Lakhanlal vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal being aggrieved with the judgment dated 24.1.1997 passed by the Additional Sessions Judge, Harda in S.T. No. 13/1996, whereby the appellant has been convicted of offence under Section 307 of the IPC and sentenced to five years R.I. with fine of Rs. 5,000/-. In default of payment of fine, 15 months S.I.

Facts of the case in short are that on 28.4.1995 at about 4:00 p.m., the complainant Narmada Prasad went to the house of the appellant at village Palasner to bring his wife back. When he requested the appellant then, the appellant abused him. Again Narmada Prasad requested the appellant not to use such words in the conversation then, the appellant suddenly gave two blows with dagger in his abdomen causing him fatal injuries. Narmada Prasad immediately ran away from the spot and reached to the dense locality of township of Palasner. On his shouting, Ganesh Prasad (PW-2) and Professor Radheshyam (DW-1) helped him. They took him to the Police Station, Harda on motorcycle. At about 5:35 p.m., on the same day, the complainant had lodged an FIR Ex. P/1. He was sent for his medico legal examination. Dr. Vinay Singh Mourya (PW-4) examined the complainant and gave his report Ex. P/4. He was referred to the District Hospital, Hoshangabad and ultimately he was referred to M.Y. Hospital Indore, where he had undergone with some operations and admitted for a longer period. After due investigation, the charge sheet was filed before the JMFC, Harda who committed the case to the Court of Additional Sessions Judge, Harda.

The appellant abjured his guilt. He took a plea that the complainant Narmada Prasad was demanding a huge dowry from his sister and therefore, she was residing at the house of the appellant. Thereafter, the appellant was falsely implicated due to that reason. In defence Radheshyam (DW-1) was examined.

After considering the evidence adduced by the parties, the Additional Sessions Judge, Harda convicted and sentenced the appellant as mentioned above.

During pendency of this appeal, an application for compromise i.e. I.A. No. 69/02 was filed. However, the complainant Narmada Prasad appeared before this Court on 7.7.2015 and he was referred to the Registrar (Judicial-I) to record the voluntarilyness of the complainant that a compromise took place between the parties with free consent. Thereafter, it was directed that the application will be decided in the judgment. I have heard the learned counsel for the parties.

Narmada Prasad (PW-1) and Ganesh Prasad (PW-2) have stated about the incident and the fact told by the complainant to the witness Ganesh Prasad. According to the complainant Narmada Prasad, when he went to the house of the appellant so that he could bring his wife back to his house. Initially, the appellant abused him and thereafter, he gave two blows in his abdomen. Soon after the incident, he ran towards a dense township of Palasner, where he was helped by Ganesh Prasad (PW-2) and Professor Radheshyam (DW-1). Ganesh Prasad (PW-1) has accepted that the complainant Narmada Prasad told him that assault was caused by his brother-in-law, who was residing near the railway station. Thereafter, he was taken to the Police Station, Harda. Professor Radheshyam (DW-1) has accepted in para 5 of his statement that the complainant Narmada Prasad told him that assault was caused by his brother-in-law but Professor Radheshyam was not satisfied with the reply of the complainant. However, he helped him in taking to the police station, but Radheshyam has accepted that blood was oozing from abdomen of the complainant.

The complainant Narmada Prasad had lodged the FIR within 3:30 hours, whereas sufficient time was required for him to go to the dense township of Palasner, whereas he was badly injured and thereafter to the police station, which was 10 kms. away from the locality of Palasner. Hence, the FIR lodged by the complainant appears to be a timely lodged FIR. Dr. Vinay Singh Mourya (PW-4) examined the victim and found two incised wounds on his abdomen. He gave his medical report Ex. P/4. He found two major wounds on the abdomen of the victim and for such major wounds, operation was required. However, the prosecution did not file any bed head tickets of the victim recorded at M.Y. Hospital, Indore but as told by Dr. Vinay Singh Mourya (PW-4), the victim was referred to the District Hospital, Hoshangabad. According to the complainant/victim Narmada Prasad, he was referred to the M.Y. Hospital, Indore and a surgery took place. He was admitted in the hospital for 7-8 days.

