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Madhya Pradesh High Court · body

2013 DIGILAW 526 (MP)

Suresh v. State of M. P.

2013-04-16

Rakesh Saksena, Subhash Kakade

body2013
JUDGMENT Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 8.9.2003, passed by First Additional Sessions Judge, Chhindwara in Sessions Trial No.12/2002, convicting them under section 302/34 and 324/34 of Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.1,000/- and rigorous imprisonment for one year with fine of Rs.500/-, on each count respectively. 2. In short, the prosecution case is that in the town of Chhindwara, in front of a liquor shop, there was a Mangoda shop of complainant Ashok (PW5), Laxman (deceased) and his son Baba used to work in that shop. On 17.11.2001, at about 6:30 O’clock in the evening, when deceased and his son were selling Mangodas, appellants Suresh, Ashok and Naresh passed from the front of the shop of Ashok after taking a liquor bottle from the liquor shop. Suddenly, liquor bottle slipped from the hands of Suresh and broke down in front of the shop. When deceased asked appellant Suresh to remove pieces of glass scattered in front of the shop, he got annoyed and saying that he would kill him, pierced the spear in his abdomen, which he already had in his hand. When Ashok (PW5) tried to save deceased, all the three appellants grappled with him and Suresh inflicted a blow of spear on his abdomen also. Baba (PW6) was also beaten by them. Ashok immediately went to Police Station, Chhindwara and lodged first information report (Ex.P-22) at 7:00 p.m. Deceased and injured Ashok were sent to District Hospital, Chhindwara where deceased expired in the night. After his death the case was converted into an offence under section 302 of the Indian Penal Code. 3. Investigating Officer J.S. Bisen (PW15), after recording first information report, went to hospital and recorded statement of deceased under section 161 CrPC. He went to the place of occurrence, prepared spot map and seized broken pieces of glass from the spot. After the death of deceased, he conducted inquest proceedings, recorded memorandum (Ex.P-2) and referred the body of deceased for post-mortem examination. Dr. R.K. Gohiya (PW13), who had examined the injuries of deceased while he was alive, conducted the post-mortem examination and found injuries on the body of deceased caused by sharp cutting weapon. Investigating Officer arrested appellants and seized their clothes stained with blood. He also seized a spear on the information furnished by appellant Suresh. Dr. R.K. Gohiya (PW13), who had examined the injuries of deceased while he was alive, conducted the post-mortem examination and found injuries on the body of deceased caused by sharp cutting weapon. Investigating Officer arrested appellants and seized their clothes stained with blood. He also seized a spear on the information furnished by appellant Suresh. All the articles were sent to Forensic Science Laboratory for examination. After completion of the investigation, charge-sheet was filed and the case was committed for trial. 4. On charges being framed, appellants abjured their guilt and pleaded false implication. They also examined Ashok Yadav (DW1) and Vinod Kumar (DW2) in their defence to show that nobody knew how the deceased suffered injuries. 5. Prosecution examined Ashok Parteti (PW5), Baba (PW6) and Ashok Kumar (PW11) as eye-witnesses of the case, but these witnesses did not support the prosecution story. Learned trial Judge, however, placing reliance on circumstantial evidence and the evidence of dying declaration (Ex.P-24) recorded by Investigating Officer, held the appellants guilty, convicted and sentenced them as mentioned above. Aggrieved by the impugned judgment of conviction and sentence, appellants have filed this appeal. 6. Learned counsel for the appellants submitted that the trial Court committed error in holding the appellants guilty under section 302 of the Indian Penal Code. According to him, the conviction of appellants Ashok and Naresh was illegal since they did not cause injury to deceased. Learned counsel submitted that the incident occurred suddenly on the spur of the moment and without premeditation. Therefore, the conviction of even appellant Suresh under section 302 of the Indian Penal Code was not justified. Appellant Suresh has already remained in jail for a period of about 11 years. On the other hand, learned counsel for the State supported the impugned judgment of conviction of appellant and submitted that the statement of deceased recorded by Investigating Officer amounted to be a dying declaration. The evidence of said dying declaration, in the circumstances of the case, was reliable and sufficient to hold the appellants guilty, even if the eye-witnesses of incident did not support the prosecution case. 7. It has not been disputed that deceased died a homicidal death. Baba @ Lakhan, the son of deceased, aged about 13 years, admitted that his father Laxman had died. He however stated that he did not see the occurrence and the injuries of his father. 