Mukesh Mehta Vs. the State of M.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1051873
CourtMadhya Pradesh High Court
Decided OnJul-02-2013
AppellantMukesh Mehta
RespondentThe State of M.P.
Excerpt:
1 high court of madhya pradesh : jabalpur single bench : hon. shri justice g.s. solanki criminal appeal no.596/1997 mukesh s/o krishna datt mehta vs. state of madhya pradesh shri ishan soni, advocate for the appellant shri a.k. singh, panel lawyer for the state. judgment (02.07.2013) appellant has preferred this criminal appeal under section 374(2) of the code of criminal procedure being aggrieved by the judgment dated 02.01.1997 passed by third additional sessions judge, sagar in s.t. no.230/1994, whereby the appellant has been convicted under sections 307 and 326 of i.p.c. and sentenced to r.i. for 5 years with fine of rs.1,000/- and r.i. for 3 years with fine of rs.1,000/- respectively with default stipulations.2. prosecution case in short was that on 09.03.1994 at about 6.30 p.m. one chutkal @ prem narayan (p.w.-3) was sitting at the shop of vijay gautam (p.w.-2). it is alleged that at that time appellant/accused mukesh came there having a knife in his hand. he abused chutkal and thereafter assaulted 2 him with knife. therefore, chutkal sustained injury on his chest. murari pandey (p.w.-4) intercepted him and tried to save chutkal, appellant mukesh also assaulted murari pandey by knife and he sustained injury on his left hand. murari pandey (p.w.-4) lodged the first information report (ex. p-4) at police station kotwali sagar. injured chutkal @ prem narayan and murari pandey were sent for medical examination. dr. r.k. dixit (p.w.-7) of district hospital, sagar examined them and prepared the mlc report of murari pandey (exhibit p-8) and mlc report of chutkal @ prem narayan (exhibit p-9).3. appellant was arrested and knife/gufti has been seized at the instance of appellant.blood stained clothes of injured and weapon of offence were sent to the forensic science laboratory sagar for examination. report of assistant chemical examiner of fsl, sagar(exhibit p-15) and report of serologist (exhibit p-16) received from fsl, sagar are also on record.4. after due instigation, appellant/accused has been charge-sheeted before judicial magistrate sagar, who in turn committed the case to the court of sessions. the additional sessions judge framed charges under sections 307, 324 and 326 of i.p.c. against the appellant”5. appellant abjured the guilt and pleaded false implication. he adduced rameshwar vishwakarma (d.w.-1) as defence witness.after conclusion of trial and after appreciation of evidence, trial court convicted and sentenced the appellant/ accused as mentioned hereinabove. hence, this appeal.6. learned counsel appearing on behalf of the appellant submitted that the trial court has committed an illegality in not appreciating the evidence on record in proper perspective. he further submitted that as per prosecution story, chutkal said to have been assaulted by the appellant, when he was rushed towards the kulia but at the time of trial, chutkal as well as murari pandey had not stated that they have assaulted at kulia. in these circumstances, the place of incident has been changed, the trial court has not considered this aspect of the case. he further submitted that after dr. r.k. dixit (p.w.-7) has stated that the injury sustained by chutkal @ prem narayan may be dangerous to life and he further stated that for the final opinion about the injury, he has forwarded the injured to surgical specialist. however, no surgical specialist has been produced before the court. in the circumstances, injury sustained by chutkal @ prem narayan cannot be said to be dangerous to life. he further submitted that chutkal & prem narayan has sustained only one incised wound, there is no repeated blow caused by the appellant to 4 him. this shows that appellant/accused has no intention to kill him. in these circumstances, the trial court has committed an illegality in recording the conviction under section 307 of i.p.c.7. he further submitted that injured murari has sustained only one injury on his left hand, which was not on the vital part of the body. therefore, the trial court committed an illegality in recording the conviction of the appellant under section 326 of i.p.c. and prays that the appeal be allowed.8. learned panel lawyer appearing on behalf of respondent state has supported the conviction and sentence recorded by the trial court and prays for dismissal of the appeal.9. i have perused the impugned judgment alongwith the statements recorded before the trial court.10. it is true that there is some discrepancy in the statement of chutkal @ prem narayan (p.w.-3) and murari pandey (p.w.-4) is on record regarding the place of incident, but it is not very material. it could not go to the root of the case. it is a matter of common experience that when quarrel taken place between two parties, one tried to attack on another and certainly, the injured person tried to rushed from the original spot. chutkal @ prem narayan (p.w.-3) stated that appellant has assaulted him. therefore, he sustained injury on his chest. he further stated that when murari pandey (p.w.-4) 5 came to rescue him, appellant also assaulted him on his hand. this fact is duly corroborated by murari pandey (p.w.-4). this fact is further corroborated by one ravi shanker (p.w.-5) who was present at the time of incident near the beetal shop of vi- jay gautam. however, vijay gautam (p.w.-2) has not sup- ported the case of prosecution and has been declared hos- tile. he has been cross-examined by the prosecution but noth- ing has been brought in his cross-examination to support the version of prosecution. it is well settled principle of law that evidence has to be weighed and not to be counted. the statement of chutkal @ prem narayan (p.w.-3), which is duly corroborated by murari pandey (p.w.-4) and ravi shanker (p.w.-5) is considered, keeping in view the aforesaid principle of law. their evidence is further corroborated by fir (ex. p-4) and the statement of dr. r.k. dixit (p.w.-7), who treated the injured person on the date of incident.12. in the circumstances, it is proved on record that appellant has assaulted chutkal @ prem narayan (p.w.-3) and murari pandey (p.w.-4) and they sustained injuries and they were examined by dr. r.k. dixit (p.w.-7). it reveals on careful consideration of statement of dr. r.k. dixit that he was not certain in regard to the nature of injury sustained to chulkul @ prem narayan, therefore, he only opined that injury sustained by chutkal @ prem narayan may be dangerous to life. he 6 further admitted that he forwarded the injured to the surgical specialist for final opinion but no surgical specialist has been produced by the prosecution as well as no report of surgical specialist is brought on record. it is also on record that appellant has not made any repeated blow to him. in the circumstances, the trial court has committed an illegality in appreciating the aforesaid evidence and recording the conviction under section 307 of i.p.c. considering the nature of injury alongwith the single blow, the prosecution has only proved the case under section 326 of i.p.c. in regard to the injury caused to chutkal @ prem narayan.13. as far as the injury of murari pandey is concerned, he sustained grievous injury on his left hand and his muscles were badly raptured and the same was caused through and through the muscles. in the circumstances, the trial court has not committed any illegality in recording the conviction under section 326 of i.p.c. in regard to the injury caused to murari pandey and the same is hereby affirmed.14. thus, the appeal is partly allowed. the conviction of the appellant under section 307 of i.p.c. is hereby set aside. instead appellant is convicted under section 326 of i.p.c.(two counts) and his sentence is reduced to rigorous imprisonment for one year and fine of rs.1,000/- (on each count). both the sentences of rigorous imprisonment shall run concurrently”16. appellant is on bail. he is directed to surrender before the trial court to suffer remaining part of sentence.17. record of the trial court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (g.s. solanki) judge gn
Judgment:

1 HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH : HON. SHRI JUSTICE G.S. SOLANKI Criminal Appeal No.596/1997 Mukesh S/o Krishna Datt Mehta Vs. State of Madhya Pradesh Shri Ishan Soni, Advocate for the appellant Shri A.K. Singh, Panel Lawyer for the State. JUDGMENT

(02.07.2013) Appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 02.01.1997 passed by Third Additional Sessions Judge, Sagar in S.T. No.230/1994, whereby the appellant has been convicted under Sections 307 and 326 of I.P.C. and sentenced to R.I. for 5 years with fine of Rs.1,000/- and R.I. for 3 years with fine of Rs.1,000/- respectively with default stipulations.

2. Prosecution case in short was that on 09.03.1994 at about 6.30 P.M. one Chutkal @ Prem Narayan (P.W.-3) was sitting at the shop of Vijay Gautam (P.W.-2). It is alleged that at that time appellant/accused Mukesh came there having a knife in his hand. He abused Chutkal and thereafter assaulted 2 him with knife. Therefore, Chutkal sustained injury on his chest. Murari Pandey (P.W.-4) intercepted him and tried to save Chutkal, appellant Mukesh also assaulted Murari Pandey by knife and he sustained injury on his left hand. Murari Pandey (P.W.-4) lodged the First Information Report (Ex. P-4) at Police Station Kotwali Sagar. Injured Chutkal @ Prem Narayan and Murari Pandey were sent for medical examination. Dr. R.K. Dixit (P.W.-7) of District Hospital, Sagar examined them and prepared the MLC report of Murari Pandey (Exhibit P-8) and MLC report of Chutkal @ Prem Narayan (Exhibit P-9).

3. Appellant was arrested and knife/gufti has been seized at the instance of appellant.Blood stained clothes of injured and weapon of offence were sent to the Forensic Science Laboratory Sagar for examination. Report of Assistant Chemical Examiner of FSL, Sagar(Exhibit P-15) and report of Serologist (Exhibit P-16) received from FSL, Sagar are also on record.

4. After due instigation, appellant/accused has been charge-sheeted before Judicial Magistrate Sagar, who in turn committed the case to the Court of Sessions. The Additional Sessions Judge framed charges under Sections 307, 324 and 326 of I.P.C. against the appellant”

5. Appellant abjured the guilt and pleaded false implication. He adduced Rameshwar Vishwakarma (D.W.-1) as defence witness.After conclusion of trial and after appreciation of evidence, trial court convicted and sentenced the appellant/ accused as mentioned hereinabove. Hence, this appeal.

