Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 959 (MP)

DEVENDRA s/o BHAJANLAL BATHAM v. STATE OF M. P.

2009-08-10

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT : A. K. SHRIVASTAVA, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 13-9-2001 passed by the learned Special Judge and Additional Sessions Judge, Gwalior, in Sessions Trial No.43/2000, convicting the appellant under section 302/34 of Indian Penal Code and thereby sentencing him to suffer life imprisonment, this appeal has been filed by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that in the night of 12-9-1999, Amit Kumar Sharma alias Monu (hereinafter referred to as the "deceased") was enjoying the programme of orchestra, which was being carried nearby the temple of Hanumanji. The Batham community, organized the said orchestra programme. It is said that when the deceased on his two wheeler arrived in the programme, the head light of his vehicle was falling on some of the girls of Batham community. The act of the deceased was opposed by the appellant and it is said that thereafter some altercation took place between the deceased and the appellant, and the deceased was asked to go away from the programme. 3. It is the further case of the prosecution that thereafter at 11.00 in the night again the deceased came to the spot along with his some friends, where it is said that the deceased caught hold of the hand of one girl, who was his classmate. On this, the appellant put resistance and objected and again altercation took place between the appellant and the deceased and thereafter it is said that the appellant and other acquitted co-accused persons stabbed the deceased by knife. One Dinesh Batham informed the father of the deceased, namely, Ramesh Kumar Sharma about the incident as a result of which immediately he rushed to the spot and found that the deceased was lying having severe injuries on his body. The deceased also gave oral dying-declaration to his father Ramesh Kumar Sharma that the appellant and his friends have caused injuries by knife to him. 4. It is the further case of the prosecution that the father of the deceased went to the Police Station to lodge the FIR. The Police after registering the case investigated the matter and sent the deceased, who was alive at that juncture, to the Hospital, where he was examined by the doctor. 4. It is the further case of the prosecution that the father of the deceased went to the Police Station to lodge the FIR. The Police after registering the case investigated the matter and sent the deceased, who was alive at that juncture, to the Hospital, where he was examined by the doctor. However, the deceased could not survive more and succumbed to the injuries. 5. After the investigation was over, a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for its trial. 6. Learned Trial Judge on the basis of the allegations made in the charge-sheet against the appellant and other acquitted co-accused persons, framed charge punishable under section 302/34 of Indian Penal Code against the appellant, which he denied and requested for trial. 7. The prosecution thereafter examined its witnesses and placed certain documents on record. The defence of the appellant is of false implication and the same defence he set forth in the statement recorded under section 313 of Criminal Procedure Code. 8. The learned Trial Judge on the basis of the evidence placed on record came to hold that there is no clinching evidence against the other accused persons except the appellant as a result of which acquitted them. However, on the basis of oral dying-declaration of the deceased given to his father Ramesh Kumar Sharma, convicted appellant under section 302 of Indian Penal Code to suffer life imprisonment. 9. In this manner, the present appeal has been filed by the appellant assailing the impugned judgment of conviction and the order of sentence. 10. The contention of Shri Madhukar Kulshreshtha, learned counsel for the appellant is that all the eye-witnesses to the incident were declared hostile by the prosecution and the learned Trial Judge has based his conviction solely on the basis of oral dying-declaration of the deceased. But if the evidence of Ramesh Kumar Sharma, who is the father of the deceased and to whom it is said that oral dying-declaration was given by the deceased, is taken into consideration in its proper perspective, the serious doubts are carved out because according to the complainant, firstly he went to lodge the FIR in the Police Station and thereafter he did go to the hospital for treatment of the deceased, but Dr. Siddharth Agarkar (PW2) has sated that the injured was not brought by any Police person and, therefore, looking to this serious infirmity, the learned Trial Court erred in convicting the appellant. 11. Combating the aforesaid submissions, it has been submitted by learned Public Prosecutor that the learned Trial Judge has assigned cogent reasons to convict the appellant by placing reliance on the oral dying-declaration. According to learned State Counsel, on the material point, the oral dying-declaration has not at all been shaken and, therefore, for no rhyme or-reason, the impugned judgment is required to be set aside and this appeal sans substance and the same be dismissed. 12. Having heard the learned counsel for the parties, this appeal deserves to be dismissed. 13. So far as the contention of the learned counsel for the appellant is that all the eye-witnesses have been declared hostile and therefore it would be highly unsafe to place reliance on the oral dying-declaration of the deceased is concerned, suffice it to say that there is no law as such. On the contrary, if the dying-declaration is found to be clear, cogent and trustworthy and is not the product of tutoring or prompting, it can solely be the basis for convicting the appellant. Thus, merely because the eye-witnesses have not supported the case of the prosecution, it cannot be said that in any manner, the case of the prosecution has become doubtful or any benefit may go to the-appellant if the dying-declaration is found to be worth reliable. 