HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
DIVISION BENCH: Hon'ble Mr. Justice Rakesh Saksena
&
Hon'ble Mr. Justice N.K.Gupta, JJ.
CRIMINAL APPEAL NO.56 OF 2008
Arman Khan & others
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.422 OF 2008
State of Madhya Pradesh.
Vs.
Arman Khan & others.
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Cr.A.No.56/2008
Shri Amit Dubey, Advocate for the appellants.
Shri Prakash Gupta, Panel Lawyer for the respondent-
State.
Shri Manish Datt, Advocate for the complainant.
Cr.A.No.422/2008
Shri Prakash Gupta, Panel Lawyer for the appellant-
State.
Shri Amit Dubey, Advocate for the respondents.
Shri Manish Datt, Advocate for the complainant.
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JUDGMENT
(Delivered on this the 28th day of September, 2010)
PER: N.K.GUPTA,J.
Since both the above appeals arise out of
common impugned judgment, this judgment shall govern
disposal of both the appeals.
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Cr.A.No.56/2008 & Cr.A.No.422/2008
(1) Cr.No.56/2008
This criminal appeal under Section 374(2) of
the Code of Criminal Procedure has been preferred by
the appellants being aggrieved by the impugned
judgment dated 19/12/2007 passed by the First
Additional Sessions Judge, Waraseoni District Balaghat
in ST No.31/2004, whereby the each appellant has been
convicted for commission of offence under Section 307
read with Section 34 of IPC and inflicted sentence of
rigorous imprisonment for three years with fine of
Rs.500/- each, in default each of the appellants has to
undergo additional imprisonment for three months.
(2) Cr.No.422/2008
This criminal appeal under Section 377 of the
Code of Criminal Procedure has been preferred by the
State of Madhya Pradesh being aggrieved by the
impugned judgment dated 19/12/2007 passed by the First
Additional Sessions Judge, Waraseoni District Balaghat
in ST No.31/2004 for enhancement of the sentence of the
respondents Arman Khan and Salman Khan.
3. The prosecution case, in short, is that 2-3 days
prior to 24/9/2003, accused Arman Khan had pushed D.P.
Mishra, Advocate (PW-2) in the Court premises and some
hot exchange of the words had taken place between
them. On 24/9/2003 when Vilas Mishra (PW-10) with his
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Cr.A.No.56/2008 & Cr.A.No.422/2008
brothers Amit Mishra (PW-11) and Manish Mishra were
passing from the road by motorcycle near the house of
accused Arman Khan, were stopped by accused Arman
Khan, Salman Khan, Samarjeet and Raju @ Rajesh. All
the accused started assaulting these three victims, but
Vilas Mishra could manage to escape, whereas other two
victims sustained injuries. Ultimately, Manish and Amit
were brought to the hospital for their medical
examination and treatment. A separate sessions trial was
initiated for that incident. When the injured Vilas went to
the hospital with his father D.P. Mishra to look for his
brothers, all the accused persons started shouting that
Vilas has come and let him be finished. The accused
persons started assaulting the injured Vilas by kicks and
fists. Vilas ran away and took shelter in operation
theater, but all the accused persons entered into the
operation theater and again started assaulting. Accused
Salman assaulted Vilas by a dressing tray kept in
Operation Theater (for short “O.T.”) and caused injury on
his head, whereas accused Samarjeet took dressing
scissors from the tray and gave 5-6 stab blows by scissors
to injured Vilas causing various injuries in his abdomen
and other places of the body. Accused Arman Khan and
Raju again assaulted Vilas by kicks and fists. Amit,
brother of injured Vilas lodged an FIR Ex.P.14 at Police
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Cr.A.No.56/2008 & Cr.A.No.422/2008
Station Waraseoni District Balaghat, which was written
by ASI V.P.Tiwari (PW-13), who came in the hospital after
getting information regarding quarrel. injured Vilas was
examined by Dr. V.K. Choudhary (PW-5) and since he had
sustained injuries in the abdomen which resulted in
perforation, he was referred to the District Hospital,
Balaghat where Dr. K.K.Khosla (PW-12) examined injured
Vilas and found that it was a serious case of perforation,
so he referred him to the Medical College, Nagpur and
ultimately Vilas was taken to Shatah Aayu Hospital,
Nagpur where Dr. Deshraj (PW-7) operated him, who
found perforation at 7-8 places in the intestine of Vilas
and repaired the same and stitched various wounds.
