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2011 DIGILAW 377 (MP)

Shambhoo Khare v. State of M. P.

2011-03-23

RAKESH SAKSENA, T.K.KAUSHAL

body2011
JUDGMENT : Rakesh Saksena, J. Since aforesaid appeals arise out of the common impugned judgment of conviction, this judgment shall govern the disposal of both the appeals. 2. Appellants have filed these appeals against the judgment dated 13th January, 2004 passed by Sessions Judge, Sehore in Sessions Trial No.118/2003 convicting the appellants under section 302/34 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for one year. 3. Prosecution case in short is that on 18.6.2003 at about 6:45 p.m. complainant Manohar Singh Gaur lodged a Dehati Nalshi Ex.P/1 to police at District Hospital, Sehore that at about 6:00 p.m. when he was coming back from the Housing Board, near the office of District Education Officer, he saw appellants/accused beating his nephew Rakesh, the deceased. Accused Lallu dealt a blow with a Gupti on his chest while other accused persons caught hold of him. When he shouted, accused persons left Rakesh and ran away. With the help of Vijay Rathore, he carried Rakesh to District Hospital Sehore where doctors declared him dead. According to him, on the last night accused persons had insisted Rakesh to let them sleep in his house situated in Awadhpuri and on his not permitting them to sleep there they had beaten him. Because of that enmity accused persons committed his murder. 4. On the basis of aforesaid Dehati Nalshi Ex.P/1 lodged by Manohar Singh (PW-2), first information report Ex.P/7 under section 302 read with section 34 I.P.C. was registered at police station, Sehore against the accused persons. Investigating Officer conducted inquest proceedings and recorded memorandum Ex.P/4 and sent the dead body for postmortem examination. Dr. A.A.Qureshi (PW-9) of District Hospital, Sehore performed the postmortem examination of the body and found one stab wound on the left side of his chest. According to postmortem report Ex.P/11, the injury found on the body of deceased was caused by some sharp penetrating object and the death of deceased was homicidal in nature. Investigating Officer recorded the statements of witnesses and arrested the accused persons. On the information given by accused Lallu, he recovered and seized a Gupti from the culvert in front of Girls College. After completion of investigation, he filed charge sheet in the Court of Magistrate. The case was then committed for trial. 5. Investigating Officer recorded the statements of witnesses and arrested the accused persons. On the information given by accused Lallu, he recovered and seized a Gupti from the culvert in front of Girls College. After completion of investigation, he filed charge sheet in the Court of Magistrate. The case was then committed for trial. 5. Accused abjured their guilt and pleaded false implication. They also relied on Rajendra Singh (CW-1) and Mohd. Siddiq (DW-2) for their defence. 6. Learned Sessions Judge, after trial and upon appreciation of evidence adduced in the case, found accused persons guilty of committing murder of Rakesh by inflicting Gupti blow on his chest in furtherance of common intention of all, convicted and sentenced them under section 302 I.P.C. as aforesaid by the impugned judgment, which has been challenged in these appeals. 7. It was not disputed that deceased Rakesh died of stab injury. It is also reflected from the evidence of Dr.A.A. Qureshi (PW-9) that body of deceased was brought to District Hospital, Sehore for postmortem examination. On 19.6.2003, he conducted postmortem examination of the body and found the injuries mentioned hereunder:- Stab wound over left side of chest entering 3rd intercostal space, obliquely left to right. Margins of the wound were regular, spindle shaped. Size of the wound was 3.5cm x 1.5cm x chest cavity deep. On internal examination, he found left pleural cavity filled with blood and a stab wound on the middle part of left lung measuring 2.5cm x 1.5cm x 1.5cm. Pericardium was cut and was filled with blood. There was also a stab wound on the base of the main artery emerging from heart. Injury was ante mortem in nature and was caused by sharp penetrating object. The death had resulted due to excessive haemorrhage due to stab injury. Death was homicidal in nature and was sufficient to cause death of deceased in ordinary course of nature. Postmortem report Ex.P/11 written and signed by Dr. A.A.Qureshi (PW-9) is also placed on record. It was thus clearly evident that deceased Rakesh died due to homicidal stab injury found on his chest. 8. Learned counsel for the appellants, however, submitted that learned Sessions Judge gravely erred in placing implicit reliance on the evidence of eyewitnesses namely Manohar Singh (PW-2) and Anil Samadhiya (PW-6) who are alleged to be the eyewitnesses of the incident. It was thus clearly evident that deceased Rakesh died due to homicidal stab injury found on his chest. 