Babukhan and others vs State of M.P.

S.L. Kochar, J.

The appellants have preferred this appeal against the judgment dated 2-8-1995 rendered by the learned Fourth Addl. Sessions Judge, Ujjain in Sessions Trial No. 446/94, thereby he finding all the three appellants guilty of the offence punishable u/s 307, Indian Penal Code, convicted them accordingly, but sentenced the appellants Ayyub Khan and Lal Khan to suffer imprisonment for life with fine of Rs. 1,000/- and appellant Babukhan to suffer rigorous imprisonment for five years with fine of Rs. 1,000/-. In default of payment of fine, each of the appellants is directed to suffer rigorous imprisonment for three months.

Briefly stated, the prosecution case as unfolded before the trial Court was that on 24-3-1994, in the night at about 8,00 PM, the complainant Munir Khan (PW-3) was returning back to his village in a bus along with his daughters-in-law PW-9 Hussain-Bai, PW-10 Shakila and grand-son Bahadur after meeting his son Ilias who was facing prosecution for commission of murder of Nasir who was the brother of the present appellants Ayyub Khan and Lal Khan. (Babu Khan, father of the present appellants Ayyub Khan and Lal Khan has died during the pendency of this appeal).

When the bus stopped on Ingoria bus-stand, the appellants boarded the bus and when it reached at Rasoolabad bus-stop, the appellants and Babu Khan dragged the complainant Munir Khan (PW-3) towards the door of the bus. Munir Khan shouted on which, the driver of the bus stopped it. Thereafter, the appellants dragged Munir Khan out of the bus and assaulted him by knife. The incident was witnessed by Hussain Bai, Shakila, Bahadur, driver and conductor of the bus and other independent witnesses. When the appellants were in the process of assaulting Munir Khan, a truck came there from backside and when its head light was focussed at the appellants, they fled away from there. The injured Munir Khan (PW-3) was brought in the same bus at Police Station Barnagar where he lodged the Report (Ex. P/3). On the basis of this report, police registered the offence u/s 307 read with section 34 of the Indian Penal Code and after necessary investigation, filed the charge-sheet against the appellants and their father Babu Khan.

Learned Trial Court framed the charges under sections 307 and 307/34 Indian Penal Code against the appellants. They denied the charges. According to them, they were falsely implicated because of enmity. The prosecution has examined as many as 12 witnesses in its favour while the appellants did not examine any witness in their defence. The learned trial Court, after trial, finding the appellants guilty of the offence, convicted and sentenced them as indicated above.

We have heard Shri Ahsan Siddiqui with Shri lqubal Ahmed Advocates for the appellants and Shri Girish Desai, learned Dy. Advocate General appearing for the State and perused the entire record thoroughly and cautiously.

The contention of the learned counsel, for the appellants is that the prosecution case has not been supported by the independent witnesses. Therefore, the injured PW-9 Munir Khan, his daughter-in-law PW-9 Hussainbai should not have been relied upon by the trial Court in absence of corroboration by material particulars. They also questioned about falling of the act of the appellants u/s 307, Indian Penal Code. According to them, the injuries found on the person of the complainant Munir Khan (PW-3) were simple in nature and there was no damage to any vital organ of the body. They submitted that the offence at the most would fall within the ambit of section 324 of the Indian Penal Code.

As against the submission of the learned counsel for the appellants, Shri. Desai, learned Dy. Advocate General supported the judgment of conviction. According to him, the appellants were having previous enmity because of committing murder of Nasir, brother of the appellants, by the sons of complainant Munir Khan (PW-3). They had also used deadly weapon like knife and tried their level best to finish Munir Khan (PW-3), but fortunately he was survived because of intervening factor i.e. arrival of a truck on the spot.

The conviction of the appellants is based on the statements of injured Munir Khan (PW-3) and eye-witness PW-9 Hussain Bai. Both these witnesses have named the appellants and their father Babu Khan. They also have stated about use of knife by all the three accused persons for causing as many as 19 injuries to Munir Khan. We have carefully gone through the entire statements of Munir Khan (PW-3) and Hussain Bai (PW-9) and find absolutely nothing to discard their testimony. Munir Khan is an injured witness and he would not implicate innocent persons than the real assailants for his injuries. Same logic would be applied in the case of PW-9 Hussain Bano who is the daughter-in-law of Munir Khan, Both of them would be interested to bring before the Court of law the real assailant. This is true that so many persons were present in the bus and the prosecution has also examined some of them including the driver PW-4 Razzaq, conductor of the bus PW-7 Bhupendra Kumar Jain and they have not supported the prosecution case. It is obvious that between the two rival groups, who were having bad-blood and one of the groups was facing murder trial, the independant witnesses might not have liked to be involved themselves. Munir Khan was immediately taken to the Police Station in the same bus and he lodged the First Information Report vide Ex.P/3. This report also substantially corroborates the version of injured Munirkhan (PW-3). The statements of injured Munir Khan (PW-3) and Hussain Bano (PW-9) are also corroborated by the evidence of PW-5 Dr M.K. Pancholi who noticed 19 injuries on the person of Munir Khan and according to his opinion, if immediately the injured Munir Khan would not have received medical aid, he would have died.

