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Madhya Pradesh High Court · body

2007 DIGILAW 815 (MP)

Santosh v. State of M. P.

2007-07-31

S.K.KULSHRESTHA, W.A.SHAH

body2007
JUDGMENT Kulshreshtha, J. -- 1. The appellants have preferred this appeal against the legality and propriety of the judgment dated 30th April, 1998 of the learned XIII Additional Sessions Judge, Indore, in Sessions Trial No.421 1995 whereby appellant Santosh has been convicted under section 302 of the Indian Penal Code as also under section 323 read with section 34 of the Indian Penal Code, and, appellant Suresh under section 302/34 of the Indian Penal Code and section 323 thereof. The appellants have been awarded sentence of imprisonment for life and fine of Rs.1,000/- for the offence of murder and six months' rigorous imprisonment for causing injuries to Rekha (PW1) and Kamlabai (PW2). 2. According to the case of the prosecution, Keshar Singh was residing in village Rau in Badi Mohalla and was engaged in the work of loader in Transport Nagar. On 4.9.1994, at about 11:00 p.m., while Keshar Singh (deceased) was in his house and sleeping on the floor, accused Santosh started hurling abuses from outside his house stating that he was poisoning the ears of the persons from the locality and his relatives against him. Deceased Keshar Singh asked him to behave and not to abuse. Santosh then took out a knife from the hip pocket of his trousers and dealt a blow thereof on the back of Keshar Singh, with the result Keshar Singh started bleeding. Kamlabai (PW2), wife of Keshar Singh, and Rekha (PW1), daughter of Keshar Singh, tried to intervene, but accused Suresh, brother of accused Santosh, belaboured them with an iron rod and caused them injuries. It is alleged that the appellants also intimidated the complainant to refrain from making report else they would be killed. The incident was also witnessed by Chhogalal (PW5) and Kaveribai (PW9). Deceased was taken to the police station by Kamlabai (PW2) and Rekha (PW 1), where the deceased lodged FIR (Ex.P-21) at 11:35 p.m., which was recorded by ASI Chhotelal (PW 13). On the basis of the said report an offence under sections 294, 323 r/w sections 34 and 506 of the IPC was registered. 3. The injured were sent for medical examination. As per Ex.P-11, injury report of Rekha, she had received a swelling on the left forearm 3 cm x 2 cm and another swelling on the left frontal region 2 cm x 2 cm caused by hard and blunt object. 3. The injured were sent for medical examination. As per Ex.P-11, injury report of Rekha, she had received a swelling on the left forearm 3 cm x 2 cm and another swelling on the left frontal region 2 cm x 2 cm caused by hard and blunt object. The report (Ex.P-10) of Kamlabai (PW2) indicated that she had sustained a swelling on the lateral aspect of right thigh measuring 6 cm x 2 cm, caused by hard and blunt object. Since the deceased was alive for a pretty long time after the incident, he was also initially examined by the Doctor and as per the injury report (Ex.P-12), he had sustained an incised wound on the left loin posterior 2-1/2" x 114" x ? and he was referred to RSO (Surgery). 4. It is not disputed that deceased was hospitalised thereafter from 4.9.1994 to 12.9.1994 and as per the evidence of Dr. Satish Shukla (PW 12), he had left the hospital without being discharged. However, on account of certain complications, he was readmitted in the hospital on 4.10.1994 and he died on 10.10.1994. 5. On receiving the intimation about the death of victim Keshar Singh, merg EX.P-19 was registered by constable Saed Khan (PW11). The body was sent for post-mortem examination and the autopsy was conducted by Dr. P.C. Jain (PW4). Dr. Jain prepared autopsy report (Ex.P-2) in which he recorded the injuries of the deceased as extracted hereinbelow: (1) fresh whitish scar size 2 cm x 0.5 cm present on the left lower part of chest region in post auxillary fold plane, vertical oblique in direction; (2) Surgical stitched wound 1 stitch in situ with catheter from the wound size 2 cm x 0.5 cm x whole thickness of abdominal wall in anterior auxillary fold plane. In the opinion of the Doctor, death was due to cardio respiratory failure as a result of septicaemia. 6. ASI M.M. Nagar (PW10), in further investigation, held inquest on the body of the deceased and prepared inquest report EX.P-15. He also sent letter Ex.P-16, for clarification of the injuries of the deceased. The dead body wa3 handed over to Dinesh. 7. In further investigation, constable Mastersingh (PW6) prepared spot map (Ex.P-1). On the basis of the information furnished by the appellant Suresh, recorded in Ex.P-4, an iron rod was seized vide Panchnama (Ex.P-6), while from accused Santosh a knife was seized, vide EX.P-5. The dead body wa3 handed over to Dinesh. 