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2011 DIGILAW 225 (MP)

Jai Pratap Dubey v. State of M. P.

2011-02-15

RAKESH SAKSENA, T.K.KAUSHAL

body2011
JUDGMENT : Rakesh Saksena, J. 1. Appellant has filed this appeal against the judgment dated 28.2.2006, passed by Special Judge [Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act], Rewa, in Special Case No.33/2005, convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/-. 2. According to prosecution, on 20.7.2005, at about 10.00 a.m., when Chhotelal, the deceased, was putting soil on the embankment of his field, appellant, whose field was adjacent, reached there, abused him and asked why he was putting soil on his embankment. When he said that he was putting soil on his side, appellant assaulted him with Lathi. Deceased fell down in his field. His daughter-in-law, Chhotidevi, reached there and asked appellant not to beat his father-in-law, but after inflicting some more Lathi blows, appellant went away. Deceased alongwith his son Rambabu and wife Tijiyabai went to Police Station, Jawa, and lodged the first information report (Ex.P/14). Deceased was sent to Community Health Centre, Jawa, for treatment, but, on the same day, at about 7.30 O'clock in the evening, he died. After conducting inquest proceedings and recording the inquest memo (Ex.P/3), dead body of deceased was sent for postmortem examination. Dr. R.L. Singh (PW-12), Medical Officer of community Health Centre, Jawa, conducted the postmortem examination and vide his report Ex.P/13 found two bruise injuries on the back of the deceased. In the opinion of doctor deceased had died due to shock resulting from rupture of his spleen. After completing the investigation, charge sheet was filed and the case was committed for trial. 3. Trial court framed charges under Sections 294, 506B and 302 of the Indian Penal Code and Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. Finding the evidence insufficient to bring home the charge under Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act trial Court acquitted the appellant of that charge, however, relying on the evidence of eyewitnesses Chhotidevi (PW-1), Shakuntala (PW-2), Rambabu Sonkar (PW-3), Tijiyabai (PW-5) and the evidence of first information report (Ex.P/14), recorded on the information given by the deceased, held the appellant guilty and convicted him under Section 302 of the Indian Penal Code. Aggrieved by his conviction and sentence, appellant has filed this appeal. 4. Aggrieved by his conviction and sentence, appellant has filed this appeal. 4. Learned counsel for the appellant submitted that the conviction of appellant under Section 302 of the Indian Penal Code was illegal and incorrect. The trial court did not appreciate the evidence on record in its correct perspective. In view of the fact that the deceased had enlarged spleen and he had died due to rupture of spleen, he could not have been held liable under Section 302 of the Indian Penal Code. He submitted that in the same incident appellant had also suffered injury at the hands of deceased. Injury of the appellant was not explained by the prosecution witnesses. The probability that appellant acted in exercise of right of his private defence could not be ruled out. He further submitted that the incident had occurred suddenly on a quarrel erupted while deceased was putting soil on the embankment of his field. At the most, appellant could have been held liable under Section 304-II of the Indian Penal Code. On the other hand, learned counsel for the State justified and supported the judgment of conviction. 5. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record. 6. Dr. R.L. Singh (PW-12), who was posted as Medical Officer in Community Health Centre, Jawa, deposed that on 21.7.2005 he conducted the postmortem examination of the body of deceased Chhotelal Sonkar. He found following injuries: “(1) Reddish bruise on left side of lower part of back at the level of T-9 vertebra laterally 7 cm x 3 cm. (2) Bruise on left side of scapular region 2 cm x 1 cm.” On internal examination, Dr. R.L. Singh (PW-12) found spleen of the deceased ruptured 3 cm x 2 cm. Abdominal cavity was filled with dark blood. Deceased had died due to haemorrhagic shock as a result of rupture of vital organ spleen due to blunt injury. 