PW-6 Dr. L.N. Gurjar has answered the querry about the nature of the injuries and opined that all the injuries were grievous and dangerous to life. He has given this opinion on the basis of perusal of Bed Head Ticket of Munir Khan. Learned counsel for the appellants has challenged the opinion and statement of this witness on the ground that this witness had not treated the injured Munir Khan and also did not see his injuries. He, therefore, submitted that the opinion of this witness cannot be acted upon. We do not find any substance in this argument because, apart from the querry-report (Ex.P/6), this doctor has stated on oath before the trial Court that all the injuries were grievous in nature as well as dangerous to life. In his cross-examination, he has deposed that all the injuries were dangerous to life and this opinion was given by him after perusing the Bed Head Ticket in the Court. Therefore, his statement in the Court is duly admissible in evidence.

We are not impressed by the arguments of the learned counsel for the appellants that the offence would not fall within the purview of section 307 of the Indian Penal Code. Learned counsel has based this argument on the medical evidence which is not establishing that the injuries were sufficient in the ordinary course of nature to cause death.

The Supreme Court in the judgment of Sarju Prasad Vs. State of Bihar, and Nagpur High Court in AIR 1943 145 (Nagpur) , held that "the only nature of injury is not a decisive factor for taking the act of the accused out of the purview of section 307, Indian Penal Code. The prosecution must establish that the intention of the accused was one of three kinds mentioned in section 300 and the state of mind of the accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance." In the present case, the appellants were having motive for committing murder of injured PW-3 Munir because of having committed murder of the brother of appellants Ayyub Khan and Lalkhan and son of Babukhan viz, Nasir by Ilias who was facing prosecution u/s 302 of the Indian Penal Code. The appellants and co-accused Babukhan used deadly weapon like knife and caused as many as 19 injuries, out of which most of them were on the vital parts of the body. The injured Munir could be saved because of arrival of a truck because of which the appellants left the injured on the road and ran away. The injured was immediately taken to the hospital where he was treated and survived. So all the surrounding circumstances as well as the direct evidence on record go to establish that the appellants were having intention to commit murder of injured PW-3 Munir Khan, but he was saved because of intervening factors. We find the evidence sufficient to establish with certainty about existence of requisite intention of the appellants and if injured Munir would have died, the appellants would have been guilty of offence of commission of murder.

Thus, we find no infirmity in the judgment and finding of the trial Court holding the appellants guilty of the offence u/s 307 of the Indian Penal Code and in the alternative u/s 307 read with section 34 of the Indian Penal Code.

As regards the sentence, the contention of the learned counsel for the appellants is that the appellants are the first offenders. Out of three appellants, Babukhan has already expired and his appeal stood abated. The remaining two appellants are the married persons and now both of them are aged about 35 to 37 years. Their family members are depending on them. Therefore, harsh sentence would cause untold difficulty to the appellants as well as to their family members. On the other hand, learned counsel appearing for the State relied on the recent judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Ghanshyam Singh, and submitted that the sentence must commensurate with the act of the accused and by showing leniency in the matter of sentence, the Courts of law should not do the mockery of justice. Having weighed the arguments as advanced by both the parties, we are of the opinion that in the facts and circumstances of the present case, the sentence of imprisonment for life would be a harsh one, but at the same time, the appellants must be punished adequately. Therefore, we feel that the ends of justice would be met by convicting the appellants u/s 307 of the Indian Penal Code and sentencing them each to undergo rigorous imprisonment for five years and to pay a fine of Rs. 25,000/- each. In default of payment of fine they shall suffer additional R.I. for three years.

As a result of the discussion as aforesaid, this appeal stands allowed in part. Though the conviction of the appellants for the offence u/s 307, Indian Penal Code is maintained, but, they are sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 25,000/- each. In default of payment of fine, each of them shall suffer additional R.I. for three years. Out of the amount of fine, so realised or recovered, Rs. 20,000/- shall be paid as compensation to the injured, Munir, if he is alive or if he is no more, the same would be paid to his legal heirs.

The appellants Ayyub Khan and Lal Khan through their counsel are directed to appear before the trial Court immediately within seven days from today to appear before the trial Court where they shall surrender to their bail bonds and shall be committed to custody for serving out the remaining period of sentence as indicated hereinabove. A copy of this judgment along with the record shall be transmitted immediately to that Court for strict compliance with the direction of this Court.