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2012 DIGILAW 43 (MP)

Shivram v. State of M. P.

2012-01-11

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 21.3.07 passed by the 4th Additional Sessions Judge (Fast Track), Khargon, in Sessions Trial No. 163/06 convicting the appellant under section 302 IPC and thereby sentencing him to suffer life imprisonment with fine of Rs. 500/-; in default of payment of fine further RI of one month, this appeal has been preferred by the appellant under section 374 (2) of the CrPC. 2. In brief, the case of the prosecution as narrated in para- 3 of the impugned judgment is that at 9 pm of 15.10.06 on the road of village Romchichli on account of old enmity the appellant dealt knife blow nearby the neck region of the deceased which resulted into his death. The incident has been witnessed by Pathan and Jamsingh. 3. First Information Report was lodged by Pathan on the basis of which a case was registered under section 302 IPC against the appellant. 4. After completion of the investigation the charge-sheet was filed before the committal Court which committed the case to the Court of Sessions from where it was received by the Special Court for trial. 5. The learned trial Judge on the basis of the allegations made in the charge sheet, convicted and sentenced the appellant as mentioned in the para1 of this judgemnt. Needless to say that this accused person abjured his guilt. 6. The defence of the appellant is of false implication which he also set forth in his statements recorded under Section 313 CrPC but he did not choose to examine any witness in support of his defence. 7. The learned trial Judge on the basis of the evidence placed on record found that present appellant has committed offence under section 302 IPC and eventually convicted him and passed the sentence which is mentioned in the impugned judgment. 8. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. The contention of Shri Gupta, learned counsel for the appellant is that the testimony of the two eye-witnesses namely Path an (PW -1) and Jamsingh (PW-2) are not at all reliable because on account of darkness they were not able to see and hence, their testimonies should be disbelieved. 9. The contention of Shri Gupta, learned counsel for the appellant is that the testimony of the two eye-witnesses namely Path an (PW -1) and Jamsingh (PW-2) are not at all reliable because on account of darkness they were not able to see and hence, their testimonies should be disbelieved. And alternative submission has also been put forth by learned counsel is that if this Court comes to the conclusion that on account of giving a blow of knife by the appellant the deceased had died, since a single blow has been dealt and on account of certain quarrel which was started from the side of the deceased, at the most case would rest under section 304 Part I of the IPC and if that would be the pesition, since the appellant is behind the bars more than 5 years this would be suitable punishment, for the offence which has been committed. 10. On the other hand, Shri Yadav, learned Public Prosecutor has argued in support of impugned judgment. 11. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 12. In the present case the prosecution has examined two persons as eyewitnesses they are Path an (PW 1) and Jamsingh (PW2). Thus according to us we are required to scan the testimony of these two witnesses that whether they are reliable or not. It is borne out from testimony of these two witnesses that there was previous enmity between the deceased and the appellant. It has been categorically stated by Pathan (PW-l) that on account of old enmity because the appellant had solemnised the marriage with the sister of the deceased, hence to ally the revenge the appellant dealt the knife blow on the deceased resulting into his death. This witness has categorically stated that the knife blow was given as a result of which he has died. This witness was cross-examined at length but despite there being a roving cross-examination over him he was embedded in his version. The suggestion was made to this witness that on account of darkness he was not able to see that who has caused the injury, but he has stated that because the incident had taken when he was nearby the deceased and he saw appellant causing injury by knife to the deceased. The suggestion was made to this witness that on account of darkness he was not able to see that who has caused the injury, but he has stated that because the incident had taken when he was nearby the deceased and he saw appellant causing injury by knife to the deceased. This witness is also the author of the FIR Ex. P/1 and has also proved the FIR. 13. The statement of this witness is supported by the testimony of another witenss Jamsingh PW2 who has also categorically stated that he has seen the incident when he was far away at the distance between 50-100 ft. True both the witnesses have stated that altercation was started by the deceased himself with the appellant. But, according to us it is borne out from the testimony of both the witnesses that on account of previous enmity the appellant has dealt blow behind the left ear of the deceased resulting into the death. The testimony of eyewitnesses is corroborated by the evidence of autopsy surgeon Dr. Anil Kumar Kandua (PW 7) and the postmortem report Ex. P/12 of the deceased in which the doctor has found following injuries on the person of the deceased :- 1. Incised penetrating wound by sharp edged object-2cm x 1 cm x 10 cm deep on the left side of the neck below the ear. The muscles of the neck, carotid artery were chopped and the trachea was also chopped. According to the autopsy surgeon the injury sustained to the deceased was sufficient to cause the death. 