Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 31 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 5804 of 2023
BABULAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Akash Rathi, learned counsel for the appellant.
Shri H.S. Rathore, learned Government Advocate for the respondent/State.
Heard on : 08.08.2024
Pronounced on : 31.08.2024
This criminal appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the court passing the
following :
JUDGMENT
The present appeal has been filed on behalf of the appellant
under Section 374 being disgruntled by the order dated 14.03.2023
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passed in Sessions Trial No. 110/2021, whereby the appellant has
been convicted for the offence under Section 307 of the Indian Penal
Code, 1860 (hereinafter referred as to ‘IPC’) for 5 years with fine of
Rs.25,000/- and default stipulation and acquitted the appellant for the
offence under Section 294 of IPC.
02. The Prosecution case in a nutshell is that on 01.02.2021 at
about 5:30 in the evening, the complainant-Anokchand @ Praveen
and his elder brother went to the market, where after completing
work, his elder brother was ought to sit on motorcycle, at the same
time, accused Babu @ Babulal came with stick (lathi) and started to
abuse his elder brother Trilok, on stopping him, accused Babu @
Babulal said, “you made home at my land, I will kill you”.
Thereafter, with intention to kill, accused assaulted Trilok on the
head and left hand. Due to which, blooding was started and Trilok,
elder brother of the complainant, fell down. Accused fled away from
the spot. The incident was seen by some relative and nearby the
persons. They admitted him in the hospital. An FIR was lodged by
the complainant bearing Crime No. 25/2021 for the offence
punishable under Sections 294 & 307 of IPC at Police Station
Balakwada, District Khargone.
03. In turn, after completion of investigation, charge-sheet was
filed and the case was committed to the Session Judge and thereafter,
appellant was charged for offence under Sections 307 & 294 of IPC.
He abjured his guilt and took a plea that he had been falsely
implicated in the present crime and prayed for trial.
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04. In order to bring home the charges, the prosecution has
adduced as many as 09 witnesses namely the Anokchand @ Praveen
@ Aanya, complainanat (PW-1), Trilok, injured (PW-2), Sanjay (PW-
3), Meetharam (PW-4), Dr. Chandresh Dixit, Medical Officer (PW-
5), Laxmansingh Rathore, ASI (PW-6), Kailash Patidar (PW-7), Dr.
Animesh Damani, Consulting Plastic Surgeon (PW-8) and Varun
Tiwari (PW-9). On behalf of defence, 02 witnesses namely
Gulabchand Patel (DW-1) and Gokul Patel (DW-2) were produced.
05. Learned trial Court, on appreciation of the evidence and
argument adduced by the parties, pronounced the impugned judgment
on 14.03.2023 and finally concluded the case and convicted the
appellant for commission of the said offence under the provisions of
Section 307 of IPC while acquitted him from the charges under
Section 294 of IPC.
06. Learned counsel for the appellant submits that the appellant is
innocent and the learned trial Court has convicted the appellant
wrongly without considering the evidence available on record.
Counsel for the appellant further submits that the appellant has not
caused any fatal injury to the injured because there is nothing on
record to show that the injured has received serious injury. Only one
blow was given by the appellant. It is further submitted that there are
material contradictions and omissions in the statements of the
prosecution witnesses but the learned trial Court has erred in ignoring
the same and in convicting the appellant. It is further submitted that
there was previous enmity between the parties, the incident had
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happened all of a sudden, there is no knowledge and intention or
motive to assault the injured, no deadly weapon was carrying by the
accused, hence, the offence shall not travel more than the offence
under Section 335 of IPC, but the learned trial Court has wrongly
convicted appellant under Section 307 of IPC without considering the
evidence available on record. On these grounds, he prays for setting
aside the impugned judgment and acquit the appellant.
07. In alternate, learned counsel for the appellant also submits that
the learned trial Court has convicted the appellant under Section 307
of IPC and sentenced for 05 years R.I., he has suffered
approximately one year and six months in custody. It is contended
that as per statement of Dr. Chandresh Dixit, Medical Officer (PW-5),
only two injuries (one on temporal part of the head and another one
on right ear) were found on the body of injured. At the time of initial
treatment, the injured was conscious. The appellant has used only a
stick (lathi). The defence witnesses viz. Gulabchand Patel and Gokul
Patel have stated in their statements that there was already hostility
between them with regard to property. Therefore, counsel prays for
reduction of the sentence to the period already undergone or as the
Court may deem fit in the interest of justice.