4. The appellants-accused abjured their guilt and
took defence that actually the injured Vilas and his
brothers came with preparation of assault at the house of
Arman Khan and assaulted Arman Khan brutally. He was
saved by the co-accused persons. When Arman Khan was
taken to the hospital, the complainant party tried to make
a false case against the present accused persons. No
incident took place in the operation threatre. It was also
alleged before the trial Court that Salman Khan was out
of station at the time of incident and he was not present
at the scene of crime. They examined three defence
witnesses namely Dr. V.K. Choudhary (DW-1), Dr. Sanjay
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Cr.A.No.56/2008 & Cr.A.No.422/2008
Shukla (DW-2) and H.C. Komal Singh (DW-3) to prove the
injuries of Arman Khan and counter FIR of the case.
5. On considering the evidence adduced before
the trial Court and the defence taken by the accused
persons, the learned First Additional Sessions Judge
passed the impugned judgment and inflicted sentence to
the accused persons in the aforesaid manner.
6. We have heard learned counsel for the parties.
7. Learned counsel for the appellants (accused)
has submitted that injuries of injured Vilas were not fatal.
In support of his contention, he has submitted that no
fracture was received by Vilas. The dressing scissors
was very small, by which no fatal injury could be
caused.
8. In the light of the argument, if medical
evidence is considered, then it would be clear from the
evidence of Dr.V.K.Choudhary (PW-5), who examined
injured Vilas for the first time and gave MLC report
Ex.P-5, that Vilas sustained five stab wounds in the
abdomen, each of which was 2 cm deep approx. He found
incised wounds on left face and right arm. According to
his opinion, such injuries could be caused by sharp
cutting instrument like scissors. He also found one
lacerated wound on the head of injured Vilas, which could
be caused by hard and blunt object. Ultimately Dr.
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Cr.A.No.56/2008 & Cr.A.No.422/2008
Deshraj (PW-7) performed surgery on injured Vilas. He
found that intestines of Vilas were found damaged at 7-8
places. There was a big hole in the intestine, 1 cm in size.
Out of these perforations, blood and fecal matter was
found in the outer surface of intestine. He gave clear cut
opinion that if operation was not performed then Vilas
may die in natural course. Nothing has been brought in
the cross examination of Dr. Deshraj (PW-7) by which it
can be said that his opinion is not acceptable, therefore,
by the expert opinion of Dr. V.K.Choudhary (PW-5) and
Dr. Deshraj (PW-7), it is apparent that injuries caused to
the injured Vilas were fatal in nature.
9. Learned counsel for the appellants (accused)
has submitted that the complainant lodged a concocted
FIR against the appellants (accused). Some of the
appellants were not present at the time of incident.
Accused Salman Khan was out of station, whereas
accused Raju @ Rajesh had already lost one of his arm
prior to the incident and he could not assault in such a
manner. Accused Arman Khan had sustained grievous
injuries in the incident, and therefore, it was not possible
for him to participate in the incident.
10. The contention of the appellants (accused)
regarding their act as argued by learned counsel for the
appellants cannot be accepted in toto. The appellants in
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Cr.A.No.56/2008 & Cr.A.No.422/2008
the trial Court have produced 2-3 witnesses in their
defence, out of them Head Constable Komal Singh (DW-3)
has produced a Rojnamcha Ex.D-7, in which a report has
been lodged by Usman Khan, brother of accused Arman
Khan, in which he has mentioned that accused Salman
Khan saved injured Arman Khan in the incident, which
took place in the house of Arman Khan. Therefore, by the
document Ex.D-7, it is clear that alibi of Salman Khan is
not true. He was very much present in the previous
incident, and therefore, it is natural that he would have
visited hospital with Arman Khan also.
11. In the present case, D.P. Mishra (PW-2), Lokesh
(PW-8), Anoop Choubey (PW-9), Vilas Mishra (PW-10),
Amit Mishra (PW-11) and Dhiraj Shendre (PW-15) were
examined as eye-witnesses. Out of these witnesses,
Lokesh (PW-8) and Anoop Choubey (PW-9) have turned
hostile. They did not support the prosecution case,
whereas Dhiraj Shendre (PW-15) seems to be a tutored
witness. According to Dhiraj Shendre, incident took place
in the OPD of the hospital, whereas incident took place in
O.T. of the hospital, therefore, the evidence of witness
Dhiraj Shendre cannot be relied upon. Similarly,
D.P.Mishra (PW-2) and Amit Mishra (PW-11) have
claimed that they saw the incident from the window of
the O.T., whereas it was not reasonably possible to see
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Cr.A.No.56/2008 & Cr.A.No.422/2008
the incident from the windows, because from the position
of the windows in O.T. as shown in the map Ex.P-2, it is
clear that there were 2-3 corridors in the hospital. The
corridors were connected with labour room and OT room.
There was no window in the corridors. Windows, which
were in the OT room, opened in the courtyard and no
gate has been shown in the map by which it can be said
that D.P. Mishra (PW-2) and Amit Mishra (PW-11) could
go to the courtyard near the windows. However, at the
time of preparation Ex.P-2, D.P.Mishra (PW-2) has shown
the window, by which he has seen the incident.
