Madhya Pradesh High Court
Mohan vs The State Of Madhya Pradesh on 31 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. 2405 of 2024
BETWEEN:-
1. MOHAN S/O RATANLAL BALAI, AGED ABOUT 27
YEARS, OCCUPATION: LABOUR G BLOCK, TAPRI NO.
319, BIRLAGRAM TEHSIL NAGDA (MADHYA PRADESH)
2 . ROHIT S/O RATANLAL BALAI, AGED ABOUT 24
YEARS, OCCUPATION: LABOUR G BLOCK, TAPRI NO.
319, BIRLAGRAM TEHSIL NAGDA DIST. UJJAIN
(MADHYA PRADESH)
3.DURGESH S/O RATANLAL BALAI, AGED ABOUT 21
YEARS, OCCUPATION: DRIVER G BLOCK, TAPRI NO.
319, BIRLAGRAM TEHSIL NAGDA DIST. UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI R.R. BHATNAGAR, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH P.S. BIRLAGRAM
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJESH JOSHI, GA FOR STATE )
Reserved on: 10.04.2024
Delivered on: 31.05.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being aggrieved by the judgment dated 03.02.2024, passed by
Additional Sessions Judge, Nagda District Ujjain in S.T. No.05/2023, whereby
the appellants have been convicted for the offence punishable under Sections
326/34, 324/34 of IPC and Section 25(1-B)(b) of Arms Act, 1959 for causing
grievous injury to injured Rakesh Malviya and sentenced to undergo 07 years, 2
years and 2 years R.I with fine of Rs.100/- Rs.100/- and Rs.100/-, each with
default stipulations.
2. As per the prosecution story, on 19.12.2022 at about 9.30 pm when
complainant and his friend / neighbour Rakesh Malviya was sitting in front of
his house along with his other friends Sunil Rathore and Manohar, the main
accused Ratanlal along with the present appellants came to the spot and hurled
abuses upon Rakesh Malviya on account of previous dispute regarding
repayment of loan amount availed by Rakesh Malviya. Thereafter applicant
Mohan armed with sword, Rohit armed with axe and Durgesh armed with knife
assaulted Rakesh due to which he sustained injuries on his head, shoulder, neck
and on his right hand and started bleeding. When Sunil and Manohar came in
rescue then applicant's father Ratanlal assaulted them with latti due to which
Lalagiri got injuries on his right hand and on his beard and Sunil got injuries on
his left leg and back, Manohar got injuries on his hand and mouth. Further
allegation is that the accused persons also threatened to kill Rajesh if he did not
return Rs.1000/-. Rakesh Malviya was admitted in civil hospital, Nagda and
thereafter he has been referred to Ujjain. Complainant Lalagiri and Sunil came to
file complaint. On the basis of which FIR bearing crime No.464/2022 was filed
at Police Station against the accused persons for offence under Section 324,
323, 294, 506/34 of IPC. Thereafter Police started investigating the matter.
3 . During investigation, spot map was prepared. Injured persons were
hospitalized for treatment, statement of the witnesses were recorded and as per
their statement seizure were made. As injured Rakesh Malviya sustained
grievous injuries , hence, the offence under Section 326 of IPC was added later
on. The charge-sheet was filed before the Sessions Court.
4. The appellants abjured their guilt and they took a plea that they are
innocent and prays for trial.
5 . After analyzing the prosecution evidence and considering the rival
submissions, the Trial Court has convicted the appellants under Sections
326/34, 324/34 of IPC and Section 25(1-B)(b) of Arms Act, 1959 for causing
grievous injury to injured Rakesh Malviya and acquitted the appellants as well as
co-accused Ratanalal also for causing injuries to the injured Manohar, Sunil and
Rakesh Malviya.
6. Learned counsel for the appellants submits that the learned trial Court
has convicted the appellants under Section 326 of IPC and sentenced for 07
years R.I., but looking to the factum that the injuries caused to the injured were
only grievous and not dangerous to life, the case of the prosecution should not
travel more than the offence under Section 323/325 of IPC. Hence, prays for
reduction of the sentence to the period already undergone or as the Court may
deem fit in the interest of justice.
7. Further, in alternate, on the point of sentence only he submits that
since the appellant has already undergone approximately one year and four
m onths in jail incarceration, their sentence be reduced to the period already
undergone. It is further submitted that this appeal be partly allowed and the
sentence awarded to the appellant be reduced to the period already undergone
by enhancing the fine amount or as the Court deems fit.
8. Learned counsel for the State on the other hand supports the
impugned judgment and prays for dismissal of this appeal. It is submitted that
the learned trial court has passed the impugned order after considering each and
every aspect of the case and convicted the appellants rightly.
