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Surendra Singh v. State Of M.P .
Concise Analytical Summary of the Provided Opinion
Factual and Procedural Background
The accused (Surendra Singh) was convicted by the Special Judge, Morena, of an offence punishable under Section 394 I.P.C. read with Sections 11 and 13 of the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981, and sentenced to undergo four years' rigorous imprisonment.
According to the First Information Report (Ex. P/3) lodged by Raghuraj Singh (P.W.2), on 9-8-1983 he, together with his brother-in-law Rustam Singh (P.W.3), was returning from Ruar. At Porsa they met the accused, who asked them to go with him to village Matiyapura. While there, the accused allegedly produced a pistol, demanded money from Raghuraj Singh and, when Raghuraj raised a cry, fired the pistol, causing a gunshot wound a little above Raghuraj Singh's right knee. The accused then fled.
Medical examination by Dr. Birwal (P.H.C. Porsa) found two wounds (entry and exit) below the right thigh. The doctor opined the wounds were caused by a single short fired from a distance of about four feet and rejected the suggestion of self-infliction.
After investigation, a charge sheet was filed and the accused was tried and convicted as noted above. On appeal, a procedural order dated 26-6-1985 initially limited admission of the appeal to the question of sentence only; subsequently, the appellate court considered authorities and allowed consideration of additional grounds where ends of justice required.
Legal Issues Presented
- Whether an appellate court can admit an appeal only on the question of sentence and deny a challenge to the legality of the conviction.
- Whether the prosecution evidence made out an offence punishable under Section 394 I.P.C. (robbery or attempt to commit robbery) as held by the trial court.
- Whether, on the proved facts (a close-range pistol firing causing a simple gunshot wound), the accused should be convicted of a lesser included offence under Section 324 I.P.C. (causing hurt by dangerous weapon) instead of Section 394 I.P.C.
- Whether conviction under Sections 11 and 13 of the M.P. Dakaiti Adhiniyam, 1981, was legally sustainable (including whether the temporary enactment remained applicable at the time of conviction).
Arguments of the Parties
Appellant's Arguments
- The prosecution did not make out the offence under Section 394 I.P.C. even prima facie; the trial court failed to address the evidence adequately on the question of an attempt/act of robbery.
- The F.I.R. did not state that Raghuraj Singh had any money or that money was taken; contradictions exist between witness testimony (Rustam Singh) and his earlier police statement (Ex. D/1) regarding whether money was taken.
- Given that the prosecutrix/victim (Raghuraj Singh) did not state that he was robbed, the trial court ought not to have held that a robbery was made out.
- The conviction under Sections 11 and 13 of the M.P. Dakaiti Adhiniyam was illegal: (a) Section 11 was inapplicable because Section 394 I.P.C. prescribes specific punishment; and (b) Section 13 and the Adhiniyam had ceased to be applicable to Porsa due to repeal of the notification w.e.f. 18-11-1984 (relying on Rayale Corporation (P.) Ltd. v. Director of Enforcement, New Delhi).
- The appellant relied on the Supreme Court decision in Rabari Ghela Jadav v. State of Bombay to contend that an appellate court cannot direct that an appeal be heard only on the point of sentence.
State's / Respondent's Position (as recorded)
- Before the appeal was heard on merits, the learned Penal Lawyer for the State pointed out that by the court's earlier order dated 26-6-1985, the conviction could not be challenged on merits and that only the quantum of sentence could be considered.
- Implicitly, the State pressed that the appeal be confined to the question of sentence in view of the earlier procedural direction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rabari Ghela Jadav v. State of Bombay (Supreme Court) | The Appellate Court has power to dismiss an appeal summarily where no sufficient ground for interfering exists, but it has no power to direct that the appeal be heard only on the question of sentence; an order admitting an appeal only on the question of sentence is not an order of summary dismissal under Section 422 (old Code) and is invalid. Also, under the corresponding provisions of the new Code (Section 385 and its proviso and sub-section (3)), leave may be granted to urge grounds going to the legality of conviction even where appeal is limited to sentence. | The court relied on this authority to hold that an order limiting the appeal to sentence alone would be invalid in law and that the appellant could be permitted to urge additional grounds challenging the legality of the conviction where the ends of justice so require; on that basis the court permitted consideration beyond mere sentence in the present appeal. |
| Rayale Corporation (P.) Ltd. v. Director of Enforcement, New Delhi, AIR 1970 SC 494 : 1970 Cri LJ 588 | Where a temporary penal enactment was in force on the date of the offence but had ceased to be in force by the date of conviction, conviction under that enactment could not be recorded. | The court noted the principle but treated its application as academic in the present case because, after reevaluation, the court acquitted the accused of the offence under Section 394 I.P.C. (to which the Dakaiti Adhiniyam had been applied) and instead convicted him of an offence under Section 324 I.P.C., to which the Adhiniyam did not apply. |
Court's Reasoning and Analysis
The court proceeded through two linked strands of analysis: (A) a procedural/competence question about the scope of the appeal; and (B) the substantive question of which offence the proved facts established.
