Saeed @ Syed vs State Of Madhya Pradesh

Appellant has preferred this criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short “Cr.P.Câ€) being aggrieved

of the judgment dated 01/02/1999 passed by Second Additional Sessions Judge, District-Khargone, in Sessions Trial No.117/1995, whereby the

appellant has been convicted for offence punishable under Sections 307 of IPC, 1860, sentenced to undergo 7 years R.I and a fine of Rs.500/- with

usual default stipulation.

Prosecution story in short is that on 17/01/1995 at about 8.00 pm, the complainant Rajpalsingh was sitting in his shop situated at village Bhatalpura,

at the same time the appellant along with other co-accused persons namely Ramzan and Habib came there and started hurling filthily abuses upon

him. Bharatsingh, the elder uncle of the complainant talked to the appellants and tried to stop them from hurling abuses. The accused persons started

assaulting Bharatsingh, thereafter, Lokendrasingh, the younger uncle of the complainant went in rescue then the accused persons also beaten him.

After that appellant Saeed @ Syed went to his house and brought a knife. He threatened Lokendrasingh that he will kill him and gave a knife blow on

his abdomen due to which he sustained injury. During the incident, Kalusingh, Laxmansingh and Sukhlal came there, intervened and rescued the

complainant party. Complainant lodged a report at Police Station Bhikangaon. On the basis of which FIR bearing Crime No.180/1995 was registered

against the accused persons for offence under Sections 307/34 of IPC, 1860. The injured Lokendrasingh was taken to hospital for treatment.

During investigation Police reached the spot and prepared spot map, seized blood stained earth and plain earth, recorded the statement of the

witnesses, arrested the appellant and at his instance, recovered iron knife from his possession. After completion of investigation, charge-sheet was

filed against the accused persons for offence under Sections 294, 307, 34 of IPC, 1860 before the Judicial Magistrate First Class, Bhikangaon, District

Khargone who committed the case to the Court of Sessions Judge, Mandleshwar, which was transferred to the Court of Second Additional Sessions

Judge, Khargone.

Appellant abjured his guilt and took a plea that he has been falsely implicated in the present case and examined Chatarsingh (D.W.1), Rambabai

(D.W.2) and Pavansingh (D.W.3) in his defence.

Trial Court, after considering the submissions advance by the learned counsel for the parties and scrutinizing the entire evidence on record,

convicted the appellant for offence punishable under Sections 307 of IPC, 1860, sentenced to undergo 7 years R.I, and fine of Rs.500/-with usual

default stipulation.

Having heard learned counsel for the parties and perused the impugned judgment and record of the trial Court.

While assailing the judgment of conviction and sentence it has been submitted on behalf of the learned counsel for the appellant that the judgment of

trial Court has suffered from inherent defects on account thereof did not justify the evidence recorded by the trial Court. In order to substantiate such

plea it has been submitted that there are material omissions and contradictions in the statement of the prosecution witnesses, which has been

overlooked by the trial Court. It is further submitted that there is no medical opinion available on record to establish that the injury sustained by injured

Lokendrasingh was grievous in nature or sufficient in the ordinary course of nature to cause death of Lokendrasingh. Therefore, the trial Court has

committed grave error in convicting the appellant for the offence under Section 307 of IPC, 1860, hence counsel prayed for setting aside the impugned

judgment.

On the other hand, learned Public Prosecutor submitted that the appellant gave a blow of knife to the injured Lokendrasingh as a result he sustained

penetrating injury on his abdomen, which is vital part of the body. The aforesaid act clearly indicates the intention of the appellant to commit murder of

Lokendrasingh, therefore, the trial Court has not committed any error in convicting the appellant for the offence under Section 307 of IPC, hence

counsel prays for rejection of the appeal.

Lokendrasingh (P.W.2) deposed that on the date of incident in the evening at 8.00pm he was at his home, Kalusingh and Laxmansingh were also

sitting with him. At this juncture, one Nagiya came there and informed him that Saeed, Ramzan and Habib were assaulting his brother Bharatsingh.

On hearing this Lokendrasingh went to the shop of Rajpalsingh and saw that Saeed, Ramzan and Habib were beating Bharatsingh by legs and fists,

then he rescued his brother. Thereafter, appellant Saeed went to his house, came back with knife and inflicted a knife blow to Lokendrasingh, thereby

causing injury on the left side of his abdomen. Then Kalusingh saved Lokendrasingh and took him to Khandwa, where he was admitted in the hospital

for treatment. In his cross-examination he denied that when he reached on the spot Kalusingh and Laxmansingh were already present there.

Complainant-Rajpalsingh (P.W.1) stated in his Court statement that the appellant went to his house and came back with 'churi', whereas in his

statement recorded under Section 161 of Cr.P.C it is mentioned that the appellant came with 'chakku' and gave a blow of 'chakku' on his abdomen.

