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2011 DIGILAW 162 (MP)

Jagdish Tiwari v. State of M. P.

2011-02-03

RAKESH SAKSENA, T.K.KAUSHAL

body2011
JUDGMENT : Rakesh Saksena, J. This appeal is directed against the judgment dated 17th August, 2001 passed by VIth Additional Sessions Judge, Bhopal in Sessions Trial No.292/1999 convicting appellant No.1 Jagdish under sections 302 and 307 of the Indian Penal Code (on two counts) and sentencing him to imprisonment for life with fine of Rs.500/- and rigorous imprisonment for 7 years with fine of Rs.3000/- on each count, respectively. Appellant No.2 Kunal Tiwari has been convicted under section 307/34 of the Indian Penal Code (2) (on two counts) and sentenced to rigorous imprisonment for 7 years with fine of Rs.3000/- on each count, respectively. Sentences have been directed to run concurrently. 2. Facts in nutshell are that complainant Parvez, accused Kunal and Jagdish are neighbors. They lived in Ibrahimganj, Bhopal. In the noon of 16.6.1999 there had been a quarrel between Manzoor, the elder brother of the father of complainant Parvez on one side and father and brothers of accused Jagdish on the other side on a dispute of erecting balcony in front of their house. Manzoor had suffered injuries and was admitted in the hospital. When Parvez came to his house, he was informed by his family members that Manzoor was admitted in the hospital, therefore, he should go and see him. At about 4:30 p.m. when Parvez came out of his house for going to his coaching classes, he saw accused Jagdish and his brother Kunal trying to enter the house of his uncle. When he asked them not to do so, Jagdish inflicted several blows by Gupti to him causing injuries on his chest, abdomen and hand. When Parvez's father Mushtaq came to rescue him, Kunal and Ranjit caught hold of him and Jagdish dealt a blow with Gupti on right side of his chest. Jagdish and Kunal when dragged Parvez, his sister Shabina, aged about 18 years, tried to save him then Jagdish pierced his Gupti on the chest of Shabina as a result of which she fell down. Jagdish also inflicted an injury by Gupti on the leg of Parvez's mother Shamshad. Shamshad brought an auto- rickshaw and carried Parvez, Mushtaq and Shabina to Hamidya Hospital where Parvez gave Dehati Nalishi Ex.P/1 to police inspector S.M. Zaidi (PW-14). On the basis of Dehati Nalishi, first information report Ex.P/2 was recorded at police station, Hanumanganj. 3. After medical examination, Shabina was declared dead. Shamshad brought an auto- rickshaw and carried Parvez, Mushtaq and Shabina to Hamidya Hospital where Parvez gave Dehati Nalishi Ex.P/1 to police inspector S.M. Zaidi (PW-14). On the basis of Dehati Nalishi, first information report Ex.P/2 was recorded at police station, Hanumanganj. 3. After medical examination, Shabina was declared dead. Injuries of Parvez and Mushtaq were examined by Dr. R.S. Chitodiya (PW-11) and Dr. Rakesh Kumar Saxena (PW-13). They were subjected to surgical treatment. 4. Investigating Officer went at the spot, prepared spot map and sent the dead body of Shabina for postmortem examination. Dr. D.K. Satpathi, Director Medico Legal Institute, Bhopal conducted autopsy and found a stab wound on the right side of chest of Shabina and gave his report Ex.P/23. In his opinion, the death of Shabina was caused due to shock and haemorrhage as a result of stab injury to the chest. Death was homicidal in nature. 5. Accused persons were arrested. On the information given by accused Jagdish, a Gupti was recovered and was sent for examination to Forensic Science Laboratory. 6. After investigation, charge sheet was filed against accused Jagdish, Kunal Tiwari and Ranjit Singh. All the accused abjured their guilt. According to them, because of past quarrel prosecution witnesses falsely implicated them. They also examined Dr. R.K. Jain (DW-1) and ASI Vishwanath Dubey (DW-2) in their defence. 7. Trial Court relying mainly on the evidence of eyewitnesses Shamshad Bano (PW-3), Mohd. Parvez (PW-4) and Mohd. Mushtaq (PW-5) and finding it supported by the medical evidence, held the appellants guilty and convicted and sentenced them as aforesaid, however, finding the evidence on record insufficient against accused Ranjit Singh, acquitted him. Aggrieved by the impugned judgment, appellants have filed this appeal. 