(A) Procedural/Competence Analysis
- The court reviewed the provisional direction dated 26-6-1985 which had limited admission of the appeal to the question of sentence. The appellant relied on Rabari Ghela Jadav to argue that an appellate court has no power to admit an appeal only on sentence and thereby bar a challenge to conviction on its merits.
- The court accepted the legal proposition that, although there are provisions in the new Code (Section 385 and its proviso and sub-section (3)) dealing with appeals confined to sentence, the appellate court must not withhold leave to challenge the legality of conviction where the ends of justice require; consequently the appellant was entitled to urge additional grounds challenging conviction.
(B) Substantive Analysis — application of evidence to offences charged
- The court accepted that it must believe the prosecution to the extent that the accused did fire a pistol causing a gunshot wound below the right thigh of Raghuraj Singh: that factual finding was supported by the testimony of Raghuraj Singh (P.W.2), corroborated by Rustam Singh (P.W.3), the medical evidence of Dr. Birwal (P.W.1), and the F.I.R. (Ex. P/3). The court noted some contradictions in sequencing (whether the accused was first apprehended and then fired or fired and then was caught) but found the core fact of a close-range pistol discharge to be "overwhelming and consistent."
- Medical evidence established two wounds (entry and exit) caused by a shot fired from about four feet; the injury was simple in character (no bone injury, no vital organ injured, not of a nature likely to cause death).
- The court evaluated the trial court's approach: the trial court had recorded that the accused fired the pistol and then held that the injury was caused while attempting robbery, thereby constituting an offence under Section 394 I.P.C.; however, the trial court did not discuss evidence underlying the finding of an attempt to commit robbery. The appellate court found that where the proved facts established only the infliction of hurt by a dangerous weapon, the correct offence was one under Section 324 I.P.C.
- Hurt is an ingredient of Section 394 I.P.C., and particulars of the charge included firing a gun at Raghuraj Singh. Applying Section 222 Cr.P.C. (which permits conviction for an offence necessarily included in the offence charged), the court found no legal obstacle to acquitting the accused of Section 394 and convicting him of the lesser included offence under Section 324 I.P.C.
- As to the challenge about applicability of Sections 11 and 13 of the Dakaiti Adhiniyam and the contention that the Adhiniyam had ceased to apply to Porsa, the court considered the point but treated it as academic because the court's conviction was re-cast on the basis of Section 324 I.P.C., an offence not requiring reliance on the Adhiniyam.
Holding and Implications
APPEAL PARTLY ALLOWED: The conviction under Section 394 I.P.C. read with Sections 11 and 13 of the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 is set aside; the accused is instead convicted of the offence punishable under Section 324 I.P.C.
Direct consequences and sentencing:
- The sentence of four years' rigorous imprisonment imposed under the earlier conviction is set aside.
- Considering the accused's custody history — arrested 13-11-1983, approximately six months in custody during trial with periods of temporary bail, and about 15 days in jail after conviction before suspension of sentence — the court sentenced the accused to rigorous imprisonment for the period already undergone (i.e., the time spent in custody). The accused was on bail at the time of this appellate order and was not required to surrender; his bail bonds were discharged.
Broader implications: The court did not purport to lay down a new rule of law; it applied established principles (including the rule in Rabari Ghela Jadav) about the scope of appellate admission and the established power to convict for a lesser included offence under Section 222 Cr.P.C. The opinion indicates no novel precedent was created beyond its application of those principles to the facts of this case.
1. The accused/appellant has been held guilty of an offence punishable under Section 394 I. P. C. read with Sections 11 and 13 of M. P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 by the Special Judge, Morena, and sentenced to undergo four years' rigorous imprisonment.
