Madhya Pradesh High Court
Guddu @ Bhoora vs The State Of M.P. on 27 February, 2023
Author: Rajendra Kumar (Verma)
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CRIMINAL APPEAL No.1251 of 1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL NO.1251 OF 1998
BETWEEN :-
GUDDU ALIAS BHOORA S/O
SANTOSH KUMAR, AGED ABOUT
21 YEARS, R/O SUHAGPUR,
DISTRICT HOSHANGABAD AT
PRESENT - JHUGGI AMAND
NAGAR, BHOPAL, BHOPAL (M.P.)
....APPELLANT
(BY SHRI ANAND NAYAK WITH MS. SHUSHILA PALIWAL -
ADVOCATE (AMICUS CURIAE))
AND
STATE OF M.P. THROUGH POLICE
STATION PIPLANI, DISTRICT
BHOPAL (M.P.)
....RESPONDENT
(BY SHRI C.M. TIWARI - GOVERNMENT ADVOCATE)
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Reserved on : 01/02/2023
Pronounced on : 27/02/2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Shri Justice Rajendra
Kumar (Verma) pronounced the following :
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
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CRIMINAL APPEAL No.1251 of 1998
JUDGMENT
This criminal appeal has been preferred under Section 374 (2) of
the Cr.P.C,1973 against the judgment dated 31.03.1998 delivered by
Additional Sessions Judge, Bhopal in S.T. No.298/97, whereby the
learned trial Court has convicted the appellant for the offence punishable
under Section 307 of IPC and sentenced to undergo R.I. for 7 years and
fine of Rs.3000/- and in default of payment of fine, further R.I. for 02
years.
Case of Prosecution
2. The complainant was vegetable vendor and he had lent Rs.500/- to
the appellant/accused. On 10.07.1997 at about 19:40 PM at Piplani
Market Bhopal the complainant-Laxmanpal along with Mohan and
Eknath had gone for taking back his money from the appellant. Some hot
talk had taken place between appellant and complainant. Thereafter, the
appellant got annoyed and attacked on the complainant with katar on his
stomach and back. As a result of which, the complainant received
grievous injuries. The complainant after the incident lodged the FIR
(Exhibit P/2) and on the basis of thereof, the police party, after following
due procedure, arrested the appellant/accused and registered the case
against him. After due investigation, charge-sheet was filed against the
appellant/accused.
3. Appellant was charged for offence punishable under Section 307 of
IPC. He abjured his guilt and took a plea that he has been falsely
implicated in the present case. He further taken a plea of previous enmity.
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
4. In support of the case of prosecution, the prosecution has examined
as many as eight witnesses namely; Dr. Subhash Chandra Goyal (PW-1),
Luxmanpal/complainant-injured (PW-2), Nekram @ Eknath/eye-witness
(PW-3), Mohan/eye-witness (PW-4), Purushottam (PW-5), Shivshankar
Tripathi/S.I. (PW-6), Dr. O.P. Arora (PW-7) and Dr. Maheshram (PW-8).
5. Thereafter, examination of appellant was done under Section 313
of Cr.P.C. The appellant has pleaded his false implication in the matter,
but in support of his defence, he did not examine any witness.
6. Learned trial court after appreciating the oral as well as
documentary evidence available on record, convicted the appellant for the
offence punishable under Sections 307 of IPC and sentenced him as
mentioned in Para-1 of this judgment. Being aggrieved by the said
judgment of conviction and sentence, appellant has preferred this appeal
for setting aside the impugned judgment and prayed for acquitting him
from the offence levelled against him.
