Madhya Pradesh High Court
Abhishek Raj Ahirwar @ Bhata vs The State Of Madhya Pradesh on 13 December, 2023
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 13th OF DECEMBER, 2023
CRIMINAL APPEAL No. 14195 of 2023
BETWEEN:-
1. ABHISHEK RAJ AHIRWAR @ BHATA S/O
SITARAM AHIRWAR, AGED ABOUT 19 YEARS,
OCCUPATION: LABOUR R/O MAHAKALI CHOWK
SABJI MANDI PADAV THANA LARDGANJ DISTRICT
JABALPUR (MADHYA PRADESH)
2. ANKIT RAIKWAR S/O SEETARAM AHIRWAR,
AGED ABOUT 21 YEARS, OCCUPATION: LABOUR
R/O SABJI MANDI LATWARI KA PADAV HANUMAN
MANDIR KE PASS POLICE THANA LARDGANJ
DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI NARENDRA NIKHARE - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION LORDGANJ R/O DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
SMT. SEEMA SAHU - PANEL LAWYER FOR STATE AND SHRI ABHISHEK
KUMAR PATEL - ADVOCATE FOR OBJECTOR
RESERVED ON : 04.12.2023
PRONOUNCED ON : 13.12.2023
This appeal having been heard and reserved for judgment, coming on for
pronouncement this day, this court passed the following :
2
JUDGMENT
1. This criminal appeal has been filed under Section 374 (2) of Cr.P.C by
the appellants being crestfallen by the judgment dated 02.11.2023 passed by
the Additional Sessions Judge, Special Court, No. 8 (Electricity Act),
Jabalpur in Sessions Trial No.43/2001, whereby the appellant (Abhishek Raj
Ahirwar) has been convicted for offences under Section 307/34 of IPC and
Section 25 (1) (B) (B) (two counts) of Arms Act, sentencing him to undergo
R.I. for five years with fine of Rs. 2,000/- (two times) and Rs. 4,000/- and
Rs. 1,000/- respectively with default stipulations and appellant No.2 (Ankit
Raikwar) has been convicted for offences under Section 307/34 of IPC
and Section 25 (1) (B) (B) of Arms Act, sentencing him to undergo R.I. for
one year with fine of Rs. 2,000/- (two times) and Rs. 4,000/- and Rs. 1,000/-
respectively with default stipulation and observation that both the sentences
would run concurrently.
2. Brief facts of the prosecution story, in short, is that on date 07.09.2020
Anshul Kushwaha along with his friend Ansul Sahu at 04:00 pm were
going to Yadav Colony by motorcycle to get the photocopies. Ansul
Kushwaha was driving the motorcycle. When they reached Ranital near
Allahabad Bank, then appellants called Anshul Kushwaha by name and his
friend and they stopped the motorcycle and then appellant Abhishek Raj
Ahirwar stated why he is abusing. When Ashul Kushwaha denied that he has
not abused then Abhishek Raj Ahirwar assaulted with knife with intention to
kill him. He assaulted Anshul Kushwaha on right side of the neck with knife.
When P.W. 2 (Ansul Sahu) tried to save P.W. 1 (Anshul Kushwaha) then
Abhishek Raj Ahirwar assaulted P.W. 2 (Anshul Sahu) with intention to kill
with knife on his head, face and back of Anshul Sahu. On screaming, other
persons present on spot came there. Then accused persons fled away from
the spot and injured person were taken to Victoria Hospital at Jabalpur.
Thereafter, police by following due process arrested the accused persons and
registered the case against appellants. After necessary investigation, charge
sheet has been filed by police against the appellants under Section 307/34 of
IPC and Section 25 of the Arms act.
3. In turn, the case was committed to the Court of Sessions. Thereafter,
appellants were charged for the offence under Section 307/34 and Section 25
of the Arms Act.
4. The appellants abjured their guilt and submitted that they have been
falsely implicated in the present crime and prayed for trial.
5. In support of prosecution case, the prosecution examined seven
witnesses, namely, P.W. 1 injured (Anshul Kushwaha), P.W. 2 injured
(Ansul Sahu), P.W. 3 (Ayush Khatik), P.W. 4 (Dr. Somya Saini), P.W. 5 (Anil
Mishra - Sub Inspector), P.W. 6 (Dr. Arsha Rai), and (P.W. 7 Ram Prasad
Maravi). No witnesses has been examined by the appellants in their defence.
6. Learned trial Court on appreciation of the evidence and argument
advanced by the parties pronounced the judgment on 02.11.2023 by
concluding the case and convicted the appellants for commission of the said
offence and sentenced them as hereinabove.
