Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 1 September, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 6538 of 2023
BETWEEN:-
BABULAL S/O GANPATALAL GURJAR,
AGED ABOUT 28 YEARS, OCCUPATION:
1. LABOUR R/O. GRAM FARDKHEDI,
THANA MOHAN BARODIA, DISTRICT
SHAJAPUR (MADHYA PRADESH)
GANPAT S/O MOTILAL GURJAR, AGED
ABOUT 69 YEARS, OCCUPATION:
2. LABOUR R/O. GRAM FARADKHEDI,
THANA MOHAN BADODIYA, DIST.
SHAJAPUR (MADHYA PRADESH)
.....APPELLANTS
(SHRI A. K. SAXENA- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION
SARANGPUR, DISTRICT
RAJGARH (BIAORA) (MADHYA
PRADESH)
.....RESPONDENT
(SHRI GAURAV RAWAT - DY. GOVT. ADVOCATE)
Reserved on : 14.08.2023
Delivered on : 01.09.2023
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 9/1/2023
2:12:09 PM
2
This appeal coming on for orders this day, heard with the
consent of parties and the court passed the following:
JUDGMENT
This criminal appeal has been filed under Section 374 of
Cr.P.C. by the appellants being crestfallen by the judgment dated
02.05.2023 passed by the learned 2nd Additional Sessions Judge,
Sarangpur, District Rajgarh in ST No.64/2019 whereby the
appellant Babulal has been convicted for offence under Sections
307/34 of IPC, 1860, Section 25 (1B)(b) of Arms Act, 1959
sentenced to undergo 5 years and 2 years R.I. and fine of
Rs.1000/- and 500/- respectively with default stipulations
and appellant-Ganpatlal has been convicted for the offence under
Sections 307/34 of IPC, 1860, sentenced to undergo 5 years R.I.
with fine of Rs.1000/- and with default stipulation.
02. Briefly stated facts leading to the present appeal in short
are that the complainant lodged a complaint that there was a
conversation with regard to marriage of her brother's children
with the children of one Ganpat Gurjar. Ganpat was ready for the
marriage but, complainant's sister-in-law was not ready for
marriage. On this issue, on 11.07.2019 at about 6 AM, when her
sister-in-law alongwith her son was going towards the well with
animal, at that time, the complainant was also going behind them.
Ganpat Gurjar alongwith his son Babulal reached thereon a
motorcycle. Ganpat caught hold complainant's sister-in-law and
with intention to kill her, Babulal assaulted the injured with knife.
He assaulted on stomach, back, neck and face of her sister-in-law.
On screaming, other villagers came on the spot, the accused
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RAIKWAR
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persons fled away from the spot and the injured was taken to
hospital at Shajapur. Thereafter, the police party, following due
procedure, arrested the accused persons, registered the case
against the appellants. After necessary investigation, charge-sheet
was filed against the appellants under Sections 307/34 of IPC and
under Section 25 of the Arms Act.
03. In turn, the case was committed to the Court of Session vide
order dated 03.12.2019 and thereafter, appellants were charged
for offence under Section Section 307/34 of IPC and under
Section 25 of the Arms Act. They abjured their guilt and took a
plea that they had been falsely implicated in the present crime
and pray for trial.
04. In support of the prosecution case, the prosecution has
examined as many as 18 witnesses namely Rajubai (PW-1),
Ladkunwarbai (PW-2), Brijesh (PW-3), Devkalabai (PW-4),
Mukesh Goud (PW-5), Anuradha (PW-6), Radheshyam (PW-7),
Bhagwandas (PW-8), Chandar Singh (PW-9), Kalicharan (PW-
10), Mujeeb Patel (PW-11), Nitin Bhargava (PW-12), Jitendra
Rawat (PW-13), Babulal (PW-14), Brijmohan Sharma (PW-15),
Malkhan Singh Bhati (PW-16), Sunil (PW-17), & Sandeep (PW-
18). No witness has been adduced by the appellants in their
defence.
