Judgment ( 1. ) CHALLENGE is to the judgment dated 15. 4. 1994 passed by 1st additional Sessions Judge, Mudwara (Katni) in S. T. No. 560/93, whereby the appellants Basantlal and Vinod have been convicted under Section 302 of the IPC and under Section 302/34 of the IPC respectively and sentenced to undergo rigorous imprisonment for life. ( 2. ) THE facts of the case are that on 27. 10. 1992 at village Jharela a drama company had come. In that drama company, there was a girl. On 27. 10. 1992 at about 4:00 p. m. Sunai @ Sonelal Choudhary was sitting at Chara of Nannu alongwith Pullu @ Yogendra Singh and Shambhu Vishwakarma, at this point of time, Sonelal commented that Pullu @ Yogendra Singh and the appellant No. l- Basantlal had committed rape with the said girl. Pullu @ Yogendra objected to it and went to his field. In the evening, the appellant No. 1 Basantlal met Pullu @ yogendra near river and asked about the comment, made by Sonelal. Thereafter, the appellant Basantlal came to know about the comment. On this count, the appellant No. 1 Basantlal lost temper. He started going towards his house. Near tiraha, the appellant No. 1 Basantlal met Sonelal and there was a hot exchange of words between them, and scuffle took place. On intervention by Pullu @ Yogendra singh and appellant No. 2 Vinod, the appellant Basantal and Sonelal being separated and the appellant Basantlal went to his house. Thereafter, the appellant Basantlal came back and the appellant No. 2 Vinod caught hold of Sonelal and the appellant basantlal gave knife blows on the abdomen of Sonelal and they ran away from the spot. FIR (Ex. P/25) was lodged. Sonelal was medically examined by Dr. R. K. Jhariya (PW-13 ). Dying declaration (Ex. P/1) of Sonelal was recorded by A. S. I. S. K. Pandey (PW-18 ). Sonelal was shifted to Government Hospital, Katni. On 28. 10. 1992 at about 9:00 a. m. , Sonelal succumbed to the injuries. Postmortem of sonelal was conducted by Dr. Naresh Saravgi (PW-21 ). He opined that Sonelal died due to shock and haemorrhage as a result of the injuries. After completion of investigation, the appellants were charge-sheeted. Case was committed to the court of Sessions for trial. ( 3. 10. 1992 at about 9:00 a. m. , Sonelal succumbed to the injuries. Postmortem of sonelal was conducted by Dr. Naresh Saravgi (PW-21 ). He opined that Sonelal died due to shock and haemorrhage as a result of the injuries. After completion of investigation, the appellants were charge-sheeted. Case was committed to the court of Sessions for trial. ( 3. ) LEARNED trial Court framed charges under Section 302 of the IPC against the appellant No. l Basantlal and under Section 302/34 of the IPC against the appellant No. 2 Vinod. Both the appellants abjured the guilt and pleaded innocence and false implication due to enmity. ( 4. ) PROSECUTION examined 21 witnesses. No witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant No. 1 Basantlal under Section 302 of the IPC and the appellant No. 2 Vinod under Section 302/34 of the IPC and sentenced them as hereinabove mentioned. Being aggrieved by the impugned judgment both the appellants have preferred the appeal. ( 5. ) WE have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. ( 6. ) SHRI Siddharth Datt, learned counsel for the appellants vehemently argued that learned trial Court over sighted the material contradictions and omissions in the statement of prosecution witnesses. Independent witnesses did not support the prosecution case. Learned trial Court committed error in relying upon the dying declaration Ex. P/1 of the deceased Sonelal. No case is made out against the appellant no. 1 Basantlal under Section 302 of the IPC and the appellant No. 2 Vinod under section 302/34 of the IPC. Alternatively, learned counsel for the appellants urged that at the most, the appellant No. 2 Vinod can be convicted under Section 342 of the IPC. Learned trial Court committed error in convicting and sentencing the appellants as hereinabove mentioned. Contrary to that, Shri Aseem Dixit, learned GA for the respondent/state supported the impugned judgment. and contended that learned trial court did not commit any error in convicting and sentencing the appellants. ( 7. ) RAMDAS (PW-1) deposed that deceased Sonelal sustained knife