1. Since both the above appeals arise out of common impugned judgment, this judgment shall govern disposal of both the appeals.
2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellants being aggrieved by the impugned judgment dated 19/12/2007 passed by the First Additional Sessions Judge, Waraseoni District Balaghat in ST No.31/2004, whereby the each appellant has been convicted for commission of offence under Section 307 read with Section 34 of IPC and inflicted sentence of rigorous imprisonment for three years with fine of Rs.500/- each, in default each of the appellants has to undergo additional imprisonment for three months. This criminal appeal under Section 377 of the Code of Criminal Procedure has been preferred by the State of Madhya Pradesh being aggrieved by the impugned judgment dated 19/12/2007 passed by the First Additional Sessions Judge, Waraseoni District Balaghat in ST No.31/2004 for enhancement of the sentence of the respondents Arman Khan and Salman Khan.
3. The prosecution case, in short, is that 2-3 days prior to 24/9/2003, accused Arman Khan had pushed D.P. Mishra, Advocate (PW-2) in the Court premises and some hot exchange of the words had taken place between them. On 24/9/2003 when Vilas Mishra (PW-10) with his brothers Amit Mishra (PW-11) and Manish Mishra were passing from the road by motorcycle near the house of accused Arman Khan, were stopped by accused Arman Khan, Salman Khan, Samarjeet and Raju @ Rajesh. All the accused started assaulting these three victims, but Vilas Mishra could manage to escape, whereas other two victims sustained injuries. Ultimately, Manish and Amit were brought to the hospital for their medical examination and treatment. A separate sessions trial was initiated for that incident. When the injured Vilas went to the hospital with his father D.P. Mishra to look for his brothers, all the accused persons started shouting that Vilas has come and let him be finished. The accused persons started assaulting the injured Vilas by kicks and fists. Vilas ran away and took shelter in operation theater, but all the accused persons entered into the operation theater and again started assaulting. Accused Salman assaulted Vilas by a dressing tray kept in Operation Theater (for short "O.T.") and caused injury on his head, whereas accused Samarjeet took dressing scissors from the tray and gave 5-6 stab blows by scissors to injured Vilas causing various injuries in his abdomen and other places of the body. Accused Arman Khan and Raju again assaulted Vilas by kicks and fists. Amit, brother of injured Vilas lodged an FIR Ex.P.14 at Police Station Waraseoni District Balaghat, which was written by ASI V.P.Tiwari (PW-13), who came in the hospital after getting information regarding quarrel. injured Vilas was examined by Dr. V.K. Choudhary (PW-5) and since he had sustained injuries in the abdomen which resulted in perforation, he was referred to the District Hospital, Balaghat where Dr. K.K.Khosla (PW-12) examined injured Vilas and found that it was a serious case of perforation, so he referred him to the Medical College, Nagpur and ultimately Vilas was taken to Shatah Aayu Hospital, Nagpur where Dr. Deshraj (PW-7) operated him, who found perforation at 7-8 places in the intestine of Vilas and repaired the same and stitched various wounds.
4. The appellants-accused abjured their guilt and took defence that actually the injured Vilas and his brothers came with preparation of assault at the house of Arman Khan and assaulted Arman Khan brutally. He was saved by the co-accused persons. When Arman Khan was taken to the hospital, the complainant party tried to make a false case against the present accused persons. No incident took place in the operation threatre. It was also alleged before the trial Court that Salman Khan was out of station at the time of incident and he was not present at the scene of crime. They examined three defence witnesses namely Dr. V.K. Choudhary (DW-1), Dr. Sanjay Shukla (DW-2) and H.C. Komal Singh (DW-3) to prove the injuries of Arman Khan and counter FIR of the case.
5. On considering the evidence adduced before the trial Court and the defence taken by the accused persons, the learned First Additional Sessions Judge passed the impugned judgment and inflicted sentence to the accused persons in the aforesaid manner.
6. We have heard learned counsel for the parties.
7. Learned counsel for the appellants (accused) has submitted that injuries of injured Vilas were not fatal. In support of his contention, he has submitted that no fracture was received by Vilas. The dressing scissors was very small, by which no fatal injury could be caused.
