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2012 DIGILAW 231 (CHH)

Dila Alias Avatar Singh v. State of M. P.

2012-09-12

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.: 1. This appeal is directed against the judgment dated 31st of January, 1997 passed in Sessions Trial No. 50/96 by the Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to imprisonment for life. 2. The facts, briefly stated, are as under : Deceased- Basant Soni had a small bicycle shop. The appellant had a betel shop near the shop of the deceased. Both were well known to each other. On 14.10.95 at about 22.00 hours, Munna Kachhi (PW 9), Ayodhya Prasad (PW 4) and their friends were sitting in front of the shop of the deceased. Santosh Yadav (PW 6) and Dila (appellant herein) also came there in drunken condition. They also sat in front of the shop of the deceased. After sometime, the deceased also came there, and on some altercation, a quarrel begun between the appellant and the deceased. The allegations are that on quarrel, the appellant went to his betel shop and brought a scissors from the shop and gave scissors blow on the abdomen of the deceased. The incident was witnessed by Ayodhya Prasad (PW 4), Santosh Yadav (PW 6) and Munna Kachhi (PW 9). The deceased fell down in injured condition. Ku. Santoshi Soni (PW 5 - sister of the deceased) any how got the message. She immediately rushed to that place and found the deceased in injured condition. When she asked as to how it happened, the deceased made oral dying declaration before her that he was assaulted by appellant by a scissors. The matter was reported to the police by Ku. Santoshi Soni (PW 5) at about 22.30 hours, on which, the First Information Report (F.I.R. - Ex.-P/16) was registered u/s 307 IPC. Later on, the deceased succumbed to the above injury. Inquest (Ex.-P/5) on the dead body of the deceased was prepared and the dead body was sent for post-mortem. The Autopsy Surgeon, Dr. Rakesh Kumar Sahu (PW 1), found one incised wound of 1 x 1/4 inch on the abdomen which has gone deep to the spleen and has caused an injury of 1 x ½ X ½ inch on the spleen. Huge amount of blood has accumulated in the abdominal cavity. This was the cause of death, which was homicidal in nature. The post-mortem report is EX.-P/1. Huge amount of blood has accumulated in the abdominal cavity. This was the cause of death, which was homicidal in nature. The post-mortem report is EX.-P/1. The appellant was taken into custody and his memorandum statement (Ex.-P/13) u/s 27 of the Evidence Act was recorded on 15.10.95 and a scissors of 8 inch having blood like stains was seized at his instance vide seizure memo Ex.-P/14. Other articles were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, a report (Ex.-P/25) was received. According to the F.S.L. report, blood stains were found on various articles, including the scissors. Though these articles were sent for. Serologist Examination, but Serologist Report could not be filed. The case of the prosecution was based on eye-witness account of Ayodhya Prasad (PW 4), Santosh Yadav (PW 6) and Munna Kachhi (PW 9) as also on oral dying declaration before Ku. Santoshi Soni (PW 5). All the-eye-witnesses turned hostile and they did not support the case of the prosecution. Ku. Santoshi Soni (PW 5), however supported the case of the prosecution by proving oral dying declaration made by the deceased. The learned Sessions Judge relied on the testimony of Ku. Santoshi Soni (PW 5) and convicted & sentenced the appellant as above. 3. Dr. Shailesh Ahuja, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in crime in question. He has mainly argued that in a sudden quarrel between the appellant and the deceased, the appellant brought a scissors which was being used in his betel shop, and gave single blow to the abdomen of the deceased, therefore, his act was not punishable u/s 302 IPC and he would be liable for punishment under some lesser Section preferably Part-II of Section 304 IPC. 4. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard learned counsel for the parties at length, we have perused the records of the sessions case. 6. Admittedly three eye-witnesses have turned hostile and have not supported the case of the prosecution. Ku. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard learned counsel for the parties at length, we have perused the records of the sessions case. 6. Admittedly three eye-witnesses have turned hostile and have not supported the case of the prosecution. Ku. Santoshi Soni (PW 5) deposed that when they came to know about the incident, she immediately rushed to the place of occurrence and saw her brother in injured condition. He (deceased) had received injury over his abdomen. When she asked as to how it happened, he stated in clear words that he was assaulted by the appellant by a scissors. The Autopsy Surgeon has also found above injury on the person of the deceased and has opined that the injury was ante-mortem and the death of the deceased was homicidal in nature. We do not find any infirmity in the evidence of Ku. Santoshi Soni (PW 5) which was also corroborated by the medical evidence. Therefore, the learned Sessions Judge was fully justified in recording the finding that the deceased had made oral dying declaration before Ku. Santoshi Soni (PW 5) and had sustained the above injury and succumbed to that injury and his death was homicidal in nature. 