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2009 DIGILAW 420 (MP)

Prabhutiwa Kumar v. State of M. P.

2009-04-01

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 7th February 2003, passed by IV Additional Sessions Judge, Sagar in Sessions Trial No. 428/01, convicting the appellants under Section 302/34, 341 323/34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 2,000/-, rigorous imprisonment for one year and rigorous imprisonment for six months, on each count, respectively. 2. In short, the facts of the case are that Vilasius David (deceased) was resident of village Shyampura. He was a peon in the convent school. There had been animosity between him and accused Prabhutwa Isai because of the dispute over a house. At about 7.00 a.m. on 13.8.2001, when Vilasius was going to school, accused persons viz. Prabhutwa, Gerad @ Hero and John @ Zero met him on the way and stopped him. They hurled filthy abuses to him and on his objecting to it, all the three assaulted him with sticks. They caused injuries on his head, legs, hands, back and waist. On his raising hue and cry, his father Victor David reached there and tried to rescue him, whereupon, they assaulted to him also. Vilasius @ Ashok, Anjela Ekka, Christina Tiger, Rose Merry and Prakash also reached there and witnessed the incident. On their intervention, accused persons after intimidating him went away. The report of the incident (Ex.P/18) was lodged by Vilasius David himself at 8.30 a.m. at Police Station Cantt. On the report, police registered a case against the accused persons under section 341, 294, 323, 506-B/34 of the Indian Penal Code. 3. Injured Vilasius and his father Victor David were sent for medical examination and treatment to district Hospital, Sagar. Vilasius, however, died at about 12.00 O'clock on the same day due to injuries. Doctor sent the information of his death to police, then a Murg Report No. 57/2001 was registered. Postmortem examination of the body was done by Dr. R.K. Khare, Medical Officer of District Hospital, Sagar. Dr. R.K. Khare vide his postmortem examination report (Ex. P/16) found following injuries on his body: H( 1) A huge contusion on right upper arm and shoulder. (2) A diffused swelling on the right forearm. (3) Lacerated wound l cm x 1/2 cm x bone deep over middle part of right leg. (4) Abrasion 1 cm x 1 cm over left leg. P/16) found following injuries on his body: H( 1) A huge contusion on right upper arm and shoulder. (2) A diffused swelling on the right forearm. (3) Lacerated wound l cm x 1/2 cm x bone deep over middle part of right leg. (4) Abrasion 1 cm x 1 cm over left leg. (5) Lacerated wound 1 cm x 1/2 cm x scalp deep over middle of scalp. (6) Huge contusion over whole left arm all round. (7) Contusion 4 cm x 2 cm over right scapula. (8) Contusion 3 cm x 2 cm over left scapular region. (9) Contusion 4 cm x 2 cm over left infra scapular region. (10) Contusion 3 cm x 2 cm over right thigh. (11) Contusion 2 cm x 2 cm over right knee. (12) Abrasion 1 cm x 1/2 cm over left lumber region. (13) Punctured wound over left forearm with diffused swelling and bony deformity. (14) Contusion 4 cm x 2 cm over left elbow with diffused swelling." On dissection of left forearm, ulna bone was found fractured with huge haematoma. On dissection of the scalp a haematoma was found present just beneath the lacerated wound below the scalp. Injuries were antemortem in nature and were caused by hard and blunt object. In his opinion, the cause of death of deceased was haemorrhagic shock due to fracture of long bone and multiple blunt injuries with haematoma. 4. After investigation, charge sheet was filed and the case was committed for trial. . 5. The defence of the accused persons was that of false implication due to their dispute with the deceased over the land. According to them, Vilasius was killed by some unknown persons. They also examined DW-2 Sabstene, DW-3 Bhagunta Prasad and DW-4 Sister Alexis. 