8. In the light of the argument, if medical evidence is considered, then it would be clear from the evidence of Dr.V.K.Choudhary (PW-5), who examined injured Vilas for the first time and gave MLC report Ex.P-5, that Vilas sustained five stab wounds in the abdomen, each of which was 2 cm deep approx. He found incised wounds on left face and right arm. According to his opinion, such injuries could be caused by sharp cutting instrument like scissors. He also found one lacerated wound on the head of injured Vilas, which could be caused by hard and blunt object. Ultimately Dr. Deshraj (PW-7) performed surgery on injured Vilas. He found that intestines of Vilas were found damaged at 7-8 places. There was a big hole in the intestine, 1 cm in size. Out of these perforations, blood and fecal matter was found in the outer surface of intestine. He gave clear cut opinion that if operation was not performed then Vilas may die in natural course. Nothing has been brought in the cross examination of Dr. Deshraj (PW-7) by which it can be said that his opinion is not acceptable, therefore, by the expert opinion of Dr. V.K.Choudhary (PW-5) and Dr. Deshraj (PW-7), it is apparent that injuries caused to the injured Vilas were fatal in nature.
9. Learned counsel for the appellants (accused) has submitted that the complainant lodged a concocted FIR against the appellants (accused). Some of the appellants were not present at the time of incident. Accused Salman Khan was out of station, whereas accused Raju @ Rajesh had already lost one of his arm prior to the incident and he could not assault in such a manner. Accused Arman Khan had sustained grievous injuries in the incident, and therefore, it was not possible for him to participate in the incident.
10. The contention of the appellants (accused) regarding their act as argued by learned counsel for the appellants cannot be accepted in toto. The appellants in the trial Court have produced 2-3 witnesses in their defence, out of them Head Constable Komal Singh (DW-3) has produced a Rojnamcha Ex.D-7, in which a report has been lodged by Usman Khan, brother of accused Arman Khan, in which he has mentioned that accused Salman Khan saved injured Arman Khan in the incident, which took place in the house of Arman Khan. Therefore, by the document Ex.D-7, it is clear that alibi of Salman Khan is not true. He was very much present in the previous incident, and therefore, it is natural that he would have visited hospital with Arman Khan also.
11. In the present case, D.P. Mishra (PW-2), Lokesh (PW-8), Anoop Choubey (PW-9), Vilas Mishra (PW-10), Amit Mishra (PW-11) and Dhiraj Shendre (PW-15) were examined as eye-witnesses. Out of these witnesses, Lokesh (PW-8) and Anoop Choubey (PW-9) have turned hostile. They did not support the prosecution case, whereas Dhiraj Shendre (PW-15) seems to be a tutored witness. According to Dhiraj Shendre, incident took place in the OPD of the hospital, whereas incident took place in O.T. of the hospital, therefore, the evidence of witness Dhiraj Shendre cannot be relied upon. Similarly, D.P.Mishra (PW-2) and Amit Mishra (PW-11) have claimed that they saw the incident from the window of the O.T., whereas it was not reasonably possible to see the incident from the windows, because from the position of the windows in O.T. as shown in the map Ex.P-2, it is clear that there were 2-3 corridors in the hospital. The corridors were connected with labour room and OT room. There was no window in the corridors. Windows, which were in the OT room, opened in the courtyard and no gate has been shown in the map by which it can be said that D.P. Mishra (PW-2) and Amit Mishra (PW-11) could go to the courtyard near the windows. However, at the time of preparation Ex.P-2, D.P.Mishra (PW-2) has shown the window, by which he has seen the incident.
