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Shiv Kumar Gupta vs The State Of M.P. on 15 February, 2018

1 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.1124/1996
………Appellant: Shiv Kumar Gupta
Versus
………Respondent: State of M.P.
—————————————————————————————-
Shri Sidharth Dutt, Counsel for the appellant.
Shri Vivek Lakhera, Counsel for the respondent/State.
—————————————————————————————-
Date of hearing : 15/02/2018
Date of Judgment : 15/02/2018
Whether approved for reporting :
Law laid down:

Significant paragraphs:
JUDGMENT

(15/02/2018)
Per Justice G.S. Ahluwalia,
This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 28-6-1996 passed
by Vth A.S.J., Bhopal in S.T. No.491 of 1994, by which the
appellant has been convicted under Section 307 of I.P.C. and has
been sentenced to undergo the rigorous imprisonment of 5 years
and a fine of Rs.500/- with default imprisonment.

The necessary facts for the disposal of the present appeal in
short are that on 17-6-1994, at about 10:30 P.M., the appellant
gave a knife blow to the injured Sunil Shrivastava and thereby
caused an injury, which was dangerous to life. The admitted facts
of the case are that the appellant as well as the injured Sunil
Shrivastava and Sanjay Saini, Manokant Shrivastava and Gaya
Prasad were invited in the reception of marriage of one Pramod
2 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

Shrivastava. The daughter of Gaya Prasad asked for water. The
injured Sunil Shrivastava requested the appellant to bring water,
which was refused by the appellant. On this issue, there was a hot
talk between the parties and all of a sudden, the appellant took
out a knife and gave a knife blow in the abdomen of the injured
Sunil Shrivastava. Gaya Prasad tried to snatch the knife from the
appellant, as a result of which, he too sustained injury. Manokant
and Sanjay took the injured to the hospital in an auto and the
police was informed. The Sub-Inspector J.P. Khare reached
Hamidia Hospital and recorded Dehati Nalishi. The injured was
got medically examined. His bloodstained clothes were seized.
The spot map was prepared. The appellant was arrested and a
knife was seized from his possession. After completing the
investigation, the police filed the charge sheet for offence under
Section 307 of I.P.C. and under Section 27 of Arms Act.

The Trial Court by order dated 30-3-1995 framed charges
under Sections 307 and 324 of I.P.C.

The appellant abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case, examined Sunil
Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen
(P.W.3), Anil Kumar Shrivastava (P.W.4), Manokant Shrivastava
(P.W.5), Suresh Singh (P.W.6), Jagdish Prasad Khare (P.W.7), Dr.
Anup Dave (P.W.8), S.K. Shukla (P.W.9), Dr. Rajkumar Patidar
(P.W.10) and Gayaprasad (P.W.11). The appellant did not
examine any witness in his defence.

The Trial Court after recording evidence and hearing both
the parties, convicted the appellant for offence under Section 307
of I.P.C. and sentenced him to undergo the rigorous imprisonment
of 5 years and a fine of Rs.500/- with default imprisonment.

Challenging the correctness and proprietary of the judgment
and sentence passed by the Court below, it is submitted by the
Counsel for the appellant that the injured had sustained the injury
3 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

because of his fall on the broken piece of glass and none of
independent witnesses have been examined and it is not
established that the knife seized from the possession of the
appellant was used in commission of offence, therefore, the
incident alleged against the appellant is doubtful and thus, he is
entitled to be acquitted. It is further submitted that since the
incident is alleged to have taken place without any premeditation
and in a heat of passion, therefore, the appellant cannot be said
to be guilty of committing offence under Section 307 of I.P.C.

Per contra, it is submitted by the Counsel for the State that
the injured Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava
(P.W.2), Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5)
have specifically supported the prosecution story and thus, on a
trivial issue, the appellant took out a knife, which he was already
carrying with him, and gave a knife blow in the abdominal region
of the injured Sunil Shrivastava. Thus, it is clear that the appellant
is guilty of committing offence under Section 307 of I.P.C.

Heard the learned Counsel for the parties.
The first question for determination is that whether the
injured Sunil Shrivastava and injured Gaya Prasad had sustained
any injury or not?

Dr. Anup Dave (P.W.8) had medically examined the injured
Sunil Shrivastava (P.W.1) and had found the following injury :

Stab wound on left side of abdomen.The
M.L.C. report of the injured Sunil Shrivastava
(P.W.1) is Ex. P.8.

