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2005 DIGILAW 169 (MP)

Nitesh v. State of M. P.

2005-02-04

A.K.AWASTHY, DEEPAK VERMA

body2005
JUDGMENT Awasthy, J.--1. Appellant-accused has filed the appeal under section 374 of the Code of Criminal Procedure against the judgment and order dated 13.7.1998 delivered the Special Case No. 221/1997 by learned Special Judge (SC & ST), Dewas, wherein appellant was convicted and sentenced under section 302, IPC to undergo life imprisonment with fine of Rs. 500/-, in default of payment of fine, further undergo RI for two months; and RI for 1 year under section 324, IPC. Both the sentences were directed to run concurrently. 2. The prosecution case is that on 22.5.1997 at about 8:00 p.m. when in the marriage of Rajesh, Devkaran (PW 1) and deceased Mukesh were going in a vehicle near the bus stand and• in front of Kalali, Sonkutch, the Barat accompanying the marriage got down. That in the meantime the accused Nitesh Yadav reached there and he started quarrelling with Mahendra Singh (PW 2) and Jagbhan (PW 4) on their refusal to provide him the money for consuming liquor. The prosecution case is that when Mukesh and his brother Devkaran (PW 1) intervened, the accused got enraged and started inflicting knife blows on Mukesh. That Devkaran (PW 1) intervened and asked the accused not to beat his borther, then the accused also gave a knife blow on the thigh of Devkaran (PW 1). That Mukesh was immediately taken to the hospital in the tractor where he was declared dead. 3. That Devkaran (PW 1) lodged the FIR (Ex. P-l) on 22.5.1997 at 8:30 p.m. in the Police Station, Sonkutch, and the police after preparing the Panchnama of the dead body, sent it for autopsy to the Primary Health Centre, Sonkutch. Dr. Pravin Mishra (PW 6) also examined Devkaran (PW 1) and found a stab wound on his left thigh which was caused by sharp object within 24 hours. That on 23.5.1997 at about 8:00 a.m. the post-mortem of the dead body of Mukesh, aged about 19 years, was conducted by Dr. Pravin Mishra (PW 6) and he has found an incised wound to the iliac crest, and two incised wound on thigh, and one stab wound on the chest and in his report Ex. P-16 he opined that the injury on the chest was sufficient in ordinary course to cause the death. The Investigating Officer S.S. Sisodiya (PW 5) reached on the spot on 23.5.1997 and after preparing the spot map (Ex. P-16 he opined that the injury on the chest was sufficient in ordinary course to cause the death. The Investigating Officer S.S. Sisodiya (PW 5) reached on the spot on 23.5.1997 and after preparing the spot map (Ex. P-2) he has recovered the blood stained soil from the spot and the clothes of the deceased were also seized by him. That the accused was arrested vide Ex. P-11 and on the basis of his statement (Ex. P-12) under section 27 of the Evidence Act, the knife was recovered from the back side of the liquor shop vide seizure memo Ex. P-6. The knife was sent to the FSL for the examination where it is found that it was having the blood. After the usual investigation, the Investigation Officer S.S. Sisodia (PW 5) presented the charge-sheet before the Special Court for the offence punishable under section 302 and 324 IPC and also under section 3(2) (5) of the Scheduled Tribes and Scheduled Castes (Prevention of Atrocities) Act, 1989. 4. The accused has abjured the guilt and he has denied the statements of the prosecution witnesses in his statement under section 313 of the Code of Criminal Procedure, and pleaded false implication due to the enmity. 5. The learned trial Court after framing the charges and recording the statement of four eye-witnesses i.e. Devkaran (PW 1), Mahendra Singh (PW 2), Bhimsingh (PW 3), Jagbhan Singh (PW 4) along with Station House Officer S.S. Sisodiya (PW 5) and Dr. Pravin Mishra (PW 6) and also the statements of the defence witnesses, namely, Nandlal Tiwari (DW 1), Sarnath (DW 2), Rajesh (DW 3) and S.C. Shrivastava (DW 4) held that the offence punishable under section 3(2) (5) of the Act was not proved and the prosecution has proved the case against the accused only under sections 302 and 324 IPC and punished him accordingly. 