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2011 DIGILAW 89 (MP)

Mehtab S/o Sumran Vishwakarma v. State of M. P.

2011-01-20

RAKESH SAKSENA, T.K.KAUSHAL

body2011
JUDGMENT Rakesh Saksena, J. 1. Appellant has filed this appeal against the judgment dated 11.2.2002 passed by First Additional Sessions Judge, Chhindwara in Sessions Trial No. 330 of 1999, convicting him under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/- in default of payment of fine, further rigorous imprisonment for three months. 2. In short, the prosecution case is that Appellant was married to Jamuna Bai. His relations with Jamuna Bai were not cordial. After frequent quarrels, he used to send Jamuna Bai to her parent's house situated in Neuton No. 11, Parasiya. On 10.9.1999, Appellant went to the house of her in-laws and stayed there till 11.9.1999. At about 9.45 P.M., he wanted to go back to his house. His father-in-law Deena, mother-in-law Leelawati, wife Jamuna Bai, sister-in-law Urmila and brother-in-law Santosh asked to him not to go in the night, but he insisted much to go at once. When Santosh tried to stop him from going and caught hold of him, Appellant took out a knife from his pocket and inflicted injuries to him on his chest, hands and thigh. Santosh fell down and Appellant ran away from there. Deena, the father of Santosh carried him to Police Chowki Neuton and lodged the report Ex. P/1. 3. Santosh was sent to Primary Health Centre, Parasiya for medical examination and treatment, but as soon as he reached there, he expired. Before his death, the injuries of deceased were examined by Dr. R.K. Basod (PW3). His injury report is Ex. P/7. After the death, Dr. N.S.K. Belia (PW9) conducted the postmortem examination of the body and vide his report Ex. P/14 found five stab/incised injuries on his body. According to him, injuries were caused by some sharp cutting object and were ante mortem and homicidal in nature. 4. After investigation, charge sheet was filed in the Court of Magistrate and the case was then committed to the Court of Sessions for trial. 5. During trial, Appellant abjured his guilt and pleaded false implication. According to his statement recorded under Section 313 of the Code of Criminal Procedure, prosecution witnesses deposed against him because of their being relatives of the deceased. 6. Prosecution examined 12 witnesses to substantiate its case. Deena (PW1), Leelawati (PW2), Urmila (PW4), Jamuna (PW5) were examined as eye witnesses of the occurrence. Dr. According to his statement recorded under Section 313 of the Code of Criminal Procedure, prosecution witnesses deposed against him because of their being relatives of the deceased. 6. Prosecution examined 12 witnesses to substantiate its case. Deena (PW1), Leelawati (PW2), Urmila (PW4), Jamuna (PW5) were examined as eye witnesses of the occurrence. Dr. R.K. Basod (PW3) and Dr. N.S.K. Belia (PW9) were examined to prove the injuries found on the body of deceased. 7. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, convicted and sentenced the Appellant under Section 302 of the Indian Penal Code as aforesaid by the impugned judgment, which has been challenged in this appeal. 8. We have heard the learned Counsel for the parties. 9. It was no longer disputed that deceased Santosh died of homicidal injuries. It is also reflected from the evidence of Dr. R.K. Basod that when deceased was brought to Primary Health Centre, he examined him and found following injuries on his body: (i) Incised wound on right axillary region 2 cm x 1/2 cm x 3 cm deep to thoracic cavity at 3rd internal coastal space, (ii) incised wound on right hand posterior side of index finger and right thumb 12 cm x 1/2 cm x 1/2 cm, (iii) incised wound 3 cm away from injury No. 2 1 cm x 1/2 cm x 1/4 cm, (iv) incised wound on left arm 2 cm x 1/2 cm x 2.5 cm bleeding and (v) incised wound on left thorax at mid clavicle line at 6th internal coastal space 3.5 cm x 1/2 cm x 4 cm. All the above injuries were caused by hard and sharp edged weapon. Injury No. 1 was grievous in nature. There was excessive bleeding from the injury and it was dangerous to life. Injury report is Ex. P/7. 10. After the death of deceased Dr. N.S. K. Belia (PW9) performed the postmortem examination of the body. According to him, he also found five stab/incised injuries located at 3rd internal coastal rib, between index finger and thumb of right hand, right hand, left arm and a penetrating injury on left chest at 6th internal coastal space. Muscle and bone was cut. On internal examination, he found injuries on ribs and lungs. In his opinion, the injuries were ante mortem and were caused by sharp and pointed object. Muscle and bone was cut. On internal examination, he found injuries on ribs and lungs. In his opinion, the injuries were ante mortem and were caused by sharp and pointed object. Injuries No. 1 and 5 were sufficient to cause death of deceased. 