The following injury was found on the body of Gaya Prasad :

Linear abrasion on right palm vertical
aspect linear 1 cm. The M.L.C. report is
Ex.P.9
Thus, it is clear that a stab wound was found in the
abdomen of the injured Sunil Shrivastava, whereas a linear
4 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

abrasion was found on the right palm of Gaya Prasad.

Dr. Anup Dave (P.W.8) was cross-examined and only one
question was asked in the cross-examination, in reply of which it
was clarified by this witness that the condition of the injured Sunil
Shrivastava was serious, however, he was conscious.

Dr. Raj Kumar Patidar (P.W.10) had also examined the
injured Sunil Shrivastava and had found the following injury :

Stab wound left side of abdomen, left
linear region 4×3 cm omentum protruding from
the wound. The medical report is Ex. P.13.

This witness was cross-examined and it was opined by this
witness that the injury could have been caused by fall also.

The next question for determination is that whether the
appellant is the author of the injury sustained by Sunil Shrivastava
or not?

Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2),
Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5) have
supported the prosecution case, whereas Gaya Prasad (P.W.11)
did not support the prosecution case and was declared hostile.

Sunil Shrivastava (P.W.1) has stated that he had gone along
with Sanjay Saini, sister Smt. Mamta Shrivastava, Manokant
Shrivastava and Gaya Prasad to attend the marriage ceremony of
Pramod Shrivastava. His sister Mamta and sister-in-law Smt.
Urmila Shrivastava were having their meals. The daughter of
Gaya Prasad demanded water, therefore, he requested the
appellant, who was standing nearby, to bring water for the girl.
The appellant refused to bring water and started abusing him and
grappled with the witness. The appellant all of a sudden took out a
knife and gave a knife blow in the abdomen of this witness. When
he tried to repeat the assault, Gayaprasad caught hold of his hand
and also sustained injury in his hand because of the knife.
Thereafter, the appellant ran away. He was immediately shifted to
5 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

Hamidia Hospital by Manokant Shrivastava and Sanjay Saini
where he was operated. The police came to the Hospital where
the incident was narrated by this witness and a Dehati Nalishi
Ex.P.1 was recorded, which bears his signature at A to A. His
cloths were seized. His statement was recorded by the police in
the hospital itself. This witness was cross-examined in short. In
cross examination, this witness had admitted that he had no
enmity with the appellant and the incident took place on the
question of fetching water. He denied that he was under the
influence of liquor. About 20 more persons were present on the
spot. He denied the suggestion that about 2 years back, he had
some dispute with the appellant and also denied the suggestion
that he has falsely implicated the appellant.

Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and
Manokant Shrivastava (P.W.5) have supported the prosecution
case and have narrated the entire incident.

It is submitted by the Counsel for the appellant that since
Gaya Prasad (P.W.11) had stated that the injured Sunil
Shrivastava (P.W.1) had fallen on a piece of a broken glass
therefore, he had sustained the injury, therefore, it is a clear case
of false implication. So far as the evidence of Gaya Prasad
(P.W.11) is concerned, it is clear that he did not support the
prosecution case and was declared hostile and was cross
examined by the prosecution. The evidence of Sunil Shrivastava
(P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and
Manokant Shrivastava (P.W.5) cannot be discarded merely
because of the fact that the eyewitness has not supported the
prosecution story.

It is next contended by the Counsel for the appellant that
since none of the independent witnesses was examined,
therefore, the witnesses, who are either related to the injured
Sunil Shrivastava (P.W.1) or are his close associates, should not
6 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

be relied upon. The submission made by the Counsel for the
appellant cannot be accepted and, hence, liable to be rejected.

