IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, PITHAPURAM.
Present: K.Madhavi, Assistant Sessions Judge, Pithapuram.
Tuesday , the 16th Day of April, 2024
SESSIONS CASE No.454 of 2023
Between:
The State Represented by the Sub Inspectoor of Police, Pithapuram Rural Police Station. …Complainant.
And
Hiravan Khaji, S/o.Jagadeesh Khaji, 38 years, C/ST Khaji, H.No.55, Ram Nagar Street, Prasauni Gram, West Champaran, Bihar State. Now at Venkateswara Rice Mill, Kandarada Road, F.K.Palem village, Pithapuram Mandal. …Accused.
*******
This Sessions Case, coming on 15.04.2024, for Arguments before me, in the presence of Sri Damera Kiran, the learned Additional Public Prosecutor for the State, and of Sri.K.Apparao, learned Advocate for the Accused; and upon hearing both sides; and upon perusing the entire material available on record, and upon having been stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The Criminal prosecution in the case is based on the charge-sheet filed by Sub Inspector of Police of Pithapuram Rural Police Station relating to Crime.No.118 of 2023 of Pithapuram Police Station registered for the offence under Section 307 of Indian Penal Code (herein after referred as I.P.C for brevity ).
Case of the Prosecution in brief as follows :
[a]Allegation on said mentioned accused is that on 30.07.2023 at about 10.00AM, LW.1/Ghanshyam Uraon along with his co-workers of Sri.Venkateswara
Rice Mill located at Fakruddinpalem went to beach and returned to the Rice Mill at about 4.00 PM but, the accused who did not went with them to the beach out of possessiveness and anger made sarcastical comments against LW.1 and his female family members and abused them in filthy language. Thereafter, at about 8.00 PM when LW.1 is standing here the tiny sheet shed staying by Lws.3 to 6/Yaswanth Kumar Mehatho, Ajay Uraon, Pampana Srinu, Chelliri Raju and getting ready for having dinner accused of you again abused LW.1 then, out of anger LW.1 bet accused with a stick over his head on that accused sustained simple bleeding injuries over his forehead on that accused become wild and with an intention to murder LW.1 accused all of a sudden pounced on Lw.1 then, Lws.3 and 4 attempted him to stop but, accused pick up a vegetable knife present near him and by abusing LW.1 as “die bastard” stating so accused stabbed him with force in his abdomen due to which he sustained bleeding injuries and settled down on the ground on hearing his cries Lw.2/Naralasetti Siva Kumar came to the spot and rescued him by initially taking to RMP doctor A.Rama Krishna/LW.11 located at
Ambedkar Center, Pithapuram and provided first aid thereafter, for treatment shifted to Aruna Hospital and LW.16 Dr.Seshagiri Rao treated him.
[b]On hospital intimation sent by LW.16, LW.17/Y.Ramakrishna, Head constable of Police, recorded the statement of LW.1 basing on that LW.18/L.Guna Sekhar,
Sub Inspector of Police registered a case as Crime.No.118/2023 for the offence
Under Sec.307 of IPC and on completing investigation filed charge sheet against the accused alleging that he has committed the offence under section 307 of IPC.
Hence, the charge sheet.
II.The said charge-sheet is numbered as PRC 14/2023 on the file of Learned
Principal Judicial First Class Magistrate, Pithapuram, and after furnishing the
copies to him as per section 207 of Cr.P.C in accordance of section 209 of Cr.P.C committed to Hon’ble Principal District and Sessions Court, Rajahmundry, from there the case file is sent to this court for disposal in accordance to the law.
III.On receipt of the summons accused appeared before this court and after hearing the learned prosecutor and defence on charges as required under section 227 of Cr.P.C, examined the accused for the accusation leveled on him under section 307 of Penal Code and as per 228 of Cr.P.C framed the charge under section 307 of Penal Code and read over the said charge to the accused in Hindhi in the presence of his learned defence counsel for which he denied the same, pleaded not guilty and claimed to be tried. Hence, the case is proceeded to conduct trial and issued schedule proceedings.
IV.During the course of trial, prosecution examined P.W’s 1 to 14 towards ocular evidence, Ex-P1 to Ex-P15 and Mo’s 1 to 5 are marked towards documentary evidence.
[b]On closure of the said evidence accused was examined under section 313
Cr.P.C by reading over the incriminating evidence appearing against him in Hindhi to which the accused denied, pleaded innocence, reported no defence evidence but filed his Written statement as permitted under section 313 (1) (4) Crpc , accordingly, defence evidence is closed and proceeded to hear the arguments.
V.Heard the learned prosecutor and the defence as well.
VI: Now the Points for determination are :
1 Whether Prosecution is able to establish that accused knowingly and intentionally attacked Lw-1 Ghansyam Uraon on 30-07-2023 at 8-00p.m near Sri Venkateshwara Rice Mill, F.K.Palem in order to murder him and that he failed for the same and that there by accused committed the charged offence under section 307 of IPC ? 2 Whether Prosecution is able to establish the guilt of the Accused for the Charged offence under section 307 of IPC beyond all reasonable doubt ?
VII: POINT’s I and II ::
1.Before appreciating the evidence on record, it is just and proper to reproduce the necessary ingredients that required to prove the charged offence under section 307 of Penal code and settled legal principles on the said charge.
