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2008 DIGILAW 454 (MP)

Suresh S/O Ganpat Balai v. State Of M. P.

2008-03-24

ARUN MISHRA, S.S.DWIVEDI

body2008
JUDGMENT : S. S. DWIVEDI, J. The appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973, feeling aggrieved by the judgment of conviction and order of sentence dated 30-4-2003 passed by the Sessions Judge, East Nimar, Khandwa in ST No. 24/2002, whereby the appellant/accused has been found guilty under section 302 of Indian Penal Code and sentenced to imprisonment for life. 2. Briefly stated facts of the case are that on 10-12-2001 at village Gudi Kheda, deceased Mansharam went to purchase certain home articles. When he was standing at betel shop of one Sunder Seth, at that time, the appellant/accused Suresh came there and all of a sudden caused the injury to the deceased Mansharam by means of a scissor and thereby caused the injury on the chest of the deceased Mansharam. Mansharam in the injured condition went to the police station and lodged the first information report, on which basis, the police had registered a case under section 307 of Indian Penal Code and sent the injured Mansharam for necessary medical treatment and examination; where the injured Mansharam died on the same day. The police had taken cognizance under section 302 of Indian Penal Code also. Prepared the inquest Panchanama of the dead body of the deceased Mansharam and issued the memo for post-mortem examination of the dead body. The Medical officer Dr. S. K. Laad (PW-2) performed the post-mortem and found two stab injuries on the chest caused by sharp edged weapon and opined that deceased Mansharam died due to shock which is the result of excessive haemorrhage due to the injuries inflicted on the vital part lungs and duration of death is about 12 to 24 hours and PM report Ex.P/2 has been proved. During investigation, police arrested the appellant/ accused and seized the scissor from the possession of the appellant/accused and after due investigation, charge-sheet has been filed. 3. The appellant/accused abjured the guilt and his defence is of false implication in this case. 4. Learned trial Court after due appreciation of the entire evidence on record held the appellant/ accused guilty for the offence punishable under section 302 of Indian Penal Code and sentenced him as stated hereinabove; feeling aggrieved by which the appellant/accused has preferred this appeal. 5. Having heard learned counsel for the appellant as well as the Dy. 4. Learned trial Court after due appreciation of the entire evidence on record held the appellant/ accused guilty for the offence punishable under section 302 of Indian Penal Code and sentenced him as stated hereinabove; feeling aggrieved by which the appellant/accused has preferred this appeal. 5. Having heard learned counsel for the appellant as well as the Dy. Advocate General appearing on behalf of the State and perused the record. 6. It is submitted by learned counsel for the appellant that the material eye witnesses namely Trilok (PW-1), Mangilal (PW-3), Shivlal (PW-4) and Sitaram (PW-5) have not supported the prosecution story and have been declared hostile by the prosecution. Thus, the involvement of the appellant/accused in this incident appears to be doubtful and the learned trial Court has wrongly held the appellant/accused guilty for the aforesaid offence. In alternative, it is further submitted that as stated in the FIR by the deceased which is found to be dying declaration of the deceased Mansharam, he only stated that single blow of scissor was inflicted by the appellant/accused. This incident took place all of a sudden without any pre-intention of causing death of the deceased Mansharam and in view of the aforesaid circumstances, the appellant/accused at the most may be held guilty for the offence under section 304 Part 2 of Indian Penal Code and the appellant/accused is in jail since last more than 6 years, therefore, prayed for just and proper sentence to the appellant/accused for the offence under section 304 Part-2 of Indian Penal Code only. 7. In reply, the learned Dy. Advocate General supported the impugned judgment and submitted that trial Court has rightly believed on the FIR lodged by the deceased which is after the death of the deceased Mansharam may be read as dying declaration of the deceased. Similarly, other witnesses Munna (PW-6) and Kamal (PW-7) have also supported the prosecution story that it is the appellant/ accused who had caused the aforesaid injury to the deceased Mansharam and thus, the trial Court rightly held the appellant/accused guilty for the offence under section 302 of Indian Penal Code and no substantial grounds are available for any interference in the impugned judgment of conviction and sentence, hence prayed for dismissal of the appeal. 8. 