AI Structured Summary
Not yet generated for this judgment
Judgment
In Criminal Appeal No.176/2017, IA No.2174/2019 has been filed for grant of bail to appellant Sukhpal alias Chukhande Singh. However, it is submitted by the Counsel for the appellants, that he is ready to argue the appeals finally on behalf of both the appeals. Therefore, the appeals are heard finally.
Criminal Appeal No.176/2017 has been filed by the appellant-Sukhpal alias Chukhande, whereas Criminal Appeal No.177/2017 has been filed by Narendra alias Matre against the judgment and sentence dated 21/1/2017 passed by Fifth Additional Sessions Judge, Bhind in S.T. No.203/2016.
The appellant-Sukhpal has been convicted and sentenced for the following offences :
1
307 of I.P.C.
10 years R.I. and fine of Rs. 10,000 with default imprisonment
2
323/34 of I.P.C.
1 year R.I. and fine of Rs. 1000 with default imprisonment
3
25(1-B)(a) of Arms Act
1 year R.I. and fine of Rs. 1000 with default imprisonment
4
27 of Arms Act
6 months R.I. and fine of Rs. 500 with default imprisonment
The appellant Narendra @ Matre has been convicted and sentenced for the following offences :
1
307/34 of I.P.C.
10 years R.I. and fine of Rs. 10,000 with default imprisonment
2
323 of I.P.C.
1 year R.I. and fine of Rs. 1000 with default imprisonment
It has further been directed that an amount of Rs.10,000/- be awarded to victim Vishram Singh and an amount of Rs.2,000/- be awarded to victim Ramkumari by way of compensation.
The necessary facts for disposal of the present appeal in short are that on 15/1/2016 at about 6 PM the victim Vishram Singh and Ramkumari were sitting outside their house and were talking to each other. At that time the appellants came there and because of some old enmity started abusing the victim Vishram Singh and when Vishram Singh objected to it, then appellant-Chukhande gave a Lathi blow on the head of Vishram Singh, as a result of which, blood started oozing out. When Ramkumari tried to intervene in the matter, then she was assaulted by the appellant Narendra alias Matre causing injury on her right hand, as a result of which, she fell down. When the complainant Rajveer tried to intervene in the matter, then the appellant Sukhpal alias Chukhande fired a gunshot causing injury on the left thigh of injured Vishram Singh, as a result of which, he fell down. Thereafter, the appellant fled away from the spot. The complainant Rajveer lodged the Dehatinalishi (Ex.P/1) in the District Hospital Bhind and accordingly, FIR (Ex.P/10) was recorded. The dying declaration, Ex. P.2 of Vishram Singh was recorded and the victim Vishram Singh and Ramkumari were sent for medical examination. The blood stained as well as plain earth was seized from the spot. The spot map was prepared. Statement of the witnesses were recorded. Appellant Sukhpal was arrested on 17/3/2016 and his confessional statement under Section 27 of the Evidence Act was recorded and on the basis of his memorandum, a country made pistol was seized from his possession. On 6/4/2016 the appellant Narendra alias Matre was arrested. After obtaining the permission for prosecution from the District Magistrate, the police filed the charge-sheet for offence under Sections 307, 294, 34 of IPC and Sections 25, 27 of the Arms Act.
The trial court by order dated 15/7/2016 framed charges under Sections 294, 323, 307/34 of IPC against appellant Narendra alias Matre and framed charges under Sections 294, 307, 323/34 of IPC and under Sections 25 (1-B) (a) and 27 of the Arms Act against appellant Sukhpal alias Chukhande.
The appellants abjured their guilt and pleaded not guilty.
The prosecution in order to prove its case examined Rajveer (PW-1), Ramkumari (PW-2), Vishram Singh (PW-3), Meera (PW-4), Devendra Singh (PW-5), Tillu Singh (PW-6), Gopal Singh (PW-7), Sanjiv Jain (PW-8), Dr. R.K. Agrawal (PW-9), Ambar Singh Sikarvar (PW-10) and Dr. R.K. Singh (PW-11).
The appellants examined Rajkumar Singh (DW-1) and Jhabbu (DW-2) in their defence.
The trial court by judgment and sentence dated 21/1/2017, acquitted the appellants for offence under Section 294 of I.P.C. and convicted the appellants for the above-mentioned remaining offences and sentenced them accordingly.
Challenging the conviction and sentence passed by the Court below, it is submitted by the counsel for the appellants that the prosecution has failed to prove any motive. In view of the fact that blackening was present around the gunshot wound, it is clear that it was a self inflicted injury and it is further submitted that under the facts and circumstances of the case and in the light of the injuries sustained by the injured persons, namely, Vishram and Ramkumari, the sentence of ten years rigorous imprisonment awarded by the trial court is on a higher side.
Per contra, it is submitted by the counsel for the State that the trial court has rightly convicted the appellants after considering the evidence in its proper perspective. Several ROS of variable sizes and shapes were seen in the left knee of Vishram, which clearly indicates that Vishram had suffered a gunshot injury.
Heard learned counsel for the parties.
