Madhya Pradesh High Court
Mastram Kushwaha vs The State Of Madhya Pradesh on 6 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-15753-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 6 th OF AUGUST, 2024
CRIMINAL APPEAL No. 15753 of 2023
MASTRAM KUSHWAHA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Chandra Pal Singh Parmar - Advocate for the appellants.
Shri Ajay Shukla - Public Prosecutor for the State.
WITH
CRIMINAL APPEAL No. 3034 of 2024
THE STATE OF MADHYA PRADESH
Versus
MASTRAM KUSHWAHA AND OTHERS
Appearance:
Shri Ajay Shukla - Public Prosecutor for the appellant/State.
Shri Chandra Pal Singh - Advocate for the respondents.
ORDER
Per: Justice Vivek Agarwal
In these two appeals, CRA No.15753/2023 is filed under Section
374(2) of the Cr.P.C. by the accused/appellants whereas another CRA
No.3034/2024 is filed under Section 378 (1) of the Cr.P.C. by the State,
respectively. Both the appeals assail the judgment dated 08.12.2023 passed
by the learned Sessions Judge, Panna in ST No.127/2021.
2 CRA-15753-2023
2. As far as the appeal filed by the State is concerned, it is assailing the
impugned judgment on the ground of inadequacy of punishment. It is
submitted by Shri Ajay Shukla that the injuries which were found by Dr.
D.K. Gupta (PW-6) on left hand of the injured witness Babita (PW-2) were
measuring 5x1x1.5 cm and 7x1x1 cm, and another injury was found on her
breast on left hand side on Clavicle bone measuring 7x5x0.5 cm which show
that there was an intention to kill her which is corroborated by medical
evidence and, therefore instead of conviction under Section 324 and Section
324/34 of the IPC, it should have been under Section 307 and 307/34 of the
IPC.
3. Reliance is placed by Shri Ajay Shukla on the judgment of Hon'ble the
Supreme Court in State of Karnataka v. Gopalakrishna, (2005) 9 SCC 291 to
the effect that where the findings of the Court below are unreasonable or
perverse and not based on the evidence on record or suffer from serious
illegality and include ignorance and misreading of the record, the appellate
Court will be justified in setting aside such an order of acquittal.
4. Similarly, Hon'ble the Supreme Court in the case of Girija Prasad v.
State of MP, (2007) 7 SCC 625 has held that in an appeal against acquittal,
the appellate Court has every power to re-appreciate, review and reconsider
the evidence as a whole before it.
5. Thus, a prayer is made by Shri Ajay Shukla to enhance the punishment
imposed on the accused/convict respondents and convict them under
Sections 307 and 307/34 of the IPC.
6. On the other hand, learned counsel for the accused appellants Shri
3 CRA-15753-2023
Chandra Pal Singh submits that the trial Court has wrongly convicted the
accused appellants under Section 324 and 324/34 of the IPC and sentenced
them to undergo RI for two years with fine of Rs.2,000/- with default
stipulation of RI of three months. It is further submitted that the trial court
has wrongly denied the benefit of Probation of Offenders Act, 1958 only on
the basis of nature of the incident.
7. The prosecution story, in short, is that on 05.08.2021, at about 12 noon,
at village - Ramnagar, police station - Amanganj, district - Panna, the
appellants Mastram Kushwaha, Ragini Kushwaha and Imarti Kushwaha
abused the victim Smt. Babita Kushwaha in front of her house. This caused
annoyance to the victim and others who were present at the place of the
incident. Thereafter, with an object to cause her death, the accused Mastram
Kushwaha having common knowledge and information, caused injuries to
Babita Kushwaha with an axe which was in the nature of an attempt to
murder and therefore, chargesheet was filed under Sections 294, 307 and
307/34 of the IPC.
8. It is an admitted fact that the important witnesses are Ramkishun
Kushwaha (PW-1), Babeeta Kushwaha (PW-2), Betalal Kushwaha (PW-3),
Purushottam Kushwaha (PW-4) and Smt. Dhakkan Bai (PW-5). Beside these
witnesses, Dr. D.K. Gupta (PW-6) who had examined the injured, is also an
important witness.
9. It is submitted by counsel for the accused appellant that the incident took
place at the spur of moment and therefore, there was no aspect of pre
meditation or common intention. It is submitted that as per the spot map, the
4 CRA-15753-2023
complainant and the accused appellants are residents of the same locality.
Their houses, as per the spot map Exhibit P-3, are opposite to each other.
Place of incident is marked as 'A'.
10. PW -1, Ramkishun Kushwaha, has deposed that when he had heard the
disturbance then he had come out of his house and he had seen that Babita
Kushwaha and accused persons, namely, Smt. Imarti Kushwaha and Smt.
Ragini Kushwaha were enveloping each other and indulging in beating and
Mastram Kushwaha was standing there with an axe. He deposed that he had
not seen that who had hit Babita Kushwaha with an axe. In cross-
examination, this witness admitted that when he had reached the spot, the
incident was already over. He has also deposed that he had seen Ram Prasad
Kushwaha at the place of the incident but Purushottam (PW-4) and Dhakkan
Bai (PW-5) arrived later on. It is pointed out that this witness has not shown
presence of PW-3 Betaram Kushwaha at the place of the incident. He had
seen Mastram preparing the video of the incident. Thus, it is submitted that
there is no credible eye witness to the incident.