After considering the evidence given by the complainant Narmada Prasad (PW-1) and corroborative evidence given by the independent witnesses Ganesh Prasad (PW-2) and Professor Radheshyam (DW-1) that the complainant told that he was assaulted by the appellant. His testimony is duly corroborated by FIR Ex. P/1 and the medical report prepared by Dr. Vinay Singh Mourya (PW-4) that he found two corresponding injuries to the complainant Narmada Prasad and therefore, it is proved beyond doubt that the appellant gave two blows by a knife in the abdomen of the complainant.

Learned counsel for the appellant has submitted that it was not proved beyond doubt that the victim sustained any fatal injury and therefore, no offence under Section 307 of the IPC may be constituted against the appellant. However, the contention advanced by learned counsel for the appellant cannot be accepted for two reasons. Firstly that, Dr. Vinay Kumar Mourya (PW-4) did not opine that the injuries caused to the victim were simple in nature. On the contrary, it was informed that looking to the dangerous condition of the complainant, he was immediately referred to the District Hospital, Hoshangabad and it was proved by the complainant that thereafter, he was referred to the M.Y. Hospital, Indore and a surgery took place of his abdomen. If the injuries were not fatal in nature then, no surgery was required but, if the injury was of such nature so that a surgery was required and then, certainly in absence of that surgery, the complainant Narmada Prasad would have died, therefore, an inference would be drawn that the injuries caused to the victim Narmada Prasad were fatal in nature. In alternate, it would be apparent that the appellant gave two blows in the abdomen of the victim. He gave a powerful blow on the vital part of his body. On repeating the blows, intention of the appellant is visible that he intended to kill the complainant Narmada Prasad. If he would not have ran away from the spot then, certainly the appellant could have given more blows. Hence, two consecutive blows given by the appellant on the vital parts of the body indicates about the intention of the appellant that he intended to kill the victim Narmada Prasad. Hence, his act falls within the purview of Section 307 of the IPC.

It would be apparent that the appellant did not take any defence of right of private defence or sudden or grave provocation therefore, looking to the intention of the appellant and treatment done to the complainant, the trial Court has right found that the appellant was guilty of offence under Section 307 of the IPC.

Before considering the question of sentence, I.A. No. 69/02 is required to be decided. The complainant Narmada Prasad has moved an application to seek permission for compromise and he appeared before the Court on 7.7.2015. The Registrar (Judicial-I) has verified the voluntarilyness of complainant to do the compromise. However, the offence committed by the appellant is not compoundable and therefore, no permission of compromise can be given. Consequently, I.A. No. 69/02 is hereby dismissed with the direction that the factum of compromise will be considered at the time of passing the order of sentence.

So far as the sentence is concerned, learned counsel for the appellant has submitted that the appellant was a gang man in the railway. He was the first offender, who was being harassed by the complainant for dowry demand etc. He has faced the trial and appeal for last 19 years and the compromise took place between the parties. The appellant was in custody on 27.4.1995 and thereafter, he was released on bail in consequence of order dated 15.12.1995 in M.Cr.C. No. 2557/1995 therefore, he remained in the custody during the trial for more than seven months. Again, he was taken into the custody on 24.1.1997 when the trial Court pronounced the judgment and thereafter, his execution of jail sentence was suspended vide order dated 4.4.1997. Hence, the contention of learned counsel for the appellant is acceptable that the appellant remained in the custody for 11 months. After considering the aforesaid facts, the appellant was the first offender, he remained in the custody for 11 months and a compromise took place between the parties, the appellant was the first offender, who faced the trial and appeal for last 19 years, hence it would not be appropriate to send him to the jail again.

In this connection, learned counsel for the appellant has placed his reliance upon the judgment passed by the Hon''ble Apex Court in the case of Ishwar Singh Vs. State of Madhya Pradesh, AIR 2009 SC 675 : (2008) 12 JT 104 : (2008) 15 SCC 667 , in which the sentence of the accused for the offence under Section 307 of the IPC was reduced to the period for which he remained in the custody on the basis of compromise and other similar circumstance therefore, in the light of judgment passed by the Hon''ble Apex Court in the case of Ishwar Singh (supra), the sentence of the appellant may be reduced to the period for which he remained in the custody.

On the basis of aforesaid discussion, appeal filed by the appellant is hereby partly allowed. His conviction of offence under Section 307 of the IPC is hereby maintained but the sentence is reduced to the period for which he remained in the custody during the trial and appeal. However, no change in the fine amount.

At present, the appellant is on bail. His presence is no more required before the Court and therefore, it is directed that his bail bonds shall stand discharged.

Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.