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2001 DIGILAW 919 (MP)

DESHRAJ YADAV v. STATE OF M. P.

2001-12-06

RAJEEV GUPTA, USHA SHUKLA

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( 1 ) APPELLANT Deshraj Yadav stands convicted under Section 302, i. P. C. , with sentence of imprisonment for life, vide impugned judgment dated 6-6-89 passed by Sessions Judge, Shahdol in S. T. No. 45/88. ( 2 ) THE short facts of the case, essential for deciding this appeal, are that on the fateful night of 7-2-88, when Chandrapal (since deceased) and prosecution witnesses Babulal, Sangram, Jagatpal and Vidhya Prasad were playing cards in the compound of Dayal Orient Mail Speed Transport Services, Budhar Road, Shahdol, accused Deshraj Yadav came there and demanded Rs. 5/- from Chandrapal. On his refusal to pay the amount, during the course of altercation between them, accused Deshraj dealt one blow by means of a "gupti" on the back of Chandrapal. Injured Chandrapal succumbed to his sole injury the same day. Ramchandra, Manager of the above Transport company, lodged First Information Report at Police Kotwali, Shahdol giving rise to the registration of the case at Crime No. 70/88. After performing the necessary formalities of preparing inquest etc. , body of Chandrapal was sent for post-mortem examination. The Autopsy Surgeon found one penetrating wound on his back as detailed in post-mortem report (Ex. P/1 ). During the course of investigation, accused Deshraj was arrested on 8-2-88 and in pursuance to the information given by him under section 27, of the Evidence Act, a knife was seized from his possession. After completing the investigation, Police Kotwali Shahdol charge-sheeted accused Deshraj Yadav for the alleged commission of the offence punishable under Section 302, of the I. P. C. ( 3 ) ACCUSED Deshraj abjured his guilt and pleaded false implication to the charge framed by the trial Court under Section 302, I. P. C. ( 4 ) AT the trial, the charge of murder against accused Deshraj Yadav was sought to be proved on the evidence of PW/1 Ashok Kumar Gautam, PW/2 Ramchandra, PW/3 Vikat, PW/4 Babulal, PW/5 Sangram, PW/6 Murlidhar, PW/7 Jagatpal, PW/8 Santosh Kumar Agrawal, PW/9 Vidhya Prasad and PW/10 Awadh Narayan Mishra. The accused did not examine any witness in his defence. ( 5 ) OF the 10 witnesses examined by the prosecution at the trial, PW/3 Vikat, PW/4 Babulal, PW/5 Sangram and PW/7 Jagatpal did not support the prosecution case and, therefore, were declared hostile. The accused did not examine any witness in his defence. ( 5 ) OF the 10 witnesses examined by the prosecution at the trial, PW/3 Vikat, PW/4 Babulal, PW/5 Sangram and PW/7 Jagatpal did not support the prosecution case and, therefore, were declared hostile. ( 6 ) THE trial Court, on the ocular and medical evidence led by the prosecution at the trial, found that deceased Chandrapal had sustained a penetrating wound on his back leading to his death and that his death was homicidal in nature. Relying upon the eye-witness account of PW/9 Vidhya Prasad which was found corroborated by the evidence of the other prosecution witnesses, the trial Court held accused Deshraj Yadav guilty of causing the said penetrating wound on the back of deceased Chandrapal by means of a "gupti" resulting in his death. On the above findings, the trial Court found accused Deshraj Yadav guilty of commission of the offence of murder of deceased Chandrapal and, therefore, convicted him under Section 302, I. P. C. and sentenced him to imprisonment for life. ( 7 ) WE have heard Smt. Shashi Shukla, the learned counsel for the appellant, and Shri R. K. Verma, the learned Panel Lawyer for the State, and have perused the evidence led by the prosecution at the trial. ( 8 ) THE facts that deceased Chandrapal sustained a penetrating wound on his back resulting in his death and that his death was homicidal in nature were neither under challenge at the trial nor are disputed before us in this appeal. That apart, we find ample evidence on record to establish the above facts beyond any shadow of doubt. We, therefore, uphold the findings recorded by the trial Court in that behalf. ( 9 ) TRUE, of the 5 eye-witnesses examined by the prosecution at the trial PW/3 Vikat, PW/4 Babulal, PW/5 Sangram and PW/7 Jagatpal did not support the prosecution case in regard to the actual causing of the injury by the accused and were, therefore, declared hostile and the entire prosecution case against appellant Deshraj Yadav hinges on the solitary eye-witness account of PW/9 Vidhya Prasad. ( 10 ) PW/9 Vidhya Prasad has categorically deposed that on the fateful night when he reached the compound of transport company where deceased Chandrapal and other prosecution witnesses were playing cards, accused Deshraj Yadav came there and demanded Rs. 5/- from Chandrapal. ( 10 ) PW/9 Vidhya Prasad has categorically deposed that on the fateful night when he reached the compound of transport company where deceased Chandrapal and other prosecution witnesses were playing cards, accused Deshraj Yadav came there and demanded Rs. 5/- from Chandrapal. It is further in his evidence that Chandrapal"s refusal to pay the amount led to an altercation and accused Deshraj Yadav then took out a "gupti" (knife) and dealt one blow on his back. Though he was subjected to a lengthy cross-examination running into more than three pages, but nothing substantial could be elicited by the defence which may render his evidence unworthy of credence. No material