Section 307 : Attempt to Murder:: Proof: Points requiring proof are :
1. That the accused did an act
2. That it was done- (I) With the intention (or)
(ii) With Knowledge,
(q) of causing death
(b) of causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused (or)
(c)of causing such bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death (or)
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death to such bodily injury as is likely to cause death and the act attempted was committed without any excuse for incurring the risk of causing death or such injury as aforesaid. To which may be added the following aggravating circumstances. (3) That the accused hurt to the person by the act afore said. And if (3) is proved, proof of the following further aggravating circumstances is admissible. (4) That the accused was then under sentence of imprisonment for life. Essentials of Criminal Attempt:The essentials of Criminal attempt are : 1.An existence of an intent on the part of the accused to a particular offence
2. Some steps taken towards it after completion of preparation. 3.The step must be apparently though not necessarily adapted to the purpose designed. 4.It must come dangerously near to success.
5. It must fall short of completion of the ultimate design.
2. Case-laws::
(a) In Jage Ram v State of Haryana (2015) 11 SCC 366, Hon’ble Supreme Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted: “12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (I) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused
at the time of the incident, motive of the accused, parts of the body where the
injury was caused and the nature of injury and severity of the blows given, etc.”
(b) In State of Madhya Pradesh Vs Kanha @ Omprakash; 2019 0 AIR(SC) 713 Held that “Proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
(c) Further, in Om Prakash Tilak Chand v. State. AIR 1959 Punj. 134 at p. 145 it is held that the following are the Essentials for criminal attempt.- (1) An existence of an intent on the part of the accused to commit a particular offence; (2) Some steps taken towards it after completion of preparation (3) The step must be apparently though not necessarily adapted to the purpose designed; (4) It must come dangerously near to success; (5) It must fall short of completion of the ultimate design. An attempt in order to be criminal need not be the penultimate act, it is sufficient in law if there is present an intent coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient if the attempt had gone so far that the crime would have been completed but for extraneous intervention which frustrated its consummation.
(d) In Kalu Ram Brahma v. State of Assam. 1977 Cr.L.J. 98 at p. 99 (Gau.) The intention may be proved res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person cannot be proved by direct evidence but is to be deducted from the facts and circumstances of a case. There are various relevant circumstances from which the intentions can be gathered. Some relevant considerations are the following: 1.The nature of the weapon used. 2.The place where the injuries were inflicted. 3.The nature of the injuries caused. 4.The opportunity available which the accused gets.
(e) In Per Straight, J., in Queen-Empress v. Niddha, I.L.R. 14 All. 38 It is also a relevant circumstance that the act must be such as would in the ordinary course of nature have caused death. Thus, the questions that arise are these: (i) what was the act?
(ii) what would have been its effect in the ordinary course? (iii) With what intention or knowledge was it done? (iv) and what prevented it from producing the effect contemplated?
Intention, or knowledge, followed up by an act done is then the cardinal essential of an offence under this section.The degree of completion attained by the act is a question of fact, upon which depends the criminality of the act. At the same time, if a person who has an evil intent does an act which is the last possible act that he could do towards the accomplishment of a particular crime that he has in mind, he is not entitled to pray in his aid an obstacle, not known to himself, which intervened. If he did all that he could do, and completed the only proximate act in his power, he cannot escape criminal responsibility because his own set volition and purpose having been given effect to their full extent, a fact unknown to him and at variance with his own belief, intervened to prevent the consequences of that act ensuing, which he expected to ensue. Any other view would head to awkward results.
3.At the out set let this court refer to Section 59 of Indian Evidence Act which envisages that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Whereas,Section 60 of the Evidence Act states that Oral evidence must, in all cases whatever, be direct. If it refers to a fact which could be seen, it must be the evidence of a witness who says who says he saw it. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.In every criminal case it is the obligation of the prosecution to establish every material fact or facts in order to establish the guilt of the accused and unlike civil cases, in criminal case, the prosecution in-toto mostly relies on ocular evidence of the witnesses which depends on their nature of evidence as per the circumstances of each case and which mostly depends on the veracity and credence of such witnesses and thus there is very less scope of having documentary evidence for every fact or facts in a crime unless the offences are economic or committed by using technology etc.,
(i) The Hon’ble Supreme Court of India in State of Uttar Pradesh v. Krishna Master & Ors,(2010) 12 SCC 324 had succinctly dealt as to how oral evidence is to be appreciated. The Court observed that:
1. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth.
2. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
3. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
4. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details.
5. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court.
6. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars.
7. The prosecution evidence may suffer from inconsistencies here and discrepancies there,but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life.
8. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless, the evidence is really so confusing (or) conflicting that the process cannot reasonably be carried out.
(ii) In 2018 0 Supreme(SC) 883; Abdul Wahab K vs State of Kerala and others;It is held that " Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
(iii) And in 2021 0 Supreme(SC) 781; Bhagchandra Vs. State Of Madhya Pradesh ; (THREE JUDGE BENCH) has held that : “ Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever
honest and truthful they may be. These discrepancies are due to normal errors of
observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out.
Thus, it is the settle legal principle that while evaluation the ocular evidence of a witness the court must cautiously examine each and every fact to ascertain the truth from false and must ignore discrepancies,exaggerations, embellishments, inconsistencies which does not effect the root of the crime by taking into consideration of the fact of human psychology of a person who is effected by crime, who perceived and related to it.