11. Apart from the above evidence, from the evidence of Deena (PW1), Leelawati (PW2), Urmila (PW4) and Jamuna (PW5), it is established that injuries were caused to deceased and as a result of injuries he had died. A.S.I. S.L. Jhariya (PW12) deposed that on receiving the merg intimation he went at the postmortem house and conducted inquest. He also recorded Dehati Nalshi Ex. P/3. Postmortem report is Ex. P/4. It was thus clearly established that deceased Santosh died of homicidal, incised and stab injuries. 12. Learned Counsel for the Appellant, however, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of eye witnesses, who were close relatives of the deceased. She also submitted that even if it was found that Appellant caused the death of deceased, the conviction of Appellant under Section 302 of the Indian Penal Code was not justified. At the most, he could be held liable for commission of the offence under Section 304-Part I or II of the Indian Penal Code only as the incident had occurred suddenly without premeditation in a sudden quarrel. Appellant was in custody since 13.9.1999. He has served out more than 10 years of his sentence. Learned Counsel for the State, on the other hand, justified and supported the conviction and sentence of the Appellant. 13. We have carefully considered the evidence, circumstances and the probabilities of the case. We have also gone through the judgment under appeal with the help of both the learned Counsel for the parties. 14. It is true that no independent witness has been examined in the case, but merely on that count the evidence of relative witnesses cannot be discarded. It has been held by the Apex Court in Rajesh Kumar v. 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 partialty is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. On the contrary, reason has to be shown when a plea of partialty is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. In the instant case, it is significant to note that the accused is the son-in-law of complainant Deena (PW1) and Leelawati (PW2). Eye witness Urmila (PW4) is also the sister-in-law of accused. 15. Urmila (PW4) deposed that at the time of incident, her sister Jamuna Bai (PW5) was at her house. Her Jija (accused) had also come to her house. When Appellant said that he wanted to go back, her father-in-law Deena (PW1) asked Appellant to go in the morning and that he should take with him Jamuna also, but Appellant insisted to go at that time only. On his asking, Jamuna gave her suitcase. When Appellant went at the door, she and her brother Santosh, the deceased also went there. Appellant told to her that key of the suitcase was not there and he asked Urmila to bring the key. When she asked her mother about the key, it was informed that the key was with the Appellant only. When she was coming back, she saw Appellant assaulting deceased with knife. He inflicted injuries on his chest, right hand, left arm, thigh and ran away. Deceased was taken to hospital Badkuhi, but he expired. 16. The evidence of Urmila (PW4) finds support from the evidence of Jamuna (PW5), Deena (PW1) and Leelawati (PW2). Though, in the chief examination, Deena (PW1) deposed that he saw Appellant assaulting the deceased, but in para 6 of his statement he admitted that at the time of occurrence only Urmila was there, he and his wife Leelawati had reached at the spot later. At the time of incident, he was in his old house, situated at 10-12 paces away from the new house where the incident occurred. According to him, when he was talking with other family members in the old house, Urmila came shouting that deceased got injured and fell down, thereafter he rushed to the spot and saw deceased lying on the earth. Leelawati (PW2) deposed that Appellant had come to her house on 10.9.1999 and stayed for one day. On 11.9.1999, he asked for a suitcase from Jamuna for going back. Leelawati (PW2) deposed that Appellant had come to her house on 10.9.1999 and stayed for one day. On 11.9.1999, he asked for a suitcase from Jamuna for going back. She, Urmila, Jamuna and deceased were there, suddenly when deceased stopped to Appellant, he inflicted about five blows of knife to him. She was present at the place of incident. In the cross examination, she admitted that Urmila, deceased and the Appellant were at new house whereas other family members were in the old house. Urmila, though had come demanding the key of the suitcase, but she had gone back, thereafter other persons reached at the new house. She admitted that when she reached at the house, she saw deceased lying injured, but she stated that Appellant left the spot before her. Similarly, Jamuna (PW5), wife of Appellant stated that in the evening at about 8 P.M., suddenly Appellant wanted to go. Though, all the family members asked him to go in the morning, but he did not yield to their request. When deceased and Urmila went in front of the house to see him off and deceased again tried to stop him, he took out a knife from his pocket and dealt blows to deceased. According to this witness, all the persons including the Appellant were at the old house. She admitted that she was preparing food in the old house, but she saw the incident. 