05. Learned trial Court, on appreciation of the evidence and
arguments adduced by the parties, pronounced the impugned
judgment on 02.05.2023 by concluding the case and convicted
the appellants for commission of the said offence by sentencing
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RAIKWAR
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them as hereinabove.
06. Learned counsel for the appellants submits that the learned
trial Court has not considered the material evidence available on
record, the learned trial Court has committed grave error of law
in not considering the material contradictions and omissions in
the statements of the prosecution witnesses. Dr. Mukesh Gaud,
(PW-5) in his statements before the learned trial Court has clearly
stated that the injuries so received by the injured were not
dangerous to life. It is further submitted that Appellants are father
and son and there is no one to look after the family and they are
facing the trial since 2019. It is further submitted that appellant
No.2 is an old aged person and aged about 69 years and no
fruitful purpose would be served to keep the old age person in
judicial custody. It is further submitted that out of the five years
of jail sentence, appellants have already undergone
approximately four years of their jail sentence.
07. Learned counsel for the appellants further submitted that
Chandar Singh (PW-9) and Mujeeb Patel (PW-11), seizure
witness turned hostile and did not support the case of the
prosecution. If the recovery of so called seized articles itself is
not proved, the case of the prosecution is having no force against
the appellants and this fact has clearly been considered by learned
trial Court in para No.32 and 33 of the impugned judgment. In
alternate, learned counsel for the appellants has further prayed
that looking to the nature of dispute, period already undergone by
the appellants (specially appellant no.2, father who has not played
any active role in the offence), their sentence be reduced to the
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RAIKWAR
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period already undergone by enhancing the fine amount as the
Court may deem fit.
08. Learned counsel for the State on the other hand supports the
impugned judgment and prays for dismissal of this appeal by
submitting that the appellants are father and son and they have
assaulted the injured lady and caused multiple injuries to her.
Hence, they are not entitled for any relief from this Court.
09. In back drop of the arguments advanced by counsel for
both parties, the point for consideration is as to whether the
findings of the learned trial Court in convicting and sentencing
the appellants under Section 307 read with Section 34 of IPC and
Section 25 of Arms Act, are erroneous in the eyes of law and
facts.
10. At the outset, the statement of injured Ladkunwar Bai
(PW-2) is required to be enumerated. She has deposed that when
she went to the well with her buffalo, accused Ganpat came and
asked as to whether she will solemnize the engagement of Brijesh
or not? On this, when she declined, Ganpat came and suppressed
her from back and another appellant Babulal assaulted her with
knife with intention to kill her. During her deposition before the
learned trial Court, this witness has drawn the attention of the
Court to the respective scars caused by the assault. The statement
of this injured witness has not been controverted in cross-
examination.
11. Rajubai (PW-1) has lodged a report (Ex.-P/1) and also
vindicated the prosecution story in the same way. She asseverated
that Ganpatlal caught hold the hands of Ladkunwar Bai and
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RAIKWAR
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Babulal assaulted her with knife. This statement finds support
from the testimony of other witnesses namely Brijesh (PW-3),
Devkalabai (PW-4) and Anuradha (PW-6). The witness
Anuradha (PW-6) has deposed that when she was in her house,
she heard the screaming noise, after that, she came out from her
house and went to the spot and saw so many persons were
gathered thereon and injured/Ladkunwar Bai lying near a tree in
unconscious condition. The statements of these witnesses
remained unshaken during their cross-examination.
12. Dr. Mukesh Gaud (PW-5) has found five following injuries
on the person of injured Ladkunwar Bai (PW-2) when he has
examined her :-
1. Lacerated wound over right side of upper limbs approx
2X0.5 cm.
2. Lacerated wound right side of neck approx 5X0.5 cm.
3. Lacerated would over neck 3X0.5 over left side of neck.
4. Lacerated wound over neck minor size.
5. Lacerated wound near left side of chest approx 3X0.5
cm.
