Bhuru vs State Of Madhya Pradesh

This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 13.3.1999 passed by 2nd Additional Sessions Judge,

Khargon in S.T. No.188/1994, by which the appellant has been convicted for offence under Section 307 of Cr.P.C. and has been sentenced to

undergo the rigorous imprisonment of 7 years and a fine of Rs.250/-, with default imprisonment.

The order sheets of this Court reveal that the appellant was initially granted bail by order dated 23.6.1999, however, on 10.8.1999, a submission was

made by the counsel for the appellant that as the appellant could not furnish bail, therefore, he is still in jail and, accordingly, the extension was sought

for furnishing bail. However on 6.9.1999, it was stated by the counsel for the appellant that the appellant has not furnished the bail so far and

accordingly, the order dated 23.6.1999 by which the appellant was granted bail, was revoked. It appears that on 7.12.1999 this Court granted bail to

the appellant, although on the said date none had appeared for the appellant. The appellant was directed to appear before the Trial Court, however, the

bail papers are not on record. Thus, it is not clear that whether the appellant had furnished any bail or not. Thereafter, the case was taken up for

hearing on 16.4.2018 but none appeared for the appellant and the case was adjourned and on 2.8.2018 also, none appeared for the appellant and,

therefore, considering the fact that after obtaining the bail order from this Court, the appellant is not appearing and in view of the judgment passed by

the Supreme Court in the case of Surya Baksh Singh Vs. State of Utter Pradesh, reported in (2014) 14 SCC 222, this Court passed a detailed order

and went through the record and heard the Public Prosecutor.

The necessary facts for the disposal of the present appeal in short are that on 11.3.1994 at about 9:00 PM, the complainant Raliya was sleeping on

a cot in his house and at that time, the appellant who is brother of the injured Raliya, came there and scolded as to why he is sleeping there? The

complainant replied that as his son-in-law Sursingh is having meals, therefore, he would take the meals after he completes his food. Thereafter, the

appellant gave a lathi blow on the back of the complainant, as a result of which he stood up. The the appellant thereafter, gave a knife blow on the

chest of the complainant Raliya. The son-in-law of the complainant, namely Sursingh came on the spot, to whom also, the appellant caused an injury

on his left hand. Nephew, wife and daughter of the complainant came on the spot and saved the complainant. Since the complainant did not have any

male issue, therefore, he had made his son-in-law Sursingh as “Gharjamai†and on this issue, the appellant had assaulted him with an intention to

kill. The FIR Ex.P/6 was lodged by the complainant. The injured Raliya and Sursingh were sent for medical examination. A knife, on the disclosure

statement of the appellant, was seized and the police, after concluding the investigation, filed the charge sheet against the appellant for offence under

Sections 307, 324 of IPC.

The Trial Court framed charges under Sections 307 and 324 of IPC.

The appellant abjured his guilt and pleaded not guilty.

The prosecution in order to prove its case, examined Onkar (P.W.1), Champu (P.W.2), Dr. Ajad Kumar Jain (P.W.3), Rajendra Singh Tomar

(P.W.4), Raliya (P.W.5), Sursingh (P.W.6), Banshilal (P.W.7), Kasturibai (P.W.8), Bhangdibai (P.W.9), Dr. G.P. Gupta (P.W.10), Kailash Chandra

(P.W.11), Nana (P.W.12), Bholya (P.W.13) and Rakesh Mohan Shukla (P.W.14).

The appellant did not examine any witness in his defence.

The Trial Court by Judgment dated 13.3.1999 passed in S.T.No.188/1994 acquitted the appellant of offence under Section 324 of IPC and

convicted him for offence under Section 307 of IPC and sentenced him to undergo the rigorous imprisonment of seven years and a fine of Rs.250/-,

with default imprisonment.