7. In further investigation, constable Mastersingh (PW6) prepared spot map (Ex.P-1). On the basis of the information furnished by the appellant Suresh, recorded in Ex.P-4, an iron rod was seized vide Panchnama (Ex.P-6), while from accused Santosh a knife was seized, vide EX.P-5. Statements of witnesses acquainted with the facts of the case were recorded and after completion of the investigation, charge-sheet was filed against the appellants. 8. The appellants pleaded that they were not guilty. In their statement u/s 313 of CrPC, they took the plea that they were innocent. They also examined Bhuralal (DW1) and Badri (DW2) in their defence. Notwithstanding the above plea of the appellants, the learned Judge found the appellants guilty and sentenced them as hereinabove stated. 9. Though the counsel for the appellants is not present, in all fairness learned Deputy AG has taken us through the statement of all the witnesses and the documents on record to acquaint us with both the facets, the case of the prosecution and the case of the defence. 10. The prosecution examined 13 witnesses out of which 5 witnesses were examined as eye-witnesses. However, from amongst the eyewitnesses, Chhogalal (PW5), Shyam (PW7) and Kaveribai (PW9), did not support the case of the prosecution and were declared hostile. Mukesh (PW3), son of the deceased, though examined by the prosecution as an eye-witness, his statement has not been acted upon by the trial Court as the trial Court has disbelieved him. The other evidence is of Dr. M.S. Mandloi (PW8) who gave the medical report of Rekha (PW1) and Kamlabai (PW2), Dr. Santosh Kumar Shukla (PW12), under whose care the deceased was admitted in the hospital and the autopsy report EX.P-2 was given by Dr. P.C. Jain (PW4). Since other witnesses are formal and nothing turns on their testimony, reference to the evidence of the said witnesses would be superfluous. 11. As hereinabove discussed, after a large number of witnesses turned hostile as aforesaid, the ocular account of the incident has been rendered only by Rekha (PW1), daughter of the deceased and Kamlabai (PW2), wife of the deceased. Rekha (PW 1) deposed that both the accused, who are brothers, live in the neighborhood. 11. As hereinabove discussed, after a large number of witnesses turned hostile as aforesaid, the ocular account of the incident has been rendered only by Rekha (PW1), daughter of the deceased and Kamlabai (PW2), wife of the deceased. Rekha (PW 1) deposed that both the accused, who are brothers, live in the neighborhood. On the date of the incident, at about 11 :00 p.m., while she was in her house, Santosh started abusing her father from outside the house and when her father asked him to behave and not to abuse, he retorted that since he was maligning his image and scandalising, he would not leave him alive. Immediately thereafter, Santosh took out a knife from the hip pocket of his trousers and stabbed the deceased. When this witness and her mother tried to intervene to save the deceased from further harm, the co-accused Suresh brought an iron rod and rushed at them. Suresh dealt a blow of iron rod over her head and one on her elbow. Another stroke landed on the thigh of her mother. Her father started bleeding profusely and she also started bleeding. Suresh and Santosh then left the place and warned that if they reported the matter to the police, they would face dire consequences. They went to the police station and deceased Keshar Singh reported the matter. Thereafter, they were sent to M. Y. Hospital. Her father was hospitalised for about a month and police had made spot map in her presence. In her cross-examination, Rekha has stated that her father was dealt two blows of knife which is not corroborated by the medical evidence. 12. The evidence of Kamlabai (PW2), widow of the deceased, corroborates Rekha (PW 1). She has also deposed that when Santosh was abusing from outside and stating that he was poisoning the ears of his relatives against him and when the deceased asked him to behave and not to abuse, Santosh took out a knife from his pocket and dealt a blow thereof on the side of the abdomen. When they tried to intervene to save the deceased from further harm, Suresh came with an iron rod and assaulted her and Rekha both. Both these witnesses stand corroborated by their medical report Ex.P-10 and Ex.P-11. 13. When they tried to intervene to save the deceased from further harm, Suresh came with an iron rod and assaulted her and Rekha both. Both these witnesses stand corroborated by their medical report Ex.P-10 and Ex.P-11. 