2. The prosecution case as set out in the first information report (Ex. P/3) lodged by Raghuraj Singh (P. W. 2) is that the accused/ respondent was known to him for little over a month prior to the date of the incident, On 9-8-1983, Raghuraj Singh accompanied by his brother-in-law Rustam Singh (P.. W. 3) was returning from Ruar. At Porsa, the accused Surendra Singh met them and asked them to accompany him to village Matiyapura so as to stay with Ramniwas and Munna, his friends. All the three left Porsa for village Matiyapura. At about 11 a.m. all of a sudden, accused Surendra Singh took out a pistol from a bag resting on his shoulder and demanded money from Raghuraj Singh. Raghuraj Singh (P. W. 2) raised a cry attracting attention of Rustam Singh (P. W. 3), who was moving a few steps ahead of Raghuraj Singh. Rustamsingh turned back, caught-hold of the accused and fell him down, At this point of time accused Surendra Singh fired the pistol causing shot-wound to Raghuraj Singh little above his right knee. Thereafter, Surendrja Singh fled away towards village Gadhiya Raghuraj Singh and Rustamsingh reached P. S. Porsa where Raghurajsingh lodged the F.I.R.
3. Raghuraj singh was referred for medical legal examination to Dr. Birwal of P. H. C. Porsa. He found two wounds below the right thigh of Raghurajsingh, of which one was the wound of entry and the other was the wound of exit. Dr. Birwal opined that the two wounds were caused by a single short fired from a distance of about 4 ft. from the front of the injured. He did not agree with the suggestion that the injury could have been self-inflicted.
4. On completion of usual investigation; a charge sheet was filed and the accused was tried leading into his conviction, as aforesaid.
5. Before the appeal could be heard on merits, the learned Penal Lawyer for the State pointed out that in view of the order dated 26-6-1985 passed by this Court, the conviction of the accused/appellant could not be allowed to be challenged on merits and it is only the question of quantum of punishment that could be gone into. On 26-6-1985, while hearing on the question of admission, this Court directed that the appeal could not be admitted on merits to examine the legality or otherwise of the conviction, but looking to the age of the appellant and the circumstances of case, the appeal could be admitted on the question of sentence only. The learned Counsel for the appellant has relied on a decision of the apex Court in Rabari Ghela Jadav v. State Of Bombay. , to contend that looking to the scheme of the relevant provisions contained in Chapter 29 of the Code of Criminal Procedure, 1973, if the appeal was not summarily dismissed, the hearing could not be confined to the question of sentence only and such an order, if passed, would not deprive the appellant of his right to challenge the legality of the conviction. Their Lordships of the Supreme Court in Rabari Ghela Jadav observed as under:
While an Appellate Court has power to dismiss an appeal summarily, if it considers that there is no sufficient ground for interfering, it has no power to direct that the appeal shall be heard only on the point of sentence. Such an order is not an order of summary dismissal under Section 422 of the Code. The Appellate Court, after hearing the appeal certainly has the power under Section 423, in finally disposing of the appeal, to reduce the sentence but that does not entitle it to direct that an appeal is admitted only on the question of sentence. Such an order if passed is invalid, and the appellant is entitled to insist that the appeal should be heard on merits.
The provision of the repealed Code of Criminal Procedure, 1898, considered by their Lordships of the Supreme Court in the abovesaid decision are no doubt parallel provisions of the new Code and the law laid down does have a binding force as mandated by Article 141 of the Constitution of India while hearing an appeal under the new Code of Criminal Procedure, 1973. Section 385 of the new Code incorporates the corresponding provisions of Sections 422 and 423(1) of the old Code. The Proviso enacted to Sub-section (2) of Section 385 contemplates an appeal only as to the extent or legality of the sentence which the Court may dispose of even without sending for the record of the trial Court, The newly enacted provision contained in Sub-section (3) of Section 385 contemplates an appeal where the only grounds taken in the appeal from a conviction is the alleged severity of the sentence. Even, in such cases, the newly enacted provision contemplates urging or hearing in support of any other ground with the leave of the court. Wherever the ends of justice so require, the Court would not withhold leave to the appellant in challenging the legality of conviction by urging additional grounds though initially he himself might have chosen to confine his challenge to the severity of the sentence only, The present case is a case where the appellant is entitled to urge such additional grounds not only in view of the dictum of their Lordships of Supreme Court, but also because this Court is satisfied that there would be failure of justice if such leave is not given.
