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2009 DIGILAW 376 (MP)

JITENDRA s/o SURESH v. STATE OF M. P.

2009-03-24

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. The appellants have lodged their grievance by filing this Appeal against their conviction and sentence passed by learned VI Addl. Sessions Judge, Indore in ST No. 94/1995 judgment and finding dated 8-10-1999, whereby appellant Jitendra was convicted under sections 302, 324, 323 of the Indian Penal Code and appellant Sunil was convicted under sections 302/34, 324/34 and 323/34 of the Indian Penal Code and sentenced each to undergo RI for life with fine of Rs.1000/-, six months RI and three months RI in respective counts to each appellant. In default of payment of fine, each appellant shall undergo additional RI of four months. 2. According to the prosecution case, on 9-6-1994, in the night at about 8.00 pm Mohini (PW.12), Prerana (PW.13) and deceased Kalicharan were sitting in front of their house. At that moment, their neighbour Kavita (PW.2) came to them and told them that her son Sheru (PW.1) was bitten by dog. Appellant No. 1 Jitendra overheard this talk and started filthy abuses in the name of their mother and sister and also told them that they were saying him dog. Appellant Jitendra rushed towards them having knife followed by his brother, appellant No.2 Sunil. Both the appellants surrounded Kalicharan and assaulted him by knife, causing several injuries on chest and different parts of the body. Prerana (PW.l3) tried to save Kalicharan, but she too was also caused injury by knife on her abdomen and leg. Mohini (PW.12) was also assaulted by knife on her hips. Incident was witnessed by Arun (PW.4), Baliram Deshmukh (PW.3). Kalicharan was taken to the police station by Mohini and Prerana and report (Ex.P. 19) was lodged by Mohini in the same night at 8.00 pm in police station, Sadar Bazar, Indore. All the three injured were sent to M.Y. Hospital for medical examination. Kalicharan, on examination, was declared dead. Dr. K. K. Verma (PW.9) examined witness Mohini and issued MLC report (Kx.P.13) whereas witness Prerana was examined by Dr. Vijay Agrawal. Post-mortem was conducted by Dr. Surendra Dube (PW.10) and post-mortem report is Ex.P.14. The inquest report (Ex.P.10) was prepared by Investigating Officer Jitendrasingh Rathore (PW.15). Blood stained earth, controlled earth, blood stained clothes of deceased were also seized by the investigating officer. The appellants were arrested and on the basis of disclosure statement (Ex.P.8), knife was seized from appellant No. 1 Jitendra. Dr. Surendra Dube (PW.10) and post-mortem report is Ex.P.14. The inquest report (Ex.P.10) was prepared by Investigating Officer Jitendrasingh Rathore (PW.15). Blood stained earth, controlled earth, blood stained clothes of deceased were also seized by the investigating officer. The appellants were arrested and on the basis of disclosure statement (Ex.P.8), knife was seized from appellant No. 1 Jitendra. Dr. Surendra Dubey (PW.10), after examination of knife, gave opinion (Ex.P.15) that injuries to deceased and injured witnesses could be caused by the said knife, Seized articles were sent to FSL. and its report is Ex.P.17 and Ex.P.18 is the report by serologist. On due investigation, charge-sheet was filed against the appellants for commission of offence under sections 294, 302, 324 read with 34 of the Indian Penal Code. 3. The appellants denied the charges and pleaded their false implication on account of previous ill-will. Appellant Jitendra has stated that on 9-6-1994 Kalicharan and Prerana in the night at 7.00 pm abused his sister Sunita on which his brother Sunil went to admonish them, at that juncture Kalicharan caused injury by Gupti on his thigh and when they tried to save their sister, he was assaulted by lathi on his head by witness Prerana for which they had also lodged the report. Appellants have not examined any witness in defence and also not filed any document in their favour. Learned trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced to the appellants as mentioned hereinabove. 4. Learned counsel for appellants has submitted that incident occurred all of a sudden on account on trivial issue and misunderstanding in which in a heat of passion, appellant No. 1 Jitendra caused injuries to deceased and witnesses. The case of appellant No. 1 Jitendra would fall under section 304-I of the Indian Penal Code because he had not caused injuries with intention to commit murder. It is also submitted that conviction of appellant No. 2 Sunil is not sustainable with the aid of section 34 of the Indian Penal Code. 5. On the other hand, learned counsel for State has supported the impugned judgment and finding arrived at by the learned trial Court and also submitted that appellant No. 1 Jitendra has been rightly convicted under section 302 of the Indian Penal Code, he assaulted the deceased with premeditation by knife and caused several injuries on vital parts of the body. On the other hand, learned counsel for State has supported the impugned judgment and finding arrived at by the learned trial Court and also submitted that appellant No. 1 Jitendra has been rightly convicted under section 302 of the Indian Penal Code, he assaulted the deceased with premeditation by knife and caused several injuries on vital parts of the body. In total he caused seven external injuries which damaged left lung and left ventricle, part of the heart. The dimension of the stab wounds Numbers two to 7 as described by Dr. Sunil Dube (PW.10) are quite deep showing that same blows were given with full force. 