1 ^ CFoooobss'o's'i" IN.THE 'HIGH COURT OF M'ABHYA PRABESH AT__J.ABAX.PUR, Apsellant "C( &^y &esEondent . ...:4.i.4^-tl ^ '^~^.Ss&l^.^f...S^^(^IA^ ^l,..,,,...-............^..AJncat« Criminal Appeal No.kiL of.1994 jingle lenA (Cr'mwi Annu alxas Anwar son ofMohammad Afzal !d^34 years> lesid^nt of Qetanjali-Naga^ House No.2, Sector^, p . S. GivirLxnesr' Sistt. Raipuz-, (M J>.) .' Versus ^ltate of Madhya_ Pradesh, P. S. Kotwali, Raipur/(MJ>.) CIrlminaI ABoeal Under Section 374(2) Cr.P .G /'• .' ' '.'.'• / .0£'irLLT_1.-ft-^_^.Q__^L_____.•: ...._...____^^^.^.___.. su ^ ^ HIOH COURT OF'CHHATTISGARH AT BILASPUR (Hon'ble KIr. Jusfeice Pritiaher Diwafcer) CR.A.NO. 461 of 1994 RESPONDBNT VERSUS Annu (S; Anwar State of MadliyaF'radesIi Post for pronouacement of fhe judgment dated f '2-/05/2010. Sd/- pritinker Diwaker Judge 'TI SS_: HON'BLE_SSR. JUSTICE PRITiSKER DIWAKBR CR.A.NO. 461/1994 versus Annu i@. Anwar State of Madhva Pradesh Shri Anil Kh.are, counsel for fhe appeUaat. Shri Neeraj Mehta, P.L. for fhe State. APPLICATIOH U/S 374 |2] OF THBlCR.P.C. (12-.05.2010) The pi-esent appeal arises out of the judgiasnt aad order dated 31.3.94 passed by fhe Additional Sessicns Judge, Raipur in S.T. No. 336/91 whereby convicttag fhe accused/appeUaat for tfae offence under Section 307 of 'ttie IPC and seEtenciag lum to undergo RI for two years. 2. Brieffacts ofthe case are that on 9.3.91 at about 7.00 p.ra... FIR Ex.P/3 was lodged by Sheikh Jafar (P.W.-4] allegia^g m it tliat on fhe sanie day at about 6-6.30 p.in. when coiriplaiaant Abdul Azim. @ Pyare Miyan was staadiag near Taj Pan Bhan.dar, there was soiae altercation between him, fhe accused /appellaat hereia aad co-accused Nabbu. It is aUeged thai fhe appeUaiit herein a&d co-accused Nabbu were abusiag and tlireatening the complaiB.aiit and at that pom.t offime he too, reached tiie spot, started abusuig, them. by caBiag that Uofh have becoiae goondas of fhe locality'. Meauwhile, the appenant took out the knife and gave a blow wiili it on tlie chest of fhe com.plainaat. When he ti-ied to interv'eDLe, eo- accused Nabbu also assaiilted hirn iaflictuig two kiufe blows oa his th^h and thereafter bofh the accused persons fied away. It is further aUeged that the incident had been witaessed bv Baba Jaai, Rayees aad Javed and that iminediately after stistairung injury, tbe victim had fallen down on the sround aad was bleeding profiiseb7. Y -;., S Vl: 181:w ......^i. One Sy^'-cd Zuffiqar AE Bhutto had takea bim to fhe police station on a ricxshaw and tiien to D.K. Hospita3, Raipur. After .investigation the police had filed ffae challan agaiast fhe accused/appellant bereia and also the co-accused. The charges were fi-azaed agaiast the accused oersons for the ofiences under Sections 307/34 and 326 offhe IPC. 3. In support of its case, tiie prosecution has examiaed ten witnesses. Stateraents of the accused persons were also recoried under Section 313 of the Cr.P.C. ia which tbey pleaded fheir tnnocence aad false implication in fhe case. 4. By the impugned judginent the Court below has aequitted co-accused Nabbu ofttie charge leveBed aRainst him but convicted ffae present appeUant for the offence under Section 307 of the IPC and sentenced Mm to undergo RI for two years. Hence fhe present appeal. 5. Contention offb.e counsel for the appeBant is ffaat fb.e actual PIR has been suppressed by the prosecution and fhe one which has been shown to be lodged is not the FIR which was made by Sheikh Jafar (P.W.-4). He submits fhat in his statement Sheikh Jafar (P.W.-4) has categoricaBy stated that he had lodged the written report before P.S. Kotwali and rio report was ever lodged by him at D.K. Hospital. He farther subinits tfaat fhe Investigatia^ Officer has inade the contraiy statexnent fhat no written report whatsoever was lodged by Sheikh Jafar but ia fact FIR Ex.P/3 was written at D.K.Hospital itself whicb was duly signed by Sheikh Jafar. According to fhe lcamed couiisel once the FIR has not teeen proved by fhe prosecutioa, under no circumstaiices the appeUant caa be convicted for fhe ofieiice atteged. He furfher siibiaits fhat 'ii!