7. Sub Inspector B.D. Tripathi (PW-13) deposed that on 20.7.2005 deceased Chhotelal came to police station and lodged the report (Ex.P/14) stating that he suffered injuries due to beating. He sent him to hospital. On getting intimation from the hospital about the death of deceased, he registered the Murg report (Ex.P/15). Station Officer Sheikh Dheeraj (PW-11) deposed that he conducted the inquest proceedings and recorded memorandum (Ex.P/3) of the dead body. He sent him to hospital. On getting intimation from the hospital about the death of deceased, he registered the Murg report (Ex.P/15). Station Officer Sheikh Dheeraj (PW-11) deposed that he conducted the inquest proceedings and recorded memorandum (Ex.P/3) of the dead body. He sent the dead body for postmortem examination to CHC, Jawa. It is thus evident that deceased died due to injuries caused to him and his death was homicidal in nature. 8. Station Officer of Police Station, Jawa, B.D. Tripathi (PW-13), testified that on 20.7.2005 deceased Chhotelal came to police station and lodged the report (Ex.P/14) at about 13.30 Hrs. He recorded the report as stated by the deceased. According to report, at about 11.00 a.m. when deceased was lifting soil from his filed and was putting it on the embankment of his field, appellant Jai Pratap Dubey of village Komia Kala, whose field was adjacent to his field, came there, abused him and asked him not to put soil on the embankment. When he retorted saying that he was putting soil on his side, appellant, who wielded a Lathi, assaulted him with Lathi. He fell down. His grand daughter-in-law Chhotidevi reached there and asked appellant not to beat, but he did not yield to her request. After beating, appellant went away. He suffered injuries on his left shoulder, right hand's elbow and right knee. 9. We are not impressed by the argument advanced by the learned counsel for the appellant that the report of the incident was not reliable. Though the report (Ex.P/14) it was in the nature of first information report recorded on the information given by the deceased, but, since the deceased died as a result of injuries and the statement made by the deceased in the first information report pertained to the cause of his death or at least to the circumstances of the transaction, which resulted in his death, the same may be treated as a dying declaration under Section 32 of the Evidence Act. There is absolutely no material on record to indicate that Sub Inspector B.D. Tripathi (PW-13), who recorded first information report (Ex.P/14), was in any manner interested in falsely implicating the appellant in the offence or he bore any animus or grudge against him. In our opinion, the first information report was a reliable and genuine document and was rightly treated as a dying declaration by the trial Court. In our opinion, the first information report was a reliable and genuine document and was rightly treated as a dying declaration by the trial Court. 10. The aforesaid dying declaration (Ex.P/14) finds support from the evidence of Chhotidevi (PW-1), Shakuntala (PW-2), Rambabu Sonkar (PW-3) and Tijiyabai (PW-5). According to Chhotidevi (PW-1), when she was going to her field, she saw appellant assaulting deceased with a Lathi. On her raising hue and cry, other village people reached there and took deceased to police station, where he lodged the report. The deceased was thereafter taken to hospital for treatment. Though this witness was subjected to a lengthy cross examination, but she stood firm and nothing could be elicited from her statement to render her evidence unreliable. The fact that Chhotidevi reached the place of occurrence finds support from the first information report (Ex.P/14) wherein her name was mentioned by the deceased as a witness of the occurrence. Similar statement was made by Shakuntala (PW-2) and Rambabu Sonkar (PW-3). They also testified that they saw appellant assaulting deceased. Shakuntala (PW-2) stated that while she was grazing her goats, she saw appellant assaulting deceased with Lathi. She reached at the spot after Chhotidevi reached there. According to Rambabu (PW-3), he had gone answer the call of nature. When he was sitting near the mango grove, he heard his Bhabhi Chhotidevi crying. He reached at the spot and saw appellant assaulting his father. There appears no reason to disbelieve the evidence of aforesaid witnesses. 