6. Prosecution examined 23 witnesses to substantiate its case. Trial Court relying on the first information report (Ex. P/18), treating it as dying declaration and the evidence of eyewitnesses PW-2 Vilasius @Ashok, PW3 Joseph, PW-7 Rose Merry, PW-10 Christina, PW-ll Victor David and PW-13 Ku. Anjela Ekka and the medical evidence of PW-6 Dr. Subhash Jain, PW-12 Dr. R.K. Khare and PW-23 C.K. Dubey held the accused persons guilty of the offences under Sections 302/34, 341 and 323/34 of the Indian Penal Code. However, fina1ing the evidence deficient, acquitted them of the charges under Sections 294 and 506-B of the Indian Penal Code. 7. Anjela Ekka and the medical evidence of PW-6 Dr. Subhash Jain, PW-12 Dr. R.K. Khare and PW-23 C.K. Dubey held the accused persons guilty of the offences under Sections 302/34, 341 and 323/34 of the Indian Penal Code. However, fina1ing the evidence deficient, acquitted them of the charges under Sections 294 and 506-B of the Indian Penal Code. 7. Learned counsel for the accused/appellants though conceded that there was enough evidence on record for holding the accused persons guilty of causing injuries to the deceased and Victor David, but, insisted that in the facts and circumstances of the case their conviction under section 302/34 of the Indian Penal Code be held liable for the offence punishable under section 304-II of the Indian Penal Code. He submitted that, accused Prabhutwa had remained in custody for a period of one year and eight months and the other accused/appellants who are still in custody have served out about six years one month and ten days of sentence. He submitted that if remission is added, accused Zero and Hero have undergone sentences of about nine years. On the other hand, learned counsel for the State submitted that by the evidence adduced by the prosecution, it has been amply established that the accused persons with prior concert and premeditation assaulted the deceased with sticks causing about 18 injuries, as a result of which he died. Therefore, no interference is called for in the judgment of conviction and sentence passed by the trial Court, 8. We have heard the learned counsel for the appellants and learned counsel for the State and have carefully considered the facts, circumstances and probability of the case. We have a1so gone through the judgment under appeal with the help of both the counse1. 9. The first information report (Ex. P/18) of the occurence was got recorded by the deceased himself. It was proved by PW-21 Ram Krishna Pathak, ASI of Police Station Cantt. According to first information report, when he was going to school, all the three accused persons stopped him on the way and after abusing, assaulted him with sticks. His father Victor David tried to save him, but he was also assaulted. The incident was witnessed by Vilasius @Ashok, Anjela, Christina and Rose Merry. There is nothing on record to indicate that the first information report was a forged or fabricated document. His father Victor David tried to save him, but he was also assaulted. The incident was witnessed by Vilasius @Ashok, Anjela, Christina and Rose Merry. There is nothing on record to indicate that the first information report was a forged or fabricated document. Since after lodging the first information report Vilasius David died on the same day, the first infonnation report was rightly treated as dying declaration under section 32 of the Evidence Jct. 10. PW-3 Joseph, PW-11 Victor David, PW - 10 Christina, PW-7 Rose Merry and PW-13 Anjela have categorically stated that they saw the accused persons beating the deceased win the sticks. When PW-11 Victor David tried to rescue him, he was also assaulted. The evidence of PW-11 Victor David also finds support from the evidence of PW-23 Dr. C.K. Dubey, who examined his injuries on 13.8.2001 and found six injuries on his body caused by hard and blunt object. The injury report is Ex. P 120. The presence of PW11 Victor David cannot be doubted. Though these witnesses were subjected to a roving cross-examination, but nothing substantial could be brought out to discredit their evidence. From the evidence of the aforesaid eyewitnesses and the dying declaration made by the deceased in the form of first information report (Ex. PI18), it is clearly established that it were the accused persons who assaulted him and Victor David with sticks, as a result of which he suffered 16-17 injuries and Victor David sufferea 7 injuries. 