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2009 DIGILAW 504 (MP)

Ashok Mehra v. State of M. P.

2009-04-17

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT Saksena, J. -- 1. Appellant has filed this appeal against the judgment dated 15.10.2004 passed by the Additional Sessions Judge, Gadarwara, District Narsinghpur in Sessions Trial No. 159/2001, convicting him under section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1,000/- with default stipulation. 2. The prosecution case as unfolded by the first information report is that on 6.6.2001, complainant Devendra Singh, who was the conductor of "Maa Narmada Bus", was going back on his passengers bus from Mehragaon to Gadarwara. Jai Raj Singh (deceased) was the driver of the bus. At about 2-2:30 p.m., they reached at bus stand Banvari. Ashok Mehra (accused) who had boarded the bus from Saikheda and had obtained three tickets, -did not agree to pay Rs. 15/- for the said tickets and instead wanted to pay Rs. 3/- only saying that he would pay only at concessional rate and alighted from the bus. Driver of the bus viz. Jai Raj Singh hearing the altercation reached there and asked the accused to pay the fare. Being annoyed, accused took out a knife from the pocket of his pants and suddenly inflicted a blow with it on the left side of his chest and ran away. Jai Raj Singh was taken to hospital, but he expired. First Information Report Ex. P1-C was lodged by Devendra Singh (PW 6) at police station Gadarwara, whereupon a case under section 302 of the Indian Penal Code was registered against the accused. The dead body of Jai Raj Singh was sent to Civil Hospital, Gadarwara for post mortem examination. PW 11 Dr. K.S. Rajput performed the post mortem examination of the body and vide his report Ex. P-17 found one incised wound on anterolateral aspect of the chest wall, situated at a distance of about 3-1/2" downwards and laterally from left nipple, measuring 1-1/2" x 1/2" x pleural cavity deep. Wound was situated at the level of fifth inter-coastal space (left). On probing direction of the wound was found transversely going towards heart. There were corresponding cuts over the clothings of the deceased. On internal examination he found his left lung pale and hemothorex. There was also an incised wound on pericardium on left side, corresponding to measurement of the external wound. Internal length of wound was 5-1/2". On probing direction of the wound was found transversely going towards heart. There were corresponding cuts over the clothings of the deceased. On internal examination he found his left lung pale and hemothorex. There was also an incised wound on pericardium on left side, corresponding to measurement of the external wound. Internal length of wound was 5-1/2". In the opinion of the doctor, the injury was antimortem and homidical in nature and was caused by sharp penetrating object. The cause of death was the shock resulted by the aforesaid stab injury on the chest. 3. After the requisite investigation, the accused was arrested and charge sheet was filed before the Court of Magistrate. The case was then committed for trial. 4. On charge being framed under section 302 of the Indian Penal Code, accused abjured his guilt and under section 313 of Code of Criminal Procedure pleaded that he was falsely implicated by witness Devendra Singh with whom he was on inimical terms. Devendra Singh (PW 6) had threatened him to implicate in some case. 5. Before the trial Court prosecution examined eleven witnesses. PW 3 Bhura Nai, PW 4 Satish Sharma and PW 6 Devendra Singh Rajput were examined as eye-witnesses of the incident. PW 11 Dr. K.S. Rajput was examined to prove the injuries found on the body of deceased. PW 3-Bhura Nai and PW 4 Satish Sharma did not support the prosecution case at the trial. They were declared hostile. However, relying on the evidence of Devendra Singh (PW 6), learned trial Judge held the accused guilty and convicted and sentenced him as mentioned earlier. 6. Learned counsel for the appellant did not seriously challenge the complicity of the accused in the crime. However, he submitted that in the facts and circumstances of the case, the conviction of the accused under section 302 of the Indian Penal Code was bad. At the most, he could have been held liable under section 304-Part-II of the Indian Penal Code. He also pointed out that the accused was continuously in custody since 20.9.2003 and thus had undergone about 5-1/2 years of the sentence. On the other hand, learned counsel for the State submitted that the trial Court was justified in holding the appellant guilty under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 7. He also pointed out that the accused was continuously in custody since 20.9.2003 and thus had undergone about 5-1/2 years of the sentence. On the other hand, learned counsel for the State submitted that the trial Court was justified in holding the appellant guilty under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 7. It is not disputed that Jai Raj Singh died a homicidal death by the injury caused by a knife on the left side of his chest. It has been testified by PW 6-Devendra Singh Rajput that on the day of incident he was the conductor on "Maa Narmada Bus" and Jai Raj Singh was its driver. Accused Ashok Mehra along with Omkar and another boy boarded the bus from Saikheda. When he demanded Rs. 15/- for three passengers, accused paid only Rs. 3/-. Because bus was getting late, they proceeded to village Banvari. When he demanded remaining amount from the accused, he did not pay. When driver Jai Raj Singh insisted Ashok Mehra to pay Rs. 15/-, he took out a knife and inflicted a blow by it on his chest and ran away. Jai Raj Singh was taken to hospital at Gadarwara, but he was declared dead. Devendra Singh (PW 6) went to police station, Gadarwara and lodged report Ex. P/1-C. Despite lengthy and roving cross examination nothing could be brought out to indicate that Devendra Singh (PW 6) was not telling truth. His evidence further stands corroborated by the first information report Ex. P/1-C, lodged by him soon after the occurrence and also by the evidence of Dr. K.S. Rajput (PW 11) who found a stab injury on the left side of the chest of Jai Raj Singh in post mortem examination. In our opinion, the evidence of Devendra Singh (PW 6) is clear, cogent and trustworthy. By his evidence, it has been clearly established that it was the accused who had caused the knife injury on the left side of the chest of deceased. 