mHMQQQIIIIIILQQ/il’w’ 063 IN THE mILH (DUKE OF JUDx cg "L‘U‘RE AT JEALPUR,S§&Y§&PL§pncf« {mm} of 2000. Criminal @peal No. \bj ’l. Gans Khan aged 18r§éars S/o Kbdul Wahab, I PPELLANTSI- ( In Jail) Fife Labour Camp Jamul,Distt. Burg. 2. [f £§hok Kumar, aged about 19 years, i5 ,S/o Lakhan Gupta, R/o Labgur Camp, Jamul, Di $tri ct’ Burg, PL? . a‘ a VER$U53 gfw RgESPONr‘ENT; State of Madhya EraEesh, through, RStation Hause Officer, RS. Jamul, Di$tt. Durg, MP3 JAPPEL/Ja UNDER @CHON 37% 2) OF THS @DE OF C§§MIZNAL \ iw Crminal Appeal 2/0 i NO .107200 Gous Kha and nothr n ae VS. tate of M.P (C.G.) S . JDG‘N UI‘ET PO$T EOR : 2_$—8~001 2 . Sd/- R.S. Garg Judge g ’ m THE HI'GH COURT OF cmlmjIsgARH AT BlLAsPUR ‘ CRIMINAL APPEAL NO.1207/2OOOV Gods Khan and another VS. State ‘Qf Mapo (C.G¢ ) JUDGMENT Per Hon‘ble R.S. Garg, J WW 4- - AppelTants Gous Khan and Aghok Kumar being aogrleved by the Judgmentdated 15—4—2000 passed 1n Sessions trial No.326/99 by the learned Vlth Additional Sessions Judges D‘urgrconvieting the appellants under I Section 307 1°C 1n the alternative under Section 307/34' I P C., anq sentenClng them to undergo R. I. for seven years and pay fine o: Rs SOO/—- each, in default or payment of fine to undergo further‘R.I. for three months, have filed. this appeal . . 2. : The proeecqtion case in brief wae that on 6—0-1999‘ at about 8°00 p.m. at the Labour Camp, Jamul, the accused nersons caused injuries to Pawan Kumar by means of knife and had the Victim died the maused would have been guilty ofmurder. The prOSeoution says that at about 7.4-5 pm). victim Pawan Kumar was sittino Vin tare house of Dr .Homlal. I Apoellant Ashok Kumar came to him and reqiired to accompany ‘ rhirn‘, The Victim was taken to an isolated place where Gous Khan, Mukesh and Rizwan were sitting. On arrival of ’Pawan Kumar, one M‘Llkesh Kumar threw ”chilly powder in his eyes and at the same time appellant, éous Khan caused injuries to him on his abdominal region by means of a knife. The prosecution further says that Ashok Kumar also l caused him injuries. Pawan / Kumar ~_'_A ran aw y from the spot, , ‘ , u i/R’ii _ 2 _ reached to his housé and informed his mother that he was hit by accused Gous Khan. Dr.Homl‘al was immediatelya requisitioned who after tying a oloth on the abdominal V region suggested that the victim be takenito the hosp'ital.. On way to the Em hospital, Sub Inspector of Police,Jamul,Baé§nt Kumar Mishra, met them and recorded the dehati nalishi. The victim was examined by DraPraveanVChandra who after examining the injuries certified that tkE injuries were grievous and were g v‘dkm- sufficient/to cause death in ordinary course of Mée.‘ The police agency seizedethe stained shirt of theg victim and on the memorandum of Gous Khan and Ashok Kumar discovered the kni£e° The articl§ so seized were sent to the F.S.La, panchnamas were prepared, the statements of the witre sses were recorded and on completion of the investigation challan was. filed ‘\ against the 'accused persons° The‘a ccused persons denied the commission of offense and pleaded not guilty, f therefore, they were put to trial . The prosecution agency examined nine witnesses in support of its cas while the accused persons examined Babbu' Khan (D.Wal) and Santram(D.Wa2) in their defence. After hearing the partiesi the learned trial court convicted and sentenced the accused persons as referred to above,therefore, they haVe filed this appeal, / 3 Q Shri Shiv Shankar Singh, learnedc ounsel for the 'appellants, submittedthat Ex.P/9, the dehati nalishi, does not say that accused Ashok also made an attack,on the Ejictim; theretore,’ the subsequent statene nts of t he. .. witnesses that accused Ashok was also involved in the commission of the crime cannot be relied upon. He‘ further submits that the articles seized at the instance I N ee iii e of the accused persons were no'tfeund stained with blood,therefore also, the accused persons deserve to be acquitted.’ He also submitted that there are material contradictions inthe statements of the witnesses and as the \oourt below has not taken the evidence in its E true perspective this Court must reappreciate the evidence and record' a £inding in efavour 0:3 the accuseé at‘ persons» He lastly submitted that the court below was unjusti't‘ied in awarding such a harsh sentenceg 'A 4n I Shri Ranveer sineh, learned Govt.Adv0cate, submits that ' if the mother did not narrate tl’e f ull story to the police. apd even if the victim Pawan Kumar suffering ‘ great pains because‘of the injuries was unaHe to give the entire picture or narrate tke entire Story to his " 'mother,~ the statements'w ‘prosecutiOH witnesses cannot /disbelieved. 'He submits that the F°S.L,’report showing that the articles Were not stained with blood would, not help theraccused because if tre witresses ere reliable, then the seizure would become immaterial. According to 'him, the Witnesses have given the natural version of the incident and thesame do not sufferwith any vice of contradictionst He lastly submits that the court below was N justified in awaréing the jail sentence . VJ. (D éontending contrary to the said submissions, h be 56 ‘I We heard the parties at length and have gone through the records. 6s ' Pawan Kumar, the victim, has been examined as ’EJ.W.2. He had‘clearly stated that accis ed Ashok after myxngxm coming to him asked him to go towards the. plain area. When they reached the said field, co-s accused threw chilly powder in hisjyes, thereafter l ;__ 4 accueed Gous Khan caused him injuriés by means of a t . knife” Accused Ashok/him 11-1 by means of ‘ a rod on My , Co-accuseé Rizwan also hit him on his head. Hejfell on .the around and thereaftér rah away from the spot. He again fell on the around and treating him dead the accused left the place of occurrence. According to him, after gating pressure /. on his abdom£ng4 he went to his house and informed his mother that he was hit by Cous Khan and thereafter fell onthe ground. After some time, DhGajpa’l came to his house, put his omentum in his abdominal caVity and tied a cloth around the abdominal region. Accor-J ding to him, immediately thereafter his father, uncle and Dr.Ga3pal took him to the government hospitalo rn t also stated that he required the accused Ashok not tor commit theft,therefore, the accused persons made an attack on him. In the cross-examination, he however admitted that in relation to an incident which took place about six years back the Victim and Gous Khan ware not on talking ter‘nsa In paragraph 9 he stated that for inst first two minutes he had no talk With the ‘35) accused persons but after that Mukesh threw chilly ‘ he} powder on his face. When‘he was rubbing his eyes to a come out oF the effect of chilly powder, he suffered mm i the first injury on his abdominal rewon and after f' ‘1 ax W suffering the injury on his head he bent a little. He r r goes in the eyes the Vision become blurmdand it becomes difficult to see. ‘ In paragraph 12 he denied the suggestion of the defence that he was Enable to identify the accused persons as it as dark; It Was‘argued by the Tearnod counsel for the appel1ants that 0‘1 one Slr‘e Pawan Kumar was saylnor that he was hit on h_s head by a rod but 1n paragraph 12 he was saying that the rod ‘ was llke a dagger theroxore, his staLerre nts should be dtsbellevedy A perusal ol paragraph 12 of the statements Ozr‘this witness would show that the witness learly stated before the Court‘ that Ashok hlt on his head by means of a dagger and. he’was idehtifyingwthe dagger as a rod. He denied the sugges‘tionof the' f ‘ defence that he could not &x identify the accused persons and was ea making false statements in the Court“ In paragraph. l4, he stated that after'meeting the private doctor, he did not go to