It is a matter of experience that nowadays the independent
witnesses generally withdraw themselves, as they are not inclined
to either depose in favour of the victim or against the victim. The
Supreme Court in the case of Takhatji Hiraji Vs. Thakore
Kubersing Chamansingh reported in (2001) 6 SCC 145 has held
as under :

19. So is the case with the criticism levelled by
the High Court on the prosecution case finding
fault therewith for non-examination of
independent witnesses. It is true that if a
material witness, who would unfold the genesis
of the incident or an essential part of the
prosecution case, not convincingly brought to
fore otherwise, or where there is a gap or
infirmity in the prosecution case which could
have been supplied or made good by examining
a witness who though available is not
examined, the prosecution case can be termed
as suffering from a deficiency and withholding of
such a material witness would oblige the court
to draw an adverse inference against the
prosecution by holding that if the witness would
have been examined it would not have
supported the prosecution case. On the other
hand if already overwhelming evidence is
available and examination of other witnesses
would only be a repetition or duplication of the
evidence already adduced, non-examination of
such other witnesses may not be material. In
such a case the court ought to scrutinise the
worth of the evidence adduced. The court of
facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to
examine such other witness, and if so, whether
such witness was available to be examined and
yet was being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise. If the
witnesses already examined are reliable and
the testimony coming from their mouth is
unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination
7 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

of other witnesses…….

The Supreme Court in the case of Vijendra Singh Vs. State
of U.P. Reported in (2017) 11 SCC 129 has held as under :

37. In Dahari Vs. State of U.P. [2012)10 SCC
256], while discussing about the non-
examination of material witness, the Court
expressed the view that when he was not the
only competent witness who would have
been fully capable of explaining the factual
situation correctly and the prosecution case
stood fully corroborated by the medical
evidence and the testimony of other reliable
witnesses, no adverse inference could be
drawn against the prosecution. Similar view
has been expressed in Manjit Singh [(2013)
12 SCC 746], and Joginder Singh Vs. State
of Haryana [(2014) 11 SCC 335].

The Supreme Court in the case of State of H.P. Vs. Gian
Chand reported in (2001) 5 SCC 71 has held as under :

14…………Non-examination of a material
witness is again not a mathematical formula for
discarding the weight of the testimony available
on record howsoever natural, trustworthy and
convincing it may be. The charge of withholding
a material witness from the court levelled
against the prosecution should be examined in
the background of facts and circumstances of
each case so as to find whether the witnesses
were available for being examined in the court
and were yet withheld by the prosecution. The
court has first to assess the trustworthiness of
the evidence adduced and available on record.
If the court finds the evidence adduced worthy
of being relied on then the testimony has to be
accepted and acted on though there may be
other witnesses available who could also have
been examined but were not examined.
However, if the available evidence suffers from
some infirmity or cannot be accepted in the
absence of other evidence, which though
available has been withheld from the court, then
the question of drawing an adverse inference
against the prosecution for non-examination of
8 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

such witnesses may arise. It is now well settled
that conviction for an offence of rape can be
based on the sole testimony of the prosecutrix
corroborated by medical evidence and other
circumstances such as the report of chemical
examination etc. if the same is found to be
natural, trustworthy and worth being relied on.

In the case of Yogesh Singh Vs. Mahabeer Singh and others
reported in (2017) 11 SCC 195, the Supreme Court has held as
under :

43. Similarly, in Raghubir Singh Vs. State of
U.P. [(1972) 3 SCC 79], it was held that the
prosecution is not bound to produce all the
witnesses said to have seen the occurrence.
Material witnesses considered necessary by the
prosecution for unfolding the prosecution story
alone need be produced without unnecessary and
redundant mulitplication of witnesses. In this
connection, general reluntance of an average
villager to appear as a witness and get himself
involved in cases of rival village factions when
tempers on both sides are running high has to be
borne in mind.

44. Further, in Appabhai Vs. State of Gujarat
[1988 Supp SCC 241], this Court has observed :

11…….. Experience reminds us that
civilised people are generally insensitive
when a crime is committed even in their
presence. They withdraw both from the
victim and the vigilante. They keep
themselves away from the court unless it is
inevitable. They think that crime like civil
dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but it
is there everywhere, whether in village life,
towns or cities……..

Thus, merely because the independent witnesses did not
choose to come forward and depose about the incident because
of their own fears, then it cannot be said that the injured and other
witnesses should be disbelieved. Hence, the submission made by
9 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

the Counsel for the appellant is rejected.

It is next contended by the Counsel for the appellant that
Smt. Mamta Shrivastava (P.W.2) is the sister of the injured Sunil
Shrivastava (P.W.1), whereas Sanjay Sen (P.W.3) and Manokant
Shrivastava (P.W.5) are his friends, therefore, they are the
interested witnesses and thus, their testimony may not be
accepted.