was brought on record to indicate that this witness was either related to the deceased or was an otherwise interested witness or was inimical to the accused which could have motivated him to depose falsely against the accused. Though the incident took place in the night, but as the deceased and other prosecution witnesses were playing cards, it can safely be inferred that there was sufficient light at the time of the incident. As the accused was known to the witness, there can be no question of any mistaken identity. On a close scrutiny of his evidence, we are satisfied that PW/9 Vidhya Prasad is a truthful witness and his evidence can safely be acted upon. ( 11 ) THOUGH other eye-witnesses PW/3 Vikat, PW/4 Babulal, PW/5 Sangram and PW/7 Jagatpal have not supported the prosecution case in regard to the actual causing of injury on the deceased by the accused, but their evidence does very much corroborate the evidence of PW/9 Vidhya Prasad so far as the presence of accused Deshraj Yadav at the time of the incident is concerned. Their evidence further establishes that an altercation did take place between accused Deshraj Yadav and deceased Chandrapal on account of the appellant"s demand of Rs. 5/- from the deceased and his refusal to pay the same. ( 12 ) THE cogent and reliable evidence of PW/9 - Vidhya Prasad stands further corroborated by the medical evidence of PW/1 Dr. Ashok Kumar Gautam, who on post-mortem examination found one penetrating wound on the back of deceased Chandrapal which in his opinion could have been caused by means of a sharp edged object like knife. ( 12 ) THE cogent and reliable evidence of PW/9 - Vidhya Prasad stands further corroborated by the medical evidence of PW/1 Dr. Ashok Kumar Gautam, who on post-mortem examination found one penetrating wound on the back of deceased Chandrapal which in his opinion could have been caused by means of a sharp edged object like knife. ( 13 ) THUS, on the above re-appreciation of the ocular evidence of PW/3 Vikat, PW/4 Babulal, PW/5- Sangram, PW/7 Jagatpal and PW/9 Vidhya Prasad and the medical evidence of PW/1 Dr. Ashok Kumar Gautam, we are satisfied that the trial Court has rightly believed their evidence in holding accused Deshraj Yadav guilty of causing that penetrating wound on the back of deceased Chandrapal by means of a "gupti" which resulted in his death the same day. ( 14 ) THE next question which now crops up for consideration, in this appeal, is about the nature of the offence proved against the appellant. ( 15 ) THE learned counsel for the appellant submitted that as there was no prior ill-will between the appellant and the deceased and the appellant dealt only one blow on the back of the deceased and that too during the course of an altercation between them, the above proved act of the appellant would not amount to the offence of "murder" punishable under Section 302, I. P. C. , and at the most would be punishable under Section 304, I. P. C. ( 16 ) IN somewhat similar fact situation, in the case of Tholan v. State of Tamil Nadu reported in AIR 1984 SC 759 : (1984 Cri LJ 478), while considering the nature of the offence proved against the accused in that case, the Apex Court observed in para 12 :-"12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K. G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment. Even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder. In other words, whether Part I or Part III of S. 300, I. P. C. would be attracted in the facts of this case. Even Mr. Rangam, learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of S. 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 : AIR 1981 SC 1552 : (1981 Tax LR 1136); Randhir Singh v. State of Punjab, AIR 1982 SC 55 : 1982 Cri LJ 195; Kulwant Rai v. State of Punjab, AIR 1982 SC 126 and Hari Ram v. State of Haryana, AIR 1983 SC 185 : 1983 Cri LJ 346. To this list two more cases can be added : Jagtar Singh v. State of Punjab, Cri A. No. 81/83 decided on 14-2-83; (reported in AIR 1983 SC 463 : (1983 Cri LJ 852)) and Ram Sunder v. State of U. P. Crl. A. No. 555/83 decided on 24-10-83. Having regard to the ratio of each of these decisions, we are satisfied that even if exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under S. 304, Part II of the Penal Code. . . . " ( 17 ) IN a recent judgment in the case of Bhera v. State of Rajasthan, reported in (2000) 10 SCC 225 , the Apex Court while considering whether the act of the accused of dealing a single knife blow on the deceased resulting in his death would amount to the offence of "murder" or "culpable Homicide not amounting to Murder", observed in para 2 of the judgment :-"2. But, so far as the second contention raised by the learned counsel for the appellant is concerned, we find sufficient force in the same. From the evidence of PWs 2 and 3 it is crystal clear that the accused and the deceased had some quarrel in the house of Bhana. On the road while they quarrelled with each other, suddenly the accused brought out the knife and gave the blow on the chest of the deceased. On these facts, it is difficult to hold that the accused gave the blow with the requisite intention of causing murder of the deceased. In this view of the matter, the conviction of the appellant under Section 302 cannot be sustained. Since in anger while quarrelling, the accused had given the blow which ultimately resulted in the death of the deceased, the offence would be one under Section 304, Part II. We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304, Part