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Judgment
This appeal has been filed against the judgment dated 15.10.1999, passed by the Second Additional Sessions Judge, Murwara, Distt. Katni, in S.T. No.192/1996, whereby the appellant has been convicted for the offence under Section 307 of IPC and sentenced to 6 years RI with fine of Rs.500/- with default stipulation.
The prosecution story is that, on 2.5.1991 at about 9.00 am Complainant-Rajesh alongwith with his friend Rajnish Shukla were going to his home. When they reached near the gate of Piyush College, the appellant and co-accused Munnu surrounded the appellant and threw red chilly powder into the eyes of Rajesh. Thereafter the appellant inflicted injury by knife on the back side of Rajesh and again on his chest. The appellant and Munnu both fled away from the spot, threatening to kill them. FIR was lodged by Rajesh, in Police Station, Katni and Crime has been registered against the appellant and co-accused under Sections 341, 294, 324 and 506-B of IPC.
After appreciation of evidence of the prosecution witnesses, the learned trial Court found that offence under Section 307 of IPC has not been proved against co-accused Munnu as he had no intention to kill the complainant. On the basis of evidence of Rajesh (PW1) corroborated by other witnesses particularly medical evidence, the learned trial Court found the appellant-Marbin George guilty for commission of offence under Section 307 of IPC. Hence he has been convicted under Section 307 of IPC and sentenced for 6 years RI with fine of Rs.500/, in default of fine, 2 months RI.
Against the aforesaid conviction and sentence, this appeal has been filed on the ground that the appellant has falsely been implicated by the complainant due to old enmity.
There have been many lacunae in the prosecution case.
During the medical examination the complainant has not disclosed the name of the assailant nor his shirt was seized by the police to prove the blood stains appeared in the shirt during the investigation. The prosecution has failed to prove that the appellant-Marbin George was having an intention to kill Rajesh (PW1). Hence, the offence under Section 307 of IPC has not been made out against him. According to MLC report and circumstances of the case at the most offence under Section 324 of IPC is made out against the appellant.
Hence, he prayed that this appeal be allowed, appellant be acquitted or convert the offence under Section 324 of IPC in place of Section 307 of IPC.
Learned Panel Lawyer vehemently opposes the prayer of the appellant.
Heard learned counsel for the parties and perused the records.
As per the testimony of Dr. Amar Singh Thakur (PW8), he examined complainant-Rajesh on 2.5.1991. He found (i) incised wound 1-1/2"x1/2"x1/4" at his chest above the sternal bone, (2) incised wound over his back about 3/4"x1/2" deep into Viscera between left scapula and middle of spinal cord.
Both the injuries were caused by sharp edged weapon. In his MLC Report, no opinion has been given about the injuries whether the same are fatal in nature or sufficient to cause death.
Dr. Y.S. Parihar (PW6) has also examined the complainant-Rajesh at about 11.00 pm on the same day. He treated Rajesh. Rajesh was fully conscious. His pulse was 100 and BP was 100-120. On the next date i.e. on 3.5.1991 some difficulties in breathing was found and patient was admitted in hospital and his general condition was improved and air was leaking. On 10.5.1991 drain was removed and air leaking was found reduced. On 17.5.1991 patient was fully recovered and discharged from the hospital. According to Dr. Y.S.
Parihar (PW6) injuries sustained by the complainant were grievous in nature. It was dangerous to life, if not treated in
time. The patient was under treatment at Surgical Ward till his recovery. In his cross-examination, he opined that this type of injury could not be caused due to fall from the Berry tree.
Looking to the opinion of the doctors, the learned trial Court found that the injuries caused by the appellant were dangerous to life of Rajesh.
Rajesh (PW1) deposed that before causing injuries, the appellant and co-accused Munnu called him near the gate of Piyush College and appellant- Marbin threw red chilli powder on his eyes. Dr. Y.S. Parihar (PW10) examined the injured, found red chilli power in the eyes of injured Rajesh. He further found that Rajesh eyes were red and swollen and watering. Testimony of Rajesh (PW1) has been properly corroborated by medical evidence as well as eye witness Rajneesh (PW2).