Thus, the important question would be that whether these
“related witnesses” are merely “related witnesses” or they are
“interested witnesses” also. It is also well settled principle of law
that the evidence of a witness cannot be rejected or discarded
merely because he is “related” or “interested witness”. However,
their testimony should be scrutinized very cautiously.

The Supreme Court in the case of Raju v. State of T.N.,
reported in (2012) 12 SCC 701, has held as under :-

”21. What is the difference between a related
witness and an interested witness? This has been
brought out in State of Rajasthan v. Kalki [(1981) 2
SCC 752]. It was held that: (SCC p. 754, para 7)
“7. … True, it is, she is the wife of the deceased;
but she cannot be called an ‘interested’ witness.
She is related to the deceased. ‘Related’ is not
equivalent to ‘interested’. A witness may be called
‘interested’ only when he or she derives some
benefit from the result of a litigation; in the decree
in a civil case, or in seeing an accused person
punished. A witness who is a natural one and is the
only possible eyewitness in the circumstances of a
case cannot be said to be ‘interested’.”

22. In light of the Constitution Bench decision in
State of Bihar v. Basawan Singh [AIR 1958 SC
500], the view that a “natural witness” or “the only
possible eyewitness” cannot be an interested
witness may not be, with respect, correct. In
Basawan Singh [AIR 1958 SC 500], a trap witness
(who would be a natural eyewitness) was
considered an interested witness since he was
“concerned in the success of the trap”. The
Constitution Bench held: (AIR p. 506, para 15)
“15. … The correct rule is this: if any of the
witnesses are accomplices who are particeps
10 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

criminis in respect of the actual crime charged,
their evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices
but are partisan or interested witnesses, who are
concerned in the success of the trap, their
evidence must be tested in the same way as other
interested evidence is tested by the application of
diverse considerations which must vary from case
to case, and in a proper case, the court may even
look for independent corroboration before
convicting the accused person.”

The Supreme Court in the case of Jalpat Rai v. State of
Haryana, reported in (2011) 14 SCC 208 has held as under:-

”42. There cannot be a rule of universal application
that if the eyewitnesses to the incident are
interested in the prosecution case and/or are
disposed inimically towards the accused persons,
there should be corroboration of their evidence.
The evidence of eyewitnesses, irrespective of their
interestedness, kinship, standing or enmity with the
accused, if found credible and of such a calibre as
to be regarded as wholly reliable could be sufficient
and enough to bring home the guilt of the accused.
But it is a reality of life, albeit unfortunate and sad,
that human failing tends to exaggerate, over
implicate and distort the true version against the
person(s) with whom there is rivalry, hostility and
enmity. Cases are not unknown where an entire
family is roped in due to enmity and simmering
feelings although one or only few members of that
family may be involved in the crime.

43. In the circumstances of the present case, to
obviate any chance of false implication due to
enmity of the complainant party with the accused
party and the interestedness of PW 1, PW 4 and
PW 8 in the prosecution case, it is prudent to look
for corroboration of their evidence by
medical/ballistic evidence and seek adequate
assurance from the collateral and surrounding
circumstances before acting on their testimony.
The lack of corroboration from medical and ballistic
evidence and the circumstances brought out on
record may ultimately persuade that in fact their
evidence cannot be safely acted upon.

44. Besides PW 1, PW 4 and PW 8, who are
closely related to the three deceased, no other
independent witness has been examined although
11 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

the incident occurred in a busy market area. The
place of occurrence was visited by PW 20 in the
same night after the incident. He found three two-
wheelers one bearing No. HR 31 A 5071, the
second bearing No. RJ 13 M 7744 and the third
without number lying there. One Maruti car bearing
No. HR 20 D 8840 with broken glass was also
parked there. The owners of these vehicles have
not been examined. At the place of occurrence,
one HMT Quartz wristwatch with black strap, one
belcha and four pairs of chappals were also found.
There is no explanation at all by the prosecution
with regard to these articles. Nothing has come on
record whether four pairs of chappals belonged to
the accused party or the complainant party or
some other persons. Whether the HMT Quartz
wristwatch that was found at the site was worn by
one of the accused or one of the members of the
complainant party or somebody else is not known.