7. Learned counsel for the appellants submitted that trial Court has not
considered the material evidence available on record and committed grave
error of law in not considering the material contradiction and omission in the
statement of prosecution witnesses. He further submitted that doctor P.W. 4
(Somya Saini) and P.W. 6 (Dr. Arsha Rai) in their statements before the trial
court clearly stated that injuries so received by the injured are not dangerous
to life. He further submitted that appellants are young and having no
criminal antecedents and facing trial. He further submitted that trial Court
ignored that the both injured persons have entered into compromise with
appellants on 29.08.2023. He further submitted that offence against the
appellants is not covered under Section 307 of IPC and hence, prayed for
acquittal.
8. Learned counsel for appellants further submitted that the seized article
was not sealed on the spot and no evidence was produced by the prosecution
before the court that he has properly deposited seized article in 'Malkhana'
and no 'Malkhana' register was produced before the trial court during
evidence, so offence under Section 25 of Arms Act against appellant No. 1
Abhishek Raj Ahirwar was not properly proved and trial Court committed
error to convict him under Section 25 of Arms Act. So, learned counsel for
the appellants prayed for allowing the appeal and setting aside the judgment.
9. Learned counsel for the State, on the other hand, supported the
impugned judgment and prayed for dismissal of this appeal by submitting
that appellants assaulted two persons and caused multiple injuries to them.
Hence, they are not entitled for any relief from this Court.
10. During this appeal, appellants and complainants, P.W. 1 (Anshul
Kushwaha), P.W. 2 injured (Ansul Sahu) filed compromise application
before this Court which is verified by the Registrar (Judicial) and statements
were taken by the Registry. In statements given by P.W. 1 and P.W. 2, they
accepted that they had filed compromise application without any undue
influence.
11. In background of the arguments advanced by learned counsel for both
parties, the point of consideration is whether the findings of the learned trial
Court in convicting and sentencing the appellants under Section 307/34 of
IPC and Section 25 of Arms Act are erroneous in eyes of law. At the outset,
statement of injured P.W. 1 (Anshul Kushwaha) is required to be enumerated.
He has deposed that he knows (Abhishek Raj Ahirwar) and (Ankit Ahirwar).
On date 07.09.2020, he had gone with his friend Anshul Sahu on motorcycle
at 4:00 p.m. They were going to Yadav Colony to get the photocopies. He
was driving the motorcycle. When they reached Ranital, then accused
(Abhishek Raj Ahirwar) called him. Then they stayed there. Accused
Abhishek Ahirwar came and stated why he is abusing him then he denied it.
Then appellant (Abhishek Raj Ahirwar) assaulted him with knife with
intention to kill him. He assaulted him on the right side of the neck. When
he tried to catch Ankit Ahirwar, then he pushed him and thereafter, he
assaulted with knife to Anshul Sahu on his head, neck and back. On their
screaming, persons present around came there, then they flee away.
12. P.W. 1 (Anshul Kushwaha) has lodged report. Dehati Nalishi is Ex.
P/1. PW. 2 (Anshul Sahu) also narrated the prosecution story in the same
way and stated that Abhishek Raj Ahirwar assaulted P.W. 1 (Anshul
Kushwaha) by knife on his neck and assaulted to him also by knife with
intention to kill him.
13. P.W. 4 (Dr. Somya Saini) has found injury on the person of injured
P.W. 1 (Anshul Kushwaha). When he examined him following injuries were
found :-
Lacerated wound on right cheek measuring about
8 cm x 5 cm. This wound was measuring 3 cm x 1.5 cm
in internal side of mouth.
14. P.W. 6 (Arsha Rai) has found following injuries on the person of injured
P.W. 2 (Anshul Sahu), when she has examined him. She also examined P.W.
1 (Anshul Kushwaha). She has found following injuries on the body of P.W.
2 (Anshul Sahu) :-
"1. One incised wound on left side of head measuring
about 1.5 cm x 0.5 cm.
2. One incised wound on left shoulder measuring about
2 cm x 1 millimeter.
3. One incised wound on left cheek on lower side
measuring about 2 cm x 0.5 millimeter.
4. Three abrasion marks on left hand on outer side
measuring 0.5 mm x 0.5 mm."
15. Doctors have opined that injuries are not dangerous to life.
16. Learned counsel for appellants submitted that P.W. 1 Anshul
Kushwaha and P.W. 2 (Ansul Sahu) have not supported the prosecution story.