8. Learned counsel for the appellants submitted that the evidence of eyewitnesses who are close relatives and family members of deceased is not reliable. The incident had occurred suddenly without premeditation. Accused had also suffered injury in the incident, therefore, the conviction of appellant Jagdish under section 302 of the Indian Penal Code was not justified. He further submitted that the conviction of appellant Kunal under section 307 with the aid of section 34 of the Indian Penal Code was also not justified as he had not used any weapon. At the time of incident, he was only a young boy of about 17 years of age. 9. He further submitted that the conviction of appellant Kunal under section 307 with the aid of section 34 of the Indian Penal Code was also not justified as he had not used any weapon. At the time of incident, he was only a young boy of about 17 years of age. 9. Per contra, learned counsel for the State, while supporting the impugned judgment, contended that having regard to the injuries found on the person of deceased, the conviction of appellant Jagdish under section 302 of the Indian Penal Code was quite justified and that there was enough evidence to establish that both the appellants had attempted to commit murder of injured persons, as such no interference was called for with the impugned judgment. 10. We have heard the learned counsel for the parties, considered the evidence, circumstances and the probabilities of the case carefully. 11. It has not been disputed that deceased Shabina died of homicidal injuries. Dr. Rakesh Kumar Saxena (PW-13) testified that on 16.6.1999 he was posted as emergency medical officer in Hamidya Hospital, Bhopal. On that day, Shabina, daughter of Mushtaq was brought to hospital. On her examination, he had seen blood oozing out from her nose and mouth and she was already dead. He had given his report Ex.P/26 in that regard. Dr. D.K.Satpathi (PW-12), Director Medico Legal Institute, Bhopal deposed that he conducted postmortem examination of the dead body of Shabina and found following injury on her body:- "Stab wound on right chest lower quadrant of right breast vertical, one end sharp cut and other broad 2 x 1cm situated 9 cm right to mid line, 16 cm lower to clavicle. It had entered into 4th space by cutting cartilage then lung (right) middle lobe, then heart right auricle. Pericardium cavity was full of blood. The total length of wound was 12 cm obliquely medially and posteriorly in same plain." According to him, death was due to shock and hemorrhage as a result of stab injury to chest which was caused by hard and sharp penetrating object. Death was homicidal in nature and was caused within 24 hours since postmortem examination. Postmortem report Ex.P/22 was written and signed by him. 12. Thus, it is amply established that the death of deceased was homicidal in nature. It was also not disputed that injured Parvez (PW-4) and Mushtaq (PW-5) suffered grievous injuries. Dr. Death was homicidal in nature and was caused within 24 hours since postmortem examination. Postmortem report Ex.P/22 was written and signed by him. 12. Thus, it is amply established that the death of deceased was homicidal in nature. It was also not disputed that injured Parvez (PW-4) and Mushtaq (PW-5) suffered grievous injuries. Dr. Rakesh Kumar Saxena (PW-13) examined the injuries of both the injured persons. According to him, on examining the person of Parvez, he found following injuries:- (i) Incised wounds three in number on left side of chest over sternum; (ii) Incised wound on lateral margin of left forearm; (iii) Incised wound on abdomen, left hypochondrial region. Injury report of Parvez is Ex.P/24. Injury of Mushtaq: "Incised wound on lower margin of right side of chest." His injury report is Ex.P/25. According to Dr. Saxena, he referred both the patients to RSO surgery for further treatment. 13. Dr. R.S. Chitodiya (PW-11) who also examined the injuries of Parvez and Mushtaq on 16.6.1999, deposed that he found following injuries on their bodies:- Injuries of Parvez: (i) Incised wound over left pericardium elliptical 1" left to mid line size 1/2 cm. (ii) Incised wound on mid line at lower end of manubrium 1/2 cm elliptical. (iii) Incised wound 1/2 cm elliptical left to mid line on pericardium region 2cm above injury No.2. (iv) Punctured wound over left hypochondrium 2mm elliptical 2mm deep. (v) Penetrating wound on right anterior axillary line 1cm long elliptical in 6th intercostal space. Patient was advised X-ray and was subjected to operation. Tears of his stomach and diaphragm were repaired. There was 1cm long tear in the left lobe of liver where there was acute bleeding. There was also acute bleeding in the tear of stomach and diaphragm. He also found one incised wound 1cm x 0.3 cm on the left wrist, incised wound 2cm x 0.3cm on left elbow and punctured wound 0.5cm x 0.5cm on left upper arm. All the aforesaid injuries were caused by hard and sharp object and were dangerous to life. 14. On the same day, Dr. Chitodiya (PW-11) found following injury on the body of Mushtaq:- "Penetrating wound on right hypochondrium 11/2 cm long elliptical up to peritoneal cavity, there was bleeding." He during operation repaired the tears of his liver which were of 6x0.5x2cm in size. 14. On the same day, Dr. Chitodiya (PW-11) found following injury on the body of Mushtaq:- "Penetrating wound on right hypochondrium 11/2 cm long elliptical up to peritoneal cavity, there was bleeding." He during operation repaired the tears of his liver which were of 6x0.5x2cm in size. This injury was caused by hard and sharp object and was dangerous to life of the patient. Report Ex.P/21 was written and signed by him. 15. From the evidence of Dr. Rakesh Kumar Saxena (PW-13) and Dr. R.S.Chitodiya (PW-11), it stands proved that Parvez and Mushtaq suffered injuries by hard, sharp and pointed weapon and their injuries were dangerous to life. 16. Now the question before us is whether appellant Jagdish caused the injuries to deceased, Parvez and Mushtaq with intention to commit their murder and whether appellant Kunal Tiwari acted in furtherance of common intention with accused Jagdish in attempting to cause death of Parvez and Mushtaq. 