injuries on his abdomen. Chandan Singh (PW-2) also supported the statement of Ramdas (PW-1 ). Contrary to that, Shri Aseem Dixit, learned GA for the respondent/state supported the impugned judgment. and contended that learned trial court did not commit any error in convicting and sentencing the appellants. ( 7. ) RAMDAS (PW-1) deposed that deceased Sonelal sustained knife injuries on his abdomen. Chandan Singh (PW-2) also supported the statement of Ramdas (PW-1 ). Vinod Singh (PW-4), Shukla (PW-5), Shyamlal (PW-6), Nandkishore (PW-7) Somnath (PW-8), Phullu @ Yogcndra Singh (PW-9), Shambhulal (PW-lo), Sheeshpal (PW-ll)and Rammu (PW12) turned hostile. They are deposing against their previous statement. Statement of these witnesses are not reliable. Durkhi Bai (PW-14) saw that the deceased sonelal was mjured condition. Dr. R. K. Jhariya (PW-13)on 28. 10. 1992 examined Sonelal and found following injuries on his person as per MLC report Ex. P/16: (i) Incised wound oa the left side of the chest and on the 8th intercostals space. This wound was oblique and 3 cm x 1 cm x 1 !4 cm fresh bleeding was present, (ii) Incised wound on left side of the chest on 6th intercostals space of 3 x 1 cm. fresh bleeding was present. (iii) Incised wound on left scapular region, oblique 3 cm x 1 cm x 1 cm. fresh bleeding was present. Injuries were caused by hard and sharp object. Evidence of Dr. R. K. Jhariya (PW-13) is corroborated by medical report Ex. P/16. His evidence is reliable. It is proved beyond reasonable doubt that deceased Sonelal sustained three incised wound as hereinabove mentioned. ( 8. ) SONELAL was referred to Surgical Specialist and he was treated at Government hospital, Katni where he succumbed to the injuries. Dr. Naresh Saravgi (PW-21)conducted autopsy of the deceased Sonelal and found injuries on his person. He opined that cause of death of Sonelal was due to shock and haemorrhage. Injuries were ante mortem in nature. Death of Sonelal was homicidal in nature as per postmortem report Ex. P/31. ( 9. ) CHANDAN Singh (PW-2) deposed that he was on his brothers shop. At about 8:00 p. m. , he saw that Sonelal was lying at a distance of shop. Sonelal told him that Basantlal arid Vinod (Appellants) had beaten him. He narrated the incident to babadin and his mother. This witness also declared hostile and cross-examined by Government Advocate, but nothing fruitful came out of his cross examination. At about 8:00 p. m. , he saw that Sonelal was lying at a distance of shop. Sonelal told him that Basantlal arid Vinod (Appellants) had beaten him. He narrated the incident to babadin and his mother. This witness also declared hostile and cross-examined by Government Advocate, but nothing fruitful came out of his cross examination. But, fact remains in his statement that Sonelal told him that Basantlal and Vinod had beaten him is unchallenged. He is witness of oral dying declaration of deceased sonelal. Babadin is also witness of oral dying declaration of deceased Sonelal. Babadin deposed that when he reached on the spot, Sonelal was lying in injured condition. Sonelal told him that Basantlal (Appellant) dealt knife blows on his person and Vinod caught hold him. This part of evidence of Babadin has not been impeached in his cross-examination. Evidence of Chandan Singh and Babadin is reliable in respect of causing injuries by knife on the person of Sonelal by the appellant Basantlal and catching the deceased by the appellant No. 2 Vinod. ( 10. ) DR. R. K. Jhariya (PW-13) deposed that looking to the serious condition of the deceased Sonelal, he gave permission to record dying declaration (Ex. P/1 ). He further deposed that A. S. I. S. K. Pandey (PW-18) recorded dying declaration of Sonelal. Sonelal was fully conscious when his dying declaration was recorded. A. S. I. S. K Pandey (PW-18) deposed that he recorded dying declaration (Ex. P/1)of deceased Sunai (Sonelal), Sunai told him that Basantlal dealt knife blows on his person and Vinod caught hold him. Dying declaration is written by S. K. Pandey (PW-18) and singed by him. On going through the evidence of Dr. R. K. Jhariya (PW-13) and A. S. I. S. K. Pandey (PW-18), it is clear that injured Sunai @ Sonelal was fully conscious and he was in fit mental and physical condition to give