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2014 DIGILAW 841 (MP)

Lachchhu @ Laxminarayan Sharma v. State of M. P.

2014-07-17

AJIT SINGH, N.K.GUPTA

body2014
JUDGMENT Gupta, J. -- 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 5.2.2004 passed by the learned 5th Additional Sessions Judge, Bhopal in S.T. No.240/2003 whereby he has been convicted for an offence punishable under section 302 of IPC and sentenced to life imprisonment and fine of Rs.20,000/-, in default of payment of fine, an additional RI for two years. 2. The prosecution case, in short, is that on 7.7.2003 at about 1:50 a.m. in the night witness Bhagwandas (PW1) had lodged a Dehati Nalishi (FIR) to Sub-Inspector K.K.Verma of Police Station Nishatpura, Bhopal that the appellant Lachchhu @ Laxminarayan Sharma was his neighbour and there was enmity between the deceased and Lachchhu Sharma since the last festival of Holi. On 30.6.2003 appellant Lachchhu threw eggs kept in the handcart of the complainant and his brother and also abused them. On 7.7.2003 at about 12:30 a.m. in the night Bhagwandas and his brother Ramprasad had closed their business of selling eggs and were returning to their house. In front of their house, appellant Lachchhu, his brother Satyanarayan, Shankar and Munni Bai, attacked the deceased Ramprasad. Appellant Lachchhu had a dagger in his hand whereas other accused persons had rod and sticks. Appellant Lachchhu repeatedly assaulted the victim Ramprasad by that dagger on his chest and Munni Bai assaulted him by a stick (lathi). In the meantime, two companions of appellant Lachchhu reached the spot and one of them also assaulted the victim Ramprasad by a dagger and second companion assaulted the complainant Bhagwandas by a stick on his head, forehead, left elbow and left palm of his hand. The deceased Ramprasad on sustaining injuries fell down on the earth. The blood was oozing from his body and thereafter the accused ran away. With the help of witnesses, the complainant Bhagwandas took the deceased Ramprasad to the Hamidiya Hospital, Bhopal. Dr. R.R. Parashar (PW11) examined the deceased Ramprasad and found him dead. Thereafter the Dehati Nalishi (Ex.P-1) was recorded. The complainant Bhagwandas was also examined by Dr. Parashar, who gave his MLC report Ex.P-31. The case was registered at Police Station Nishatpura, Bhopal. The dead body of the deceased was sent for the postmortem. Dr. C.S. Jain (PW6) did the post-mortem on the body of the deceased and gave his report Ex.P-6. He found four stab wounds on left chest of the deceased. Parashar, who gave his MLC report Ex.P-31. The case was registered at Police Station Nishatpura, Bhopal. The dead body of the deceased was sent for the postmortem. Dr. C.S. Jain (PW6) did the post-mortem on the body of the deceased and gave his report Ex.P-6. He found four stab wounds on left chest of the deceased. Due to such injuries, his left lung was injured and cavity below the lung was full of blood in the left side. According to him, the death was homicidal. In the investigation, so many persons including the appellant were arrested and daggers were recovered from the appellant Lachchhu and Jamuna Prasad and sent for forensic science examination, however no blood stain was found on both the daggers. After due investigation, the charge-sheet was filed before the Additional Chief Judicial Magistrate, Bhopal, who committed the case to the Court of Sessions, Bhopal and ultimately it was transferred to the 5th Additional Sessions Judge, Bhopal. 3. The appellant-accused abjured his guilt. He did not take any specific plea in the case, but he has stated that he was falsely implicated in the matter. In defence Dr. Nirbhay Shrivastava (DW1) was examined, but such defence evidence was given in favour of another accused. 4. The learned Additional Sessions Judge after considering the evidence adduced by the parties acquitted all the accused persons except the present appellant from the charge of section 302 of IPC or charges of any lesser crime of that nature, whereas the appellant was convicted for offence under section 302 of IPC and sentenced as mentioned above. The co-accused Munni Bai was convicted for the offence under section 323 of IPC for voluntarily causing simple injuries to the complainant Bhagwandas. 5. We have heard the learned counsel for the parties at length. 