08. Learned Government Advocate for the respondent/State has
opposed the prayer. Inviting the attention of this Court towards the
conclusive paragraphs of the impugned judgment, he has also
submitted that the injured has received the injuries caused by the
appellant and the learned trial Court has rightly convicted the
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appellant by sentencing him appropriately. Hence, prays for dismissal
of the appeal.
09. In the backdrop of rival submissions, the question for
determination for deciding this appeal is as to whether the findings of
learned trial Court regarding conviction and punishment of the
appellant under Section 307 of IPC is incorrect in the eyes of law and
facts or not.
10. In view of the aforesaid statements, having gone through the
record of trial Court, it is evident that Trilok (PW-2) has supported
the prosecution case and narrated in his examination-in-chief that
accused Babulal assaulted him with stick (lathi). Further, he was
taken for treatment to Kasrawad and further referred to Indore. The
statement of this witness has not been rebutted in his cross-
examination and also finds support from the testimonies of
Anokchand (PW-1) and Meetharam (PW-3). The statements of
Anokchand (PW-1) and Meetharam (PW-3) have also not been
controverted in their cross-examination.
11. Learned counsel for the appellant has adverted to some
discrepancies in the statements of the witnesses, but during whole
arguments, he is not able to point out any discrepancies or
contradictions which hit the root of the case.
12. With regard to the discrepancies in the statements of witnesses,
the Hon’ble Apex Court in Babasaheb Apparao Patil v. State of
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Maharashtra [AIR 2009 SC 1461] the Hon’ble Apex Court held as
under:-
“12. It is to be borne in mind that some
discrepancies in the ocular account of a witness,
unless these are vital, cannot per se affect the
credibility of the evidence of the witness. Unless
the contradictions are material, the same cannot
be used to jettison the evidence in its entirety.
Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence. Merely because
there is inconsistency in evidence, it is not
sufficient to impair the credibility of the witness.
It is only when discrepancies in the evidence of a
witness are so incompatible with the credibility
of his version that the court would be justified in
discarding his evidence.”
13. Here, it has to be kept in mind that this Court is not testing the
legality of acquittal of the appellant for the offence under Section 294
of IPC. However, in this appeal on the basis of evidence available on
record, this Court is satisfied that the findings of learned trial Court is
in accordance with law and facts to the extent that appellant Babulal
has inflicted the injury to the injured. It is also well settled principle
that the maxim “falsus in uno falsus in omnibus” has no application
in India. Hon’ble Supreme Court in the case of Shaktilal Afdul
Gaffar Khan Vs. Basant Raghunath Gogle reported in (2005) 7
SCC 749 has held as under :-
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“…..it is the duty of Court to separate grain
from chaff. Falsity of particular material
witness or material particular would not ruin
it from the beginning to end. The maxim
“falsus in uno falsus in omnibus” has no
application in India and the witnesses cannot
be branded as liar. The maxim “falsus in uno
falsus in omnibus” has not received general
acceptance nor has this maxim come to occupy
the status of rule of law. It is merely a rule of
caution. All that it amounts to, is that in such
cases testimony may be disregarded, and not
that it must be disregarded. The doctrine
merely involves the question of weight of
evidence which a Court may apply in a given
set of circumstances, but it is not what may be
called ‘a mandatory rule of evidence.”
14. Learned counsel for the appellant has also expostulated that
due to enmity, the statements of prosecution witnesses can not be
relied upon. Certainly, in this case, the defence witnesses namely
Gulabchand Patel (DW-1) and Gokul Patel (DW-2) have stated that
the complainant and his brother had previous enmity with appellant
regarding their property. On this aspect, the law is well settled that
enmity is double edged sword, and on the basis of enmity witnesses
cannot be branded as liar. Recently in the case of Nagraj Reddy Vs.
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State of Tamilnadu, 2023 LawSuit (SC) 687, the observation of
Hon’ble Apex Court is condign to quote here as under :-
“13. Undisputedly, Narayanappa (PW1) is an
interested witness, being the brother of the
deceased. He has also admitted that there
existed previous enmity between the
parties. As held by this Court in a catena of cases
including a recent decision in the case of Khema
alias Khem Chandra etc. Vs. State of Uttar Pradesh,
2022 SCC Online (SC) 991 previous enmity is a
double edged sword. On the one hand, it provides for
the motive and on the other hand, the possibility of
false implication cannot be ruled out.”