4. Reverting to the present crime, it is the case of prosecution that Accused,
Pw 14 , Pw’s 2to 6 and 8 are working in Sri Venkateshwara Rice Mill, located at
F.K.Palem , of Pithapuram rural limits . Whileso, on 30-07-2023 Pw-14 along with
Jattu coolies, Pw’s 2,5,6,8, Lw’s 7 and 8-Sandeep Mahto and Gour Khaji went to
Kakinada Beach after enjoying there they all came back to thier room at about 4- 00p.m at that time out of possessiveness as they all went to beach, Accused unnecessarily abused PW-14 and even extended the abusations towards Pw-14 female family members on that they have heated conversation, later, at about 8- 00p.m probably when Pw-14 is present near a shed that stay by him, Pw’s 2 to 4 and Lw-3 /Ajay uroan accused again abused him on that initially Pw-14 bet
Accused with a wooden stick present near to him due to which accused sustained bleeding simple injury over his head on that accused to murder Pw-14 stabbed him with MO-1 consequently Pw-14 raised cries hearing the same Pw’s 1 to 4 came to his rescue and took him initially to the hospital of Pw-7 later to Aruna hospital then Pw-11 treated him and issued Ex-P9 on Hospital Initimation under
Ex-P10, Pw-12 recorded the statement of Pw-14 under Ex-P11, then Pw-13 registered a case under Ex-P12 commenced investigation visited the scene with
Pw-10 and another mediator drafted Ex-P13 and P14 took photos under Ex-P4 through Pw-9,collected Mo’s 2 and 3 and thereafter, apprehended accused under
Ex-P8, seized Mo-1 in pursuant of Ex-P8 statement by accused, there after seized
Mo’s 4 and 5 from Pw-14 and sent Mo’s 1 to 5 for scientific analysis and and received Ex-P14 from scientific officer .Finally, on completing investigation filed chargesheet in the accused charging that accused committed section 307 of
Penal code.
[b] Per contra, the defence in the case is that, accused never committed the charged offence and Pw-14 himself sustained said injuries in drunken state and also submitted being the injuries that reflecting under Ex-P9 are accidental in nature, Ex-P10 Hospital intimation discloses that unknown person stabbed him and evidence of Pw-7 indicates that it is informed to him that the said injury occured to Pw-14 accidentallyt with an iron spoke. Also contends that Pw-1 to evade the wages of Rs.2,00,000/- [Rupees Two Lakhs Only] pending to accused used Pw-14 as a stoonge and got filed this false case. Further, submits that the admitted evidence of Pw’s 10 and 13 shows that Ex-P8 Mediator report is drafted while Accused is under police custody hence, the said confessional statement is invalid under law and the alleged seizure of Mo-1 is also inadmissible as not complied section 27 of Indian Evidence Act , thus, there is no cogent evidence on record to prove that the accused committed the charged offence under section 307 of penal code . With said contentions prayed to acquit the accused from the charge.
5. As it is settled legal principle for the charge under section 307 of Penal code that irrespective of the fact of nature of injury to the victim either it is simple [or] grevious and even absence of injury to the body of victim constitutes section 307 of penal code if it is proved that the accused attacked victim/injured with intention and knowledge to murder him and failed for the same. At the same time, the prosecution burden is to prove the circumstances surrounding the crime and failure of the attempt by the accused.
6.In the present case, at the outset, prosecution to place direct evidence as to the alleged occurence against Pw-14, relied on the oral evidence of Pw’s 1 to 6 and 8, to place evidence as to circumstances relied on evidence of Pw-7 and Pw- 9, to prove injury over the body of Pw-14 relied on evidence of Pw-11, to prove the statement of Pw-14 relied on evidence of Pw-12, to prove confessional statement of accused, seizure of Mo’s 1 to 5 and other investigating portions in the case relied on evidence of Pw-10 and 13 .
[a]Initially coming to direct evidence in the case, the victim/Injured in the case is examined as Pw-14 in the case, in which Pw-14 in his evidence has reiterated the contents of his statement/ Ex-P11 statement that given to Pw-12 under which he has eloborately narrated the fact of alleged assault by the accused, cause of the said assault and the consequences thereof, in which the said oral evidence of Pw-14 coupled with Ex-P11 statement envisages out of possessiveness that this Pw-14, Pw’s 2,5,6,8, Lw’s 7 and 8-Sandeep Mahto and
Gour Khaji went to Kakinada Beach on 30-07-2023, he got anger and disputed with him in which the said dispute extended in abusing the female family members of Pw-14 on that, this Pw-14 initially bet Accused with a wooden stick present near by over his head, consequently, accused become wild, and by taking
Mo-1 stabbed Pw-14 to murder him and he rescued by Pw’s 1 to 4 by taking him to hospital of Pw-7 later to Pw-11 .
[b]In order to disprove his evidence learned defence counsel while testing his evidence suggested that the said injuries are accidental and are caused by him while he is under drunken state and by taking aid of said injuries, in collussion with Pw-1 foisted this false case since Pw-1 intends to evade the wages of Rs 2,00,000/- payable to Accused and used Pw-14 as a stooge to which he denied the same and withstand to his cross examination.
[c] The fact of giving Ex-P11 by Pw-14 is proved by evidence of Pw-12 who recorded the same, despite, it is suggested that Pw-12 does not give authenticity of Ex-P11 as he does not know Hindhi and relied on translation of Pw-1, the said
Ex-P11 are being reiterated by Pw-14 before the court, the said suggestions to Pw- 12 become baseless and irrational .
Thus, the said evidence of Pw-14 is proving the fact of alleged stabbing by Accused and the circumstances under which the said assault is happened .Further, proving the fact of injury over his abdoment that caused by accused by stabbing with MO-1 and fact of handing over Mo’s 4 and 5 to Pw-13 during investigation and proving the fact of giving Ex-P11 to Pw-12 and registration of Ex-P11 as Ex-P12 as Crime number 118 of 2023 under section 307 of IPC is proved by Pw-13 in his evidence.