dying declaration (Ex. P/1 ). S. K. Pandey (PW18) fully satisfied that Sunai @ Sonelal was fully conscious and was in fit mental and physical condition to give dying declaration. Hence, evidence of R. K. Jhariya (PW-13) and S. K. Pandey (PW-18)is reliable and it is proved beyond reasonable doubt by their evidence that dying declaration (Ex. P/1) of Sonelal was recorded. Dying declaration of Sonelal is wholly reliable. Hence, evidence of R. K. Jhariya (PW-13) and S. K. Pandey (PW-18)is reliable and it is proved beyond reasonable doubt by their evidence that dying declaration (Ex. P/1) of Sonelal was recorded. Dying declaration of Sonelal is wholly reliable. It is settled principle of law that on the basis of reliable dying declaration, conviction can be based. Hence, on the basis of oral dying declaration of the deceased Sonelal, it is proved beyond reasonable doubt that the appellant basantlal dealt fatal knife blows on the abdomen of the deceased Sonelal and he succumbed to the injuries. There is sufficient evidence on record that intention of the appellant Basantlal was to cause murder of the deceased Sonelal. Hence, offence under Section 302 of the IPC is proved beyond reasonable doubt against the appellant Basantlal and learned trial Court rightly convicted him under this section. Consequently, conviction of the appellant Basantlal is hereby affirmed. ( 11. ) THERE is evidence on record that the appellant No. 2 Vinod simply caught hold the deceased Sonelal. On going through the dying declaration (Ex. P/1) of the deceased Sonelal and evidence on record that before dealting knife blows on the abdomen of the deceased Sonelal, the appellant Basantlal has not utter a single word in this respect and he has not exhorted to the appellant Vinod to catch hold the deceased Sonelal. Looking to the facts and circumstances of the case and evidence on record, it can be held that the appellant Vinod was not having knowledge that, suddenly the appellant Basantlal would cause knife blows on the abdomen of the deceased Sonelal, which proves fatal. There is no circumstance on record to hold that the appellant Vinod had common intention with the appellant Basantlal to cause murder of the deceased Sonelal. Hence, learned trial Court committed error in convicting the appellant Vinod under Section 302/34 of the IPC. The judgment of conviction of the appellant No. 2 Vinod is not sustainable in law. Certainly, the appellant Vinod caught hold the deceased Sonelal and restrained him to go to any side. Consequently, he committed offence to wrongfully confined of deceased Sonelal, it is punishable under Section 342 of the IPC. The conviction of the appellant Vinod under Section 302/34 of the IPC and order of sentence is hereby set aside and he is convicted under Section 342 of the IPC. ( 12. Consequently, he committed offence to wrongfully confined of deceased Sonelal, it is punishable under Section 342 of the IPC. The conviction of the appellant Vinod under Section 302/34 of the IPC and order of sentence is hereby set aside and he is convicted under Section 342 of the IPC. ( 12. ) CONSEQUENTLY, the appeal of the appellant No. 1 Basantlal is devoid of merits and deserves to be dismissed, the appeal is hereby dismissed. The conviction of the appellant Basantlal and order of sentence passed by learned trial Court is hereby affirmed. The appeal of appellant No. 2 Vinod is partly allowed and he is sentenced to undergo one year rigorous imprisonment and fined Rs. 1,000/-, in default he shall undergo one month rigorous imprisonment. The appellant Vinod is already undergone his jail sentence. He is directed to deposit the fine amount within six weeks from today. After deposit the fine amount, his bail bond stands discharged. The appellant Basantlal is on bail, he is directed to surrender forthwith before the trial Court to undergo remaining part of jail sentence. Otherwise, learned trial Court shall do needful to send him to jail undergo remaining part of jail sentence. Appeal of A. No. l dismissed. 2009-ILR(MP)-0-1431 , HIGH COURT OF MADHYA PRADESH Coram : Before Mr. Justice Arun Mishra A Mr. Justice S.A. Naqvi Apr 16,2009 BASANTILAL Vs STATE OF M P ( 1. ) CHALLENGE is to the judgment dated 15. 4. 