They have narrated in their cross-examination that accused have not
assaulted, so evidence of P.W. 1 and P.W. 2 is not reliable.
17. On perusal of the record of trial Court, it was found that cross -
examination of P.W. 1 and P.W. 2 were taken on 07.07.2022 and their cross-
examination was deferred on that day and thereafter, on 23.02.2023 after a
lapse of seven months, their cross-examination has been done.
18. The Apex court in case of Akil alias Javed vs State (NCT of Delhi)
(2013) 7 SCC 125, it has been held in para Nos. 19 to 21, 27 to 33, 43 to
44 as thus :-
"Inference that witness has been won over/improperly
induced to change his stand and give false
testimony-False/induced portion of testimony - when may
be disregarded-witness completely changing stand in cross-
examination and exculpating accused, as compared to chief
examination in which said witness had inculpated accused-
cross-examination held after delay of 2 months due to
adjournment sought by defence counsel - inference that
may be drawn - Identification of appellant accused
Appellant refused to participate in test identification
parade-PW 20 was a relative of PW 17 who lived in house
of PW 17 was the complainant and person whose house was
robbed PW 20 in chief examination identified appellant as
the person who attempted to molest PW 17 and that when
same was objected to by deceased (a friend of PW 17 who
present at time of robbery) the appellant had shot ats-
However, in cross examination PW 20 resiled from his
earlier stand and stated that identification of appellant on
earlier occasion was made at the instance of police
inspector who had tutored him to make such a statement-
PW 20 was not treated as a hostile witnesses spit of
diametrically opposite version given by him as regards
identification of appellant nevertheless, held, both courts
below rightly proceeded to hold that identification made by
PW 20 in his chief-examination cannot be ignored on basis
that cross examination of PW 20 was conducted after 2
months gap due to adjournment granted at instance of
accused, during which time PW 20 was won over-Reason
for adjournment was a request on behalf of appellant that
his counsel was busy in High Court Conviction and
sentence imposed on appellant by courts below under Ss.
302 and 392 IPC, confirmed-Criminal Trial-witnessed-
Hostile witness-who is-Extent to which testimony of hostile
witness may be relied on - changed/hostile part of
testimony. When may be disregarded.
19. In case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh
(1991) 3 SCC 627 it is held that :-
"The evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution chose to
treat him as hostile and cross-examined him. The
evidence of such witness cannot be treated as effaced or
washed off the record altogether but the same can be
accepted to the extent his version is found to be
dependable on a careful scrutiny thereof.
In the present case the presence of the eye-
witnesses in the deceased at the place of occurrence
could not be doubted. One of the witnesses was injured
in the incident. Immediately after the incident within less
then an hour, before there was any extraneous
intervention he went to the police station, narrated the
incident and lodged the FIR, since the FIR was a
detailed document it is not possible to believe the
investigating officer imagined those details and prepared
the document. The detailed narration about the incident
in the FIR goes to show that the subsequent attempt of
the witness to disown the document while admitting his
signature thereon, is a shift. The only area where the
witnesses had not supported the prosecution and resiled
from their earlier statements is regarding the identity of
the assailants. The evidence of the eye witnesses was
challenged by the prosecution in cross- examination
because they refused to name the accused as the
assailants of the deceased. The trial Court made no
effort to scrutinise the evidence of these two witnesses
even in regard to the factum of the incident."
20. In case of Hemudan Nanbha Gadhvi vs State of Gujrat, (2019) 17
SCC 523 it is held that :
"9. The family of the prosecutrix was poor. She was one
of the five siblings. The assault upon her took place
while she had taken the buffaloes for grazing. Her
deposition was recorded nearly six months after the
occurrence. We find no infirmity in the reasoning
of the High Court that it was sufficient time
and opportunity for the accused to win over the
prosecutrix and PW1 by a settlement through coercion,
intimidation, persuasion and undue influence. The
mere fact that PW2 may have turned hostile, is
not relevant and does not efface the evidence with
regard to the sexual assault upon her and the
identification of the appellant as the perpetrator. The
observations with regard to hostile witnesses and the
duty of the court in State v. Sanjeev Nanda, are also
considered relevant in the present context (SSC p.487,
para 101)
"101.....If a witness becomes hostile to subvert the
judicial process, the court shall not stand as a mute
spectator and every effort should be made to bring home
the truth. Criminal justice system cannot be overturned
by those gullible witnesses who act under pressure,
inducement or intimidation. Further, Section 193 IPC
imposes punishment for giving false evidence but is
punishment for giving false evidence but is seldom
invoked."