7.In corroboration to his evidence, prosecution has examined Pw’s 1 to 6 and 8 witnesses, out of which, apparently, Pw’s 2,5,6 8 are clear eye witnesses to the crime as per prosecution case .
[a] When the evidence of said Pw’s 2,5,6, 8 is examined the said witnesses evidence revealing the fact that themselves, accused, Pw-14 ,Lw’s 7 and 8-
Sandeep Mahto and Gour Khaji are jattu coolies working in PW-1 rice mill and on 30-07-2023 when they all except Accused went to Kakinada beach and returned to the room accused out of possesiveness as they all went to beach, the accused while in drunken state without any reason abused Pw-14 on that a heated conversation held between them, then they consoled both of them, thereafter, at again between 7-00 p.m and 8-00p.m accused once again abused Pw-14 and his family members, on that Pw-14 become anger bet him with a wooden stick over his head due to which he sustained simple bleeding injury over his head on that accused become anger and took MO-1 there by stabbed Pw-14 over his abdoment consequently, Pw-14 fell down , raised cries then Pw-’s 1,3 and 4 came and took him to hospital.
[b]While testing their evidence in cross examination learned defence counsel posed several suggestions to them in consonance of thier defence pleas in which they all denied the same and with stand to his cross examination.
As Pw-6 in his evidence stated that he does not know the reason for dispute learned prosecutor got marked his entire Section 161 crpc statement as in Ex-P2 and proved by Pw-13 which is not denied by defence hence, the said Ex-
P2 become admissible under section 157 of Indian Evidence Act in which Ex-P2 contents proves the fact of dispute between Accused and Pw-14 . Thus, the said direct evidence of Pw’s 2,5,6 and 8 corroborating the evidence of Pw-14 as to the fact of assault by accused and stabbing with Mo-1 merely out of possessiveness as they all went to beach and the fact of stab injury sustained by Pw-14 over his abdomen.
8. As mentioned supra, to place other circumstantial evidence about the crime, the subsequent conduct of accused after the crime, prosecution relied on evidence of Pw’s 1, 3 and 4, Pw-1 is the owner of Sri Venkateswara Rice Mill, located at F.K.Palem where as, Pw-3 is Boiler operator in Pw-1 Mill, Pw4 is a clerk in the said Mill.
[a] The evidence of Pw-1 discloses that on 30-07-2023 at about 8-00p.m while himself, Pw’s 3 and 4 are present in the mill on hearing some shoutings on back side of the Mill they rushed there and found PW-14 with bleeding injury over his abdomen and they also witnessed accused with Mo-1 who crossed them on seeing thier arrival then the other people tried to stop him but he escaped from there.
Later, through, Pw’s2,5,6,8 and Jattu coolies he came to know about the dispute took place between accused and Pw-14 at the room for the reason Pw-14 and others went to beach and out of such heated conversation initially Pw-14 bet
Accused with wooden stick over his head on that Accused stabbed Pw-14 with
Mo-1 , he also deposed the fact of taking Pw-14 initially to the hospital of Pw-7 from there to Aruna hospital and treatment by Pw-11 .
[b]Despite the said evidence of Pw-1 is tested by learned defence counsel by way of cross examination nothing is elicited in contrary to his evidence . Hence, the said evidence of Pw-1 remained disproved and proves the fact of witnessing injury to Pw-14 and the fact of accused attempt to abscond after occurence and fact of perceiving Mo-1 in hand of Accused while absconding from scene of offence .
9.Coming to evidence of Pw’s 3 and 4, thier evidence is that on 30-07-2023 at around 7-30p.m when themselves, Pw-1 are present in Pw-1 rice mill on hearing shoutings outside the mill when they went back side of the mill they witnessed
Pw-14 with bleeding injury over his abdomen and deposed that they shifted Pw- 14 initially to Pw-7 hospital from there to Pw-11 hospital and later came to know that out of heated conversations between accused and Pw-14, accused stabbed
Pw-14 with MO-1 but they do not know the cause of said assault.
[b]Learned defence counsel while testing thier evidence merely gave denial suggestions hence, nothing elicited in contrary to thier evidence .
Thus, the said evidence of Pw’s 3 and 4 placing circumstantial evidence as to witnessing Pw-14 with injuries over his abdomen and by evidence of Pw-4 proving the additional fact of asbsconding by accused by carrying Mo1 and fact of taking Pw-14 to hospital.
10. The over all evidence of Pw’s 14,2,5,6 and 8 consistently proving that accused in drunken state out of possesiveness as they all went to beach had abused Pw-14 unnecessarily and even abused Pw-14 female family members on that, the dispute between them has aggravated in which at about 8-00p.m when once again Accused abused Pw-14, he in anger initially bet Accused with wooden stick over his head ,accused out of anger brought Mo-1 available there and stabbed PW-14 over his abdomen and that immediately escaped from there along with M0-1 . Further, the consistent evidence of Pw’s 1, 3 and 4 proves the fact of witnessing Pw-14 with injury over his abdomen and the evidence of Pw-’s 1 and 4 proves the fact of abscondance of accused from the scene with Mo-1 which corroborating the evidence of eye witnesses Pw’s 2,5.6 and 8 and the said evidence of Pw’s 1, 3 and 4 becomes relevant under section 6 of Indian Evidence
Act, despite they are not eye witnesses to the actual cause of dispute between accused and Pw-14 being they came to know the cause through the said eye witnesses and Injured/victim i.e., Pw-14, Pw’s 2,5,6 and 8 who consistently deposed about the occurence before the court .