14. The Supreme Court in Vishram and others vs. State of M. P., AIR 1993 SC 250 has categorically held that if the FIR has been lodged by the father of the deceased after admitting the deceased to hospital and to whom the oral dying-declaration has been given by giving necessary details, the possibility of false implication can be ruled out and because the possibility that the deceased was not in a position to give the dying-declaration was not categorically stated by the doctor, the oral dying-declaration given by the deceased to his father can be placed reliance upon and the conviction can be accorded. 15. 15. By testing the abovesaid principle laid down by the Hon'ble Supreme Court on the touchstone and anvil of the present factual scenario, even if for the sake of arguments as placed by the learned counsel for the appellant that firstly the deceased was carried to the hospital and thereafter Ramesh Kumar Sharma (PW9), the father of the deceased went to lodge the FIR Ex.P/17, would not somersault the case of the prosecution. 16. On going through the testimony of Ramesh Kumar Sharma (PW9), it is gathered that as soon as he came to know that his son has been stabbed, he rushed to the spot and found that the deceased was lying on the road. On being asked to the deceased, he told that appellant Devendra Batham and his three friends dealt the knife blow on his chest, leg and abdominal region. At that juncture, appellant Devendra was scolding on the deceased. Despite the appellant and his companions tried to stab this witness by keeping the deceased in an auto-rickshaw, he went to lodge the report. Further, this witness is saying that the deceased was saying that he will not spare the appellant because he had only caused knife injuries. According to us, the oral dying-declaration given by the deceased to his father Ramesh Kumar Sharma is clear, cogent and trustworthy and merely because when the deceased was shifted to the hospital, he became unconscious on account of excess haemorrhage, this cannot be a ground to hold that the deceased was not in a position to give the oral dying-declaration, particularly when such question was not put to Dr. Siddharth Agarkar (PW2) in cross-examination. 17. Learned counsel for the appellant has argued by putting emphasis on certain paragraphs of the statement of Ramesh Kumar Sharma (PW9) that this witness was unable to see the other friends of the appellant, therefore, his evidence is not reliable, a very natural answer has been given by this witness that the deceased was his only son and on seeing severe injuries on his person, firstly he was trying to save his son. Again in Para 25, this witness is saying that by pointing out appellant, the deceased was saying that he had only caused knife injuries to him. Again in Para 25, this witness is saying that by pointing out appellant, the deceased was saying that he had only caused knife injuries to him. Hence, according to us, the learned Trial Court did not commit any error in placing reliance on the oral dying-declaration of the deceased given to his father. 18. On going through the evidence of Dr. Siddharth Agarkar (PW2), we find that when the deceased was brought in the hospital for his treatment, this doctor found the following injuries on his person :- 1. An incised wound 3 x ½ x ½ cm over left side of chest in mid axillary line profuse bleeding. 2. Incised wound 2 x ½ x ½ cm over left side of chest located lateral to left nipple. Profuse bleeding. 3. An incised wound 2 x ½ / ½ cm over right flank of abdomen 1 cm lateral to 4 onblicus right side. 4. Incised wound 1½ x ½ x ¼ cm near injury No. 3. 5. Incised wound 2 x ½ cm x ¼ cm over postero lateral aspect of left thigh, lower part bleeds. According to the doctor, the patient was in shock, therefore, pulse and BP could not be recorded. 19. At this juncture, we would also like to go through the report of autopsy surgeon Dr. J. N. Soni (PW1), who found the stitched wound at the places where the MLC doctor gave the description of the injuries. According to the Autopsy Surgeon, the deceased died on account of shock and haemorrhage as a result of thoracic injury. The doctor has also proved his post-mortem report Ex.P/1. Looking to the nature of injuries coupled with the fact that repeated blows were dealt on the vital organs like abdomen and chest, according to us, the act of the appellant is culpable homicidal amounting to murder. 20. We have gone through the reasonings assigned by the learned Trial Judge holding the appellant to be guilty under section 302 of Indian Penal Code and we find that the reasonings are quite cogent and no interference is required. 21. For the reasons stated hereinabove, we find that this appeal is devoid of substance and the same is hereby dismissed. The appellant is on bail, his bail bonds shall stand cancelled only after the appellant surrenders before the learned Trial Court to serve out the sentence. 21. For the reasons stated hereinabove, we find that this appeal is devoid of substance and the same is hereby dismissed. The appellant is on bail, his bail bonds shall stand cancelled only after the appellant surrenders before the learned Trial Court to serve out the sentence. The appellant shall surrender before the learned Trial Court on 14th September, 2009. Registry is hereby directed to send the record of the Trial Court posthaste so as to each the Trial Court on or before 14-9-2009. In case the appellant fails to appear before the learned Trial Court on or before 14th September, 2009, the learned Trial Court shall issue perpetual warrant of arrest against him and shall also take action against the surety in accordance with the law. The Registry is hereby directed to send the original papers of bail bonds to learned Trial Court and photo copies thereof be kept in the record of this file. After the appellant is arrested or he surrenders and is sent to jail, the learned Trial Court shall intimate to the Registry of this Court.