Madhya Pradesh High Court
Babulal @ Rambabu vs The State Of Madhya Pradesh on 22 May, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:13687
1 CRA-8768-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 8768 of 2024
BABULAL @ RAMBABU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Abhay Saraswat, counsel for the applicant.
Shri Virendra Khadav, counsel for the State.
HEARD ON : 21.04.2025
PRONOUNCED ON : 22.05.2025
JUDGMENT
This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being aggrieved by the judgment of conviction and sentence dated
19.07.2024, passed by learned Special Judge (SC/ST[PA] Act), Rajgarh,
District-Bioara in ST No.190/2022, whereby the appellant has been convicted
for the offence punishable under Section 307 of IPC 1860, and 25(1-B)(a) of
the Arms Act sentenced to undergo 7 years and 02 years R.I. with fine of
Rs.5,000/- and Rs.1000/- respectively and usual default stipulations.
2. Brief facts of the case are that the complainant lodged a dehati nalishi
by submitting that on 19.08.2022 at about 2:30PM, when the complainant was
returning after taking treatment on a motorcycle alongwith his nephew
(pillion rider) to his village Rampuriya from Biora Hospital and they reached
under the railway bridge of Parsuliy, the appellant alongwith one other person
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were sitting over the said puliya, at that time, the appellant armed with sword
in his hand came in front of the motorcycle and intercepted them, he abused
the complainant in filthy language and asked as to why the complainant is
keeping the sister of appellant and assaulted on his head, the appellant further
assaulted twice, but the complainant has saved himself by his hand, hence,
received injuries on his both hands. The nephew of the complainant
intervened the incident. Thereafter, the appellant and the co-accused fled
away from the spot by threatening that you are alive today, but he will kill
him in future. Based upon the said dehati nalishi the offence was registered as
0/2022 under Sections 307, 294, 324, 506/34 of IPC and under Section 3(1)
(r), 3(10(s), 3(2)(va), 3(2)(v) of the SC/ST (P.A.) Act. After the investigation,
the said offence was registered bearing Crime No.168/2022 at Police Station
Karanwas, Rajgarh.
3. During the investigation spot map was prepared, the blood stained
cloths were recovered and sent for FSL, statements of the witnesses were recorded
and FIR was registered under Sections 307, 294, 324, 506/34 of IPC and under
Section 3(1)(r), 3(10(s), 3(2)(va), 3(2)(v) of the SC/ST (P.A.) Act . Appellant
was arrested and at his instance one sword was recovered. Seized articles were
sent to forensic lab for analysis. After completion of investigation, charge-sheet
was filed. Thereafter, the learned trial Court has framed charges against the
appellant under Sections 307, 294, 506/34 of IPC and under Section 3(1)(r),
3(10(s), 3(2)(va), 3(2)(v) of the SC/ST (P.A.) Act and under Section 25(1-B)
(a) of the Arms Act. Later on, the matter was committed to the Court of Session.
4. The prosecution on its behalf has examined as many as seven 09
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witnesses namely Dharmendra Solanki (PW-1), Arvind Chouhan (PW-2),
Saitanbai Beldar (PW-3), Mohanlal (PW-4), Rajendra Singh (PW-5), Neha
Gour (PW-6), Rambabu Sondhiya (PW-7), Dr. Vaibhav Maheshari (PW-8)
and Dr. Usha Meena. No witness has been adduced in defence by the
appellant.
5. The learned Trial Court on appreciation of the evidence and
arguments adduced by the parties, finally concluded the case and convicted
the appellant vide the impugned judgment for the commission of the offence
punishable under Section 307 of IPC and under Section 25(1-B)(a) of the
Arms Act and acquitted the appellant from the other charges of IPC and
SC/ST (P.A) Act.
6. Learned counsel for the appellant, being crestfallen by the aforesaid
finding of the Trial Court, submitted that in this case the injuries sustained by the
injured were of simple in nature and no fracture has been found in the person of
the injured. Learned counsel for the appellant submitted that the learned trial
Court has committed grave error of law in not considering the evidence available
on record in its right perspective and also committed the error of law in convicting
the appellant without consider the statements of the witnesses as well as the
medical reports. Dr. Usha Meena (PW-9) has deposed in his cross examination
that no fracture was found in the person of the injured during his medical
examination so also in X-ray examination no fracture was found in the head of the
injured, therefore, the injuries sustained by the injured on hands are of simple in
nature and not dangerous to life. Learned trial Court has completely ignored the
statement of this witnesses and convicted the appellant for offence under Section
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307 of IPC. The omissions and contradictions in the statement of complainant and
other witnesses were not considered by the trial Court, while convicting the
appellant. It is also submitted that the witnesses has no where has deposed that the
appellant has committed any offence with regard to the provisions under SC/ST
(P.A.) Act, therefore, the learned trial Court has rightly acquitted the appellant
from the charges framed against the appellant under the Provisions of SC/ST (P.A)
Act.
7. Further, learned counsel for the appellant submits that since the injured
has not received any injury on vital part of his body, 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 326 of IPC. The appellant has already suffered more than 2
years and 06 months of incarceration out of the seven years.
8. Alternatively, counsel for the appellant has further argued on the point of
sentence also and prays that since the appellant has already undergone more than
02 years and 06 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 2022. 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 and giving compensation amount
to the injured or as the Court may deems fit in the interest of justice.