6. The learned counsel for appellant has not seriously assailed the finding of the fact of causing hurt by the accused to deceased Mukesh and Devkaran (PW 1) and only the conviction and sentence is assailed mainly on the ground that the offence punishable under section 302 IPC is not made out and at the most offence under section 304-II IPC is proved and as such the appellant be released on the period of sentence already undergone. 7. Dr. 7. Dr. Pravin Mishra (PW 6) has stated that on 23.5.1997 at about 8:00 a.m. he had examined the dead body of deceased Mukesh aged about 19 years and the following injuries caused by the sharp edged weapon before his death were found his body: (1) Incised wound on left illac creat 5 x 3 cm. bone deep. AP direction clot present. (2) Incised wound on left thigh 20 cm. below ant, sup iliac spine, two in number side by side each measuring 3 x 1 cm. from each other. (3) Stab wound on lateral aspect of thigh 20 cm. below iliac crest 2 x 1/4th inverted triangle shape, muscle deep 5 cm. (4) Stab wound 8th res left side chest 10 cm. from mid line. Triangle shape 2 x 1/4th cm. stomach. 8. Dr. Pravin Mishra (PW 6) has further stated that on 22.5.1997 he had also examined Devkaran (PW 1) aged about 27 years and found the stab wound on his left thigh measuring 1.5 cm. x 1 cm. deep which had out the muscels and this injury was simple in nature which was caused within 24 hours by sharp edged weapon. 9. Consequently from the statement of Dr. Pravin Mishra (PW 6), it is clear that the death of Mukesh was homicidal in nature and it was caused on account of four injuries on his body by sharp edged weapon. It is further proved that Devkaran (PW 1) was also having the injury caused by sharp edged weapon on his left thigh. 10. Devkaran (PW 1) has stated that on 22.5.1997 at about 8: 15 p.m. the accused came on Kalali near bus stand and he started beating Nitesh and Mahendra Singh (PW 2) and the accused was told not to cause the hurt by Mukcsh. Dcvkaran (PW 1) has further stated that accused became angry and he started inflicting the injuries on Mukesh on his abdomen, chest and the thigh. Devkaran (PW 1) has testified that when he intervened to save his cousin Mukesh, the accused also gave a knife blow on his left thigh. That Mukesh was taken in the tractor to the hospital. Devkaran (PW 1) has further stated that he went to the police station immediately on 22.5.1997 and lodged the report Ex. P-l and thereafter he was medically examined in the Primary Health Centre. 11. That Mukesh was taken in the tractor to the hospital. Devkaran (PW 1) has further stated that he went to the police station immediately on 22.5.1997 and lodged the report Ex. P-l and thereafter he was medically examined in the Primary Health Centre. 11. The accused has cross-examined Devkaran (PW 1) but not a single contradiction has come in his statement from his previous statement recorded under section 161 of the Code of Criminal Procedure. There is only one contradiction marked B to B in FIR (Ex. P-1) which is minor in nature and it is not related to the actual incident. 12. From the statement of Dr. Pravin Mishra (PW 6), it is clear that Devkaran (PW 1) received the injury from the knife on his left thigh. The FIR (Ex. P-l) was lodged on 22.5.1997 at about 20: 10 i.e. just within 30 minutes after the incident. The distance of the police station from the place of incident was only 1/2 km. There is total consistency in the story of the incident narrated by eye-witness Devkaran (PW 1) and the story detailed in the FIR (Ex. P-1). Such prompt FIR is valuable piece of evidence because it is not possible to concoct or tell the false story by injured witness in such a prompt report recorded soon after the incident. Devkaran (PW 1) was not having any enmity with the accused. The statements of Devkaran (PW 1) are natural and trustworthy. 