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2009 DIGILAW 936 (MP)

SHRILAL OJHA v. STATE OF M P

2009-08-06

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
Judgment ( 1. ) THIS appeal has been filed by appellant from jail. The appeal was listed for hearing on 31. 8. 2009. Since it is barred by time by 2055 days, an application under Section 5 of the Indian limitation Act has been sent by the appellant from jail for condoning the delay in filing the appeal. This court on 3. 8. 2000 directed the learned counsel for the parties that appeal will be heard on the application condoning the delay (LA. No. 6730/2009) as well as on merit, eventually, this appeal has been listed today. We have heard learned counsel for the parties on IA No. 6730/2009 and in the order sheet for the reasons assigned therein we have already condoned the delay in filing the appeal. At the request of learned counsel for the parties we have heard them on merit of the case. ( 2. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 9. 7. 2002 passed by learned Sessions Judge, guna in Sessions Trial No. 70/2002 convicting the appellant under Section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 1,000 and in default to suffer simple imprisonment of four months, the appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 3. ) IN brief the case of prosecution is that gayatridevi, (hereinafter referred to as the deceased) is the wife of appellant. On 3. 1. 2002 at 4. 35 a. m. complainant-Manish along with his younger brother Jagdish came to the police station and lodged the first Information Report that when they were sleeping in the house, they heard the scream of deceased coming out from her room, as a result of which both of them wake up. They saw that appellant, who is the husband of deceased, was pressing her neck by his leg and was saying that she should not restrain the appellant in selling the house. Thereafter, in order to kill the deceased, appellant picked up a long bodkin and dealt its blow on her neck which passed through and through in the neck. Thereafter, again one more blow was dealt by appellant on the left abdominal side of the deceased. Thereafter, in order to kill the deceased, appellant picked up a long bodkin and dealt its blow on her neck which passed through and through in the neck. Thereafter, again one more blow was dealt by appellant on the left abdominal side of the deceased. Further, it has been mentioned in the report that for last 3-4 months there was some quarrel in between the appellant and the deceased on the point of selling of the house. Since today their mother (deceased) was saying to the appellant not to sale the house, in order to kill her, appellant dealt blows of bodkin to her. ( 4. ) AFTER lodging of the First Information report the criminal law was triggered and set in motion. Initially the case was registered under Section 307 of IPC and the investigating agency managed to get the dying declaration of the deceased recorded in the hospital. The Nayab Tahsildar, H. M. Karnwal, in the presence of Dr. Shivram singh Raghuvanshi (PW1) recorded the dying declaration of the deceased in the hospital. The deceased could not survive more and ultimately she died on the same day at 5. 40 p. m. On account of death of the deceased, the case which was registered under Section 307 of IPC was altered and registered under Section 302 of IPC. ( 5. ) AFTER the investigation was over, a charge-sheet was submitted in the committal Court against the appellant which on its turn committed the case to the Court of Sessions where the appellant was tried. ( 6. ) THE learned Trial Judge on the basis of the averments made in the charge-sheet, framed charge punishable under Section 302 of IPC against the appellant, which he denied and requested for the trial. ( 7. ) IN order to prove the charges, prosecution examined as many as eleven witnesses and placed Ex P1 to P14, the documents on record. The defence of appellant is of alibi, but in support of his defence he did not examine any witness. ( 8. ) LEARNED Trial Judge on the basis of the evidence placed on record came to hold that the charge under Section 302 of IPC has been found to be proved and, hence, convicted the appellant and passed the sentence, which we have mentioned hereinabove. ( 9. ( 8. ) LEARNED Trial Judge on the basis of the evidence placed on record came to hold that the charge under Section 302 of IPC has been found to be proved and, hence, convicted the appellant and passed the sentence, which we have mentioned hereinabove. ( 9. ) IN this manner this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence passed by the learned Trial Court. ( 10. ) THE contention of learned counsel for the appellant is that in the present case the eyewitnesses have not supported the case of prosecution and they were declared hostile, but, the learned Trial Judge has convicted the appellant solely on the basis of dying declaration. By putting deep dent on the veracity of the dying declaration it has been contended by learned counsel that it was not possible for Nayab Tahsildar to arrive in the hospital at 5. 