Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 583 (MP)

Mahendra @ Manohar v. State of M. P.

2003-04-22

N.K.JAIN, S.L.KOCHAR

body2003
JUDGMENT Kochar, J. -- 1. Both these appeals have been filed by the appellants against the judgment and finding dated 1.11.1996 rendered by learned XIII Addl. Sessions Judge, Indore, in ST No. 32/94 whereby convicted the appellant Mahendra @ Manohar @ Kallu and Manoj @ Damru u/s 302/34 and Surendra Kumar u/s 302 IPC and sentenced each to RI for life and to pay a fine of Rs. 1,000/- each and in default of payment of fine to suffer further imprisonment for one year. 2. The prosecution case in nutshell as unfolded before the trial Court was that on 3.7.1992 at 9.00 p.m., present appellant Mahendra alongwith Surendra Kumar and Manoj came to the house of the complainant Ram Kishan (PW 1) for balance amount of Rs. 20/- towards vegetable price. The father of the complainant named Malamsingh had purchased vegetable on credit from Narendra Dalal who is the brother of appellant Mahendra and is having wholesale shop in Sabji Mandi and thereafter selling the same in retail having his shop at road No. 12. Appellant Mahendra came to the house of the complainant for collecting money. They had dispute for Rs. 20/-. According to appellant Mahendra, Malamsingh owed Rs. 20/- more which was denied by Malamsingh. Prior to the time of alleged incident, Mahendra alone came to the house of the complainant and on deniel of payment of Rs. 20/- balance amount, he again came alongwith Manoj and Surendra Kumar. It is alleged by the prosecution that Mahendra and Manoj caught hold of deceased Ramesh and Surendra dealt solitary knife blow at right side of chest Deceased was taken to the hospital when he died in the same night at 9.50 p.m. The FIR (Ex. P-l) was lodged by Ram Kishan (PW 1) at 9.15 p.m. After usual investigation, charge sheet was filed. 3. Appellant have abjured their guilt Therefore, tried and convicted as mentioned above. 4. The contention of the learned counsel for appellants is two-fold. First is that Mahendra and Manoj had no common intention to commit murder of deceased Ramesh with whom they had no dispute The dispute was on a trivial issue of Rs 20/- balance with Malamsingh, the father of Ramesh. Ramesh was not purchasing vegetables from the brother of accused Mahendra nor selling the same. He was having his own independent egg stall or road No. 12. Ramesh was not purchasing vegetables from the brother of accused Mahendra nor selling the same. He was having his own independent egg stall or road No. 12. According to the learned counsel the incident was a chance encounter in which solitary blow was given by Surendra who was having absolutely no concern with the affair between Malamsingh and complainant party. Thus, they had no pre-meeting of mind, premeditation and pre-plan to commit murder of Ramesh. The conviction of Mahendra and Manoj with the help of section 302/34 of IPC is no sustainable. So far as conviction of appellant Surendra is concerned, at the most he would be liable for the offence u/s 304-II, IPC. 5, Shri G. Desai, learned Dy. AG appearing for State has supported the judgment of conviction rendered by the Court below. 6. Having heard the learned counsel for parties and after perusing the entire record we are of the opinion that appellant Mahendra and Manoj could not be held guilty for the offence u/s 302/34, IPC because there is no reliable evidence available on record to establish that the had pre-meeting of mind, premeditation and pre-plan with the appellant Surendra Kumar who was having knife in his possession and the same was not being brandishing by him. Surendra Kumar caused solitary knife injury after taking out the same which was hidden by him. After one blow, he did not repeat his act. For causing single blow, the appellant Surendra Kumar and Mahendra were no required to hold the deceased Ramesh. The prosecution witness Kamal (PW 2), in para No.3 has stated that after arrival of all the three appellants, they demanded money and there was scuffle between deceased Ramesh, accused Mahendra and Manoj During that scuffle, they caught the hand of Ramesh. Thereafter, Surendra Kumar had taken out the knife and dealt a blow on chest. Thereafter, all the three fled away from the place of incident. The statement of this witness is indicating that their total intention was to demand and recover balance amount for which there was scuffle between Mahendra and Manoj with Ramesh. If during that scuffle, appellant Surendra Kumar had taken out knife and caused solitary blow, the knowledge of possession of the knife by Surendra Kumar could not be attributed by any stretch of imagination to the appellant Mahendra and Manoj. 7. If during that scuffle, appellant Surendra Kumar had taken out knife and caused solitary blow, the knowledge of possession of the knife by Surendra Kumar could not be attributed by any stretch of imagination to the appellant Mahendra and Manoj. 7. The prosecution has examined Rajesh (PW 3) who is an independent witness before whom the deceased Ramesh has disclosed about the incident. This witness has deposed that for Rs. 20/- there was dispute and he was assaulted by one Surendra Kumar. Deceased did no disclose the names of appellant Mahendra and Manoj. Deceased had also not narrated the story of scuffle with them as well as catching hold of his hand by appellant Mahendra and Manoj. This witness has no been declared hostile. Therefore prosecution is bound by his statement. See: 1989 JLJ 122 [Sukhram v. State of M.P.] and 1991 JLJ 564 [Aziz and others v. State of M.P.]. The story of catching hold of the deceased by appellant Mahendra and Manoj as stated by eye witness is no supported by Rajesh (PW 3) before whom the oral dying declaration was made by the deceased and there is no reason before this Court to disbelieve the statement of Rajesh. The law is well settled that whenever there are two sets of evidence of the prosecution available against the accused persons, then, the evidence which is in favour of the accused is to be relied upon. Thus, we are of the opinion that active participation of appellant Mahendra and Manoj has not been established beyond all reasonable doubt. See: AIR 1978 SC 34 [Bhagwan Bux Singh and another v. State of U.P.]. 8. So far as the appellant Surendra Kumar is concerned, he has caused solitary blow and no opinion has been given by autopsy surgeon Dr. Surendra Dube (PW 9) that injury was sufficient in ordinary course of nature to cause death. The incident had taken place on trivial issue of Rs. 20/- balance amount that too was with Mahendra and actual amount was own to Narendra, the brother of Mahendra. The statement of Kamal (PW 2) in para 3 is also indicating that prior to causing of injury by Surendra, there was some sort of scuffle and thereafter he dealt a solitary knife blow. There is no evidence on record that he aimed the blow at the right side of the chest of the deceased. The statement of Kamal (PW 2) in para 3 is also indicating that prior to causing of injury by Surendra, there was some sort of scuffle and thereafter he dealt a solitary knife blow. There is no evidence on record that he aimed the blow at the right side of the chest of the deceased. Therefore, it could not be said that he had intention to commit murder but knowledge could be attributed to him that by using knife his act was likely to cause death. Therefore, his act would fall within the purview of section 304-II IPC, i.e. culpable homicide not amounting to murder. 9. In the result, the appeal is partly allowed. The conviction and sentence of Mahendra and Manoj are hereby set aside and conviction of appellant Surendra Kumar u/s 302, IPC is set aside and instead thereof he is convicted u/s 304-II, IPC. He is in jail since 1.11.1996. By now he has been completed six and a half years Therefore, he is sentenced to the period already undergone with fine of Rs. 7,000/-. In default of payment of fine, he shall undergo RI for one year. Out of which, Rs. 6,000/- be paid as compensation to the legal heirs of the deceased. The trial Court is directed to release him forthwith if not required in any other case. 10. A copy of this judgment be placed in the record of connected Criminal Appeal No. 1002/1996 (Surendra Kumar and another) and original be retained in this appeal.