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Madhya Pradesh High Court · body

2010 DIGILAW 799 (MP)

Pyare Miya v. State of M. P.

2010-08-09

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dateg 18.4.2002 passed by the learned Additional Sessions Judge, Sironj, District Vidisha in Sessions Trial No. 7/ 99 convicting appellant under section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 2,000/-, in default, further RI of one year, the appellant has knocked the doors of this Court by preferring this appeal under section 374 (2) of Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that Vijay Singh (hereinafter referred to as "the deceased") lodged a report in Police Station Anandpur on 8.7.1998 at 7:30 p.m. that he went to purchase some household items in the market to Lateri and was coming back on the Tractor of Devi Singh of Mubarakpur. In between Jajamkhedi and Mubarakpur near Sindh river, appellant who is an absconded accused of murder case met him and after hurling the abuse of mother and sister scolded on the deceased that he (the deceased) got his father arrested by the police, and hence, he will not be spared. Thereafter appellant dealt a knife blow on the left cheek nearby the eye of the deceased and the second blow of knife was dealt on his abdomen region, as a result of which blood started oozing from the wound, not only this, he continued to give further more blows of knife on the person of the deceased which landed on the left hand of the deceased. It has also been stated in the report that along with appellant acquitted co-accused persons were also present and although they encircled him, but did not cause any maarpeet with him. The incident has been witnessed by son of Lakhpat Singh and other persons who assembled there. 3. On lodging of the First Information Report by the deceased himself a case under section 307/34 of IPC was registered by the investigating agency and referred the deceased, who was alive at that juncture, to the hospital, however, after his MLC was conducted he was admitted in the hospital, where while undergoing the treatment he could not survive more and succumbed to the injuries which he sustained. On account of the death of the deceased the case was altered from section 307/34 of IPC to section 302/34 of IPC. 4. On account of the death of the deceased the case was altered from section 307/34 of IPC to section 302/34 of IPC. 4. The investigating agency investigated the matter and a charge-sheet was filed before the committal Court, which on its turn committed the case to the Court of Sessions and from where it was received by the trial Court for its trial. 5. The learned trial Judge on the basis of the allegations made in the charge-sheet framed charges punishable under section 302 of IPC against the appellant while other acquitted co-accused persons were charged under section 302/34 of IPC, which they denied and requested for trial. 6. In order to bring home the charges, the prosecution examined as many as 19 witnesses and placed Ex. P.1 to Ex. P.24 the documents on record. The defence of appellant and other co-accused persons is of false implication and in support of their defence they examined three witnesses namely Dr. R. K. Jain (DW-1), Pappu (DW 2) and Raghuveer Singh (DW.3). 7. The learned trial Judge after appreciating and marshalling the evidence came to hold that the charge under section 302/34 of IPC has not been proved against co-accused persons, as a result of which acquitted them. However, the learned trial Court found that the charge under section 302 of IPC has been proved against the appellant and eventually convicted him and passed the sentence which we have already mentioned hereinabove. 8. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 9. The contention of Shri A.K. Jain, learned counsel for appellant is that in the present case the prosecution has examined only one eye-witness namely Vishan Singh @ Virendra Singh (PW-7), but he has not supported the case of prosecution and was declared hostile. Further it has been contended by him that the entire case of prosecution rests on the pivot of dying declaration of the deceased. By putting deep dent on the dying declaration (Ex. P-2) recorded by the Executive Magistrate Harprasad Thakur (PW. 17) it has been contended by learned counsel that the contents of dying declaration were not read over to the deceased, and therefore the same looses its sanctity. By putting deep dent on the dying declaration (Ex. P-2) recorded by the Executive Magistrate Harprasad Thakur (PW. 17) it has been contended by learned counsel that the contents of dying declaration were not read over to the deceased, and therefore the same looses its sanctity. On these premised submissions, it has been submitted by the learned counsel that since there is no evidence against the appellant, the learned trial Court erred in convicting the appellant, and hence, this appeal be allowed and the appellant be acquitted from all the charges. 10. On the other hand Shri C.S. Dixit, learned Public Prosecutor argued in support of the impugned judgment. 11. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. . 12. True, in the present case the eye-witness namely Vishan Singh alias Virendra Singh (PW 7) has not supported the case of prosecution, according to us this would not end the matter if the dying declaration is found to be worth reliable. 13. In the present case, the First Information Report (Ex. P. 21) had been lodged by the deceased himself and on the basis of his FIR a case under section 307/34 of IPC was registered against the appellant. This FIR has been proved by the investigating officer Sughar Singh Gahlot (PW 16). On going through the statement of investigating officer, we find that the deceased in the injured condition came to the police station and lodged the First Information Report alleging that the appellant dealt knife blows on the abdomen region as well on the other parts of his body. The investigating officer has also proved the signature of the deceased on the FIR (Ex. P. 21). Not only this, the investigating officer has also proved the case diary statement' (Ex. P. 22) of the deceased and has categorically stated that on the case diary statement he (the investigating officer) has put his signature which finds place "A" to "A". According to us, on account of the death of the deceased these two material documents i.e FIR (Ex. P. 21) and case diary statement under section 161 of CrPC (Ex. P. 22) became his dying declarations. According to us, on account of the death of the deceased these two material documents i.e FIR (Ex. P. 21) and case diary statement under section 161 of CrPC (Ex. P. 22) became his dying declarations. On going through the evidence of the investigating officer Sughar Singh Gahlot (PW 16) and those documents, we find that appellant after hurling the abuses of mother and sister to the deceased dealt several knife blows. Looking to the averments made by