6. The learned Counsel for the appellant contended that on the evidence adduced by the prosecution, an offence under Section 394 I.P.C. is not made out even prima facie. There are a few prominent features of the case which have totally escaped the attention of the trial Court while recording the conviction of the accused/appellant, contends the Counsel. It is submitted that the F.I.R. does not at all record that Raghurajsingh (P. W. 3) had any money, with him and that he was robbed of the money. Rustarasingh (P. W. 3) emphatically stated in his examination-in-chief that Raghurajsingh had one thousand rupees with him which the accused had forcibly taken away. During cross-examination, he was confronted with his Police statement, Ex. D/1, wherein this fact is not mentioned and the witness could not furnish any satisfactory explanation for the omission. What is most surprising is that Raghurajsingh himself did not state a single word throughout his statement as to whether he had any money and the money was lost in the incident, not to talk of having been forcibly taken away by the accused. If the person subjected to the alleged robbery does not himself say that he was robbed, the trial court could not have held that the crime of robbery was made out.
7. A perusal of the judgment of the trial court shows that having recorded a finding that the accused did fire the pistol causing a gun-shot wound below the right thigh of Raghurajsingh, it proceeded to say that such injury was caused by the accused while attempting to commit robbery and hence an offence under Section 394 I.P.C. was made out. However, before doing so, the trial Court did not discuss the evidence on which it based its finding as to the commission of attempt at robbery by the accused. Moreover, when the prosecution came out with a case that Raghurajsingh was robbed of the money, the court could not have held the accused guilty by building up a case that though no robbery took place, yet it was attempted.
8. However, so much of the prosecution case shall have to be believed that accused Surendra Singh did fire a pistol causing a gun-shot wound below the right thigh of Raghurajsingh. On this point, Raghurajsingh is corroborated by Rustamsingh (P. W. 3), Dr. D.R. Birwal (P. W. 1) and the F.I.R. Ex. P. 3, though a few contradictions have been pointed out such as whether Rustamsingh caught-hold of Surendra Singh and the accused fired or whether the accused Surendra Singh fired first and then Rustamsingh caught-hold of him. The fact remains that there is overwhelming and consistent evidence on the point of firing from a pistol from a close range by accused Surender Singh resulting into an injury to Raghurajsingh. The medical evidence does not show that Raghurajsingh sustained any bone injury and that his any vital organ got injured or that the injury was one which could have resulted in death. The injury was simple. The accused/appellant would, therefore, be guilty of causing a simple hurt by deadly weapon, an offence punishable under Section 324 I.P.C. Hurt is one of ingredients of Section 394 I.P.C. and the particulars of the charge framed against the accused Surendra Singh include the factum of his firing a gun-shot at Raghurajsingh, hence with the aid of Section 222 Cr. P.C. there would be no legal hurdle in holding the accused/appellant guilty under Section 324 I.P.C. while acquitting him of the offence under Section 394 I.P.C. as the latter offence includes the earlier one.
9. The learned Counsel for the appellant raised two other fine points of law. He submitted that the conviction under Sections 11 and 13 of the M. P. Dakaity Aur Vyapharan Prabhayit Kshetra Adhiniyam, 1981, was illegal. According to him, Section 11 of the Adhiniyam was not applicable as Section 394 I.P.C. itself prescribes a specific punishment. It was also submitted that Section 13 of the Adhiniyam was also not applicable because , not only Section 13, but the Adhiniyam itself had ceased to be applicable to Porsa, the scene of the offence, because, the notification making it applicable was repealed w.e.f. 18-11-1984 and by virtue of the law propounded in Rayale Corporation (P.) Ltd. v. Director of Enforcement, New Delhi AIR 1970 SC 494 : 1970 Cri LJ 588 the conviction could not have been recorded under a temporary penal enactment which ceased to be in force on the date of conviction, though it was in force on the date of the offence. It will be mere academic exercise to enter into force of the contentions. On the evidence the accused appellant has been held entitled to acquittal from an offence under Section 394 I.P.C. to which the said Dakaiti Adhiniyam applied and the Adhiniyam does not apply when the offence found proved is merely under Section 324 I.P.C.
10. The result is that the appeal is partly allowed. The conviction of the accused/ appellant under Section 394 read with Sections 11 and 13 of the M. P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981, is set aside as also the sentence of 4 years' R.I. Instead the accused/ appellant is held guilty of offence punishable under Section 324 I.P.C. The accused was arrested on 13-11-83 and remained on temporary bail from 15-3-84 to 5-4-84. Again he was released on bail on 30-5-1984. Thus, during trial he had remained in custody for about 6 months. The accused/ appellant after conviction also remained in Jail for about 15 days before the execution of sentence imposed was suspended by this Court. Looking to the facts and circumstances of the case it would meet the ends of justice, if the accused/appellant is sentenced to suffer rigorous imprisonment for the period already undergone by him. He is on bail. He need not surrender. His bail bonds are discharged.
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