7. Learned counsel for the appellant submits that allegation alleged
against the appellant cannot be said to be proved beyond reasonable
doubt. Learned trial court has committed error while appreciating the
evidence available on record. It is further submitted that the prosecution
could not prove the essential ingredients of Section 307 of IPC. It is
further submitted that the learned trial Court has failed to appreciate the
findings of Medical expert witness. It is further submitted that the learned
trial court has failed to appreciate the version of defence of appellant. It is
further submitted that the learned trial Court has failed to appreciate the
testimony of Luxmanpal/complainant (PW-2) being an interested witness
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
and failed to point out the specific role of the appellant while commission
of alleged offence. Thus, the impugned judgment of conviction and order
of sentence is bad in the eyes of law and the same may be set aside and
the appellant may be acquitted from the charges alleged against him.
8. Per-contra, learned Government Advocate for the respondent/State
has supported the impugned judgment of conviction and sentence
submitting that the impugned judgment was passed by the learned trial
court after proper appreciation of evidence available on record. There is
nothing available on record on the basis of which, statement of witnesses
can be disbelieved or doubted. The prosecution has very well proved its
case beyond reasonable doubt and the same is well reasoned judgment
establishing the guilt of the appellant. Therefore, confirming the
impugned judgment of conviction and order of sentence, the appeal filed
by the appellant may be dismissed.
9. I have heard learned counsel for the parties at length and perused
the record.
10. After examining the testimony of eye-witnesses namely;
Luxmanpal/complainant (PW-2), Nekram @ Eknath (PW-3) and Mohan
(PW-4), it is considered view of this Court that the factum of occurrence
of incident has been duly proved beyond reasonable doubt by the
prosecution. The prosecution has proved that on 10.09.1997 at about
02:00 PM, appellant met with complainant/Luxmanpal (PW-2) at Piplani
Market and told him that come and take your borrowed money at night at
about 08:00 PM. Thereafter, Luxmanpal/complainant (PW-2), Nekram @
Eknath (PW-3) and Mohan (PW-4) had gone to market at 07:40 PM
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
where appellant denied to return the money and abused them and when
Luxmanpal (PW-2) told him that I haven't ill-gotten money that you will
not going to pay me. Then, appellant/accused caused injuries on
complainant on his back and stomach by means of katar. Thereafter, local
persons Pappu and Radha also reached there. Thereafter,
Luxmanpal/complainant (PW-2) along with Nekram @ Eknath (PW-3)
has lodged FIR on the same day at about 07:50 PM at P.S. Piplani,
District Bhopal.
11. The presence of appellant as well as altercation between appellant
and injured (PW-2) has been duly proved by the testimony of aforesaid
witnesses i.e. Luxmanpal/complainant (PW-2), Nekram @ Eknath (PW-
3) and Mohan (PW-4). It is pertinent to mention herein that there is no
denial in cross-examination of Luxmanpal/complainant (PW-2) that he
was called by the appellant at night to take the borrowed money and
appellant abused him. There is no specific denial by defence that
appellant caused two injuries by katar. Statement of Luxmanpal (PW-2)
is duly supported by the testimony of Nekram @ Eknath (PW-3) and
Mohan (PW-4). Nekram @ Eknath (PW-3) and Mohan (PW-4) also not
cross-examined specifically on the point of injury caused by the
appellant.
12. In the context of argument regarding nature of injury inflicted to
injured Luxmanpal (PW-2), the testimony of Dr. Maheshram (PW-8) is
very important, who examined the complainant/Luxmanpal (PW-2),
called by Dr. Subhash Chandra Goel (PW-1), as he is a specialist surgeon
and he examined Luxmanpal (PW-2) and opined that injuries No.1 and 2
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
inflicted to Luxmanpal/complainant (PW-2) are caused by hard and sharp
object, grievous in nature and dangerous to life. Dr. Subhash Chandra
Goel (PW-1) firstly examined Luxmanpal/complainant (PW-2).
Thereafter, he referred him to surgeon then Dr. Maheshram (PW-8),
specialist surgeon examined Luxmanpal/complainant (PW-2). Dr. O.P.
Arora (PW-7) also opined that on 10.07.1997, the complainant had
undergone surgery at Kasturba Hospital, Bhopal, as the injuries were
dangerous to life.