As already pointed out that none had appeared for the appellant to argue the matter, therefore grounds raised in the memo of appeal have been

considered. It has been mentioned in the memo of appeal that the complainant Raliya (PW-5) was declared hostile and he is not a reliable witness. At

some places, he had stated that a lathi blow was given to him at the beginning, whereas at some places he has stated that the knife blow was given by

the appellant at the beginning of the incident. It is further mentioned that the Trial Court has committed material illegality by relying upon the evidence

of Banshilal (PW-7) who is not the eyewitness. Similarly, the Trial Court has committed material illegality by relying upon the evidence of Bhangdibai

(PW-9) who is also not the eyewitness. It is further mentioned that the Trial Court has committed material illegality by not considering the evidence of

Sursingh (PW-6) who did not support the prosecution case. It is further mentioned that as the complainant Raliya (PW-5) had remained in hospital

only for a period of 12 days, therefore, it would be clear that the complainant Raliya had suffered a simple injury and thus, the offence committed by

the appellant does not come within the ambit of Section 307 of IPC and hence, the conviction of the appellant for the said offence is bad in the eye of

law.

Per contra, it is submitted by the counsel for the State that Raliya (PW-5) had supported the prosecution case and he was declared hostile for

limited purposes, therefore, his evidence can be relied upon. It is further submitted that in order to make out an offence punishable under Section 307

of IPC, the intention or knowledge on the part of the accused is material which can be inferred from the act of the accused and since in the present

case the appellant had assaulted the injured Raliya (PW-5) by means of a knife on his chest and that too without any provocation, it clearly means that

the intention of the appellant was to kill the injured Raliya (PW-5) and, therefore, a knife injury was caused on the vital part of the injured Raliya (PW-

5). Because of timely intervention by the other witnesses, the appellant could not repeat his blow and accordingly, the Trial Court did not commit any

mistake in convicting the appellant for offence punishable under Section 307 of IPC.

Heard the learned counsel for the State.

Onkar (P.W.1), Champu (P.W.2), Sursingh (P.W.6), Kasturibai (P.W.8), Nana (P.W.12) and Bholya (P.W.13) have not supported the

prosecution case and they were declared hostile.

Raliya (PW-5) is the injured who has stated that the appellant is his brother and it was 10:00 in the night and he was sleeping in his house and his

daughter Bhangdibai, son-in-law Sursingh, Banasya etc. were in the house. The appellant gave a lathi blow on his leg, as a result of which he stood up

but he did not know as to why he was assaulted. The appellant, thereafter, caused an injury by means of a knife on his chest, as a result of which he

fell unconscious. A note has also been appended by the Trial Court “an old injury mark†was shown by this witness. It is further stated by this

witness that Banasya, Sursingh and Bhangdibai had intervened in the matter, otherwise he would have been killed. Apart from him, no other person

had sustained any injury. The cause of assault is also not known to this witness. This witness has further stated that they are only two brothers and the

FIR was lodged by his son as this witness was unconscious. He has remained in hospital for eight days. He further stated that his clothes had got

sustained with the blood. He further admitted that the FIR Ex.P/6 contains his signatures. As this witness had initially stated that the FIR was lodged

by his son, therefore, he was declared hostile on this limited issue and he was cross-examined by the Public Prosecutor and in his cross-examination,

he admitted that the FIR was lodged by him. He also admitted that the appellant came there and enquired as to why the injured is sleeping and in

reply, the injured has informed that as his son-in-law is eating food, therefore, he would take his meals thereafter. He further admitted that when his

son-in-law Sursingh tried to intervene, then he too was assaulted by the appellant causing injury on his hand. He further stated that Kasturibai came

after the incident. He further admitted that Sursingh is residing in the house as “Gharjamaiâ€, therefore, the appellant had a grievance. This witness

was cross-examined and in cross-examination, it is admitted by this witness that the appellant was under the influence of alcohol but he denied that he

had sustained the injuries due to fall. Although he has admitted that he had not seen the knife in the hand of the accused and he had also not seen the

appellant causing injury because it was the dark night and only when he sustained the injury, then he realized that he had sustained a knife injury. He

was told by his daughter and his son-in-law that he has sustained the knife injury. This witness has also stated that in fact, he had sustained the knife

injury. In further cross-examination, he has stated that although he fell unconscious but he had already lodged the FIR as he fell unconscious only

during the treatment. Initially, he went to the police station and thereafter, he was sent to the hospital.