17. Prosecution mainly rests on the evidence of Shamshad Bano (PW-3), Mohd. Parvez (PW-4) and Mohd. Mushtaq (PW-5) who are injured persons and are family members of deceased Shabina. It is true that no independent witness supported the prosecution case but merely on that ground the evidence of eyewitnesses who themselves suffered injuries in the occurrence cannot be altogether discarded. Prosecution though examined Mohd. Salim (PW-7), Prahlad (PW-9) and Shahid (PW-10) as eyewitnesses before the Court, but they did not support the prosecution case as such they were declared hostile. It has been held by the Apex Court in Rajesh Kumar vs. State of H.P.- AIR 2009 SC 1 that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. In the instant case, Shamshad (PW-3), Parvez (PW-4) and Mushtaq (PW-5) are respectively the mother, brother and father of deceased Shabina and their presence at the place of occurrence stands established from the injuries found on their bodies which they received at the hands of accused in the same incident. 18. In the instant case, Shamshad (PW-3), Parvez (PW-4) and Mushtaq (PW-5) are respectively the mother, brother and father of deceased Shabina and their presence at the place of occurrence stands established from the injuries found on their bodies which they received at the hands of accused in the same incident. 18. Shamshad Bano (PW-3) categorically stated that around 2:00-2:30 p.m. on 16.6.1999 there had occurred a quarrel between the father of accused persons and her husband's elder brother Manzoor over a dispute of construction of balcony in the house of Manzoor. Manzoor had received injury and he was admitted in Hamidya Hospital. At about 4:00 p.m. when her son Parvez came she informed him about the incident and asked him to go and see Manzoor in the hospital. Parvez wanted to go to hospital after attending coaching classes. While Parvez was going, she, Shabina and her husband Mushtaq came out of the house to see him off, they saw accused Jagdish wielding a Gupti and kicking the shutter of the house of Manzoor. Accused Kunal and Ranjit were with him. When Parvez asked them to refrain from doing that, Jagdish rushed towards him and dealt blows with Gupti on his abdomen, chest and right hand. When Mushtaq tried to save him, Kunal and Ranjit caught hold of him and Jagdish dealt a Gupti blow in his chest as a result of which he fell down. When accused persons tried to drag Parvez, her daughter Shabina rushed to save him, but Jagdish dealt a blow of Gupti in her chest. Shabina fell down with bleeding nose and mouth. According to Shamshad Bano, when she tried to save Shabina, Jagdish also dealt a blow by Gupti on her leg. This witness was subjected to a lengthy cross- examination but she remained firm and nothing material could be elicited out to render her testimony unworthy of credit. The testimony of Shamshad Bano (PW-3) was amply corroborated by the evidence of Mohd. Parvez (PW-4) and Mohd. Mushtaq (PW-5) who suffered injuries at the hands of Jagdish. Their evidence was fully consistent, cogent and trustworthy. The omission of the fact that witnesses saw accused persons kicking the shutter of the house of Manzoor does not appear material causing any dent in the prosecution case. Parvez (PW-4) and Mohd. Mushtaq (PW-5) who suffered injuries at the hands of Jagdish. Their evidence was fully consistent, cogent and trustworthy. The omission of the fact that witnesses saw accused persons kicking the shutter of the house of Manzoor does not appear material causing any dent in the prosecution case. It is also true that all the aforesaid witnesses stated about the participation of accused Ranjit in the incident also, but trial Court acquitted him because his name was not mentioned in the first information report Ex.P/2 lodged by Parvez (PW-4). Parvez (PW-4) and Mushtaq (PW-5) categorically stated that Jagdish dealt Gupti blows to them in succession and ultimately inflicted injuries by Gupti to Shabina also as a result of which she died, we find absolutely no reason to disbelieve their evidence. 