Madhya Pradesh High Court
Peeru Singh vs The State Of M.P. on 26 February, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 1458 of 1999
BETWEEN:-
PEERU SINGH, AGED ABOUT 30 YEARS,
VILLAGE DHANORA,
TEHSIL SARANGPUR, DISTRICT RAJGARH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI VIVEK SINGH, ADVOCATE )
AND
THE STATE OF M.P. (MADHYA PRADESH)
THROUGH POLICE STATION SARANGPUR,
DISTRCT RAJGARH (M.P.)
.....RESPONDENTS
(BY SHRI SURENDRA GUPTA, GA FOR STATE)
HEARD ON : 18.01.2024
RESERVED ON : 26.02.2024
This appeal was heard and reserved and the Court pronounced the
following:
JUDGEMENT
T h e present appeal is filed against the judgment of conviction and
sentence dated 31.07.1999 passed by the learned First Additional Session
Judge, District Shajapur (M.P.) in ST No.37/1999, whereby, the appellant has
been convicted under Section 307 and 450 of the Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and sentenced to undergo 07 years and 05
years R.I. with fine of Rs.25000/- & Rs.2000/- with default stipulation.
2 . As per the prosecution case, in the night of 24.11.1998, the
complainant namely Ramesh came to his house at about 3:AM after irrigating
the agriculture field. He was sleeping in the veranda after closing the door. At
about 4:00 AM, one Peru Singh entered into the house and assaulted him on his
chin and neck by means of sword with intention to kill him. After the assault,
blood was oozing out and on his screaming, his mother son and other witnesses
came on the spot. They have taken the injured to the hospital and lodged the
complaint. Therefore, the police recorded the statements of the witnesses and
registered the FIR under Sections 450 and 307 of IPC. After completion of
investigation, charge-sheet was filed and the case was committed to the Session
Judge. Thereafter, the learned trial Court has framed charges against the
appellant under Section 307 and 450 of IPC.
3. In support of the case, the prosecution has examined as many as 07
witnesses namely Ramesh (PW-1), Shailendra Singh (PW-2), Dr. A.R. Hardiya
(PW-3), Arjun Singh (PW-4), Gopal Singh (PW-5), Hanumant Singh Panwar
(PW-6), Dr. Virendra Kumar Rathore (PW-7). No witness has been adduced by
the appellant in his defence.
4. The learned Trial Court on appreciation of the evidence and
arguments adduced by the parties, finally concluded the case and convicted the
appellant for the commission of the offence punishable under Section 307 &
450 of IPC, vide the impugned judgment.
5. Learned counsel for the appellant, being crestfallen by the aforesaid
finding of the Trial Court, submitted that the learned trial Court has committed
grave error of law and facts in the convicting and sentencing the appellant
without considering the evidence available on record. It is further submitted that
there are material contradictions and omissions in the statements of the
witnesses. Counsel for the appellant submits that after the incident, the
complainant himself has lodged the FIR which means he was not in a serious
condition and if that be so, the complainant/injured has to reach hospital first,
but the learned trial Court has committed error in not considering this factum
and wrongly convicted under Section 307 of IPC. In the medical report, he has
received the injury on his jaw only. There is no eye-witness in the present case.
6. Further, learned counsel for the appellant submits that since there is a
single blow in the matter, hence, the offence under Section 307 of IPC cannot
be made out against the appellant and if the case of the prosecution is taken as it
is, the case of the prosecution would not travel more the offences under Section
325 or 326 of IPC. The appellant has already suffered approximately 20 months
of his incarceration out of the seven years.
7. Alternatively, counsel for the appellant has further argued on the point
of sentence also and prays that since the appellant has already undergone
almost approximately 20 months in jail incarceration, his jail sentence be
reduced to the period already undergone. It is also submitted that the appellant
has already deposited the fine amount so awarded by the learned trial Court. It
is further submitted that the appellant deserves some leniency as the appellant
already suffered the ordeal of the trial since 1998 i.e. for a period of 26 years. It
is further submitted that this appeal be partly allowed and the sentence awarded
to the appellant be reduced to the period already undergone.
8. Learned counsel for the respondent has opposed the prayer and prays
for dismissal of the appeal by supporting the impugned judgement.
9. In backdrop of the rival submissions and evidence available on record,
the point for determination in this appeal is as to whether the findings of the
learned trial Court regarding conviction and sentencing the appellant under
Section 307 of IPC is incorrect in the eyes of law and facts.
10. In order to evaluate the prosecution evidence, at the outset, the
statement of complainant/injured Ramesh (PW-1) is required to be ruminated.