11. After close scrutiny of the evidence of aforesaid eyewitnesses and the evidence of dying declaration (Ex.P/14), we are of the opinion that it was amply established that the appellant assaulted the deceased with Lathi causing injuries to him, as a result of which he died. 12. The next question before us is whether the conviction of appellant under Section 302 of the Indian Penal Code was justified. Learned counsel for the appellant argued that the incident occurred on a sudden quarrel when deceased was putting soil on the embankment of the field, which, according to appellant, belonged to him and that only two injuries were found on the body of deceased, which were not of serious nature and were not on any vital part of the body of accused. 13. From the evidence of Dr. 13. From the evidence of Dr. R.L. Singh (PW-12), who conducted postmortem examination of the body of deceased, it is apparent that only two bruises were found on the back side of the body of deceased; one was a bruise 7 x 3 cm in size near T-9 vertebra; and another was also a bruise 2 x 1 cm on the left side shoulder. In the opinion of doctor, the death of deceased was caused due to haemorrhagic shock resulted from rupture of the spleen. It was admitted by the doctor that no bone of the deceased was found fractured. It was also admitted by him that the spleen of deceased was enlarged, which could have got ruptured by a mere push. 14. According to the version given by appellant in his statement under Section 313 of the Code of Criminal Procedure, deceased was throwing soil on his boundary with a view to encroach over his land. When he asked him not to do so, he dealt a Lathi blow on his head, as a result of which he suffered injury on his head. On his shouting, in an attempt to run away, deceased slipped, fell down and suffered injuries. He had also lodged a report (Ex.D/5) in Police Station, Jawa, on the same day at about 12.15 p.m.. This report was proved by Investigating Officer, Sheikh Dheeraj (PW-11). Sheikh Dheeraj (PW-11) deposed that he had seen injury on the body of appellant and he had sent him for medico legal examination. According to report (Ex.D/5), when appellant objected deceased for his digging the boundary wall of his field, he abused him and dealt a Lathi blow on his forehead. Dr. R.L. Singh (PW-12) deposed that he examined the injury of appellant and found a lacerated wound measuring 6 x 1 cm x bone deep on parietal region of his skull. This injury was caused by hard and blunt object. Injury report (Ex.D/6) was signed by Dr. C.D. Shukla. Since Dr. C.D. Shukla was not well and he knew his handwriting and signatures, he proved the aforesaid report. 15. Chhotidevi (PW-1) admitted that appellant had received injury on his head, but, according to her, he suffered injury by a fall, while running. Shakuntala (PW-2) admitted that she saw blood oozing out from the head of the appellant, but she did not know as to how he suffered injury. 15. Chhotidevi (PW-1) admitted that appellant had received injury on his head, but, according to her, he suffered injury by a fall, while running. Shakuntala (PW-2) admitted that she saw blood oozing out from the head of the appellant, but she did not know as to how he suffered injury. According to Rambabu (PW-3), appellant suffered injury by fall. Thus, from the evidence of these witnesses, it is established that the appellant had also suffered injury at the time of occurrence, however, according to witnesses, he suffered injury by a fall. 16. On a closer scrutiny of the aforesaid evidence, we find that there was no past enmity between appellant and the deceased. Appellant had no motive or intention to cause death of the deceased. The incident occurred on a sudden quarrel without premeditation, on the spur of moment, wherein appellant dealt Lathi blows on the back of deceased. No bone of the deceased was fractured, no other internal organ of the deceased was crushed. As stated by Dr. R.L. Singh (PW-12), the spleen of the deceased, which was enlarged, was found ruptured. In the same incident appellant also suffered injury on his head. In these circumstances, in our considered opinion, the case of appellant would fall within the ambit of Exception 4 of Section 300 of the Indian Penal Code making him liable to be punished under Section 304-II of the Indian Penal Code. 17. Accordingly, the conviction and sentence of the appellant under Section 302 of the Indian Penal Code, awarded by the trial Court, is set aside, instead he is convicted under Section 304-II of the Indian Penal Code and sentenced to rigorous imprisonment for five years. If appellant, who is said to be in custody since 28.7.2005, has served out the above sentence, he shall be released forthwith, if not required in any other case. 18. Appeal partly allowed.