Section 307 of IPC reads as under:-
"307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
From the plain reading of Section 307 of IPC, it is clear that the same is in two parts. The first part deals with the situation where no injury is caused to the injured, whereas the second part deals with the situation where a hurt is caused to the victim. Thus, it is clear that in order to make out an offence under Section 307 of IPC, the nature of injuries is not important, however, only knowledge or intention on the part of the accused coupled with some overt act would be sufficient to make out an offence under Section 307 of IPC. The Supreme Court in the case of State of Madhya Pradesh Vs. Kanha @ Omprakash by order dated passed in Cr.A. No. 1589 of 2018has held as under:-
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. In State of M P v Saleem, this Court held thus:
"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (Emphasis supplied)
In Jage Ram v State of Haryana, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:
"12. For the purpose of conviction under Section 307 IPC, the 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 the 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."
The above judgements of this Court lead us to the conclusion that proof of grievous or life-threatening 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 (2015) 11 SCC 366 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.
Whether the accused had a knowledge or intention to cause death or not has to be inferred on the basis of weapons used and the manner in which the offence is committed by him.
Vishram Singh (P.W.3) and Ramkumari (P.W.2) are the injured witnesses. They have stated that they were sitting outside their house. The appellants came there and demanded Rs. 10 lacs for compromise. When the injured Vishram Singh (P.W.3) expressed his inability to satisfy the demands of the appellants, then the appellant Sukhpal @ Chukhande gave a lathi blow on the head of the injured Vishram Singh (P.W.3). When victim Ramkumari (PW-2) tried to intervene in the matter, then she was assaulted by the co-accused Narendra alias Matre. Thereafter, the appellant Sukhpal alias Chukhande fired a gunshot causing injury on the left thigh of injured Vishram Singh. These witnesses were cross examined in detail, however, the Counsel for the appellants could not point out any thing to make their evidence unreliable. In the MLC report, Ex.P/8, following injuries were found on the body of injured Vishram Singh (P.W.3):-
"1. A L/W 1 X 1/2 cm. Left little Finger Bed.
Abrasion 1 X 1 cm. left tibial tuberosity.
Oval shaped 3 X 2.5 cm., 1/2 cm. depth blackening present around the wound on medio posterior aspect left thigh 2 cm. above joint line, inverted margin.
Abrasion 1/2 X 1/2 cm. over right and left parietal region, 3 cm."
In MLC report of Ramkumari (P.W.2), Ex.P/9, abrasion 2 X 2 Cm. Over her right forearm. In x-ray medico-legal report, Ex.P/16, multiple ROS of variable sizes and shapes were found in left knee of victim Vishran Singh (P.W.3). Thus, the ocular evidence of injured Vishram Singh (P.W.3) were found corroborated by the MLC reports of victims Vishram Singh and Ramkumari (Ex.P/8 and P/9), as well as x-ray medico-legal report Ex.P/16 of injured Vishram Singh. Further, the statement of injured Vishram Singh was recorded as dying declaration. The incident is alleged to have taken place on 15/1/2016 at 18:00 and the dying declaration of the injured Vishram Singh was recorded at 8:50 PM, i.e. within three hours of the incident and in the said dying declaration, Ex.P/2, similar allegations were made. Since the injured Vishram Singh has survived, therefore, the dying declaration, Ex.P/2, cannot be treated as a dying declaration, but certainly it can be treated as the first version of the injured Vishram Singh. Under these circumstances, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that when injured Vishram Singh and his wife Ramkumari were sitting in front of their house, the appellants Sukhpal alias Chukhande and Narendra Matre came to the house of the injured and enquired about their son and thereafter, the appellant Sukhpal alias Chukhande gave a Lathi blow on the head of injured Vishram Singh (PW-3) and also caused gunshot injury on his right thigh. Victim Ramkumari (PW-2) was assaulted by Narendra alias Matre.
The counsel for the appellants has pointed out certain omissions and contradictions in the case diary statement as well as court statement, but it is well established principle of law that if the contradictions or omissions are not of material fact, then the evidence of the witnesses cannot be discarded in toto. It is further submitted by the counsel for the appellant that blackening was found around the injury, therefore, it was caused from a very close range but the victim Vishram Singh (PW-3) has stated that the gunshot was fired from a distance of 10-12 steps, therefore, the ocular evidence cannot be accepted. The submission made by counsel for the appellant is de hors the record. Dr. R.K. Agrawal (PW-9) has nowhere stated that any blackening was found around the gunshot injury. Thus, the theory of self inflicted injury is hereby rejected.
It is next contended by the counsel for the appellants that the allegations made against the appellant would not make out an offence under Section 307 of IPC and at the most it would be an offence under Section 326 of IPC.
The submission made by the counsel for the appellants cannot be accepted for the simple reason that the Lathi blows were given on the head of injured Vishram Singh (P.W.3) and a gunshot injury was also caused to him. Thus, it is clear that the offence was committed by the appellants with the knowledge and intention to cause death of Vishram Singh (P.W.3) and, hence, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the appellants Sukhpal alias Chukhande is guilty of committed an offence under Section 307 of IPC, whereas the appellant Narendra alias Matre is guilty of committing an offence under Section 307/34 of IPC.
