Madhya Pradesh High Court
Jakir @ Bhola vs The State Of Madhya Pradesh on 14 May, 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. 4389 of 2023
BETWEEN:-
JAHID S/O ABDUL AZIZ, AGED ABOUT 38 YEARS,
OCCUPATION: BOOT HOUSE SHOPKEEPER R/O
VILLAGE PILUKHEDI POLICE KURAWAT DISTT.
RAJGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VARUN MISHRA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION KURAWAR
DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI H.S. RATHORE, FOR STATE)
CRIMINAL APPEAL No. 4293 of 2023
BETWEEN:-
1. ANSAR KHAN S/O NAWAB KHAN, AGED ABOUT 70
Y E A R S , OCCUPATION: LABOUR GRAM
PILUKHEDI, P.S. KURAWAR DISTRICT RAJGRH
AND CURRENTLY ADDRESS- PIPLIYA HASANBAD,
P.S. BAIRASIYA, DIST. BHOPAL (MADHYA
PRADESH)
2. USMAN S/O IMDAD ALI, AGED ABOUT 56 YEARS,
OCCUPATION: LABOUR PILUKHEDI, P.S.
KURAWAR, DIST. RAJGARH (MADHYA PRADESH)
3. ARMAN S/O USMAN KHAN, AGED ABOUT 32
YEARS, OCCUPATION: LABOUR PILUKHEDI, P.S.
KURAWAR, DIST. RAJGARH (MADHYA PRADESH)
4. MUSTAFA S/O MEHBUB KHAN, AGED ABOUT 38
YEARS, OCCUPATION: LABOUR PILUKHEDI, P.S.
KURAWAR, DIST. RAJGARH (MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 5/15/2024
11:13:53 AM
2
5. SALIM KHAN S/O SHAHZAD KHAN, AGED ABOUT
45 YEARS, OCCUPATION: LABOUR PILUKHEDI,
P.S. KURAWAR, DIST. RAJGARH (MADHYA
PRADESH)
6. SHAHID KHAN @ MANU S/O HABIBUL REHMAN
@BABU KHAN, AGED ABOUT 45 YEARS,
OCCUPATION: LABOUR GRAM PILUKHEDA, P.S.
KURAWAR, DIST. RAJGARH (MADHYA PRADESH)
7. NOORUDDIN S/O TUNDE KHAN, AGED ABOUT 50
YEARS, OCCUPATION: LABOUR PILUKHEDI, P.S.
KURAWAR, DIST. RAJGARH (MADHYA PRADESH)
8. ZUBER KHAN S/O NAEEM PATHAN, AGED ABOUT
30 YEARS, OCCUPATION: BUSINESS PILUKHEDI,
P.S. KURAWAR, DIST. RAJGARH (MADHYA
PRADESH)
.....APPELLANT
(SHRI SANTOSH KUMAR MEENA, LEARNED COUNSEL FOR THE
APPELLANT [P-4], MS. REKHA SHRIVASTAVA, LEARNED COUNSEL FOR
THE APPELLANT [P-6] & SHRI SYED ASIF ALI WARSI, LEARNED
COUNSEL FOR THE APPELLANT )
AND
STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION KURAWAR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI H.S. RATHORE FOR STATE)
CRIMINAL APPEAL No. 5047 of 2023
BETWEEN:-
1. JAKIR @ BHOLA S/O GAFFUR KHAN, AGED
ABOUT 35 YEARS, OCCUPATION: LABOUR
BALBATPURA, PILUKHEDI, P.S. KURAWAR,
DISTRICT RAJGARH (MADHYA PRADESH)
2. IMRAN S/O MUNSHI KHAN, AGED ABOUT 35
YEAR S , OCCUPATION: LABOR PILUKHEDI P.S.
KURAWAR DISTRICT RAJGARH (MADHYA
PRADESH)
.....APPELLANT
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 5/15/2024
11:13:53 AM
3
(BY SHRI RITESH INANI, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION KURAWAR,
DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI H.S. RATHORE, FOR STATE )
HEARD ON : 04.04.2024
RESERVED ON : 14.05.2024
These criminal appeals having been heard and reserved for judgment,
coming on for pronouncement this day, the court passed the following:
JUDGMENT
These criminal appeals have been preferred under section 374 of Cr.P.C.
by the appellants being aggrieved by the judgment dated 14.03.2023, passed by
First Additional Session Judge, Narsinghgarh, District Rajgarh in S.T.