|; even if the entire case of fhe prosecirtion is takea as rt is, fhe y' appellaat cannot be convicted for ffae offence under Section 307 of ^ the IPC aad at best he can be convicted for fhe offeace under Section 324 offhe IPC. He submits fhat fhe alleged weapon with which. fhe injury is said to have beea caused has not been seized liBB :} i^;^}?i'':.''i; &^s^i by the prosecution aad tlierefore also it cannot oe said that the iajuries sustaiaed by victim Pyare Miyau were caused by tlie accused/appeflant. He has placed. lus stroag n"liance on fhc judgiaent oftlie Supreine Court is. fhe aiatter of Sarju. Prassui 7s. State efBiharAlS 196S SC 843. He fiii-thsr submits that evea the depfh of fhe injury has not been given by the doctor 'aiid therefore it canaot be said that the iniuries sustaiaed bv Pvare Miyaxi were caused by the accused/appeliant with knife. He subinits that tlie said injur5r could have been caused even by a sinaH weapon aad in these circuntstaiices &e offeace aUeged agaiast fhe accused/appeUsat woiild fail under Section 324 oftite IPC. L.astly, he subniits tliat tne relations between the appellaat aad co'mplainant pamr are veiy cordial and now they have becoEie relatiyes because jaarriage of fhe niece of the appeliaat has been performed with fhe son of victim. Pyare Miyaa. He subinits that unfortiuiately fhe victua Pyare Miyaa has expired snsl t.herefore his wife Snit. Akhtari Begum has filed an af&davit in support of Uie application filed by the accused/appeUaiit for coinpoundiag fhe oiTenee. He furtlier subniits fhat the appeUant is sutfering from. various atlinents induding heart disease aiid tberefore fhe senten.ee unposed upon hirn xuay be reduced. He subinits fhat the appeUant is iviltmg to reasonably coiapensate the fam.ily of fhe victi.m, He has placed his stroag reliance upoii fhe judgment of ttie Suprenie Court in the matter of Puttetswtting Vs. State of Xariiattika 8a Another reported ia 2009 (7ol.l) SCC 711. Shri Khare, fiirtlier sutoauts that fhe stateinent of Annu (% Anwar is totatly unreliable because as per the. lodger of the PIR, the victrm. was standiag aloag with SIieikh Jafar whereas no such stateiaent has been inade b.y Abdul Azmi @ Pyare Miyan. 6. On fhe'other haad, supporting the impugned judgm.ent it has been argued bv Shri Mehta, counsel for fh.e State fhat the judgnient is sti-ictly in accordaiice wifh- law aad looking to fhe nature of iujuiy caused by the accused/appeUant to the victim namely Pyare Miyaa offeiice under Section 307 IPC is very inuch niade out. He subiaits th.at fhe doctor has categoricaUy stated fhat ffae uyuries sustained by fhe victim were grievous in nature and sufficient to cause deafh in tbe onlinaiy course of natiire. He fiirther subiiuts that in respect of fhe offence im.der Section 307 IPC it is sufficient tojustily fhe conviction •i.mder Section 307 !PC if fhere is an intent coupled wifh soine overt act in execution thereof. He subinits fhat in fhe case in hand it has been stated by fhe victun that the Hijuries were caused on I'sis chest ( i.e. viial part of the body) which has been duly con-oborated by fhe Etedical ewidence. 7. Heard counsel for fhe parties and perused ffae jadgment impugned as weU as ttie material available on record. 8. Abdul Azim @ Fyare Miyaa (P.W.