19. Evidence of Shamshad Bano (PW-3), Mohd. Parvez (PW-4) and Mohd. Mushtaq (PW-5) finds corroboration by the medical evidence of Dr. R.S. Chitodiya (PW-11), Dr. D.K.Satpathi (PW-12) and Dr. Rakesh Kumar Saxena (PW-13) who found injuries by sharp and pointed object on their bodies as well as on the body of deceased. In the opinion of Dr. R.S.Chitodiya (PW-11), injuries found on the body of Parvez and Mushtaq were dangerous to their lives. The injuries were found on the vital parts of the body like chest and abdomen, therefore, it can be gathered that assailant Jagdish intended to cause death of the injured persons and the deceased as well. 20. Learned counsel for the appellants on the strength of the evidence of Dr. R.K. Jain (DW-1) argued that since accused Jagdish and Kunal were found to have one injury each, there was some probability that the case might be of a reciprocal quarrel. We are unable to accept the said argument because the injuries of accused were too trivial and simple in nature and it was not even suggested by the defence to the prosecution witnesses that they caused any injury to accused persons. It is apparent from the evidence on record that the deceased and injured persons were empty handed. In these circumstances, there seems not a slightest doubt that the instant case was not an incident of sudden quarrel. We are, therefore, of the view that the prosecution has established that appellant Jagdish caused the death of Shabina with the intention of committing her murder. In these circumstances, there seems not a slightest doubt that the instant case was not an incident of sudden quarrel. We are, therefore, of the view that the prosecution has established that appellant Jagdish caused the death of Shabina with the intention of committing her murder. It has also been established that appellant Jagdish attempted to commit murder of Parvez and Mushtaq. The conviction of appellant Jagdish under sections 302 and 307 I.P.C. (on two counts) is, therefore, affirmed. 21. From the evidence of Shamshad Bano (PW-3), Parvez (PW-4) and Mushtaq (PW-5) that when they came out of their house and saw the appellants kicking the shutter of the house of Manzoor and trying to pull down the wooden poles supporting the under construction balcony of the house, and when Parvez asked them not to do that, suddenly appellant Jagdish who was wielding a Gupti rushed and dealt its blow to him. It is not indicated from the evidence that appellant Kunal in any manner assisted or abetted Jagdish in causing injuries to Parvez, therefore, in our opinion, it cannot be necessarily inferred that Jagdish acted in furtherance of common intention with appellant Kunal, as such the conviction of appellant Kunal under section 307 read with section 34 I.P.C. for attempting to commit murder of Parvez cannot be sustained. However, there is enough evidence to indicate that when injured Mushtaq tried to save Parvez, Kunal caught hold of him facilitating Jagdish to inflict the blow of Gupti on the abdomen of Mushtaq. His conviction, therefore, under section 307/34 I.P.C. for attempting to commit murder of Mushtaq seems well founded. 22. Learned counsel for the appellants stated that at the time of occurrence which took place in the year 1999, appellant No.2 Kunal Tiwari was a young boy of about 17 years of age. He is younger brother of Jagdish. He himself did not cause any injury to anybody. He was not even armed. It is also on record that in the earlier incident in which Manzoor suffered injuries, father and brothers of appellants had been arrested under section 151 Cr.P.C. proceedings. Only one injury was caused by Jagdish to injured Mushtaq. In these circumstances, learned counsel submitted that the sentence of both the appellants under sections 307 and 307/34 I.P.C. respectively deserved to be reduced. We find substance in the submissions made by learned counsel for the appellants. 23. Only one injury was caused by Jagdish to injured Mushtaq. In these circumstances, learned counsel submitted that the sentence of both the appellants under sections 307 and 307/34 I.P.C. respectively deserved to be reduced. We find substance in the submissions made by learned counsel for the appellants. 23. For the aforementioned reasons, this appeal is partly allowed in the following terms:- (i) Conviction of appellant No.1 Jagdish under sections 302 and 307 of Indian Penal Code on both the counts is affirmed. His sentence under section 307 I.P.C. in respect to injured Parvez, as awarded by the trial Court, is affirmed. However, his sentence of 7 years under section 307 I.P.C. for attempting to commit murder of Mushtaq (PW-5) is reduced to rigorous imprisonment for two years. Sentence of fine is affirmed. (ii) Conviction of appellant No.2 Kunal Tiwari under section 307/34 I.P.C. for attempting to commit murder of Parvez (PW-4) is set aside. He is acquitted of that charge. His conviction under section 307/34 I.P.C. for attempting to commit murder of Mushtaq (PW-5) is affirmed. However, the sentence of 7 years rigorous imprisonment awarded to him is reduced to rigorous imprisonment for two years. Sentence of fine is affirmed.