13. Presence of Rekha (PW1) and Kamlabai (PW2) in their house was natural and it is further established by the injuries which they sustained in the same transaction. In the FIR also, lodged by the deceased, the same sequence is mentioned. It is, therefore, necessary to first find out whether Suresh, who participated in the incident later and altogether had a different role, could be punished for the same offence as Santosh with the aid of section 34 of the IPC. It is trite that intention can be gathered from circumstances of a case and it can develop instantaneously at the time of the incident. But when we examine the testimony of Rekha (PW1) and Kamlabai (PW2), in the context of the FIR and the sequence described by them, it is clearly perceptible that initially only Santosh had gone to the house and had started abusing the deceased and when the deceased came out, Santosh had taken out a knife from his pocket and assaulted him. Even if, for the sake of arguments, it is accepted that both the accused had gone to the house together, there is no evidence to suggest that appellant Suresh had any foreknowledge about Santosh having a knife with him, much less its use. In such a situation, when there is no link between the act of Santosh in stabbing the deceased and appellant No.2 Suresh, we are of the considered opinion that Suresh cannot be convicted for the individual act of Santosh in stabbing the deceased Keshar Singh. It is also significant that in her examination-in-chief itself, Kamlabai (PW2) has stated that after Santosh assaulted the deceased, Suresh brought an iron rod and assaulted them. This rules out any doubt about the absence of common intention of the appellant. Suresh is, therefore, acquitted of the charge under sections 302/34 of the IPC. 14. This brings us to the case of Santosh. The evidence of the prosecution is consistent and trustworthy in regard to his participation. This rules out any doubt about the absence of common intention of the appellant. Suresh is, therefore, acquitted of the charge under sections 302/34 of the IPC. 14. This brings us to the case of Santosh. The evidence of the prosecution is consistent and trustworthy in regard to his participation. It has already been stated above that while Santosh started abusing the deceased and accusing him of maligning his image in the neighborhood, when the deceased came out, he whipped out a knife from the hip pocket of his trousers and stabbed him once. The injury report, as already referred to above, shows that the deceased had sustained an incised wound on the left loin posteriorly measuring 2-l/2"x l/4"x? The opinion of the autopsy surgeon Dr. P.C. Jain (PW4) shows that the stab wound had entered the spleenic area. 15. In the context of the injuries found and the opinion expressed by the autopsy surgeon, if the other factors placed on record are noticed, it would be manifest that it was not a case of instantaneous death. Initially deceased Keshar Singh was treated by Dr. Satish Kumar Shukla (PW 12) and as per the injuries recorded in Ex.P-12, he had sustained only an incised wound on left loin posteriorly 2-l/2"x l/4"x? He was hospitalised on 4.9.1994, at 11:00, but without being discharged by the hospital, he had on his own volition left the hospital on 12th September, 1994. It appears that some treatment was administered to him privately, but on finding that it had led to complication, he was readmitted in the hospital on 4.10.1994 and thereafter, he died on 10.10.1994, mainly on account of septicaemia. The core question is as to whether in the facts and circumstances of the case, especially the death which occurred after 1 month and 6 days, it can be said that offence committed by the appellant No.1 was of the description which was punishable u/s 302 of the IPC. We have also to see the attending circumstances to gauge as to what was the intention of the appellant No.1 Santosh in causing the solitary injury on the back of the deceased. 16. It is no doubt true that Santosh was armed with knife and initially he had merely abused the deceased from outside and accused him of maligning his image in the neighbourhood. 16. It is no doubt true that Santosh was armed with knife and initially he had merely abused the deceased from outside and accused him of maligning his image in the neighbourhood. It is only when the deceased came out and asked him not to abuse that on a momentary impulse, he whipped out a knife from his pocket and gave a single blow of knife. This blow was not given in the area of any vital organ such as heart, lung etc., but from the back side of the body. Under these circumstances, it is to be seen whether the act of the accused was voluble of his intention to commit murder. 