Then, the mystery remains about the belcha that
was found at the site. These circumstances instead
of lending any corroboration to the evidence of
those three key witnesses, rather suggest that they
have not come out with the true and complete
disclosure of the incident.”
The Supreme Court in the case of Rohtash Kumar v. State
of Haryana, reported in (2013) 14 SCC 434, has held as under :-

”35. The term witness, means a person who is
capable of providing information by way of
deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given
in the court, or otherwise. In Pradeep Narayan
Madgaonkar v. State of Maharashtra [(1995) 4
SCC 255] this Court examined the issue of the
requirement of the examination of an independent
witness, and whether the evidence of a police
witness requires corroboration. The Court therein
held that the same must be subject to strict
scrutiny. However, the evidence of police officials
cannot be discarded merely on the ground that
they belonged to the police force, and are either
interested in the investigating or the prosecuting
agency. However, as far as possible the
corroboration of their evidence on material
particulars, should be sought. (See also Paras
Ram v. State of Haryana [(1992) 4 SCC 662],
Balbir Singh v. State [(1996) 11 SCC 139],
12 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

Kalpnath Rai v. State [(1997) 8 SCC 732], M.
Prabhulal v. Directorate of Revenue Intelligence
[(2003) 8 SCC 449 ] and Ravindran v. Supt. of
Customs [(2007) 6 SCC 410].)
Thus, a witness is normally considered to be
independent, unless he springs from sources which
are likely to be tainted and this usually means that
the said witness has cause, to bear such enmity
against the accused, so as to implicate him falsely.

In view of the above, there can be no prohibition to
the effect that a policeman cannot be a witness, or
that his deposition cannot be relied upon.”
The Supreme Court in the case of State of Rajasthan Vs.
Chandgi Ram reported in (2014) 14 SCC 596 has held as
under :-

17. It was contended that all the witnesses were
family members of the deceased and being
interested witnesses, their version cannot be relied
upon in toto. When we consider the same, we fail
to understand as to why the evidence of the
witnesses should be discarded solely on the
ground that the said witnesses are related to the
deceased. It is well settled that the credibility of a
witness and his/her version should be tested based
on his/her testimony vis-à-vis the occurrence with
reference to which the testimonies are deposed
before the court. As the evidence is tendered
invariably before the court, the court will be in the
position to assess the truthfulness or otherwise of
the witness while deposing about the evidence and
the persons on whom any such evidence is
tendered. As every witness is bound to face the
cross-examination by the defence side, the falsity,
if any, deposed by the witness can be easily
exposed in that process. The trial court will be able
to assess the quality of witnesses irrespective of
the fact whether the witness is related or not.

Pithily stated, if the version of the witness is
credible, reliable, trustworthy, admissible and the
veracity of the statement does not give scope to
any doubt, there is no reason to reject the
testimony of the said witness, simply because the
witness is related to the deceased or any of the
parties. In this context, reference can be made to
the decision of this Court in Mano Dutt v. State of
U.P. [(2012) 4 SCC 79] Para 24 is relevant which
13 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

reads as under: (SCC p. 88)
“24. Another contention raised on behalf of the
appellant-accused is that only family members of
the deceased were examined as witnesses and
they being interested witnesses cannot be relied
upon. Furthermore, the prosecution did not
examine any independent witnesses and,
therefore, the prosecution has failed to establish its
case beyond reasonable doubt. This argument is
again without much substance. Firstly, there is no
bar in law in examining family members, or any
other person, as witnesses. More often than not, in
such cases involving family members of both
sides, it is a member of the family or a friend who
comes to rescue the injured. Those alone are the
people who take the risk of sustaining injuries by
jumping into such a quarrel and trying to defuse the
crisis. Besides, when the statement of witnesses,
who are relatives, or are parties known to the
affected party, is credible, reliable, trustworthy,
admissible in accordance with the law and
corroborated by other witnesses or documentary
evidence of the prosecution, there would hardly be
any reason for the Court to reject such evidence
merely on the ground that the witness was a family
member or an interested witness or a person
known to the affected party.” (emphasis added)

18. Reliance can also be placed upon Dinesh
Kumar v. State of Rajasthan [(2008)8 SCC 270],
wherein in para 12, the law has been succinctly
laid down as under: (SCC p. 273)
“12. In law, testimony of an injured witness is given
importance. When the eyewitnesses are stated to
be interested and inimically disposed towards the
accused, it has to be noted that it would not be
proper to conclude that they would shield the real
culprit and rope in innocent persons. The truth or
otherwise of the evidence has to be weighed
pragmatically. The court would be required to
analyse the evidence of related witnesses and
those witnesses who are inimically disposed
towards the accused. But if after careful analysis
and scrutiny of their evidence, the version given by
the witnesses appears to be clear, cogent and
credible, there is no reason to discard the same.
Conviction can be made on the basis of such
evidence.

