Madhya Pradesh High Court
Sumit vs The State Of Madhya Pradesh on 23 December, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:36925
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 9935 of 2024
SUMIT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Navendu Joshi, learned counsel for the appellant.
Shri Surendra Gupta, learned Govt. Advocate for the respondent/State.
HEARD ON : 14.11.2024
PRONOUNCED ON : 23.12.2024
JUDGMENT
This criminal appeal under Section 374 of Cr.P.C. has been filed by the
appellants being disgruntled by the judgment dated 13.08.2024, passed by
the learned IInd Additional Sessions Judge, Disrict Ratlam, in Sessions Trial
No.110/2023, whereby the appellant has been convicted for offence under
Sections 307 & 450 of the Indian Penal Code, 1860 (hereinafter referred to
as “IPC“) and sentenced for 04 years R.I. & 02 years R.I. with fine of
Rs.2,000/- & Rs.1,000/- and default stipulations.
2. The case of the prosecution in brief is as follows that the
complainant Hariom Porwal (PW-1) resides in village Berchha and his
milk dairy shop is named as “Hariom Doodh Dairy”. The appellant Sumit
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used to come to the complainant’s shop to deliver milk, owing to which,
complainant knew the appellant. On 06.01.2023, at around 09:30 pm, the
complainant (PW-1) was selling milk at his milk shop, when the appellant-
Sumit came to his shop, he was in intoxicating condition on motorcyle and
he started to abuse him. While doing so, he asked to give milk. When the
complainant asked for money after giving him milk, the appellant said
that he did not recognize him and after buying milk he did not pay
money. Again complainant asked for money, on which, appellant
forcibly took milk from the complainant and threatened to kill him
without giving money. After sometime, the appellant came into his shop
and while abusing the complainant, stabbed him with a knife on his
stomach. Due to which, he got injured and bleeding was started. At that
time, complainant raised a noise, and people nearby the shop, came there
and appellant/Sumit ran away from there on his motorcycle. Doctor
Sanjay from his clinic located near the complainant’s shop, had given
first aid to the complainant and when brother Rajesh of the
complainant came to know about the incident, he reached on his shop and
took the complainant to the hospital by auto. Wherein he was admitted and
treated. Thereafter, the complainant has made a complaint. Upon the said
report, Police Station Industrial Area, District Ratlam lodged an FIR at
Crime No.14/2023 for the offence U/s 294, 324, 327, 458 & 506 of IPC.
3. The police after following the due procedure, prepared the spot map,
taken the statements of the witnesses, seized the articles, prepared the
medical documents, arrested the accused persons and after due
investigation, filed the charge-sheet under Sections 458, 327, 294, 324,
506, 307 & 329 of IPC. The matter was committed to the Court of
Sessions and made over to the learned Trial Court where upon the
charges are framed under Sections 294, 458, 327, 329, 307 & 506 (Part-II) of
IPC. The appellant abjured his guilt and took a plea that he had been falsely
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implicated and prayed for trial.
4. The prosecution on its behalf has examined as many as 10 witnesses
namely Sumit [sic] Hariom, complainant (PW-1), Rajesh Porwal, brother of
the complainant (PW-2), Laxminarayan (PW-3), Gourav Anand Sharma
(PW-4), Sanjay Sharma, Doctor (PW-5), Ajay (PW-6), Vikas (PW-7),
Kailash Saini, A.S.I./Investigating Officer (PW-8), Dr. Abhishek Arora,
Doctor (PW-9), Raisingh Rawat, Sub-Inspector (PW-10) have been adduced
in defence by the appellant. No witness has been produced in defence by the
appellant.
5. Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 13.08.2024
and finally concluded the case and convicted the appellant for commission
of the said offence under the provisions of Sections 307 & 450 of IPC
while acquitting them from the charges under Sections 294, 506 (Part-II),
327 & 329 of IPC.