12. Under these circumstances, only reliable witnesses remained is injured Vilas Mishra (PW-10), who himself has stated that Salman Khan assaulted him with dressing tray on his head. He has not mentioned that any second assault had been given by Salman Khan. He further deposed that accused Samarjeet and Arman Khan assaulted him with scissors causing injury in his abdomen, face and other places, whereas the accused Raju assaulted him by kicks and fists. Witness D.P. Mishra (PW-2) has accepted in para 13 of his statement that Raju has lost his one arm prior to this incident, therefore, it was not possible for Raju to participate in such incident. There was no injury shown by Dr. V.K. Choudhary (PW-5) in confirmation of that assault caused by accused Raju, therefore, it is highly doubtful that accused Raju has assaulted the injured Vilas in any manner.
13. Amit Mishra (PW-11), brother of injured Vilas Mishra has lodged Dehati Nalishi Ex.P-14, just after the incident, in which he has stated that accused Samarjeet assaulted Vilas by a dressing scissors, but no allegation against Arman Khan has been made in the FIR that he assaulted Vilas with the help of dressing scissors, therefore, the statement of various witnesses that the accused Arman Khan assaulted Vilas by scissors seems to be after thought. Arman Khan did not assault the injured Vilas by scissors. No eye-witness informed the trial Court that Arman Khan had assaulted the injured Vilas by kicks and fists. If the evidence given by Dr. V.K. Choudhary (DW-1), the defence witness is considered in the present context, then it would be clear that prior to this incident, Arman Khan had already been brought to the hospital in a badly injured condition and he was being examined by Dr. Choudhary just before the incident and he was taking treatment at that time, therefore, it was not possible for Arman Khan in such a condition that he could participate in the incident, hence presence of Arman Khan in the incident becomes doubtful. However, by the evidence of injured Vilas, version of FIR, and the corresponding injuries sustained by Vilas, it is proved that the accused Samarjeet caused 5-7 injuries to Vilas by the dressing scissors. Out of these injuries, five injuries were caused in the abdomen of Vilas and they were fatal.
14. In view of the aforesaid discussion, in our opinion, it is not proved beyond reasonable doubt that the accused Raju alias Rajesh or Arman Khan participated in the incident, however it is proved beyond reasonable doubt that accused Samarjeet assaulted the injured Vilas by dressing scissors brutally and caused fatal injury to injured Vilas, whereas accused Salman Khan assaulted injured Vilas only once by dressing tray causing a simple injury on his head.
15. Learned counsel for the appellants (accused) has submitted that only by the nature of injuries, act of the accused cannot be ascertained. No accused was armed when they entered into the O.T. of the hospital, and therefore, there was no intention of these accused- appellants to cause death of victim Vilas. He placed reliance on the case law "State of MP v. Saleem @ Chamaru & another" [(2005) 5 SCC 554], in which it is held that for constitution of offence under Section 307 of IPC, intention or knowledge is important and injury is not so important. Nature of injury can be used to assess the intention of the accused.
16. In the present case the main assailant is accused Samarjeet, who caused fatal injuries to the injured Vilas in his abdomen. By the seizure memo Ex.P-4, the size of the scissor was found to be of 6 1/2". Dr. Choudhary found the depth of various wounds in abdomen to be 2 cm each. By these facts, it is clear that accused Samarjeet assaulted injured Vilas by scissor in a forceful manner. Even he did not stop his act after giving 1-2 blows. He gave more than 5 scissors blows, which were on the vital part of the body i.e. abdomen, therefore, by the act of accused Samarjeet, his intention can be assessed. With the help of nature of injuries and the act of accused Samarjeet, it can be said that he intended to cause death of injured Vilas, and therefore, he was guilty for commission of offence under Section 307 of IPC. The learned First Additional Sessions Judge rightly held him guilty for the said offence.
17. As discussed above, it is clear that it is highly doubtful that accused Arman Khan was present at the time of incident or in the occurrence, therefore, he is entitled to get benefit of doubt, hence it cannot be said that he assaulted the injured Vilas in any manner or he had any common intention with accused appellant Samarjeet. Therefore, he cannot be convicted for commission of offence under Section 307 of IPC or any lesser offence of the same nature either directly or with the help of Section 34 of IPC. Similarly, it is clear that accused Raju alias Rajesh could not assault the injured Vilas with only one arm and no injury was found on the body of injured Vilas, therefore, no overt-act of Raju alias Rajesh is proved beyond reasonable doubt by which it could be said that he assaulted the injured Vilas or he had any common intention with accused Samarjeet. In such circumstances, accused Raju alias Rajesh also cannot be convicted for commission of offence under Section 307 of IPC or for inferior offence of the same nature either directly or with the help of Section 34 of IPC.