Sursingh (PW-6) has stated that his father-in-law was outside the house and he was having his meals and at that time, he was informed by his

wife that the complainant has been assaulted by knife. However, he admitted that he had not seen the actual incident of assault, but he had seen the

injury in the chest of Raliya and the blood was oozing out and at that time, nobody was present near his father-in-law. He was informed by his father-

in-law that the appellant has caused the knife injury. He was informed by Banshilal that he had intervened in the matter and has caught the appellant.

It was further stated by him that he was not assaulted by anybody but he had received a minor injury. This witness was declared hostile, but in the

cross-examination, he denied the suggestion that he had seen the incident.

Banshilal (PW-7) has stated that it was about 8:00 to 9:00 in the night. He and Sursingh (PW-6) were having meals in the house of the

complainant Raliya. Bhangdibai was also in the house, when they were having their meals. His maternal uncle (complainant) shouted that he has been

assaulted by the appellant. Thereafter, this witness intervened in the matter and the appellant was having a knife and the injured Raliya had sustained

an injury on his chest from where the blood was oozing out. He, Sursingh and Bhangdibai intervened in the matter, however, this witness could not say

as to why the appellant had caused the injury to the injured Raliya.

Bhangdibai (PW-9) had initially stated that her father was sleeping outside the house and the witnesses were having their meals. At that time,

there was some dispute between both the brothers. Thereafter, she saw her father lying and there was nobody near her father. After hearing his

shouts, the witnesses came out and saw an injury on the chest of her father but she had not seen anybody causing injury to the injured. As this witness

had not supported the prosecution case, therefore, she was declared hostile and she was cross-examined and in her cross-examination by the Public

Prosecutor, she admitted that initially the appellant gave a lathi blow on the back of the injured Raliya and thereafter, gave a knife blow on his chest.

She further admitted that she, Banshilal and Sursingh had tried to intervene in the matter and thereafter, Onkar and her mother also came on the spot.

She further admitted that Banshilal (PW-7) and Sursingh (PW-6) had caught the appellant along with the knife. This witness was cross-examined and

in cross-examination, she once again stated that the relationship between both the brothers was cordial and no incident had taken place in her

presence.

Dr. Ajad Kumar Jain (PW-3) has stated that on 12.3.1994 he was posted in the Primary Health Centre on the post of Assistant Surgeon and at

about 2:00 AM in the night, the injured Raliya was brought by Police Constable No.1030 and on his medical examination, he found the following injury

on the body of the injured Raliya (PW-5):-

“One stab wound cylindrical shape vertical on right chest near right nipple, 3 cm lateral to sternum. bleeding profusely. 7x2 cms x deep into chest

cavity. The condition of the injured Raliya was serious and the injury was caused within six hours of the MLC and the MLC report is Ex.P/3.â€​

The police had raised a query which was received by him and his query report is Ex.P/4 and he had mentioned that death of the injured was

possible in case he had not received the medical assistance.

Dr. G.P. Gupta (PW-10) has stated that on 12.3.1994 he was posted as Assistant Surgeon in District Hospital, Khargon and on that date, the

injured Raliya was admitted as he was referred by the PHC Oon and he was discharged on 24.3.1994. Thus, from the appreciation of evidence of Dr.

Ajad Kumar Jain (PW-3) and Dr. G.P. Gupta (PW-10), it is clear that the injured had sustained a knife injury on his chest.

Raliya (PW-5) is the person who had sustained the injury. In the examination-in-chief, he has stated that the knife injury was caused by the

appellant, but in cross-examination he has stated that as it was a dark night, therefore, he could not notice the knife in the hand of the appellant as well

as he did not see the appellant actually causing the injury. However, he realized only after sustaining the injury that he has sustained the injury.

The moot question for determination would be that whether the above-mentioned admission of the injured Raliya would give any dent to the

evidence of injured Raliya (PW-5) or not ?