-5) the victim has stated ffaat on tfae date ofiacidentiribetweenSto 6.00 p.m. when Iie was going to his house froni Araardeep taBdes, near one Betel shop the accused/appeUant was stending and inuaediately after seeing him abused 1iim. by using filfhy language saying that they were acting like Dada' (Gundas) and wifhia a min.ute you would be fiaished and thereafter he took ouf his knife and assairited him on tus chest (on fhe upper side of the stoinacli and lower to fhe rib portion). He has stated tliat after sustamiag the injuri.es he felt 'us.conscious and was bleediag' profusely. After sonietim.e when he regained .his consciousaegs he saw that tils clofhes were stained witli blood aiid fhe blood was coiaiiig out like a fountam. He has further stated ffaat tlie iacident was beitig witoessed by Rayees Ahsiad, Baba Jaai Pahaiwan. jEifar and otlier persons. He has further stated fhat after regainiag his consciousness, hc walkerl up to soiae distance but again fell down and soiae how could reach the Madarsa Chowk. There also b.e faU down in a rickshaw and later on hc was shifted by one ZutSkar An Bh.utto to pofcce station City KotwaU aad there he ittfortaed the police a.utliorittr that it is the accused/appeUant wbo had assaulted and he beconie unconscious. In cross-examination (his witaess has sta.ted fhat he is facing two cases in respect of eamblmg. He also adinits th.at he was ..-s?." prosecuted for tbe offence uader section 302 of I.P.C. but was convicted for fhe offence uader section 304 ofI.P.C. and sentenced for imprisonTnent of two years. He has denied fbe suggestion as given by fhe defence fhat on account of soine ofher dispute of ^amblmg he has been assaulted by soine ofher person and he has been falsely implicated. •^ II .;i 9. Statemeut of this witness has been duly supported by Sheikh Jafar (P.W./4) and he has stated tbat on the date of iacident, accused/appellant and cb-aocused Nabbu were quarreBing wifh Pyare Miyan and were abusiag hiia by sayiag fhat you are becoming "Dada" (Gunda) and wltfain tre-o miautes you cozild be finished. He has stated that first tiie accused/appeUant caused the kiufe injury on the chest ofPyare Miyan aad when he tried to intervene, co-accused Nabbu gave two knife blows on his fhigh Syyed Zulfiqar (P.W.-6) wtule supporting the case of the prosecution has stated fhat he luet fb.e victim. Pyare Miyaa and at that time fhe blood was coiaing out from his stomach and bis clothes were staraed wifh blood, then he toolc him to city Kotwali. Shamim Ali (P.W.7) wbite supporting fhe prosecution case has stated fhat on the date of iacident near the betel shop the dispute was goiag on between accused/appeliant, co-accused Nabbu aud victini Pyarc Miyan. He has stated ftiat accused/appeMant and Nabbu were abusiag Pyare Miyaa aad fhen caused a Isnife iajury on his chest and thereafter co-accused Nabbu has assaiilted Sheikh Jafar. Dr. R.A. Khaa whd has medicaUy examiaed the victim Pyare Miyaa, has given his teport (Ex.P/5) and found the foUowing iujuries: i) ii) iSj iv) a stab wound on left side of chest at 7th LCS 2 cm. lateral to Costochondrial jiinction. 7& rib was fiactuicd. Pleura wasinjured and iajuiy ia pleura 2cm. x lcm. the ixyuxy was daagerous to life as weU as grievous. Pleura and lungs are vital ox^ans. if no emergency treatment would have been done deafh would have been possible. .ia..-1—C- IS''i Ais. ll';'" Whfle disclosiag all flie above iajuries ia his court stateiaent this witoess has categorically stated fhat the injury was daagerous to life, pleura aad lungs are fhe vital part of the body aad if trmely treatnieiit was not given to fhe victim, he would have died. In cross-examination he has further stated that though fhe depfh of the injury has not been laentioned ia his report, he has stated fhat fhe iajury was up to pleura aad the same can only be seen if fhe muscles in between the ribs ai-e being cut. He ttas further clarified tfaat fhe victun has sustained injury even inside fhe pleura. R.K. Mishra (P.W./9) A.S.I. has recorded fee deh&ti Nalishi (Ex.P/3) and has also recorded the P.I.R. (Ex.P/6). He has categoricaUy stated tfaat fhis report was written by Tiim in the D.K. hospital. He bas further stated that he has not icceived any wiitten report by Sheikii Jafar. He has stated fhat if any such report has been lodged by SheiMi Jafar he was not aware xnfh tfae sanie. R.B.S. Panhar (P.W.10) is fhe iavest^atuig officer who has done fhe part of iavestigation has also supported fhe prosecution case. He has also denied fhe fact fhat any written report was raade by Sheikh Jafar. 