13. From the statement of aforesaid witnesses as well as medical
evidence, no doubt remains towards commission of incident. Therefore,
argument advanced by the learned counsel for the appellant regarding
false implication is ruled out. Moreover, the presence of the
appellant/accused at the place of incident on 10.07.1997 has also been
established by the oral testimony of eye-witnesses
Luxmanpal/complainant (PW-2), Nekram @ Eknath (PW-3) and Mohan
(PW-4). However, Purushottam (PW-5) has not pointed out the specific
role of appellant. In this regard, it is settled law declared in Hari chand
Vs State of Delhi, (1996) 9 SCC 112 :-
"While appreciating the evidence of eye witnesses
in a criminal trial especially in a case of
eyewitnesses the maxim falus in uno, falus in
omnibus can not apply and the court has to make
efforts to sift the grain from the chaff. It is of
course true that when a witness is said to have
exaggerated in his evidence at the stage of the trial
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
and has tried to involve many more accused and if
the part of the evidence is not found acceptable the
remaining part of evidence has to be scrutinised
with care and the court must try to see whether the
acceptable part of the evidence gets corroborated
from other evidence on record so that the
acceptable part can be safely relied upon."
14. With respect to argument about the veracity of injured eye witness
Luxmanpal (PW-2), it is required to be noted that Luxmanpal (PW-2) is
the injured eye- witness. As held by the Apex Court in the case of State
of M.P. vs. Mansingh, (2003) 10 SCC 414 para 9 :-
"The evidence of an injured eye-witness has great
evidentiary value and unless compelling reasons
exist, their statements are not to be discarded
lightly."
15. Since there is nothing in the testimony of Luxmanpal (PW-2)
which can be discarded. On the contrary, the findings about the veracity
of injured eye witness of trial court are proper and legal and his testimony
is fully supported by Nekram @ Eknath (PW-3) and Mohan (PW-4).
Nothing on record to disbelieve them. Therefore, this argument has been
duly rejected as stated above.
16. Be it noted there can be no iota of doubt that the prosecution has
proved the case without any reasonable doubt about the commission of
alleged offence by appellant/accused on the basis of eye-witnesses i.e.
Luxmanpal/complainant (PW-2), Nekram @ Eknath (PW-3) and Mohan
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
(PW-4). The alleged offence has been proved by corroborating medical
evidence of Dr. Subhash Chandra Goel (PW-1), Dr. O.P. Arora (PW-7)
and Dr. Maheshram (PW-8). Therefore, on the basis of aforementioned
reason, this Court is of considered view that incriminating evidence
established by the prosecution which do not permit any confusion or
doubt with regard to involvement of appellant/accused in the offence.
17. As far as, about the essential ingredients of Section 307 of IPC
stated as 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. Attempts by life convicts-2[When any person offending under
this section is under sentence of imprisonment for life], he may, if hurt is
caused, be punished with death.]"
18. In this regard, it is law declared by Supreme Court in Sadakat
Kotwar & Anr. Vs State of Jharkhand. Criminal Appeal No. 1316/21
that:-
"As observed and held by this Court in catena of
decisions nobody can enter into the mind of the
accused and his intention has to be ascertained
from the weapon used, part of the body chosen for
assault and the nature of the injury caused."
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
CRIMINAL APPEAL No.1251 of 1998
19. Analysing the evidence in the background set out above, this Court
has constrained to hold that the learned trial court has not committed any
error in assessing the evidence on record for convicting the
appellant/accused. Hence, this appeal is dismissed.
20. Resultantly, the impugned judgment dated 31.03.1998 is upheld
and the appellant is directed to surrender before the trial court on or
before 16.03.2023. His bail bonds shall stand cancelled.
Copy of this judgment along with record of the learned trial court
be sent to the learned trial court for information and compliance.
Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA))
JUDGE
Kafeel
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 3/4/2023
11:51:57 AM