At the time of incident, the presence of eye witness Rajneesh (PW2) has been credibly proved. His presence was mentioned in the FIR also. Some chilli power was inserted in his eyes also. Injured Rajesh (PW1) and Rajneesh (PW2) have clearly stated that the act of the appellant was pre-planned.
The appellant inflicted injuries by knife first on the chest of Rajesh and again on his back side.
Dr. Amar Singh Rathore (PW8) examined the aforesaid knife which has been seized from the custody of the appellant-Marbin. With regard to seizure, the testimony of U.S. Sikarwar (PW11) was found reliable. It is true that the Panch witness of seizure memo Mohan Lal (PW4) and Sudama (PW5) not corroborated the testimony of U.S.
Sikarwar and turned hostile.
In the case of Ramesh Vs. State of Haryana [ 2017 Cr.L.J. SC 352] after thorough discussion on the practice of trend of witnesses turned hostile, the Supreme Court has held that "trend of witnesses turning hostile is due to various factors, it may be fear of deposing against accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations".
This practice cannot be ignored by the Courts. Only for the panch witnesses turned hostile, the testimony of police officer cannot be ignored. He has no enmity with the appellant. His proceedings were impartial. Hence, the seizure of weapon is properly proved by the evidence of U.S.
Sikarwar (PW11).
Dr. Amar Singh Thakur (AW8) examined the weapon and he found blood on the knife. The knife is about 21 cm in length and 3 cm in width, which was pointed and sharp. He opined that injuries might have been caused by the aforesaid knife to the complainant-Rajesh. Thus, the opinion of Dr. Amar Singh Thakur has also corroborated the testimony of Rajesh.
Learned counsel for the appellant has contended that the evidence of complainant-Rajesh is contradictory. He argued that on the back of Rajesh knife injury has been inflicted by co-accused Munnu. He does not see the object by which the injuries inflicted on him. The eye witness Rajneesh (PW2) has clearly stated that two injuries were inflicted by the appellant by knife on the back and chest of Rajesh. It is important to note that, before attempting the blows, chilli powder was inserted in the eyes of Rajesh, it may be possible due to burning and etching of his eyes, he was not able to see exactly, who actually has caused the injury on his back. Such type of contradiction not creates any doubt in favour of defence nor it adversely affected credence of testimony of complainant Rajesh.
Learned counsel for the appellant has also contended that due to old enmity, the appellant has been falsely implicated by the complainant, but after considering the aforesaid facts and circumstances of the case and evidence of prosecution witnesses, such contention is not acceptable nor any enmity has been proved by the defence. Rajesh and complainant both are neighbours. Father of Rajesh and appellant-Marbin were working in the same department as shown in para-11 of testimony of Rajesh (PW-1). In the same Para, Rajesh denied the plea of old enmity with the appellant.
It is held in case of Sumersinbh Umedsinh Rajput vs. State of Gujarat, AIR 2008 SC 904 that in order to constitute an offence under Section 307 of IPC, (attempt to commit murder), two elements are essential; first, the intention or knowledge to commit murder; secondly, actual act of trying to commit the murder. The question where a certain act amounts to the commission of particular offence is a question of fact dependent on the nature of the offence and steps necessary to take in order to commit it. No exhaustive and precise definition of what would amount to commit the murder offence is possible.
The Hon'ble Apex Court in the case of Hari Kishan and another vs. Sukhbir Singh and others, AIR 1988 SC 2127, held that "under Section 307 of 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 or 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". Under Section 307 of IPC, the intention precedes the act attributed to the 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."
It is beyond reasonable doubt that the prosecution has proved that the appellant intentionally caused incised wound over the vital part of his chest and other wound on the back.
The appellant also threw chilli powder in his eyes to prevent him from resistance, during the occurrence. With pre-meditation the appellant used the sharp cutting weapons to inflict injuries to the complainant Rajesh. Therefore, the contention of learned counsel for the appellant that the offence under Section 324 of IPC is not made out, cannot be accepted.
On the above discussion and in light of the principles laid down by the Hon'ble Supreme Court in the aforesaid cases, the offence under Section 307 of IPC is made out against the appellant. Hence, this appeal dismissed.
At present, the appellant is on bail. He is directed to surrender immediately before the concerned trial Court to undergo the remaining sentence, failing which the trial court shall take appropriate action.
Copy of this order be sent to both the Courts below for information and compliance alongwith its record.