10. I find no force in fbe aryunent of the appeUant that fh.e maui report of fhe incident is laissiag fi-oxa the case and fhe same has beea. deliberately suppressed by the prosecution. Tbough Sheifch Jafar (P.W.4) has stated that he gave awritten report but fhe police officer R.K. Mishra (P.W.9) has categoricaUy stated faat no sucb. written report was lodged by Sheikh Jafar JP.W.4). It appears fhat there is sorae coiifusion i& t.he Tnind of Sheikh Jafar where he has stated fhat fhe written report was lodged. It could be fhat for dehati naiMstu. SheiKfa Jafar is caUiag it as the •writtea. report. Moreover, even assuiuiag fhat some written icport was lodged which is not there 011 record, the accused/appeUaat cannot derive aay beaefit fipom ffae same. This is not f&e case where no such iacident had taken place. Present is a case where iiot on3y the victim Pyare Miyan (P.W.5) & Sheikh Jatar (P.W.4} have categorically stated about the incident but fhe ofb.er witaess Sy}red Zulfiqar Bhutto (P.W.-6) has also supported the prosecution case. 1j 11. Furtliennore the nxedical repoi-t of P)rare- Miyan corroborates his stateraent and the stateiaent of Shei&h Jafar. Evea if tlie copv of the F.I.R. has not been forwarded proiaptly, no prejiidice whatsoever has been caused to the accused/appeUaiit. The accused/appeUaut has not put forfh his case to t-he effect mat ia soaie ofh.er incideat Pyare Miyau might have suffered the injiiries but he has falsely impucated fhe accused/appellant. In the present case, imiaediately after sustaiiung the injury, Pyare Miyaii was shifted to fhe hospital, inedically examined by Dr. R.A. Khan (P.W.- 8) and the niedical icport is Ex.P/5. So far as fhe conviction ofthe accused/appeUant in respect of fhe o.fience under Sectioa 307 of fhe I.P.C. is conceraed, the inost import aspect. ofthe case is fhe statem.ent of the victim Pyare Miyan aad ttie iiijui5r sustaiaed by him. 12. Pvare Miyan (P.W.5) has categoricafly stated as to ia. wb.at laarmer he was assaulted by the accused/appeUant i.vifb. fhe iaiife. From. his inedical report Ex.P/5, it is apparent fh.at the naturc of iajuiT was as such which was not oiily grievous but dangerous to his tife and Dr.R.A. Khan (P.W.-8) has categoricaUy stated that if tiinely trcatment would not have been provided to the victira Abdul Azim (&, Pyare Mivaa he woiild have died. 13. Statement of the Doctor also reflects that on 09/3/91 after examiaiog the victixn he had operated upon him. However, no such medical record has beeit subinitted by tbe piosecution but tlie fact reraaias that iu fhe iucident tbe victim has su_Sfered grievous mjiuy aad that too, on tiie vital part of the body whereas bis ribs and pleura were injuTsd. 14. True it is that for convicting any person u/s 307 of I.P.C. the intention is to be seea. In fhe case ia hand, froin. the stateanent of fhe victim, it is apparent that after seeing him, the accused/appellant first abused bim and fhen caQed hiiu by sa}'iaj that you are beconung "Dada* and within a minute you woiild be finished and tliereafter the accused/appellant assaulted him.. The ^' Kl B »E! ; 1 .;) laaiuier ia which the victun. was assaulted clearly shows tlie intention on the part ofthe accused/appeUant to do so. 15. Though the prosecution has not inade the seiziire of ftie weapon tout nierely on that basis the entire trial wffl not be vdtiated aad merelv on that 'oasis it cannot be said that fhere was no iatention on fhe part of the appellant to cominit the murder of the victim Pyaic Miyaa. If the statenient of fhe witaesses are seea, fhey have categorically stated tliat the