In his statements, he deposed that when he was sleeping in the morning at about
4-5AM, the appellant entered by opening the door into his house and assaulted
him with sword. He further stated that when he cried,his mother Kamlabai,
Mohan and Shailendra came thereon and the accused fled away from the spot.
In this sequence, he received injury on his chin and blood started to ooze.
Further, he has narrated that earlier, the accused squabled with his uncle
Santosh Singh and the injured has supported his uncle. It is further stated that
he has lodged the FIR Ex.P/1 and thereafter, get treatment from District
Hospital Rajgarh and then from Hamidiya Hospital, Bhopal. In his cross-
examination, he has admitted that there was earlier dispute with Yadav Samaj
and he also stated that they have accompanied the appellant in his favour earlier
regarding some transaction of land and in the said case, the injured and others
were remained in the jail also. As per his statement, there was some dispute
between his Kaka and appellant. In sequel thereof a complaint was lodged
against the appellant. The statement of complaint finds support from the
statement of Shailendra Singh (PW-2).
11. In so far as, the injuries of Ramesh is concerned, it is also well
fortified by Dr. A.R. Hardiya (PW-3) & Dr. Virendra Kumar Rathore (PW-7).
He has found that the jaw of the injured was fractured and the injuries received
by the injured was dangerous to life as per Ex.P/10 (medical report). The
statement of these witnesses have not been shaken in their cross-examination.
Hence, the charge of offence for causing hurt voluntarily to the injured is well
proved.
12. Shri Vivek Singh, learned counsel for the appellant has expostulated
that all witnesses are related and interested witnesses, thus on the basis of their
testimonies, the appellant can not be convicted. Certainly, the witnesses are
related to each other. On this aspect in the case of "Dilip Singh vs. State of
Punjab" reported as AIR 1953 SC 364, the full Bench of Hon'ble Supreme
Court observed in para 26 as under:
"26. ......... Ordinarily, a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person. It is true, when
feelings run high and there is personal cause' for
enmity, that there is a tendency to drag in an
innocent person against whom a witness has a
grudge along with the guilty, but foundation must
be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth."
13. Further in the case of Masalti vs. State of Uṭtar Pradesh reported in
[AIR 1965 SC 202] wherein it has been held in para 14 as under:
" 1 4 . .......... There is no doubt that when a
criminal Court has to appreciate evidence given by
witnesses who are partisan or interested, it has to
b e very careful in weighing such evidence.
Whether or not there are discrepancies in the
evidence; whether or not the evidence strikes the
Court as genuine; whether or not the story
disclosed by the evidence is probable, are all
matters which must be taken into account. But it
would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded
only on the ground that it is evidence of partisan or
interested witnesses. Often enough, where factions
prevail in villages and murders are committed as a
result of enmity between such factions, criminal
Courts have to deal with evidence of a partisan
type. The mechanical rejection of such evidence on
the sole ground that it is partisan would invariably
lead to failure of justice."
14. As such, the argument regarding interested witnesses is also appears
to be feeble arguments. So far as the relatedness and interestedness is
concerned, in a recent decision laid down by Hon'ble Apex Court in the case of
Laltu Ghosh vs. State of West Bangal AIR 2019 SC 1058 is relevant to be
referred 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. As per the human tendency, a close relative would put forth the actual
story of incident rather than hide the actual culprit and foist an innocent person.
Virtually, in many of the criminal cases, it is often seen that the offence is
witnessed by close relatives of the victim, whose presence on the spot of
incident would be natural and the evidence of such witness cannot automatically
be discarded by leveling them as interested witness.
16. However, in this appeal on the basis of evidence available on record,
this Court is satisfied that the finding of the learned trial Court regarding causing
voluntary grievous hurt by sharp weapon is in accordance with law and facts. It
is also well settled principle that the maxim "falsus in uno falsus in omnibus"
has no application in India. Hon'ble Supreme Court in the case of Shaktilal
Afdul Gaffar Khan Vs. Basant Raghunath Gogle reported in (2005) 7 SCC
749 has held as under :-
".....it is the duty of Court to separate grain from
chaff. Falsity of particular material witness or
material particular would not ruin it from the
beginning to end. The maxim "falsus in uno falsus
in omnibus" has no application in India and the
witnesses cannot be branded as liar. The maxim
"falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to
occupy the status of rule of law. It is merely a rule
of caution. All that it amounts to, is that in such
cases testimony may be disregarded, and not that it
must be disregarded. The doctrine merely involves
the question of weight of evidence which a Court
may apply in a given set of circumstances, but it is
not what may be called 'a mandatory rule of
evidence".