Injured Raliya (PW-5), in his examination-in-chief, has specifically stated that he was sleeping out of his house when the appellant came there and

gave a lathi blow. When the injured Railya (PW-5) stood up, a knife blow was given by the appellant. Thus, it is clear that the injured Raliya (PW-5)

has not stated about the presence of any other person except the appellant on the spot at the time when he sustained the knife injury.

So far as the identification of the appellant is concerned, the incident took place in a village and the injured Raliya (PW-5) is also a villager and it

might be a dark night, but if the assailant is seen from a close range, then it cannot be said that the injured would not be able to identify the assailant.

The Supreme Court in the case of Jit Singh vs. State of Punjab, reported in (1976) 2 SCC 836 has held as under:-

''24. For the above reasons, we hold in agreement with the High Court, that the shortest distances from which Baldev Singh and Nahar Singh saw the

occurrence were about 2 karams (10 ft), 7 karams (35 ft) respectively, while Mukhtiar was within 25 ft. of the spot when the final blow was given by

the assailant. From such short distances the witnesses could unmistakably identify the assailant who was fully known to them and was their co-

villager, even in moonlight.''

Thus it is clear that the identification of the appellant by the injured Raliya specifically when he had seen him from a close range and further, the

appellant is the real brother of injured Raliya (PW-5), this Court is of the considered opinion that there is no doubt with regard to the presence of the

appellant on the spot at the time of the incident. It is the case of the prosecution that initially the appellant inquired from the injured Raliya (PW-5) as

to why he was sleeping outside his house and gave a lathi blow and when the injured Raliya (PW-5) stood up, a knife blow was given by the appellant.

Although the injured Raliya (PW-5) has admitted that he could not see the actual assault because it was dark night but in absence of presence of any

other witness/person/assailant on the spot, it is clear that it was the appellant alone who had caused injury to the injured Raliya (PW-5). Furthermore,

Banshilal (PW-7) has stated that he had caught the appellant on the spot. Sursingh (PW-6) and Bhangdibai (PW-9) have also corroborated the

evidence of Raliya (PW-5) and Banshilal (PW-7).

Although Kailash Chandra (PW-11) and Nana (PW-12) who are the witnesses of seizure of knife vide Ex.P/8 and the memorandum of the

appellant Ex.P/7 have not supported the prosecution case with regard to making confessional statement by the appellant Ex.P/7 and the recovery of

blood stained knife from the appellant Ex.P/8 but Rajendra Singh Tomar (PW-4) has stated that the appellant had made a confessional statement

Ex.P/7 and on the disclosure made by the appellant, the bloodstained knife was seized from the possession of the appellant vide seizure memo Ex.P/8.

However, the police has not produced the FSL report to show that whether the knife so recovered from the possession of the appellant had any

bloodstains or not? Thus, at the most, it can be said that the weapon of offence was not recovered from the possession of the appellant. However, the

Supreme Court in the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas & Anr. reported in (2013) 12 SCC 796 has held as under: 33 to 36

“33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the

prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interference.

In Lakshmi v. State of U.P.(2002) 7 SCC 198 this Court has ruled that: (SCC p. 205, para 16)

“16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the

deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under

Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not

established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be

charged with the offence of murder.â€​

In Lakhan Sao v. State of Bihar (2000) 9 SCC 82 it has been opined that: (SCC p. 87, para 18)

“ 18. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is

acceptable.â€​

In State of Rajasthan v. Arjun Singh (2011) 9 SCC 115 this Court has expressed that: (SCC p. 122, para 18)

“18. … mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable.

Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had

taken place.â€​

Thus, when there is ample unimpeachable ocular evidence and the same has been corroborated by the medical evidence, non-recovery of the weapon

does not affect the prosecution case.â€​

The Supreme Court in the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas & Anr. reported in (2013) 12 SCC 746 has held as under:-

“33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the

prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interferenceâ€​.

The Supreme Court in the case of Yogesh Singh vs. Mahabeer Singh & Ors. reported in (2017) 11 SCC 195 has held as under:-

“47. The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel

no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an

established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular

evidence. [See Lakahan Sao v. State of Bihar, (2000) 9 SCC 82; State of Rajasthan v. Arjun Singh, (2011) 9 SCC 115 and Manjit Singh v. State of

Punjab, (2013) 12 SCC 746]â€​.