8. To bring home the charge as levelled against the appellant/accused, the prosecution had examined Munna (PW-6), the eye witness of the incident, who clearly stated that it is the appellant/accused Suresh who had caused the injury on the chest of the deceased Mansharam by means of a scissor, but in the cross-examination in para 9 he stated that he has been informed by the persons standing there that the appellant/accused Suresh had caused the aforesaid injury to the deceased Mansharam. Second witness Kamal (PW-7) also stated that it is the appellant/accused Suresh who had caused the injury to Mansharam by means of a scissor. This witness has denied the fact that he is a near relative of the deceased Mansharam. Similarly, third witness Asharam (PW-8) stated that his brother Mansharam narrated him that it is the appellant/accused Suresh who had caused the injury to him by means of a scissor. Hence, this witness has also proved the oral dying declaration of the deceased Mansharam. 9. The most material aspect of the case is the first information report Ex.P/8 which is found to be lodged by the injured Mansharam immediately after the incident. This incident took place at 17 hours and FIR has been lodged in the police station at 17.45 hours, wherein the injured Mansharam himself had specifically stated that it is the appellant/accused Suresh, who had caused the aforesaid injury to him by means of a scissor as the appellant/accused was having bad eye on the wife of the appellant/accused for which he had objected. This FIR after the death of the deceased Mansharam can be looked as the dying declaration of the deceased Mansharam and trial Court has rightly believed on this FIR also. 10. Thus, on the basis of the aforesaid evidence on record, the prosecution has fully proved the fact that it is the appellant/accused Suresh who had caused the injury to the deceased Mansharam on the chest by means of a scissor; due to which he died afterwords. 11. Now the question arises whether the act of the appellant/accused comes within the purview of section 299 or 300 of Indian Penal Code. As stated hereinabove, the allegation against the appellant is that he had caused a single injury by means of a scissor which had two blades and by a single blow, two penetrating wounds can be caused. 11. Now the question arises whether the act of the appellant/accused comes within the purview of section 299 or 300 of Indian Penal Code. As stated hereinabove, the allegation against the appellant is that he had caused a single injury by means of a scissor which had two blades and by a single blow, two penetrating wounds can be caused. It is also on record that the appellant/accused had brought this scissor all of a sudden from a betel shop. Therefore, when it is on record that the appellant/ accused was not having this scissor prior to the incident and he had brought it immediately before the incident from a betel shop then also the intention for causing death of the deceased Mansharam cannot be inferred and when single blow has been caused by the appellant/ accused then also certainly it was not his intention to cause the death of the deceased Mansharam. And when the intention of the appellant/accused is not there for causing death of the deceased Mansharam, in such circumstances, this act of the appellant/accused clearly falls within third part of section 299 that "cause death by doing an act with the knowledge that he is likely by such act to cause death." And by this act, he can be held guilty for the offence punishable under second part of section 304 of Indian Penal Code. 12. And for this, reliance can be placed on the decision of the Apex Court in the case of Bunnilal Chaudhary vs. State of Bihar, reported in AIR 2006 SC 2531 , wherein it is held that "the appellant/ accused has caused only single injury and no attempt was made to repeat the injury, therefore, the act of the appellant/accused comes within the third part of section 299 of Indian Penal Code which is punishable under second part of section 304 of Indian Penal Code. 13. In view of the aforesaid facts of the present case, the conviction of the appellant under section 302, Indian Penal Code is found to be erroneous and he can be held guilty for the aforesaid act punishable under section 304 Part 2 of Indian Penal Code instead of section 302 of Indian Penal Code. 14. Resultantly, the appeal preferred by the appellant/accused is partly allowed. 14. Resultantly, the appeal preferred by the appellant/accused is partly allowed. His conviction and sentence of life imprisonment passed under section 302 of Indian Penal Code are set-aside and instead thereof, the appellant/accused is held guilty for the offence punishable under section 304 Part-2 of Indian Penal Code. The appellant/accused is in jail since 13-12-2001 till today i.e. for more than 6 years and four months. Looking to the act of the appellant/accused, in our considered opinion, the proper sentence would be six years and five months which appears to be just and reasonable. Therefore, the appellant/accused is sentenced to six years and five months RI with fine of Rs. 15,000/- (Rs. Fifteen thousand); in default of payment of fine, he will further suffer imprisonment for three years. 15. Out of the realized fine amount, the amount of Rs. 14,000/- (Rs. fourteen thousand) be given as compensation to the legal representative of the deceased Mansharam. 16. With this modification in the conviction and sentence, the appeal stands disposed of.