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Madhya Pradesh High Court · body

2006 DIGILAW 1014 (MP)

Saniya v. State of M. P.

2006-08-24

S.L.KOCHAR, W.A.SHAH

body2006
JUDGMENT Kochar, J. -- 1. By this appeal, the appellant seeks to challenge his conviction under sections 302 and 324 of the Indian Penal Code, and consequent sentences of imprisonment for life and RI for three years respectively vide judgment dated 7.5.1999 passed in Sessions Trial No. 44/98 by the learned 1st Additional Sessions Judge, Alirajpur District Jhabua. 2. Briefly stated, the prosecution case as unfolded before the trial Court is that on 12.10.1997, in the night at 1:00 A.M. at Police Station, Alirajpur injured Bhupendrasingh lodged the report Ex. P-7 to the effect that he was a resident of village Dhanpur Patel Falia and studied up to tenth standard and also carries on agricultural operation. On previous day in the evening he and his wife were sleeping inside the house after taking night meals. At that juncture at about 11:00 P.M. his aunt Idli, came to his house and informed that the appellant was doing nothing and wandering here and there, for which he was warned by his father Chhendiya (PW 3) as to how he would meet his expenses and some verbal altercation took place between them, at which the appellant shot an arrow which pierced at the left side ribs of PW 3 Chhendiya, father of the appellant. After hearing this from the aunt Idli, Bhupendrasingh and Idli reached at the place where Chhendiya (PW 3) was lying near the hutment of Chhagan Bhilala. He tried to take out the arrow from the body of Chhendiya. Although he took out the wooden part of the arrow but the blade thereof remained embeded. At that time, the appellant reached over there having bow and arrow, abused him filthily and while uttering that the deceased was trying to become a robust and as to why he had taken out the arrow from the body of his father he shot an arrow which pierced at the right side of chest of Bhupendrasingh and the blade of arrow remained embeded in the chest of the deceased. Thereafter the appellant fled away from the scene of occurrence. The incident was witnessed by his daughter Meera, Karma, one Shankar, aunt Idli and brother Chhendiya (PW3). On the spot, his another brother Doomsingh and Walibai (PW 5) also reached, to whom the deceased disclosed about the incident. The deceased was taken to the Police Station by Sarpanch of the village in his jeep. The incident was witnessed by his daughter Meera, Karma, one Shankar, aunt Idli and brother Chhendiya (PW3). On the spot, his another brother Doomsingh and Walibai (PW 5) also reached, to whom the deceased disclosed about the incident. The deceased was taken to the Police Station by Sarpanch of the village in his jeep. He was accompanied by his brother Doomsingh (PW 8) and other witnesses Meera (PW 6), Karmabai (PW 7) and brother PW 3 Chhendiya. Bhupendrasingh lodged the report Ex. P-7 which was recorded by PW 10 Virendrasingh Sub-Inspector. Bhupendrasingh was sent to the hospital where he was examined by PW 11 Dr. K.C. Gupta. PW 3 Chhendiya was also examined by this doctor. The MLC report of the deceased is Ex. P-22 and that of Chhendiya is Ex. P-20. Dr. Gupta recorded the Dying Declaration Ex. P-23. Thereafter the Dying Declaration Ex. P-4 was also recorded by PW 9 Executive Magistrate Y.K. Dhoka. The deceased remained hospitalized for about seven days and succumbed to the injury on 19.10.1997. Postmortem was performed by PW 4 Dr. N.S. Dabur. The postmortem report is Ex. P-6. After due investigation the appellant was charge-sheeted for commission of the offences punishable under sections 302 and 307 of the IPC. 3. The appellant abjured his guilt. According to him, in the night of incident, he was sleeping and his father was assaulted by some thieves. His further defence was that his uncle Doomsingh grabbed his agricultural lands and concocted a false case with the help of the police. His uncle Doomsingh did not allow his wife and children to live in the village and he further contended that the deceased Bhupendrasingh was his brother and there was no reason to kill him. He examined Vestibai (DW 1) in his defence. The learned trial Court after examining the witnesses of the prosecution and defence and hearing both the parties found the appellant guilty of the offences charged, convicted and sentenced his as indicated herein-above. 4. He examined Vestibai (DW 1) in his defence. The learned trial Court after examining the witnesses of the prosecution and defence and hearing both the parties found the appellant guilty of the offences charged, convicted and sentenced his as indicated herein-above. 