8. Learned counsel for the appellants, however, submitted that learned Sessions Judge gravely erred in placing implicit reliance on the evidence of eyewitnesses namely Manohar Singh (PW-2) and Anil Samadhiya (PW-6) who are alleged to be the eyewitnesses of the incident. According to learned counsel, these witnesses had not seen the occurrence, their evidence was doubtful and unreliable. Learned counsel in alternative submitted that in the facts and circumstances of the case trial Court erred in holding that all the accused persons shared common intention with accused Lallu @ Abhishek, who is said to have dealt Gupti blow to deceased and that the conviction of accused persons under section 302 I.P.C. was not justified, at the most it could be a case of culpable homicide not amounting to murder. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellants. 9. We have heard the learned counsel for the parties and perused the impugned judgment and entire evidence on record. 10. Learned counsel for the appellants argued that the evidence of Manohar Singh (PW-2) was not reliable because he was a chance witness of the occurrence. He was also close relative of deceased. Though he with the help of Vijay Rathore carried deceased to hospital on his motorcycle, but this fact was belied by the evidence of head constable Rajendra Singh (CW-1) and Mohd. Siddiq (DW-2). 11. Manohar Singh (PW-2) deposed that while he was coming back from the Housing Board after leaving the truck of sand there, he saw that accused Shanker, Shamboo and Manoj surrounded and caught deceased and accused Lallu dealt a blow with Gupti on left side of his chest. When he shouted, all the accused ran away leaving deceased there. With the help of Vijay Rathore he carried deceased to hospital. When police reached there he gave Dehati Nalshi Ex.P/1 to them. According to head constable Rajendra Singh (CW-1), on 18.6.2003, till 8:00 p.m. he was on duty in District Hospital, Sehore. At about 6:00 p.m. deceased was brought to hospital by two boys in an auto rickshaw. Soon thereafter a mob of people reached there, therefore, he gave message to Kotwali from his wireless set. Within 10-15 minutes Town Inspector of police along with force reached there. At about 6:00 p.m. deceased was brought to hospital by two boys in an auto rickshaw. Soon thereafter a mob of people reached there, therefore, he gave message to Kotwali from his wireless set. Within 10-15 minutes Town Inspector of police along with force reached there. According to him, auto rickshaw in which deceased was brought, was of Siddiqui Miyan (DW-2). Mohd. Siddiq (DW-2) deposed that he saw three boys going on a scooter on Bhopal road, suddenly the boy who was sitting in the middle fell down. Other two boys then carried him in his auto rickshaw to hospital. The boy had an injury in his chest and he was smeared with blood. It is true that the evidence of aforesaid witnesses seems inconsistent on the point whether deceased was carried to hospital on a motorcycle or in an auto rickshaw, but the evidence of Manohar Singh (PW-2) finds support from the evidence of Investigating Officer S.R.Dandotiya (PW-10) who deposed that on receiving information on the wireless he went to hospital and found that injured was dead. He recorded Dehati Nalshi Ex.P/1 given by Manohar Singh at 6:45 p.m. Evidence of Manohar Singh (PW-2) is corroborated by the version given by him in Dehati Nalshi Ex.P/1. Incident is said to have been occurred at about 6:00 p.m. and Ex.P/1 was recorded at 6:45 p.m. Learned counsel for the appellants submitted that Dehati Nalshi was concocted and was ante timed, but we are unable to accept the submission of learned counsel for the reason that the said Dehati Nalshi was immediately transmitted to Kotwali Sehore and on the basis of it, first information report Ex.P/7 was registered at 7:15 p.m. Sub Inspector R.K.Meena (PW-4) deposed that on getting Dehati Nalshi, he recorded first information report Ex.P/7. He further deposed that on 19.6.2003 he had sent the copy of first information report to Chief Judicial Magistrate, Sehore after entering it in the Dak Book. Merely because of the discrepancy between the evidence of Rajendra Singh (CW-1) and Manohar Singh (PW-2), evidence of Manohar Singh cannot be discarded. Rajendra Singh (CW-1) though stated that he did not see Manohar Singh with deceased in the auto rickshaw, yet at the same time he could not give out the names of the boys who, according to him, had brought deceased to hospital. Rajendra Singh (CW-1) though stated that he did not see Manohar Singh with deceased in the auto rickshaw, yet at the same time he could not give out the names of the boys who, according to him, had brought deceased to hospital. It is suspicious that CW-1 though noted that the driver of the auto rickshaw in which deceased was brought, was Mohd. Siddiq, who was examined as a defence witness, yet he did not take care to note as to who brought injured in the auto rickshaw. He, however, admitted that he saw witness Manohar Singh within 5-10 minutes after the injured was taken inside the hospital. Evidence of Mohd. Siddiq (DW-2) also does not appear trustworthy in view of his admission that he never disclosed the fact that he brought injured to hospital to anybody till he was examined in the Court. 