13. However, this witness has stated that he has not found any
injury which can be dangerous to life. On going thorough the
examination of injured Ladkunwar Bai, it is found that she has
clearly stated in Para 5 that she was hospitalized in M.Y. Hospital
for 20-25 days which shows she received grievous injuries by
knife in the said incident.
14. That apart, the prosecution case has already been supported
by Radheshyam (PW-7) and Bhagwandas Gupta (PW-8). Shri
Akhilesh Kumar Saxena, learned counsel for the appellants has
submitted that no independent witness has supported the
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prosecution case, it is only vindicated by relatives. In this regard,
it should be kept in mind that injured/Ladkunwar Bai (PW-2) is
grievously injured in the incident, hence, her statements would
have a special status in the law.
15. On this aspect, the law laid down by Hon'ble the Apex
Court rendered in Bhajan Singh alias Harbhajan Singh and
others Vs. State of Haryana [AIR (2011) SC 2552] is made to
mention here under :-
"Thus, the testimony of an injured
witness is accorded a Special status in
law. Such a witness comes with a built-
in guarantee of his presence at the
scene of the crime and is unlikely to
spare his actual assailant [s] in order to
falsely implicate someone. Convincing
evidence is required to discredit an
injured witness"
16. It is also contended that there are many omissions and
inconsistency in the statements of these witnesses. With regard to
this aspect, another case law of Hon'ble the Apex Court, rendered
in Balkrishnan and others vs. State of Tamil Nadu [2018
LawSuit (SC) 247], which is held as under :-
"[7] We have considered the specific
grounds on which the evidence of the
aforesaid two witnesses have been
sought to be assailed. On such
consideration, we find that the
inconsistencies and contradictions do
not affect the core of their testimonies.
The said witnesses have without any
ambiguity implicated the accused for
the injuries caused leading to the death
of Chelladurai and also the injuries
caused to PW-1 and PW-2."
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Signed by: VINDESH
RAIKWAR
Signing time: 9/1/2023
2:12:09 PM
17. Learned counsel for the appellants, vehemently, contended
that all the witnesses are relatives witnesses, therefore, their
testimonies cannot be relied on in view of relatedness. Virtually,
it is now well settled that a relative witness cannot be said to be
an interested as merely by virtue of being a relatives of the
victim. In this context, the following proposition held by Hon'ble
Supreme Court, in Laltu Ghos v. State of West-Bengal, [AIR
(2019) SC 1058], is relevant to quote here-
".......This Court has elucidated the
difference between 'interested' and
'related' witnesses in a plethora of
cases, stating that a witness may be
called interested only when he or she
derives some benefit from the result of
a litigation, which in the context of a
criminal case would mean that the
witness has a direct or indirect interest
in seeing the accused punished due to
prior enmity or other reasons, and thus
has a motive to falsely implicate the
accused......."
18. Actually, in many of the criminal cases, it is often that the
offence is witnessed by closed relatives of the victim, whose
presence on the spot of the incident would be natural. The
evidence of such witnesses cannot automatically be discarded by
leveling them as interested witnesses.
19. Learned counsel for the appellants has also placed his
demurrer regarding seizure memo of said knife and submitted
that witnesses of seizure were turned hostile. Certainly, Chandar
Singh (PW-9) and Mujeeb Patel (PW-11) have been turned
hostile regarding memorandum of seizure of knife from the
appellants, but the Investigating Officer, Nitin Bhargava (PW-12)
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RAIKWAR
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in his statements, has supported the memorandum statement as
well as seizure memo which has duly been signed by the seizure
witnesses.
20. So far as, the hostility of independent witnesses, Chander
Singh (PW-9) and Mujeeb Patel (PW-11) is concerned, it is by
now well settled that the testimony of police witnesses regarding
disclosure statement and seizure memo could not be discarded
merely on account that independent witnesses have not supported
the seizure and memorandum statement disclosed by accused to
the Investigating Officer. In this regard the following ratio
decidendi laid down by Hon'ble Supreme Court rendered in
Karamjit Singh v. State (Delhi Administration), AIR 2003 SC
1311, is propitious to produce here:-
"8.........The testimony of police
personnel should be treated in the same
manner as testimony of any other
witness and there is no principle of law
that without corroboration by
independent witnesses their testimony
can not be relied upon. The
presumption that a person acts honestly
applies as much in favour of police
personnel as of other persons and it is
not a proper judicial approach to
distrust and suspect them without good
grounds........"