13. The eye witnesses Mahendra Singh (PW 2) and Bhimsingh (PW 3) have stated that on 22.5.1997 when they were going in tractor in the marriage of Rajesh, near the bus stand of Sonkutch the accused took Mahendra Singh inside the Kalali and started beating him. Mahendra Singh (PW 2) has further stated that Mukesh intervened the accused became angry and he has inflicted the knife blow on the abdomen, chest and the thigh of Mukesh. He has further stated that the accused has stated that Mukesh will not survive. In a along and searching cross-examination of Mahendra Singh (PW 2) and Bhimsingh (PW 3), not a single contradiction between the eye-witnesses, Devkaran (PW 1), Mahendra Singh (PW 2) and Bhimsingh (PW 3) were elicited. Mahendra Singh (PW 2) and Bhimsingh (PW 3) have not contradicted their previous police statements Ex. D-l and D-2 respectively on any material particular. In a along and searching cross-examination of Mahendra Singh (PW 2) and Bhimsingh (PW 3), not a single contradiction between the eye-witnesses, Devkaran (PW 1), Mahendra Singh (PW 2) and Bhimsingh (PW 3) were elicited. Mahendra Singh (PW 2) and Bhimsingh (PW 3) have not contradicted their previous police statements Ex. D-l and D-2 respectively on any material particular. The presence of Mahendra Singh (PW 2) and Bhimsingh (PW 3) was natural and it is not alleged that they were the chance witnesses. In the promt lodged FIR by the injured witness, it is mentioned that Mahendra Singh (PW 2) was on the place of the incident and the statements of Mahendra Singh (PW 2) and Bhimsingh (PW 3) have rightly held to be trustworthy by the learned trial Court. 14. Jagbhansingh (PW 4) has stated that on the bus stand of Sonkutch accused Nitesh took Mahendra Singh (PW 2) inside the liquor shop and when the accused and Mahendra Singh (PW 2) were fighting, Mukesh intervened and the accused became angry and he started inflicting the knife blows on Mukesh, Jagbhansingh (PW 4) was declared hostile by the prosecution because he has stated that the injury by the accused to Mukesh was not caused before him and he has learnt later on about the assault by knife by accused to Mukesh. However, the statement of Jagbhansingh (PW 4) about the first part of the incident of accused fighting with Mahendra Singh (PW 2) and intervention of the accused Mukesh is not challenged and as such the statement of Jagbhansingh (PW 4) partly lends supports to the case of the prosecution. The presence of eye witnesses Devkaran (PW 1), Mahendra Singh (PW 2) and Bhimsingh (PW 3) at the time of the alleged incident is also established from the statement of Jagbhansingh (PW 4). Consequently, the learned trial Court has rightly held that the statements of Devkaran (PW 1), Mahendra Singh (PW 2) and Bhimsingh (PW 3) fully proved beyond reasonable doubt that the accused has caused the repeated blows of knife to deceased Mukesh and he has also injured Devkaran (PW 1). 15. Now we will examine whether offence under section 302 and 324, IPC, is proved, Dr. Pravin Mishra (PW 6) has clearly stated that the injuries caused to deceased Mukesh were sufficient in ordinary course of nature to cause his death. 15. Now we will examine whether offence under section 302 and 324, IPC, is proved, Dr. Pravin Mishra (PW 6) has clearly stated that the injuries caused to deceased Mukesh were sufficient in ordinary course of nature to cause his death. Deceased Mukesh has succumbed to the injuries just after the incident. The injuries to deceased Mukesh were caused on the vital part and there were four injuries. The accused also gave the injury by knife to Devkaran (PW 1) when he made an attempt to intervene and save the deceased. The accused was armed with deadly weapon, i.e., knife and without any grave provocation, repeated deadly injuries were caused to the deceased. 16. The learned counsel for appellant has relied in a case of Manke Ram v. State of Haryana [11(2003) CCR 61 (SC)] and Addha v. State of Madhya Pradesh [2001 SAR (Criminal) 936 (SC)]. But in these citations it is observed that if quarrel is sudden and no deliberate intention to cause death of the deceased exist, then the offence will fall under section 304II IPC. The aforesaid observation in the citations are not applicable in this case on account of the vital circumstances existing against the accused that he has deliberately caused the injuries by knife on the vital part with an intention to cause his death. The learned trial Court has rightly convicted the accused for the offence punishable under sections 302 and 324, IPC. 17. The appeal is without merit and it is hereby dismissed. ..................