17. So far as the arguments regarding non-availability of independent
witnesses is concerned, it is well settled that no criminal case can be
overboarded due to non-availability of independent prosecution witnesses. In
this regard, the following verdict of landmark judgment of the Hon'ble Apex
Court rendered in the case of Appa Bhai vs. State of Gujarat AIR 1988 SC
696 is worth referring here as under:
"10.......Experience reminds us that civilized
people are generally insensitive when a crime is
committed even in their presence. They withdraw
both from the victim and the vigilante. They keep
themselves away from the Court unless it is
inevitable. They think that crime like civil dispute
is between two individuals or parties and they
should not involve themselves. This kind of apathy
of the general public is indeed unfortunate, but it is
there everywhere whether in village life, towns or
cities. One cannot ignore this handicap with which
the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the
prosecution case for want of independent witness
must consider the broad spectrum of the
prosecution version and then search for the nugget
of truth with due regard to probability if any,
suggested by the accused......"
18. In the case of Mohd. Naushad Vs. State (Govt. of NCT of Delhi),
reported in 2023 LawSuit (SC) 659, the Full Bench of Hon'ble the Apex
Court, considering the kind of apathy adopted by the general public in not
coming forward to depose to associate with the prosecution, endorsed the
aforesaid verdict. As such, only on the basis of non-examination of any
independent witness, the prosecution case cannot be thrown out, specially when
the testimony of witnesses inspires confidence. This incident was happened in
a close room and it cannot be desired that it would be supported by an
independent person because it is out of reach from any independent person.
19. Since there is no convincing evidence to discard the testimony of
injured Ramesh (PW-1), his sole testimony which is backed by instant FIR and
medical reports is sufficient to evince the prosecution case.
20. In view of the aforesaid proposition, no case can be thrown out only
o n the basis that it was not supported by independent witnesses. Hence, the
stand of learned defence counsel regarding non-availability of independent
witnesses is also found without leg. Having said that, this case is well fortified
by injured Ramesh PW-1. As far as the importance of testimony of injured
witness Soma is concerned, the view of Hon'ble Apex court rendered in the
case of Bhajan Singh @ Harbhajan Singh and others Vs. State of
Haryana AIR 2011 SC 2552 is condign to quote here as under:-
"The testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries
at the time and place of occurrence and this lends
support to his testimony that he was present at the
time of occurrence. 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."
21. In course of arguments, Shri Vivek Singh, learned counsel fro the
appellant has also pointed out that there are many contradictions and omissions
between the statements of injured witness and other witnesses. The blood stains
on the sword were also not graphically examined by the prosecution. Certainly,
there are some minor variations in the statements of the prosecution witnesses,
but there are not touching the root of the case.
2 2 . On this aspect, the observations of Full Bench of Hon'ble Apex
Court in the case of Ashok Kumar Singh Chandel vs. State of U.P. [2022
Law Suit (SC) 1311] has been held as under:-
164. As the prosecution has established the occurrence of the
incident through the evidence of PW-1 and PW-2, and we are in
agreement with the judgment of the High Court that these are credible
ocular witnesses whose statements are corroborated by other
contemporaneous evidence, certain minor variations, such as non-
recovery of blood-stained clothes, certain other weapons etc. will not
be fatal to the case of the prosecution. This principle is well
established in cases where there are credible injured eye-witness
testimonies. In Lakshman Singh v. State of Bihar, this Court held:
"9. In Mansingh [State of M.P. v. Mansingh,
(2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390]
, it is observed and held by this Court that "the
evidence of injured witnesses has greater
evidentiary value and unless compelling
reasons exist, their statements are not to be
discarded lightly". It is further observed in the
said decision that "minor discrepancies do not
corrode the credibility of an otherwise
acceptable evidence". It is further observed that
"mere non-mention of the name of an eyewitness
does not render the prosecution version
fragile".
9.1. A similar view has been expressed by
this Court in the subsequent decision in Abdul
Sayeed [Abdul Sayeed v. State of M.P.,
(2010) 10 SCC 259 : (2010) 3 SCC (Cri)
1262] . It was the case of identification by
witnesses in a crowd of assailants. It is held
that "in cases where there are large number of
assailants, it can be difficult for witnesses to
identify each assailant and attribute specific
role to him". It is further observed that "when
incident stood concluded within few minutes, it
is natural that exact version of incident
revealing every minute detail i.e. meticulous
exactitude of individual acts, cannot be given by
eyewitnesses". It is further observed that
"where witness to occurrence was himself
injured in the incident, testimony of such
witness is generally considered to be very
reliable, as he is a witness that comes with an
inbuilt guarantee of his presence at the scene of
crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone". It is further observed that "thus,
deposition of injured witness should be relied
upon unless there are strong grounds for
rejection of his evidence on basis of major
contradictions and discrepancies therein".
