Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.1965/1996 Anil VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Anil Dwivedi, counsel for the appellant. Shri S.K.Kashyap, Public Prosecutor for the State/ respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 1st day of October, 2012) The appellant has preferred this appeal against the judgment dated 5.11.1996 passed by the learned Second Additional Sessions Judge, Chhindwara in S.T.No.127/1996, whereby the appellant was convicted for the offence punishable under section 307 of IPC and sentenced for 5 years' rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, 3 months' rigorous imprisonment was also directed.
2. Prosecution's case, in short, is that, on 16.2.1996, at about 5.30 p.m. in the evening, the complainant Tejrao (P.W.1) went to the shop of Sanjay Barbar to get his shaving, at village Tigaon (Police Station Pandhurna, District -:- 2 -:- Criminal Appeal No.1965 of 1996 Chhindwara). The appellant came to the shop of Sanjay Barbar and asked the complainant as to why he had made a complaint against him to his brother. The appellant took a scissors from the shop of Sanjay Barbar and assaulted the complainant Tejrao on his abdomen, chest and left hand, causing him 4 injuries. The complainant Tejrao was taken to the Police Station Pandhurna, where he lodged an FIR, Ex.P/1. He has also mentioned that Krishna (P.W.2), Ramesh Mahale, Tukudu Pawar were present at the time of the incident and Vijay (P.W.4) and Kayum took him to the Police Station. The complainant was directed for his medico legal examination to CHC, Pandhurna. Dr.Gadhekar (P.W.7) examined the complainant Tejrao and gave his report, Ex.P/ 9. He found three stab wounds on the body of the complainant Tejrao. One was on the left chest, another on the right chest and third one was on costal margin. Each wound was bony deep. Similarly, one incised would was found on his left knee. Thereafter, the complainant was referred for his x-ray examination. In x-ray report, no bony injury was found and no gases or air was found in the diaphragm of the chest. After due investigation, a charge- sheet was filed before the ACJM, Saunsar, who committed the case to the Sessions Court, Chhindwara and thereafter, -:- 3 -:- Criminal Appeal No.1965 of 1996 it was transferred to the learned Second Additional Sessions Judge, Chhindwara.
3. The appellant abjured his guilt. He did not take any specific plea but, he has stated that he gave some loan to the complainant and he was not repaying it. Thereafter, to pressurize the appellant, a false case has been lodged against him. In defence, Ramshankar (D.W.1) and Ramesh (D.W.2) were examined.
4. The learned Additional Sessions Judge, after considering the evidence adduced by the parties, convicted the appellant for the offence punishable under section 307 of IPC and sentenced him as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that no injury found to the complainant was fatal in nature. The trial Court took an erroneous conclusion from the report given by Dr.Gadhekar. There was no previous enmity between the parties. The incident took place in a spur of moment and therefore, neither the appellant was intended to kill the victim, not he caused any fatal injury to the victim and therefore, no offence punishable under section 307 of IPC could be constituted. No injury was found grave and therefore, the appellant could be convicted at the most for the offence punishable under -:- 4 -:- Criminal Appeal No.1965 of 1996 section 324 of IPC. He remained in the custody for 260 days and therefore, his custody period appears to be an appropriate sentence for his offence.
7. On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct. The appellant assaulted the victim by a scissors for 4 times and therefore, his intention is visible.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted?. Whether the appellant can be convicted for the offence punishable under section 324 of IPC only?. And whether the sentence imposed upon the appellant can be reduced?.
9. Tejrao (P.W.1) has stated before the trial Court that when he was in the shop of Sanjay, the appellant came to the spot and assaulted him for four times by a scissors. Krishna (P.W.2) has corroborated the testimony of the complainant Tejrao. Pramod (P.W.3) has stated that the appellant took a scissors from the shop but, what he had done thereafter, he has shown his ignorance to that fact. Vijay (P.W.4) turned hostile. He told that the complainant Tejrao informed him that the appellant had assaulted him in -:- 5 -:- Criminal Appeal No.1965 of 1996 such a manner. Tejrao had lodged an FIR, Ex.P/1 within one hour of the incident and Dr.Gadhekar (P.W.7) found the injuries to the victim on four places as told by the victim Tejrao. Under such circumstances, evidence of the complainant is duly corroborated by the eye witnesses, medical evidence and timely lodged FIR. There was no previous enmity between the complainant and the appellant, so that there was no possibility that the complainant could implicate the appellant falsely in the case. Under such circumstances, it is proved beyond doubt that the appellant assaulted the victim Tejrao by a scissors for four times.
