Madhya Pradesh High Court
Kanhaiya @ Babloo Sharma vs The State Of Madhya Pradesh on 13 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 13 th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 7373 of 2023
BETWEEN:-
KANHAIYA @ BABLOO SHARMA S/O SHRI GANESH
PRASAD SHARMA, AGED ABOUT 42 YEARS, R/O
VILLAGE DHANAGAWAN, POLICE STATION JAITHARI,
DISTRICT ANUPPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SHAKTI PANDEY - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION JAITHARI, DISRICT ANUPPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI AMAN PATEL - PANEL LAWYER)
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Reserved on : 12.12.2023
Pronounced on: 13.02.2024
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE HIRDESH passed the following:-
JUDGMENT
This criminal appeal under section 374(2) of the Code of Criminal
Procedure has been filed by the appellant/accused being aggrieved with the
judgment of conviction and order of sentence dated 17.3.2023 passed by the
Sessions Judge, Anuppur, District Anuppur in Sessions Case No.109/2019
[State Vs. Kanhaiya] whereby the appellant has been convicted under section
307 of Indian Penal Code and 25(1-Kh)(K) of the Arms Act and sentenced to
undergo R.I.for 07 years & 02 years with fine of Rs.3,000/- & Rs.1,000/-
respectively with default stipulations.
2. Brief facts of the case are that on 06.8.2019 the Police Station,
Jaithari got an information from the Community Health Centre, Jaithari that
injured-Dhananjay got a gun shot injury on his stomach. After getting
information the Police reached at the hospital and enquired about the incident,
where they had taken the statement of injured-Dhananjay who stated that his
brother-in-law (Jija) has fired gunshot on him, therefore, he sustained injury. The
Police investigated the matter and registered a case against the
appellant/accused and after following due procedure of law arrested the
appellant. After necessary investigation, charge-sheet has been filed against the
appellant under section 307 of IPC and section 25(1-B)(A) of Arms Act. In
turn, the case was committed to the Court of Session and thereafter the
appellant was charged of offence under section 307 of IPC and section 25 of
Arms Act.
3. The appellant/accused abjured his guilt and pleaded his false
implication and prayed for trial.
4. The trial Court on appreciation of evidence and on the basis of
arguments advanced by the parties pronounced the impugned judgment of
conviction and order of sentence dated 17.3.2023 convicted and sentenced the
appellant, as has been indicated hereinabove.
5. Learned counsel for the appellant submitted that trial Court has
n o t considered the material evidence available on record. The trial Court
committed grave error in not considering the material contradictions and
omissions in the statements of prosecution witnesses. It was further submitted
that appellant is the sole earning member of the family and is jail since the date
of his arrest. It is also submitted that out of 07 years he has already undergone
sentence approximately for about four and half years. He further submitted that
witness to seizure memo and memorandum have turned hostile and did not
support the case of prosecution. If the recovery of so called articles itself is not
proved, the case of the prosecution is having no force against the appellant and
this fact has not clearly been considered by the trial Court. In alternative,
learned counsel for the appellant has prayed that looking to the nature of dispute
and period already undergone by appellant, his sentence be reduced to the
period already undergone by enhancing the amount of fine, as this Court may
deem fit.
6. Learned counsel for the State on the other hand supported the
impugned judgment and prays for dismissal of appeal by submitting that
appellant has assaulted the injured person with fire arm 'Katta' and hence, he is
not entitled for any relief from this Court.
7. In the backdrop of arguments advanced by counsel for the
parties, the point of consideration is as to whether the findings of the learned
trial Court in convicting and sentencing the appellant under aforesaid provisions
is erroneous in the eyes of law and facts.
8. At the outset, the injured-Dhananjay stated in his examination-in-
chief that appellant/accused is his brother-in-law (Jija). On 05.8.2019 when he
was sleeping in his house in village Choi in night the appellant came to his house
and knocked the door. His father opened the door for accused and thereafter he
entered into the house. Then appellant abused him. Thereafter, he took out
'tamancha' and fired on his stomach and then he fled away from the spot.
Witness-Chandrakala Pandey (PW.6), who is mother of injured-Dhananjay
(PW.1), Toshan Pandey (PW.7) who is father of Dhananjay (PW.1) and
Rukmani Pandey (PW.8) who is sister of injured-Dhananjay, all have supported
the evidence of Dhananjay (PW.1) and stated that appellant assaulted and
firmed arms ('tamancha') on the stomach of Dhananjay (PW.1). The statement
of injured - Dhananjay (PW.1) remained unshaken during his cross-examination.
9. Dr.Mukesh Sharma (PW.4) when examined Dhananjay found two
following injuries on the person of injured -PW.1, the free translation of which
is as follows:-
"(a) There was red colour bleeding on the left
side of stomach. The wound was by cartridge, which
was of circular shape and sizing 1.2" X 1.2". The
injury appears to have been caused by gunshot,
which was an hour prior to incident and was fatal.
