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Madhya Pradesh High Court · body

2011 DIGILAW 1388 (MP)

Pandit @ Sampoornanand v. State of M. P.

2011-12-10

RAKESH SAKSENA

body2011
JUDGMENT : Appellanthas filed this appeal against the judgment dated 27-3-1996 passed by Fifth Additional Sessions Judge. Rewa , in Sessions Trial No. 142/1993, convicting theappellant under Section 304-1 of the Indian Penal Code and sentencing him toRigorous Imprisonment for seven years with fine of Rs .500/-. In default of payment of fine, further Rigorous Imprisonment for threemonths. 2.In short, facts of the case are that on 20-5-1993, in the evening when Mahendra Prasad (deceased) and his sons Shashi Kumar (P.W. 1) and Santosh Kumar (P.W. 7) wereremoving stones kept adjacent to the wall of their house and were making anembankment, Kashi Prasad asked them not to do so.Despite that, Mahendra Prasad picked up stones andthrew away. It is said that other accused persons, viz., Raja @ Shivendra Kumar, Indradatt , Muniraj , Ashwani Kumar andappellant reached there. Shivendra and Indradatt caught hold of the hands of Mahendra , appellant took outa knife from his pocket and stabbed him on the left side of the chest. Mahendra fell down. He was taken to hospital, but he died.None lodged formal report about the occurrence, but when a report was receivedfrom Control Room, a merg was registered. Dead bodyof Mahendra Prasad was sent for post-mortemexamination and a Dehati Nalishi report under Section 302/34 of the Indian Penal Code was recorded. 3.Dr. S.K. Pathak (P.W. 8), CMO, in GMH Hospital , Rewa conducted the autopsy and found a stab wound on the left side of the chest ofdeceased. As a result of injury, pericardium and heart of the deceased werecut. He died due to failure of the heart because of excessive bleeding. Afterinvestigation, charge-sheet was filed against six accused persons including theappellant and the case was committed for trial. 4.Charges under Sections 302/149 and 147 of the Indian Penal Code were framedagainst all the accused persons. Appellant was also charged under Sections 302and 148 of the Indian Penal Code. All the accused persons abjured their guilt.According to them, deceased and the members of the complainant party wereforcibly removing stones from the land which belonged to them. When theyobjected to it, Shashi , the son of deceased assaultedappellant with a Danda and deceased took out a knifeand grappled with him. In the quarrel, deceased fell down and suffered injuryby his own knife. 5.With a view to substantiate its case, prosecution examined 10 witnesses. In his defence , appellant also examined 3 witnesses namelyDr. When theyobjected to it, Shashi , the son of deceased assaultedappellant with a Danda and deceased took out a knifeand grappled with him. In the quarrel, deceased fell down and suffered injuryby his own knife. 5.With a view to substantiate its case, prosecution examined 10 witnesses. In his defence , appellant also examined 3 witnesses namelyDr. S.C. Sinha (D.W. 1), Dr. A.A. Siddiqui (D.W. 2) and Raja (D.W. 3). Appellant also exhibited documents ( Exh . D-5 to Exh . D-8) to prove his injuries. LearnedTrial Court after appreciating the evidence on record held other accusedpersons not guilty, however, convicted and sentenced appellant as mentionedabove. 6.Aggrieved by the impugned judgment of his conviction and sentence, appellanthas filed this appeal. 7. Shri Satish Chaturvedi , learned Counsel for the appellant did notassail the finding of guilt of the appellant recordectby the Trial Court, he, hqwever submitted that the TrialCourt committed error in holding the appellant guilty under Section 304-I ofthe Indian Penal Code. According to him, appellant could have been held liableonly under Section 304-II of the Indian Penal Code. On the other hand, Shri R.S. Shukla , learned Panel Lawyer for the State supported and justifiedthe conviction of appellant under Section 304-I of the Indian Penal Code. 8.I have heard the learned Counsel of the parties and perused the impugnedjudgment and evidence on record. 9. Shashi Kumar Mishra (P.W.1), Mahendra Pratap (P.W.2), Shobha (P.W. 3), Surya Prakash Mishra (P.W. 5) and Santosh Kumar Mishra (P.W. 7)were examined as eye-witnesses of the occurrence. Since Mahendra Pratap (P.W. 2) and Surya Prakash Mishra (P.W. 5) gave adifference story at trial then as given by them during investigation, they weredeclared hostile. Shashi , Santosh and Shobha are respectively the sons and daughter ofdeceased Mahendra Prasad. From the evidence of thesewitnesses, it is apparent that the deceased and the appellant had commonancestors. Deceased was uncle of the appellant and both resided in the neighbourhood . None of the witnesses said that there was past enmity between the two parties.According to them, stones of accused Kashi , the uncleof appellant were kept by the side of the wall of the house of deceased.Deceased asked accused persons to remove stones as they obstructed the flow ofwater from their house, but accused Kashi refused forthe same. None of the witnesses said that there was past enmity between the two parties.According to them, stones of accused Kashi , the uncleof appellant were kept by the side of the wall of the house of deceased.Deceased asked accused persons to remove stones as they obstructed the flow ofwater from their house, but accused Kashi refused forthe same. When deceased removed stones from the site, a quarrel ensued, in thecourse of which, accused Raja caught hold of deceased, other accused caught Shashi Kumar and appellant whipped out a knife and stabbedon the chest of deceased. Though, there appeared some inconsistency between theevidence of aforesaid eye-witnesses as to who caught the hands of the deceasedand what was the genesis of the occurrence , yet itappeared clear that the incident occurred all of a sudden and without premeditation. 