7. It has not been disputed that deceased died a homicidal death. Baba @ Lakhan, the son of deceased, aged about 13 years, admitted that his father Laxman had died. He however stated that he did not see the occurrence and the injuries of his father. Investigating Officer Inspector J.S. Bisen (PW15) stated that he recorded first information report (Ex.P-12) on being lodged by Ashok Kumar. On the same day, he recorded the statement of deceased Laxman in which he disclosed that appellant Suresh inflicted a blow of spear in his abdomen as a result of which he suffered injury. Injuries of deceased were examined by Dr. R.K. Gohiya (PW13), Assistant Surgeon in District Hospital, Chhindwara. Dr. Gohiya deposed that on 17.11.2001 when deceased was brought by Police Constable Ramesh in injured condition, he examined his injuries. There was one incised wound admeasuring 4x1 cm x ? deep on the left side of abdomen of deceased. His intestine was coming out from the wound. The injury was caused by some sharp object. His general condition was very weak. Therefore, he admitted deceased in male surgical ward for check up and further treatment. The injury report of deceased (Ex.P-20A) was recorded and signed by him. On 18.11.2001, when dead body of deceased was brought to him, he conducted autopsy and found one incised injury on the left side of abdomen just below the rib of the deceased. The size of would was 3x5x1.5 cm. On internal examination, omentum and left lobe of liver were found cut. The size of cut of liver was 3x05x1 cm. About 1-1/2 litre of blood was found present in the abdominal cavity. He also found an abrasion 2x1 cm on left elbow and a superficial abrasion 6x4 cm on his left gluteal region. In the opinion of Dr. Gohiya, the injury No.1 to deceased was caused by sharp edged cutting weapon. Second and third injuries were caused by some hard and blunt object. The death of deceased resulted due to shock produced by the excessive haemorrhage from the injury of liver. Post-mortem examination report (21-A) was written and signed by him. 8. From the aforesaid evidence, it stood amply established that deceased met with a homicidal death. 9. Dr. Second and third injuries were caused by some hard and blunt object. The death of deceased resulted due to shock produced by the excessive haemorrhage from the injury of liver. Post-mortem examination report (21-A) was written and signed by him. 8. From the aforesaid evidence, it stood amply established that deceased met with a homicidal death. 9. Dr. R.K. Gohiya (PW13), on examination of Ashok, found two incised injures on his body, one of the left side of abdomen and another on left hand’s little finger. Both the injuries were ultimately found to be simple in nature. 10. Now the question is whether the trial Court was justified in holding that it were appellants who caused injuries to deceased and to injured Ashok (PW5). As already pointed out, eye-witnesses viz. Ashok Parteti (PW5), Baba (PW6) and Ashok Kumar (PW11) did not support the prosecution case at trial. They were declared hostile. The trial Court, however, relied on the evidence of Investigating Officer J.S. Bisen (PW15), who recorded the statement of deceased under section 161 CrPC. According to PW15, on 17.11.2001 he went to hospital and recorded the statement (Ex.P-24) of deceased wherein he disclosed that he and his son used to sell Mangoda in front of liquor shop. At about 6:30 p.m. when he and Ashok were selling Mangoda, appellant came at liquor Bhatti to fetch liquor. After fetching liquor, when they were passing from the front of Mangoda shop, the bottle of liquor slipped from the hands of appellant Suresh and broke down. The pieces of glass scattered in front of the Mangoda shop. When he asked Suresh to clean the pieces of glass, he got excited and dealt a spear blow, which he already had in his hand, in his abdomen. When Ashok tried to save him, all the three appellants scuffled and assaulted Ashok. Suresh dealt a spear blow to him also. Along with Ashok he went to police station where Ashok lodged report and carried him to hospital for treatment. 11. Since Ex.P-24 happened to be a statement made by deceased as to the cause of his death and also about the circumstances of the transaction which resulted in his death, it amounted to be a dying declaration of deceased, relevant and admissible under section 32(1) of the Indian Evidence Act. 11. Since Ex.P-24 happened to be a statement made by deceased as to the cause of his death and also about the circumstances of the transaction which resulted in his death, it amounted to be a dying declaration of deceased, relevant and admissible under section 32(1) of the Indian Evidence Act. In view of the fact that it has not been challenged that the Investigating Officer, who recorded the statement of deceased, was in any manner interested in bringing about the conviction of appellants by concocting the said statement, it could not be held that the aforesaid statement was doubtful or suspicious. Since the injury of deceased was serious in nature and there appeared no time to call a Magistrate for recording regular dying declaration, the recording of the statement under section 161 CrPC by the Investigating Officer was proper and natural. The statement (Ex.P-24) seems natural, consistent, cogent, coherent and reliable. 