15. In view of the aforesaid propositions, the testimony of the
witnesses cannot be discredited or wiped out only on the basis
previous enmity or trivial contradictions which are not touching the
root of case. As such the aforesaid contention is also not liable to be
accepted. However, in such type of cases, the Court is bound to test
and enquire the testimony of injured witness and other witnesses who
are supporting the prosecution case.
16. Here, it is pertinent to mention here that Trilok (PW-2) is an
injured witness, after injury, he fell down on the ground. Hence, his
statement has special status in the eyes of law. With regard to the
testimony of injured witness, the Hon’ble Apex Court in the case of
[Chandrashekar Vs. State of Tamilnadu reported in (2017) 13
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SCC 585], endorsing another case of the Supreme Court, viewed as
under :-
10. Criminal jurisprudence attaches great weightage to
the evidence of a person injured in the same occurrence
as it presumes that he was speaking the truth unless
shown otherwise. Though the law is well settled and
precedents abound, reference may usefully be made to
Brahm Swaroop v. State of U.P., (2011) 6 SCC 288
observing as follows:
“28. Where a witness to the occurrence has
himself been injured in the incident, the
testimony of such a witness is generally
considered to be very reliable, as he is a witness
that comes with an in-built guarantee of his
presence at the scene of the crime and is unlikely
to spare his actual assailant(s) in order to
falsely implicate someone.”
17. In addition to that, the prosecution case has also been well
supported by Dr. Chandresh Dixit, Medical Officer (PW-5) and Dr.
Animesh Damani (PW-8). The testimonies of these medical witnesses
have not been rebutted in their cross-examination and therefore, they
are supporting the said injuries of Trilok (PW-2). Furthermore, the
testimonies of complainant and injured have also been corroborated
by FIR and the respective Assistant Sub Inspector, Laxman Singh
(PW-6). The testimony of Investigating Officer, Varun Tiwari (PW-9)
also inspires confidence regarding the fact that injured had received
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injuries due to assault of appellant. Hence, the prosecution case with
regard to grievous injuries received by injured Trilok (PW-2) has
been proved beyond reasonable doubt.
18. Now, turning to the next limb of arguments wherein learned
counsel for the appellant has submitted that said offence is not
coming in purview of Section 307 of IPC but rather it came in
purview of Section 335 of IPC.
19. So far as the contention of learned counsel for the appellant
regarding not traveling the present offence not more than the offence
under Section 335 of IPC is concerned, the provisions of Section 335
of IPC is worth mentioning to refer here as under:
“335. Voluntarily causing grievous hurt on
provocation.–Whoever [voluntarily]
causes grievous hurt on grave and sudden
provocation, if he neither intends nor knows
himself to be likely to cause grievous hurt to
any person other than the person who gave
the provocation, shall be punished with
imprisonment of either description for a
term which may extend to four years, or
with fine which may extend to two thousand
rupees, or with both.”
20. Virtually, if the defence counsel wants to rely on the provision
of Section 335 of IPC, the defence has to prove the fact of grave and
sudden provocation. However, after going through the whole cross-
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examination of the prosecution witnesses, no suggestion regarding
grave and sudden provocation has been given by learned counsel for
the appellant before the trial Court. The defence witnesses
Gulabchand Patel (DW-1) and Gokul Patel (DW-2) have also not
narrated anything regarding any provocation. Even in the
examination of accused under Section 313 of IPC, accused Babulal
has relied on total denial of the case. In his statement, he has not
submitted anything regarding grave and sudden provocation, hence,
he cannot be benefited by the provision enshrined under Section 335
of IPC.
21. Now, the question for consideration is as to whether the
offence of appellant came in purview of the attempt to murder. As per
the prosecution, no repeated blow was made by the appellant.
Initially, the MLC conducted by Dr. Chandresh Dixit (PW-5) clearly
shows that “swelling on the right temporal of the head measuring
5X4 cm and a lacerated wound measuring 4X2 cm on the right ear”.
The aforesaid statement of Dr. Dixit and medical report clearly shows
that only two injuries were found on the head of the injured.
Certainly, Dr. Dixit (PW-5), in his reply of a query, stated that the
said injuries were serious in nature and the injury can be caused by a
hard weapon. Initially, the injured was treated at Kasrawad Hospital
and further admitted in Bombay Hospital, Indore where, after CT
Scan, a fracture on right temporal bone was found.