6. Learned counsel for the appellant submits that the appellant is
innocent and the learned Trial Court has convicted the appellant wrongly
without considering the evidence available on record. He further submits that
in this case single blow was caused on the stomach of the injured. As per the
MLC report (Ex.P-10), only one injury (stab would of size 1.5X0.5 c.m.)
was found on his stomach. On the basis of single blow, appellant has been
convicted for the offence under Section 307 of IPC which is not in
consonance of law. The testimonies of the witnesses are full of discrepancies
and due to that discrepancies, witnesses are not reliable. Witnesses are
related to each other therefore, the testimonies of witnesses are not reliable.
In addition to that this is a case of Section 307 of IPC but only single injury
has been caused by the appellant with knife, hence, the case comes only
under the purview of Section 326 of IPC.
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7. In alternate, learned counsel for the appellant submits that the
learned trial Court has convicted the appellant under Section 307 & 450 of
IPC and sentenced for 04 years R.I. and 02 years R.I. which is on higher
side as per the provisions of law. The appellant has already completed
custody more than 01 year and 10 months of his incarceration period and
prays that appellant deserves some leniency as the appellant already
suffered the ordeal of the trial since 2023 i.e. for a period of more than 01
year. It is further submitted that appellant has not disputed the factum that
the appellant has assaulted the injured person, but, since the incident had
happened all of a sudden, it shall not come in purview of the offence under
Section 307 of IPC in view of the MLC report of Dr. Abhishk Arora
(PW-9). Hence, learned counsel prays that since the learned trial Court has
convicted the appellant wrongly on higher side, his sentence be reduced to
the period of already undergone.
8. Learned Government Advocate for the State has opposed the prayer
and has invited attention of the Court towards the conclusive paragraphs of
the impugned judgement, He has also submitted that the injured person has
received the injuries caused by the appellant and the learned trial Court has
rightly convicted the appellant by sentencing him appropriately. Hence, prays
for dismissal of the appeal.
9. In the backdrop of rival submissions, the question for
determination for deciding this appeal is as to whether the findings of
learned trial Court regarding conviction and punishment of the appellant
under Sections 307 & 450 of IPC is incorrect in the eyes of law and facts
or not ?
10. In order to bring home the charges, prosecution has relied upon
the evidence of witnesses Hariom (PW-1), Rajesh Porwal, brother of the
complainant (PW-2), Laxminarayan (PW-3), Gourav @ Anand Sharma
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(PW-4), Sanjay Sharma, Doctor (PW-5), Ajay (PW-6), Vikas (PW-7) but out
of them, witnesses Ajay (PW-6) and Vikas (PW-7) have been declared
hostile. Here, it is pertinent to mention that in the deposition sheet of learned
trial Court, the name of complainant has been mentioned as Sumit which is
the name of accused/appellant. Though, it is clarified by the signature of
witness Hariom put in his deposition, that means, the name Sumit has
wrongly been mentioned by the trial Court in deposition sheet due to
typographical error. For that reason, further, it will be addressed only as
Hariom, complainant (PW-1).
11. At the outset, the statement of Hariom, complainant (PW-1) is
required to be remunerated. He has clearly stated that on 06.01.2023 at 09:30
pm, appellant Sumit came to his shop to take milk and milk was supplied to
him. Then, complainant demanded money in liue of milk. On which
appellant declined to pay and after making nuisance, fled away from there.
Later on, after 10-15 minutes, he returned and when complainant was busy
in taking goods from his fridge for customers, appellant entered into shop
and assaulted the complainant Hariom with knife. The statement of this
witness finds support from Laxminarayan (PW-3). Laxminarayan (PW-3)
has clearly narrated that the accused Sumit had caused injury on the
complainant Hariom with knife on stomach. This witness also finds support
from the testimony of Dr. Abhishek Arora, Doctor (PW-9) as well as by
medical report (Ex.P/10). Dr. Abhishek Arora (PW-9) found one injury on
the stomach of inured measuring 1.5X0.5 c.m. The testimony of these
witnesses has not been controverted in their cross examination.