9.2. The aforesaid principle of law has been
reiterated again by this Court in Ramvilas
[Ramvilas v. State of M.P., 43 (2021) 9 SCC
191. (2016) 16 SCC 316 : (2016) 4 SCC (Cri)
850] and it is held that "evidence of injured
witnesses is entitled to a great weight and very
cogent and convincing grounds are required to
discard their evidence". It is further observed
that "being injured witnesses, their presence at
the time and place of occurrence cannot be
doubted."
23. In view of the aforesaid prepositions, the testimony of the witnesses
cannot be discredited or wiped out only on the basis that the are having some
contradictions or trivial matter. As such the aforesaid contention is not liable to
be accepted.
24. In upshot of the aforesaid analysis of evidence as well as proposition
of law, this Court is of the considered opinion that the prosecution succeeded
in proving its case beyond reasonable doubt that appellant has caused injury to
the injured/complainant. Now, turning to the nature of injuries, as per the
statement of Dr. A.R. Hardiya (PW-3), due to injury, the injured has received a
fracture on his jaw. Nevertheless, the testimony of witness regarding causing
injury by sword has not been controverted in their cross-examination. However,
it is envisaged that the appellant has caused only one injury and this statement
has not been rebutted regarding single blow.
25. In the MLC report, the nature of injury has been examined. In this
regard, the provisions of Section 320 of IPC is required to be referred to, which
reads as under:-
26. 320. Grievous hurt.--The following kinds of hurt only are
designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear,
(Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any
member or joint.
(Sixthly) -- Permanent disfiguration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer
to be during the space of twenty days in severe bodily pain, or unable to
follow his ordinary pursuits."
27. The 6th & 7th points of the aforesaid provision defines that any hurt
which contains permanent disfigurement of face and fracture. That apart,
since, Dr. Virendra Kumar Rathore (PW-7) has explicitly elucidated that the
injury was dangerous to life, hence, the findings of learned trial Court regarding
grievous injury, is found infallible and intact.
2 8 . Now, the question is as to whether the injury was caused with
intention or knowledge to kill the injured. In this case, it is fact that the
prosecution has not set up the case that the said injuries were sufficient to cause
death in the ordinary course of nature.
29. In order to justify the conviction under Section 307 of IPC, the Court
has to examine the nature of the weapon used and the manner in which it is
used. In addition to that severity as well as number of the blows and the part of
body where the injury was caused, are also taken into account to determine the
nature of the offence. The role of motive is also ought to be taken into
consideration.
30. Further, in view of the reports and the nature of the injuries, it cannot
be ascertained that the accused has intention to murder, or knowledge as to the
fact that the injured would be killed by this injury. Undisputedly, this is a case of
single blow and the prosecution has also not setup that the said injury was
sufficient to cause death in the ordinary course of nature. In this regard, The
Hon'ble Apex Court in the case of Jai Narayan Singh vs. State of Bihar
[AIR 1972 SC 1764] mandated as under:-...
"11. Taking the case of appellant Suraj Mishra, we
find that he has been convicted under Section 307
IPC and sentenced to 5 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 1/2" x 1/2 x chest wall deep (wound not
probed) on the side of the right side of the chest.
Margins were clean out. Suraj, according to the
evidence, had thrust a bhala into the chest when
Shyamdutt had fallen as a result of the blow given
by Mandeo with the Farsa on his head. According
to the Doctor the wound in the chest was of a
grievous nature as the patient developed surgical
emphysema on the right side of the chest. There
w a s profuse bleeding and, according 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 the 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 of simple 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
t h e injury intended to be caused and, in our
opinion, the offence is not one under Section 307
IPC but Section 326 IPC is set aside and we
convict him under Section 326-IPC. His sentence
of 5 years rigorous imprisonment will have to be
reduced accordingly to 3 years rigorous
imprisonment."
31. In a recent case of Mukesh S/o Jam Singh Damor vs. State of
M.P. & Others 2022 Law Suit (MP) 165; High Court of M.P. Bench has
observed as under:-
"9. It is well settled that an act which is sufficient
in the ordinary course to cause death of the person,
but the intention on the part of the accused is
lacking, the act would not constitute an offence
under Section 307 of IPC. The medical evidence
has to be taken for determining the intention of the
accused. The intention and knowledge of the act
being one of the major factor i.e. used to decide
conviction under Section 307 of IPC. Before it is
held that the act committed by the accused amounts
to attempt to murder, it should be satisfied that the
act was committed with such intention or
knowledge under such circumstances that if it had
caused death, it would have amounted to murder."