accused/appeUant assaulted fhe victua with kaife, gravity of fhe offence can ftirfher be seen fi-oia the nature of the uijury where inunediately after sustamiag the injuiy the victun was profusely bleediag and the blood was coiuiag out like a fouiitain. Further the doctor has specificaUy defiiied tlie iajury and has stated fhat the saine was not ouly grievous but was also dangerous to ttie Ufe of fhe victmi. Had it been a case where otber fhiags would not have supported the prosecution case, non seizure of the weapon used inight have helped fhe appeUaut aad the judgnient cited by the counsel for the appellant would have helped hini but in fhe present case considenng aU fhe aspects of| the case, this Court is of tfae view fhat even if ffae weapon used has not been seized, fhe sanie is of no help to the accused/appellaiit. Furfhermore, it is not the case that fhe injuiy was caused by him. with soine other weapon or by sonie ofher ineaas axtd therefore fhe offence would not fall under Section 307 of I.P.C. i also find no force iu the arguiaents of the.counsel for the appeUaat fhat F.I.R. has been suppressed by the prosecution. Though Sheikh Jafari (PW-4) has steted that he has lodged fhe written report before P.S. KotwaU, and no reportwas ever lodged by him at D.K. Hospital bulj fhe Investigatkin Oflficer has inade it clear fhat no written report whatspever was lodged by Sheikh Jafar (PW-4), It appears thaf when ia the Hospital the report was written by fhe Investigating Officer fhe signature of Sheikh Jafar (PW-4) was obtained aad for» ttus, in: the Court he has stated fhat he lodged ftie written report. Moreover, by suppressing the so-cailed F.I.R. as alleged by the appeUant, the prosecution cannot get any advantage faecause even assuniiag fhat fhere was a written report by Sheikh Jafgr, he could not have aUeged anyfhina else except the fact that the ^Ii..^::.^? £B' 1^^ J accused/appellaiit has. caused injuiy to PT'are Miyaxii inore so when Pyare Miyan .aas niade £he specific aUegation agauist fhe present appellaat and his stateinent is duly siipported by tlie Medical report. Fllrtlier, I fiiid no force ia fhe ai^ument offhe appeBant that lookuig to fhe iajury, the offence would faU iindcr Section 325 of I.P.C. As already held, fhe manner in which fhe victiia has tseen assaulted, fhe nature of injuiy sustaiaed by him xnakes it clear tbat the accused is liable to be convicted for fhe offence uader Section 307 ofI.P.C. Now coiniag to fhe point ofsentence, a joiat application has been ffled by the accused/appeUant aud ttie wife aad son ofthe victim for compounding the offence. As the offence under Section 307 of I.P.C. is not coinpoundable, ffcie appellaat cannot derive any benefit of ftie same. However, as per fhe settled position of law, fhe effeet of this application caa be considered by this Coiut. 16. In the application it has been subnutted by fhe appeflaat and the legal heirs of the cotuplaiaant fhat fhe relations between thia are very cordial, that soine inarriage has taken place between tbe two famiLies, I deeia it proper to reduce the sentence which has been awarded to fhe appellant 17. Considermg the peculiar facts aad circunistances of the case, the fact that the parties have entered iato coiaproinise, outside the Court, the fact fhat fhe iacident had taken place about 19 years back, while maintaining fhe conviction of Oie accused/appeUant, his sentence is reduced fro-m. two years; rigorous imprisoainent to rigorous imprisonment for fhree inonfhs. However, the accused/appeBaat is directed to contpensate fhe famfly of fhe victim by paying Rs. 25000/-. This amount be deposited wifhin three nionfhs froin fhe date ofreceipt ofthe copy of this order. ]f fhis amouut is not deposited fhen the appeBaat shaU undei^o furtfaer imprisoiunent for one month. AppeUant is reported to be on bail. His bail bonds stand canceBed. Sdl- pritinker Diwaker judge