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2002 DIGILAW 1085 (MP)

Mahesh Das v. State of M. P.

2002-12-12

RAJEEV GUPTA, USHA SHUKLA

body2002
JUDGMENT Gupta, J. -- 1. Appellant Mahesh Das stands convicted under sections 302 and 307 of the IPC with sentences of imprisonment for life and rigorous imprisonment for 7 years, vide impugned judgment dated 30.8.1991 passed by VIIIth Additional Sessions Judge, Bhopal in Sessions Trial No. 145/90. 2. Appellant Mahesh Das has been found guilty of causing death of his father-in-law Sarju Prasad by causing solitary injury by means of a knife on his thigh and of attempting at the life of his sister-in-law Ku, Savita by causing solitary injury on her abdominal region by means of a knife in the night of 14.1.1990. 3. Appellant's conviction is founded mainly on the eye witness account of PW 1 Ramesh and PW 2 Savita, whose evidence was found corroborated by the other ocular and medical evidence led by the prosecution at the trial. 4. As appellant Mahesh Das had sent this appeal from jail and was not represented by any counsel, Shri Y.P. Sharma, Advocate, was appointed to defend the appellant. 5. We have heard Shri Y.P. Sharma, the learned counsel for the appellant and shri S.K. Rai, the learned Panel Lawyer for the State. 6. Shri Sharma, the learned counsel for the appellant, vehemently argued that the trial Court has erred in recording the appellant's conviction on the eye witness account of PW 1 Ramesh and PW 2 Savita, who being close relatives of deceased Sarju Prasad are interested witnesses and their evidence is not corroborated by the evidence of any independent witness. The learned counsel for the appellant placing reliance on the dictum of the Apex Court, in the case of Mathew alias Mathachan v. State of Kerala, reported in AIR 1991 SC 1376 , in the alternative submitted that even if appellant Mahesh Das is found guilty of causing the solitary external injury on the thigh of his father-in-law Sarju Prasad by means of a knife which resulted in his death, the offence against the appellant in the fact situation of the present case would not be one of murder punishable under section 302 IPC. 7. Shri Rai, the learned Panel Lawyer, on the other hand supported the impugned judgment of conviction and contended that the trial Court has rightly believed the evidence of PW 1 Ramesh and PW 2 Savita, who are truthful and reliable witnesses. 8. 7. Shri Rai, the learned Panel Lawyer, on the other hand supported the impugned judgment of conviction and contended that the trial Court has rightly believed the evidence of PW 1 Ramesh and PW 2 Savita, who are truthful and reliable witnesses. 8. The facts that deceased Sarju Prasad sustained an external injury on his thigh and died a homicidal death on account of the said injury and that PW 2 Ku. Savita sustained an incised wound on her abdominal region, in the night of 14.1.1990, were neither disputed before the trial Court nor are under challenge before us in this appeal. Even otherwise, there is overwhelming ocular and medical evidence on record which establish the above facts beyond any shadow of doubt. We, therefore, uphold the findings recorded by the trial Court in that behalf. 9. On a thorough scanning of the trial Court's judgment, we gather that appellant's conviction is founded mainly on the eye-witness account of PW 1 Ramesh and PW 2 Savita. True, both these eye-witnesses are son and daughter respectively of deceased Sarju Prasad, but they are equally related to appellant Mahesh Das also as his brother-in-law and sister-in-law. That apart, PW 2 Ku. Savita also got injured in the same incident. 10. PW 1 Ramesh has stated that his brother-in-law Mahesh Das used to reside with his father-in-law deceased Sarju Prasad, in his house. He has categorically deposed that on the fateful night his brother-in-law appellant Mahesh during some quarrel between the appellant and his wife Sudha, assaulted her. Her hue and cry attracted her father, deceased Sarju Prasad, who requested the appellant not to assault Sudha. This led to some quarrel between appellant Mahesh Das and his father-in-law Sarju Prasad, who asked him to leave his house. At this juncture, the appellant is said to have dealt a knife blow on the right thigh of deceased Sarju Prasad. His sister Savita tried to catch hold of the appellant who then dealt one knife blow on Savita, resulting in the injury on her abdominal region. Thereafter, the appellant fled away from the place of occurrence. Injured persons Sarju Prasad and Savita were taken to the hospital where Sarju Prasad was declared dead. Savita was admitted in the hospital for her treatment. In the meantime, police arrived at the hospital where this witness lodged the first information report - (Ex.P-1). Thereafter, the appellant fled away from the place of occurrence. Injured persons Sarju Prasad and Savita were taken to the hospital where Sarju Prasad was declared dead. Savita was admitted in the hospital for her treatment. In the meantime, police arrived at the hospital where this witness lodged the first information report - (Ex.P-1). Though he was subjected to a lengthy cross-examination, running into 4 pages, but nothing could be brought out in his cross-examination which may render his evidence unworthy of credence. The presence of this witness in the house, in the late hours of night, was quite natural. The discrepancies brought out in his cross-examination and the omissions in his case diary statement (Ex. D-l) are of minor nature and do not in any manner adversely affect his credibility. 