12. Under these circumstances, only reliable
witnesses remained is injured Vilas Mishra (PW-10), who
himself has stated that Salman Khan assaulted him with
dressing tray on his head. He has not mentioned that any
second assault had been given by Salman Khan. He
further deposed that accused Samarjeet and Arman Khan
assaulted him with scissors causing injury in his
abdomen, face and other places, whereas the accused
Raju assaulted him by kicks and fists. Witness D.P.
Mishra (PW-2) has accepted in para 13 of his statement
that Raju has lost his one arm prior to this incident,
therefore, it was not possible for Raju to participate in
such incident. There was no injury shown by Dr. V.K.
Choudhary (PW-5) in confirmation of that assault caused
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Cr.A.No.56/2008 & Cr.A.No.422/2008
by accused Raju, therefore, it is highly doubtful that
accused Raju has assaulted the injured Vilas in any
manner.
13. Amit Mishra (PW-11), brother of injured Vilas
Mishra has lodged Dehati Nalishi Ex.P-14, just after the
incident, in which he has stated that accused Samarjeet
assaulted Vilas by a dressing scissors, but no allegation
against Arman Khan has been made in the FIR that he
assaulted Vilas with the help of dressing scissors,
therefore, the statement of various witnesses that the
accused Arman Khan assaulted Vilas by scissors seems to
be after thought. Arman Khan did not assault the injured
Vilas by scissors. No eye-witness informed the trial
Court that Arman Khan had assaulted the injured Vilas by
kicks and fists. If the evidence given by Dr. V.K.
Choudhary (DW-1), the defence witness is considered in
the present context, then it would be clear that prior to
this incident, Arman Khan had already been brought to
the hospital in a badly injured condition and he was being
examined by Dr. Choudhary just before the incident and
he was taking treatment at that time, therefore, it was
not possible for Arman Khan in such a condition that he
could participate in the incident, hence presence of
Arman Khan in the incident becomes doubtful.
However, by the evidence of injured Vilas, version of
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Cr.A.No.56/2008 & Cr.A.No.422/2008
FIR, and the corresponding injuries sustained by Vilas, it
is proved that the accused Samarjeet caused 5-7 injuries
to Vilas by the dressing scissors. Out of these injuries,
five injuries were caused in the abdomen of Vilas and
they were fatal.
14. In view of the aforesaid discussion, in our
opinion, it is not proved beyond reasonable doubt that
the accused Raju alias Rajesh or Arman Khan
participated in the incident, however it is proved beyond
reasonable doubt that accused Samarjeet assaulted the
injured Vilas by dressing scissors brutally and caused
fatal injury to injured Vilas, whereas accused Salman
Khan assaulted injured Vilas only once by dressing tray
causing a simple injury on his head.
15. Learned counsel for the appellants (accused)
has submitted that only by the nature of injuries, act of
the accused cannot be ascertained. No accused was
armed when they entered into the O.T. of the hospital,
and therefore, there was no intention of these accused-
appellants to cause death of victim Vilas. He placed
reliance on the case law “State of MP Vs. Saleem @
Chamaru & another” [(2005) 5 SCC 554], in which it
is held that for constitution of offence under Section 307
of IPC, intention or knowledge is important and injury is
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Cr.A.No.56/2008 & Cr.A.No.422/2008
not so important. Nature of injury can be used to assess
the intention of the accused.
16. In the present case the main assailant is
accused Samarjeet, who caused fatal injuries to the
injured Vilas in his abdomen. By the seizure memo
Ex.P-4, the size of the scissor was found to be of 6 ½”. Dr.
Choudhary found the depth of various wounds in
abdomen to be 2 cm each. By these facts, it is clear that
accused Samarjeet assaulted injured Vilas by scissor in a
forceful manner. Even he did not stop his act after giving
1-2 blows. He gave more than 5 scissors blows, which
were on the vital part of the body i.e. abdomen, therefore,
by the act of accused Samarjeet, his intention can be
assessed. With the help of nature of injuries and the act
of accused Samarjeet, it can be said that he intended to
cause death of injured Vilas, and therefore, he was guilty
for commission of offence under Section 307 of IPC. The
learned First Additional Sessions Judge rightly held him
guilty for the said offence.
17. As discussed above, it is clear that it is highly
doubtful that accused Arman Khan was present at the
time of incident or in the occurrence, therefore, he is
entitled to get benefit of doubt, hence it cannot be said
that he assaulted the injured Vilas in any manner or he
had any common intention with accused appellant
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Cr.A.No.56/2008 & Cr.A.No.422/2008
Samarjeet. Therefore, he cannot be convicted for
commission of offence under Section 307 of IPC or any
lesser offence of the same nature either directly or with
the help of Section 34 of IPC. Similarly, it is clear that
accused Raju alias Rajesh could not assault the injured
Vilas with only one arm and no injury was found on the
body of injured Vilas, therefore, no overt-act of Raju alias
Rajesh is proved beyond reasonable doubt by which it
could be said that he assaulted the injured Vilas or he
had any common intention with accused Samarjeet. In
such circumstances, accused Raju alias Rajesh also
cannot be convicted for commission of offence under
Section 307 of IPC or for inferior offence of the same
nature either directly or with the help of Section 34 of
IPC.
