Rajuwa Vs. State of Madhya Pradesh - Court Judgment

S.R. Waghmare, J.

1. This appeal has been filed by appellant-Rajuwa son of Nanuram Kushwah against judgment of conviction passed by Additional Sessions Judge, Indore, dated 8-11-1994 in Sessions Trial No. 427/92, convicting the accused under Section 324 of the I.P.C. and sentencing him to three years of rigorous imprisonment.

2. Brief facts as alleged by the prosecution are that Babu and accused-Rajuwa were resident of North Toda, Indore and on the date of incident i .e. 26 8-1991, Babu Sonkar and Mukesh had gone to see the Gujaria fair and were returning home at 9.30 p.m., when near the Indore Development Authority building they found the accused standing there and he had a gupti (knife) in his hand and he threatened Babu Sonkar stating that Babu Sonkar had filed report to the Police Station, M.G. Road against his friend and only stating so, he suddenly plunged the knife into the stomach of Babu, threatening him to kill. As a result of which Babu Sonker fell down on the ground bleeding and Mukesh started shouting and Babu Sonkar's mother Pushpabai came running to the place of the incident whereas the accused ran away. Thereafter Mukesh and Pushpabai, took Babu in auto rickshaw to Police Station Katkat-Pura, Indore, and Mukesh filed the F.I.R. and thereafter Babu Sonkar was sent to the M.Y. Hospital, Indore. The offence was registered thereafter he was arrested and iron gupti/knife was recovered from him, the blood-stained clothes were also seized and sent to the F.S.L. and report received from the F.S.L. indicated that knife had human blood on it. On completion of the investigation the challan was put before competent Court.

3. The accused abjured his guilt and stated that he was falsely implicated in the matter He did not cause any injury to any person of in the name of Babu Sonkar with any gupti or knife. However, he did not examine any witnesses in his defence. The trial Court on considering the testimony of witness P.W. 1 to P.W. 7 and the Ex. P-l to Ex. P-l1 on record, convicted the accused and sentenced him as (herein) above stated.

4. Being aggrieved the accused-appellant has filed a present appeal. The counsel for the appellant stated that the Judgment of the trial Court was contrary to provision and facts of the case mainly on the ground that the evidence did not support the prosecution story at all. There were improvisations in the statement of injured witness Babu Sonkar and Mukesh. The main crux of the argument by counsel for the appellant was that there was no medical evidence at all available on record to substantiate the prosecution story or prove that any injury had occurred on the person of Babu Sonkar and hence the conviction itself was bad under the law. Counsel questioned the fact that shockingly despite lack of any medical evidence to substantiate the charge how could the conviction be imposed even under Section 320(4) of the I.P.C. when the trial Court had acquitted accused under Section 307 on this very ground. The counsel for the appellant urged that injured eye-witness Babu P.W. 3 and Mukesh, P.W. 7 were not at all reliable witnesses, Mukesh was related to Babu and there were lot of improvisions and omissions in their statement.

5. He further urged that Babu the injured witness, has admitted that the accused-Rajuwa was related to him, being the son of his maternal aunt (Mausi) and there had been previous enmity between them due to the fact that this money has been snatched by one Harish, Shailesh, Munna and Zipi and the matter had been reported to the police by him on the said date of the incident. He mentioned that accused-Rajuwa came along at about 10.30 p.m. along with another person and snatched money from him and on resisting had plunged the knife into his stomach. The knife had initially struck him on hand and the second blow struck/hit him in the stomach. There is material omission here, since his statement under Section 161 of the Cr. P.C. before the police does not mention any other person being present.

6. Counsel pointed out that Mukesh P.W. 7, was also interested witness and known to the accused and was living in the vicinity and has admitted in his deposition that he was friend of Babu Sonkar, the injured witness. On the said date of the incident although he has been cited as an eye-witness by the prosecution he had run away from the scene. According to his own deposition he had returned with Pushpabai the mother of Babu P.W. 4. The improvement in his statement he had stated that the F.I.R. was lodged by the Police Officer Shri G. R. Randhe in the hospital whereas the officer P.W. (9), Shri G. R. Randhe, has stated that the FIR was lodged in the Police Station. Moreover, his deposition also indicates there was animosity of accused with him due to a previous quarrel and the false implication is borne out by the very fact.