II and sentence him to 5 years. . . . . We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304, Part II and sentence him to 5 years. . . . . " ( 18 ) IN yet another recent judgment in the case of Kunhayippu v. State of Kerala reported in (2000) 10 SCC 307 , while holding that the act of the accused in dealing a single blow on the deceased resulting in his death amounted to the offence of "culpable Homicide not amounting to Murder" punishable under Section 304 (II), IPC only, the Apex Court observed in para 3 :-"3. . . . . . . The next question that arises for consideration is whether in the facts and circumstances of the case, as indicated in the testimony of the aforesaid eye-witnesses, the accused can be convicted for the offence of murder under Section 302 or could be convicted only under Section 304, Part II inasmuch as there was absolutely no intention on his part to cause the murder of the deceased. From the evidence of PW1 it appears that both the accused and the deceased were in a friendly mood when one asked for a glass of juice from the other. Shortly thereafter while the deceased had left the shop of PW1, the accused went behind and gave the blow in question and further, the blow in question had been given from the back side and only a single blow had been given. In these circumstances, it is difficult for us to hold that the accused can be said to have had the necessary intention for causing the murder of the deceased while giving the blow in question, though ultimately the blow had become fatal. We, therefore, set aside the conviction of the appellant under Section 302 and convict him under Section 304, Part II and sentence him to imprisonment for 5 years. . . . We, therefore, set aside the conviction of the appellant under Section 302 and convict him under Section 304, Part II and sentence him to imprisonment for 5 years. . . . " ( 19 ) WHAT appears to have weighed with the Apex Court in the above quoted cases, while holding that the act of the accused in those cases did not amount to the offence of murder punishable under Section 302, IPC, was that the accused and the deceased were either friendly or there was no prior ill-will between them; the accused dealt only one blow; and, that the solitary blow too was dealt during the course of an altercation between them. ( 20 ) NOW, reverting to the present case, admittedly there was no prior ill-will between appellant Deshraj Yadav and deceased Chandrapal. Even according to the prosecution case deceased Chandrapal came to sustain solitary injury on his back at the hands of his friend appellant Deshraj Yadav by means of a "gupti" during the course of an altercation between them on account of a very petty matterarising out of the demand of Rs. 5/- by the appellant and refusal to pay the same by the deceased. To us it appears that the solitary blow dealt by the appellant on the back of the deceased went deeper and unfortunately pierced his lung resulting in his death. Thus, in the above factual matrix of the case we find it difficult to hold that appellant Deshraj Yadav, while dealing solitary blow on the back of the deceased, had intended to cause his death. Appellant"s conviction for the commission of the offence of murder punishable under Section 302, IPC, therefore, cannot legally be sustained. Nevertheless, the appellant cannot escape from his liability of his act of causing penetrating wound on the back of deceased Chandrapal resulting in his death altogether. In our considered view it can safely be inferred that appellant Deshraj Yadav, while dealing the blow on the back of deceased Chandrapal by means of a "gupti" had the knowledge that his act was likely to result in such an injury which was likely to cause his death. In our considered view it can safely be inferred that appellant Deshraj Yadav, while dealing the blow on the back of deceased Chandrapal by means of a "gupti" had the knowledge that his act was likely to result in such an injury which was likely to cause his death. Therefore, appellant"s above proved act of causing solitary injury on the back of deceased Chandrapal by means of a "gupti" though would not amount to the offence of "murder" punishable under Section 302, IPC, but would certainly amount to the offence of "culpable Homicide not amounting to Murder", and in the facts and circumstances of the present case would be punishable under Section 304 (II), IPC. ( 21 ) AS for the sentence, we are of the considered view that sentence of rigorous imprisonment for 5 years, in the facts and circumstances of the present case, would be the sufficient punishment for the offence found proved against the appellant under Section 304 (II), IPC and would meet the ends of justice. ( 22 ) FOR the foregoing reasons, the appeal, filed by appellant Deshraj Yadav against his conviction and sentence, is allowed in part. Appellant"s conviction under Section 302, IPC and sentence of imprisonment for life are hereby set aside. Instead, he is convicted under Section 304 (II), IPC and is sentenced to rigorous imprisonment for 5 years. ( 23 ) FROM the record, we gather that appellant Deshraj Yadav has all along been in custody since his arrest on 8-2-88, and as such has already undergone whole of the sentence of rigorous imprisonment for 5 years, now awarded on his conviction under Section 304 (II), IPC. We, therefore, direct that appellant Deshraj Yadav be set at liberty forthwith, if not wanted in connection with any other case. Appeal partly allowed .