No.29/2015, whereby the appellants have been convicted for the offence
punishable under Sections 333/149, 307/149, 332/149 (five counts) and 148 of
IPC and sentenced to undergo 10 years,, 10 years, 03 years (for each count
under section 332/149) and 03 years R.I. respective with fine of Rs.10000/-,
Rs.10000/-, Rs.2000/- (each count) and Rs.2000/- with default stipulations.
2. As per the prosecution story, on 28.07.2014, at about 12:30PM, an
accident had happened at National Highway 12 near village Peelukhedi in which,
unfortunately, a girl met with the said accident and expired on the spot. On the
information, the police reached on the spot. However, due to the said accident,
the local residents of the village had jammed the National Highway. Police
authorities tried to calm the mob, but they were unturned. At that time, accused
Ansar, Bulla @ Fharukh, Jahid, Mustak, Nuruddeen, Mannu having armed with
iron rode and stics other accused namely Saleem, Usmaan, Irfan, Tajuddin,
Juber, Bhola and 4-5 other persons jointly interrupted the police action and with
intention to kill the police personnel they have assaulted Hariprasad,
Durgaprasad, Shashibhushan Bhadoriya, and Ramnarayan. The police team
called the extra force and thereafter, on being seen the extra force, the accused
persons involved in the mob fled away from the spot. On the date of incident, a
Dehatil Nalishi was registered on the basis of the statements of complainant
Irfan Ahmad Khan and later on, on the same day, the FIR was registered after
taking the dying declaration of injured Hariprasad by Nayab Teshsildar and he
was referred to Bhopal Care Hospital, Bhopal. Other injured police personnel
were also sent for medical treatment. Spot map was prepared, statements of the
witnesses were taken, blood stained cloths were recovered and sent for FSL
and thereafter, after following the due procedure, the police registered the FIR
against the appellants under Sections 347, 148, 353, 333, 332, 307/149,
326/149, 325/149 and 323/149 (6 counts) of IPC. Thereafter, charge-sheet was
filed in the Court of Judicial Magistrate First Class-Narsinghgarh and the case
was committed to the Court of Sessions.
03. In the sequel thereoff, the appellants were tried and charged under
Sections 347, 148, 353, 333, 332, 307/149, 326/149, 325/149 and 323/149 (6
counts). They abjured their guilt and took a plea that they had been falsely
implicated in the present crime and prayed for trial.
04. In support of the case, the prosecution has examined as many as 25
witnesses namely Anil (PW-1) Irfan Ahmad (PW-2), Gajraj (PW-3), Hariprasad
(PW-4), H.P. Mehra (PW-5), Durga Prasad (PW-6), Pawan Agarwal (PW-7),
Shashi Bhushan Singh (PW-8), Ramnarayan (PW-9) Lakhan Singh (PW-10),
Dr. Ankur Garde (PW-11), Dr. N.K. Gawli (PW-12), Nawal Singh Meena (PW-
13), Mahesh Jaat (PW-14), Dinesh Jaat (PW-15), Mahendra (PW-16), Babban
Thakur (PW-17), Dr. Ajay Mehta (PW-18), Laad Singh (PW-19), Seetaram
Soni (PW-20), Daulatram (PW-21), Omprakash (PW-22), Khemendra (PW-23),
Ravi Suryawanshi (PW-24) and Manish Singh (PW-25).
05. No witness has been adduced by the appellants in their defence.
06. Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 14.03.2023 and
finally concluded the case and convicted the appellants for commission of
offence as mentioned above in para No. 1 of this judgment.
07. Learned counsels for the appellants submit that the the appellants are
innocent and the learned trial Court has convicted the appellants wrongly
without considering the evidence available on record. Counsels for the
appellants further submit that the appellants have not caused any fatal injury to
the injured persons because there is nothing on record to show that the injured
have received serious injury which may be fatal or sufficient to cause death. It is
further submitted that there are material contradictions and omissions in the
statements of the prosecution witnesses but the learned trial Court has erred in
ignoring the same and in convicting the appellants. It is further submitted that
the incident had happened all of a sudden, there is no knowledge and intention
or motive to assault the injured, hence, the offence shall not travel more than the
offence under Section 326 of IPC, but the learned trial Court has wrongly
convicted appellants under Section 307 of IPC without considering the
evidence available on record. In support of their contentions, counsel for the
appellant submits that the person who has caused injury i.e. the main accused
Gulla @ Fharukh has already been expired, all the other injured persons have
only received the injuries simple in nature, therefore, considering the act and
accusation of the appellants, the learned trial Court has erred in convicting the
appellants.