12. Learned counsel for the appellants submitted that the fact that shirt of Manohar Singh (PW-2) did not get stained with the blood of deceased when he carried him on his motorcycle casts suspicion about the truthfulness of his evidence as an eyewitness. According to Manohar Singh (PW-2), with the help of Vijay Rathore, he had made deceased to sit on the motorcycle while he was in the state of unconsciousness. Vijay Rathore held the deceased by his both hands. Vijay Rathore was though not examined by the prosecution but it seems quite possible while he was holding the deceased by his hands, the flow of blood might have stopped and by his hand been put between deceased and Manohar Singh, the blood might not have stained the clothes of Manohar Singh. We are also unable to accept the submission of learned counsel for the appellants that since the fact that deceased was taken on motorcycle by Manohar Singh (PW-2) was not mentioned in the Dehati Nalshi Ex.P/1, evidence of Manohar Singh (PW-2) was rendered untrustworthy. 13. We find no substance in the submission of learned counsel for the appellants that since Manohar Singh (PW-2) was closely related to the deceased, his testimony was not reliable. In Brahm Swaroop and Anr. Vs. State of U.P. (2011 Cri.L.J. 306), Apex Court observed : "Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. In Brahm Swaroop and Anr. Vs. State of U.P. (2011 Cri.L.J. 306), Apex Court observed : "Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence." 14. Presence of Manohar Singh (PW-2) at the spot cannot be doubted in view of the fact of his lodging Dehati Nalshi Ex.P/1 within 45 minutes of the occurrence mentioning the names of accused persons in it. His evidence stands further corroborated from the evidence of Anil Samadhiya (PW-6) who witnessed the incident. According to Anil Samadhiya, at about 6 o'clock in the evening when he was going towards Housing Board Colony on his scooter, he saw accused persons beating deceased. Suddenly accused Lallu Tomar took out Gupti and dealt its blow in the abdomen of deceased. According to him, at that time, his uncle Manohar, who was coming on the road reached there and with the help of Vijay Rathore, lifted him and took to hospital. Though this witness was cross-examined at length, but nothing material could be elicited to render his evidence untrustworthy. His evidence was criticized by learned counsel for the appellants on the ground that his statement was recorded by police on 26.6.2003 that is about 6-7 days after the incident, but on perusal of his statement, we find that on the next day he had gone to Bhopal by his scooter from where he could return only after about 5-6 days. On knowing that police had called him he went to the police station. He admitted that had police not called him, by himself he would not have gone to give his statement. 15. Learned counsel for the appellants argued that though the incident is said to have occurred on a busy market place on a road where it was heavy traffic, yet not a single independent witness of the locality was examined by the prosecution. 15. Learned counsel for the appellants argued that though the incident is said to have occurred on a busy market place on a road where it was heavy traffic, yet not a single independent witness of the locality was examined by the prosecution. Investigating Officer S.R.Dandotiya (PW-10) stated that on 19.6.2003 i.e. on the next day of the incident when he inquired from the shopkeepers of the locality, none of them spoke about the occurrence, therefore, he did not record their statements. On perusal of the evidence of Investigating Officer, it seems that investigation in the case was somewhat perfunctory, but merely on the ground of carelessness or mistake in the investigation whole of the prosecution case cannot be thrown out. 16. After appraisal of the evidence of the aforesaid witnesses, we find that the evidence of Manohar Singh (PW-2) and Anil Samadhiya (PW-6) is trustworthy. It is established that all the accused persons assaulted deceased, and accused Lallu dealt a blow with a Gupti on his chest resulting in his death. 