10. Ramshankar (D.W.1) and Ramesh (D.W.2) were examined as defence witnesses. They have stated that the victim Tejrao was in a drunken condition and he fell from the bicycle and therefore, he sustained such injuries. Looking to the nature of injuries, where they could be caused by a scissors and they could not be caused by any other object, hence, such injuries could not be caused due to falling from the bicycle. Apparently, the defence witnesses Ramshankar and Ramesh are telling a falsehood and therefore, by defence evidence, no doubt is created in the prosecution story.
11. It is apparent that the appellant assaulted the victim on his chest for two times and on abdomen for once and therefore, he assaulted the victim for three times on vital -:- 6 -:- Criminal Appeal No.1965 of 1996 parts of the body. However, it is apparent that no vital part was damaged due to those assaults and therefore, it appears that assaults were done without any sufficient force. The overt-act of the appellant was not pre-planned. He did not come to the spot with any weapon but, he took a scissors from the shop of barbar and assaulted the victim. Therefore, it is clear that the incident took place in a spur of moment and therefore, the appellant was not intended to kill the victim Tejrao.
12. Dr.Gadhekar has categorically stated that no vital part was found cut initially and injuries were grave, fatal or simple, it could be decided on the basis of the x-ray report. Ultimately, when x-ray plates and reports were shown to Dr.Gadhekar, he in para 6 of his statement, has agreed that he wrote the injuries to be fatal initially but, such should be corroborated by the x-ray report. If nothing adverse is found in the x-ray report then, injuries caused to the victim Tejrao were simple in nature. After perusal of the x-ray plates, Dr.Gadhekar has opined that injuries caused to the victim were simple in nature. Under such circumstances, where no fatal or grave injury was caused to the victim, the appellant was not intended to kill him. He gave 3-4 blows but, without any force. No vital part of the victim was found cut or damaged. Under such circumstances, neither the appellant -:- 7 -:- Criminal Appeal No.1965 of 1996 was intended to kill the victim Tejrao, not he had any intention to cause fatal injury to the victim Tejrao. Under such circumstances, no offence punishable under section 307, 308 or 326 of IPC is made out against the appellant. He has caused injuries by stabbing weapon. It is true that no right of private defence arose to the appellant and the complainant had done nothing by which it can be said that any sudden or grave provocation has been given to the appellant by him and therefore, the act of the appellant appears to be of his own will. Therefore, it is established that he had voluntarily caused injuries to the victim by stabbing weapon. Under such circumstances, the overt-act of the appellant comes within the purview of section 324 of IPC.
13. So far as the sentence is concerned, the appellant was the first offender. He was a youth of 28 years of age at the time of the incident, who has a future before him. He could be sentenced for 6 to 8 months imprisonment for the offence punishable under section 324 of IPC. He remained in the custody for 262 days and therefore, looking to his custody period, it would be proper to reduce his jail sentence to the period, which he has already undergone in the custody.
14. On the basis of the aforesaid discussion, the appeal filed by the appellant can be partly accepted. -:- 8 -:- Criminal Appeal No.1965 of 1996 Consequently, it is hereby partly allowed. The conviction as well as the sentence directed against the appellant for the offence punishable under section 307 of IPC is hereby set aside but, the appellant is convicted for the offence punishable under section 324 of IPC and sentenced with imprisonment for a period, which he has already undergone in the custody. No fine is imposed upon the appellant. The appellant would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
15. At present, the appellant is on bail. His Presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
16. A copy of the judgment be sent to the trial Court with its record for information. (N.K.GUPTA) JUDGE 1 10/2012 Pushpendra