08. Learned counsel for the appellants further contended that prosecution
has not proved its case beyond reasonable doubt that accused persons
voluntarily caused the injuries to deter or prevent the public servants from
performing their public duties. Hence, they are also not liable for conviction
under Section 333 and 332 of IPC. It is also contended that since there is no
intention to cause death of injured Hariprasad, the accused can be convicted
only for causing injury by sharp edge weapon with the aid of Section 149 of
IPC, but in this case, they cannot be convicted for both the offences under
Section 333/149 of IPC and under Section 326 of IPC for causing injury to
Hariprasad. They can only be convicted for only one offence, because no one
can be convicted twice for a single criminal act. Since, the offence under
Section 326 of IPC is punishable for life imprisonment and the offence under
Section 333 of IPC is punishable for 10 years, it will be apposite to convict the
appellants only for one section, hence, they cannot be convicted under Section
333 of IPC. Accordingly, they pray for reduction of the sentence to the period
already undergone or as the Court may deem fit in the interest of justice.
0 9 . Per contra, learned Public Prosecutor has opposed the prayer.
Inviting my attention towards the conclusive paragraphs of the impugned
judgement, learned public prosecutor has submitted that the injured persons
have received the injuries caused by the appellant and the learned trial Court has
rightly convicted the appellants by sentencing them appropriately. It is further
submitted that the learned trial Court has however also convicted the appellants
under Section 333/149 of IPC and sentenced them for 10 years R.I. therefore,
the sentence of the appellant cannot be reduced at any cost. The appellants
have assaulted the police party while the police personnel were indulge in their
duty. They have jammed the National Highway, therefore, the learned trial Court
has rightly convicted the appellants under Section 333/149 of IPC. Hence,
prays for dismissal of the appeal.
10. In reply, counsel for the appellants have not disputed the factum that
the appellants have interfered with the police and assaulted them while the
police party was on official duties, but in view of the facts and circumstances of
the case, prays that the learned trial Court has convicted the appellants wrongly
on higher side and prays for reduction of their sentence.
11. I have heard the counsel for the parties and perused the record.
12. In back drop of the arguments advanced by learned counsel for the
parties, this Court has to consider the following questions for determination of
this appeal:
( i) that as to whether the appellants have committed the
offence with common object and with intention to cause death of
injured Hariprasad (PW-4) and thereby they are guilty of rioting being
armed with weapons?
( ii) as to whether the appellants have caused injury to
Hariprasad and other five injured with intention to deter or prevent
them from discharging their public duties and deter or prevent them
from discharging their public duties?
13. At the outset, this Court is required to consider the question of
common object. Complainant Irfan (PW-2) narrates in his examination in chief
that when the police officers were busy in the proceedings of investigation with
regard to a fatal accident, the accused persons namely Usman, Jahir, Imran,
Ansar Khan and Bulla with other 12-13 accused persons armed with stick, rode
and farsi assaulted on the police party. Resultantly, head of constable
Hariprasad had been broken. Injured witnesses Hariprasad (PW-4), H.P. Mehra
(PW-5), Durgaprasad, (PW-6), Shashi Bhushan Singh (PW-8) have supported
the prosecution case in some different words. In this regard, the testimony of
these witnesses has not been rebutted in their cross-examination.
14. However, some of the independent witnesses have not supported the
c as e of the prosecution. Nevertheless, the testimony of aforesaid injured
witnesses inspire confidence. Having gone through the testimony of these
witnesses, it is unearthed that all the accused persons came on the place of
incident with intention to create unrest and to cause violence by attacking on the
police officials. They were well armed with stick, hockey, lathis and farsi.
