Kansingh vs The State Of Madhya Pradesh

Prem Narayan Singh, J

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 21.09.2023, passed by learned Additional Sessions Judge (SC/ST[PA] Act), Mandsaur, District-Mandsaur, in ST No.50/2016, whereby the appellant has been convicted for the offence punishable under Section 307 of IPC 1860, sentenced to undergo 7 years R.I. with fine of Rs.5,000/- and usual default stipulations.

Brief facts of the case are that on 22.09.2015, at about 10.00 pm the appellant intoxicated with alcohol went to the house of the complainant and started hurling abuses in front of complainant's house, where his family members sitting outside. When complainant's son Dilip came out, persuaded the appellant to leave the place and forcefully took him to leave him in his house, while returning back the appellant assaulted him with axe on back side of the neck, due to which Dilip sustained injury and fell down unconscious. Thereafter, Munna Bai, Bane Singh, Narayan Singh and Kailash Bai came in rescue, then the appellant fled away hurling abuses. Injured was taken to Suwasara Hospital for treatment. On the basis of which Dehati Nalisi was filed against which FIR bearing crime No.224/2015 was registered before Police Station Suvasara, District Mandsaur for offence under Section 307 of IPC, 1860.

During investigation spot map was prepared, the blood stained cloths and sand were recovered, statements of the witnesses were recorded and FIR was registered under Sections 147, 148, 149 and 307 of IPC, 1860. Appellant was arrested and his instance one axe 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 Section 307 of IPC, 1860. Later on, the matter was committed to the Court of Session.

The prosecution on its behalf has examined as many as seven 11 witnesses namely Bajesingh (PW-1), Narayansingh (PW-2), Dilip (PW-3), Munnabai (PW-4), Madansingh (PW-5), Chandarsingh (PW-6), Dr.R. S. Johari (PW-7), Shailendra Malviya (PW-8), Dinesh Singh Badoriya (PW-9), P.P. Singh (PW-10), Narsingh Lodha (P.W.-11). No witness has been adduced in defence by the appellant.

The learned Trial Court on appreciation of the evidence and arguments adduced by the parties, finally concluded the case and convicted the appellant for the commission of the offence punishable under Section 307 of IPC, vide the impugned judgment.

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. Dr. R.S. Johari (P.W.7) 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 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 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.

Further, learned counsel for the appellant submits that since there is a single blow in the matter, 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 324 and 326 of IPC. The appellant has already suffered 1 and 1/2 years of incarceration out of the seven years.

Alternatively, counsel for the appellant has further argued on the point of sentence also and prays that since the appellant has already undergone almost 1 and 1/2 years 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 2015 i.e. for a period of 9 years. 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.

Learned counsel for the respondent/State has opposed the prayer and prays for dismissal of the appeal by supporting the impugned judgement.

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.

In order to evaluate the prosecution evidence, at the outset, the statement of complainant/Bajesingh (P.W.1) is required to be ruminated. Bajesingh (P.W.1) who is father of the injured Dilip has asseverated that when his neighbours Banesingh, Narayan singh and his family members were siting outside his house, at that time applicant, having consumed liquor came there and started hurling abuses. Thereafter injured Dilip stopped him from hurling abuses also he forcefully took the applicant to leave him in his house and on while returning back the applicant assaulted him on his neck with axe due to which injured Dilip sustained injury and became unconcious. The statement of Bajesingh (PW-1) finds support from the statement of Narayan Singh (P.W.2), Injured Dilip (P.W.3), Munna Bai (PW-4) and Madansingh (PW-5) with regard to the injury caused to Dilip. The statements of these witnesses have not been controverted in their cross-examination.

Learned counsel for the appellant has expostulated that all witnesses are related and interested witnesses, thus on the basis of their 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.”

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 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.”

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".

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.

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. R.S. Johari (P.W.7) has conceded in his cross-examination that there is no fracture found in the medical examination of the injured. In para 12 of the cross-examination this witness has specifically stated that in X-ray report 'no bone injury' is mentioned, hence injury cannot be treated as grievous injury, however, in this regard CT Scan report Ex.P/7 is also required to be examined. Radiographer-Shailendra Malviya (P.W.8) has exhibited C.T. Scan report and clearly stated that there is displaced fracture of occipital bone seen on right side but the testimony of this witnesses has not been rebutted in his cross-examination. In this regard the provisions of Section 320 of IPC is required to be referred, which reads as under:-

320. Grievous hurt.—The following kinds of hurt only are desig‐ nated 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 ordinary pursuits."

In view of the aforesaid definition clause the CT scan report (Ex.P/7) will be treated as significant document, however, it reveals that there is displaced fracture of occipital bone on the right side of the injured.

Point No.7 of the aforesaid provision definition will come in play therefore, on the basis of CT Scan report (Ex.P/7) and the statement of Shailendra Malviya (P.W.8) said injury will be treated as grievous injury. Since this injury has been caused by axe which is a sharp edged weapon, it is established beyond reasonable doubt that the appellant has caused grievous injury by sharp edged weapon on the injured, the offence of the case will come in the purview of 326 of IPC, 1860.

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.

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.

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 single blow 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 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."

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 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."

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 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."

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.

Having gone through the record and medical reports including the statements of witnesses, it is crystal clear that the injured has received only one injury on back side of the neck 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.

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 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.

Now, turning to the point of sentence, looking to the fact that the said incident of offence has happened in the year 2015 i.e. 9 years ago, the appellant has used only one single blow upon the injured, he has already suffered more than 1 and 1/2 years, it will be condigned in the interest of justice to impose the sentence of 2 years R.I with fine of Rs.25,000/-.

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 two 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.

The appellant is in jail. The bail bond (if any) of the appellant shall be discharged 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-Dilip.

A copy of this order alongwith the record of the trial Court, be sent to the learned trial Court for information and necessary compliance.

Pending I.A., if any, stands closed.

With the aforesaid, the present appeal stands partly allowed and disposed off.

Certified copy, as per rules.