14. We do not find any merit in the contention of the learned counsel for the appellant that on account of darkness the witnesses were unable to identify the incident. It be seen that in the evidence of eyewitnesses it has come that from very beginning the appellant, deceased and these two witnesses were going together however after travelling for a certain distance the appellant and the deceased had gone little ahead from them and therefore when there was no other person except the appellant, it cannot be said that any other person except appellant had caused injury on the deceased particularly when it has been proved from the statement of these two eyewitnesses that there is enmity between the appellant and the deceased since the sister of the deceased got married to the appellant. Apart from this in AIR 1997 SC 2186 (Kalika Tiwari and others v. State of Bihar) the apex Court has observed as under:- "The visibility capacity of urban people who are acclamatised to fluoresent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light." 15. We do not find any merit in the contention of the learned counsel for the appellant that because the witnesses are saying that injury caused behind the ear but the doctor has found it to be on the neck therefore the case of prosecution is not proved. If the testimony of the autopsy surgeon and the post mortem of the deceased is considered in true perspective it would reveal that the size of the injury was 10" deep and it started from the left side of the ear and the last point of the injury was up to the trachea cutting of the carotid artery and the trachea completely and therefore if the eyewitnesses have stated that the appellant has dealt the knife blow nearby the ear of the deceased their testimony cannot be disbelieved. The Supreme Court in State of Rajasthan v. Dhool Singh [ AIR 2004 SC 1264 ] had come across with the similar situation and this case was of single blow which was dealt by sharp edged weapon on the vital part of the body i.e. the neck. The Supreme Court in the said decision held that although this act though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. In these facts and circumstances of the case the Supreme Court held that the injury not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. By reversing the decision of the Rajasthan High Court converting the conviction from sections 302 to 304 Part II IPC, the Supreme Court held that the accused had committed the offence under section 302 IPC. By reversing the decision of the Rajasthan High Court converting the conviction from sections 302 to 304 Part II IPC, the Supreme Court held that the accused had committed the offence under section 302 IPC. If the ratio decidendi of the decision of Dhool Singh (supra) is considered on the touchstone and anvil of the present factual scenario, although there is solitary injury but, looking to its nature since the major vessels carotid artery as well as trachea of the deceased were completely chopped, we have no scintilla of doubt in our mind that appellant has committed an offence under section 302 IPC. 16. The decision of the Supreme Court Ramesh Laxman Pardeshi v. State of Maharashtra [1988 (1) MPWN 46] placed reliance by learned counsel for appellant is not applicable since in that case it was held that on account of hot exchange and the altercation which took place between the deceased and appellant therefore the conviction was altered to section 304 Part-I of the IPC. True in that case the incident had occurred at the spur of the moment and in that situation the Supreme Court held that the offence under section 304 Part-I of the IPC has committed. However, in the present case the enmity has established and particularly looking to the nature of the injury on the neck, we can gather that the appellant dealt the blow in order to commit the murder, because he brought the knife with him otherwise there was no occasion for him to bring the knife when he was going along with the deceased and the witnesses. Therefore, the decision of the Ramesh Laxman Pardeshi v. State of Maharashtra (supra) placed reliance by the learned counsel for appellant is also not applicable in the preesent case. 17. Resultantly, this appeal fails and is dismissed. Pradeep Gupta for appellant; B.L. Yadav, Public Prosecutor for respondent/State.