10.Learned Counsel for the appellant submitted that in the same incident appellantalso suffered injuries, which were reported to police and were also examined bydoctor. Since none of the eye-witnesses explained the injuries of appellant,their version about the genesis of the incident was not reliable. It could notbe inferred that appellant knowingly or intentionally caused the injury on thechest of deceased. Learned Counsel drew my attention to the evidence of Shashi Kumar (P.W. 1), who in Paragraph 4 of his statementdisclosed that the land on which they wereconstructing embankment by removing stones, was being used by accused Kashi since last two years for tying his cattle. Theincident occurred soon after the construction of embankment. Shashi Kumar (P.W. 1) also admitted that when he wasremoving stones appellant asked them not to do that, but they did not yield tohis request and continued to remove stones. Shobha (P.W. 3), in her chief examination, stated that when she heard commotion shecame out of her house and saw that accused dealt a knife blow to her father andran away. She admitted that by erecting wall at the place where stones werekept, the passage of accused persons was narrowed down. 11.None of the aforesaid witnesses, including Santosh Kumar (P.W. 7), disclosed as to how appellant suffered injury. Whenspecifically asked, Santosh denied to have seen anyinjury on the body of appellant. He, however, admitted that on third day of theincident, he came to know that appellant was also admitted in the hospital. 12. 11.None of the aforesaid witnesses, including Santosh Kumar (P.W. 7), disclosed as to how appellant suffered injury. Whenspecifically asked, Santosh denied to have seen anyinjury on the body of appellant. He, however, admitted that on third day of theincident, he came to know that appellant was also admitted in the hospital. 12. Mahendra Pratap (P.W. 2) anindependent witnesses, though declared hostile, disclosed that there had beenan altercation between Mahendra Prasad and appellant.Sons of Mahendra Prasad were removing stones from theplace of occurrence. Appellant asked them not to remove stones as they werekept by him, but they did not yield to his request and deceased grappled withhim. According to this witness, Shashi (P.W. 1) dealta blow with Danda on the head of appellant due towhich deceased and appellant both fell down and deceased contacted injury byknife. Since the versions given by Mahendra Pratap (P.W. 2) and Surya Prakash Mishra (P.W. 5) wereagainst their police statements, they were declared hostile and Trial Court didnot place reliance on their evidence. 13.In the statement of appellant recorded under Section 313 of the Code ofCriminal Procedure, he stated that deceased and his sons were forciblyconstructing embankment on the land which belonged to them. When he asked themnot to erect wall, Shashi assaulted him with a Danda and deceased assaulted him with a knife. In scuffle,deceased fell down and suffered injury. 14.Trial Court after appreciating all the above evidence came to conclusion thatthe right of private defence as claimed by theappellant was not established. However, Trial Court found that the incidentoccurred in a sudden quarrel without any premeditation. Appellant had nointention to commit murder of deceased, but since he caused such injury todeceased from which probability of his death wasimminent, he was liable to be punished under Section 304-I of the Indian PenalCode. 15.Learned Counsel for the appellant drew my attention to the evidence of Dr. A.A. Siddiqui (D.W. 2), who proved the injuries ofappellant. Dr. Siddiqui deposed that on 22-5-1993, heexamined the injuries of appellant. He found ( i )lacerated wound 3 cm x 1/2 cm x 1/2 cm on the left parietal region of theskull, (ii) an abrasion 5 cm long on the left forearm, and (iii) an abrasion 4cm long on the left side of the back. These injuries were simple in nature. Itwas found by the Trial Court that these injuries were received by the appellantin the same incident. These injuries were simple in nature. Itwas found by the Trial Court that these injuries were received by the appellantin the same incident. It is true that it is not necessary for the prosecutionto explain the injuries of accused in all the circumstances, but presence ofinjuries on the body of accused may some times furnish material to test theveracity of the prosecution version. Trial Court, in the instant case foundparticipation of other accused persons doubtful and acquitted them. 16.The version of the eye witnesses in this case remained that appellant suddenlydealt a blow on the chest of deceased and ran away, he did not repeat theassault. From the evidence on record, it also appeared that appellant too wasassaulted. This all occurred on the spur of moment' without any premeditation.In these circumstances, in my opinion, appellant could be attributed with theknowledge that he was likely to cause an injury to deceased which was likely tocause death. In case of Tholan Vs. State of Tamil Nadu , AIR 1984 SC 759 , where accused, on a suddenaltercation took out a Knife from his waist and stabbed deceased on his chestand went away, Apex Court held him guilty under Section 304-II of the IndianPenal Code. The circumstances of the present case appear similar. Therefore, inthe present circumstances, it cannot be held that appellant dealt single knifeblow to deceased with the intention of causing death or causing such bodilyinjury as was likely to cause death. It can, however, be safely held that heassaulted deceased with knife with the knowledge that it was likely to causedeath or to cause such bodily injury as was likely to cause his death. 17.Accordingly, the conviction of appellant under Section 304-I of the IndianPenal Code is modified to one under Section 304-II of the Indian Penal Code andhis sentence is reduced to the Rigorous Imprisonment for four years, thoughwith enhancement of fine. Appellant is ordered to pay a fine of Rs . 7,000/-. This amount shall be deposited in the TrialCourt within a period of three months from today. The amount of fine alreadydeposited by the appellant shall be adjusted in the computation of total amountof fine. In default of payment of fine, he shall suffer further RigorousImprisonment for a period of one year. Bail bond and surety bond of appellantare cancelled. He is directed to surrender forthwith to serve out remainingpart of the sentence. 18.Appeal partly allowed.