(b ) There were red coloured injuries caused by
pellets of small cartridges on left side of main
injury towards chest, which sizing 2cm X 2cm. The
injury was caused within an hour and was general
in nature".
10. Likewise, the doctor-PW.18 (Dr.Kuldeep Patel) on examination of
injured found one lacerated wound on left side which was deep into muscle and
sizing 2cm X 2cm. Blood was oozing from this injury. There was also chest x-
ray and CT Scan of injured and tests of his blood. According to CT scan
where there was bullet injury, there was laceration and contusion and there was
air and foreign metal between muscles. There was no exit point and fracture in
left areal bone and its pieces were scattered here & there.
11. Learned counsel for the appellant submitted that no independent
witness has supported the prosecution case. It was vindicated by the relatives.
In this regard it should be kept in mnd that injured-Dhananjay (PW.1) has been
grievously injured in the incident and, therefore, his statement would have
special status in law.
12. 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
builtin 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"
13. 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."
14. 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......."
15. 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.
16. Learned counsel for the appellant has also placed his demurrer
regarding seizure memo of fire arm and submitted that witnesses of seizure were
turned hostile. Ramphal Prajpati (PW.9) and Brajendra Singh Rathore (PW.10)
have certainly turned hostile regarding memorandum of seizure of 'Katta', but
Investigating Officer-Harishanker Shukla (Sub Inspector) {PW.16} in his
statement has supported the seizure memo which was duly signed by seizure
witnesses.
17. 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........"
18. In a recent full bench decision of Hon'ble Apex Court rendered
i n 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 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."
19. 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."
20. Applying the aforesaid law laid down by Apex court the
evidence of Investigating Officer (PW.16) regarding memorandum of appellant
and on the basis of recovery of firm arm is well proved and other materials is
found to be reliable and trustworthy.
21. Another limb of submission propounded by learned counsel for
the appellant is that injury was not covered under section 307 of IPC. Per
contra, learned Panel Lawyer stated that in order to justify the conviction under
section 307 of IPC it is not always essential that fatal injuries capable of causing
death should have been caused.
22. In view of arguments canvassed by both the learned counsel for
the parties, it has been found that statement of doctor (PW.4) the injuries were
dangerous to life as complainant was assaulted by firm arm. So considering the
evidence of PW.1, PW-4 & PW18 it is clear that appellant/accused reached the
place of incident where the injured was residing and thereafter during altercation
fired arm the injured on his stomach. In this regard, the observations of decision
of Full Bench of Apex Court in the case of Surendra Singh Vs. State, 2021
Law Suit (SC) 772 is adumbrated as under:-
23. 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."
24. In the present case, the appellant assaulted and attack with fire
arm on the stomach of injured and doctor stated that injury was dangerous to
life. So, on the basis of discussions in entirety and for reasons assigned
hereinabove, the act of the accused comes only within the purview of section
307 of IPC. The prosecution has successfully proved beyond all reasonable
doubts that appellant/accused has assaulted upon the imjured-Dhananjay with
intention to cause death. Accordingly, the accused/appellant is liable to be
convicted for offence attempt to murder, punishable under section 307 of IPC.
25. So far as the conviction of appellant under Section 25(1Kh)(K)
of Arms Act is concerned, since the seizure of said 'Katta' is well authenticated
by Investigating Officer, it is also well established that the accused has caused
the injury to injured by the said 'Katta'. Hence, the findings of the learned trial
Court regarding conviction of appellant for the offence under Section 25(1Kh)
(K) of the Arms Act, is also appeared to be inviolable in the eyes of law and
facts.
26. In view of aforesaid evidence in entirety, the findings of
the learned trial Court regarding conviction of the appellant under Section 307
IPC under Section 25(1KH)(K) of Arms Act do not warrant any interference.
27. Now, coming to the part of punishment/sentence of the
appellant. He has involved himself in causing grievous injury to the injured-
PW.1 with fire arm and injury is also dangerous to life. The trial Court awarded
punishment of R.I. of 7 years to the appellant. Taking into account the facts and
circumstances of the case, in the considered opinion of this Court, sentencing
appellant with R.I. for 07 years would be very harsh and it would be just and
proper to award sentence R.I.for 05 years. Thus, the sentence of appellant is
reduced from 07 years to 05 years. Thus, the finding of the court below
regarding conviction is upheld and in regard to sentence the same is modified.
28. In the result, the appeal is partially allowed in respect of sentence
by modifying and reducing the same from 07 years to 05 years. The appellant
has remained in custody since 06.8.2019.
29. The judgment of trial Court regarding disposal of seized
property stands affirmed.
30. Let a copy of this judgment alongwith the original record be sent
b ac k to the concerned Court for information and necessary compliance. A
copy of the judgment be also sent to the concerned jail.
31. Consequently, the appeal is disposed of accordingly.
(HIRDESH)
JUDGE
RM