the deceased in the FIR (Ex. P. 21) and case diary statement (Ex. P. 22), we find that after giving blow on the face the full length of blade of the knife was pierced and stabbed on the abdomen region of the deceased, as a result of which after cutting the main arteries, his kidney and the intestine were also cut. After the death of the deceased these two documents would become his dying declarations as envisaged under section 32 (1) of the Evidence Act. 14. The investigating agency also managed to get the dying declaration of the deceased recorded by Executive Magistrate Harprasad Thakur (PW.17), who at the relevant time served on the post of Tahsildar and this witnes recorded the dying declaration of the deceased in the hospital which is Ex. P.22. Indeed, the same dying declaration was given by the deceased to the Executive Magistrate also which he already narrated in his FIR and case diary statement. Even if for the sake of argument, we ignore the dying declaration recorded by the Executive Magistrate (Ex. P.2) because in the dying declaration it has not been mentioned by the Executive Magistrate that the same was read over and explained to the deceased, but looking to the unimpeachable evidence of the investigating officer and the dying declaration of the deceased in the FIR (Ex. P. 21) and case diary statement (Ex. P.22) we find that the conviction may be accorded on the basis of these two dying declarations. 15. On going through the testimony of Dr. A.P. Khilwani (PW 1) and his MLC report (Ex. P. 1), we find that the deceased was brought in the injured condition to the hospital and he found following injuries on his person: "(i) Stab naked wound 7 cm x 3 cm x deep up to the peritoneal cavity over left hypochondrium laterally obliquely directed obliquely inward having pointed holes. Dried blood in the vicinity. P. 1), we find that the deceased was brought in the injured condition to the hospital and he found following injuries on his person: "(i) Stab naked wound 7 cm x 3 cm x deep up to the peritoneal cavity over left hypochondrium laterally obliquely directed obliquely inward having pointed holes. Dried blood in the vicinity. (ii) Stab incised wound 3 cm x 1.5 cm deep up to the paritoneal cavity a loop of omentum protruding out from the wound measuring 12 cm x 2 mc. Dried blood in the vicinity. Wound placed in left hypochondrium 7 cm medial to injury no. (i). (iii) Stab incised wound 3 cm x 1.5 cm x 4 cm left arm upper third near axilla oblique facing medially. Dried blood in the vicinity. (iv) Incised wound 3 cm x 1 cm x skin deep near left cheek below outer angle of left eye oblique. Dried blood in the vicinity. (v) No other wound detected." After the death of the deceased the postmortem was conducted by Dr. Ashok Sharma (PW 14) who has also proved his postmortem report (Ex. P. 17). In the postmortem report the autopsy surgeon found following injuries on the person of the deceased : "(i) Incised wound on left fact obliquely vertical deeper on upper aspect Size 9 cm long dermal deep. (ii) Surgically stitched stab wound on left arm anteriorly axillary fold vertical flapping laterally both ends tapering, margins clean cut size 4 x 0.3 cm. It has entered into the rounding direction downwards. (iii) Surgically stitched stab wound on left flank of abdomen medial end broad lateral end tapering 4 x o.5 cm entered into the abdominal cavity medial end is 12 cm from mid line and 6 cm below the left coastal region. It has cut the loop of intestine then entered into left kidney directing posteroanterio from left to right and the descending aorta. Total depth 17 cm. (iv) Surgically stitched stab would on left postero lateral aspect of abdomen 4cm lateral to the injury no. 3. Size 7 x 0.7 cm Wound medial and broad lateral end tapering it has entered into the abdomen adjacent to above injury cut the loop of the intestine then kidney region. Left Side directing postero anterio medial from left to right. Total depth 18 cm. 3. Size 7 x 0.7 cm Wound medial and broad lateral end tapering it has entered into the abdomen adjacent to above injury cut the loop of the intestine then kidney region. Left Side directing postero anterio medial from left to right. Total depth 18 cm. Abdominal cavity full of blood and is contused and ecchymosis left kidney reveals surgical stitched present at reneal vessels. (v) Bruise on left hand 2 cm deep bluish purple." The autopsy surgeon opined that the death was homicidal and the deceased had died on account of penetrating injuries received in the abdomen region. 16. Looking to the depth of the injury which was caused on the abdomen region of the deceased, since it was found to be 17 cms and the intestine, kidney and main arteries were chopped, according to us, the appellant has committed offence under section 302 of IPC. 17. We do not find any merit in the contention of learned counsel for appellant that on account of negligence of the doctor the deceased had died and if proper medical treatment would have been given to the deceased, the life of the deceased could have been saved. In this context, the appellant examined Dr. R.K. Jain (DW. 1). According to us, the argument at the first blush appears to be quite attractive, however, on deeper scrutiny we find it to be devoid of any substance. If we go through Explanation 2 to section 299 of IPC which speaks that what is culpable homicide, we find that the appellant has committed offence under section 302 of IPC only. It would-be germane to quote explanation 2 to section 299 of IPC which reads thus : "Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented." On going through the above said explanation which is self explanatory and no clarification is further more required because this explanation gives no further room for any discussion. Hence, according to us merely because the life of the deceased could have been saved if the skilful treatment would have been provided to him well in time will not brush aside the act of appellant giving severe blow on the abdomen region of the deceased. Hence, according to us merely because the life of the deceased could have been saved if the skilful treatment would have been provided to him well in time will not brush aside the act of appellant giving severe blow on the abdomen region of the deceased. Looking to the depth of the blow on the abdomen region resulting into chopping of main arteries, kidney and intestine, according to us, the appellant has committed the offence of culpable homicide amounting to murder. 18. We have also gone through the reasonings assigned by the learned trial Judge convicting the appellant under section 302 of IPC and we find those reasonings to be quite cogent as they are based on correct appreciation of the evidence, and therefore, by this judgment we hereby extend our stamp of approval to the reasoning assigned by the learned trial Court. 19. Resultantly, this appeal is found to be bereft of any substance and the same is hereby dismissed.