6. In the present case the prosecution has examined three eye-witnesses namely Bhagwandas (PW1), Gita Bai (PW2) and Laxmi Bai (PW3). Out of them, Bhagwandas was the injured witness whose injuries were proved by Dr. R.R. Parashar (PW11). If the evidence given by these witnesses is considered, their testimony may be examined on the defence taken by the appellant that there was no arrangement of light at the spot, and therefore the witnesses could not identify the appellant. Out of them, Bhagwandas was the injured witness whose injuries were proved by Dr. R.R. Parashar (PW11). If the evidence given by these witnesses is considered, their testimony may be examined on the defence taken by the appellant that there was no arrangement of light at the spot, and therefore the witnesses could not identify the appellant. In this context, a suggestion was given to the witness Bhagwandas (PW1) in para 8 and 16 that there was no sufficient light from any source so that he could see the assailants, however he denied such a suggestion. In para 16 he was asked that he did not mention to the police that he saw the incident in the light of bulbs and tubes of the streetlight and such bulbs on various electric poles affixed by the railway company. However, if the statements of Gita Bai (PW2) and Laxmi Bai (PW3) are perused, then they were suggested that the streetlight was not available due to power cut. The suggestions given to Gita Bai and Laxmi Bai indicate that it was in the knowledge of the accused-appellant that the streetlight poles were duly present on the spot and the witnesses could see the assailants if the power was on. When such a defence was taken by the appellant that there was a power cut or load sheding on that day at the time of incident, then it was for the appellant to prove such a fact, but no evidence has been adduced by the appellant to prove such load sheding or power cut. Under such circumstances, it cannot be said that the eye-witnesses could not see the assailants due to darkness. 7. A suggestion was given to the witnesses Gita Bai (PW2) and Laxmi Bai (PW3) that they were standing away from the spot, and therefore they could not see the culprits. However, they replied that the incident took place in front of the house of the deceased Ramprasad and they were hardly 10-15 feet away from the culprits. It would also be apparent from the spot map Ex.P-4 proved by the witness Sub-Inspector K.K. Verma (PW4) that the incident took place in front of the house of the deceased. Appellant Lachchhu had his hut near the hut of the complainant Bhagwandas. It would also be apparent from the spot map Ex.P-4 proved by the witness Sub-Inspector K.K. Verma (PW4) that the incident took place in front of the house of the deceased. Appellant Lachchhu had his hut near the hut of the complainant Bhagwandas. Under such circumstances, there cannot be any doubt that witnesses Gita Bai and Laxmi Bai were in a position to see the incident or to identify the assailants. The appellant was the neighbour of complainant Bhagwandas and the deceased Ramprasad, and therefore there was no problem with these witnesses to identify the appellant. Witness Bhagwandas had lodged the Dehati Nalihi Ex.P-1 soon after the incident which corroborates his testimony. Hence the trial Court has rightly believed the witnesses Bhagwandas (PW1), Gita Bai (PW2) and Laxmi Bai (PW3) that appellant Lachchhu @ Laxminarayan Sharma had assaulted the victim Ramprasad by a dagger on his left chest for more than a once. 8. Dr. R.R. Parashar (PW11) examined the deceased Ramprasad and gave his report Ex.P-33 that the deceased was brought dead, and therefore he referred the dead body for the post-mortem. Dr. C.S. Jain (PW6) who performed the post-mortem on the body of the deceased and gave his report Ex.P-6 had found that there were four stab wounds in the left chest of the deceased. The description of the injuries is as under : (i) Stab injury left anterior of chest just lateral to nipple 2 x 0.3 x 0.5 cm. (ii) Stab injury left chest 4 cm left lateral to nipple 4 x 0.5 x 14 cm. Lung is also stabbed direction left to right. (iii) Stab wound posterior of left chest near axilla 2.5 x 0.5 x 3 cm. (iv) Stab wound 14 cm below post left axillary fold 2.5 x 0.5 x 11 cm lung is also stabbed. Hence Dr. Jain opined that the death of the deceased Ramprasad was homicidal. 9. The learned counsel for the appellant has submitted that it was alleged against one Jamuna Prasad that he assaulted the deceased by a dagger, though accused Jamuna Prasad was acquitted due to other reason like lack of identification etc.; one dagger was seized from Jamuna Prasad and another was seized from the appellant whereas no blood stain was found on the dagger seized from the appellant. It was alleged against Jamuna Prasad that he assaulted on the left chest of the deceased by a dagger for so many times, and therefore if it is found that the appellant assaulted the deceased by a dagger, then he was not responsible for fatal injuries. Such contention is advanced to show that the appellant was not guilty of offence