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2002 DIGILAW 531 (MP)

Kailash Mistri v. State of M. P.

2002-05-14

RAJEEV GUPTA, S.L.JAIN

body2002
ORDER Gupta, J. -- 1. Appellant Kailash Mistri stands convicted under section 301 IPC with sentence of imprisonment for life vide impugned judgment dated 29.4.1991, passed by I Additional Sessions Judge, Chhindwara in Sessions Trial No. 58/1991. 2. Appellant Kailash Mistri has been found guilty of causing one external injury on the neck of his friend Sikru (since deceased) by means of a screw-driver, in a sudden quarrel between them in the night of 11.3.1989 leading to his death the same day. 3. Appellant's conviction is founded on the solitary eye-witness account of PW 10 Vinod, who has categorically deposed that on the fateful night when appellant Kailash Mistri and deceased Sikru were cutting jokes at his shop, accused Kailash Mistri all of a sudden picked up a screw-driver lying in the shop and dealt one blow on the neck of Sikru and fled away. Injured Sikru succumbed to his injuries the same night. 4. Shri G.P. Dubey, the learned counsel for the appellant, vehemently argued that the trial Court has erred in recording the appellant's conviction on the solitary eye-witness account of PW 10 Vinod, as all other eye-witnesses examined by the prosecution at the trial did not support the prosecution case and were declared hostile. 5. True, other eye-witnesses; PW 1 Ramesh, PW 2 Shivcharan, PW 3 Suresh, PW 4 Shivram, PW 6 Shivjeevan and PW 9 Rashid Khan, did not support the prosecution case at the trial and were declared hostile. In our considered view, this circumstance by itself is not sufficient to discard the evidence of PW 10 Vinod Kumar, if his evidence otherwise is reliable and does not suffer from any infirmity. 6. PW 10 Vinod Kumar has categorically deposed that on the fateful night he was at his cycle-shop and appellant Kailash Mistri and deceased Sikru, the two good friends, were cutting jokes with each other. It is further in his evidence that on some trivial issue appellant Kailash and deceased Sikru exchanged hot words and it was during this altercation that appellant Kailash picked up a screw-driver, lying in the shop, and caused injury on the neck of Sikru. Though in his Court evidence PW 10 Vinod Kumar has stated that appellant Kailash Mistri dealt as many as four blows, but in his case diary statement (Ex. D-1), his stand was that the appellant dealt only one blow. Though in his Court evidence PW 10 Vinod Kumar has stated that appellant Kailash Mistri dealt as many as four blows, but in his case diary statement (Ex. D-1), his stand was that the appellant dealt only one blow. Same was the prosecution case in the First Information Report -- Ex. P-1, lodged by an eye-witness PW 1 Ramesh. Dealing of four blows thus is an apparent improvement by the witness at the trial. To us, it appears that PW 10 Vinod Kumar was a common friend of appellant Kailash Mistri and deceased Sikru. On a close scrutiny of his evidence, we are satisfied that his evidence does not suffer from any infirmity and the same can safely be acted upon. He being a common friend of the appellant as well as the deceased would be the last person to spare the real assailant of his friend, deceased Sikru, and to falsely implicate his another friend, appellant Kailash, on the capital charge of 'murder'. His evidence stands amply colt borated by the medical evidence of PW 8 Dr. U.C. Jain, who on post-mortem examination found one penetrating wound on the neck of deceased Sikru, which in his opinion could have been caused by means of a sharp and pointed object. Thus, we are satisfied that the trial Court has rightly believed the evidence of PW 10 Vinod Kumar in holding appellant Kailash Mistri guilty of causing that injury on the neck of deceased Sikru by means of a screw-driver which resulted in his death. We, therefore, do not find any substance in the above submission of the learned counsel for the appellant. 7. The next question that crops up for consideration in this appeal is whether the above proved act of the appellant would amount to the offence of 'Murder' punishable under section 302 IPC as has been held by the trial Court or would it amount to 'Culpable Homicide not amounting to Murder', as, has been submitted by the learned counsel for the appellant? 8. There is not even an iota of evidence to suggest any prior ill-will between appellant Kailash Mistri and deceased Sikru. On the contrary from the evidence of PW 10 Vinod Kumar we gather that they were good friends and in fact were cutting jokes in the shop of this witness at the relevant time. 8. There is not even an iota of evidence to suggest any prior ill-will between appellant Kailash Mistri and deceased Sikru. On the contrary from the evidence of PW 10 Vinod Kumar we gather that they were good friends and in fact were cutting jokes in the shop of this witness at the relevant time. The unfortunate incident of assault on deceased Sikru took place during the course of an altercation between them over a very petty matter. Admittedly, the appellant was not carrying any weapon whatsoever at the time of the incident. The appellant is said to have picked up a screw-driver lying in the shop. The appellant dealt only one blow by means of this screw-driver on his friend Sikru. Unfortunately, the solitary injury resulting from this blow proved fatal. In the opinion of the Autopsy Surgeon, the cause of death of deceased Sikru was excessive bleeding resulting from the solitary injury. In the above mentioned fact situation of the case, we find it difficult to hold that appellant Kailash Mistri while dealing solitary blow on his friend Sikru by means of a screw-driver, during the course of an altercation between them, had intended to cause his death. Therefore, the above proved act of the appellant 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. His above act, in our considered view, 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), of the Indian Penal Code. 9. As for the sentence, appellant Kailash Mistri in the facts and circumstances of the present case deserves full dose of rigorous imprisonment for 10 years. 10. For the foregoing reasons, the appeal filed by appellant Kailash Mistri 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 10 years. 11. Appellant Kailash Mistri is in custody. For the foregoing reasons, the appeal filed by appellant Kailash Mistri 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 10 years. 11. Appellant Kailash Mistri is in custody. From the records, we gather that appellant Kailash Mistri has all along been in custody since his conviction vide impugned judgment dated 29.4.1991, and as such has already undergone whole of the jail sentence of rigorous imprisonment for 10 years, now awarded on his conviction Linder section 304(II) IPC. 12. We, therefore, direct that appellant Kailash Mistri be set at liberty forthwith, if not wanted in connection with any other case.