1 5 . In so far as the question of unlawful assembly for making any
common object is concerned, it is contented by learned counsel for the
appellants that gathering of accused persons was not unlawful and they cannot
be convicted for causing riot and also cannot be convicted with the help of
section 149 of IPC. However, it is well settled that the gathering of the assembly
which may lawful on its very inception, may convert into unlawful assembly at
later stage. The enunciation of Full Bench of Hon'ble Apex Court in the case of
Kansiram vs. State of M.P. [(2002) 1 SCC 71] is worth to refer here:-
"An assembly though lawful to begin with may in
the course of events become unlawful.."
16. So far as the submissions of learned counsel for the appellants that
the witness of police have not stated specific overt act of each accused,
actually, as per the statements of the witnesses, the accused persons gathered
altogether and thereafter most of them assaulted on the police party. On this
aspect, it is settled principle that it is not necessary that each and every member
of unlawful assembly must play overt act in commission of offence. In order to
find out whether assembly was unlawful, the role played by an individual with
coupled with using arms carried by members and their behavior prior to during
or after the incident alongwith surrounding circumstances plays significant role.
17. On this aspect, the law laid down by Hon'ble Apex Court in the case
of Kuldeep Yadav vs. State of Bihar [(2011) 5 SCC 324] is as under:
" I t is not the intention of the legislature in
enacting Section 149 to render every member of
unlawful assembly liable to punishment for every
offence committed by one or more of its members. In
order to attract Section 149, it must be shown that the
incriminating act was done to accomplish the
common object of unlawful assembly and it must be
within the knowledge of other members as one likely to
be committed in prosecution of the common object. If
the members of the assembly knew or were aware of
the likelihood of a particular offence being committed
i n prosecution of the common object, they would be
liable for the same under Section 149 IPC"
18. In this way, when the statements of police officials establish the
presence and act of accused persons on the spot, their involvement in the crime
is established. All the accused persons have made thier contribution in the
offence which has been committed by one or more member of unlawful
assembly.
19. Now, coming to the question of veracity and credibility of police
witnesses. Learned counsel for the appellants demurred that no one can be
convicted only on the basis of testimonies of police officers. Learned counsel
for the State has opposed this contention and submitted that when the police
officers are injured witnesses, there is no reason to discard their testimonies.
20. On this aspect, this Court is of the opinion that if the police witnesses
are injured and Hariprasad (PW-4) has received grievous injury, this Court is
bound to rely his testimony especially when the testimony inspires confidence.
In this case, the testimonies of Dr. Ankur Gurde (PW-11), Dr. N.K. Kohil (PW-
12), Dr. Ajay Mehta (PW-18) have supported the factum of injuries on the
person of police party. After examining the testimonies of these doctors, it is
revealed that Hariprasad Dhangar has received fracture in both hands and also
received a head injury which was caused by hard and sharp object. However,
the injuries caused to Ramnarayan, Shashibhushan Singh, Irfan, Durgaprasad
and Hariprasad S/o Nararan Prasad are simple injuries.
21. Learned counsel has remonstrated that there are many contradictions
a n d omission between the testimonies of police officials. Actually, where
gathering of several assailants committed the offence, it is often not possible for
witnesses to describe accurately about the role played by each one of the
assailants in the incident. It is also not possible to remember each and every
blow delivered by assailants over the injured persons. Hence, only on the basis
of minor contradictions arising in testimonies of injured witnesses, their
testimony cannot be wiped out.
22. Further, in this case, as per the aforesaid discussion, it is well
established that all the police officials have supported the prosecution story and
out of 11, five police personnel have received the injuries simple in nature, but
injured Hariprasad has received the injury grievous in nature. The question as to
why the testimony of the police witnesses should be believed in just like other
cases the common witnesses are being relied upon. On this aspect, Hon'ble
Apex court in its judgment pronounced in the case of Ravindra Santaram
Sawant vs. State of Maharashtra [(2002) 5 SCC 604], specifically
enunciated in para no.46 of the judgment that
46. "We are, therefore, satisfied that the evidence
of the police witnesses, who are also the eye witnesses,
some of them injured, is worthy of credence and can be
acted upon. The failure to examine independent
witnesses in the facts and circumstances of this case
w ould not reflect on the veracity of the prosecution
witnesses.."
23. As such, injured police witnesses have also the same status as other
common public injured witnesses, hence, they can be relied upon just like other
cases. In this case one police personnel is grievously injured while five have
received simple injury, hence, there is no question to disbelieve their testimony.