11. PW 2 Savita deposing in line with the evidence of PW 1 Ramesh stated that on the fateful night appellant Mahesh Das first quarrelled with his wife Sudha and then assaulted her. On the intervention of her father deceased Sarju Prasad, the appellant got annoyed and while leaving dealt a knife blow on the right thigh of her father. When she tried to catch hold of the appellant, she too was injured. She stood firm in her cross-examination and her evidence could not be shaken at all. The presence of injury on her person establishes her presence at the time of the incident beyond any shadow of doubt. 12. On a close scrutiny of the evidence of PW 1 Ramesh and PW 2 Savita, we are satisfied that their evidence does not suffer from any infirmity whatsoever. We do not find any earthly reason for these witnesses to falsely implicate their own brother-in-law for the commission of murder of their father. Their mere close relationship with the deceased will not, by itself, be sufficient to discard their otherwise cogent and reliable evidence., 13. The evidence of PW 4 Kishanlal and PW 5 Laxmidas corroborates the evidence of PW 1 Ramesh and PW 2 Savita to some extent. The medical evidence of PW 8 Dr. Abhiram Verma and PW 11 Dr. B.P. Dubey amply corroborates the ocular evidence of PW 1 Ramesh and PW 2 Savita, as they found one incised wound each on deceased Sarju Prasad and injured Savita which could have been caused by means of a sharp and pointed object. 14. The medical evidence of PW 8 Dr. Abhiram Verma and PW 11 Dr. B.P. Dubey amply corroborates the ocular evidence of PW 1 Ramesh and PW 2 Savita, as they found one incised wound each on deceased Sarju Prasad and injured Savita which could have been caused by means of a sharp and pointed object. 14. Thus, on a re-appreciation of the entire evidence led by the prosecution at the trial, we are satisfied that the trial Court has rightly believed the eye-witness account of PW 1 Ramesh and PW 2 Savita, in holding appellant Mahesh Das guilty of causing that injury on the right thigh of deceased Sarju Prasad by means of a knife which resulted in his death. Similarly, the finding that appellant Mahesh Das caused caused wound on the abdominal region of PW 2 Savita by means of a knife is well merited and does not call for any interference. 15. The next submission of the learned counsel for the appellant is that as there was no prior ill-will between appellant Mahesh Das and .his father-in-law deceased Sarju Prasad and the appellant is said to have dealt a solitary blow on the thigh of the deceased during the course of a sudden quarrel between them, the offence against the appellant would not be one of murder punishable under section 302 IPC. 16. The Apex Court, while considering the offence proved against the accused in the case of Mathew alias Mathachan v. State of Kerala (supra), observed in Para 1 : "The appellant has been convicted for murdering his father-in-law, Thomas alias Pappachan. The facts reveal that the appellant and his wife, PW 3 were not carrying on well. PW 3 had, therefore, left the appellant and was residing with her father. On October 7, 1978, at about 1.00 p.m. PW 3 took away her youngest child, Jiji, from the house of CW 4 where she was at the relevant point of time. On the appellant coming to know about the same, he went to the house of his father-in-law and a quarrel ensued. On the same day at about 6.00 p.m., while PW 1 and the deceased were passing by the shop of PW 2, the appellant met them and once again there was an exchange of abuses, grappling and ultimately the appellant stabbed his father-in-law. On the same day at about 6.00 p.m., while PW 1 and the deceased were passing by the shop of PW 2, the appellant met them and once again there was an exchange of abuses, grappling and ultimately the appellant stabbed his father-in-law. There is no doubt that a scuffle had ensued between the two, both had fallen down and in the process the stab wounds were inflicted. The trial Court, therefore, thought that the accused was provoked by the removal of his child, Jiji, from the residence of CW 4 where she was kept and on account of that provocation a quarrel had ensued between him and his father-in-law in the afternoon and later when they accidentally met at the shop of PW 2. In the course of the quarrel there was a heated argument followed by a scuffle and thereafter the knife wounds. In the backdrop of these facts, the trial Court thought that the case fell within clause Thirdly of S. 300 IPC. The trial Court, therefore, convicted the appellant under S. 304, Part II and awarded a sentence of rigorous imprisonment for six years. The High Court on a re-appreciation of