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2012 DIGILAW 282 (CHH)

MUNSHI RAM v. STATE OF M. P.

2012-10-30

PRITINKER DIWAKER

body2012
JUDGMENT 1. The present appeal arises out of the judgment and order dated 01.04.1997 passed by Second Additional Sessions Judge, Ambikapur (Sarguja) in Sessions Trial No. 115 of 1994 convicting the accused/appellant for the offences under Sections 307 and 450 of IPC and sentencing him to undergo rigorous imprisonment for four years with fine of Rs.800 u/s 307 of IPC and rigorous imprisonment for three years with fine of Rs.200 u/s 450 of IPC, plus default stipulations. Both the sentences were directed to run concurrently. 2. Brief facts of the case are that on 01.06.1993, FIR Ex.P-10 was lodged by victim Mohan Ram (since deceased) alleging in it that on that day at about 4p.m. accused/appellant-his nephew who was having inimical relation with him assaulted him with club causing injury on his head when he was sitting in his court yard as he wanted to grab his property. He has further alleged that upon hearing his cries when his wife Muneshwari (PW-1), Jarha, Jageshwar, Vishwanath and Sukhnandan came there and intervened in the matter, accused/ appellant fled away from the spot. Based on this FIR, offence under sections 448 and 323 of IPC was registered against the appellant. Victim was medically examined on 01.06.1993 by Dr. I.D. Bhatnagar (PW-10) vide Ex.P-11A who found lacerated wound on his head and right fronto parietal area. After completion of investigation, charge sheet was filed on 14.10.1993 against appellant for the offences under sections 307 and 450 of IPC. 3. So as to hold accused/appellant guilty, prosecution has examined 10 witnesses in support of its case. Statement of accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. During pendency of trial, victim Mohan Ram expired and therefore his statement could not be recorded. 5. After hearing the parties the trial Court convicted and sentenced accused/appellant for the offences under sections 307 and 450 of IPC. Hence, the present appeal. 6. Contention of Shri Sinha, learned counsel appearing for the appellant is that but for wife of the deceased namely Muneshwari (PW-1) no other witness has stated anything against the appellant. He submits that the prosecution has failed to prove FIR EX.P-10 and the statement of Muneshwari (PW-1) cannot be relied upon in absence of any corroboration. 6. Contention of Shri Sinha, learned counsel appearing for the appellant is that but for wife of the deceased namely Muneshwari (PW-1) no other witness has stated anything against the appellant. He submits that the prosecution has failed to prove FIR EX.P-10 and the statement of Muneshwari (PW-1) cannot be relied upon in absence of any corroboration. He further submits that the Court below has convicted the accused/appellant solely on the basis of FIR lodged by the deceased Mohan Ram treating it to be a dying declaration whereas the same cannot be treated as dying declaration because death of the victim was not the direct result of the said incident rather he died because of some ailment that too about two years after the incident. He submits that even if the entire prosecution case is taken as it is, appellant cannot be convicted under section 307 of IPC because there is no evidence on record to show that the appellant had any intention to cause death of the victim. 7. On the other hand supporting the impugned judgment it has been argued by Shri Goverdhan, learned counsel appearing for the State that the accused/appellant can be convicted solely on the basis of the testimony of Muneshwari (PW-1), wife of the deceased who has categorically deposed that when she came to the place of occurrence, the deceased informed her that it was accused/appellant who had caused injury to him. Learned counsel has placed his reliance on the decision of the Supreme Court in the matter of Sukhar Vs. State of U.P. (1999) 9 SCC 507 and on the decision of this Court in the matter of Samar Vijay Singh Tomar and another Vs. State of C.G. 2006(1) CGLJ 353. 8. Heard counsel for the parties and perused the material available on record including the judgment impugned. 9. Muneshwari (PW-1), wife of the deceased has stated that she knew the appellant and that on the date of incident which occurred about three years prior to recording her statement she was in her house along with the deceased and at about 3p.m. after hearing noise of quarrel when she came out from her house, the victim informed her that accused/appellant had beaten him with club as a result of which he sustained injury on his head which was bleeding. She has stated that when accused/appellant was assaulting her husband, number of villagers including Barharam, Bishwanath and Jageshwar had come to save him but she was not aware as to why the appellant assaulted her husband. She has stated that 6-7 months prior to recording of her court statement, her husband had expired because of some diseases. In cross-examination she has stated that she had not seen the appellant assaulting her husband and cannot tell as to whether a false report of quarrel was lodged by her husband but her husband had suffered injuries. She has further stated that at the time of incident she was in the house where some marriage function was going on and the distance between that place and the place of incident is about two kilometers. She has stated that after receiving information to the effect that her husband got injured, she reached the place of incident. Jarha Ram (PW-2), Vishwanath (PW-3) and Sukhnandan (PW-4) who are alleged to have reached the place of occurrence and intervened in the matter have not supported the prosecution case and have been declared hostile. Kailash Mire (PW-5), Head Constable helped in the investigation. Seizure witnesses Sukhram (PW-6) and Prabhunath Yadav (PW-7) have also not supported the prosecution case and have been declared hostile. Balram Bhagat (PW-8) is the Head Constable who had registered the FIR (Ex.P-10) and sent the victim for medical vide Ex.P-11. Satyadev Singh (PW-9) is the Patwari who had prepared the spot map EX.P-12. Dr. I.D. Bhatnagar (PW-10) who medically examined the victim vide EX.P-11A found following two injuries on his body: (1) Lacerated wound over right Parietal area of head size 3" x ½" bony deep. (2) Two lacerated wound on right Fronto Parietal area. He has opined that the injuries sustained by the victim were dangerous to life and he had referred the patient for X-ray. 10. Minute examination of the evidence makes it clear that but for Muneshwari (PW-1) wife of the deceased none of the witnesses has stated anything against the appellant. True it is that the statement of PW-1 is admissible under section 6 of Evidence Act in view of the death of victim Mohan Ram but the statement of PW-1 itself is not consistent. True it is that the statement of PW-1 is admissible under section 6 of Evidence Act in view of the death of victim Mohan Ram but the statement of PW-1 itself is not consistent. As per FIR Ex.P-10, at the time of incident deceased Mohan Ram and his wife (PW-1) were in their house whereas as per PW-1 she was in the house where marriage function was going on and distance between the two places is about two kilometers. Most importantly Jarha Ram (PW-2), Vishwanath (PW-3) and Sukhnandan (PW-4) who are alleged to have seen the incident and intervened in the matter have not supported the prosecution case and have been declared hostile. The trial Court has erred in law while treating the FIR lodged by the deceased as dying declaration. This Court is in agreement with the argument advanced by the counsel for the appellant that FIR lodged by the victim Mohan cannot be treated as dying declaration because he did not die on account of the injury sustained by him in the said incident but his death was as a result of some ailment that too about two years after the incident. That apart, from the evidence it is not established that the appellant had any intention to cause death of the victim. Judgments as cited by the State counsel are of no help to the State because the facts of those cases are quite different from the present case. Considering the overall evidence adduced by the prosecution this Court is of the considered view that the prosecution has not been able to prove the charges levelled against appellant beyond all reasonable doubts and that being so the appellant is entitled for benefit of doubt. 11. Accordingly, the appeal is allowed. Impugned judgment dated 01.04.1997 is hereby set aside. Accused/appellant is acquitted of the charge under Sections 307 and 450 of IPC. He is on bail. His bail bonds stand discharged. Appeal Allowed.