It is also well established principle that on the basis of minor contradictions and
omissions, testimony of reliable injured witness cannot be discarded. 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
" t h e 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."
24. 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 hard and sharp objects as well as other 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 Smt. Shakila Abdul Gaffar Khan Vs. Vasant
Raghunath Dhoble reported in (2003) 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
l i a r. 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".
25. This incident had happened on the National Highway and it cannot be
desired that it would be supported by an independent person because it is out
of reach from any independent person and if that be so, the person who is
travelling through the Highway or any other road, in normal tendency of a
person, every one used to avoid to the investigating procedure and apart that
the person shall prefer to complete his journey by avoiding such happening.
26. Since there is no convincing evidence to discard the testimony of
grievously injured Hariprasad (PW-4), his sole testimony which is backed by
instant FIR and medical reports is sufficient to evince the prosecution case.
27. 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.
28. 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 appellants have caused injury
to the injured/complainants. Nevertheless, the testimony of witnesses regarding
causing injury by iron rode and other has not been controverted in their cross-
examination. However, it is envisaged that the accused who is already expired,
has caused the grievous injury to Hariprasad, caused only one injury and this
statement has not been rebutted regarding single blow.
29. In the MLC report, the nature of injury has been examined and as per
the MLC and statement of Dr. Ankur Garde (PW-11) as per which, there is
deep cut on vertex (middle of head) and blood was oozing out, the injured has
also received an injury of 6X1 dimensions. Further, as per the statement of Dr.
Ajay Mehta (PW-18), the injury caused on head of the injured may be
dangerous to life in case of non-treatment. In this regard, the provisions of
Section 320 of IPC is required to be referred to, which reads as under:-
30. 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."
31. The 8th point of the aforesaid provision defines that 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.. That
apart, since, Dr. Ajay Mehta (PW-18) has explicitly elucidated and opined vide
Ex.P/47 that the injury was dangerous to life, hence, the findings of learned trial
Court regarding grievous injury, is found infallible and intact. However, so far
as the injuries of Shashibhusan, Durgaprasad, Hariprasad mehra,
Ramnarayan and Irfam Ahmend Khan are concerned, they have received
the simple injuries.
3 2 . Now, the question is as to whether the injury was caused with
intention or knowledge to kill the injured Hariprasad. 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.
33. 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.
34. 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 any injured would be killed by any injury. Undisputedly, this is a
case of single blow over vital part i.e. head of the injured and the prosecution
has also not setup that the said injuries are sufficient to cause death in the
ordinary course of nature of any injured. 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 was 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
b y 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 the 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."
35. 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."
36. 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 is 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."
37. 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.
38. Having gone through the record and medical reports including the
statements of witnesses, this is crystal clear that the injured Hariprashad has
received only one injury on head 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 appellants have caused grievous injury by assaulting him.
39. 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 appellants are liable to be convicted under Section
326/149 of IPC.
40. So far as the conviction and sentence awarded to the appellants is
concerned under Section 148 of IPC is concerned, during the course of
incident, the appellants were armed with deadly weapons and they assaulted on
the police party while the police officials were discharging their duties, hence,
the findings of learned trial court regarding conviction of the appellants under
Section 148 of IPC does not warrant any interference and the same is hereby
affirmed.
41. Now, turning to the question that where the appellant caused the
injuries to the police officials with intention to deter or prevent them from
discharging their public duties is concerned, having gone through the whole
testimony of the witnesses, it is evidently established that the appellants have
knowingly caused the injuries to the police officials, but also they have caused
these injuries to prevent or deter them for performing their official duties. Since
the appellants have caused simple injuries, five police officials, all the accused
persons would be liable to be convicted under Section 332 (five counts) read
with section 149 of IPC. So far as the injuries caused to Hariprasad is
concerned, since the appellants are liable to be convicted under Section 326/149
of IPC and they cannot be convicted under Section 333/149 of IPC because
none can be convicted twice for a single criminal act. It is undisputed that the
offence under Section 326 of IPC is more heinous than the offence under
Section 333 of IPC as the maximum punishment under Section 326 of IPC is of
life imprisonment and the punishment under Section 333 of IPC is only may be
extended for 10 years. Hence, it would be apposite to convict the appellants for
the offence punishable under Section 326 of IPC read with Section 149 of IPC
instaed of under Section 333/149 of IPC. Under these conditions, the impugned
judgment regarding conviction and sentence of the appellants under Section
333/149 of IPC is hereby liable to be set aside.