21. In a recent full bench decision of Hon'ble Apex Court
rendered in Rizwan Khan v. State of Chhatisgarh, dated
10.09.2020 reported as AIRONLINE 2020 SC 722, it is held as
under:-
"........It is true that all the aforesaid
witnesses are police officials and two
independent witnesses, who were
panchnama witnesses had turned
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RAIKWAR
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hostile. However, all the aforesaid
police witnesses are found to be
reliable and trustworthy. All of them
have been thoroughly cross-examined
by the defence. There is no allegation
of any enmity between the police
witnesses and the accused. No such
defence has been taken in the
statement under Section 313 Cr.P.C.
There is no law that the evidence of
police officials, unless supported by
independent evidence, is to be
discarded and/or unworthy of
acceptance."
22. In another recent decision of Hon'ble Supreme Court
rendered in Surinder Kumar v. State of Punjab, 2020(2) SCC
563, while considering somewhat similar situation, it was
observed that "The evidence of official witnesses cannot be
distrusted and disbelieved, merely on account of their official
status."
23. Applying the aforesaid law laid down by Hon'ble the Apex
Court, the evidence of Investigating Officer, Nitin Bhargava
(PW-12) regarding memorandum statement of Babulal (exhibit-
P/6) and on that basis recovery of said knife by seizure memo
(exhibit-P/7) is well proved and thereby the recovery of said
knife and other materials is found to be reliable and trustworthy.
24. Another limb of submissions propounded by Shri A.K.
Saxena is that the said injury was not dangerous to life.
Therefore, on the basis of such injury, the accused cannot be
convicted for the offence of attempt to murder.
25. Per Contra, Shri Gaurav Rawat, learned Government
Advocate, expostulated that in order to justify a conviction under
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RAIKWAR
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Section 307 of the I.P.C., it is not always essential that fatal
injuries capable to causing death should have been caused.
26. In view of the arguments canvassed by both parties, the
injury of injured Ladkunwar Bai and the medical report in this
regard have been examined. There were injuries on stomach,
back, neck and face of injured Ladkunwar Bai by knife, which
was a sharp edged and dangerous object being fatal for life. Due
to these injuries, the injured was hospitalized for more than 20-25
days in a hospital. The said penetrating injury is incised wound
over right side of upper limbs measuring 2X0.5 cm, incised
wound right side of neck measuring 5X0.5 cm, lacerated would
over neck 3X0.5 over left side of neck, lacerated wound over
neck minor size, lacerated wound near left side of chest
measuring 3X0.5 cm. In this regard, the intention of the accused
has to be unearthed from the circumstances like the nature of the
weapon used, the part of the body whereon the injury was caused,
and the nature of the injury inflicted by the accused. In this
regard, the following ratio of the Hon'ble Apex Court rendered in
State of M.P. v. Kashiram, (2009) 4 SCC 26, is pertinent to refer
here :-
"[9] To justify a conviction under this Section,
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 concluded
from other circumstances, and may even, in
some cases, be ascertained without any
reference at all to actual wounds. The Section
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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 necessary
that the injury actually caused to the victim of
the assault should be sufficient under ordinary
circumstances to cause the death of the person
assaulted. 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 the Section.
An attempt in order to be criminal need not be
the penultimate act. It is sufficient in law, if
there is present an intent coupled with some
overt act in execution thereof."