9. In the backdrop of the rival submissions, the point for consideration is
as to whether the findings of learned trial Court regarding conviction and
sentence of the appellants for the aforesaid offences is correct in the eyes of
law and facts.
10. At the outset, this Court has to consider the sanctity of conviction
under Section 326 read with Section 34 and Section 324 read with Section 34 of
IPC. On this aspect, the witness Lala Giri (PW-1) who is also the complainant
in this case, Manohar (PW-2) and Sunil (PW-3) have been adduced in the
evidence. However, they have not supported the case of prosecution. The FIR
was lodged at the behest of Lala Giri (PW-1), instead of that, this witness has
not supported the case of the prosecution. Likewise, Manohar (PW-2) and
Sunil (PW-3) are injured in the said incident, but even then they have also not
supported the prosecution story regarding their injuries. In the result thereof, the
learned trial Court has acquitted the appellants from the offence under Section
323/34 of IPC. Since, no appeal has been filed by the prosecution, the said
acquittal cannot be questioned here.
11. Further, Rakesh Malviya (PW-4) is actually the star witness of this
case and he has clearly narrated in his examination in chief that that accused
Mohan, Durgesh and Rohit have caused injury on his body and accused Mohan
assaulted on his hand with sword, Durgesh assaulted on his head with knife and
Rohit assaulted on his head with Dhariya. Further, he has stated that on his
screaming, Lala Giri, Manohar and Sunil came to intervene, but the appellants
have also assaulted on them also. Since, Lala Giri (PW-1), Manohar (PW-2)
and Sunil (PW-3) have not supported the case of the prosecution, hence, their
statements need not to be ruminated.
1 2 . So far as the statement of injured Rakesh Malviya (PW-4) is
concerned, his statements have not been rebutted in his cross-examination in
a n y way. Although he has admitted that he used to drink liquor, but this
statement, cannot create any doubt. That apart, the statement of Rakesh
Malviya has also been supported by Dr. Sanjay Rana (PW-6) and Dr. Bharti
Joshi (PW-8). Both the doctors have supported the injury on the person of
injured Rakesh Malviya.
1 3 . As far as the importance of testimony of injured witness 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."
14. Similarly, Hon'ble Supreme Court in the case of Chandrashekar Vs.
State of Tamilnadu reported in (2017) 13 SCC 585, endorsing another case
of the Supreme Court, viewed as under :-
"1 0 . Criminal jurisprudence attaches great weightage to the
evidence of a person injured in the same occurrence as it presumes that
he was speaking the truth unless shown otherwise. Though the law is
well settled and precedents abound, reference may usefully be made to
Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 observing as
follows:
"2 8 . Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes with an
in-built 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."
15. In view of the aforesaid, the statement of injured Rakesh Malviya
which have been supported by both witnesses Dr. Sanjay Rana (PW-6) and Dr.
Bharti Joshi (PW-8) and FIR lodged by another witnesses as well as the witness
who has scribed the FIR Manna Singh Kushwah inspires confidence.
Therefore, the finding of learned trial Court believing the testimony of Rakesh
Malviya, Dr. Sanjay Rana (PW-6) and Dr. Bharti Joshi (PW-8) and Manna
Singh Kushwah (PW-5) cannot be discarded.
16. In this way, the finding of learned trail Court to the effect that the
appellants have caused grievous injury to the injured by using sharp object is
warranting no interference. However, here, the legal question arose as to
whether the applicants can be convicted for both the offenes punishable under
Section 324/34 and 326/34 of IPC, in this regard, the provisions of Section 71
of IPC is condign to quote here:
"Section 71. Limit of punishment of offence made up of
several offences. Where anything which is an offence is made up of
parts, any of which parts is itself an offence, the offender shall not be
punished with the punishment of more than one of such his offences,
unless it be so expressly provided.
Where anything is an offence falling within two or more
separate definitions of any law in force for the time being by which
offences are defined or punished, or
where several acts, of which one or more than one would by
itself or themselves constitute an offence, constitute, when
combined, a different offence,
t h e offender shall not be punished with a more severe
punishment than the Court which tries him could award for any
one of such offences].
17. In view of the aforesaid provisions, an example is required to be
illustrated here. It can be supposed that in a case, ABC & D are four accused
person and they have caused injuries to an injured 'S'. "A" caused simple injury
t o 'S', "B" caused fracture and "C" has caused a grievous injury by sharp
weapon and "D" caused fatal injury and owing to the said fatal injury caused by
"D", the injured 'S' succumbed. All accused persons ABC & D have caused
the said injures with a common intention. Now, the question is as to whether all
accused persons can be convicted under Section 323/34, 325/34, 326/34 and
302/34 of IPC. In view of the provision of Section 71 of IPC, all the accused
persons ABC & D can only be convicted under Section 302/34 of IPC.