It is the prosecution case that the appellant Narendra alias Matre had given a Lathi blow on the head of Ramkumari (PW-2). The ocular evidence of Ramkumari (PW-2) is duly supported by the medical evidence. Further the eye witnesses namely Rajveer (P.W.1) and Meera (P.W.4) have also supported the prosectuion case. The Dehati Nalishi Ex. P.1 was also immediately lodged by Rajveer (P.W.1) within 2 hours of the incident and similar allegations were made in the said Dehati Nalishi, Ex. P.1. Under these circumstances, this Court is of the considered opinion that the prosecution has succeeded in establishing that the appellant Narendra alias Matre has committed an offence under Section 323 of IPC, whereas the appellant Sukhpal alias Chukhande has committed an offence under Section 323/34 of IPC. A country made pistol was seized from the possession of the appellant Sukhpal alias Chukhande. The prosecution has duly proved the sanction granted under the Arms Act, Ex.P/7.
Accordingly, the conviction of the appellant Sukhpal alias Chukhande for offence under Sections 307, 323/34 of IPC and Section 25 (1-B) (a) and 27 of the Arms Act and conviction of appellant Narendra alias Matre for offence under Section 307/34 and 323 of IPC is hereby affirmed.
It is next contended by the counsel for the appellant that the incident took place on 15/1/2016. There is an omission in the case diary statement with regard to the motive. The allegation that the appellants had demanded Rs. Ten Lacs from injured Vishram Singh does not find place in his first version, which was originally recorded as dying declaration of Vishram Singh, Ex.P/2, as well as the said allegation of demand of Rs. 10 lacs also doesnot find place in the case diary statement, Ex. D.1 of Ramkumari (P.W.2), therefore, the jail sentence of Rigorous imprisonment of 10 years for offence under Section 307 or 307/34 of I.P.C is on a higher side.
Considered the submissions made by the Counsel for the appellants.
The Supreme Court in the case of Hazra Singh Vs. Raj Kumar reported in (2013) 9 SCC 516 has held as under :
We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.
So far as the dying declaration, Ex.P/2, of the injured Vishram Singh is concerned, it is clear that there is no allegation that the appellants have demanded Rs. Ten Lacs. Victim Ramkumari (PW-2), who was also sitting alongwith the injured Vishram Singh (PW-3), had not stated anything about the demand of Rs. Ten Lacs in her police case diary statement. She was confronted with her 161 Cr.P.C. statement, Ex.D/1, but she could not explain as to why the same was mentioned in her case diary statement. Thus, it is clear from the first statement/version of Vishram Singh, which was recorded as a dying declaration, Ex.P/2, and 161 Cr.P.C. statement, Ex.D/1, of Ramkumari (PW-2), no allegation of demand of Rs.Ten Lacs was made. Further, the gun shot filed by the appellant Sukhlal @ Chukhand had caused injury on the thigh of the victim Vishram Singh (P.W.3). Under these circumstances, this Court is of the considered opinion that the sentence of 10 years awarded by the trial court for offence under Section 307 or 307/34 of IPC is on a higher side and the rigorous imprisonment of six years with enhanced fine amount would serve the purpose.
Accordingly, the sentence of 10 years awarded to the appellant Sukhpal alias Chukhande for offence under Section 307 of IPC and a fine of Rs.10,000/- with default imprisonment is reduced to rigorous imprisonment of 6 years and a fine of Rs.20,000/-. Similarly, the sentence of 10 years and a fine of Rs.10,000/- with default imprisonment awarded to appellant Narendra alias Matre for offence under Section 307/34 of IPC is reduced to rigorous imprisonment of 6 years and a fine of Rs.20,000/-. The sentence of rigorous imprisonment of one year and a fine of Rs.1,000/- with default imprisonment awarded to appellant Sukhpal alias Chukhande for offence under Section 323/34 of IPC and rigorous imprisonment of one year and a fine of Rs.1,000/- for offence under Section 25 (1-B)
(a) of the Arms Act as well as rigorous imprisonment of six months and a fine of Rs.500/- for offence under Section 27 of the Arms Act awarded to appellant Sukhpal alias Chukhande is hereby affirmed. Similarly, the sentence of rigorous imprisonment of one year and a fine of Rs.1,000/- with default imprisonment for offence under Section 323 of IPC awarded to appellant Narendra alias Matre is hereby affirmed. All the sentences are directed to run concurrently. Accordingly, with aforesaid modification, the conviction and sentence dated 21-1-2017 passed by Vth A.S.J., Bhind in S.T. No. 203/2016 is hereby affirmed.
The appellant Sukhpal alias Chukhande is reported to be in jail. He shall be released after undergoing the jail sentence awarded to him. The appellant Narendra alias Matre is on bail. His bail bonds are cancelled. He is directed to immediately surrender before the trial court for undergoing the remaining jail sentence.
With aforesaid modification, the appeal is partially allowed.