22. Further, in view of the reports and the nature of the injuries, it
cannot be ascertained that the accused has intention to murder, or
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knowledge as to the fact that the injured would be killed by these
injuries. The prosecution has also not set up that the said injuries
were sufficient to cause death in the ordinary course of nature. In this
regard, The Hon’ble Apex Court in the case of Jai Narayan Singh
vs. State of Bihar [AIR 1972 SC 1764] mandated as under:-…
“11. Taking the case of appellant Suraj
Mishra, we find that he has been convicted
under Section 307 IPC and sentenced to 5
years rigorous imprisonment. According to
the evidence Suraj was responsible for the
chest injury which is described by Dr. Mishra
P.W. 6 as a penetrating wound 1 1/2” x 1/2 x
chest wall deep (wound not probed) on the
side of the right side of the chest. Margins
were clean out. Suraj, according to the
evidence, had thrust a bhala into the chest
when Shyamdutt had fallen as a result of the
blow given by Mandeo with the Farsa on his
head. According to the Doctor the wound in
the chest was of a grievous nature as the
patient developed surgical emphysema on the
right side of the chest. There was profuse
bleeding and, according to the Medical
Officer the condition of the patient at the
time of the admission was low and serious
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noted, this injury was of a grievous nature
while the other three injuries were simple in
nature. Where four or five persons attack a
man with deadly weapons it may well be
presumed that the intention is to cause death
In the present case however, three injuries
are of simple nature though deadly weapons
were used and the fourth injury caused by
Suraj, though endangering life could not be
deemed to be an injury which would have
necessarily caused death but for timely
medical aid. The benefit of doubt must,
therefore, be given to Suraj with regard to
the injury intended to be caused and, in our
opinion, the offence is not one under Section
307 IPC but Section 326 IPC is set aside and
we convict him under Section 326-IPC. His
sentence of 5 years rigorous imprisonment
will have to be reduced accordingly to 3
years rigorous imprisonment.”
23. In Mahendra Singh vs. State of Dehli Administration [AIR
1986 SC 309], it is held that grievous heart caused by blunt weapon
like lathi, can fall within section 325 of IPC and not under Section
326 of IPC. Likewise, in another case, Halke vs. State of M.P. [AIR
1994 SC 951], wherein it is held that the accused caused death of
deceased by inflicting blows on him with stick. Head injury proved to
be fatal and deceased died after a week. In this case, the accused was
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held liable and punished under Section 325 of IPC. The following
excerpts of the aforesaid judgment are worth to refer here:-
“9………………..No doubt the injury on the
head proved to be fatal after lapse of one
week but from that alone it cannot be said that
the offence committed by the two appellants
was one punishable under Section 304 Part II
IPC. The injuries found on the witnesses are
also of the same nature and for the same they
are convicted under Section 325 of IPC.”
24. From the aforesaid findings of the learned trial Court, it is
elucidated that the appellant has caused injuries with intention to
cause grievous injury only, therefore, he cannot be convicted under
Section 307 of IPC and the appellant should be convicted for
voluntarily causing grievous injury punishable under Section 325 of
IPC.
25. Hence, in view of the aforesaid analyses, the conviction under
Section 307 of IPC is liable to be and is hereby set aside and instead
of that the appellant is liable to be convicted under Section 325 of
IPC. Accordingly, this appeal is partly allowed with regard to the fact
that the appellant is convicted under Section 325 of IPC instead of
the offence under Section 307 of IPC.
26. So far as the sentence is concerned, looking to the facts and
circumstances of the case and also the fact that the appellant is not
having any criminal past and he is facing criminal case since 2021, it
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would be condign to award sentence to the appellant for two years
R.I. alongwith fine of Rs.50,000/- for the offence punishable under
Section 325 of IPC. In case of default of payment of fine amount, the
appellant shall further undergo for 03 months S.I. The sentence
already suffered by the appellant, will be adjusted inconsonance of
Section 428 of Cr.P.C.
27. He be set at liberty forthwith if not required in jail in any case
immediately subject to deposit the fine amount after completion of
the aforesaid period. The fine amount and compensation amount, if
any, deposited earlier shall be adjusted.
28. Out of the fine amount so deposited by the appellant,
Rs.40,000/- be paid to the injured Trilok by the learned trial Court.
29. The judgment regarding disposal of the seized property stands
confirmed.
30. A copy of this order be sent to the learned trial Court for
information and compliance.
31. Consequently, the appeal is partly allowed and disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
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