17. We have already observed that Santosh had caused only one injury and it is not even the case of the prosecution or of Rekha (PW1) and Kamlabai (PW2), that he intended to cause further injury. The intervention of Suresh by causing injuries to the wife and daughter of the deceased and preventing them from interference, gave further opportunity to Santosh to assault the deceased, but despite this opportunity Santosh did not cause any further injury. Under these circumstances, the intention to kill the deceased was not present in the mind of the assailant Santosh. 18. We have further to see whether the appellant No.1 Santosh inflicted the injury with the intention of causing an injury which was likely to cause death. Learned Deputy AG has brought to our notice the decision of the Supreme Court in Dev Raj v. State of Punjab [ AIR 1992 SC 950 ], where the apex Court has observed that when death was not a direct result, but it was on account of the surgery for amputation of the arm, after 1-1/2 month, it could not be said to have any nexus with the injury caused by the accused. Reference has also been made to the decision in Ruli Ram and another v. State of Haryana [ (2002)7 SCC 691 ], to the effect that where the accused did not have knowledge that the deceased was labouring under some ailment and his act accelerated his death, it would be covered by section 299 of the IPC and would be only culpable homicide, not amounting to murder. 19. We have considered the decisions relied upon by the learned counsel. In the case of Devi Raj (supra), the facts were entirely different. 19. We have considered the decisions relied upon by the learned counsel. In the case of Devi Raj (supra), the facts were entirely different. In the said case, there was an intervening circumstance of the surgery for amputation of the arm and death had occurred after month and a half, thus, ruling out any nexus with the act of the accused. In the present case, there is nothing on record to suggest that merely because the deceased left the hospital on 12.9.1994 and was readmitted on 4.10.1994, there was some intervening or supervening circumstance which caused his death, unrelated to the act of the accused. The accused Santosh stabbed the deceased once and as pointed out hereinabove, despite opportunity and the resistance of the wife and daughter of the deceased having been removed, the appellant did not strike again. We are, therefore, of the view that in causing the said solitary injury, Santosh knew that the injury intended by him, was likely to cause death. It is obvious from the act of Santosh that he was carying a knife with him and with the said knife he has caused an injury going to the depth of spleenic area of abdomen Thus, he did intend to cause an injury that was likely to cause death. 20. Section 304 Part I of the IPC provides that whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, ,I or of causing such bodily injury as is likely to cause death. 21. From the evidence on record it is clear that accused Santosh intentionally caused the said injury which was likely to cause death. We are, therefore, of the view that for the said act, Santosh cannot be punished for an offence punishable u/s 302 of the IPC, but only for an offence u/s 304 Part I of the IPC. Since we have already held that there was no common intention, Santosh cannot be punished for the offence u/s 323/34, committed by Suresh. 22. In the result, the conviction of the appellant No.2 Suresh, u/s 302/ 34, is set aside, but his conviction u/s 323 of the IPC, is maintained. Since we have already held that there was no common intention, Santosh cannot be punished for the offence u/s 323/34, committed by Suresh. 22. In the result, the conviction of the appellant No.2 Suresh, u/s 302/ 34, is set aside, but his conviction u/s 323 of the IPC, is maintained. Learned counsel submits that since Suresh has already undergone seven months' in Jail, the six months' sentence awarded to him for the said offence may be converted to the period already undergone. We find that the appellant Suresh had already suffered sufficient incarceration for offence u/s 323 of the IPC and restrict the sentence to the period already undergone. The conviction of the appellant No.1 Santosh u/s 323/34 and the sentence of six months awarded thereunder, is set aside. His conviction u/s 302 and the sentence of imprisonment for life and fine of Rs.l,000/- is also set aside, but he is, instead, convicted u/s 304 Part I of the IPC and sentenced to rigorous imprisonment for seven years and fine of Rs.500/-. Learned counsel for the appellants, who joined the proceedings while this judgment was being dictated, submits that the appellant Santosh has already deposited the fine. It is, therefore, not necessary to award any sentence, in default of payment of fine. 23. With the above modification in the conviction and sentence of the appellants, this appeal is partly allowed. Appellant Santosh s/o Ashram is on bail. He shall now surrender to his bail bonds to serve out the sentence awarded to him.