6. Learned counsel appearing on behalf of the appellant submitted that the trial Court has committed an illegality in not appreciating the evidence on record in proper perspective. He further submitted that as per prosecution story, Chutkal said to have been assaulted by the appellant, when he was rushed towards the kulia but at the time of trial, Chutkal as well as Murari Pandey had not stated that they have assaulted at kulia. In these circumstances, the place of incident has been changed, the trial Court has not considered this aspect of the case. He further submitted that after Dr. R.K. Dixit (P.W.-7) has stated that the injury sustained by Chutkal @ Prem Narayan may be dangerous to life and he further stated that for the final opinion about the injury, he has forwarded the injured to Surgical Specialist. However, no Surgical Specialist has been produced before the court. In the circumstances, injury sustained by Chutkal @ Prem Narayan cannot be said to be dangerous to life. He further submitted that Chutkal & Prem Narayan has sustained only one incised wound, there is no repeated blow caused by the appellant to 4 him. This shows that appellant/accused has no intention to kill him. In these circumstances, the trial Court has committed an illegality in recording the conviction under Section 307 of I.P.C.

7. He further submitted that injured Murari has sustained only one injury on his left hand, which was not on the vital part of the body. Therefore, the trial Court committed an illegality in recording the conviction of the appellant under Section 326 of I.P.C. and prays that the appeal be allowed.

8. Learned Panel Lawyer appearing on behalf of respondent State has supported the conviction and sentence recorded by the trial Court and prays for dismissal of the appeal.

9. I have perused the impugned judgment alongwith the statements recorded before the Trial Court.

10. It is true that there is some discrepancy in the statement of Chutkal @ Prem Narayan (P.W.-3) and Murari Pandey (P.W.-4) is on record regarding the place of incident, but it is not very material. It could not go to the root of the case. It is a matter of common experience that when quarrel taken place between two parties, one tried to attack on another and certainly, the injured person tried to rushed from the original spot. Chutkal @ Prem Narayan (P.W.-3) stated that appellant has assaulted him. Therefore, he sustained injury on his chest. He further stated that when Murari Pandey (P.W.-4) 5 came to rescue him, appellant also assaulted him on his hand. This fact is duly corroborated by Murari Pandey (P.W.-4). This fact is further corroborated by one Ravi Shanker (P.W.-5) who was present at the time of incident near the beetal shop of Vi- jay Gautam. However, Vijay Gautam (P.W.-2) has not sup- ported the case of prosecution and has been declared hos- tile. He has been cross-examined by the prosecution but noth- ing has been brought in his cross-examination to support the version of prosecution. It is well settled principle of law that evidence has to be weighed and not to be counted. The statement of Chutkal @ Prem Narayan (P.W.-3), which is duly corroborated by Murari Pandey (P.W.-4) and Ravi Shanker (P.W.-5) is considered, keeping in view the aforesaid principle of law. Their evidence is further corroborated by FIR (Ex. P-4) and the statement of Dr. R.K. Dixit (P.W.-7), who treated the injured person on the date of incident.

12. In the circumstances, it is proved on record that appellant has assaulted Chutkal @ Prem Narayan (P.W.-3) and Murari Pandey (P.W.-4) and they sustained injuries and they were examined by Dr. R.K. Dixit (P.W.-7). It reveals on careful consideration of statement of Dr. R.K. Dixit that he was not certain in regard to the nature of injury sustained to Chulkul @ Prem Narayan, therefore, he only opined that injury sustained by Chutkal @ Prem Narayan may be dangerous to life. He 6 further admitted that he forwarded the injured to the Surgical Specialist for final opinion but no Surgical Specialist has been produced by the prosecution as well as no report of Surgical Specialist is brought on record. It is also on record that appellant has not made any repeated blow to him. In the circumstances, the trial Court has committed an illegality in appreciating the aforesaid evidence and recording the conviction under Section 307 of I.P.C. Considering the nature of injury alongwith the single blow, the prosecution has only proved the case under Section 326 of I.P.C. in regard to the injury caused to Chutkal @ Prem Narayan.

13. As far as the injury of Murari Pandey is concerned, he sustained grievous injury on his left hand and his muscles were badly raptured and the same was caused through and through the muscles. In the circumstances, the trial Court has not committed any illegality in recording the conviction under Section 326 of I.P.C. in regard to the injury caused to Murari Pandey and the same is hereby affirmed.

14. Thus, the appeal is partly allowed. The conviction of the appellant under Section 307 of I.P.C. is hereby set aside. Instead appellant is convicted under Section 326 of I.P.C.(two counts) and his sentence is reduced to rigorous imprisonment for one year and fine of Rs.1,000/- (on each count). Both the sentences of rigorous imprisonment shall run concurrently”

16. Appellant is on bail. He is directed to surrender before the trial Court to suffer remaining part of sentence.

17. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (G.S. Solanki) Judge gn