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2012 DIGILAW 99 (MP)

Ram Kushal Gautam v. State of M. P.

2012-01-19

M.A.SIDDIQUI, RAKESH SAKSENA

body2012
JUDGMENT : Asper Rakesh Saksena , J . : - Appellanthas filed this appeal against the judgment dated 22-6-2000 passed by FourthAdditional Sessions Judge, Rewa , in Sessions TrialNo. 94/1999, convicting the appellant under Section 302 of the Indian PenalCode and sentencing him to imprisonment for life with fine of Rs . 1000/-, in default of payment of fine, further RigorousImprisonment for one year. 2.The prosecution case in nutshell is that on 30-4-1999 at about 9 a.m., whencomplainant Premlakhan , his brother Phoolchandra , Rambahore , Mahavir and some other relatives were sitting in the houseof Phoolchandra and were talking, Phoolchandra for some work, went out of the house. Suddenly, they heard Phoolchandra shouting, hearing which they went out and saw Phoolchandra lying on the passage in front of the house and groaning. Accused Ram Kaushal whose house was situated in the neighbourhood was running towards his house with an axe. Premlakhan and other persons went near Phoolchandra and saw awound caused by axe on his head. It was bleeding profusely. Phoolchandra told to them that Ram Kushal dealt axe blow on hishead, and thereafter he became unconscious. Premlakhan along with family members and other village people carried Phoolchandra in a Jeep to Semariya hospital and then went toPolice Station, Semariya and lodged the FirstInformation Report ( Exh . P-2). By the time he reached back to hospital, Phoolchandra died. The offence registered under Section 307 of the Indian Penal Code wasthen converted to Section 302 of the Indian Penal Code. Dead body of Phoolchandra was sent for post-mortem examination. 3.Dr. Prakash Singh (P.W. 1), Assistant Surgeon ofP.H.C. Semariya conducted the autopsy and found aninjury on the skull of deceased. The injury was caused by sharp edged weapon. 4.Investigating Officer Virendra Kumar Mishra (P.W. 5) conducted inquest proceedings, preparedinquest memo ( Exh . P-5 ), prepared spot map ( Exh . P-3) and arrested accused onthe same day, vide arrest memo ( Exh . P-10). On the information given by accusedunder Section 27 of the Evidence Act ( Exh . P-7), he recovered an axe from his possession, vidememo ( Exh . P-8). Seizedarticles were sent to FSL and a report ( Exh . P-15)was obtained. After investigation, charge-sheet was filed in the Court ofJudicial Magistrate, who then committed the case to the Court of Sessions fortrial. P-7), he recovered an axe from his possession, vidememo ( Exh . P-8). Seizedarticles were sent to FSL and a report ( Exh . P-15)was obtained. After investigation, charge-sheet was filed in the Court ofJudicial Magistrate, who then committed the case to the Court of Sessions fortrial. 5.Trial Court framed the charge under Section 302 of the Indian Penal Codeagainst the appellant. Appellant abjured his guilt and pleaded falseimplication. According to him, he found deceased lying unconscious in injuredcondition at about 6 a.m. , and heinformed to other persons, but he was falsely implicated. 6.Prosecution, to establish its case examined five witnesses. Appellant, in his defence examined Ayodhya Prasad(D.W. 1) and Chhugai (D.W. 2) to substantiate his defence . Learned Trial Judge relying on the evidence ofprosecution witnesses convicted and sentenced the appellant under Section 302of the Indian Penal Code. Aggrieved by the impugned judgment, appellant hasfiled this appeal before this Court. .7. Learned Counsel for the appellant submitted that the evidence of Premlakhan (P.W. 2) and Garud Prasad Dahiya (P.W. 3) was not reliable since theywere close relatives of the deceased. Learned Trial Judge committed error inrelying ' on the evidence of oral dying declaration allegedly made by deceasedto Premlakhan since deceased was not in a position tomake the same. Dr. Prakash Singh (P.W. 1) stated thatimmediately after the assault deceased must have become senseless, therefore,conviction based on the evidence of Prem Lakhan (P.W. 2) was not justified. In the alternative,learned Counsel for the appellant submitted that since only one blow by axe wascaused by the appellant, his conviction under Section 302 of the Indian PenalCode was not correct. Placing reliance on Ramchandra Dhondiba Kaware Vs . State of Maharashtra , AIR 2009SC 1835, he submitted that at the most, appellant could have been held liablefor the offence under Section 304-1 or II of the Indian Penal Code. On theother hand, learned Counsel for the State submitted that the evidence of Premlakhan (P.W. 2) was natural and consistent. It stoodcorroborated by the evidence of Garud Prasad Dahiya (P.W. 3) and Mahaveer (P.W. 4). He submitted that the evidence of oral dying declaration made bydeceased could not be disbelieved merely on the basis of opinion of doctorsince Premlakhan (P.W. 2), who deposed about thedying declaration had reached at the spot immediately on hearing the cries ofdeceased. He justified and supported the impugned judgment of conviction passedagainst the appellant. He submitted that the evidence of oral dying declaration made bydeceased could not be disbelieved merely on the basis of opinion of doctorsince Premlakhan (P.W. 2), who deposed about thedying declaration had reached at the spot immediately on hearing the cries ofdeceased. He justified and supported the impugned judgment of conviction passedagainst the appellant. 8.We have heard the learned Counsel for the parties and perused the impugnedjudgment and the evidence on record carefully. 9.It has not been disputed by the learned Counsel for the appellant that deceased Phoolchandra died a homicidal death. From theevidence of Premlakhan (P.W. 2), Garud Prasad (P.W. 3) and Investigating Officer Virendra Kiwnar Mishra (P.W. 5), it isestablished that deceased suffered injury on his head. Investigating Officer Virendra Kumar Mishra (P.W. 5),in presence of Prem Lakhan (P.W. 2) conducted inquest proceedings and drew inquest memorandum ( Exh . P-5) , recording that therewas an injury on the head of deceased. Apart from it, Dr. Prakash Singh (P.W. 1), who conducted post-mortem examination of the body of deceasedfound following injury on his body :- ( i ) Injury 4" x 1" x bone deep on the back side ofhead. Occipital bone of the skull was fractured. Brain was ruptured. There wasexcessive bleeding from injury and the blood had clotted in the brain cavity.The injury was caused by sharp edged weapon. Inhis opinion, the death of deceased was caused due to coma resulting from injuryto brain. The medical report ( Exh . P-1) in this regard was written and signed by him. From the above evidence, itis amply established that deceased died of a homicidal death. 10. Premlakhan (P.W. 2) deposed that at about 9 a.m. , he was sitting in the house of Phoolchandra . Mahavir , Rambhavan , Phoolchandra , Garud and Kallu were also presentthere and discussing about some marriage negotiation. Phoolchandra went out of house saying that he will soon come back, but immediatelythereafter he heard cries of Phoolchandra . He rushedto that place and found Phoolchandra lying on theroad. Appellant Ram Kushal who was running away with an axe, entered his house. On his asking, Phoolchandra told that Ram Kushal assaulted him with axe on his head and asked for some water. When he tried totie a cloth on his head, he became unconscious. Along with 2-3 persons, he tookhim to Semariya Hospital and then went to PoliceStation, Semariya and lodged FIR. On his asking, Phoolchandra told that Ram Kushal assaulted him with axe on his head and asked for some water. When he tried totie a cloth on his head, he became unconscious. Along with 2-3 persons, he tookhim to Semariya Hospital and then went to PoliceStation, Semariya and lodged FIR. When Phoolchandra died, police conducted inquest proceedings andprepared the memorandum. In cross-examination, this witness admitted that hewas brother of deceased. lie stated that the house ofaccused was situated only at a distance of about 20 ft. from the place ofincident. He categorically stated that when he first saw accused, he was around15-20 hands away from him. Though some contradictions between his statement andthe First Information Report ( Exh . P-2) were pointed out by the learned Counsel for the appellant,but they appeared to be very minor in nature. In the Court, Prem Lakhan (P.W. 2) stated that deceased told to him thathe will die and wanted to have some water, but this fact was not foundmentioned in the First Information Report. Despite a lengthy cross-examination,this witness remained firm on the version that he saw appellant running awayfrom the spot and that deceased told to him that appellant assaulted him withaxe. 11.Learned Counsel for the appellant submitted that the evidence of Premlakhan (P.W. 2) was not credit worthy as he happened tobe the brother of deceased. Admittedly, there was no enmity between Premlakhan (P.W. 2) and the appellant. They lived in thesame locality. Learned Counsel for the appellant could not point out anythingon record to indicate that there had been animus between this witness and theappellant. The Apex Court in the case of Varghe.se Thomas Vs. Stale of Kerala , 1977 SC 701, observedthat where there is no previous enmity between the deceased or his relatives onone side and the accused on the other, the evidence given by the relatives ofthe deceased cannot be regarded as suspect needing corroboration fromindependent witnesses. In the instant case, there is yet other evidence, whichfurnished corroboration to the evidence of Premlakhan (P.W. 2). Garud Prasad (P.W. 3), nephew of thedeceased and Mahavir (P.W. 4) also deposed that theyalong with Phoolchandra and Ramsunder were sitting in the house of Phoolchandra , as soon as Phoolchandra went out of the house, they heard him' shouting.When they went out of the house, they saw Phoolchandra lying on the passage moaning and appellant running away with an axe. Garud Prasad (P.W. 3) categorically stayed that when Premlakhan enquired from Phoolchandra ,he disclosed that accused dealt axe blow on his head. Similar statement wasgiven by Mahavir (P. W. 4). All of them then tookdeceased to Semariya Hospital . Minor discrepancies andinconsistencies pointed out by learned Counsel for the appellant in theevidence of these witnesses cannot be held sufficient for discarding theirevidence. 12.Evidence of Premlakhan (P.W. 2) stood furthercorroborated by the First Information Report ( Exh .P-2) lodged by him just within an hour after the occurrence. It was clearlystated by him in the report that when he went out of the house, he sawappellant running away with an axe and deceased lying injured on the passage infront of the house. On post-mortem examination of the body of deceased, Dr. Prakash Singh (P.W. 1), found an injury caused by sharpedged weapon on his skull. This fact further reinforced the credibility of theversion of Premlakhan (P.W. 2). 13.No doubt Dr. Prakash Singh (P.W. 1), incross-examination stated his apprehension that since the brain matter of thedeceased was out, he might have become unconscious soon after the assault, butin view of the natural, consistent and cogent evidence of Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4), we are unable toaccept that deceased could not have spoken even a few words after the assault,especially when these witnesses reached at the spot immediately on hearing theshrieks of deceased. In view of the categoric evidence of aforesaid witnesses, the statement of Dr. Prakash Singh (P.W. 1) cannot be accepted, which is merely a hypothetical opinion basedon probability. 14.Even on reappraisal of the evidence, we find the evidence of Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4) consistent and credit worthy. From the fact that these witnesses sawappellant running away from the spot with an axe and heard deceased saying thatappellant dealt axe blow on his head, in our opinion, it is established beyonddoubt that it was the appellant who caused injury on the head of deceased withaxe. 15.As far as the evidence of defence witnesses namely Ayodhya Prasad (D.W. 1) and Chhugai (P.W. 2) is concerned, they stated that they saw deceased lying near hand pumpin injured condition early in the morning. 15.As far as the evidence of defence witnesses namely Ayodhya Prasad (D.W. 1) and Chhugai (P.W. 2) is concerned, they stated that they saw deceased lying near hand pumpin injured condition early in the morning. According to Ayodhya Prasad (D.W. 1), he called appellant Ram Kushal andenquired from him about Phoolchandra and thereafterRam Kushal informed to the family members of Phoolchandra . It appears unnatural that instead ofinforming the family members of deceased, this witness first informed to Ram Kushal . Though, Ayodhya Prasad(D.W. 1) stated that he informed to police that he had seen Phoolchandra lying injured in the morning at about 6 o'clock ,but it was not stated by the Investigating Officer Virendra Kumar Mishra (P.W. 5). With respect to Chhugai (D.W. 2), Mahavir (P.W.4) stated that he had come only after other persons had reached the spot atabout 8-9 a.m. Chhugai (D.W. 2) himself admitted that when he reached the spot, number of otherpersons including family members of Phoolchandra werealready present. In view of the reliable and trustworthy evidence ofprosecution witnesses, therefore, the evidence adduced by accused does notappear to us truthful. 16.Learned Counsel for the appellant on the strength of the ratio of Apex Court decision rendered in Ramchandra Dhondiba (supra), argued that since appellant dealtonly a single blow of axe on the head of deceased, his conviction under Section302 of the Indian Penal Code was not justified. Had he intended to cause deathof deceased, he might have repeated the assault. According to him, since therewas no evidence on record to throw light on the genesis of the occurrence itought to have been presumed that there was some cause or altercation, which ledappellant to assault the deceased. In Ramchandra's case (supra), Apex Court observed that "the accused and the deceased were in inimical terms. Onlyone blow was given with the Yoke in the night. P.W. 4 admitted that it wasdark, but he identified the accused because he was known to him. Number ofinjuries is always not a determinative factor regarding applicability ofSection 302 of the Indian Penal Code. Onlyone blow was given with the Yoke in the night. P.W. 4 admitted that it wasdark, but he identified the accused because he was known to him. Number ofinjuries is always not a determinative factor regarding applicability ofSection 302 of the Indian Penal Code. The nature of the weapon, place where itwas struck and several other relevant factors throw light on this aspect."In the above case, the weapon used by the assailant was a Yoke, a wood used ina bullock cart, and the assault was made in the night, whereas in the instantcase, appellant dealt an axe blow from the edge side on the head of deceasedand that too in the day light at about 9 o'clock in the morning. 17.In State of Rajasthan Vs . Dhool Singh, AIR 2004 SC 1264 , Apex Court held that "the number of injuries is irrelevant. It is not always thedetermining factor in ascertaining the intention. It is the nature of injury,part of body where it is caused, the weapon usea incausing such injury are the indicators of the fact whether the respondentscaused the death of the deceased with an intention of causing death or not. Inthe instant case, it is true that the respondents had dealt one single blowwith a sword measuring about 3 ft. in length on a vital part of the body,namely, the neck. This act of the respondents though solitary innumber.......... led to almost instantaneous death. Any reasonable person withany stretch of imagination can come to the conclusion that such injury on suchvital part of the body with a sharp edged weapon would cause death. Such aninjury not only exhibits the intention of attacker in causing the death of thevictim but also the knowledge of the attacker as to the likely consequence ofsuch attack, which could be none other than causing the death of victim." 18.On examining the fact-situation of the instant case in the light of above legalpropositions, we are unable to accept the aforesaid contention made by thelearned Counsel for the appellant. It was clearly stated by the witnesses thatas soon as deceased went out of the house, he was assaulted. It was apparentfrom the fact that Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4), who immediately rushed to spot sawappellant running away from the Spot. It was clearly stated by the witnesses thatas soon as deceased went out of the house, he was assaulted. It was apparentfrom the fact that Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4), who immediately rushed to spot sawappellant running away from the Spot. It can, therefore, be readily inferredthat nothing transpired between the deceased and the appellant before theassault made on deceased. It was incumbent on the accused to have put-forthcircumstances in the trial to bring his case in the ambit of any of theexception attached to Section 300 of the Indian Penal Code. It is true that theburden on accused to establish his defence is not so onerous as on the prosecution to prove its case yet he isexpected to bring such circumstances on record, which may probabilise his defence . We are of the considered opinion that inthe absence of such circumstances, merely on the ground that appellantinflicted a single blow on the head of deceased, he cannot be deemed to havecommitted the offence of culpable homicide not amounting to murder. The factthat appellant dealt a forceful blow on the head of deceased with a sharp edgedweapon like axe resulting in fracture of the skull bone and rupture of brain, itself indicate that appellant intended to cause death ofdeceased making him liable to be punished under Section 302 of the Indian PenalCode. 19.For the reasons aforementioned, we are of the opinion that the Court belowrightly appreciated the evidence on record and held appellant guilty of thecharge under Section 302 of the Indian Penal Code. Accordingly, the convictionand the sentence of appellant under Section 302 of the Indian Penal Code asawarded by the Trial Court is affirmed. 20.Appeal dismissed.