12. Further, The witnesses of seizure Rajesh Porwal, Brother of
injured (PW-2), Gourav @ Anand Sharma (PW-4) and Sanjay Sharma,
Doctor (PW-5) have supported the case of the prosecution. However, they
are not eye-witnesses and they arrived at the spot later on, nevertheless,
they will be taken into account under the rule of res gestae under Section
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6 & 7 of the Evidence Act, 1872. The testimony of these witnesses has not
been controverted in their cross-examination.
13. Now, the question as to whether, the appellant can be convicted
only on the basis of injured witness Hariom (PW-1). On this aspect, the
law is very clear that every injured witness has its special status in the
eyes of law. Having said that, this case is well fortified by injured Hariom
(PW-1). As far as the importance of testimony of injured witness Hariom
(PW- I) is concerned, the view of Hon’ble Apex court rendered in the case
of Bhajan Singh @ Harbhajan Singh and others Vs. State of Haryana
AIR 2011 SC 2552 is condign to quote here as under:-
“The testimony of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and place of
occurrence and this lends support to his testimony that he was
present at the time of occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. Such a witness comes with
a built-in guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailant(s) in order to falsely implicate
someone. “Convincing evidence is required to discredit an injured
witness.”
14. So far as the discrepancies and contradictions came in the statements of
witnesses are concerned, actually, counsel for the appellants was not able to
point out the discrepancies or contradictions which hit the root of case. With
regard to the discrepancies in the statements of witnesses, the Hon’ble Apex
court in Babasaheb Apparao Patil v. State of Maharashtra [AIR 2009 SC
1461] the Hon’ble Apex Court held as under:-
“12. It is to be borne in mind that some discrepancies in the
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affect the credibility of the evidence of the witness. Unless the
contradictions are material, the same cannot be used to jettison the
evidence in its entirety. Trivial discrepancies ought not to obliterate
an otherwise acceptable evidence. Merely because there is
inconsistency in evidence, it is not sufficient to impair the credibility
of the witness. It is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of his version that the
court would be justified in discarding his evidence.”
15. Shri Joshi, learned counsel for the appellant has expostulated that all
witnesses are related and interested witnesses, thus on the basis of their
testimonies, the appellant can not be convicted. Certainly, the witnesses are
related to each other. On this aspect in the case of “Dilip Singh vs. State of
Punjab” reported as AIR 1953 SC 364, the full Bench of Hon’ble Supreme
Court observed in para 26 as under:
“26. ……… Ordinarily, a close relative would be the last
to screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause’ for enmity, that there is a tendency to drag
in an innocent person against whom a witness has a
grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of
truth.”
16. Further in the case of Masalti vs. State of Uṭtar Pradesh reported in
[AIR 1965 SC 202] wherein it has been held in para 14 as under:
“14. ………. There is no doubt that when a criminal Court
has to appreciate evidence given by witnesses who areSignature Not Verified
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partisan or interested, it has to be very careful in weighing
such evidence. Whether or not there are discrepancies in
the evidence; whether or not the evidence strikes the
Court as genuine; whether or not the story disclosed by
the evidence is probable, are all matters which must be
taken into account. But it would, we think, be
unreasonable to contend that evidence given by witnesses
should be discarded only on the ground that it is evidence
of partisan or interested witnesses. Often enough, where
factions prevail in villages and murders are committed as
a result of enmity between such factions, criminal Courts
have to deal with evidence of a partisan type. The
mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of
justice.”
17. As such, the argument regarding interested witnesses is also appears to
be feeble arguments. So far as the relatedness and interestedness is concerned,
in a recent decision laid down by Hon’ble Apex Court in the case of Laltu
Ghosh vs. State of West Bangal AIR 2019 SC 1058 is relevant to be referred
here:
“This Court has elucidated the difference between
‘interested’ and ‘related’ witnesses in a plethora of cases,
stating that a witness may be called interested only when
he or she derives some benefit from the result of a
litigation, which in the context of a criminal case would
mean that the witness has a direct or indirect interest in
seeing the accused punished due to prior enmity or other
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accused”.