17. Next submission of the learned counsel for the appellants has been that appellants Shamboo Khare, Manoj Khare and Shanker Khare could not be held to have acted in furtherance of common intention of accused Lallu @ Abhishek who suddenly took out Gupti and dealt its blow on the chest of deceased. Manohar Singh (PW-2) in his chief examination stated that all the accused persons had caught hold of deceased and Lallu had inflicted blow of Gupti, but in para 14 of his cross-examination, he stated that all the accused were beating him and when he stopped his motorcycle and shouted why they were beating him, accused Manoj caught deceased and Lallu Tomar dealt blow of Gupti to him. In para 23 of his statement, Manohar Singh stated that as soon as he shouted, Gupti was taken out from the pocket and pierced, he, however, did not see whether it was taken out from the pocket or from somewhere else. Similarly, Anil Samadhiya (PW-6), the other eyewitness, stated that all the four accused persons were beating deceased with hands, but suddenly appellant Lallu Tomar took out Gupti and dealt its blow in the chest of deceased. Similarly, Anil Samadhiya (PW-6), the other eyewitness, stated that all the four accused persons were beating deceased with hands, but suddenly appellant Lallu Tomar took out Gupti and dealt its blow in the chest of deceased. In these circumstances, it becomes doubtful that accused Shamboo Khare, Manoj Khare and Shanker Khare shared the intention of accused Lallu Tomar to inflict the blow of Gupti in the chest of deceased. However, it can be held with certainty that all the accused assaulted deceased with a view to cause simple hurt to him. They cannot be held liable for the act of accused Lallu Tomar which was his individual act. Thus, the finding of conviction of accused Shamboo Khare, Manoj Khare and Shanker Khare under section 302 read with section 34 I.P.C., recorded by the trial Court, cannot be upheld and deserves to be set aside, instead they deserve to be convicted under section 323/34 I.P.C. 18. Learned counsel for the appellants next submitted that since accused Lallu @ Abhishek is said to have inflicted single blow to deceased in a sudden quarrel on spur of the moment, his conviction under section 302 I.P.C. is not justified. 19. From the evidence of Bhagirath Singh Gaur (PW-1), it appears that in the night of 17.6.2003 there had been a quarrel between accused persons and deceased when deceased did not permit them to stay in his house of Awadhpuri. Bhagirath Singh stated that after that incident, in the night when he went at his house of Awadhpuri, accused Shamboo Khare, Manoj Khare and Lallu met him and apologized for the incident. According to him, on the next day i.e. on the day of incident, he along with deceased went to Chandbarh in connection with the election of his brother. At about 1:30 in the noon deceased went back to Sehore saying that he would come back to Chandbarh after taking bath and changing clothes. It does not seem that there was such dispute or enmity between deceased and the accused which could have led them to commit murder of deceased. According to witnesses Manohar Singh (PW-2) and Anil Samadhiya (PW-6), accused were assaulting deceased by hands but suddenly accused Lallu took out Gupti and dealt its blow on the chest and all of them ran away. According to witnesses Manohar Singh (PW-2) and Anil Samadhiya (PW-6), accused were assaulting deceased by hands but suddenly accused Lallu took out Gupti and dealt its blow on the chest and all of them ran away. It is true that there is no fixed rule that whenever a single blow is inflicted section 302 is not attracted, but in the instant case genesis of the incident was not available. Both the aforesaid eyewitnesses did not say as to how the incident began. The possibility that because of the incident of previous night in which accused Shamboo, Manoj and Lallu had beaten deceased, deceased might have indulged in quarrel with them. The presence of deceased and the appellants at the place of occurrence was just by chance. In these circumstances, it is though established that accused Lallu suddenly inflicted blow of Gupti on the chest of deceased and ran away, yet the possibility that he intended to inflict that particular injury to deceased which in the ordinary course of nature was sufficient to cause death was not established. It was like a hit and run incident. In our opinion, the circumstance in which injury was caused to deceased, appellant Lallu could not be held liable under section 302 I.P.C. However, since he used a weapon like Gupti, it can be held with certainty that he acted with intention of causing such bodily injury to deceased as was likely to cause his death making him liable to be convicted under section 304 Part I of the Indian Penal Code. 20. For the reasons stated above, both the appeals are partly allowed on the following terms: (i) In Criminal Appeal No.128/2004, conviction and sentence of appellants Shamboo Khare, Manoj Khare and Shanker Khare under section 302/34 I.P.C. are set aside, instead they are convicted under section 323/34 I.P.C. and sentenced to rigorous imprisonment for one year. (ii) In Criminal Appeal No.143/2004, conviction and sentence of appellant Abhishek @ Lallu under section 302/34 I.P.C. is set aside, instead he is convicted under section 304 Part I I.P.C. and sentenced to rigorous imprisonment for ten years.