18. In the incident it is proved that accused Salman Khan assaulted the injured Vilas with a dressing tray and caused a simple injury in the very beginning. He did not assault further or after the assault made by accused Samarjeet. The act of the accused Samarjeet was so sudden, so that accused Salman Khan could not have imagined that Samarjeet would cause such stab injuries to the injured Vilas by scissors. Therefore, looking to the act of accused Salman Khan, it cannot be said that he had any common intention with accused Samarjeet for commission of offence under Section 307 of IPC, hence accused-appellant Salman can be convicted for his own act, which comes under Section 323 of IPC instead of Section 307 of IPC. Since the charges for offence under Section 307 of IPC are higher, therefore, accused Salman Khan can be convicted for lower offence of the same nature.
19. Learned counsel for the State has argued in his appeal under Section 377 Cr.P.C that the acts of accused Arman Khan and Salman Khan are grave, and therefore, their sentences be enhanced. But after the discussion in foregoing paras it is clear that accused Arman Khan cannot be convicted for commission of offence under Section 307 of IPC, therefore, his sentence for commission of offence under Section 307 of IPC deserves to be quashed, hence there is no question of enhancement of sentence of accused Arman Khan. Similarly, the accused Salman Khan has not committed the offence punishable under Section 307 of IPC, and looking to his overt-act, he can be convicted for commission of offence under Section 323 of IPC only, therefore his sentence should be assessed afresh, hence his sentence cannot be enhanced as prayed by learned counsel for the State. Under these circumstances, State appeal deserves to be dismissed.
20. The appellants Arman Khan and Raju @ Rajesh cannot be convicted for any offence, therefore, the Criminal Appeal No.56/2008 in regard to them is hereby allowed. Their conviction and sentence passed by the Court below under Section 307 read with Section 34 of IPC is hereby set aside. They are acquitted of the aforesaid charges. They are on bail. Their bail bonds stand discharged. They will be entitled to get the amount of fine back, if deposited in the trial Court.
21. Criminal Appeal in respect to accused Salman Khan is partly allowed. His conviction under Section 307 of IPC is hereby set aside. He is acquitted from the charge under Section 307 read with Section 34 of IPC, but he is convicted for offence punishable under Section 323 of IPC. So far as appeal of accused Samarjeet is concerned, his appeal fails and deserves to be dismissed.
22. So far as sentence is concerned, it has come on record that the main victim Vilas has filed an application for compromise before this Court and has sought permission to do compromise. Though this Court has not given any permission, because the offence as alleged was not compoundable, but it was directed that the consequence of that application may be considered at the time of awarding sentence, hence that fact should be considered in the present judgment.
23. Since appellant-accused Salman Khan has been convicted under Section 323 of IPC, taking into consideration his compromise application and the fact that the offence under Section 323 of I.P.C. is compoundable, he is acquitted.
24. Accused Samarjeet has also remained in custody for a period near about 27-28 days in this case. Though considering the gravity of offence, his custody period seems to be lesser, but since the injured Vilas Mishra has pardoned the accused Samarjeet and has filed compromise application, he deserves not to be sent to jail again. However, it seems appropriate that fine imposed by the Court below be increased. Accordingly, his sentence of imprisonment is reduced to the period of custody already undergone by him and the fine amount imposed by the Court below is hereby enhanced to Rs.25,000/- (Rupees twenty five thousand). In default, he will undergo rigorous imprisonment of one and half years.
25. In the light of above discussion, the Criminal Appeal No.422/2008 preferred by the State is dismissed. Criminal Appeal No.56/2008 is partly allowed.
26. It is made clear that no interference is called for in the impugned judgment regarding disposal of the property of the case passed by the learned First Additional Sessions Judge, Waraseoni District Balaghat.