1994 passed by 1st additional Sessions Judge, Mudwara (Katni) in S. T. No. 560/93, whereby the appellants Basantlal and Vinod have been convicted under Section 302 of the IPC and under Section 302/34 of the IPC respectively and sentenced to undergo rigorous imprisonment for life. ( 2. ) THE facts of the case are that on 27. 10. 1992 at village Jharela a drama company had come. In that drama company, there was a girl. On 27. 10. 1992 at about 4:00 p. m. Sunai @ Sonelal Choudhary was sitting at Chara of Nannu alongwith Pullu @ Yogendra Singh and Shambhu Vishwakarma, at this point of time, Sonelal commented that Pullu @ Yogendra Singh and the appellant No. l- Basantlal had committed rape with the said girl. Pullu @ Yogendra objected to it and went to his field. 1992 at about 4:00 p. m. Sunai @ Sonelal Choudhary was sitting at Chara of Nannu alongwith Pullu @ Yogendra Singh and Shambhu Vishwakarma, at this point of time, Sonelal commented that Pullu @ Yogendra Singh and the appellant No. l- Basantlal had committed rape with the said girl. Pullu @ Yogendra objected to it and went to his field. In the evening, the appellant No. 1 Basantlal met Pullu @ yogendra near river and asked about the comment, made by Sonelal. Thereafter, the appellant Basantlal came to know about the comment. On this count, the appellant No. 1 Basantlal lost temper. He started going towards his house. Near tiraha, the appellant No. 1 Basantlal met Sonelal and there was a hot exchange of words between them, and scuffle took place. On intervention by Pullu @ Yogendra singh and appellant No. 2 Vinod, the appellant Basantal and Sonelal being separated and the appellant Basantlal went to his house. Thereafter, the appellant Basantlal came back and the appellant No. 2 Vinod caught hold of Sonelal and the appellant basantlal gave knife blows on the abdomen of Sonelal and they ran away from the spot. FIR (Ex. P/25) was lodged. Sonelal was medically examined by Dr. R. K. Jhariya (PW-13 ). Dying declaration (Ex. P/1) of Sonelal was recorded by A. S. I. S. K. Pandey (PW-18 ). Sonelal was shifted to Government Hospital, Katni. On 28. 10. 1992 at about 9:00 a. m. , Sonelal succumbed to the injuries. Postmortem of sonelal was conducted by Dr. Naresh Saravgi (PW-21 ). He opined that Sonelal died due to shock and haemorrhage as a result of the injuries. After completion of investigation, the appellants were charge-sheeted. Case was committed to the court of Sessions for trial. ( 3. ) LEARNED trial Court framed charges under Section 302 of the IPC against the appellant No. l Basantlal and under Section 302/34 of the IPC against the appellant No. 2 Vinod. Both the appellants abjured the guilt and pleaded innocence and false implication due to enmity. ( 4. ) PROSECUTION examined 21 witnesses. No witness has been examined in defence. ) LEARNED trial Court framed charges under Section 302 of the IPC against the appellant No. l Basantlal and under Section 302/34 of the IPC against the appellant No. 2 Vinod. Both the appellants abjured the guilt and pleaded innocence and false implication due to enmity. ( 4. ) PROSECUTION examined 21 witnesses. No witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant No. 1 Basantlal under Section 302 of the IPC and the appellant No. 2 Vinod under Section 302/34 of the IPC and sentenced them as hereinabove mentioned. Being aggrieved by the impugned judgment both the appellants have preferred the appeal. ( 5. ) WE have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. ( 6. ) SHRI Siddharth Datt, learned counsel for the appellants vehemently argued that learned trial Court over sighted the material contradictions and omissions in the statement of prosecution witnesses. Independent witnesses did not support the prosecution case. Learned trial Court committed error in relying upon the dying declaration Ex. P/1 of the deceased Sonelal. No case is made out against the appellant no. 1 Basantlal under Section 302 of the IPC and the appellant No. 2 Vinod under section 302/34 of the IPC. Alternatively, learned counsel for the appellants urged that at the most, the appellant No. 2 Vinod can be convicted under Section 342 of the IPC. Learned trial Court committed error in convicting and sentencing the appellants as hereinabove mentioned. Contrary to that, Shri Aseem Dixit, learned