7. Regarding Ramesh son of Bansilal P.W. 6 counsel submitted that he was a driver by profession and witness of recovery of the knife (gupti) along with one Sunil who has not been examined in the instant case. Counsel for the accused-appellant urged that both these witness were also related witnesses and hence their testimony ought not to be relied on.

8. Thus, the counsel submitted that in sum totality the prosecution could not cogently prove that any injury was sustained by the Babu Sonkar, since there was no medical evidence on record at all, the doctor had not been examined, there is no medico legal certificate or any document what so ever, the prosecution case was absolutely weak and benefit of doubt accrued to the accused.

9. In the alternative, counsel made a request that the conviction under Section 324 may be set aside and the accused may be convicted under Section 323 of the I.P.C. and sentence of the imprisonment had already undergone.

10. The counsel for the respondent-State per contra however, fully supported the judgment and stated that the trial Court had appreciated the evidence correctly and had acquitted the accused from offence under Section 307 due to lack of medical evidence. He has quite candidly admitted that doctor who had examined the accused did not turn up in the Court despite service of summons and hence the trial Court in the end has drawn an adverse conclusion against the prosecution acquitted the accused from Section 307 of I.P.C. Counsel however, stated that since there were eye-witnesses to the incident the injured eye-witness Babu Sonkar himself whose testimony fully corroborated by Mukesh P.W. 7 and that of mother Pushpabai being witness of res gestae along with Investigation Officer Shri GIRI Randhe P.W. 9, have stated that Babu was injured in the stomach by gupti/knife and he was taken to M.Y. Hospital, Indore for treatment. Counsel pointed out that as, there was clear cogent testimony of Babu P.W.3 who stated that on the date of the incident Babu was going along with Mukesh P.W. 7 at 10 p.m from near Indore Development Authority building when Rajuwa along with another person tried to snatch money from his hand, on resistance Rajuwa had taken out the gupti/knife and had started belabouring him, the first struck hit him on the right hand on two places and then on his stomach near the naval and he had fallen down on the ground unconscious. Thereafter his mother, another brother and Mukesh had arrived on the scene and had taken him to M.Y. Hospital where he was treated for ten days. Mukesh P.W. 7 has stated he knew both the accused as well as injured witness Babu, since he was resident of neighbour North Toda. Corroborating the testimony injured Babu has also stated that around 10.30 to 11.00 o'clock on the date of the incident while passing from Indore Development Authority building Rajuwa had first threatened Babu stating that he had filed a false report before Police Station and that is why he would finish him on that day and so saying he had plunged the knife into the stomach of Babu, feeling frightened Mukesh ran to Babu's house to fetch his mother. However, when they returned near the Indore Development Authority building, Rajuwa the accused had already fled away, thereafter he had taken Babu along with Babu's mother to Kat-Katpura Police Station; where upon the police officer Shri G. R: Randhe P.W. 9, looking to the serious nature of injury on Babu had directed them to the M.Y. Hospital and on reaching M.Y. Hospital the FIR had been lodged by him.

11. The Investigating Officer Shri G. R. Randhe P.W. (9) was Deputy Officer of Police Station Kat-Katpura, Indore at the time of incident and has stated that about 10.15 p.m. on the said date Mukesh Koshthi had come to file a report which was scribed by him vide Ex. P/7, stating that injured Babu was referred to hospital and the injury had been noted in Ex. P/8. Whereas Ex. P/8 is a letter of reference, the injury had been noted by one Dr. Chaubey, who had made a short note on the back page of Ex. P/8 stating that the injury sustained by Babu son of Tarachand was grievous in nature which was dangerous to life. The doctor had signed the same on 15-10-1991. Thereafter Shri G. R. Randhe P.W. 9, stated that he had gone with the Town Inspector S.P. Mehta and had got the spot map prepared Ex. P/2, thereafter he had arrested accused-Rajuwa vide Panchnama P-5. Thus, counsel for the State urged although there was scanty medical evidence yet on the basis of the occular testimony and the testimony of the Investigating Officer vide Ex. P/8 it could be safely concluded that Babu Singh the injured witness had incurred grievous injury and hence the trial Court had rightly convicted the accused under Section 324 instead of Section 307 of the I.P.C. He stated that the complete acquittal was not possible under the circumstances when there was such glaring evidence available on record and the submission of the counsel for accused was preposterous and ought to be discarded as such. The recovery from the accused vide Ex. P/6 duly witnessed and signed by Ramesh P.W. 1 and Sunil also substantiated the allegation against the accused and counsel prayed that there was no infirmity in the order passed by the trial Court convicting the accused under Section 324 of the I.P.C. and sentencing him to imprisonment. Looking to the way in which the injury caused, counsel stated that the accused did not require any sympathy and prayed for dismissal of the appeal.