the evidence concluded as under: ''There was no sudden fight in the heat of passion upon a sudden quarrel. The attack was all one-sided. Considering the manner of attack, the nature of the injuries caused, the parts of the body chosen for the attack and the type of weapon used, there need not be any hesitation to hold that the offence committed by the appellant is nothing short of murder.' , We are afraid, we cannot agree with this line of reasoning of the High Court. The facts clearly show that there was an estrangement between the appellant and his wife, PW 3. This had led to their separation. The youngest child, Jiji, was with the appellant and had been kept at the house of CW 4. When the appellant learnt that the said child was removed from the house of CW 4, he was agitated. He went to the house of his father-in-law where there was a quarrel. Later, they again met at the shop of PW 2 and a heated argument took place. In the course thereof, there was a sudden fight which led to grappling. He went to the house of his father-in-law where there was a quarrel. Later, they again met at the shop of PW 2 and a heated argument took place. In the course thereof, there was a sudden fight which led to grappling. Both of them fell on the ground and it was in that heat of the moment that the appellant whipped out a knife which he was carrying and caused the injuries in question. We are, therefore, of the opinion that the view taken by the Sessions Court was not one which demanded interference by the High Court. The High Court is not right when it says that there was no sudden quarrel and that the injuries were not caused in the heat of passion. In fact, the High Court has not appreciated the mental state of the appellant when he learnt that his youngest child was removed from his custody. In the backdrop of the facts, we are of the opinion that the view taken by the learned Sessions Judge did not call for interference by the High Court." 17. How, reverting to the present case admittedly there was no prior ill-will between appellant Mahesh Das and his father-in-law deceased Sarju Prasad. On the contrary, it is the prosecution case itself that appellant Mahesh Das and his wife Sudha used to live with deceased Sarju Prasad in his house. The initial quarrel was between appellant Mahesh Das and his wife Sudha. It was only when deceased Sarju Prasad tried to pacify the quarrel between the husband and wife that the appellant got annoyed to the extent of leaving the house forever. At this juncture, the appellant in the heat of passion is said to have dealt a solitary blow though by means of a knife but on the thigh, a non-vital part. In the above factual matrix of the case, we find it difficult to hold that appellant Mahesh Das while dealing the solitary knife blow on the thigh of his father-in-law deceased Sarju Prasad during the course of a sudden quarrel between them, had intended to cause his death. The above proved act of appellant Mahesh Das in causing the solitary injury on the thigh of his father-in-law, deceased Sarju Prasad, leading to his death, therefore, would not amount to the offence of 'murder' punishable under section 302, IPC. The above proved act of appellant Mahesh Das in causing the solitary injury on the thigh of his father-in-law, deceased Sarju Prasad, leading to his death, therefore, would not amount to the offence of 'murder' punishable under section 302, IPC. Nevertheless, the appellant cannot escape from the liability of his above act altogether. In our considered view, the above-proved act of the appellant would certainly amount to the offence of 'culpable homicide not amounting to murder' and in the fact-situation of the present case, would be punishable under section 304 (Part II) IPC. 18. As for the sentence, on considering the nature and manner of the incident we are of the considered view that appellant Mahesh Das deserves full dose of rigorous imprisonment for 10 years for the offence now found proved against him under section 304 (part-II) IPC. 19. Appellant's conviction under section 307 IPC and sentence of rigorous imprisonment for 7 years do not call for any interference in this appeal. 20. For the foregoing reasons, the appeal filed by appellant Mahesh Das is allowed in part. Appellant's conviction under section 302 IPC and sentence of imprisonment for life are hereby set aside. Instead, the appellant is convicted under section 304 (Part II) IPC and is sentenced to rigorous imprisonment for 10 years. Appellant's conviction under section 307- IPC and sentence of rigorous imprisonment for 7 years are maintained. Both the sentences shall run concurrently. 21. Appellant Mahesh Das is in custody. From the records, we gather that the appellant has all along been in custody since his arrest on 15.1.1990. The appellant, as such has already undergone whole of the jail sentences of rigorous imprisonment for 10 years, now awarded under section 304(Part-II) IPC, and rigorous imprisonment for 7 years under section 307 IPC. 22. We, therefore, direct that appellant Mahesh Das be set at liberty forthwith, if not wanted in connection with any other case.