18. As per the human tendency, a close relative would put forth the actual
story of incident rather than hide the actual culprit and foist an innocent
person. Virtually, in many of the criminal cases, it is often seen that the
offence is witnessed by close relatives of the victim, whose presence on the
spot of incident would be natural and the evidence of such witness cannot
automatically be discarded by leveling them as interested witness.
19. In view of the aforesaid propositions, the evidenciary value of
witnesses’ testimony cannot be wiped out only on the basis of trivial
discrepancies and their relations with the injured.
20. The testimony of eye-witness is also well supported by medical
testimonies of Dr. Abhishek Arora (PW-9) as well as by medical report
(Ex.P/10) who found one injury on the stomach of inured measuring
1.5X0.5cm and the nature of the said injury was grievous in nature. The
prosecution case is also well supported by Investigating Officer Kailash
Saini (PW-8). In cross examination, nothing has been adverted by defence
counsel for controverting the testimony of all these witnesses. Hence, it is
well proved by the prosecution that the injured Hariom has received
grievous injury which has been caused by a knife.
21. Now, the question for consideration is as to whether the offence of
appellant came in purview of the attempt to murder. As per the prosecution,
only single blow was caused by the appellant Sumit on the Stomach of injured
Hariom. No repeated blow is adverted by prosecution witnesses.
22. Further, in view of the reports and the nature of the injuries, it cannot
be ascertained that the appellant had intention to murder, or knowledge as to
the fact that the injured would be killed by these injuries. The prosecution has
also not setup that the said injury was sufficient to cause death in the ordinary
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course of nature. In this regard, The Hon’ble Apex Court in the case of Jai
Narayan Singh vs. State of Bihar [AIR 1972 SC 1764] mandated as under:-
“11.Taking the case of appellant Suraj Mishra, we
find that he has been convicted under Section 307 IPC
and sentenced to 5 years rigorous imprisonment.
According to the evidence Suraj was responsible for the
chest injury which is described by Dr. Mishra P.W. 6 as a
penetrating wound 1 1/2″ x 1/2 x chest wall deep (wound
not probed) on the side of the right side of the chest.
Margins were clean out. Suraj, according to the evidence,
had thrust a bhala into the chest when Shyamdutt had
fallen as a result of the blow given by Mandeo with the
Farsa on his head. According to the Doctor the wound in
the chest was of a grievous nature as the patient
developed surgical emphysema on the right side of the
chest. There was profuse bleeding and, according to the
Medical Officer the condition of the patient at the time of
the admission was low and serious and the injury was
dangerous to life. Out of the four injuries which the
Medical Officer noted, this injury was of a grievous
nature while the other three injuries were simple in
nature. Where four or five persons attack a man with
deadly weapons it may well be presumed that the
intention is to cause death In the present case however,
three injuries are of simple nature though deadly
weapons were used and the fourth injury caused by Suraj,
though endangering life could not be deemed to be an
injury which would have necessarily caused death but for
timely medical aid. The benefit of doubt must, therefore,
be given to Suraj with regard to the injury intended to be
caused and, in our opinion, the offence is not one under
Section 307 IPC but Section 326 IPC is set aside and we
convict him under Section 326-IPC. His sentence of 5
years rigorous imprisonment will have to be reduced
accordingly to 3 years rigorous imprisonment.”
23. In a recent case of Mukesh S/o Jam Singh Damor vs. State of M.P. &
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Others 2022 Law Suit (MP) 165; High Court of M.P. Bench has observed as
under:-
“9. It is well settled that an act which is sufficient in the
ordinary course to cause death of the person, but the
intention on the part of the accused is lacking, the act
would not constitute an offence under Section 307 of
IPC. The medical evidence has to be taken for
determining the intention of the accused. The intention
and knowledge of the act being one of the major factor
i.e. used to decide conviction under Section 307 of IPC.