18. In view of the aforesaid analogy, in the case at hand, the appellants
cannot be convicted for the offence punishable under Section 324/34 of IPC by
the learned trial Court in furtherance for causing injuries with common intention
and the appellants can only be convicted under Section 326/34 of IPC for
causing grievous hurt by sharp weapon t o only one injured namely Rakesh
Malviya. Hence, in furtherance of common intention, the conviction and
sentence of the appellants under Section 324/34 of IPC is liable to be and is
hereby set aside.
19. Now, turning on the point of conviction under section 25 (1-B)(b) of
the Arms Act, the testimonies of aforesaid all witnesses have not been shaken in
their cross-examination and they have stuck with their examination-in-chief.
Certainly, Manohar (PW-2) and Sunil (PW-3) have not supported memorandum
statement Ex.P/13 to Ex.P/15 and Seizure memo Ex.P/16 to Ex.P/18 but only
because of this, the testimonies of police personnel cannot be disbelieved.
Virtually, the Investigating Officer Hirendra Pratap Singh (PW-7) has explicitly
supported the seizure of weapons i.e. sword from Mohan, Dhariya from
Durgesh and Knife from accused Rohit and he has also supported the
memorandum statements of the witnesses.
20. On this aspect, it is by now well settled that the testimony of police
witnesses regarding disclosure statement and seizure memo could not be
discarded only because they are not supported by independent witnesses. In
this regard the following ratio laid down by Hon'ble Supreme Court rendered in
Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311 , is
propitious to produce here:-
"8.........The testimony of police personnel should be
treated in the same manner as testimony of any other
witness and there is no principle of law that without
corroboration by independent witnesses their testimony
can not be relied upon. The presumption that a person
acts honestly applies as much in favour of police
personnel as of other persons and it is not a proper
judicial approach to distrust and suspect them without
good grounds........"
21. In a recent full bench decision of Hon'ble Apex Court rendered in
Rizwan Khan v. State of Chhatisgarh, dated 10.09.2020 reported as
[(2020) 9 SCC 627], 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."
22. In another recent decision of Hon'ble Supreme Court rendered in
Surinder Kumar v. State of Punjab, 2020(2) SCC 563, while considering
somewhat similar situation, it was observed that "The evidence of official
witnesses cannot be distrusted and disbelieved, merely on account of their
official status."
23. In upshot of the aforesaid settled propositions of law, the statement
o f investigating officer Hirendra Pratap Singh (PW-7) can be believed even
when it is not supported by independent witnesses. Here, it is also worth to
mention that the prosecution has successfully proved the facts that these
appellants have caused injuries on the person of injured by sharp edge weapons
i.e. sword, knife and dhariya. This circumstance would be taken into account
for believing the statement of sole police witness i.e. investigating
officer Hirendra Pratap Singh (PW-7). Hence, the conviction and sentence of
the appellants under Sections 25(1-B) (b) of the Arms Act is liable to be
affirmed.
24. With regard to the sentence of appellants under Section 326/34 of
IPC, it emerges from the face of record that the appellants are facing the trial
since 2022 and they have completed more than one year of their jail sentence.
No criminal antecedents of the appellants have been suggested by the
prosecution. Under these circumstances, this Court finds it condign that the jail
sentence of the appellants may be reduced by enhancing the fine amount.
Accordingly, in the interest of justice, this Court finds it expedient to partly
allow this appeal by affirming the conviction of the appellants by reducing their
sentence to the extent that the appellants shall undergo for 2 years R.I. with
fine of Rs.10000/- each for offence under Section 326/34 of IPC.
25. Accordingly, this criminal appeal is partly allowed and conviction and
sentence under Section 324/34 of IPC is set aside. The conviction under
Section 326/34 of IPC is hereby affirmed and sentence is modified from five
year R.I. to two Years R.I. each with fine of Rs.10000/- each. In case of failure
to deposit the fine amount, the appellants shall further undergo 02 month S.I. In
this sequence, conviction and sentence awarded under Section 25(1-B)(b) of
Arms Act is hereby affirmed. The substantial sentence awarded under Section
326/34 of IPC as well as under Section 25-(1-B)(b) of the Arms Act will run
concurrently and it would be adjusted under Section 428 of Cr.P.C.
26. The appellants shall be released after completing the aforesaid
sentence subject to depositing the fine amount. Their bail bonds shall be
discharged accordingly.
27.The order of learned trial court regarding disposal of the seized
property stands confirmed. Pending application, if any stands closed.
28. A copy of this order be sent to the concerned trial Court for
necessary compliance.
Certified copy, as per Rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