12. After arrest of the accused persons, their clothes were seized by Investigating Officer and on the information given by appellant Suresh, a spear was also recovered and seized. As per chemical examination report (Ex.P-25) by Forensic Science Laboratory, blood was found on the spear and the clothes of appellant Suresh. Human blood was detected on the clothes of other two appellants. Vide FSL report Ex.P-26 cut marks found on the clothes of deceased and Ashok tallied with the blade of the spear recovered from appellant Suresh. 13. From the above circumstances, in our opinion, it was established that all the appellants were present at the spot when appellant Suresh inflicted spear blow in the abdomen of deceased and caused hurt to Ashok (PW5). The evidence of defence witnesses viz. Ashok Yadav (DW1) and Vinod Kumar (DW2) being inconsistent, contradictory and vague did not appear trustworthy and acceptable. 14. The question, however, would be whether appellants Ashok and Naresh were also vicariously liable for causing injuries to deceased and Ashok (PW5) by appellant Suresh. As far as Ashok (PW5) and Baba (PW6) are concerned, none of them stated that any injury was caused to them by appellants. From the statement (Ex.P-24) made by the deceased, it appears that appellants Ashok and Naresh grappled with Ashok Parteti (PW5) and manhandled Baba (PW6), but the fact remains that the injury by spear to Ashok (PW5) was caused by appellant Suresh only. 15. From the statement (Ex.P-24) made by the deceased, it appears that appellants Ashok and Naresh grappled with Ashok Parteti (PW5) and manhandled Baba (PW6), but the fact remains that the injury by spear to Ashok (PW5) was caused by appellant Suresh only. 15. On minutely examining the circumstances in which the incident occurred, it seems that there was no premeditation or intention on the part of Suresh to assault the deceased. It was just by chance that the bottle of liquor slipped from his hand and broke down in front of the shop of deceased. It was also by chance that deceased asked Suresh to remove pieces of glass from the front of his shop and on getting excited appellant Suresh dealt single blow of spear into his abdomen and caused an injury to Ashok Parteti (PW5) also. Even if appellants Ashok and Naresh grappled with Ashok Parteti (PW5), it does not appear that they shared the common intention of appellant Suresh of causing spear injury to deceased or to injured Ashok. Since the incident occurred suddenly wherein appellant Suresh assaulted deceased with spear, which he already had in his hand, Ashok and Naresh, in our opinion, cannot be held liable for the act of appellant Suresh vicariously with the aid of section 34 of the Indian Penal Code. 16. Since the genesis of the incident, as brought out by the prosecution, is traceable to a petty quarrel which sparked off merely on deceased’s asking appellant Suresh to clean pieces of glass from the front of his shop, it is not possible to hold that appellant Suresh intended to commit murder of deceased, but, since he inflicted the blow of spear on the abdomen of deceased, it can be held with certainty that he acted either with the intention of causing death or of causing such bodily injury to deceased as was likely to cause his death. His case, therefore, in our opinion, clearly fell within the ambit of section 304 Pt.1 of the Indian Penal Code. 17. For the reasons aforesaid, we are of the view that it was appellant Suresh only who could be convicted for causing death of deceased and for causing simple hurt to Ashok Parteti (PW1) by a deadly weapon like spear. 18. 17. For the reasons aforesaid, we are of the view that it was appellant Suresh only who could be convicted for causing death of deceased and for causing simple hurt to Ashok Parteti (PW1) by a deadly weapon like spear. 18. Accordingly the conviction of appellant No.1 Suresh under section 302/34 of the Indian Penal Code is set aside, instead he is convicted under section 304 Pt.1 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years. His conviction and sentence under sections 324/34 of the Indian Penal Code is affirmed. The conviction of appellants No.2 Ashok and No.3 Naresh as awarded by the trial Court under section 302/34 and 324/34 of the Indian Penal Code is set aside. They are acquitted of the said charges. Their bail bonds and surety bonds stand discharged. 19. It is reported that appellant Suresh has been in jail for over 11 years; if that be so, he be released forthwith, if not required in any other case. 20. Appeal partly allowed. ............