17. On examining the evidence of aforesaid witnesses, we find some inconsistencies and contradictions in their statements, but in our opinion, they are not of such nature to discard their testimony altogether. The evidence of Urmila (PW4) is natural and appears truthful. It finds support from the evidence of Deena (PW1), Leelawati (PW2), Jamuna (PW5). It is true that there appears doubt about the evidence of Deena, Leelawati and Jamuna that they themselves saw the incident, but it is acceptable that they reached the spot immediately after the Appellant assaulted the deceased. The presence of Urmila (PW4), at the time of occurrence is clearly established from the evidence of these witnesses. Presence of Appellant at the house is also established from their evidence. Even Appellant himself did not dispute his presence in the house of deceased. There appears no reason for the aforesaid prosecution witnesses to falsely involve the Appellant in the incident especially because he happens to be the husband of Jamuna (PW5). Presence of Appellant at the house is also established from their evidence. Even Appellant himself did not dispute his presence in the house of deceased. There appears no reason for the aforesaid prosecution witnesses to falsely involve the Appellant in the incident especially because he happens to be the husband of Jamuna (PW5). The evidence of Urmila (PW4) stands further corroborated by the evidence of Dr. R.K. Basod (PW3) and Dr. N.K.S. Belia (PW9), who found incised and stab injuries on the body of deceased. 18. In these circumstances, there appears no reason to doubt that it was Appellant only, who inflicted injuries by knife to deceased, as a result of which he died. 19. The next submission of learned Counsel for the Appellant has been that in the facts and circumstances of the case, the conviction of Appellant under Section 302 of the Indian Penal Code was not justified and at the most he could be held liable for the offence of culpable homicide not amounting to murder. 20. On perusal of the evidence on record, it appears that relations between the Appellant and his wife Jamuna (PW5) were not cordial. Due to harassment, meeted out by him, Jamuna often used to go to her parents house and live there for several days. Deena (PW1) stated that the Appellant used to beat Jamuna. When Appellant left his two minor children with him, he asked him to take away the children, but he did not yield to his request. Leelawati (PW4) and Jamua (PW5) stated that suddenly when Appellant wanted to go back in the night, they wanted to stop him. Urmila (PW4) told to him that he should take with him Jamuna also in the morning, but he insisted to leave at once. Urmila (PW4), though denied that deceased caught hold of Appellant with a view to stop him from going when incident occurred, but she was confronted with her police statement Ex. D/3, wherein she disclosed that Appellant inflicted knife injury to deceased when he caught him. Deena (PW1) categorically stated that there was no enmity or quarrel between the Appellant and the deceased. Even there was no quarrel between them on the day of occurrence or before that. D/3, wherein she disclosed that Appellant inflicted knife injury to deceased when he caught him. Deena (PW1) categorically stated that there was no enmity or quarrel between the Appellant and the deceased. Even there was no quarrel between them on the day of occurrence or before that. In these circumstances, it is evident that there was no enmity or motive for the Appellant to commit murder of the deceased, however it seems probable that when Appellant suddenly took up in his mind to go back, when stopped by the deceased, suddenly on the spur of moment he took out knife from his pocket and inflicted injuries to him. Appellant remained at the house of deceased at least for one day without any trouble. Thus, the facts of the case and the evidence of prosecution indicate that the assault was not premeditated. It sparked off suddenly when deceased, against the wish of Appellant, caught hold of him with a view to stop him from going in the night. He inflicted injuries in a spur of moment. We, therefore, find substance in the submission made by learned Counsel for the Appellant that Appellant is entitled to the benefit of exception 4 of Section 300 of the Indian Penal Code, and the offence committed by the Appellant was culpable homicide not amounting to murder. However, there can be no doubt that Appellant used a weapon like knife, therefore, it can be inferred that he intended to cause such bodily injuries to deceased which were likely to cause his death. We are, therefore, of the view that Appellant is liable to be punished under Part I of the Section 304 of the Indian Penal Code. 21. For the reasons aforesaid, the finding of learned Additional Sessions Judge holding the Appellant guilty of the offence of murder punishable under Section 302 of the Indian Penal Code is set aside and he is held guilty for commission of the offence of culpable homicide not amounting to murder punishable under Section (Part-I) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for three months. 22. Appeal is allowed to the extent indicated hereinabove.