(emphasis supplied)
14 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

The Supreme Court in the case of Nagappan Vs. State
reported in (2013) 15 SCC 252 has held as under :-

”10. As regards the first contention about the
admissibility of the evidence of PW 1 and PW 3
being closely related to each other and the
deceased, first of all, there is no bar in considering
the evidence of relatives. It is true that in the case
on hand, other witnesses turned hostile and have
not supported the case of the prosecution. The
prosecution heavily relied on the evidence of PW 1,
PW 3 and PW 10. The trial court and the High
Court, in view of their relationship, closely analysed
their statements and ultimately found that their
evidence is clear, cogent and without considerable
contradiction as claimed by their counsel. This
Court, in a series of decisions, has held that where
the evidence of “interested witnesses” is consistent
and duly corroborated by medical evidence, it is not
possible to discard the same merely on the ground
that they were interested witnesses. In other words,
relationship is not a factor to affect the credibility of
a witness. (Vide Dalip Singh v. State of Punjab
[ AIR 1953 SC 364], Guli Chand v. State of
Rajasthan [(1974) 3 SCC 698], Vadivelu Thevar v.
State of Madras[AIR 1957 SC 614], Masalti v. State
of U.P. [AIR 1965 SC 202], State of Punjab v. Jagir
Singh [(1974) 3 SCC 277], Lehna v. State of
Haryana [(2002) 3 SCC 76], Sucha Singh v. State
of Punjab[(2003) 7 SCC 643], Israr v. State of U.P.

[(2005) 9 SCC 616], S. Sudershan Reddy v. State
of A.P. [(2006) 10 SCC 163], Abdul Rashid Abdul
Rahiman Patel v. State of Maharashtra [2007) 9
SCC 1], Waman v. State of Maharashtra [(2011) 7
SCC 295], State of Haryana v. Shakuntla [(2012) 5
SCC 171], Raju v. State of T.N. [(2012) 12 SCC
701] and Subal Ghorai v. State of W.B. [(2013) 4
SCC 607])”

Thus, it is clear that where the evidence of the witnesses is
consistent and is in conformity with the medical evidence, then
their evidence cannot be discarded. In the present case, the
Dehati Nalishi, Ex. P.1, was lodged by the complainant Sunil
Shrivastava (P.W.1) in which specific allegations have been made.
The ocular evidence is supported by the medical evidence. Thus,
15 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

this Court is of the considered opinion that the evidence of Sunil
Shrivastava (P.W.1), Smt. Mamta Shrivastava (P.W.2), Sanjay Sen
(P.W.3) and Manokant Shrivastava (P.W.5) are reliable and,
hence, it is held that the prosecution has succeeded in
establishing the fact that on the issue of bringing water for the
daughter of Gaya Prasad (P.W.11), the appellant had given a knife
blow in the abdomen of the injured Sunil Shrivastava (P.W.1).

The next question for determination is that what offence has
been committed by the appellant.

It is submitted by the Counsel for the appellant that it is
prosecution story that the injured Sunil Shrivastava (P.W.1) had
asked the appellant to bring water for the daughter of Gaya
Prasad and on this issue, there was some hot talk between the
appellant and injured and in a heat of passion, the appellant had
given a knife blow in the abdomen of the injured, therefore, the act
of the appellant would not be an offence under Section 307 of
I.P.C. and at the most, it would be an offence under Section 308 of
I.P.C.

