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2017 DIGILAW 185 (MP)

Preetam v. State of M. P.

2017-02-06

ANAND PATHAK, N.K.GUPTA

body2017
JUDGMENT Gupta, J. -- 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 4.5.1999 passed by the Additional Sessions Judge, Mungawali, District Guna in S.T. No.139/1997, whereby the appellant has been convicted of offence under section 302 of IPC and sentenced to life imprisonment with fine of Rs.500/-. 2. The prosecution’s case, in short, is that on 13.1.1997 the deceased Pooran was driving a tractor of contractor Rishabh Jain near Village Laloi, where the work of road was going on. The duty of the deceased Pooran was to pour some water on that road with help of tractor tanker. On that day at about 3.00 p.m. the deceased took the tractor to a dam for getting some water in the tanker then the appellant Preetam, who was drunk, came in front of the tractor. When the deceased Pooran told him to leave the road then he started abusing and ultimately he raised a knife from his pocket and gave a blow on abdomen of the deceased Pooran. Due to which, omentum etc. came out from the wound and Pooran fell down from the tractor. Other witnesses came to the spot and the deceased Pooran was taken to village Thubon by tractor, where Sheela Bai wife of the deceased Pooran was taken with them and thereafter the deceased Pooran told about the incident to his wife Sheela Bai and he was taken to the Police Station Chanderi, where he had lodged an FIR Ex.P-11. He was sent for medico-legal examination. Dr. R.P. Sharma (PW1) examined the deceased Pooran and gave his report Ex.P-1. He found one stab wound to the deceased Pooran on his abdomen and the patient was in shock, therefore, he was immediately sent to the higher center for the treatment. Dr. Atul Agrawal (PW11) performed the surgery on the abdomen of the deceased Pooran at J.A. Hospital, Gwalior and gave his surgical notes as Ex.P-19. He also recorded the dying declaration of the deceased as Ex.P-18. However, after some time, the deceased had died. His body was sent for post-mortem. Dr. J. N. Soni (PW8) performed the post-morten on the body of the deceased and gave a report Ex.P-17. He also recorded the dying declaration of the deceased as Ex.P-18. However, after some time, the deceased had died. His body was sent for post-mortem. Dr. J. N. Soni (PW8) performed the post-morten on the body of the deceased and gave a report Ex.P-17. He found that there was one injury on the abdomen of the deceased, which was stitched by stitches and around the injury, pus was found and the deceased died due to consequence of injury and septicemia. According to Dr.Soni, the death of the deceased Pooran was homicidal in nature. 3. Dying declaration of the deceased was also recorded by Dr.R. P. Sharma (PW-1) as Ex.P-2. The Investigation Officer investigated the matter. ASI Gajraj Singh (PW-9) examined the various witnesses, whereas Head Constable Ghanshyam Singh (PW-6) recorded the merg intimation and he prepared the memo of position of the dead body and sent the dead body to the hospital for post-mortem. SHQ Mehmood Alarm Hashmi (PW7), who recorded the registration of the crime and after investigation, he has sent the articles for examination by Forensic Science Laboratory. ASI Parmal Singh Chauhan (PW-10) recovered a knife from the appellant by a document Ex.P-3. The Forensic Science Laboratory gave its report Ex.P-13 that blood stains were found on the soil of the spot and knife recovered from the appellant. Similarly a piece of cloth obtained from the deceased was also found blood stained. Various articles were sent to the Serologist but the Serologist in his report Ex.P-16 gave the opinion that sent article, which was a piece of cloth, was stained by blood but since the sample was disintegrated, it could not be ascertained that it was stained with human blood and no particular grouping of the blood could be done. 4. After due investigation, the charge sheet was filed before the JMFC, Chanderi who committed the case to the Court of Session and ultimately it was transferred to the Additional Sessions Judge, Mungawali. 5. The appellant abjured his guilt. He took a plea that he was falsely implicated due to enmity. He also took the defence that the deceased Pooran who was driving at the time of incident fell down on a iron angles affixed by PWD and, therefore, he sustained injury on his abdomen. However, no defence evidence was adduced. The trial Court after considering the evidence convicted and sentenced the appellant as mentioned above. 6. He also took the defence that the deceased Pooran who was driving at the time of incident fell down on a iron angles affixed by PWD and, therefore, he sustained injury on his abdomen. However, no defence evidence was adduced. The trial Court after considering the evidence convicted and sentenced the appellant as mentioned above. 6. We have heard the learned counsel for the parties at length. 7. In the present case, the eye-witnesses Adhar Singh (PW-2), