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2012 DIGILAW 650 (MP)

Ram Singh S/o Mohan Singh Lodhi v. State of M. P.

2012-07-01

RAKESH SAKSENA, T.K.KAUSHAL

body2012
JUDGMENT : Thisappeal has been preferred against judgment dated 29.03.1994 passed by IIIAdditional Sessions Judge, Damoh delivered in S.T.No.122/1993 convicting the appellant under Section 302 of IPC for committingmurder of Churaman (since deceased) and sentencinghim to imprisonment for life. 2.Facts of the case, in short, are that on 09.06.1993 in the evening whiledeceased was taking meals, Ramkishan (PW9) along with Kallu (PW5) reached his house and asked him to liftthe wood log from forest for Rs . 20/labour charges.Deceased left the meals and accompanied the appellant. Due to physicalincapacity, Kallu (PW5) was left behind for a while.Across the railway line, the appellant took out a knife from his pocket of thepant and stabbed the deceased and ran away from the place. 3.Deceased, some how reached in village in the house of Sita (PW1) and asked to call his parents saying that appellant had stabbed him inabdomen. Ameen (PW2), Vidya Bai , wife of deceased (PW3), Khajjo ,father of deceased (PW5), Natthu (PW6), Ramkishan (PW9), Madho (PW10) and Motilal , brother of deceased (PW17) reached there andsaw the deceased, who had covered the bleeding wound with a towel. Deceasednarrated the incident and the name of the appellant to them. Deceased was takento Banwar Chouki and thenFIR Ex.P20 was lodged. Police registered a case at Cr. No.0/93 under Section307 of IPC against the appellant and Kallu (PW5). Thereafter,deceased was taken to the hospital, Dr. N.K. Malhotra (PW7) examined his injury and prepared MLC report Ex.P8 and referred him forfurther treatment. Dr. N.K. Malhotra (PW7) found onestab injury on the abdomen. According to evidence of Dr. N.K. Malhotra (PW7) and MLC report Ex.P8 there had been onestabbed injury on the abdomen of the deceased from which Omentum was coming out. 4.On 10.06.1993 Dr. B.S. Yadu (PW22) performed surgeryon the deceased. Nextday i.e. 11.06.1993 deceased died in the hospital. Dr. J.P. Pansari (PW8) performed post mortem of the deceased and prepared post mortem report Ex.P10. Accordingto evidence of Dr. Pansari (PW8) and post mortemreport Ex.P10, death was caused due to hemorrhage and shock and injury of theabdomen was found sufficient to cause death in ordinary course. 5.Vide Ex.P11, on 13.06.1993, appellant was arrested and knife was recovered athis instance. Knife, etc. were sent to Forensic Science Laboratory, Sagar for chemical examination. 6.On 03.08.1993 statements under Section 164 of the Code of Criminal Procedure,1973 of Kallu (PW5) was recorded by JMFC Damoh (PW23). 5.Vide Ex.P11, on 13.06.1993, appellant was arrested and knife was recovered athis instance. Knife, etc. were sent to Forensic Science Laboratory, Sagar for chemical examination. 6.On 03.08.1993 statements under Section 164 of the Code of Criminal Procedure,1973 of Kallu (PW5) was recorded by JMFC Damoh (PW23). Citing him as prosecution witness, policesubmitted a charge sheet under Section 302 of IPC against appellant in theCourt concerned Judicial Magistrate. Case was committed to the trial Court.Trial Court framed charge under Section 302 of IPC. Appellant abjured guilt. 7.To substantiate the case of prosecution, statements of Sita Bai (PW1), Ameen (PW2), Vidya Bai , wife of deceased(PW3), Khajjo , father of deceased (PW4), Kallu @ Dansingh (PW5), Natthu Singh (PW6), Dr. N.K. Malhotra (PW7), Dr. J.P. Pansari (PW8), Ramkishan (PW9), Madho (PW10), Shankar Lal (PW11), Heera Lal , ASI (PW12), Kallu Singh,Constable (PW13), Jagdish Singh, Constable (PW14), Jalam (PW15), Nazir Khan, ASI (PW16), Motilal , brother of deceased (PW17), Take Singh(PW18), Jugraj (PW19), Satya Prasash , Patwari (PW20), Ramlal (PW21), Dr. B.S. Yadu (PW22), Jogendra Kumar Verma ,JMFC (PW23), Ramkrishan Pathak ,ASI (PW24) were recorded. Evidenceof the appellant was that of false implication. According to defence , deceased was suspecting undue intimacy of theappellant with his (deceased's) wife Vidya Bai (PW3) and deceased himself attempted to kill appellantand by mistake himself sustained injury with his own knife. 8.After appreciating aforesaid evidence trial Court held the appellant guiltyunder Section 302 of IPC and sentenced him as above. This appeal has beenpreferred on the grounds that appreciation of evidence is not proper. FIREx.P20, in fact, is a concocted and fake document. Cause of death of thedeceased was not the injury but was the medical negligence. The deceased hadsustained only one injury and he died after two days of the incident and at themost he could be held liable for lesser offence and punishment. On the otherhand, learned Government Advocate has supported the finding of conviction andsentence. 9.In view of the medical evidence available on record including statements of Dr.N.K. Malhotra (PW7), Dr. J.P. Pansar (PW8), Dr. B.S. Yadu (PW22) and further in view ofthe evidence of Ex.P8 MLC report and Ex.P10 post mortem report it remains nolonger disputed that death of the deceased was homicidal, it has been clearlystated by Dr. N.K. Malhotra (PW7), who prepared theMLC report Ex.P8 and by Dr. J.P. Pansar (PW8) whoperformed post mortem report Ex. J.P. Pansar (PW8), Dr. B.S. Yadu (PW22) and further in view ofthe evidence of Ex.P8 MLC report and Ex.P10 post mortem report it remains nolonger disputed that death of the deceased was homicidal, it has been clearlystated by Dr. N.K. Malhotra (PW7), who prepared theMLC report Ex.P8 and by Dr. J.P. Pansar (PW8) whoperformed post mortem report Ex. P10 that stab injury in abdomen was sufficientto cause death in ordinary course of nature. 10. Ramkrishan Pathak , ASI(PW24) stated that he recorded the FIR Ex.P20 himself as per the version of thedeceased. He immediately forwarded the deceased to Damoh hospital for treatment, while he reached hospital for taking steps to recorddying declaration, the patient had been sent in operationtheater for surgery, and thereafter deceased died. It is vehementlyargued by Shri Nema ,learned counsel for the appellant that Ex.P20 FIR, is suffering from manyomissions and discrepancies. But on careful perusal of whole statement of PW24it becomes clear that FIR Ex.P20 has been recorded by him in the same wordingsnarrated by the deceased. It has been recorded at the earliest opportunity.Nothing is suggestive for him to make variations in the contents of the report.In our considered opinion PW24 is a reliable witness in respect of Ex.P20 FIRwhich has been rightly treated as dying declaration in the event of death ofthe deceased and is inspiring the confidence. 11.Learned counsel for the appellant has further submitted that deceased has infact lodged a false report implicating him because he had a doubt that his wife Vidya Bai (PW3) is havingundue intimacy with him (the appellant). From the evidence of Sita Bai (PW1), Ameen (PW2), Vidya Bai , wife of deceased (PW3), Khajjo ,father of deceased (PW4), Natthu Singh (PW6), Ramkishan (PW9), Madho (PW10),and Motilal , brother of deceased (PW17) it is clearlyestablished that deceased narrated the incident to them also prior to the timehe was taken to the police station for lodging FIR. The deceased had named theappellant as one who caused injury to him by knife. We have no reason to doubtaforesaid evidence of oral dying declaration given by the deceased to theaforesaid witnesses. This evidence further corroborates the dying declarationEx.P20 in the matter. 12.Trial Court after considering the evidences of prosecution in correctperspective rightly reached to the conclusion of guilt of the appellant.Appreciation of evidence is proper. We have no reason to doubtaforesaid evidence of oral dying declaration given by the deceased to theaforesaid witnesses. This evidence further corroborates the dying declarationEx.P20 in the matter. 12.Trial Court after considering the evidences of prosecution in correctperspective rightly reached to the conclusion of guilt of the appellant.Appreciation of evidence is proper. After considering the medical evidence andthe evidence of dying declaration, though deceased sustained only one injuryand died after two days of the incident, in our opinion no case of reduction ofconviction and sentence is made out. Accordingly, the finding of conviction ofappellant under Section 307 of IPC, recorded by the trial Court is affirmed.Appeal being devoid of merit deserves to be and is hereby dismissed.