under ection 302 of IPC, but he could be guilty for the offence under section 324 of IPC. In support of this contention, the learned counsel for the appellant has placed his reliance upon the judgment of Hon’ble the apex Court in the case of Rajendra Shantaram Todankar v. State of Maharashtra [ AIR 2003 SC 1110 ]. If the contention advanced by the learned counsel for the appellant is considered in relation to the evidence adduced in the present case, then it would be apparent that no blood stain was found on the dagger which was alleged to be seized from Jamuna Prasad also. If the appellant had caused minor injuries, then while blood had oozed from such lesser deep wound, the dagger used by him should have been stained by human blood. Also no blood stains were found on the dagger seized from the co-accused Jamuna Prasad. If the accused persons had not given the daggers to the police which they had used in the incident, then it makes no difference if no bloodstain was found on the dagger used by the present appellant. Therefore, absence of blood on the dagger seized from the appellant does not give any clue of his innocence. 10. If the evidence given by Bhagwandas, Gita Bai and Laxmi Bai is minutely considered, then each of them have stated that Jamuna Prasad assaulted the victim Ramprasad on his back. When he was causing assault on the back portion of the chest, then assault could be caused in the axillaire region. In this connection witness Bhagwandas (PW1) has stated in para 3 that the accused Jamuna Prasad assaulted the victim Ramprasad on his left chest, and therefore it would be clear from the statements of these eye-witnesses that the injuries caused by alleged Jamuna Prasad, companion of the appellant was upon the axillaire region, and therefore it appears that out of four injuries shown by Dr. Jain, the injuries No.3 and 4 were caused by alleged Jamuna Prasad. Jain, the injuries No.3 and 4 were caused by alleged Jamuna Prasad. However, the witnesses have mentioned that the appellant assaulted the victim repeatedly on his left chest. In the Dehati Nalihi Ex.P-1 the word “Tabad Tod” is used about the assaults caused by the appellant, which indicates that the appellant assaulted the victim repeatedly in a quick succession. Hence, the present appellant was the author of the injury No.2 which had cut the left lung of the deceased from left to right side and that was a stab injury having 14 cm depth. Under such circumstances, it cannot be said that the appellant did not cause a fatal injury to the deceased Ramprasad. 11. If the overt-act of the appellant is considered in totality, then he gave more than one assault by a dagger to the deceased Ramprasad. He quickly repeated the assaults, and therefore looking to the post-mortem report, it appears that he gave at least two assaults to the victim on his left chest by a dagger. Out of them, one injury was 14 cm deep. The depth of the wound indicates the force applied by the appellant. The fact that the place of assault in the body of the deceased chosen by the appellant as well as force applied by him and caused repeatedly assault clearly indicates that the appellant had intended to kill the deceased Ramprasad, and therefore his overt-act squarely falls within the purview of section 302 of IPC. The ratio laid down by Hon’ble the apex Court in the case of Rajendra Shantaram Todanakar (supra), cannot be applied in the present case due to factual difference. 12. On the basis of the aforesaid discussion, it would be apparent that the learned Additional Sessions Judge did not commit any mistake in convicting the appellant for the offence under section 302 of IPC. So far as the sentence is concerned, for the offence under section 302 of IPC, if it is not rare of rarest case, then sentence of life imprisonment is required to be awarded with fine to give some compensation to the legal representatives of the deceased. Under such circumstances, the sentence directed against the present appellant by the learned Additional Sessions Judge appears to be appropriate. It cannot be said that the sentence passed by the learned Additional Sessions Judge is harsh or excessive. 13. Under such circumstances, the sentence directed against the present appellant by the learned Additional Sessions Judge appears to be appropriate. It cannot be said that the sentence passed by the learned Additional Sessions Judge is harsh or excessive. 13. Consequently, the present appeal filed by the appellant Lachchhu @ Laxminarayan Sharma cannot be accepted on merits as well as on the count of sentence, and therefore it is hereby dismissed. 14. A copy of this judgment be sent to the trial Court along with its record for information. .............