11. PW-2, Babita Kushwaha, deposed that accused Ragini, Imarti and
Ram Sahay had beaten her and her father-in-law on an earlier occasion i.e.
02.07.2021 for which a report was lodged. Thereafter on 05.08.2021, when
she was cleaning in front of her house, then Ragini and Imarti came and
started abusing her. When she stopped them, then they caught hold of her
and Mastram came with an axe in his hand and had inflicted blow with axe
in her left hand and then on left hand side of her breast as a result of which
she started bleeding. She was taken to Panna hospital in a bolero vehicle. She
5 CRA-15753-2023
admitted that accused and the victim are residents of the same colony and
their houses are in front of each other. She also admitted that prior to the
incident, they were having cordial relationship and were meeting everyday.
She admitted that her lawyer had counselled her to give narration in the
Court in a particular manner in which she deposed. Thus, she is a tutored
witness.
12. PW-3, Betalal Kushwaha is son of Ramkishun Kushwaha PW-1. He
deposed that injured Ragini is the wife of his cousin brother. This witness has
admitted that father of the accused Mastram Kushwaha, namely, Ramsahay
is his real uncle. He further deposed that villagers had surrounded the police
vehicle and asked the police to prepare a case under Section 307 of the IPC
otherwise they will not allow the police vehicle to go. This witness further
admitted that he had singed all the documents at the police station and they
were never read over to him. Police had not put any question to him. He
admits that in report Exhibit P-2 and statement D-2 he deposed that when his
mother shouted for help, then he reached the place of incident.
13. PW-4, Purushottam Kushwaha, is not an eye witness as per PW-1. He
was not present at the place of the incident. Similarly Dhakkan Bai was also
not present at the place of the incident.
14. Dr. D.K. Gupta (PW-6) has opined that no internal organ was damaged.
There was no danger to the life and there was no reason for the injuries to
cause death. Though injury No.2 could have been caused by a blade also.
This evidence of PW-6 is vital.
15. Section 307 of the IPC provides that whoever does any act with such
6 CRA-15753-2023
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.
16. To constitute an offence of attempt to murder, the act must be such that
if not prevented or intercepted, it would be sufficient to cause death of the
victim. To constitute the offence, no injury need be caused to the victim. To
sustain conviction under Section 307 of the IPC, intention to kill should be
clearly proved by the circumstance, like persistence of attack on vital part of
the body by the assailant with dangerous weapon or declarations made by
him that the victim will be killed. The intention is not gatherable merely
from the seriousness of resultant injury as is held by Hon'ble the Supreme
Court in the case of Sarju Prasad v. State of Bihar, AIR 1965 SC 843 .
17. Hon'ble the Supreme Court in the case of Babu Singh v. State of
Haryana, 1995 CriLJ 2630 (SC) has held that when injuries were not
dangerous to life then accused could only be held liable for committing
lesser offence under Section 324 of the IPC and he was not guilty of offence
under Section 307 of the IPC.
18. When these aspects are taken into consideration then acquittal from
charge under Section 307 of the IPC cannot be faulted with and the trial
Court has rightly convicted the accused appellants under Section 324 of the
IPC in place of Section 307 of the IPC. There is no merit in the appeal filed
7 CRA-15753-2023
by the State as we do not find any material to enhance the punishment
imposed on accused/respondents.
19. At this stage, it is appropriate to refer to the decision in the case of
Prakash v. State of MP, 1993 Cr.L.J. 119 (MP), wherein it is held that the
accused convicted under Section 324 but benefits of probation was denied to
him by invoking Section 4 whereas the accused was a Municipal employee
and first offender and the incident was neither preplanned and nor any
serious injury was caused and on appeal it was held that it was quite
expedient to release the offender on probation on good conduct for a period
of one year and if he fails to maintain good conduct, the fine imposed on him
by the trial Court should be recovered from him.
20. In the case at hand, there was no common intention. The accused had
inflicted simple injuries and the incident took place in a spur of moment. It
is first offence by the accused appellants and further that the accused and
victim are related to each other and residents of the same locality and were
having cordial relationship with each other prior to this incident. The
appellants 1 to 3 are aged about 28 years, 32 years and 28 years,
respectively.
21. When these aspects are taken into consideration and in view of such
judgment of this Court in the case of Prakash (supra), while maintaining the
conviction, invoking provisions of Section 4 of the Probation of Offenders
Act, 1958, it is directed that the appellants be released on their executing a
personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each
with two sureties in the like amount to the satisfaction of the trial Court and
8 CRA-15753-2023
the appellants shall be kept under observation for a period of one year.
22. In the result, the appeal filed by the accused appellants, namely, CRA
No.15753/2023 is disposed of as aforesaid and the appeal filed by the State,
i.e. CRA No.3034/2024 is dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ks