27. In this case, the accused, Babulal and Ganpat, along with a
knife, reached the place where the injured was going and,
thereafter, during an altercation, gave knife blows on her
stomach, back, neck and face. In this regard, the full bench of the
Hon'ble Supreme Court in the case of Surendra Singh Vs. State
2021 LawSuit (SC) 772 adumbrated as under:-
"20. It is by now a lucid dictum that for the
purpose of constituting an offence under
Section 307 IPC, there are two ingredients
that a Court must consider, first, whether
there was any intention or knowledge on the
part of accused to cause death of the victim,
and, second, such intent or knowledge was
followed by some overt actus rea in execution
thereof, irrespective of the consequential
result as to whether or not any injury is
inflicted upon the victim."
28. In a case, where simple injury was caused by a deadly
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weapon knife on the stomach, a vital part of the body, the another
Bench of this High Court, while relying on the decisions of the
Hon'ble Apex Court in Jageram Vs. State of Haryana (2015) 11
SCC 366 and State of M.P. Vs. Kanta @ Omprakash, AIR 2019
SC 713, ordained in its recent decision rendered in Satish @
Gudda @ Gudda Vs. State of M.P., CRA No. 2483 of 1998,
dated 05.04.2022 as under -
"29. 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 simple or minor will not by
itself rule out application of Section 307 IPC.
The determinative question is the intention or
knowledge as the case may be and not the
nature of the injuries."
29. In this case, the accused attacked with a knife on the
stomach, back, neck and face of injured. Although the injured
was rescued in a hospital, nevertheless, the knowledge and
intention of the accused are gathered by their act. Certainly, there
was only one injury on the stomach of the injured person, but the
stomach is a vital organ of the body, and the nature of the weapon
is also dangerous to life. Therefore, having regarded the nature of
the weapon, the nature of the injury on the vital organ, the
intensity of the blow, this Court is of the considered view that the
accused persons have inflicted the injury on the injured with the
intention to cause her death.
30. On the basis of the preceding discussions in entirety and for
the reasons assigned hereinabove, the act of the accused comes
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only within the purview of section 307 of the IPC. The
prosecution has successfully proved beyond all reasonable doubts
that accused Babulal and Ganpat has assaulted upon the injured
Ladkunwar Bai (P.W.2) with intention to cause her death.
Accordingly, accused persons are liable to be convicted for the
offence of attempt to murder, punishable under Section 307 of the
IPC.
31. So far as the conviction of Babulal under Section 25(1B)(b)
of Arms Act is concerned, since the seizure of said knife is well
authenticated by Investigating Officer, Nitin Bhargava (P.W.-12),
it is also well established that the accused/Babulal has caused the
injury to Ladkunwar Bai by the said knife. Hence, the findings of
the learned trial Court regarding conviction of Babulal for the
offence under Section 25(1B)(b) of the Arms Act, is also
appeared to be inviolable in the eyes of law and facts.
32. In view of aforesaid evidence in entirety, the findings of
the learned trial Court regarding conviction of the appellants
Ganpat and Babulal under Section 307 read with Section 34 and
appellant/Babulal under Section 25(1B)(b) of Arms Act do not
warrant any interference.
33. Now, coming to the part of punishment/sentence of both of
appellants, they were involved in causing grievous injuries to a
lady/Ladkunwar Bai aged about 44 years by knife. Hence,
punishment of five years R.I. cannot be ascertained as harsh. The
punishment given by the learned trial Court was kind enough.
The learned trial Court has passed the impugned judgment rightly
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and has committed no error of law neither on facts nor on the law
points. Hence, the findings of the learned trial Court regarding
conviction and sentence to the appellants, are hereby affirmed.
Resultantly, the appeal stands dismissed.
34. Appellant No.1 is already in jail and appellant No.2 is on
bail being suspended, hence, appellant No. 2 Ganpat Lal Gurjar is
directed to surrender before the learned trial Court within 15 days
for completion of his remaining jail sentence of five years as
awarded by learned trial Court under Section 307 of IPC.
35. They be set at liberty forthwith after completion of five
years of their jail sentence. The judgment of the learned trial
Court regarding disposal of the seized property stands affirmed.
36. A copy of this order be sent to the concerned trial Court for
necessary compliance alongwith the record.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
vindesh
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RAIKWAR
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