Kishori vs State Of Madhya Pradesh

This appeal has been preferred by the accused, being aggrieved by the judgment dated 07.06.1999 passed by Additional Sessions Judge, Lakhnadon, District Seoni in Sessions Trial No.13/1999, whereby he has been convicted under Section 307 of I.P.C. and Sections 25 (1) and 27 of Indian Arms Act and sentenced to undergo RI for seven years (for each offence) along with fine of Rs.5,000/-, Rs.1000-1000/- , respectively with default stipulations.

In brief, the prosecution story is that, on 02.10.1998 at about 03:00 pm complainant- Premlal was sitting in the house of Chandan Kotwar. He used to stop the persons, who were cutting the wood from the forest trees. Therefore, the appellant abused complainant- Premlal, when he objected to the same, appellant went away from the spot. On the same day, at about 04:00 pm, appellant again came with gun and stood in front of the house of Premlal and asked Premlal to come out from his house. He threatened to kill Premlal. When Premlal came out, the appellant targeted him. Thereafter, Premlal caught his gun with his right hand. In the meanwhile the appellant triggered the gun. Due to heat of barrel of the gun, right palm of Premlal got burnt. He had not received any gun shot injury, because of misfire. He lodged a report against the appellant at Police Station- Dhuma, District- Seoni.

After investigating of the case, charge-sheet was filed before the concerned Court. After conduct of trial, learned trial Court found the apellant guilty of committing offences punishable under Section 307 of I.P.C. and Sections 25 (1) and 27 of Indian Arms Act and sentenced him, as mentioned hereinabove.

The appellant has challenged the aforesaid findings of the trial Court in the present appeal and prayed to set aside the impugned judgment and for his acquittal from the charges levelled against him.

Learned Panel Lawyer for the respondent-State strongly opposed the contentions of the appellant and supported the findings of trial Court. Heard learned counsel for the parties at length and perused the record.

The prosecution case is duly supported by complainant- Premlal (PW-1). As per the statements of Premlal (PW-1) and Jagat Bahadur Singh (PW-8), an FIR was lodged by Premlal on 02.10.1998. The facts narrated by Premlal in FIR have duly been corroborated by him in his testimony. A perusal of the statement of Jagat Bahadur Singh (PW-8) and FIR do establish that on the same date of incident, Premlal lodged named FIR within four hours against the appellant.

Motilal (PW-3) (son of Premlal) and Chandan Kotwar (PW-2) have also duly corroborated the testimony of Premlal. At that time, Motilal was present in his house. He heard when the appellant was abusing his father. He also came out from his house along with his father. This Court neither finds any reason to disbelieve their testimony nor any material contradiction and omission in their testimony.

Prompt FIR prevents the possibilities of any concocted story has been cooked up by the complainant party to falsely implicate the accused persons. Thereafter, on the next day, Dr. Deepak Pandey (PW-5) examined the complainant and found burnt injury on his right palm, which was black in colour and its outer area was reddish. He also corroborated the testimony of the complainant and opined that the aforesaid injury may be caused due to heated object within 24 hours from the examination and it may be cured within 7 days. In cross-examination, he admitted that the aforesaid injury was not found on any vital part of the body. Hence, the Court found that the testimony of Premlal is duly corroborated by the medical evidence.

Manharan Singh Chandel (PW-7) (Investigating Officer) stated that when he reached on the spot, and made search for the appellant and found the he was absconding. On 11.11.1998, he arrested the appellant and recorded his memorandum (Ex.P/3). Accordingly, on the production of gun by the appellant, he recovered the same and prepared seizure memo (Ex.p/4). According to him the appellant had no license for the said gun. Chandan Kotwar (PW-2) in his statement has corroborated his testimony.

Devi Singh (PW-4) (Constable) examined the said gun and submitted his report (Ex.P/6). In Ex.P/6 he opined found that explosive particles were present in the gun and smell was coming from the barrel which indicated that the gun was fired. Armorer report also corroborated the prosecution case. Gopal Namdeo (PW-6) (Arms Clerk) proved the sanction for prosecution of the appellant which was granted by then Collector vide Ex.P/8.

After considering the entire evidence and findings recorded by the trial Court, this Court finds that there is material substance present against the appellant to convict him under Section 307 of IPC and Sections 25 and 27 of Arms Act.

In case of Ganapathi and another Vs. State of Tamil Nadu (2018) 5 SCC 549 and Baleshwar Mahto and another Vs. State of Bihar and another (2017) 3 SCC 152 the Hon'ble Supreme Court held that if the evidence available on record establishes the guilt of accused beyond reasonable doubt and corroborates the medical evidence and Motive of crime is very clear, the High Court finds no error in appreciation of evidence and there is no inconsistency in ocular and medical evidence, hence, the conviction of the appellant is proper.

Learned counsel for the appellant urged that the injury caused to Premlal is simple in nature and is not sufficient to cause his death. Hence, appellant may be convicted for committing offence punishable either under Section 324 or Section 325 of the IPC. But, recently the Supreme Court has interpreted Section 307 of IPC and discussed the issue in case of State of Madhya Pradesh Vs. Kanha @ Omprakash (2019) 3 SCC 605 in paragraphs No.10 to 12 and held as under:-

"10. Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil1, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:

"9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis supplied)

This position in law was followed by subsequent Benches of this Court.

Thus, Supreme Court confirmed the conviction of the appellant under Section 307 of the IPC is proper. Supreme Court further discussed, in paragraph No.18 of the aforesaid judgment, as under:-

"18. The lack of forensic evidence to prove grievous or a life-threatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v State of Andhra Pradesh:

"18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums up bottle and a telephone wire used, as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused." (Emphasis supplied)

In case of Jage Ram v. State of Haryana [(2015) 11 SCC 366] Hon'ble Court held that:

"12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc."

(emphasis supplied)

This Court in the recent decision of State of M.P. v. Kanha @ Omprakash held that: "The above judgements of this Court lead us to the conclusion that proof of grievous or lifethreatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent."

(emphasis supplied)

{See also: State of M.P. v. Harjeet Singh 2018 (3) JLJ 11 and State of M.P. v Saleem (1983) 2 SCC 28 (2005) 5 SCC 554}

In light of the principles laid down by the Supreme Court and the facts and circumstances discussed above, this Court does not find any perversity or illegality in the appreciation of material on record by the learned trial Court.

Hence, this Court finds that cogent and reliable evidence has been brought by the prosecution on record. After discussion of the entire evidence in right perspective, learned trial Court has rightly held the appellant guilty for committing offence under Section 307 of IPC.

In that view of the matter, the findings of conviction recorded by the trial Court and the sentence, as directed against the appellant, do not warrant any interference in facts of the case.

In view of the foregoing discussions, the judgment of the trial Court is hereby upheld. Accordingly, the appeal filed by the appellant is hereby dismissed. Appellant is on bail. His bail bond stands cancelled and he be taken into custody to serve the remaining part of sentence.

At the end, it is the duty of this Court to record words of appreciation in favour of Smt. Durgesh Gupta, Amicus Curiae, who assisted this Court in disposal of this appeal, which was pending since 1999. Her assistance is hereby acknowledged.

Let a copy of this judgment be sent to the trial Court as well as to the jail authorities to take appropriate steps to take the appellant back into custody to serve the remaining part of the sentence.