(1) HIGH COURT OF MADHYA PRADESH : JABALPUR Cr. A. No. 56/1995 Amarnath Vs. State of M.P. As Per : G.S.Solanki, J. Shri Sanjeev Saxena, Advocate for appellant. Ms. Kamlesh Tamrakar, PL for State. Judgment heard on : 25.1.2011 Judgment delivered on : 20.4.2011 J U D G M E N T 1. The appellant has preferred this appeal under section 374(2) of Cr.P.C. being aggrieved by judgment dated 31.12.1994 passed by the Second Additional Sessions Judge, Shahdol in S.T. No. 38/1993 whereby the appellant has been convicted under section 307 of IPC and sentenced to R.I. for 7 years (on two counts) and fine of Rs. 2000/- (on two counts), with default stipulation. 2. The prosecution case, in short, is that on 27.11.1992 Kiran (PW-4) wife of Rammilan (PW-7) was assaulted by appellant Amarnath on the dispute of waste material thrown by mother of the appellant. The matter was reported at P.S. Kotwali, Shahdol, thereafter on the same day in the evening Ramkhilawan (PW-6) along with Rammilan (PW-7) and Brijlal (PW-13) went to the house of father of the appellant. It is alleged that Ramkhilawan told (2) appellant to vacate the house. It is undisputed that since 10 years, R.S.Kushwaha, father of the appellant was tenant of Rammilan (PW-7). It is further alleged that during the aforesaid conversation, appellant became angry, came out of the house and stabbed Brijlal (PW-13) on abdomen. When Rammilan (PW-7) tried to save Brijlal, appellant stabbed on him also, thereafter both the injured persons were sent to the Hospital and FIR (P-6) was lodged at P.S. Kotwali, Shahdol at 8:30 PM by Ramkhilawan (PW-6). Dr. Mukund Chaturvedi (PW-11) examined injured Brijlal (PW-13) and Rammilan (PW-7). 3. After usual investigation, appellant was charge sheeted before the Chief Judicial Magistrate, Shahdol, who committed the matter to the Court of Sessions. The learned Additional Sessions Judge framed the charges under section 307 of IPC (on two counts). 4. The appellant abjured the guilt and pleaded false implication. He took the defence in the statement under section 313 of Cr.P.C. that Rammilan (PW-7) came with some other antisocial elements and tried to forcefully vacate the tenanted premises. 5. After completing the trial and on appraisal of evidence on record, learned Additional Sessions Judge convicted the appellant as mentioned hereinabove. 6. Learned counsel for the appellant has submitted that appellant has been falsely implicated in the case. The (3) injured witnesses have not been supported by the independent witnesses like Vijay Prasad Gupta (PW-8), Mohd. Sagir (PW-9) and Premlal Verma (PW-12), therefore, the trial Court committed error in placing the reliance on the testimony of injured witnesses. He has further submitted that the trial Court also committed error in not appreciating the evidence on record in its proper perspective. The appellant also got injured during the scuffle. The trial Court did not consider this aspect of the matter. Counsel has further submitted that the complainant party raided the house of appellant and tried to vacate him forcefully but this plea was not considered by the trial Court. He has further submitted that the appellant is aged 21 years and is a student of B.Sc. Final year, therefore, in case if jail sentence be awarded to the appellant, lenient view may be taken. 7. On the other hand, learned counsel for the State justified and supported the impugned judgment and finding of the trial Court. 8. I have heard the learned counsel for the parties, perused the impugned judgment, evidence and other material on record. Ramkhilawan (PW-6) deposed that on 27.11.1992, when he returned back to his home at about 8:00 PM, he was informed that appellant Amarnath and his family members assaulted to Kiran W/o Rammilan. Kiran (PW-4) corroborated this fact. Ramkhilawan (PW-6) (4) deposed that after listening the aforesaid incident, he went to the house of Ramashankar, father of the appellant and enquired about previous incident, he asked father of the appellant to vacate the house. He further deposed that at the same time Brijlal (PW-13) also came there and asked the appellant that why he assaulted on Kiran (a lady), on that the appellant stabbed him on abdomen and when Rammilan (PW-7) tried to save Brijlal, appellant stabbed him also on abdomen. According to Ramkhilawan (PW-6), Brijlal (PW-13) and Rammilan (PW-7) were taken to the hospital and he lodged the report (Ex.P-6). 9. Brijlal (PW-13) corroborated the version of the appellant and deposed that when he asked appellant that he should not assault on a lady, on that appellant stabbed him in his abdomen. He further deposed that appellant also stabbed Rammilan (PW-7). Similar is the statement of Rammilan (PW-7). He deposed that Brijlal told appellant regarding assault on a lady, on that appellant stabbed on him and Brijlal. Despite extensive cross examination, complainant Ramkhilawan, Brijlal (PW-13) and Rammilan (PW-7) remained undeviated with respect to the factum of assault. 