9. Learned counsel for the respondent/State has opposed the prayer and
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prays for dismissal of the appeal by supporting the impugned judgement by
submitting the learned trial Court has passed the impugned judgment after
considering each and every aspect of the case and after duly appreciating the
evidence available on record. Hence, pays for dismissal of the appeal.
10. 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.
11. In order to evaluate the prosecution evidence, at the outset, the statement
of complainant/Dharmendra Solanki (P.W.1) is required to be ruminated. The
statements of PW-1 with regard to receiving the injuries as well as seizure of
sword (Article A) from the appellant, has not been controverted by the appellant,
hence commission of the offence is established. Further, the statements of PW-1
Dharmendra have duly been corroborated by PW-2 Arvind who is said to be eye-
witness. PW-2 Arvind has specifically stated that after the incident, he himself has
taken the injured to Balaji hospital. The witness has stated that the appellant has
assaulted the injured 3-4 times by sword and his maternal uncle i.e. the injured has
recived injures on his both hands and head as well. Saitanbai Beldar (PW-3)
Mohanlal (PW-4) and Rambabu Sondhiya (PW-7) are only hearsay witnesses
and have declared hostile.
12. So far as the medical testimony is concerned, in this regard, the
statements of PW-8 Dr. Vibhav Maheshwari and PW-9 Dr. Usha Meena are
important to be considered. PW-8 Dr. Maheshwari in his statements stated
that the injured has received a fracture in right hand elbow, a humorous bone
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of the right hand was cut down and a trisafe muscle was also found cutting. It
is also submitted that PW-8 has operated him on 22.08.2022 and he was
discharged on 25.08.2022. PW-8 and PW-9, both have admitted that the
injured has not received any injury on vital part. Apart that PW-9 Dr. Usha
Meena, has also not denied that such injuries can also be received by falling
on sharp edge article.
13. Learned counsel for the appellant has expostulated that the witnesses
PW-2 Arvind is related and interested witnesses, thus on the basis of his
testimonies, the appellant cannot be convicted. Certainly, the witnesses are related
to each other and interested witnesses. 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."
14. 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:
"14. .......... There is no doubt that when a criminal
Court has to appreciate evidence given by witnesses
who are partisan or interested, it has to be 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
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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."
15. As such, the argument regarding interested witnesses also appears to be
feeble argument. So far as the relatedness and interest 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".
16. 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.
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17. 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, Dr. Usha Meena (PW-
9) has conceded in his cross-examination that there is no fracture found in the
medical examination of the injured on his head i.e on vital part. However, PW-8
Dr. Vaibhav Maheshwari has admitted that the X-ray and MLC is not done in
Govt. Hospital and the same is also not the part of record. In this regard, the
provisions of Section 320 of IPC is required to be referred, which reads as under:-
17. 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
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ordinary pursuits."
18. In view of the aforesaid definition, 7th clause would apply in the present
case and since the injuries have been caused by sword which is a sharp edged
weapon, it is established beyond reasonable doubt that the appellant has caused
injuries by sharp edged weapon on the injured, the offence of the case will
certainly come in the purview of 326 of IPC, 1860.
19. 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.
20. 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 injures are inflected, are also taken into account to determine the nature of the
offence. The role of motive is also ought to be taken into consideration.
21. Further, in view of the reports and the nature of the injuries, it cannot be
ascertained that the accused had the intention to murder, or knowledge as to the
fact that the injured would be killed by this injury. Undisputedly, this is a case of
repeated blow, but not on vital part, 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
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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 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 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."
22. 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
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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."
23. Moreover, here it is also pertinent to mention that according to the
prosecution case when the appellant and the another person fled away from the
spot, the appellant had threatened the injured that "you are alive today, but he will
kill him in future". This threat itself frescoes that the appellant has not assaulted
the injured with full intent to kill him. Further, 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
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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."
24. 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.
25. Having gone through the record and medical reports including the
statements of witnesses, it is crystal clear that the injured has received only simple
minor fracture in right hand elbow which was found simple in nature and was not
sufficient to cause death in ordinary course. 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.
26. 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
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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.
27. Apart that, in view of the injury caused by the appellant by sword, from
the perusal of the record, FSL regarding the article -A sword as well as the
corroborating medical testimony, the learned trial Court has however not
committed any error of law in convicting the appellant under Section 25(1-B)(a) of
the Arms Act and sentenced for two years R.I. within fine of Rs.1000/- hence, the
same is hereby upheld.
28. Now, turning to the point of sentence, looking to the fact that the said
incident of offence has happened in the year 2022, the appellant has already
suffered more than 02 years and 09 months, it will be condigned in the interest of
justice to impose the sentence of 3 years R.I with fine of Rs.25,000/-.
29. 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 three years R.I.
with fine of Rs.25,000/- and in default of payment of fine further undergo for three
months S.I. Accordingly, the appeal is partly allowed.
30. The appellant is in jail. The bail bond (if any) of the appellant shall
be discharged after completion of the aforesaid sentence so also after
depositing of the enhanced fine amount. Fine amount, if already deposited,
shall be adjusted. The judgment regarding disposal of the seized property stands
confirmed. Out of the total fine amount, if recovered fully, Rs.20,000/- be paid to
injured- Dharmendra Solanki. The amount of compensation, if any already paid to
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the complainant shall be adjusted.
31. A copy of this order alongwith the record of the trial Court, be sent to the
learned trial Court for information and necessary compliance.
32. Pending I.A., if any, stands closed.
33. With the aforesaid, the present appeal stands partly allowed and disposed
off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
V. JUDGE
AMIT