[b] Despite the defence made an attempt to probablise that Pw-1 is liable to pay Rs2,00,000/- [Rupees Two Lakhs Only] towards pending wages and to evade the same in collusion with Pw-14 by taking aid of his accidental injuries sustained while he is in drunken state and Pw-14 is used as stoonge by Pw-1, except suggestions to Pw-14 no probable proof placed by him. Moreover, the said alleged fact of liability by Pw-1 is not suggested to Pw-1 and other material witnesses examined in the case. Hence, being mere suggestions are not evidence and the said suggestions are not supported by any probable material the defence failed to prove its pleas .
Thus, the said evidence of Pw’s 14, 1 to 6 and 8 unblemishingly proving that the accused has stabbed Pw-14 with Mo-1 for the mere possesiveness as Pw-14 along with others went to beach and out of the heated conversation took place between them which involved the female family members of Pw-14 as well.
11. In order to prove the fact of injury over abdomen of Pw-14 besides, the said evidence, prosecution examined Pw-7 and Pw-11 to place relevant medical evidence , the evidence of Pw-7 discloses that initially injured is brought to him for treatment but on seeing nature of injury he advised the persons brought the injured to take to another hospitaland his evidence remained unchallenged .
12. Whereas, coming to the evidence of Pw-11 is concern he is the Doctor practicising medicine in Aruna hospital and his evidence speaks that on 30-07- 2023 is brought to his hospital by Yaswant uraon alleged to have stabbed by his coworker and when he examined him he noted the following injuries over his body
Injury External Stab Injury 4cm x 2cm over abdomen Internal InjuryVital organs Small Intestinal through and through lacerations and Hemo peritorium[ blood in abdominal cavity]
And hence, he opined the said injuries are greivous in nature but , admittedly he did not recorded the age of injuries and possible cause of said injuries .
[b] Despite, learned defence counsel is able to elicit that the said internal injury of Hemo peritorium[ blood in abdominal cavity] is not possible by sharp object, his evidence about the fact of external injury and lacerations remained intact .
Thus, the said medical evidence of Pw-11 coupled with Ex-P9 proving the fact of stab injury over the body of Pw-14.
13. In addition to the said direct and circumstantial evidence, the prosecution to prove crime scene, seizure Mo’s 2 and 3 at the scene examined Pw-10 in which the evidence of Pw-10 discloses that at request of Pw-13 herself and Lw-15
G.Venkata Suribabu visited the scene of offence at Sri Venkateshwara Rice Mill and there police observed the crime scene, collected Mo’s 2 and 3 cement pieces with and without blood stains available there and drafted scene observation report under Ex-P7.Further,took photos of the scene through Pw-9. The said evidence of Pw-10 as to the said fact of drafting Ex-P7 collecting Mo’s 2 and 3 is corroborated by Pw-13 investigating officer in the case and he added about drawing Rough sketch at the scene as in Ex-P13 and the evidence of Pw-9 also corroborating the evidence of Pw-10 as taking photos as in Ex-P4, despite, the said evidence of Pw’s 9, 10 and 13 are tested by defence to disprove thier evidence as to the said aspects nothing contrary to thier evidence is elicited .
Thus, the said evidence of Pw’s 9,10 and 13 coupled with Ex-P8, P8 and P13 proves the crime scene which is at Sri Venkateshwara Rice Mill, F.K.Palem that belong to PW-1 and further proves the fact of collecting Mo’s 2 and 3.
14. Further, the prosecution to place additional corroborative evidence before the court and to link the accused to the crime and to prove that Mo-1 is seized at the behest of accused in pursuant of his disclosure statement that recorded under Ex-P8 which are photographed under Ex-P4 relied on evidence of Pw-s9,10 and 13, ie., the photographer, mediator and investigating officer.
[a] When the evidence of Pw-10 is taken her evidence reveals that on 01-08- 2023 herself and Lw-15 G.Venkata Suribabu are taken to old kandarada village and near to an electrical substation there , they found accused in suspicious circumstances and in thier interrogation before them and Pw-1, accused made a voluntary confessional statement by admitting that he stabbed Pw-14 and further admitted that when Pw-14 and other co-workers chatting together he falsely assumed that they commenting him hence , he got anger and abused Pw-14, on that Pw-14 bet him with wooden stick over his head on that he stabbed him with
MO-1 and after absconded from there, and thrown away the said Mo-1 near to boiler operator of Pw-1 mill and stated that he will show place of MO-1.Further , she testified that in pursuant of said disclosure statement when they went to Pw- 1 accused shown the place of Mo-1 that located abutting to boiler machine of
Pw-1 mill and recovered Mo-1 hence, the said confessional statement of accused and seizure of Mo-1 recorded under Ex-P8 by Pw-13 is photographed by Pw-9 under Ex-P4 .
[b]The said evidence of Pw-10 about collection of Mo-1 and drafting Ex-P8, apprehension of accused and photos by Pw-9 are corroborated by Pw-9 and Pw- 13/Investigating officer .
[c] Whileso, as rightly suggested by learned defence counsel to Pw-9 and 13 and apparent from Ex-P4 photos, the said confessional statement of accused about his admission about the crime against Pw-14 is recorded in the presence of
Pw-13 and other police personnel hence, the said confessional statement lacks admissibility under law in view of legal bar under section’s 25 and 26 of Indian
Evidence Act since, it is recorded in the very presence of Pw-13 and other police personnel.
