ble Apex Court as cited above, it is evident that on the alleged date of incident although appellant had caused an open fire which was hit at injured Arun Yadav on his back but it appears that such an act was not done by him with intention of causing death of injured Arjun Yadav or it was done with an intention of causing such bodily injury or there was any mes rea on his part to cause death of injured Arjun Yadav only because, at the time of incident both complainant and his brother injured Arun Yadav had gone for morning walk and prior to the alleged date of incident a quarrel took place between family members of complainant and appellant in regard to roaming of appellant in Memorial Marriage House. Further, there is some discrepancy in the evidence of complainant Amit Yadav (PW1) and injured witness Arun Yadav (PW2) which is not fully supported by medical evidence. There is no eye-witness of alleged incident except complainant i.e. Amit Yadav. So far as after the incident, the appellant allegedly to have snatched the gold chain of injured Arun Yadav when he fell down on ground is concerned, prosecution has already utterly failed to prove its case beyond reasonable doubt by which the appellant has already been acquitted of charges levelled against him. So far as offence under the Arms Act is concerned, the trial Court has not committed any illegality in passing the impugned judgment as from the village

of the appellant, from the house of appellant a 315 bore country-made pistol along with live cartridges was recovered on the basis of his memorandum. So far as quantum of sentence is concerned, looking to nature of offence and the injury sustained by injured, this Court thinks it appropriate that while maintaining conviction of the appellant under Section 307 of IPC, the jail sentence awarded to him may be reduced to four years from seven years as awarded by trial Court and accordingly, the same is hereby reduced with fine amount, as awarded by the trial Court.