11. Learned counsel for the appellants argued that except one grievous injury viz. fracture of the left ulna bone of the hand of deceased, there was no other injury, which was sufficient to cause the death of the deceased or was dangerous to his life. Almost ell the injuries were simple in nature. Therefore, the conviction of the accused persons under section 302/34 of the Indian Penal a Code was not justified. At the most, they could have been convicted under section 304-:1 at the Indian Penal Code. 12. The injuries of deceased were examined by PW-23 Dr. C K. Dubey. According to him, there was 16 injuries on his body. All the injuries were caused by hard and blunt object. The injury No.3, according to him, comprised three lacerated wounds on the skull. He had advised X-Ray examination of these injuries. PW-6 Dr. 12. The injuries of deceased were examined by PW-23 Dr. C K. Dubey. According to him, there was 16 injuries on his body. All the injuries were caused by hard and blunt object. The injury No.3, according to him, comprised three lacerated wounds on the skull. He had advised X-Ray examination of these injuries. PW-6 Dr. Subhash Jain, who performed the X-Ray examination of the injuries of Vilasius David however found that there was only one fracture, and it was of ulna bone of the left wrist and there was no fracture on any other part of the body including head. According to PW-23 Dr. C.K. Dubey, all the injuries found on the body of deceased were cumulatively sufficient in ordinary course of nature to cause his death in the absence of the treatment. He stated that in the absence of the treatment even a simple injury might result in death. PW-12 Dr. R.K. Khare, who performed the postmortem examination of the body of the deceased, found one lacerated wound 1 cm x 1/2 cm x scalp deep and one fracture on left ulna bone, besides other injuries. In his opinion, the cause of death of deceased was haemorrhagic shock due to fracture of long bone and multiple blunt injuries with haenla1 He testified that by fracture of a bone and rupture of vessals haematolrla is produced and if there occurs no complication, the death is not possible by the fracture of the bone. In case of multiple injuries, the probability of death depends upon the fracture, the number and seriousness of injuries and the available medical aid. Thus, it is apparent that except the fracture of ulna bone, there was no other grievous injury on any part of the body of the deceased. All the injuries could be held to be of simple nature. 13. From the first information report (Ex. P /18), made by the deceased, which has been treated as dying declaration, it is revealed that there '$ some ill will between the accused persons and the deceased over a house It appears that accused persons wanted to teach a lesson to deceased. Therefore , they launched the assaulted on him with Lathis. From the factual scenario of the occurrence, it does not appear that the accused/appellants had the intent 11 of causing death or such bodily injuries to deceased, which were likely to cause his death. Therefore , they launched the assaulted on him with Lathis. From the factual scenario of the occurrence, it does not appear that the accused/appellants had the intent 11 of causing death or such bodily injuries to deceased, which were likely to cause his death. It can also not be inferred from the evidence and materia on record that the intention of the accused persons was of causing such bodily injuries to deceased, which could be sufficient in ordinary courses of nature to cause death. Under these circumstances, especially in view of the nature of injuries found on the body of the deceased, we are unable to hold the el accused persons intended to cause death of the deceased. At the same time, however, it can be held with certainty that while causing the injuries to deceased\ appellants knew that by their act they were likely to cause his death or cause such bodily injuries as were likely to cause his death. In these circumstances, we are of the definite opinion that the act committed by the accused appellants would come within the category of the offence punishable under sectio.;1 304-II of the Indian Penal Code. 14. In the result, we set aside the conviction and sentence of accused appellants under section 302/34 of the Indian Penal Code and alter conviction to under section 304-II read with section 34 of the Indian Penal Code and sentence them to undergo rigorous imprisonment for seven years The conviction and sentence of the accused under section 341 and 323/3/ of the Indian Penal Code passed by the trial Court are affirmed. 15. Appellant No.1 Prabhutwa, who is on bail, shall surrender before the trial Court in1mediately for serving out the remaining part of their sentences. 16. Appeal partly allowed.