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2013 DIGILAW 591 (MP)

Shyam v. State of Madhya Pradesh

2013-05-02

A.K.SHRIVASTAVA

body2013
JUDGMENT (02.05.2013) Feeling aggrieved by the judgment of conviction and order of sentence dated 17.06.1996 passed by the learned II Additional Sessions Judge, Damoh in Sessions Trial No.1/1994 convicting the appellant under Section 304(Part-1) IPC and thereby sentencing him to suffer 10 years RI and fine of Rs.2,000/-, in default further RI of 6 months, the appellant has taken shelter of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 26.10.1993 at 3.45 hours the accused persons were in their home. They asked Ganpat (hereinafter shall be referred to as “deceased”) to accompany them. On the way, some hot talk took place between them, as a result of which, appellant took out the knife and dealt its blows on the waist of the deceased. The incident was witnessed by Dhallu (PW1). On hearing the hue and cry, some persons arrived at spot and on seeing them, the accused persons fled from the place of occurrence. 3. The FIR (Ex.P/17) was lodged by deceased himself. Initially the case was registered under Section 307/34 of IPC, however, after the death of deceased on 02.11.1993 in the hospital, case was converted into Section 302/34 of IPC. 4. On lodging of the FIR, the criminal law was triggered and set in motion. The investigating agency arrested the accused persons; prepared the spot map; sent the injured to hospital for treatment and after his death his dead body was sent for postmortem. 5. After investigation was over a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for the trial. 6. The learned Trial Judge on the basis of the material available in the charge sheet, framed charges punishable under Section 302/34 of IPC against the accused persons, which they denied and requested for the trial. 7. In order to bring home the charges, the prosecution examined its witnesses and also proved certain documents. The defence of the accused persons is of false implication and the same defence they set forth in their statement recorded under section 313 Cr.P.C. However, in support of their defence they did not choose to examine any witness. 8. 7. In order to bring home the charges, the prosecution examined its witnesses and also proved certain documents. The defence of the accused persons is of false implication and the same defence they set forth in their statement recorded under section 313 Cr.P.C. However, in support of their defence they did not choose to examine any witness. 8. The learned Trial Court after appreciating and marshalling the evidence came to hold that charge under Section 302/34 IPC has not been proved against accused Raju and eventually acquitted him. However, learned Trial Court on the basis of evidence placed on record came to hold that charge under Section 304 (Part-1) of IPC has been proved against the appellant and hence convicted the appellant and passed the sentence, which I have mentioned in para 1 of this judgment. 9. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 10. It is has been put-forth by learned counsel for appellant that looking to the evidence of eyewitness it cannot be said that appellant caused injury by knife and if that is the position learned Trial Court erred in convicting the appellant under Section 304 (Part-1) of IPC. An alternative submission has also been put-forth by him that if this Court come to the conclusion that by giving knife blow by the appellant, deceased had died, since the incident had occurred on 26.10.1993 and deceased died on 02.11.1993 while undergoing treatment on account of septicaemia the case would not rest beyond Section 326 of IPC. Learned counsel submits that present appellant has already undergone the jail sentence of three years and six months and hence prayed that he be released for the period he had already undergone by him. 11. On the other hand, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the Trial Court while convicting the appellant under Section 304(Part-I) of IPC and looking to the injuries sustained by the deceased no leniency should be adopted and therefore the appeal being sans substance, deserves to be dismissed. 12. Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed in part. 13. 12. Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed in part. 13. In the present case, FIR (Ex.P/17) has been lodged by deceased himself and after his death it would become his dying declaration as envisaged under Section 32(1) of the Indian Evidence Act. That apart, the dying declaration of the deceased (Ex.P/26) was also recorded by Executive Magistrate Basant Kumar Ramteke (PW23). Thus, there are two dying declarations of deceased, firstly in the form of FIR and secondly recorded by the Executive Magistrate. Learned Trial Court in para 49 has disbelieved the dying declaration recorded by the Executive Magistrate on the ground that deceased was not in a position to depose dying declaration to him on account of injuries sustained which he sustained. The learned Trial Court however in para 13 onwards has arrived at a conclusion that FIR (Ex.P/17) which became dying declaration after death of deceased, is not reliable so far as acquitted accused Raju is concerned. According to learned Trial Court the name of Raju has been added by interpolation. However, I do not find any scintilla of doubt in my mind that FIR (Ex.P/17) is proved against the present appellant causing injury to the deceased by knife. Needless to say the said FIR after the death of deceased became his dying declaration. 14. That apart, the prosecution has taken pains to examine eyewitness namely Dhallu (PW1). In very specific words this witness has stated that the appellant dealt the knife blows on the abdominal region of the deceased. The incident had occurred on the way when the deceased and appellant were going through it. It has also been said that on hearing the hue and cry, Kallu Bai, Babu and Shankar also arrived at the spot. This witness was cross-examined at length but nothing has been carved out from his testimony in order to hold that appellant did not cause any knife injury to the deceased. On going through the cross-examination of this witness I find that firmly he has stated that it was the appellant who caused knife injuries to deceased. Since the evidence of eyewitness is clear, cogent and trustworthy, I am of the view that learned Trial Court did not commit any error in placing reliance upon his testimony. 15. On going through the cross-examination of this witness I find that firmly he has stated that it was the appellant who caused knife injuries to deceased. Since the evidence of eyewitness is clear, cogent and trustworthy, I am of the view that learned Trial Court did not commit any error in placing reliance upon his testimony. 15. The evidence of eyewitness has also been corroborated by evidence of treating doctor Dr. Vinod Kumar Newkar (PW22) who treated the deceased when he was shifted to Jabalpur. The MLC report of deceased is Ex.P/25. The doctor found following injuries upon the person of deceased when he was alive and they are 1. about 200 gm Hematoma found in peritonea cavity. 2. 1/2x1/3x1/3x1/3 cum perferations in jejunum. 3. Hematoma in greater omeutum Stab by Let Hypochondrium with jejunal perferation. Undoubtedly while undergoing the treatment, the deceased died on 02.11.1993. The postmortem report of deceased is Ex.P/24 in which the cause of death has been shown to be Toxemia Shock because of peritonitis. The postmortem report has been proved by Dr. J.L. Sehgal (PW21). In cross-examination para 6 he has stated that the deceased had died on account of Toxemia shock and infection. Since deceased had died on account of infection, I am of the view that the case would rest under the ambit and scope of Section 326 of IPC. In this regard I may profitably place reliance upon the decision of Supreme Court B.N. Kavatakar and another vs. State of Karnataka, 1994 Supp.(1) SCC 304 in which the Supreme Court categorically held that on account of death from septicaemia, the accused has committed the offence under Section 326 of IPC. Hence, the conviction of the appellant is altered from Section 304(Part-1) to section 326 of IPC and he is hereby directed to suffer jail sentence which he had already undergone. However, he is hereby directed to deposit the amount of fine Rs.30,000/-. In case of default of deposition of amount of fine, the appellant shall undergo jail sentence of 2 years. The entire amount of fine of Rs.30,000/-and the amount of fine Rs.2000/-(in total Rs.32,000/-) be paid to the family members (class-1 heirs of Hindu Succession Act) of deceased Ganpat towards compensation under Section 357 of CrPC. The learned Trial Court is hereby directed to do the needful. The entire amount of fine of Rs.30,000/-and the amount of fine Rs.2000/-(in total Rs.32,000/-) be paid to the family members (class-1 heirs of Hindu Succession Act) of deceased Ganpat towards compensation under Section 357 of CrPC. The learned Trial Court is hereby directed to do the needful. The Registrar (Judicial) is hereby directed to send the record to learned Trial Court so that the amount of compensation may be disbursed to Class-1 heir defined under Hindu Succession Act. IN case if there is no Class-1 heir, the compensation be paid to Class-II heirs and so on. 16. Resultantly, this appeal succeeds and is hereby allowed in part to the extent hereinabove.