30 a. m. to record the dying declaration (Ex P12 ). The contention of learned counsel is that the doctor has not certified that deceased was in a fit mental condition to depose her dying declaration and if that would be the position, the learned Trial Judge erred in placing reliance on the dying declaration and thereby convicting the appellant. ( 11. ) THE next contention of learned counsel is that since the deceased was the wife of appellant and there is no evidence on record in order to demonstrate that appellant was having any motive to kill the deceased, hence, in absence of any motive learned Trial Court further erred in convicting the appellant. ( 12. ) AN alternative submission has also been put forth by the learned counsel for the appellant that in case this Court comes to the conclusion that on account of giving injuries by appellant by using bodkin as a weapon in the commission of the offence, since the incident occurred all of a sudden and because there was no premeditation and it had occurred on account of sudden fight in the heat of passion, therefore, the case would not rest beyond the ambit and scope of Section 304 Part-I of IPC. The contention of learned counsel is that since the appellant is in jail since 3. 1. 2002, this would be the appropriate punishment for the offence, which he has committed. ( 13. The contention of learned counsel is that since the appellant is in jail since 3. 1. 2002, this would be the appropriate punishment for the offence, which he has committed. ( 13. ) ON the other hand, Shri Bhadoriya, learned Public Prosecutor for the respondent/state argued in support of the impugned judgment. ( 14. ) HAVING heard learned counsel for the parties, we are of the view that this appeal deserves to be dismissed. ( 15. ) SO far as the first contention of learned counsel that the eyewitnesses have been declared hostile, therefore, the case of prosecution has not been proved, is concerned, suffice it to say that true the eyewitnesses who are the sons of the appellant have been declared hostile, but this would not alone be a determining factor to hold the appellant to be innocent, because there is a dying declaration (Ex P12) of the deceased. It is well settled in law that if the dying declaration is clear, cogent and trustworthy and is not a product of imagination or the person who is giving the dying declaration has not been tutored or prompted the same can be the sole basis of conviction. In this context we may profitably place reliance on the decision of Supreme Court in muthu Kutty and Anr. v. State by Inspector of Police, T. N. 1 The theory of dying declaration envisaged under Section 32 of the IPC is based on maxim nemo moriturus praesumitur mentire, which would mean that a man will not meet his Maker with a lie in his mouth. There is nothing on record in order to show that Nayab Tahsildar, H. M. Karnwal (PW6) is having any enmity with the appellant and, therefore, it would be beyond imagination to hold that he would record the dying declaration in a manner so as to rope the appellant falsely. ( 16. ) ACCORDING to this witness, before recording the dying declaration of the deceased the doctor on duty after examining her told that deceased is in the fit mental condition to give the dying declaration and a certificate to that effect has been endorsed by the doctor on the dying declaration (Ex. P12 ). After completion of writing of the dying declaration again the doctor certified that deceased was in her senses while giving the dying declaration. P12 ). After completion of writing of the dying declaration again the doctor certified that deceased was in her senses while giving the dying declaration. This witness is specifically saying that deceased told that when she was opposing as well as resisting the appellant to get the house sold, the appellant dealt the blow of bodkin on her neck and on the abdominal region. At that juncture, appellant also pressed her chest by his leg. In cross-examination this witness has stated that during the dawn hours in between 5 and 5. 