AI Structured Summary
Not yet generated for this judgment
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.