Johan Yadav and Another vs State of M.P.

R.L. Jhanwar, J.—This Criminal Appeal is directed against the judgment of conviction dated 22.3.1999 and order of sentence dated 23.3.1999 respectively, passed in S.T. No. 303/1998, whereby, the learned II Additional Sessions Judge, Bilaspur has convicted the Appellants u/s 307 read with Section 34 of the IPC and sentenced each of them to undergo R.I. for 4 years and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo S.I. for 15 days.

It is not in dispute that on the date of incident, Appellant Johan Yadav had received gunshot injury by the service revolver of Shri N.K. Mandal (P.W. 3), in-charge R.P.F. and had also admitted in the Railway Hospital.

The case of the prosecution, in brief, is that in the morning of 16.3.1998, RPF received information regarding theft of Railway property and also received information that thieves, who were resident of village Mudpar were carrying those property. Inspector N.K. Mandal (P.W. 3) with T.D. Yadav (P.W. 9), security constable and one D.B. Nath went to the place of occurrence and saw both the Appellants carrying bags having stolen Railway property. They were interrogated. N.K. Mandal sent D.B. Nath to Belha station for giving information of the incident. Both the Appellant apprehending their arrest started assaulting N.K. Mandal and T.D. Yadav with lathi. N.K. Mandal and T.D. Yadav sustained various injuries on their body. N.K. Mandal, in order to defend himself, after warning, has fired which caused injury to the Appellant Johan. After receiving injury Johan Yadav fell down. Other Appellant fled from there. N.K. Mandal reported the matter, upon which FIR was registered and investigation took place. Stolen Railway property along with other various materials, as shown in the seizure memo of Ex. P-3, have been seized from the Appellant Johan. Statements of witnesses u/s 161 Code of Criminal Procedure have been recorded and other necessary formalities of investigation have also been completed. After completion of investigation charge sheet was filed before the Court of Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur. The learned Sessions Judge, Bilaspur made over the case to the learned II Additional Sessions Judge, Bilaspur for trial.

The learned II Additional Sessions Judge framed charge under Sections 307 read with Section 34 of the IPC, read over and explained to the Appellants, who abjured the guilt and Pleaded that they have been falsely implicated in the case.

The learned II Additional Sessions Judge, after evaluating the evidence available on record and hearing the counsel for respective parties convicted and sentenced the Appellants u/s 307 read with Section 34 of the IPC, as above.

I have heard learned Counsel for both the parties and have perused the record of the S.T. No. 303/1998.

From the statements of injured witnesses N.K. Mandal (P.W. 3) and T.D. Yadav (P.W. 9) whose statements have been dully corroborated by the other witnesses namely Vashishth Thakur (P.W. 5) D.S. Gond. (P.W. 6), B.C. Pushty (P. W.8) and Abdul Rajjak (P.W. 10), and also duly corroborated by the FIR proved by N.K. Mandal and I.O.D. Chatopadhyay (P.W. 7) and injury report of T.D. Yadav, Ex. P-8 A, proved by Dr. G. Nayak (P.W. 4). It is clear to establish that both the injured sustained various injuries by both the Appellants is on record. There is overwhelming reliable evidence available on record so far as injuries caused by the Appellants to both the injured persons is concerned.

The learned trial Court did not committed any illegality in accepting the above evidence. Only question evoke in this case is whether the Appellants with intent or knowledge to commit murder have injured both N.K. Mandal & T.D, Yadav.

The learned Apex Court while rendering judgments in Sarju Prasad Vs. State of Bihar, has held that in order to bring the offence home to accused, the prosecution must establish that his intention was one of the three kinds mentioned in Section 300 IPC. The state of mind of the accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance and where the evidence is not sufficient to establish with certainty, existence of requisite intention or knowledge of accused, the accused can be convicted only Under/Section 324 and not Under/Section 307 of the IPC.

In Hari Kishan Vs. Sukhbir Singh and Others, the Apex Court further held that u/s 307 IPC, what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". u/s 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

The prosecution also seized two lathi stating that both the lathi have been used by the Appellants for inflicting injuries on both the injured person, but to connect both the lathi with the offence neither the lathi have been got examined by the medical officer nor both the lathi have been tendered in defence in evidence. So far as severity of the blow is concerned it is necessary to refer injuries inflicted by the Appellant to the injured persons.

Dr. G. Nayak (P.W. 4) examined injured N.K. Mandal (P.W. 3) and T.D. Yadav (P.W. 9) and found following injuries:

N.K. Mandal

One lacerated wound of size 10�1 cm. in the depth of skin over the skull on the left parietal region.

Lacerated wound irregular size 6�3 cm in the depth of skin, which was present on the right thumb adjacent to palm.

Lacerated wound 1 � � cm. in the depth of bone over the forehead.

He opined that all the above injures have been caused by hard and blunt object and were simple in nature.

T.D.Yadav

One contusion of size 1 � 1 near over left temporal region caused by hard and blunt object, which was simple in nature.

One abrasion below the right side of eye of size 2�1 cm, caused by hard and blunt object, simple in nature.

Found blood clot below conjunctive of right eye size of 1 � 1 cm., caused by hard and blunt object, simple in nature.

As per the report of doctor injuries inflicted on Mandal & Yadav are simple in nature.

It is evident that above injuries were simple in nature which was caused by the Appellants. Only one injury on the left parietal region of N.K Mandal and one contusion near temporal region of T.D. Yadav have been caused by severity of blow, however it was very low. Rests of the injuries present on the body of injured persons were not on the vital part. From the seizure made by the prosecution it is evident that from the possession of Appellants they seized one farsa and axe. Both the weapons are deadly weapons. The Appellant did not use this weapon while assaulting N.K. Mandal & T.D. Yadav, which shows that they have no intention to kill or inflict severe injury on both the injured persons. Appellants'' intention can also be gathered from their conduct and from other circumstances. It is evident that one of the Appellant ran away from the spot and another allowed liberty to injured N.K. Mandal to fire on him. These circumstances also lead to show that both the Appellant only to escape from the spot voluntarily caused injury to injured persons.

From the above discussion, I am of the view that considering all the circumstances it cannot be held that the Appellants, with intention or knowledge and under the circumstances mentioned u/s 307 of the IPC to commit murder, had inflicted the injury on the injured persons. Therefore, the learned trial Court by recording a finding that the Appellant to commit murder inflicted the injuries to both the persons with intention or knowledge and under circumstances mentioned u/s 307 of the IPC has erred and that call for interference by this Court. Both the injured persons received simple injuries and intention or knowledge and circumstances stated u/s 307 of the IPC are not establish to bring home the Appellants act within the ambit of Section 307 of the IPC. Therefore, their act at the most falls u/s 323 of the IPC.

In the result, having considered the facts and circumstances of the case and further that both the Appellants have already suffered imprisonment of 1 year, the appeal is partly allowed. Conviction recorded by the trial Court and sentence imposed upon the Appellants is set aside. Accordingly, I hold both the Appellants guilty for committing the offence u/s 323 of the IPC and they are sentenced to the period already undergone by them.