30 he received a letter from the police requesting him to record the dying declaration, as a result of which he went to the hospital, which is only 3-4 kms. from his house and within fifteen minutes he arrived at the hospital. Further, this witness has stated that deceased was conscious and was speaking. In para 5 of his cross-examination this witness is saying that deceased was properly speaking when the dying declaration was being recorded. We do not find any merit in the contention of learned counsel for the appellant that the dying declaration of this witness should be disbelieved. On the other hand, we find that the dying declaration of the deceased is clear, cogent and trustworthy and, learned Trial court did not commit any error in placing reliance on the dying declaration. ( 17. ) THE learned counsel has contended that the dying declaration should be disbelieved because it has not been so stated by the doctor Shivram Singh Raghuvanshi (PW1) that deceased was in a fit mental condition to depose the dying declaration. To us, the said submission runs contrary to the decision of Constitution Bench of the Supreme Court Laxman v. State of maharasthra wherein the Apex Court has specifically held that the dying declaration would not render unacceptable merely because certification by doctor about the fit mental condition of the deceased was not taken. The Apex court held that certification by doctor is a rule of caution. Further, the Apex Court has held that what is essentially required is that the person who records it must be satisfied that deceased was in fit state of mind to give the dying declaration. This view was also taken by the supreme Court in another decision Dhanraj and others v. State of Maharashtra ( 18. ) WE also do not find any. This view was also taken by the supreme Court in another decision Dhanraj and others v. State of Maharashtra ( 18. ) WE also do not find any. merit in the contention of learned counsel for the appellant that prosecution has utterly failed to prove the motive of the appellant to kill the deceased. Definitely this argument would have some meaning if the prosecution would have based its case on circumstantial evidence. But, if the case is based on direct evidence, motive part is totally insignificant. Hence, the said argument is also not acceptable. ( 19. ) THE dying declaration of the deceased stating cause of her death and the circumstances, which resulted in her death, has been corroborated by the medical evidence also. Dr. Anil Vijayvargiya. (PW2) who conducted the post-mortem of the deceased and who has proved his post-mortem report (Ex. P2) has categorically found the following injuries on the person of the deceased; they are: " (i) Stitched wound over right side of neck below and behind right ear 3 cm. in length, depth 4 pm. (ii) Stitched wound over left side of neck behind left ear, 1 cm. in length, depth 2 cm. (iii) Stitched wound over left hypochon-drium 3 cm. in length and cavity deep. " according to the autopsy surgeon, cause of death was on account of haemorrhage and shock due to the injury on vital organ of the body. The post-mortem was conducted in presence of lady doctor, namely, Dr. Nirmala and another Dr. Shivram Singh, the Medical Officer. The deceased when brought in the injured condition to the hospital was examined by Dr. Shivram Singh (PW1) who has also proved MLC report (Ex. P1 ) of the deceased in which following injuries were found by this doctor: " (i) Punctured stab wound, 2. 5 cm. x 2 cm. x depth not measured, probing not done below and behind right ear, bleeding over the neck. (ii) Wound with inverted margin. 5 cm. x. 3 cm. , probing not done, bleeding over left neck behind ear. (iii) Punctured stab wound over left hypo-chondrium, 2. 5 cm. / 2 cm x depth not measured, probing not done. " according to the doctor, all the injuries were caused by hard and pointed object. ( 20. (ii) Wound with inverted margin. 5 cm. x. 3 cm. , probing not done, bleeding over left neck behind ear. (iii) Punctured stab wound over left hypo-chondrium, 2. 5 cm. / 2 cm x depth not measured, probing not done. " according to the doctor, all the injuries were caused by hard and pointed object. ( 20. ) LOOKING to the nature of the injuries sustained by the deceased because repeated blows were dealt by the appellant to her, according to us, the appellant had taken undue advantage and acted in a cruel and unusual manner, therefore, the case of appellant would not come under the ambit and sweep of exception 4 of Section 300 of IPC and, therefore, according to us, learned Trial court did not commit any error in convicting the appellant under Section 302 of IPC. ( 21. ) THIS appeal is bereft of any substance and the same is hereby dismissed. Appeal dismissed.