Before it is held that the act committed by the accused
amounts to attempt to murder, it should be satisfied that
the act was committed with such intention or knowledge
under such circumstances that if it had caused death, it
would have amounted to murder.”
24. In a recent case of Panchram vs. State of Chattisgarh & Another
reported in AIR 2023 SC 1801, the Hon’ble Apex has considered as under:-
“In his statement, the injured appearing as PW-1 submitted
that when Munna (PW 6) shouted for help, Kantilal (PW 8)
and Radheyshyam (PW 9) came there and seeing them the
accused ran away. However, Kantilal (PW 8) was declared
hostile. The prosecution had produced another witness
Radhey Shyam (PW 7). He was also declared hostile and
did not support the prosecution version. Even the scissors
which was seized by the police is small scissors which is
used by tailors. With the aforesaid evidence on record and
the kind of weapon used, in our view the offence will not
fall within Section 307 I.P.C. From the reasons for fight as
are emerging on record, it doesn’t seem to be pre-planned
act. It, at the most, can fall within the four corners of
Section 326 IPC as a sharp-edged weapon was used. The
injuries were not caused with an intention to cause death
and were not sufficient to cause death. Hence, in our view
the conviction of the appellant with respect Section 307
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Section 326 IPC is made out.”
25. It is worth to mention here that at the time of incident, injured Hariom
was a single person and appellant Sumit had gave a single blow on his
stomach. No repeated blows were caused on vital part of the injured. Since,
he has not caused repeated blows, the intention of causing death is evidently
lacking. Hence, in view of the law laid down by Hon’ble Apex Court, the
appellant cannot be punished under Section 307 of IPC for causing
voluntarily grievous injury which is punishable under Section 326 of 1PC.
26. So far as the offence under Section 450 of IPC is concerned, as
per aforesaid discussion, it is apparently revealed that the appellant
entered into the shop of complainant and attacked him, when he was
taking goods from fridge. The offence proved against the appellant is
punishable with imprisonment of life. Therefore, the findigs of learned
trial Court regarding conviction and sentence under Section 450
doesn’t require any interference.
27. Now, turning to the point of sentence, it is contended by the
learned counsel for the appellant that the appellant is a poor person and
he is the sole earner of bread and butter for his family. He has already
sufffered incarceration of more than 01 year. He is having no criminal
antecedents. Therefore, linient view should be adopted.
28. In view of the aforesaid submissions and also aforesaid
discussion, the sentence of 03 years R.I. under Section 326 of IPC
would meet to the end of justice.
29. Hence, in view of the aforesaid analyses and in entirety, the
conviction under Section 307 of IPC is liable to be and is hereby set
aside and instead of that the appellant is liable to be convicted under
Section 326 of 1PC. Accordingly, this appeal is partly allowed and
appellant is convicted under Section 326 of IPC instead of the offence under
Section 307 of IPC and sentenced for 03 years R.I. with enhanced fine of
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Rs.10,000/- from Rs.2,000/-. So far as the offence under Section 450 of IPC
is concerned, learned trial Court has rightly convicted the appellant and
sentence for 02 years R.I. alongwith fine of Rs.1,000/-, hence, the same
doesn’t warrant any interference.
30. In case of failure to deposit the fine amount, he shall further to undergo
for 3 months S.I. Out of the total fine amount, Rs.5,000/- shall be paid to the
Hariom, complainant/injured as compensation under Section 357(3) of Cr.P.C.
by the trial Court.
31. The fine amount, if already deposited as well as the compensation
amount paid, if any, shall be adjusted.
32. The appellant is in jail. He shall be released from the jail after
completion of his respective jail sentence and depositing the remaining fine
amount or after completion of default sentence. It is clarified that his
substantial sentence shall run concurrently while the fine will be deposited by
appellant in each offence separately and default sentence will not run
concurrently if the fine amount is not deposited by the appellant.
33. The order of learned trial Court regarding disposal of the seized
property, if any, stands confirmed.
34. A copy of this order be sent to the concerned trial Court for necessary
compliance.
35. Pending application, if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
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