21. It is true that P.W. 1 and P.W. 2 have stated against the appellants in
their examination-in-chief and turned hostile, and in cross-examination they
did not support the version stated in examination-in-chief, but their cross-
examination was taken after a lapse of seven months, hence, it is clear that
P.W. 1 and P.W. 2 are win over by the appellants. So version of the P.W. 1
and P.W. 2 in cross-examination was not reliable. So considering the
evidence of P.W. 1 and P.W. 2, it was found that appellant (Abhishek Raj
Ahirwar) and co-accused (Ankit Raikwar) assaulted Anshul Kushwaha and
Anshul Sahu with common intention and caused injuries to P.W. 1 and
P.W. 2.
22. Learned counsel for the appellants submitted that injury caused to
P.W. 1 and P. W. 2 are simple in nature and offence of the appellants are not
found under the purview of attempt to murder. As per prosecution story, one
single blow was caused by appellant (Abhishek Raj Ahirwar) to P.W. 1. No
repeated blow is there. Initially, the MLC was conducted by Dr. Somya Saini
and it clearly show that an incised wound on right cheek of P.W. 1 (Anshul
Kushwaha) measuring 3.5 cm x 1.5 cm near mouth. She stated in
examination-in-chief that injured have no problem on his nose and ear. She
suggested for X-ray of jaw. She further stated that if there is no problem in
speaking, then injury is simple. P.W. 6 (Dr. Arsha Rai) also not stated that
injury is grievous.
23. The aforesaid statement of Dr. P.W. 4 and P.W 6 and medical report
clearly show that single injury on the neck was found. Doctor had not stated
that the injury was dangerous to life and no X-ray report has been produced
by the prosecution. It appears that the injury of P.W. 1 (Anshul Kushwaha) is
simple.
24. According to P.W. 6, there are four injuries on the body of Anshul Sahu
and all the injuries are found simple in nature and Dr. P.W. 6 has not stated
that injury caused to P.W. 2 (Ansul Sahu) was dangerous to life and grievous.
25. Further, in view of the report and nature of injury, it cannot be
ascertained that accused had intention to murder or knowledge of the fact
that the injured would be killed by these injuries. Prosecution has also not set
up that said injury was sufficient to cause death in ordinary course of nature.
In this regard Apex Court in the case of Jai Narayan Mishra and ors. vs.
State of Bihar AIR 1972 SC 1764 has held thus : -
"11. Taking the case of appellant Suraj Mishra, we
find that he has been convicted under Section 307 of
IPC and sentenced to five years rigorous
imprisonment. According to the evidence Suraj was
responsible for the chest injury which is described by
Dr. Mishra P.W. 6 as a penetrating wound 1 ½ x ½ x
chest wall deep (wound not probed) on the side of the
right side of the chest. Margins were cleaned out. Suraj
according to the evidence, had thrust a bhala into the
chest when Shyamdatt has fallen as a result of a blow
given by Mandeo with the farsa on his head. According
to the doctor the wound in the chest was grievous in
nature as the patient developed surgical emphysema on
the right side of the chest. There was profuse bleeding
and, accordingly to the Medical Officer the condition
of the patient at the time of the admission was low and
serious and the injury was dangerous to life. Out of the
four injuries which the Medical Officer noted, this
injury was of a grievous nature while other three
injuries were simple in nature. Where, four or five
persons attack a man with deadly weapons it may well
be presumed that the intention is to cause death. In the
present case, however, three injuries are simple in
nature though deadly weapons were used and the
fourth injury caused by Suraj, though endangering life
could not be deemed to be an injury which would have
necessarily caused death but for timely medical aid.
The benefit of doubt must, therefore, be given to Suraj
with regard to the injury intended to be caused and, in
our opinion, the offence is not under Section 307 IPC,
but Section 326 IPC. His conviction, therefore, under
Section 307 of IPC is set aside and we convict him
under Section 326 IPC. His sentence of five years'
rigorous imprisonment will have to be reduced
accordingly to three years' rigorous imprisonment."
26. In case of Mohinder Singh vs State (Delhi Administration)
reported in AIR 1986 SC 309 it is held that :-
"Grievous hurt caused by the blunt object like 'lathi'
can fall within Section 325 of IPC and not Section 326 of
IPC. Likewise in other case Halke vs. State of M.P.
reported in AIR 1994 SC 951 wherein it is held that
accused caused death of deceased by inflicting blows to
him with sticks. Head injury proved to be fatal and
deceased died after about a week. In this case accused
was held liable for punishment under Section 325 of
IPC."