Considered the submissions made by the Counsel for the
appellant. In the present case, the appellant and the injured had
gone to attend a marriage function. As the appellant had gone to
attend a marriage ceremony, then he was not expected to carry a
knife with him. It is not the case of the prosecution that the
appellant in a heat of passion, picked up a knife lying on the spot
and assaulted the injured. The appellant was already carrying a
knife with him for no reason to do so. Thus, it shows the tendency
of the appellant to use the knife without any provocation. In the
present case, although the injured had requested him to bring
water for a girl, but it appears that the appellant got furious and
during scuffle gave a knife blow. It is the case of the prosecution
that when the appellant tried to repeat the blow, his hand was
caught hold by Gaya Prasad (P.W.11). Although Gaya Prasad
16 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

(P.W.11) has not supported the prosecution story, but it is clear
that the appellant had caused hurt to the injured Sunil
Shrivastava.

Section 307 of I.P.C. reads as under :

“307. Attempt to murder.–Whoever does
any act with such intention or knowledge,
and under such circumstances that, if he by
that act caused death, he would be guilty of
murder, shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine; and if hurt is
caused to any person by such act, the
offender shall be liable either to
imprisonment for life, or to such punishment
as is hereinbefore mentioned.”

Thus, it is clear that the word “hurt” has been used in Section 307
of I.P.C. The Supreme Court in the case of State of M.P. Vs.
Mohan reported in (2013) 14 SCC 116 has held as under :

13. The High Court, in our view, while reducing
the sentence, has not properly appreciated the
scope of Section 307 IPC under which the
respondents were found guilty. The relevant
portion of Section 307 reads as follows:
“307. Attempt to murder.–Whoever does
any act with such intention or knowledge,
and under such circumstances that, if he by
that act caused death, he would be guilty of
murder, shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine; and if hurt is
caused to any person by such act, the
offender shall be liable either to
imprisonment for life, or to such punishment
as is hereinbefore mentioned.”

14. The High Court was of the opinion that the
injuries have not been caused on the vital parts
of the body. In order to attract Section 307, the
injury need not be on the vital parts of the body.
In order to attract Section 307, causing of hurt is
sufficient. If anybody does any act with intention
17 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

or knowledge that by his act he might cause
death and hurt is caused, that is sufficient to
attract life imprisonment. Section 307 uses the
word “hurt” which has been explained in Section
319 IPC and not “grievous hurt” within the
meaning of Section 320 IPC. Therefore, in order
to attract Section 307, the injury need not be on
the vital part of the body. A gunshot, as in the
present case, may miss the vital part of the
body, may result in a lacerated wound, that itself
is sufficient to attract Section 307.

Considering the totality of the facts and circumstances of the
case, this Court is of the considered opinion that the appellant is
guilty of making an attempt to commit murder of the injured Sunil
Shrivastava.

It is next contended by the Counsel for the appellant that the
appellant has already undergone the actual jail sentence of 122
days and, therefore, in the light of the facts and circumstances of
the case, the period already undergone by the appellant would
serve the ends of justice.

The submission made by the Counsel for the appellant
cannot be accepted, because where a hurt is caused, then the
maximum sentence is life imprisonment. However, considering the
fact that the incident took place all of a sudden and that too
because the complainant had instructed/asked the appellant to
bring water for the daughter of Gaya Prasad (P.W.11), the
sentence of rigorous imprisonment of 5 years appears to be on a
higher side. Accordingly, the jail sentence of rigorous
imprisonment of 5 years awarded by the Trial Court is modified
and it is directed that the appellant shall undergo the rigorous
imprisonment of 3 years and a fine of Rs.500/- with default
sentence of rigorous imprisonment of 6 months.

With aforesaid modification, the judgment and sentence
dated 28-6-1996 passed by Vth A.S.J., Bhopal in Sessions Trial
No. 491 of 1994 is hereby affirmed.

18 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

The appellant is on bail. His bail bonds are hereby
cancelled. The appellant is directed to immediately surrender
before the Trial Court for undergoing the remaining jail sentence.

The appeal is partly allowed to the extent mentioned above.

(G.S. Ahluwalia)
Judge
15/02/2018
Arun*

Digitally signed by ARUN KUMAR MISHRA
Date: 2018.02.16 16:21:10 +05’30’
19 Criminal Appeal No.1124/1996
[Shiv Kumar Gupta Vs. State of M.P. ]

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR

Jabalpur: Dated 15/2/2018
Shri Sidharth Dutt, Counsel for the appellant.
Shri Vivek Lakhera, Counsel for the respondent/State.
Arguments heard.

Judgment dictated, signed and dated on separate sheets.

(G.S. Ahluwalia)
Judge
Arun*

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