the police station but the Station AHouse' Officer Basant Mishra met him on '/‘ N way,who in his turn‘lreqtiired him to go to thew ' hospital.) From his statements, it appears that he was J“ admitted in the hospital ano the operation was oerformed upon him. > 7. pcwol Dr.’Homia1 stated before ‘the Court that on the fatexul day at about 8 OO p.m. mother of the‘ Victim Pawan Kuma came to his house and maoe a request to him to save the Victim» He immediately went to the house ofLthe victim where he found that Pawan Kumar was lying on ground. His omentum had come out. A l ¥ ‘ . V , Fle had put the omentum in tne abdominal caVity anES ‘ a thereatgfr tied a cloth so that the ‘ omentum Md not comeLaoain, thereafter the family members OF Pawan L Kumar took him to the. hospital n 8. As the witness did not spea». oefOLe the Court '_aoout conversation which he had Wit the moth r of the a L (\i ll , i W c -5- Vlctrq ho wa¢ éeclared hostile . He however did not upbort the presacutlon on that materlal courwt. It ls however to be noted that not. even a single question was put to this witness in the cross—examination. From the statemei’its o- trus Witneso, 1t woulo atleast appear that V , " ‘ a .the mother OJ. PawanXKufnar had come to hlrn, he Werwt to ' /‘ his house and applngtiflrst—ald to the Victome On tl'e V .. akexm materlal noun. that the Victim had suffered certain injuries, he supoorts the VictLm. £ a 9, , .W 5 ls mother 0% Pawan Fumar. In her state-4 ruentsg she had clearly stated that Dawan Kumar came to the house 1n the injured condition and immediately informed her that Gous Khan had hit him by means of a knife a She immediately called Dr .Homlal who gavethe £irst—aid to the victim}, A’cco'rdi‘ng to her, I‘her husband Bhuneshwar andher husband‘s younger brother shank’ar, x , ‘so also Dhruv also came there. According to her, all these persons took the Vietim to the hospital. On Way to the hospital, dehati nalishi, ox P/9, was W i a by hero In the croes—examination, she admitted that 1 the victim, was conscious and had he narrated the name o£ Ashok as an assailant she would have certainlyrgi‘ven the} said name to the police. Inparagraph 5, she admitted > thatby the‘time they reached the hOSpit‘a‘l, her, husband, brother—in—law other so'n did. not in£orm her/ that L ~ accused Ashok also made an assault on. her son Pawan Kumar. In paragraph 7, she admitted that her son did domed *«ai £‘C - not become unconscuous andldid not narrate about the inCident as ( ‘10}, , EW.6 Bhuneshwar is the father of the victim Pawan Kumar. _ ~In-mragraph 2 of his statements, A he dcéM a — 7 , clearly stated that he admitted his son in the hospital and the next day he was informed by E.W.2 ‘Jawan Kumar that GouS’Khan made an'attack an him and also informed him that co accused Mukesh,Rizwan and Ashok Kumar chased him. “In paragraph 49 he admitted that when he came to his house ‘on the fateful night his son was 1 ' conscious but he had no talks with his son. K ll a From the statements of these witnesses, it would clearly appear that on one sic'Ie PoW.2 Pawan Kumar states before the Court that he was called by Ashok Kumar,‘ he was taken to a particular place where accused Mukesh threw chilly powder in his eyes and thereafter Gous Khan and Ashok Kumar made anm assault wkut &on the _victim E by means of a sharp cutting object/from the’statements of the other witnesses it would appear thatall through P.Wu2 Pawan Kumar did not say either immediately or even on the'next day that Ashok Kumar was also \ involved in the said‘incident. _ 12 ., Shri Shiv Shankar Singh, learned counsel “for the 3 appellants, submits that non—disc10sure of the name or accused Ashok either immediately or even on the, next day would certainly create a situation of doubt and appellant Ashok Kumar would be entitled to an acquittal: 137° _ _Shri Ranveer Singh, learned counsel for the tate, submits