Dharmendra Singh vs The State of Madhya Pradesh

Tarun Kumar Kaushal, J.—This appeal has been preferred against judgment dated 25.07.1997 passed by Sessions Judge, Rewa in S.T. No. 49/95 convicting the appellant u/s 307 of IPC and sentenced to 3 years R.I. and with Rs. 5000/fine.

Facts of the case, in short, are that on 09.12.94 at about 9:00 p.m. Shivlal ( PW-5) was going in Allahabad Nagpur bus No. UP 70/8535, as second driver. In front of Agriculture College, Rewa bus was accosted by 810 persons. Some persons entered into bus and asked for Shivlal ( PW-5). Appellant and two other persons dragged Shivlal out of bus and appellant assaulted two injuries on his stomach by Gupti. Shivlal ( PW-5) was taken to Rewa Hospital for treatment. On 10.12.94 at about 2:00 p.m. FIR Ex. P5 was lodged by copassenger Ramji Pandey ( PW-7). A case at Crime No. 415/94 at Police Station City Kotwali u/s 307 of IPC was registered against the appellant and two named, and 56 other not named accused persons.

After completing investigation Police City Kotwali Rewa submitted a chargesheet against appellant and two others u/s 307 of IPC. Trial Court framed charge u/s 307 IPC in alternate u/s 307/34 of IPC. Appellant abjured guilt. Defence of the appellant was that of false implication on account of enmity and alibi saying that at the time of incident he was working with a contractor and he was not present on the spot.

To substantiate the case of prosecution, statements of Brijkishore Bajpayee ( PW-1), Dr. G.P. Shrivastava ( PW-2), Dr. R.P. Shrivastava ( PW-3), Devi Prasad Jaiswal ( PW-4), Shivlal injured ( PW-5), Anil Kumar Pandey ( PW-6), Ramji Pandey ( PW-7) and Udaybhan Sharma, A.S.I. ( PW-8) were recorded. To substantiate the defence of the appellant, statements of Kuneshwar Sharma (DW1) and Ranjay Singh (DW2) were recorded. After appreciating the aforesaid evidence, trial Court acquitted the coaccused persons of the charge, however convicted and sentenced the appellant as above.

Challenging the finding and conviction of sentence this appeal has been preferred on the grounds that appreciation of evidence is not proper, evidence of injured is suffering from material omissions and contradictions. There is no independent corroboration of his evidence. Defence of appellant has been wrongly denied and disbelieved by the trial Court. Conviction is bad is law and sentence is harsh. On the other hand learned Panel Lawyer supported the findings of conviction and sentence both.

In view of the evidence of Dr. G.P. Shrivastava ( PW-2) and Dr. R.P. Shrivastava ( PW-3) and MLC report inclusive of bed ticket running in 17 pages Ex. P2 it remains no longer disputed that Shivlal ( PW-5) sustained two stabbed wound on his stomach those were not only grievous in nature but was sufficient to cause the death in normal course of nature.

Shivlal ( PW-5) stated that appellant boarded the bus from bus stand got the bus stop and asked to stop the bus at Chunginaka and after taking him out of bus assaulted two blows of Gupti on his stomach. After running few steps PW-5 fell down and became unconscious. His police statement Ex. D1 was recorded by next day i.e. on 10.12.94 by Investigating Officer. In cross examination he stated that police came to hospital in the night itself but he did not name the appellant because he was unconscious that time. It is submitted by learned counsel for the appellant that in medical evidence there is nothing on record indicating that at any point of time injured remained unconscious. There is a contradiction in his statement to that effect that in Court he is attributing whole act to the appellant whereas in earlier version involvement of 810 persons was mentioned.

It is further submitted by learned counsel for the appellant that PW-5 had enmity with father of appellant Murari Singh. In view of the cross examination of PW-5 and facts narrated in statement of accused by the appellant it is an admitted fact that father of appellant Murari Singh and injured Shivlal ( PW-5) had been working at common place and their relations were strained.

Placing reliance on (2011) 2 SCC 715 Subhash Vs. State of Haryana it is submitted by learned counsel for the appellant that if material part of the previous statement has been disowned by the witness in the Court than such sole testimony should not be made basis of conviction. On careful perusal of evidence of Shivlal ( PW-5) it is revealed that in place of involving some more persons he is emphasizing the act of the appellant only. Appreciating aforesaid aspect of the matter in right perspective trial court had extended benefit of doubt and acquitted the coaccused persons. But as against appellant his court statement is duly corroborated by medical evidence then on the ground of enmity alone, in view of the peculiar facts and circumstances of the case, evidential value of PW-5 cannot be discredited. Name of the appellant appeared in police statement and in court statement of PW-5. Contradiction and omission are not material. On the whole evidence of PW-5 is trustworthy.

Devi Prasad Jaiswal ( PW-4) was also traveling in the bus and saw the incident but he did not support the prosecution and was declared hostile. On perusal of his whole statement it can be inferred that along with some other persons appellant was present on the spot and was involved in the incident. Anil Kumar Pandey ( PW-6) was also traveling in the bus but he did not support the prosecution witness and was declared hostile.

In this case FIR has been lodged by Ramji Pandey ( PW-7) on next day of the incident. Cause of delay was shown in FIR that injured was in critical condition in hospital. Placing reliance on Thulia Kali Vs. The State of Tamil Nadu, it is submitted by learned counsel for the appellant that this delay has made the FIR suspicious and doubtful hence evidence of FIR has lost its relevant and value both. It is true that Ramji ( PW-7) author of FIR Ex. P5 was also declared hostile and he did not support the prosecution but he had admitted in the Court that FIR Ex. P5 was written by police on his version.

True it may be that in this case FIR was not lodged by the injured and but next day by a person who was traveling in the bus. Though author of FIR Ramji Pandey ( PW-7) was declared hostiles, but crux of the case is whether injuries of PW-5 were caused by the appellant or he has been falsely implicated in the case.

At the most the lapse appeared in the statement of injured that initially he involved some more persons in the incident but during trial he focused his version against the appellant only. But due to this, his whole testimony cannot be discarded. At the most other accused persons may get the benefit and in fact they got benefit of doubt.

I see no infirmity and illegality in appreciation of evidence done by the trial Court in respect of appellant and his conviction u/s 307 of IPC is accordingly affirmed.

It is submitted by learned counsel for the appellant that this is an incident of 1994 and no useful purpose would be served in sending the appellant back to jail after about 17 years of the incident.

In view of the gravity of the offence, where two stab wounds have been caused in stomach of PW-5 in the incident, and considering over all circumstances of the case, 3 year''s jail sentence appears to be excessive and harsh. On taking into consideration the manner of incident and nature of injuries, for offence u/s 307 of IPC, sentence of 3 months R.I. and fine of Rs. 5000/will be sufficient, proper and will meet the ends of justice.

Appeal is allowed in part. Conviction of the appellant u/s 307 is affirmed. Jail sentence of appellant is reduced from 3 years to 3 months R.I. Fine sentence is affirmed. All concerns will ensure the compliance and execution of sentence.

Appeal is allowed in part.