4. Learned counsel for the appellant at the outset advanced the only argument that even if complete prosecution case is accepted, the offence at the most would travel only under section 304 (Part II) of the IPC against the appellant, because the appellant was not having any enmity or bad blood with the deceased Bhupendrasingh and appellant got annoyed when Bhupendrasingh intervened in the dispute between the appellant and his father PW 3 Chhendiya. 5. On the other hand, learned State counsel Shri G. Desai Dy. Advocate General has submitted that the appellant caused arrow shot injury to his father Chhendiya (PW 3) when his father was admonishing him as to why he was wandering here and there and was not earning any thing and his father also asked him as to how he would meet his expenses. After causing arrow shot injury to his father, the appellant was not feeling repentance and when deceased Bhupendrasingh being brother of Chhendiya and uncle of the appellant, reached near Chhendiya and tried to take out the arrow, the appellant expressed his annoyance as to why the deceased took out the arrow or tried to take out the arrow and with utterances that the deceased behaved like an important and robust person and shot arrow piercing in the right side of chest of deceased Bhupendrasingh because of which, during the course of treatment in the hospital, he breathed his last. Learned counsel submitted that looking to the total episode, it cannot be said that the appellant did not intend to commit murder of Bhupendrasingh and he shot arrow simplicitor without any intention. 6. Having heard learned counsel for the parties and after perusing the record, it is evident that the FIR Ex. P-7 lodged by the deceased, his Dying Declaration Ex. P-4, recorded by the Executive Magistrate PW 9, another Dying Declaration Ex. P-23 recorded by Dr. K.c. Gupta as well as Ex. 6. Having heard learned counsel for the parties and after perusing the record, it is evident that the FIR Ex. P-7 lodged by the deceased, his Dying Declaration Ex. P-4, recorded by the Executive Magistrate PW 9, another Dying Declaration Ex. P-23 recorded by Dr. K.c. Gupta as well as Ex. P-19 statement recorded by the police, all having been considered as Dying Declarations of the deceased, are admissible under section 32 of the Evidence Act, because in all these statements the deceased had given the statement with regard to the cause of his death. All the four Dying Declarations are in one line. The deceased has named the appellant as the author of the injury and also narrated the incident as mentioned hereinabove. Apart from these Dying Declarations, the same are being duly corroborated by oral Dying Declaration made by the deceased naming the appellant before PW 5, his wife Walibai and PW 8 Dhansya. The prosecution evidence against the appellant is not ending only upto the written and oral Dying Declarations, but also consisting testimony of eye witnesses PW 6 Meerabai and PW 7 Karmabai. We have gone through the statements of both these witnesses and do not find any thing contrary to the Dying Declarations. Therefore, so far as the authorship of the injuries caused to the deceased by the appellant is concerned, there is overwhelming evidence and we uphold the finding of the trial Court in this regard. 7. We have given our anxious consideration to the only point argued by the learned counsel for the appellant that even if the complete prosecution case is accepted, the offence would not travel beyond section 304 (Part IT) of the IPC. On consideration, we are unable to accept this proposition, in view of the fact that the appellant first shot arrow and caused injury. Thereafter, the deceased Bhupendrasingh took out the arrow from the body of his father and tried to assist him. At that juncture the appellant expressed his unhappiness with the act and demeanour of the deceased and gave arrow shot causing injury on his chest which ultimately resulted into death in the hospital. The deceased died after seven days but, the same will not make any difference so far as the intention of the appellant is concerned. The appellant was very well aware of the use and consequence of bow and arrow. The deceased died after seven days but, the same will not make any difference so far as the intention of the appellant is concerned. The appellant was very well aware of the use and consequence of bow and arrow. He belongs to a tribal community and shot arrow from a very close range which pierced through and through in the right lung. It also damaged the right side of liver. The thorasic cavity was full of blood and both the chambers of heart were empty. The depth of the injury is showing the force of arrow shot. Therefore, the offence under section 302, IPC is clearly made out in the facts and circumstances of the case. 8. Consequently, this appeal fails and is hereby dismissed. The judgment of conviction and sentences recorded by the learned trial Court is hereby affirmed.