that assuming P.W¢2 Pawan Kumar did'not mention the name of Ashok Kumar as an assailant immediately after the incident or even on \the next day, V his statements before the Court for this reason would not become its unreliable” According to him, when a person is under great pains after suffering injuries , § or has urnergone the operation, then it would be too much to expect from him that he wouldgive the details 3 f ' J o everythingo f 14. Dr’J-Ioml’al as I have already discussed has not 7 supported the pr0secution'caseo P.W.5 Phaol Bai, the mother of'the victim, was the Eirst person who réceived the information about-the assault ori Pawan Kumaro In her cross-exumlnatlonxln—chlef she had clearly stated that her son informed her that *1e assault Was maoe '1 by Gous Khan. In paragraph 3'35 she had clearly stated that had her'son Pawan K'umar informed her about the name of Ashok, then she wouml have gwven this detaWl wed 1n D<°P/9. She haé further statrxd 1n paraoraph k 7x / that her son dwo not become Lnconscwous ano cild m give er the informauon about the 1nc1dent° F par o hhs 3 ano 7 o her statements are read 1n Juxta p031t70n, there would be no problem 1n ho ng that Pavia/n Kumar was not unconSCious, he informed his mother that the sole assailant was 'Gous Khan. P._W.6 Bhuneshwar,the" father of'the victim, had also stated that even on the next day the Victim did not say that Ashok also made an assault,on him° From the statements of these two witnesses, it would certainly appear that either on the date of the incident or even on the next day PM 9 ’Dawan Kumar was not ascribing any role to the accused .Ashok Kumar. True it is that P W 2 Pawan Kumar had made ‘ a clear statement in the Court that-an assault was made on his head by accused Ashok but his statement ‘cainnot beir relied‘upon in View of the st‘atemenis of his mother and i father. His statement also cannot be relied upon because all through he had been stating that Ashok was armed With avrod and hit him on the back of his head. The doctors'have not found an lacera ed wound or any _ . \ / . l r’ i v / f h injury caused by any hard and b1unt object. The injury on the bacx of the head ls an inelsed 9mm one. Undisputedly, an lncwsed wouno on the back OL the mead cannot be caused by a rod, It appears that to come out 01— thls Situation, he stated 1n paragraph 12 that he was ldentlw‘png or was § certifying the rod as a dagger or the dagoer as a rod. In my considered opinion, 1t woulo not De safe to r unpon the statements OJ. P W 2 Pawan Kumar to hold the accused Ashok guilty of the o fence. G1v1ng the benefit 0&1 doubt to accused Ashok,‘ I accruit him. l5. From the statements of the witnesses, appears that immedrately after the lncrdent after‘ suffering the injurwes and even on the next day P W 2 Dawan Kunar had been statlnn teat he was hit by Gaus Khan. The statements of ?hool Bal (P W 5) are eVen supportco by Q1] K \ . it clearly \ ' \ dehatl nallshl, Fa P/9 16. At this stage, 1t would be necessarv to apprecw the defence evidence. D N l Babbu Khan mad stated his lnoulues fro'n Pawah Kumar he was lnromed that the Victim couYd not see the assailant. It is noteworthy that BabbuKhan is the elder brother of the accused Gaus Khan. His statements for tnis only reason arevunreliabh J 2 Saatram met had ' also stated that after the alleged lincident he made the Victim Pawan Kurnar and ‘him as to how the incident took olace, on which Pawan Kumar a ‘tolo him that because of chilly powder in the eyes he could not see the assailant In the croes~etam1natiom he dmitted that he was a friend of accused Gaus Khan and Ashok . aoE that on inqu'i red, from / After giving my thoughtful consideration to the ~\ _10.