The following facts of the aforesaid judgment is put-forth to refer
herewith :-
".........No doubt, the injury on the head proved to be
fatal after a lapse of one week but from that alone it
cannot be said that the offence committed by the two
appellants was one punishable under Section 304 Part
II of IPC. the injures found to the witnesses are also of
the same nature and for the same they are convicted
under Section 325 of IPC."
27. So as per aforesaid discussion, considering the evidence of P.W. 1 and
P.W. 2 and medical evidence, in the considered view of this Court that
conviction of the appellants under Section 307/34 IPC cannot be sustained.
Hence, the aforesaid analysis the conviction under Section 307/34 IPC is
liable to be set aside and instead of that appellants are liable to be convicted
under Section 324 of IPC (two times).
28. Appellant (Abhishek Raj Ahirwar) was also convicted under Section 25
(1) (B) (b) of Arms Act. In this regard, P.W. 7 Ram Prasad Maravi, Sub-
Inspector stated in examination-in-chief that on date 14.09.2020 he took
memorandum of Abhishek Raj Ahriwar and seized knife from the house of
Abhisek Raj Ahirwar. Memorandum is P.W. 5 and seizure memo is Ex. P/7.
29. Perused the evidence of P.W. 7 (Ram Prasad Maravi). He has stated
in examination-in-chief in para 13 that on date 14.9.2020 he seized knife
from Abhishek Raj Ahirwar in police Station Lordganj campus.
30. P.W. 7 (Ram Prasad Maravi) in para 6 has stated that he seized knife
from the house of the Abhishek Raj Ahirwar. On the other hand, in para 13
he says knife from Abhishek Raj Ahirwar was seized in police station
campus. So, these statements are contradictory.
31. On perusal of Ex. P-7, it was found that knife was not sealed on the
spot and there is no seal mentioned in Ex. P-7 and it was also not mentioned
in Ex.P-7 that it was sealed on the spot.
32. In case of Jasbir Singh v. State of Punjab, AIR 1998 SC 1660 Apex
Court held that :-
"If seized article was not sealed after seizure, thus case was
not established by prosecution."
33. P.W. 7 has not stated a single word in his evidence that after seizing
the knife from the appellants, he properly kept it in police 'Malkaha.' He has
not produced 'Malkhana' register before adducing evidence in trial Court.
34. In case of State of Rajasthan vs. Gurmail Singh 2005 CRLJ 1746
Apex Court held thus :
"No evidence to prove satisfactory that seal was found."
In this case Apex Court held 'Malkhana' register was not produced in
evidence to prove that seized article was kept in 'Malkhana.' So, seizure of
the article was not properly proved by the prosecution.
35. So, perusal of the evidence in respect of Arms Act, evidence of P.W.
7 (Ram Prasad Maravi) is not reliable. He has not produced 'Malkhana'
register to prove that article was kept properly in 'Malkhana' and no article
was sealed on the spot when it was seized and P.W. 7 contradicts in his
evidence in Paras 6 and 13 that there is no blood found on the knife, by
which, it was not proved that this knife was used to commit the crime.
36. So as per above discussion, prosecution has failed to prove offence
under Section 25 (1) (B) (B) of Arms Act against appellant (Abhishek Raj
Ahirwar). So conviction under Section 25 (1) (B) (B) of Arms Act is set
aside.
37. In the present appeal, appellants and injured P.W. 1 (Anshul
Kushwaha), P.W. 2 injured (Ansul Sahu) have entered into compromise.
Statement was verified by the Registrar (Judicial). So considering the
compromise between the appellants and injured, the appellants are acquitted
under Section 324 of IPC because compromise has taken place between the
appellants and accused.
38. Accordingly, appeal is allowed. The conviction and sentence given by
the trial Court to the appellants is set aside and appellants are acquitted, If
they are not required in jail in any other case, they be immediately released.
39. Fine amount, if any, deposited by the appellants before the trial Court
shall be given to appellants.
40. Judgment regarding disposal of property stands confirmed.
41. Copy of this order be sent to learned trial court concerned for
information. Let record be also sent to concerned trial Court.
42. Consequently, the appeal is partly allowed and disposed of.
(HIRDESH)
JUDGE
VKV/-
VINAY
KUMAR
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1cd6cbbe7943345d9b89a3be51b200
2de183fc51, postalCode=482001,
st=Madhya Pradesh,
serialNumber=24244EEED4BE5112B2
VERMA
864A7944D29B2B81856B49A70689CB
14D4EBD1688FF149, cn=VINAY
KUMAR VERMA
Date: 2023.12.15 12:11:33 +05'30'