15. With respect to the admissibility of the recovery of Mo-1 in pursuant of said disclosure statement is concerned the evidence of Pw’s 9 to 13 and the contents of Ex-P8 clearly envisaging that the fact of recovery of Mo-1 is find when the accused stated the fact where he thrown away the same thus, there is a discovery of fact about Mo-1 ie place of its recovery and seizure of Mo-1 near the boiler machine where it is shown by Accused thus, there is sufficient compliance of
Section 27 of Indian Evidence Act hence, the said discovery of Mo1 and seizure of
Mo-1 becomes admissible .Besides, the said fact, the said Mo-1 is duly identified by Pw-14/ injured and other material witnesses Pw’s 1 ,2,5,6 and 8 even by Pw-10 and Ex-P14 scientific report shows existence of human blood on Mo’s 1,2,4 and 5 which are proved that are involved in the crime against Pw-14. Thus, the prosecution proved Mo-1 is the knife used by accused to stab Pw-14 and recovery thereof.
16.As reproduced above from the said provision of law and legal principles it is understood that in order to prove guilt of section 307 IPC intention of accused must be proved irrespective of the presence of injuries, gravity of the injuries as held in Sarju Prasad vs. State of Bihar (AIR 1965 SC 843) and Section 307 IPC is a prominent section in the sense that it has lots of similarities with sections 324, 325 and 326 IPC. Some-times, it is very difficult to differentiate between the cases under sections 307 IPC and the cases under sections 324, 325 and 326 IPC, because all these offences have some common ingredients among themselves.
The attempt should rise out of a specific intention or desire to murder the victim.
The nature of the weapon used, the manner in which it is used, motive for the
crime, severity of the blow, the part of the body where the injury is inflicted are all to be taken into consideration and would determine the intention, as held in
Harikishan vs. Sukhbir Singh (AIR 1988 SC 2127).Proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 307 of the
Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent-(State of Madhya Pradesh Vs Kanha @
Omprakash;2019 2 SCC (Cri) 247) ;
Therefore, in view of the above analysis and case law, it has to be seen whether the prosecution has established the ingredients of section 307 IPC in the present case and whether the prosecution has established that accused committed the offence that too with an intention to kill P.W.1, beyond doubt in the present case to fasten the accused with the offence under section 307 IPC.
17.From, the settled legal principles relied supra ,shows that presence (or) absence if injuries not the parameter to conclude that a person committed the offence under section 307 of of Penal code and it is mere sufficient to prove the intention of the accused must be established to convict under section 307 of of
Penal code .
[b] In the instant case, the said appreciated evidence of material witnesses including the injured ie Pw-14, Pw’s 2,5,6 and 8 shows that there are no instances of any previous enmity between accused and Pw-14 and the cause of assault on the date of occurence is merely out of some false assumption between them and exchange of heated words between them unnecessarily, even thier evidence shows that, initially Pw-14 bet Accused with a wooden stick as he extremed in his conduct by commenting his female family members and abused him as well which shows that the overt act is initially from Pw-14, though the evidence of injured and other witnesses shows that accused sustained simple injury over his head, either accused in his production for remand, the remand report , even the medical report of accused before remand indicates the presence of such injury however, being it is a fact spoken by Pw-14 itself the same proves that he initiated the assault which provoked the accused to assault him and proves that accused in spur of moment out of anger stabbed Pw-14 but there are instances establishing his intention to kill Pw-14 and merely out of heat of anger, the accused committed assault over the body of Pw-14/Injured under which circumstances,in the considerable opinion of this court section 307 of IPC ingredients does not attract .
[c] Even to opine that the accused has committed the offence under section 326 of Penal Code, the prosecution is under burden to prove that the Injuries mentioned in Ex-P9 covers under either of eight kind of nature of injuries that mentioned under section 320 of Penal code that are mentioned below:
Section 320 of IPC : Greivous Hurt :
The following kinds of hurt only are designated as “grievous”:
1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
But, in the present case, the evidence of Pw-11 coupled with Ex-P9 does not indicate the said eight nature of injuries and circumstances that comes under section 320 of Penal code and the said Ex-P9 Wound certificate is also not supported by any radiologist report in absence of the samem, the said Ex-P9 injury could not be concluded as a greivous in nature that falls under section 320 of Penal code .
18.In the instant crime despite the evidence of Pw-1 proving the factum of injuries and circumstances thereof his evidence no where indicates that the intention of accused is to kill him and the circumstances so far discussed merely proving that in view of a sudden assault on the accused then injuries are caused on the body of Pw-14 by accused with Mo-1 which amounts an offence covers under section 324 of Penal code .
Section 324 IPC:- Voluntarily causing hurt by dangerous weapons or means:-
Points:- The points requiring proof are:
1) that the accused caused bodily pain, disease or infirmity,
2) that it was caused to another person,
3) that it was caused intentionally or with knowledge of its likelihood,
4) that it was caused with lethal weapon (or) with fire, poison (or)corrosive substance, an exclusive or deleterious substance or an animal. Thus, on over all appreciation of the evidence on record this court opines that the accused persons has committed the offence under section 324
Penal code but not under section 307 and 326 of Penal code, and the prosecution has miserably failed to establish mens rea (or) the intention of the accused to kill
P.W.14, which is the sine qua non for attracting the ingredients of section 307 of
Penal code and no sufficient medical evidence to opine and conclude that Injuries referred in Ex-P9 is a grievous injury to attract charged offence under section 326 of IPC but , proved the offence under section 324 of Penal code, beyond all reasonable doubt .