GA for the respondent/state supported the impugned judgment. and contended that learned trial court did not commit any error in convicting and sentencing the appellants. ( 7. ) RAMDAS (PW-1) deposed that deceased Sonelal sustained knife injuries on his abdomen. Chandan Singh (PW-2) also supported the statement of Ramdas (PW-1 ). Vinod Singh (PW-4), Shukla (PW-5), Shyamlal (PW-6), Nandkishore (PW-7) Somnath (PW-8), Phullu @ Yogcndra Singh (PW-9), Shambhulal (PW-lo), Sheeshpal (PW-ll)and Rammu (PW12) turned hostile. They are deposing against their previous statement. Statement of these witnesses are not reliable. Durkhi Bai (PW-14) saw that the deceased sonelal was mjured condition. Dr. R. K. Jhariya (PW-13)on 28. 10. 1992 examined Sonelal and found following injuries on his person as per MLC report Ex. They are deposing against their previous statement. Statement of these witnesses are not reliable. Durkhi Bai (PW-14) saw that the deceased sonelal was mjured condition. Dr. R. K. Jhariya (PW-13)on 28. 10. 1992 examined Sonelal and found following injuries on his person as per MLC report Ex. P/16: (i) Incised wound oa the left side of the chest and on the 8th intercostals space. This wound was oblique and 3 cm x 1 cm x 1 !4 cm fresh bleeding was present, (ii) Incised wound on left side of the chest on 6th intercostals space of 3 x 1 cm. fresh bleeding was present. (iii) Incised wound on left scapular region, oblique 3 cm x 1 cm x 1 cm. fresh bleeding was present. Injuries were caused by hard and sharp object. Evidence of Dr. R. K. Jhariya (PW-13) is corroborated by medical report Ex. P/16. His evidence is reliable. It is proved beyond reasonable doubt that deceased Sonelal sustained three incised wound as hereinabove mentioned. ( 8. ) SONELAL was referred to Surgical Specialist and he was treated at Government hospital, Katni where he succumbed to the injuries. Dr. Naresh Saravgi (PW-21)conducted autopsy of the deceased Sonelal and found injuries on his person. He opined that cause of death of Sonelal was due to shock and haemorrhage. Injuries were ante mortem in nature. Death of Sonelal was homicidal in nature as per postmortem report Ex. P/31. ( 9. ) CHANDAN Singh (PW-2) deposed that he was on his brothers shop. At about 8:00 p. m. , he saw that Sonelal was lying at a distance of shop. Sonelal told him that Basantlal arid Vinod (Appellants) had beaten him. He narrated the incident to babadin and his mother. This witness also declared hostile and cross-examined by Government Advocate, but nothing fruitful came out of his cross examination. But, fact remains in his statement that Sonelal told him that Basantlal and Vinod had beaten him is unchallenged. He is witness of oral dying declaration of deceased sonelal. Babadin is also witness of oral dying declaration of deceased Sonelal. Babadin deposed that when he reached on the spot, Sonelal was lying in injured condition. Sonelal told him that Basantlal (Appellant) dealt knife blows on his person and Vinod caught hold him. This part of evidence of Babadin has not been impeached in his cross-examination. Babadin is also witness of oral dying declaration of deceased Sonelal. Babadin deposed that when he reached on the spot, Sonelal was lying in injured condition. Sonelal told him that Basantlal (Appellant) dealt knife blows on his person and Vinod caught hold him. This part of evidence of Babadin has not been impeached in his cross-examination. Evidence of Chandan Singh and Babadin is reliable in respect of causing injuries by knife on the person of Sonelal by the appellant Basantlal and catching the deceased by the appellant No. 2 Vinod. ( 10. ) DR. R. K. Jhariya (PW-13) deposed that looking to the serious condition of the deceased Sonelal, he gave permission to record dying declaration (Ex. P/1 ). He further deposed that A. S. I. S. K. Pandey (PW-18) recorded dying declaration of Sonelal. Sonelal was fully conscious when his dying declaration was recorded. A. S. I. S. K Pandey (PW-18) deposed that he recorded dying declaration (Ex. P/1)of deceased Sunai (Sonelal), Sunai told him that Basantlal dealt knife blows on his person and Vinod caught hold him. Dying declaration is written by S. K. Pandey (PW-18) and singed by him. On going through the evidence of Dr. R. K. Jhariya (PW-13) and A. S. I. S. K. Pandey (PW-18), it is clear that injured Sunai @ Sonelal was fully conscious and he was in fit mental and physical condition to give dying declaration (Ex. P/1 ). S. K. Pandey (PW18) fully satisfied that Sunai @ Sonelal was fully conscious and was in fit mental and physical condition to give dying declaration. Hence, evidence of R. K. Jhariya (PW-13) and S. K. Pandey (PW-18)is reliable and it is proved beyond reasonable doubt by their evidence that dying declaration (Ex. P/1) of Sonelal was recorded. Dying declaration of Sonelal is wholly reliable. It is settled principle of law that on the basis of reliable dying declaration, conviction can be based. Hence, on the basis of oral dying declaration of the deceased Sonelal, it is proved beyond reasonable doubt that the appellant basantlal dealt fatal knife blows on the abdomen of the deceased Sonelal and he succumbed to the injuries. There is sufficient evidence on record that intention of the appellant Basantlal was to cause murder of the deceased Sonelal. Hence, on the basis of oral dying declaration of the deceased Sonelal, it is proved beyond reasonable doubt that the appellant basantlal dealt fatal knife blows on the abdomen of the deceased Sonelal and he succumbed to the injuries. There is sufficient evidence on record that intention of the appellant Basantlal was to cause murder of the deceased Sonelal. Hence, offence under Section 302 of the IPC is proved beyond reasonable doubt against the appellant Basantlal and learned trial Court rightly convicted him under this section. Consequently, conviction of the appellant Basantlal is hereby affirmed. ( 11. ) THERE is evidence on record that the appellant No. 2 Vinod simply caught hold the deceased Sonelal. On going through the dying declaration (Ex. P/1) of the deceased Sonelal and evidence on record that before dealting knife blows on the abdomen of the deceased Sonelal, the appellant Basantlal has not utter a single word in this respect and he has not exhorted to the appellant Vinod to catch hold the deceased Sonelal. Looking to the facts and circumstances of the case and evidence on record, it can be held that the appellant Vinod was not having knowledge that, suddenly the appellant Basantlal would cause knife blows on the abdomen of the deceased Sonelal, which proves fatal. There is no circumstance on record to hold that the appellant Vinod had common intention with the appellant Basantlal to cause murder of the deceased Sonelal. Hence, learned trial Court committed error in convicting the appellant Vinod under Section 302/34 of the IPC. The judgment of conviction of the appellant No. 2 Vinod is not sustainable in law. Certainly, the appellant Vinod caught hold the deceased Sonelal and restrained him to go to any side. Consequently, he committed offence to wrongfully confined of deceased Sonelal, it is punishable under Section 342 of the IPC. The conviction of the appellant Vinod under Section 302/34 of the IPC and order of sentence is hereby set aside and he is convicted under Section 342 of the IPC. ( 12. ) CONSEQUENTLY, the appeal of the appellant No. 1 Basantlal is devoid of merits and deserves to be dismissed, the appeal is hereby dismissed. The conviction of the appellant Basantlal and order of sentence passed by learned trial Court is hereby affirmed. ( 12. ) CONSEQUENTLY, the appeal of the appellant No. 1 Basantlal is devoid of merits and deserves to be dismissed, the appeal is hereby dismissed. The conviction of the appellant Basantlal and order of sentence passed by learned trial Court is hereby affirmed. The appeal of appellant No. 2 Vinod is partly allowed and he is sentenced to undergo one year rigorous imprisonment and fined Rs. 1,000/-, in default he shall undergo one month rigorous imprisonment. The appellant Vinod is already undergone his jail sentence. He is directed to deposit the fine amount within six weeks from today. After deposit the fine amount, his bail bond stands discharged. The appellant Basantlal is on bail, he is directed to surrender forthwith before the trial Court to undergo remaining part of jail sentence. Otherwise, learned trial Court shall do needful to send him to jail undergo remaining part of jail sentence. Appeal of A. No. l dismissed.