42. Now, turning to the point of sentence, I have considered the fact that
the said incident of offence has happened in the year 2014 i.e. 10 years ago. No
criminal antecedent for consideration has been suggested by the prosecution
against the appellants and they are already suffering the jail sentence since more
than one year and two months. Nevertheless, looking to their conduct and
accusation, the appellants cannot scot-free from justice and only symbolic or
nominal punishment of undergone period, such punishment for those persons
who have dare to assault the police party would result into miscarriage of
justice.
43. On this aspect, the view of Hon'ble Supreme Court in the case of
Jaswinder Singh (dead) through legal representative Vs. Navjot Singh
and others reported in AIR (2022) SC 2481 Para No. 26, 27 and 28 are
reproduced below :-
2 6 . An important aspect to be kept in mind is that
any undue sympathy to impose inadequate sentence would
do more harm to justice system and undermine the public
confidence in the efficacy of law. The society can not long
endure under serious threats and if the courts do not protect
the injured, the injured would then resort to private
vengeance and, therefore, it is the duty of every court to
award proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed. It has, thus, been observed that the punishment
to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and
brutality withwhich the crime has been perpetrated.
2 7 . A three Judges Bench of this Court in State of
Karnataka v. Krishnappa while discussing the purpose of
imposition of adequate sentence opined in para 18 that
".....Protection of society and deterring the criminal is the
avowed object of law and that is required to be achieved by
imposing an appropriate sentence." Sumer Singh v.
Surajbhan Singh (2014) 7 SCC 323.
2 8 . The sentencing philosophy for an offence has a
social goal that the sentence has to be based on the principle
that the accused must realise that the crime committed by
him has not only created a dent in his life but also a
concavity in the social fabric. While opportunity to reform
has to be kept in mind, the principle of pr0oportionality
also has to be equally kept in mind."
44. Hence, after considering the whole aspect of the case so also the fact
that the appellants have caused riot and created unrest and deter the public
servants from discharging their duties and also caused grievous injuries to the
injured by heard and sharp object, this Court is not inclined to let off the
appellants only with period of already undergone. As such, I am of the
considered view that the punishment for 03 years R.I. under Section 326/149 of
IPC alongwith fine of Rs.10000/- for each accused would be condign to meet
the ends of justice.
45. In the result, all the appeals are partly allowed and disposed off and
the acquittal, conviction and sentence imposed upon the appellants shall be as
under:
(i) All the appellants are acquitted from the
charges under Section 333/149 of IPC and 307/149
of IPC and in lieu thereof they are convicted under
Section 326/149 of IPC and sentenced to undergo 03
years R.I. with fine of Rs.10,000/- each and in default
o f payment of fine further undergo for six months
S.I.
(ii) The conviction and sentence of the appellants
under Section 332/149 (five counts) with fine of Rs.2000/-
each for each counts stands affirmed. Default stipulation
under this section shall remain intact. For further
clarifications, each appellant shall deposit fine of
Rs.10000/- (for total five counts).
(iii) The conviction and sentence of the appellants
under Section 148 of IPC with fine of Rs.2000/- each
also stands affirmed. Default stipulation under these
sections shall remain intact.
46. The appellants are in jail. They shall be released from the jail after
completion of the aforesaid sentence of three years subject to deposit the entire
fine amount.
47. The sentence of the appellants shall run concurrently.
48. If the fine amount is recovered completely, Rs.25000/- shall be
paid to the injured Hariprasad Dhangar S/o Rodeji and Rs.10000/- each
be paid to other injured persons namely Ramnarayan, Shashibhushan
Singh, Irfan Ahmad, Durgaprasad and Hariprasad S/o Narayan Prasad.
The fine as well as compensation amount, if already paid to the injured
shall be adjusted.
49 The judgment regarding disposal of the seized property stands
confirmed.
50. A copy of this order alongwith the record of the trial Court, be sent
to the learned trial Court for information and necessary compliance.
51. Pending application, if any stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