19. In the result, the accused is found not guilty for the charged offence under sections 307 and even for 326 of Penal code and that he is acquitted under 232 of Cr.P.C, but the accused is found guilty for the proved offence under section 324 Penal code and that he is convicted under section 235(2) Cr.P.C.
Points answered accordingly.
Property Order C.P.R.No.01/2024:
The Property deposited vide CPR No.118/2023 i.e., Mo’s 1 to 5:- MO.1-
Steel Knife rolled with black colour rubber tube with yellow colour plastic grip;
MO.2- Blood stained cement floor pieces; MO.3-Controlled cement floor pieces;
MO.4- Maroon colour round neck T-shirt; MO.5-Blue colour track pantshall be destroyed after appeal time.
(b) Return the case property to the learned Magistrate, AJFCM- Pithapuram for implementation of the said property order and obtain acknowledgment of the receipt.
Typed to my dictation by the Stenographer, corrected and pronounced by me in open court on this the 16th day of April, 2024
Sd/-.K.Madhavi
Assistant Sessions Judge, Pithapuram.
Appraising the Accused on the Quantum of Sentence :
I:: Accused present. Learned prosecutor and the Learned defence counsel present, Concerned Police present. Accused is informed about the prescribed period of sentence for the proved offence under section 324 of IPC to which the
Accused submitted his plea as follows:
[a] Accused in Hindhi submitted that he did not committed the offence and he has been in Jail since morethan eight months and pleaded mercy of the court.
[b] Besides, the said submissions all accused persons further his learned defence counsel prayed to consider this as his first mistake and prayed to set off his detention period .
[c] The respective plea of the accused is recorded on separate sheet and obtained their Thumb impressions.
II:: After considering the said submissions of the accused and the learned defence counsel this court found that though there is no previous criminal history to accused and from the circumstances of the offence it is appearing that without controlling his emotions in spur of moment without intention to kill Pw-12 committed the proved offence under section 324 of IPC, this court opines that they are not entitled to seek the benevolent privilege of sections 360 of CRPC and
Sections 3 (or) 4 of Probation of Offenders Act, since, for their unethical act they have to be penalized to have deterrence and to regulate his conduct in future and by considering the avocation and livelihood of accused, this court imposed following imprisonment to accused .
III: Prescribed Sentence for proved offence under Section 324 of IPC : Three Years (or) Fine (or) both
(b) Imposed Sentence : In the result, Accused is sentenced to simple imprisonment for 10/ten months [300 days] and the remand period from 2-08-2023 to till date ie 259 days are set off and the accused shall under went remaining period of sentence.
IV: Remand Period Set off Under Section 428 of CRPC::
The accused is in jail from 02.08.2023 to till date i.e., 16.04.2024 [259 days] i.e, 8 months 16 days shall be set off .
V: The accused is informed about his right of appeal within 30 days from the date of judgment and if they have no means to engage counsel Free legal aid service is available. Free copy of Judgment is supplied to the accused and obtained his acknowledgments.
Office is further directed to send a copy to DLSA in accordance of the instructions in Circular, dated 07.01.2022 communicated in Dis.No.43, dt.10.01.2022.
Typed to my dictation by the Stenographer, corrected and pronounced by me in open court on this the 16th day of April, 2024;
Sd/-.K.Madhavi
Assistant Sessions Judge, Pithapuram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
PW-1 : Naralasetti Siva Kumar PW-2 : Ajay Uraon PW-3 : Pampana Srinu PW-4 : Chelliri Raju PW-5 : Rikku Uraon PW-6 : Umesh Uraon PW-7 : Adireddy Ramakrishna PW-8 : Maheswar Mahato PW-9 : L.Krishna Nandham PW-10: K.Sridevi PW-11: Ch.Seshagiri Rao PW-12: Y.Rama Krishna PW-13: L.Guna Sekhar PW-14: Ghansyam Uraon
EXHIBITS MARKED ON BEHALF OF THE PROSECUTION
Ex.P1:161 Cr.PC Statement of PW.2 Ex.P2:161 Cr.PC Statement of PW.6 Ex.P3:161 Cr.PC Statement of PW.8 Ex.P4:8 Photographs with compact disk. Ex.P5:Receipt given by PW.9 for Rs.1800/- Ex.P6:Section 65-B certificate given by PW.9 Ex.P7:Scene observation report, dt.31.07.2023 Ex.P8:Mediator report, dt.01.08.2023 Ex.P9:Wound certificate given by PW.11 Ex.P10:Hospital intimation
Ex.P11:Statement of PW.14 recorded by PW.12. Ex.P12:First Information Report Ex.P13:Rough Sketch Ex.P14:Scientific Officer Report.
WITNESSES EXAMINED ON BEHALF OF THE DEFENCE
None.
EXHIBITS MARKED ON BEHALF OF THE DEFENCE
NIL.
MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION
MO.1 : Steel Knife rolled with black colour rubber tube with yellow colour plastic grip. MO.2 : Blood stained cement floor pieces. MO.3 : Controlled cement floor pieces. MO.4 : Maroon colour round neck t-shirt. MO.5 : Blue colour track pant.
Sd/-.K.Madhavi
Assistant Sessions Judge, Pithapuram.
CALENDAR AND JUDGMENT
IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, PITHAPURAM.