8. The next question before us is whether in the facts and circumstances of the case, the convicted of the accused-appellant under section 302 of the IPC was justified. 9. By his evidence, it has been clearly established that it was the accused who had caused the knife injury on the left side of the chest of deceased. 8. The next question before us is whether in the facts and circumstances of the case, the convicted of the accused-appellant under section 302 of the IPC was justified. 9. The prosecution case as unfolded by the first information report is that when the accused along with two other persons boarded the bus, he did not pay the prescribed fare and instead indulged in altercation with the conductor of the bus. When the driver of the bus (deceased) came to intervene and remonstrated with the accused, he, suddenly, in an impulse inflicted a blow of knife on his chest and ran away. In these circumstances, there appear no motive or intention on the part of the accused to cause the death of the deceased. 10. In Tholan v. State of Tamil Nadu [ (1984) 2 SCC 133 ] when accused was shouting in front of the house of deceased, he asked him to go away. Accused in turn abused the deceased. Deceased came out of his house and cautioned the accused not to indulge in abusive language, as the ladies were present there and asked him to go away. The accused questioned the authority of deceased to ask him to go. While both were remonstrating each other, accused took out a knife from his waist and stabbed deceased on his chest and ran away. Deceased succumbed to his injury. In the course of post mortem examination a gaping incised wound on the right side of the chest was found. On internal examination, fracture of fifth and sixth ribs were noticed. The depth of the wound was probed up to middle lobe of the right lung and proceeding up to right atrial cavity. The cause of death was stated to be shock and haemorrhage on account of stab injury and the corresponding internal injury to vital organs like the heart and the lung. In the opinion of Medical Officer, this injury was sufficient in the ordinary course of nature to cause death. The cause of death was stated to be shock and haemorrhage on account of stab injury and the corresponding internal injury to vital organs like the heart and the lung. In the opinion of Medical Officer, this injury was sufficient in the ordinary course of nature to cause death. The apex Court considering the facts that the presence of deceased was wholly accidental; altercation of the accused with deceased was on the spur of the moment and there had arisen a situation in which accused probably misguided by his own egocentric nature objected as to why the deceased should ask him to leave the place and in that background accused gave one blow with a knife which landed on the right side of the chest of the deceased and proved fatal, held that the requisite intention for the offence under section 300 of the IPC could not be attributed to accused, but in the aforesaid circumstances, since accused wielded a weapon like a knife, he could be attributed with the knowledge that he was likely to cause an injury which was likely to cause death, held the accused guilty of committing of an offence under section 304-Part-II of the IPC. In similar factual situation, the apex Court in Bunnilal Chaudhary v. State of Bihar [(2007) 1 SCC (Cri) 66] held that the case fell within the third part of section 299 IPC and the accused was punishable under the second part of section 304 of the IPC as culpable homicide not amounting to murder. 11. In the instant case also the incident was not premeditated, it had resulted due to sudden quarrel on the spur of the moment, in which the accused suddenly on intervention by the deceased, inflicted a single blow on his chest and ran away. In these circumstances, we are of the opinion that exception 4 to section 300 of the IPC is attracted and the conviction of accused-appellant under section 302 of the IPC deserves to be set aside and instead appellant deserves to be convicted under section 304-Part-II of the IPC. 12. Accordingly, the conviction of the appellant under section 302 IPC and the sentence of life imprisonment are set aside, instead he is convicted for having committed an offence under section 304-part-II of the IPC and he is sentenced to suffer rigorous imprisonment for five years. 12. Accordingly, the conviction of the appellant under section 302 IPC and the sentence of life imprisonment are set aside, instead he is convicted for having committed an offence under section 304-part-II of the IPC and he is sentenced to suffer rigorous imprisonment for five years. The appeal is allowed to the extent herein indicated. If the appellant has served out the aforesaid sentence, he shall be released forthwith if not required in any other case.