7. Now we shall consider the argument advanced by Dr. Ahuja. 8. The learned Sessions Judge observed that Ayodhya Prasad (PW 4) deposed that Santosh Yadav (PW 6), Munna Kachhi (PW 9) and the appellant were sitting near the betel shop Basant Soni also came there. They were sitting in darkness and were drinking liquor. Thereafter the deceased was assaulted. Santosh Yadav (PW 6) and Munna Kachhi (PW 9) also deposed in similar fashion. They also admitted presence of all above persons. They deposed that somebody was sitting along with the deceased in darkness. An altercation begun with that person and the deceased. They started abusing. Thereafter the said person went behind bicycle shop of the deceased, came back and assaulted the deceased. They could not see the article of assault. 9. In Hari Ram Vs. State of Haryana, AIR 1983 SC 185 the Supreme Court observed that in the heat of the altercation between deceased on the one hand and the appellant and his comrades on the other, the appellant seized a jelli and thrust it into the chest of deceased. They could not see the article of assault. 9. In Hari Ram Vs. State of Haryana, AIR 1983 SC 185 the Supreme Court observed that in the heat of the altercation between deceased on the one hand and the appellant and his comrades on the other, the appellant seized a jelli and thrust it into the chest of deceased. This was preceded by some serious remark. Only one blow was struck by the appellant at deceased. In the above facts and circumstances, it was held that it was a case of 304 Part-II IPC and a punishment 'of 5' years R.I. already undergone, was held to be proper. 10. In Jagtar Singh Vs. State of Punjab, AIR 1983 SC 463 a knife was used and in sudden quarrel on spur of moment, a knife blow was given on the chest and the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The Supreme Court, in the above facts and circumstances, held that it was a case u/s 304 Part-II IPC and a sentence of imprisonment for 5 years will meet the ends of justice. 11. In Shitla Prasad alias Baba Vs. State of UP, AIR 1994 SC 1643 the appellant who was armed with a spear, gave a spear blow to the deceased in his abdomen. The Doctor, who conducted the post mortem, found one penetrating wound in the stomach, above the umbilicus and he also found that omentum was coming out of the wound. The other injury was only an operational which continued with the left angle of injury No.1. He also found a wound 2 cm x 12 cm under injury No.1 in the mesentery cutting a branch of the mesentery artery. There was a quarrel regarding diverting water to the field and in the said quarrel accused inflicted injuries to the deceased. It was held that intention to cause a particular injury which the doctor opined to be fatal was not established and thus the offence would fall under Part-II of the Section 304 IPC. Custodial sentence of 7 years already undergone was held to be proper. 12. In Mavila Thamban Nambiar Vs. It was held that intention to cause a particular injury which the doctor opined to be fatal was not established and thus the offence would fall under Part-II of the Section 304 IPC. Custodial sentence of 7 years already undergone was held to be proper. 12. In Mavila Thamban Nambiar Vs. State of Kerala, AIR 1997 SC 687 the appellant had given one blow with pair of scissors on vital part of body of the deceased. The Supreme Court considering the facts and circumstances held that knowledge on part of the appellant that injury would cause death can be inferred though he might not have intention to commit murder and the conviction u/s 302 IPC was altered to Part-II of Section 304 IPC. In the instant case also, the appellant has used a scissors, which was kept in his betel shop, commonly used for cutting betel leaves. He gave only one blow on the abdominal region of the deceased. Unfortunately the scissors pierced to the spleen and cut injury was caused over the spleen. There was no previous enmity. The appellant was not having the above article from the beginning. This shows that there was no preparation or premeditation. It appears that 3-4 friends were drinking liquor in the night sitting in darkness and in sudden quarrel, the above incident took place in which the appellant gave single scissors blow to the deceased which proved fatal. This shows that there was no intention of the appellant to commit murder of the deceased. Had there been any intention of the appellant to commit murder of the deceased, he would have repeated the blow which he did not do. However knowledge can well be attributed to the appellant. We are of the view that in the above facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment under Part-II of Section 304 IPC. 13. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead thereof, the appellant is convicted u/s 304 Part-II IPC and sentenced to the period already undergone which comes about 6 years in this matter. Appeal Partly Allowed.