32. In a recent case of Panchram vs. State of Chattisgarh & Another
reported in AIR 2023 SC 1801, the Hon'ble Apex has considered as
under:-
"In his statement, the injured appearing as PW-1
submitted that when Munna (PW 6) shouted for help,
Kantilal (PW 8) and Radheyshyam (PW 9) came there and
seeing them the accused ran away. However, Kantilal (PW
8) was declared hostile. The prosecution had produced
another witness Radhey Shyam (PW 7). He was also
declared hostile and did not support the prosecution
version. Even the scissors which was seized by the police
i s small scissors which is used by tailors. With the
aforesaid evidence on record and the kind of weapon
used, in our view the offence will not fall within Section
307 I.P.C. From the reasons for fight as are emerging on
record, it doesn't seem to be pre-planned act. It, at the
most, can fall within the four corners of Section 326 IPC
as a sharp-edged weapon was used. The injuries were not
caused with an intention to cause death and were not
sufficient to cause death. Hence, in our view the
conviction of the appellant with respect Section 307 IPC
cannot be sustained however the offence under Section
326 IPC is made out."
33. On conspectus of the aforesaid settled proposition of law and factual
matrix of the case, there is nothing available on record which advert such
intention or knowledge by which the offence of attempt to murder can be
drawn.
34. Having gone through the record and medical reports including the
statements of witnesses, this is crystal clear that the injured has received only
one injury on jaw which was found grievous but it was not sufficient to cause
death in ordinary course in nature. The prosecution has succeeded to prove that
the said injury was caused by a sharp or dangerous object. Under these
circumstances, the ingredients of Section 307 of IPC are missing in the present
case, nevertheless, in purview of the aforesaid deliberations, it is established by
the prosecution beyond the reasonable doubt that the appellant has caused
grievous injury by assaulting him.
35. In upshot of the aforesaid deliberations in entirety, the judgment of
learned trial Court qua conviction of the appellant under Section 307 of IPC is
found unsustainable and instead of Section 307 of IPC and in the light of the
judgment passed by Apex court in the case of Jainarayan (supra) and
Panchram (supra), the appellant is liable to be convicted under Section 326 of
IPC. In view of the aforesaid discussion, since by the testimony of witnesses it
is established that the appellant entered into the room of complainant with
sword and thereafter, caused injury of grievous hurt to the injured, hence, the
finding of learned trial Court regarding conviction under Section 450 of IPC is
also found infallible in the eyes of law.
36. Now, turning to the point of sentence, looking to the fact that the said
incident of offence has happened in the year 1998 i.e. 26 years ago. No criminal
antecedent for consideration has been suggested by the prosecution against the
appellant. Thus, nothing can be gained by sending the appellant in jail for
further sentence but rather it wold be condigned that by enhancing the fine
amount, the injured can be compassionate to some extent. The appellant is
liable to be sentenced under Section 326 of IPC for the period already
undergone with fine of Rs.50,000/-. In this sequence, the appellant is also
liable to be sentenced under Section 450 of IPC to the period already
undergone with fine of Rs.10000/- and in default of payment of fine
amount under Section 450 of IPC, he shall further to undergo for 30 days
S.I.
37. In the result, the conviction and sentence imposed upon the appellant
for the offence under Section 307 of IPC is set aside and instead thereof, he is
convicted under Section 326 of IPC and sentenced to undergo for to the
period already undergone with fine of Rs.50,000/- and in default of
payment of fine further undergo for three months S.I. Similarly, for the offence
under Section 450 of IPC, the appellant is sentenced to undergo for the period
already undergone with fine of Rs.10000/- and in default of payment of fine
amount, he shall further to undergo for one month S.I. Accordingly, the appeal
is partly allowed.
38. The appellant is on bail. His bail bonds stands discharged after
depositing the fine amount.
39. The fine amount, if already deposited shall be adjusted. The enhanced
fine amount be deposited within one month from today.
40. If the fine amount is recovered completely, Rs.50000/- shall be
paid to the complainant/injured Ramesh.
41 The judgment regarding disposal of the seized property stands
confirmed.
42. A copy of this order alongwith the record of the trial Court, be sent
to the learned trial Court for information and necessary compliance.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