12. On considering the above submissions and perusing the record, I find it is shocking that Ex.P/8 is merely a small slip of paper written by the Investigating Officer, Shri Randhe P.W. 9 addressed to the R.S.O. at M.Y. Hospital, Indore, requesting that Babu son of Tarachand Sonkar had received injuries during a quarrel and was admitted in the hospital on 26-8-1991 and whose injuries required verification which was to be sent to the Sessions Judge and the request was made on his behalf. This small piece of paper contains an endorsement on the back by one Dr. Chaubey signed on 15-10-1991 stating that injury was grievous in nature which was sustained by Babu son of Tarachand and was dangerous to life. The Investigating Officer has agreed to have put his signature on the documents for proving after verifying the same in Court as Ex. P/8. The trial Court has observed that the doctor did not turn up despite several summons and had drawn the adverse conclusion regarding injury received by Babu P.W. 3 after having considered the testimony of the other witnesses.

13. Moreover, having sought the opinion of Shri S.R. Bhargav, Sr. Counsel available in this Court he has rendered valuable help in considering the question whether he had come across such a case of conviction where no medical record was available, he has cited 2007 Cri LJ (NOC) 564 (Pat) page 145 Balam Yadav v. State of Bihar and Dilip Kumar v. State of Bihar and also on Ram Sagar Rai v. State of Bihar 2007 Cri LJ (NOC) 571 Patna where the High Court at Patna while considering conviction of accused under Section 302 of the IPC under similar circumstances causing injury to the informant, and found however that location of injury, their number and nature was not explained; the doctor was not examined and injury report not exhibited and since there was no finding of an expert to lead to a conclusion that a bomb had been exploded and caused injuries on informant which were indeed caused by bomb explosion as was recorded, also found that since the informant had sustained pellet injury on face which is non vital part of human body and same was not buttressed by medical evidence the participation of accused in alleged occurrence, doubtful, and hence conviction was set aside.

On considering these precedents, I find that the allegations are against the accused who was alleged to have hurled a bomb whereas in the instant case such a benefit cannot be extended to the accused, since the knife recovered from him vide Ex. P/6 which is a sharp cutting instrument.

14. I find that there is no getting away from the singular fact that the injury to compliance Babu P.W. 3 did occur although the eye-witnesses are not very reliable, and since the Investigating Officer being a Public Officer had made categorical statement to the effect mat the important fact of the recovery of the gupti/knife from the accused cannot be lost sight of or ignored. So also as already observed above the endorsement on the back of Ex. P/8, cannot be overlooked and ignored. It clearly establishes the fact that Babu P.W. 3 did receive a grievous injury.

The conviction of the accused under Section 324 by the trial Court cannot be faulted with and is impeccable under the circumstances and, therefore, it is hereby affirmed.

15. However, regarding the sentence, I find that the trial Court has not imposed any fine, then under the circumstances benefit of doubt must accrue to the accused. Since due to the negligence on the part of the prosecution, the defence of the accused has been seriously affected and sentence is altered to one of fine of Rs. 10,000/- and the imprisonment is reduced to the period already undergone.

16. This sum of Rs. 10,000/- shall be payable to injured/victim Babu under Section 357(1)(b) of the Cr. P.C. within a period of three months from date of this order. The sentence imposed is altered to the extent as herein above stated, subject to the payment of fine. In case of default of payment of fine the accused-Rajuwa shall undergo rigorous imprisonment of a period of six months.

Consequently, the appeal is partly allowed, the bail bonds of the appellant are hereby discharged.