‘. statemerits of Pow.2 Pawan Kumar, P¢W.5 Phool Bai, P.W.6 Bhuneshwar and the s‘éatements 'of P.W.8 Basant Kumar,who had recordedrthe dehati nalishi at R<.P/9, I am of the L opinion that the defence witmsses are not reliable and. the prOSecution had successfully proved that accused Gaus‘ Idaan causea‘ injuries tc t he victim by means of a knifeo ‘ r V ‘18 . The question for consideration still is that what j was the‘ nature of the injuries. Dro Praveen Chandra Agrawal jP.W.3) had examined the victim on 5-6—1999. He had found‘maxxxmxmzam. as many as six cut injuries on the person of the victim. The victim haé suffered three injuries admeasuring 8 x,4 cm., 6 X 6 Cmo and 3 x 1 cm. and had suffered two cut injuries admeasuring 3X l cm’ and 2 x 1 cma on his right thigho He had certi-Eied that the injuries Were grievous in nature . He had also stated that the geneqg‘al conditionrof the r patient was very bad. From the statements o£ PJN.2 Pawan Kumar, P.W.5 Phool Bai and P.W.1 DrJ—Iomlal, it would' clearly appear that as a result of the injuries the omentum had‘i‘come out and DraHomlal had put back the ‘omentum in the abdominal cavityg From the statements of the doctor, it would further appear that the injury no ¢l was o£ grievous nature and he was giving the opinion because the omentum had come out. l‘n paragraph 4 of} his statements, DraAgrawal had furtl'e r stated that the injuries were sufficient to cause death‘in the ordinary / course of naturea 19 ‘ Aftergoing through the statements of Dr.Agrawal I find no hesitation in holding that the injurie‘svere grievous in nature and were sufficient to cwth \ \ ‘ 11 __ i the rnary c6i1rs o ature The vctm cou aved. because of he timely Opratioru 20° Conirming the finns reorded b e rial urt at ccuse Gaus Kh a tck on th r f W. awan a s hod that t tln w cezu 1" or1n is a jo’q ry had fa 21 h ur elow had aarded seven ers RI¢ aeant Geu Khan. At his stage; propose o interfere or; th uetin ail eence, so lso on he quesn of finec ' f dig c y th t oo th ad an made n ata e peson o P.2 P Kumr, I alo l he presecuo as sucssl : ovg t cse bed eve sow or‘doubt v. a, Te cot b w ya ., to ppll s t I t e qso of j snt a t tio y 2207 When an acused is coied d ja entenc s wa m, t proon eels d i serd a coo. I ads a tr to e t has cue mmtion t e feahe th ap o t pol that s uessful n sec th, omoin b whil i he stee a Crt st g t iti 1s also enttld to sme monsion n oeron sufs the ijuri, h itl atioho’tha the ng der be i he a d sm ometi beause h - c f he ice it i scc i uring e cmto ut e awardng t ennc ou mu not foret hat the Vcm ie o coeat. Whe a s fer nes ten he may get lte ssfet wro O has en punshed but lso nees oe cpnsaon c e has suffere te injuries and has suffered mm’def such and experience of the life; Award :Of jail senteme to an accused simply punishes the accused but dOes not give any compensation to tl’e Victimg Section 357 Cr .P C. prOVides that in a given case where the accused is conVicted the Court ma loo ing to the Circumstances , of the caseLaward campensation to the victim. I consider present to be a case of the nature where proper comiae‘nsation should be awarded tothe victim. I reduce the ‘jail sentence of sWs CW n odi e f n. ii ld be s t e c nvr‘t an il se i arded to hi he gecuti f satwslie that / d h 1 2 _ but I direct the accused. ‘to pay ccmpensation‘ of Rsr.l5,000/- to the victim Pawan Kumain If he does no pay the compensation, then he ehall undergo R.I. for 1y2 years. If the said. amount is deposited by him, then the said amount would be Daid’to Pawan K'umar after ‘ v due verificatiow ’ 23 n The appeal o£ appellant Ashok is‘ alIOWed° He is acquitted of all the charges, lie appears to be in jaila He be immediately rele ased,if not required in any other offence” The appeal of accused Goue Khan is also partly allowed to the extent indicated. above. n 24., Let a copy of the judgment alongwithvthe records‘ be sent to the trial Courto The accusedlbe required to’undergo the remaining jail sentence and the default Gaus Khan ’sentence, in case he does not pay the compensation. J! t n