SESSIONS CASE No.454 of 2023
(P.R.C.No.14 of 2023 of the Court of the Addl. Judicial First Class Magistrate’s Court, Pithapuram in Crime No.118 of 2023 of Pithapuram Rural Police Station)
DATE OF
Offence : 30.07.2023 Complaint : 31.07.2024 Apprehension of Accused: 01.08.2023 Release on Bail: Accused is under Central Prison, Rajamahendravaram. Commencement of Trial : 12.02.2024 Closure of Trial : 15.04.2024 Sentence of Order : 16.04.2024
Explanation for delay:The case is sent to this court on 08.12.2023 by Hon’ble District and Sessions Judge for Disposal and this court ordered summons for appearance of the accused and he is under Central Prison, Rajamahendravaram and later, on hearing on charges he is examined under section 228 of CRPC on 29.01.2024 and the schedule commenced from 12.02.2024 to 14.02.2024 and on after appearance of the accused the charge were framed and the trial is closed on 15.04.2024 later the accused examined under section 313 Crpc on 15.04.2024, and posted for arguments and thereafter, heard both sides and posted for Judgment on 15.04.2024 and pronounced Judgment on 15.04.2024 thus, there is no delay on the file of this court .
Name of the Complainant:The State Represented by the Sub Inspectoor of Police, Pithapuram Rural Police Station. Name of the Accused:Hiravan Khaji, S/o.Jagadeesh Khaji, 38 years, C/ST Khaji, H.No.55, Ram Nagar Street,PrasauniGram,West Champaran, Bihar State. Now at Venkateswara Rice Mill, Kandarada Road,F.K.Palemvillage, PithapuramMandal. Nature of Offence:Under Section 307 of IPC Plea of the Accused: Not Guilty. Finding of the Court:Found not guilty for the charged offence offences punishable under Section 307 of Penal code but, found guilty under section 324 of IPC
SENTENCE OR ORDER : In the result, the accused is found not guilty for the charged offence under sections 307 and even for 326 of Penal code and that he is acquitted under 232 of Cr.P.C, but the accused is found guilty for the proved offence under section 324 Penal code and that he is convicted under section 235(2) Cr.P.C.
Property Order C.P.R.No.01/2024: The Property deposited vide CPR No.118/2023 i.e.,Mo’s 1 to 5 MO.1- Steel
Knife rolled with black colour rubber tube with yellow colour plastic grip; MO.2-
Blood stained cement floor pieces; MO.3-Controlled cement floor pieces; MO.4-
Maroon colour round neck t-shirt; MO.5-Blue colour track pantshall be destroyed after appeal time.
(b) Return the case property to the learned Magistrate, AJFCM- Pithapuram for implementation of the said property order and obtain acknowledgment of the receipt.
Appraising the Accused on the Quantum of Sentence :
I:: Accused present. Learned prosecutor and the Learned defence counsel present, Concerned Police present. Accused is informed about the prescribed period of sentence for the proved offence under section 324 of IPC to which the
Accused submitted his plea as follows:
(a) Accused in Hindhi submitted that he did not committed the offence and he has been in Jail since morethan eight months and pleaded mercy of the court.
(b) Besides, the said submissions all accused persons further his learned defence counsel prayed to consider this as his first mistake and prayed to set off his detention period .
[c] The respective plea of the accused is recorded on separate sheet and obtained their Thumb impressions.
II:: After considering the said submissions of the accused and the learned defence counsel this court found that though there is no previous criminal history to accused and from the circumstances of the offence it is appearing that without controlling his emotions in spur of moment without intention to kill Pw-12 committed the proved offence under section 324 of IPC, this court opines that they are not entitled to seek the benevolent privilege of sections 360 of CRPC and
Sections 3 (or) 4 of Probation of Offenders Act, since, for their unethical act they have to be penalized to have deterrence and to regulate his conduct in future and by considering the avocation and livelihood of accused, this court imposed following imprisonment to accused .
III: Prescribed Sentence for proved offence under Section 324 of IPC : Three Years (or) Fine (or) both
(b) Imposed Sentence : In the result, Accused is sentenced to simple imprisonment for 10/ten months [300 days ] and the remand period from 2-08-2023 to till date ie 259 days are set off and the accused shall under went remaining period of sentence.
IV: Remand Period Set off Under Section 428 of CRPC::
The accused is in jail from 02.08.2023 to till date i.e., 16.04.2024 [259 days] i.e, 8 months 16 days shall be set off .
V: The accused is informed about his right of appeal within 30 days from the date of judgment and if they have no means to engage counsel Free legal aid service is available. Free copy of Judgment is supplied to each accused and obtained their acknowledgments. Office is further directed to send a copy to
DLSA in accordance of the instructions in Circular, dated 07.01.2022 communicated in Dis.No.43, dt.10.01.2022.
Sd/-.K.Madhavi
Assistant Sessions Judge, Pithapuram.
Copies submitted to:
1. The Registrar (Judicial), Hon’ble High Court of Andhra Pradesh, Amaravati, through the Hon’ble Principal District and Sessions Judge, East Godavari District, Rajamahendravaram.
2. The Principal District and Sessions Judge, East Godavari District, Rajamahendravaram.
3. The Superintendent of Police, East Godavari District, Kakinada.
4. The Director of Prosecution, O/o. DGP & IGP Complex, Mangalagiri, Guntur District.
5. The Additional Public Prosecutor, Pithapuram.
6. The Addl. J.F.C. Magistrate, Pithapuram.