It is clear that where the prosecution case is based on direct evidence, then mere failure to establish the recovery of weapon of offence from the

accused would not be of much consequences. Accordingly, relying upon the evidence of Raliya (PW-5) and Banshilal (PW-7) which is corroborated

by the evidence of Sursingh (PW-6) and Bhangdibai (PW-9), this Court is of the considered opinion that the prosecution has succeeded in establishing

that it was the appellant who had caused a knife injury on the chest of the injured Raliya (PW-5).

The next question for consideration would be that whether the act of the appellant would amount to attempt to commit murder punishable under

Section 307 of IPC or not?

Section 307 of IPC reads as under:-

“307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as

is hereinbefore mentioned. Attempts by life convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he

may, if hurt is caused, be punished with death.]

Thus, in order to make out an offence punishable under Section 307 of IPC, the prosecution is required to prove that the accused had committed

any act with such intention or knowledge, and under such circumstances, that if he, by that act, caused death, he would be guilty of murder. In the

present case, without any provocation and without any reason, merely because the appellant had a grudge as to why his brother, injured Raliya (PW-

5) has kept Sursingh (PW-6) as his “Gharjamaiâ€​, therefore, he came to the house of the complainant and gave a knife blow on the chest of injured

Raliya (PW-5). Chest of a victim is undoubtedly a vital part of the body. It is also the case of the prosecution that after hearing the screams of injured

Raliya (PW-5), the inmates of the house, namely Banshilal (PW-7), Sursingh (PW-6) and Bhangdibai (PW-9) immediately intervened in the matter

and, therefore, it can be inferred that because of timely intervention by the witnesses, the appellant was not able to repeat his assault and even

otherwise, Raliya (PW-5) has specifically stated in paragraph 1 of his examination-in-chief that because of intervention of Banshilal (PW-7), Sursingh

(PW-6) and Bhangdibai (PW-9), the appellant could not repeat his assault, otherwise he would have certainly caused more injuries. Thus, it is clear

that there was an intention or knowledge on the part of the appellant to the effect that by causing knife injury on the vital part of the injured Raliya

(PW-5), his act would result in the death of the injured Raliya (PW-5). Accordingly the appellant Bhuru is held guilty of offence punishable under

Section 307 of IPC.

The next question for determination would be that whether the sentence of rigorous imprisonment of seven years awarded by the Trial Court is

sufficient or not, and whether it is required to be interfered with or not ?

As already observed by this Court, it is not clear from the record that whether the appellant had furnished the bail or not as he was directed to

mark his presence before the Trial Court. Although at the first instance, the order granting bail was revoked as the appellant was not in a position to

furnish the bail, it is possible that the appellant might not have furnished bail and might have undergone the entire jail sentence or he might have

furnished bail. However, the bail papers are not on record.

Be that whatever it may be.

The undisputed fact is that without provocation the appellant had caused injury on the chest of his brother Raliya (PW-5) for no reason. The

grievance of the appellant that as to why his brother Raliya (PW-5) has kept his son-in-law Sursingh (PW-6) as his “Gharjamaiâ€, cannot be said

to be a valid reason because it is the personal matter of injured Raliya (PW-5) as to whether he wants to keep his son-in-law in his house as his

“Gharjamai†or not. Under these circumstances, this Court is of the considered opinion that the jail sentence of rigorous imprisonment of seven

years awarded by the Trial Court cannot be said to be excessive. Accordingly, the judgment and sentence dated 13.3.1999 passed by 2nd Additional

Sessions Judge, Khargon in S.T. No.188/1994 is hereby affirmed.

If the appellant had already undergone the jail sentence as awarded by the Trial Court, then it would not be necessary for him to surrender before

the Trial Court but if he was released on bail by the Trial Court, then his bail bonds and surety bonds stand cancelled. The appellant is directed to

immediately surrender before the Trial Court to undergo the remaining jail sentence.

The appeal fails and is hereby dismissed.