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2017 DIGILAW 1024 (MP)

Phool Singh v. State of M. P.

2017-09-22

ANURAG SHRIVASTAVA, SUJOY PAUL

body2017
JUDGMENT Paul, J. -- 1. This criminal appeal filed under section 374 (2) of the Code of Criminal Procedure, 1973 (in short called as “CrPC”) is directed against the judgment of conviction and sentence passed by learned Sessions Judge, Raisen in Session Trial No.57/2005 dated 26.9.2005. 2. Shri Ahadulla Usmani, learned counsel for the appellant drew the attention of this Court on the prosecution story wherein it is alleged that on the date of incident i.e. 16.1.2005 at 7 pm, the complainant Mishri Lal (PW1) and his wife Munni Bai (PW6) were sitting outside their house. Their son-in-law Sunil was making necessary preparations to take bath. During this time, the appellant Phool Singh was crossing through that place. Sunil, a barber by profession, asked the appellant to make withheld payment of hair cutting. When Phool Singh refused to make the payment, there was exchange of filthy words between Sunil and Phool Singh (appellant). Phool Singh threatened Sunil that he will kill him. Thereafter, Sunil sat at the bathing place and was about to take bath. At that time, Phool Singh with a knife came there and stabbed Sunil at his stomach as a result Sunil cried out of pain. Upon hearing this, complainant Mishri Lal and Munni Bai (father-in-law and mother-in-law of Sunil) reached there and found that the appellant is running from the area. The intestine of Sunil came out of his body because of stabbing by Phool Singh. They took Sunil to Police Station Umraoganj and lodged a report. Thereafter, they took Sunil to Hamidia Hospital. During the treatment, Sunil died. 3. The trial Court recorded the statements of Mishri Lal (PW1), Munni Bai (PW6), Police Station Incharge Chandrama Parvat (PW8), Dr. C.S. Jain (PW9), Investigating Officer R.K. Dwivedi (PW10) etc. The Court below opined that the appellant is guilty of stabbing with a deadly weapon. This fact is duly established by the statements of (PW1) and (PW6). It is also supported by medical evidence. 4. Shri Usmani, learned counsel for the appellant attacked the impugned judgment by raising two points. Firstly, it is urged that as per the prosecution story, the (PW1) and (PW6) took the deceased Sunil to hospital. Since Sunil was bleeding profusely, the prosecution should have collected the clothes of (PW1) and (PW6) to establish that such bleeding had actually taken place and blood stains are found on the clothes of (PW1) and (PW6). Firstly, it is urged that as per the prosecution story, the (PW1) and (PW6) took the deceased Sunil to hospital. Since Sunil was bleeding profusely, the prosecution should have collected the clothes of (PW1) and (PW6) to establish that such bleeding had actually taken place and blood stains are found on the clothes of (PW1) and (PW6). Secondly, by placing reliance on Ex.P/11-A, it is argued that the drawing/sketch of the weapon used in the incident shows that its width is 1.8 cm whereas, as per post-mortem report, the cut found on the liver was of 1.4 cm. Learned counsel for the appellant has contended that a weapon of lesser width can cause larger cut but it cannot be other way round. Putting it differently, it is urged that the width of blade of knife was 1.8 cm. This knife can cause cut which is of 1.8 cm or more than that but by no stretch of imagination, the size of cut can be smaller than 1.8 cm. Shri Usmani contended that the whole story of prosecution is, therefore, like house of cards and is totally unbelievable. In support of his first contention, Shri Usmani relied on [ (2003)12 SCC 341 ], (State of Rajasthan v. Taran Singh and another). 5. Per contra, Shri Ashutosh Tiwari, learned Government Advocate supported the impugned judgment. He submits that the Court below has taken a plausible view on the basis of evidence/material available on record. Hence, no interference is warranted. 6. No other point is pressed by the parties. 7. I have heard the parties at length and perused the record. 8. The complainant Mishri Lal (PW1) and his wife Munni Bai (PW6) deposed their statements and categorically established that Sunil was stabbed by Phool Singh. Their statements could not be demolished by the defence during cross-examination. There is no cross-examination in relation to nonseizure and non-production of clothes which (PW1) and (PW6) were wearing during their journey from place of incident to hospital. The prosecution has established the place of incident and involvement of present appellant by leading credible evidence. Thus, merely because said clothes were not exhibited, the prosecution story will not become untrustworthy. The defence could not establish that there was any previous political rivalry or enmity between the appellant and the deceased. The prosecution has established the place of incident and involvement of present appellant by leading credible evidence. Thus, merely because said clothes were not exhibited, the prosecution story will not become untrustworthy. The defence could not establish that there was any previous political rivalry or enmity between the appellant and the deceased. In the judgment of Supreme Court in Taran Singh (supra), as per prosecution story, the deceased was carried to hospital by I.O. There were serious discrepancy in regard to the manner in which the alleged incident took place. There was contradictions in the sketch plan produced by the prosecution and have spoken by two witnesses. In the said case, the High Court considered the observations of trial Court in regard to the non-existence of blood stains on the clothes of (PW1) and (PW2). In the said case, clothes were produced by prosecution but the same did not contain any blood stains. In this peculiar factual backdrop, the apex Court opined that if a man was bleeding profusely and he was carried to hospital on the shoulder, the possibility of these witnesses' clothes being not blood stained is next to impossible. 9. As noticed, in the present case no challenge was made to the statements of (PW1) and (PW6) in relation to non-production of clothes which they were wearing at the time of incident and during the time they took the deceased to hospital. Accordingly, in our view, the said judgment cannot be pressed into service in the peculiar facts and circumstances of this case. As a thumb rule, it cannot be said that if such clothes were not produced, the story of prosecution is unbelievable. More so, when other witnesses have established it by leading credible evidence that the alleged incident had taken place. 10. So far as the second contention is concerned, on the first blush, it appears to be attractive but on deeper scrutiny, we find no substance in it. No doubt, the sketch of the weapon/knife (Ex.P/11-A) shows that its maximum width near handle of knife is 1.8 but the post-mortem report shows that the cut was at the left wall of liver. Thus, post-mortem report does not reflect the size of cut at the skin or muscle of body from where knife had entered the body of the deceased. Thus, post-mortem report does not reflect the size of cut at the skin or muscle of body from where knife had entered the body of the deceased. On the contrary, the finding is regarding a cut on the liver which is, naturally an inside body part. The tip of the knife entered the end point i.e. liver and at the end point, its width is not 1.8 cm. In other words, the tip of the knife is smaller in width end pointed which may cause injury/cut of 1.4 cm. Pertinently, Dr. S.C. Jain (PW9) categorically deposed that it is possible to cause such injury by weapon in question. His clear deposition could not be demolished during cross-examination. During his cross-examination, in Questions No.3 to 5 he made it clear that such cut of liver can be an outcome of attack by knife in question. Apart from this, after such kind of stabbing the sizable amount of blood comes out of the body. The muscles therefore get shrinked and in that situation, the size of wound may also shrink. Thus, the width of weapon and size of cut is not always decisive. For these cumulative reasons, the second point urged by Shri Usmani cannot cut any ice. 11. As analyzed above, we find no illegality in the impugned judgment. Hence, the appeal fails and is hereby dismissed. No cost.