18. In the incident it is proved that accused Salman
Khan assaulted the injured Vilas with a dressing tray and
caused a simple injury in the very beginning. He did not
assault further or after the assault made by accused
Samarjeet. The act of the accused Samarjeet was so
sudden, so that accused Salman Khan could not have
imagined that Samarjeet would cause such stab injuries
to the injured Vilas by scissors. Therefore, looking to the
act of accused Salman Khan, it cannot be said that he had
any common intention with accused Samarjeet for
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Cr.A.No.56/2008 & Cr.A.No.422/2008
commission of offence under Section 307 of IPC, hence
accused-appellant Salman can be convicted for his own
act, which comes under Section 323 of IPC instead of
Section 307 of IPC. Since the charges for offence under
Section 307 of IPC are higher, therefore, accused Salman
Khan can be convicted for lower offence of the same
nature.
19. Learned counsel for the State has argued in his
appeal under Section 377 Cr.P.C that the acts of accused
Arman Khan and Salman Khan are grave, and therefore,
their sentences be enhanced. But after the discussion in
foregoing paras it is clear that accused Arman Khan
cannot be convicted for commission of offence under
Section 307 of IPC, therefore, his sentence for
commission of offence under Section 307 of IPC deserves
to be quashed, hence there is no question of
enhancement of sentence of accused Arman Khan.
Similarly, the accused Salman Khan has not committed
the offence punishable under Section 307 of IPC, and
looking to his overt-act, he can be convicted for
commission of offence under Section 323 of IPC only,
therefore his sentence should be assessed afresh, hence
his sentence cannot be enhanced as prayed by learned
counsel for the State. Under these circumstances, State
appeal deserves to be dismissed.
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Cr.A.No.56/2008 & Cr.A.No.422/2008
20. The appellants Arman Khan and Raju @ Rajesh
cannot be convicted for any offence, therefore, the
Criminal Appeal No.56/2008 in regard to them is hereby
allowed. Their conviction and sentence passed by the
Court below under Section 307 read with Section 34 of
IPC is hereby set aside. They are acquitted of the
aforesaid charges. They are on bail. Their bail bonds
stand discharged. They will be entitled to get the amount
of fine back, if deposited in the trial Court.
21. Criminal Appeal in respect to accused Salman
Khan is partly allowed. His conviction under Section 307
of IPC is hereby set aside. He is acquitted from the
charge under Section 307 read with Section 34 of IPC,
but he is convicted for offence punishable under Section
323 of IPC. So far as appeal of accused Samarjeet is
concerned, his appeal fails and deserves to be dismissed.
22. So far as sentence is concerned, it has come on
record that the main victim Vilas has filed an application
for compromise before this Court and has sought
permission to do compromise. Though this Court has not
given any permission, because the offence as alleged was
not compoundable, but it was directed that the
consequence of that application may be considered at the
time of awarding sentence, hence that fact should be
considered in the present judgment.
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Cr.A.No.56/2008 & Cr.A.No.422/2008
23. Since appellant-accused Salman Khan has been
convicted under Section 323 of IPC, taking into
consideration his compromise application and the fact
that the offence under Section 323 of I.P.C. is
compoundable, he is acquitted.
24. Accused Samarjeet has also remained in
custody for a period near about 27-28 days in this case.
Though considering the gravity of offence, his custody
period seems to be lesser, but since the injured Vilas
Mishra has pardoned the accused Samarjeet and has filed
compromise application, he deserves not to be sent to
jail again. However, it seems appropriate that fine
imposed by the Court below be increased. Accordingly,
his sentence of imprisonment is reduced to the period of
custody already undergone by him and the fine amount
imposed by the Court below is hereby enhanced to
Rs.25,000/- (Rupees twenty five thousand). In default, he
will undergo rigorous imprisonment of one and half
years.
25. In the light of above discussion, the Criminal
Appeal No.422/2008 preferred by the State is dismissed.
Criminal Appeal No.56/2008 is partly allowed.
26. It is made clear that no interference is called
for in the impugned judgment regarding disposal of the
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Cr.A.No.56/2008 & Cr.A.No.422/2008
property of the case passed by the learned First
Additional Sessions Judge, Waraseoni District Balaghat.
(Rakesh Saksena) (N.K.Gupta)
Judge Judge
28/09/2010 28/09/2010.
Ansari.