10. Dr. Mukund Chaturvedi (PW-11) further corroborates aforesaid facts, who examined injured Brijlal (PW-13) and Rammilan (PW-7). He deposed that he examined injured Brijlal and found injury No. 1 over iliac region, which was (5) spindle shaped stab wound of 2 ½ x 1 cm, omental pad of fat protruding out through the wound, intestinal wall was also cut at several places. Injury No. 2 and 3 were incised wounds on thighs. It was opined that injury No. 1 was dangerous to life. 11. He further deposed that he also examined Rammilan (PW-7) and found one stab wound of 2 ½ x ½ cm on the left side of lower abdomen, omental pad of fat protruding out through the wound, intestinal wall was also cut at several places. Injury No. 2 and 3 were incised wounds on thighs. It was opined that injury No. 1 was dangerous to life. MLC reports are Ex.P-10A and 11A, respectively. He specifically denied the suggestion of defence that aforesaid stab injuries may cause during grappling of persons. On the contrary he deposed that such type of injuries may be caused only by forceful assault. He also denied the suggestion that the injuries were self inflicted. In these circumstances, version of injured Brijlal (PW-13) and Rammilan (PW-7) are corroborated by medical evidence and further corroborated by FIR Ex.P-6. 12. I have gone through the statements of Vijay Prasad Gupta (PW-8), Mohd. Sagir (PW-9) and Premlal Verma (PW-12). All of them have not supported the prosecution story in toto, therefore, they were declared hostile, however, despite hostility, Vijay Prasad Gupta (PW-8), Mohd. Sagir (PW-9) partly corroborated the prosecution (6) case that Brijlal (PW-13) and Rammilan (PW-7) sustained injuries on their abdomens. Mohd. Shagir (PW-9) further deposed that Brijlal (PW-13) and Rammilan (PW-7) made hue and cry that they were assaulted by knife by someone who fled away in dark, but this statement is not believable as the incident took place at about 7:30 PM and appellant was well known to the injured persons as well as complainant, thus, this case cannot be said to be of mistaken identity. Thus, the trial Court rightly disbelieved the version of Shagir and other hostile witnesses. 13. The defence taken by the appellant was that the complainant party raided his house and tried to vacate the house forcefully. Sudhir Ku. Gupta (DW-1), a student of class 7th deposed that he saw that Brijlal and Rammilan (PW-7) had some shining articles in their hands and there were 13-14 other persons having deadly weapon in their hands and they were trying to vacate the house of appellant. Such type of defence was not put to complainant Ramkhilawan (PW-6) and injured Rammilan (PW-7), though this defence was put up in cross examination of Brijlal, who denied this fact. Witness Sudhir Ku. Gupta (DW-1) is a child witness as well as he himself was not certain about the weapons of offence, which were in the hands of Brijlal (PW-13) and Rammilan (PW-7). Dr. B.D.Pandey (PW-1) examined the appellant Amarnath, who only found two scratch wound on his body, (7) which were simple in nature, that too may be an injury caused in previous incident, which took place in the morning when appellant and other injured Kiran (PW-4) quarreled. In these circumstances, the defence story that about 14-15 persons raided the house of appellant appears to be an afterthought and trial Court rightly disbelieved the same. 14. After carefully scanning the evidence on record, I am of the view that prosecution has succeeded in proving that the appellant caused stab injury to Rammilan (PW-7) (PW-4) and Brijlal (PW-13) on lower abdomen, which were dangerous to their lives, thus in my opinion, the trial Court has not committed any error in appreciating the evidence on record. The conviction recorded by the trial Court under section 307 of IPC, on two counts, is hereby affirmed. 15. Learned counsel for the appellant has submitted that appellant is a young man and is student also, therefore, ends of justice would be met if he is sentenced for the period already undergone, which is approximately 6 ½ months and fine. 16. After due consideration of the facts and circumstances of the case and the manner, in which the appellant committed the offence, I am not inclined to sentence the appellant for the period already undergone, however, in (8) my opinion, the jail sentence of 7 years (on two counts), appears to be severe one and requires alteration. 17. Resultantly, the appeal is allowed in part to the aforesaid extent. Conviction of the appellant under section 307 of IPC (on two counts) is hereby affirmed. Appellant is sentenced to R.I. for 4 years (on two counts) and fine of Rs. 2000/- (on two counts) and in default of payment of fine, he has to undergo R.I. for further 6 months. Both the jail sentences to run concurrently. Set off of period already undergone shall be given by the trial Court at the time of preparing the supersession warrant. Appellant is on bail, his bail bond and surety bond are discharged. Appellant is directed to surrender before the trial Court on or before 22.6.2011. Record of the trial Court be transmitted along with the copy of this judgment for compliance and necessary action. (G.S.Solanki) Judge PB