6. Having heard the learned counsel for parties and after perusing the entire record, we gathered that conviction is based on eye witness account of Mohini (PW. 12), injured witness, who lodged the report (Ex.P.19) without any delay and second eye witness Prerana (PW.13). She was also injured. Other eye witnesses Kavita (PW.2), Baliram (PW.3), Arun Kumar (PW.4), turned hostile. It is also clear from the spot map (Ex.P.7-B) as well as on the basis of the statement of Jitendrasingh Rathore (PW.15), that the incident occurred at the door of the complainant party. There is no evidence on record about any previous enmity between both the parties who were neighbour and it appears that when Kavita (PW.2) told Mohini that his son was bitten by dog, the same was overheard by appellant No. 1 Jitendra and he understood that he was being abused by saying dog to him by Mohini and he reached with a knife. The statement of Mohini (PW.12) and Prerana (PW.13) are very clear that appellant No. 1 Jitendra caused several knife blows to deceased and when they tried to save, they too were also assaulted by knife. The post-mortem report (Ex.P.14) as well as statement of Dr. Surendra Dubey (PW.10) and statement of Dr. K. K. Verma (PW.9) who proved MLC report (Ex.P.13) of Mohini (PW.12) are fully supporting the version of eye witnesses Mohini and Prerana. The medical evidence is showing that appellant Jitendra caused as many as six stab wounds with full force and one incised wound, in total, he caused seven injuries to deceased and two injuries by sharp edged weapon to Mohini. Prerana too was also assaulted. Her medical report was not got proved for the reason best known to the prosecution. The medical evidence is showing that appellant Jitendra caused as many as six stab wounds with full force and one incised wound, in total, he caused seven injuries to deceased and two injuries by sharp edged weapon to Mohini. Prerana too was also assaulted. Her medical report was not got proved for the reason best known to the prosecution. On behalf of appellants, neither FIR was filed nor their medical report were filed. Appellants had also not sustained any injury. They have not examined their sister Sunita who sustained injuries according to statement of Jitendra in the same incident. There is no evidence on record to establish that in the same incident in which deceased and the witnesses sustained injuries, sister of appellants also sustained injuries and for the same, FIR was lodged, therefore, we do not find any substance in the defence of appellant Jitendra. 7. It is true that incident occurred all of a sudden on the basis of misunderstanding by appellant No. 1 Jitendra but the way in which he caused the injuries; as many as seven in number on vital parts of the body of the deceased, causing damage to several internal organs of heart, lung and abdomen, his case is fully covered by section 300 Clause 1 of the Indian Penal Code, but conviction of the appellant No.2 Sunil with the aid of section 34 of the Indian Penal Code is not made out because there is no evidence on record that he had pre-meeting of mind, premeditation and pre-plan with appellant No. 1 Jitendra for commission of murder of deceased Kalicharan and causing injuries to Mohini and Prerana. There is also no evidence on record that appellant No.2 Sunil having common intention to commit murder, acted in furtherance of the said common intention with appellant No. l Jitendra. There is also no dependable evidence on record to establish that appellant No. 2 Sunil in any way facilitated appellant No. 1 Jitendra for causing any injury to deceased Kalicharan and injured eye witnesses. He was not even armed with any kind of weapon and if he was present on or near the scene of occurrence his presence could be natural after hearing the clamour of quarrel because he was residing just one house after the house of the complainant party where the incident occurred. He was not even armed with any kind of weapon and if he was present on or near the scene of occurrence his presence could be natural after hearing the clamour of quarrel because he was residing just one house after the house of the complainant party where the incident occurred. See Prakash vs. State of M.P., (2006) 13 SCC 508, Bhagwan Bux Singh and another vs. State of UP, AIR 1978 SC 34 . 8. The case of appellant No. l Jitendra is not at all covered by provision of Exception 4 of section 300 of the Indian Penal Code which reads as under :- "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner". 9. Accused is required to establish five ingredients for proving his case under Clause 4 of Exception 300 of the Indian Penal Code i.e. (1) he was not having premeditation (2) quarrel occurred all of a sudden (3) in a heat of passion (4) in a sudden fight he caused injuries (5) without taking undue advantage or he did not act in a cruel or unusual manner. In the instant case, seven injuries were caused by appellant No. 1 Jitendra by dangerous weapon like knife and looking to the dimension of the injuries, part of the body of the deceased, damage to the internal organ, it can be discern easily that he took undue advantage and also acted in a cruel manner. Though incident occurred all of a sudden but there was no sudden quarrel and also there was no sudden fight between both the parties. The manner in which appellant No. 1 Jitendra had acted for causing injury, it can be said that he developed intention to commit murder of deceased on the spot. In this view of the matter, we do not find any force in the argument of the learned counsel for appellants in favour of appellant No. 1 Jitendra that his case would fall under section 304-I of the Indian Penal Code as defined in Exception 4 of section 300 of the Indian Penal Code. In this view of the matter, we do not find any force in the argument of the learned counsel for appellants in favour of appellant No. 1 Jitendra that his case would fall under section 304-I of the Indian Penal Code as defined in Exception 4 of section 300 of the Indian Penal Code. See Mahesh Balmiki vs. State of MP, (2000) 1 SCC 319 , Kikar Singh vs. State of Rajasthan, (1993) 4 SCC 238 and Buddu Khan vs. State of Uttarakhand, JT (2009) 3 SC 495. 10. In the result, this appeal is allowed in part. Conviction and sentence of the appellant No. 1 Jitendra are hereby affirmed. Appellant No. 1 Jitendra is on bail, He is directed to surrender before the trial Court on 22nd May, 2009 for undergoing the remainder part of jail sentence. On failure of appellant No. 1 Jitendra to surrender before the trial Court on a given date, the learned trial Court is directed to take suitable legal action against him as well as surety under intimation to this Court. Conviction and sentence of appellant No. 2 Sunil are hereby set aside. Appellant No. 2 Sunil is on bail. His bail bond and surety bond stand discharged. Office is directed to send copy of this judgment along with the record to the trial Court immediately.