He also accepted that there is difference between 'churi' and 'chakku'. From the seizure memo (Ex-P/8) it appears that Police seized one 'chakku''

(knife) from the appellant. The aforesaid knife was sent to Forensic Science Laboratory for chemical analysis and according to FSL report a human

blood was found on the Knife. It is also worth to note that 'chakku' and 'churi' both are the sharp cutting instruments and there is not much difference

between two. Thus, it cannot be treated as a discrepancies. There is nothing substantial has come out in the cross-examination of Lokendrasingh to

discard his testimony.

Bharatsingh (P.W.3) has also stated almost the same thing against the appellant. According to him on the date of the incident that was 17/01/1995

at about 8.00 pm he went to the shop of Rajpalsingh, where Ramzan was hurling filthy language towards Rajpalsingh. When he stopped him then

Ramzan started abusing him. Thereafter, appellant-Saeed also came to the spot and they both beaten him by kicks and fists. In the meanwhile, some

body has informed his brother Lokendrasingh regarding the incident then he came to the spot along with Kalusingh and Laxmansingh and all of them

tried to rescue him. During this Saeed went to his house,

returned back armed with knife and gave a blow to Lokendrasingh on the left side of his abdomen due to which he sustained injuries, then he was

taken to Khandwa hospital.

Rajpalsingh (P.W.1), Kalusingh (P.W.4) and Laxmansingh (P.W.6) are the eye witnesses and they all supported the statement of Lokendrasingh

and Bharatsingh. According to them, when Lokendrasingh tried to save his brother Bharatsingh then appellant Saeed went to his house, came back

with knife and gave a blow of knife on the abdomen of Lokendrasingh as a result of which he sustained injuries.

Sukhlalsingh (P.W.5) was also an eye witness but he did not support the prosecution case, therefore, he was declared hostile and was confronted

with the case-diary statement (Ex.P/3).

Statement of injured Lokendrasingh (P.W.2) is fully supported by the statement of Dr. Avtar Singh (P.W.13), who had examined the injured and

found one penetrating injury over left side of upper abdomen just below the rib near to lateral side of midclavicular line, Omentum protruding out of

wound. He proved his medical report (Ex.P/13), there is no conflict between the medical evidence as well as the eye witnesses account Dr.

Avtarsingh (P.W.7) has deposed that the injury caused to the injured Lokendrasingh by sharp cutting and penetrating object within the duration of 12

hours of the examination. According to him the injured was admitted in the hospital and he opined that the nature of the injury will be explained

afterwards, however, from the bed head tickets Ex.P-16 it appears that the injured, after taking treatment for sometime, was discharged from the

hospital and therefore, there is no medical opinion available regarding the nature of the injury caused to the injured Lokendrasingh. Kadwa (P.W.7)

has proved the seizure of knife and arrest of the appellant vide Ex.P/5 and P/6 .

From the statement of the injured Lokendrasingh and other witnesses, it is clear that the incident has taken place, all of a sudden and there was no

premeditation. Appellant-Saeed gave a single blow of knife on the abdomen of Lokendrasingh and avoided to repeat the same, hence, no intention can

be attributed against the appellant to commit murder of Lokendrasingh. Although the injured sustained injury on his vital part, however, there is no

medical opinion available to establish that the said injury was grievous in nature or sufficient in ordinary course of nature to cause death of the injured

Lokendrasingh, hence, the prosecution has failed to establish that the appellant caused injuries to victim with the intention to commit murder.

Therefore, the trial Court has committed error in convicting the appellant for offence under Section 307 of IPC, 1860. Looking to the injury caused to

the injured, offence under Section 324 of IPC, 1860 is made out against the appellant, hence the conviction of the appellant is modified from offence

under Section 307 to 324 of IPC, 1860.

So far as the period of sentence is concerned, although the appellant is not having any criminal record and the incident has taken place 25 years

back, even then he gave a blow of knife on the vital part of the injured Lokendrasingh due to which he sustained endangering injury and due to which

omentum came protruding out of the wound. In these circumstances, the appellant has been sentenced to 3 years R.I for the offence under Section

324 of IPC. He is also directed to deposit additional fine amount of Rs. 14,500/- out of which Rs.10,000/- be paid to the injured Lokendrasingh, as

compensation under Section 357(1) of Cr.P.C

Appellant-Saeed is on bail, therefore, his personal bond and bail bond is hereby discharged. Appellant is directed to surrender himself before the

trial Court forthwith so that he can be sent to the custody for serving his remaining jail sentence. The Registry of this Court is directed to arrange for

issuance of supersession warrant against appellant-Saeed @ Syed. A copy of the judgment be sent to the trial Court along with record for information

and compliance.

With the aforesaid modification the Criminal Appeal No.184/1999 stands partly allowed and disposed of.

Certified copy as per Rules.