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2003 DIGILAW 168 (MP)

Sikla v. State of M. P.

2003-01-27

DEEPAK VERMA, S.L.KOCHAR

body2003
JUDGMENT Kochar, J. -- This Criminal Appeal has been filed by appellant against the judgment dated 28th Nov. 1994 passed by the Sessions Judge West Nimar, Barwani in ST No. 149/91 thereby convicting the appellant for the offence under section 302 IPC and sentencing to imprisonment for life and fine of Rs. 500/- I.D. of fine further RI for 3 months. In brief, the prosecution case before the trial Court was that on 8.3.1991 deceased Nata was returning from village Chhav to his village Gudi. He was accompanied by Bhayla (PW 4), Dhania (PW 5), Bhaisingh (PW 6), and appellant Sikla. When they all reached near rivulet of village Limba, appellant passed comments on him that he was elder brother of village Patel and an important person of the village but still he could be done to death at any time. During such talks, appellant Sikla dealt an axe blow from its sharp side which hit the head of the deceased. Deceased fell on the ground. Immediately he was taken to the Police Station in a jeep by the witnesses where he lodged FIR Ex. P-4. Thereafter, he was shifted to Primary Health Centre, Patio He was medically examined by Dr. Kailashchandra Dewda (PW 13), his report is Ex. P-5. Dying declaration is Ex. P-6. Thereafter, he was shifted to Barwani hospital where on x-ray examination Dr. Kailash Malviya (PW 1) found fracture on his head. Deceased remained hospitalized from 8.3.1991 to 28.3.1991. He died on 28.3.1991 in the hospital. After death autopsy was pelformed by Dr. N.K. Jugarawat but because of death of Dr. Jugarawat he could not be examined in Court. It is pertinent to note that post mortem report shown to be marked as Ex. C-1 (as Court document) but the s.ame was not got proved by any companion of Dr. Jugarawat. His hand writing and signatures were also not got proved in Court. In accused statement under section 313 CrPC also learned trial Court did not put any question about the post mortem Ex. C-I to the accused affording him an opportunity to explain the same. In the accused statement, no question was also put about homicidal death of the deceascd. After usual investigation, charge sheet was filed. The defence of the appellant was one of denial. He was put to trial and convicted and sentenced as indicated above. C-I to the accused affording him an opportunity to explain the same. In the accused statement, no question was also put about homicidal death of the deceascd. After usual investigation, charge sheet was filed. The defence of the appellant was one of denial. He was put to trial and convicted and sentenced as indicated above. Having heard learned counsel for the Parties and after perusing the entire record, we arc of the opinion that there is sufficient material available on record about involvement of the appellant for causing injury on the head of the deceased. The prosecution has examined Bhayla (PW 4), Dhania (PW 5), Bhaisingh (PW 6) as eye witnesses of the incident and their statements remained unimpeached in cross-examination by the defence. There is also dying declaration. Ex. P-6 recorded by Dr. Kailashchandra Dewda. In this dying declaration, the appellant has been named by the deceased as author of the injury. We have no doubt in regard to the dying declaration Ex. P-6, which has been recorded by the independent person like doctor against whom no allegation has been levelled for any kind of partiality. In the FIR Ex. P-4 lodged by the deceased an ambiguously, authorship of the injury has been described by the deceased against the appellant. Therefore, this is concomitant evidence and circumstances to establish the involvement of the appellant for causing head injury to the deceased. Now the crucial question would be whether the appellant would be responsible for offence under section 302 IPC or not when his post mortem report was not got proved in accordance with law. Post mortem report simpliciter is not admissible in evidence. This is settled legal position (see 1980 JLJ 501 ), ( 1998 JT 679 ). Court itself has exhibited this document as Exhibit C-l but no questions were put in the accused statement to the accused affording him an opportunity to explain about homicidal death of deceased. Therefore, learned trial Court has illegally relied on post mortem report (Ex. C.1) for holding that deceased met a homicidal death. Learned trial Court has committed an error in considering Ex. P. 4 FIR as dying declaration because there is no evidence on record that deceased died because of injury caused by the appellant. The prosecution has also failed to establish that death was the consequence of the act attributed to the accused. Learned trial Court has committed an error in considering Ex. P. 4 FIR as dying declaration because there is no evidence on record that deceased died because of injury caused by the appellant. The prosecution has also failed to establish that death was the consequence of the act attributed to the accused. There is also no evidence led by the prosecution that death was probable consequences of the injury. Deceased died after 20 days of sustaining injury. FIR lodged by the deceased cannot be said to be the statement as to cause of death or any circumstances resulting in death. In view of non availability of positive legal evidence about cause of death, FIR lodged by the deceased cannot be termed as dying declaration after hi s death as per provision u/s. 32 of the Evidence Act. Reliance is placed on Division Bench judgment of this Court in Imran v. State o 'M.P. ( 1994-MPLJ-862). Now we are left with medical report and evidence of Dr. Kailash Malviya (PW 1) and PW. 13 Dr. Kailash Chandra Dewda. According to these experts reports deceased had fracture on his head and as discussed above author of injury is the appellant, therefore, offence at the most would fall under purview of section 326 IPC. We have heard learned counsel on the questiun of sentence. The appellant is facing prosecution since 1989 i.e. for more than 12 years. Appellant is the first offender and at present he must be about 48 years of age. Therefore, we deem it just and proper to sentence him RI for three years and fine of Rs. 5000/-. In default of payment of fine he shall undergo further R.I. for two years. Out of this fine amount, Rs. 4000/- be paid as compensation to the wife of the deceased or his LRs. In the terms indicated above, this appeal is allowed in part. Appellant is on bail. His bail and surety bonds shall stand cancelled.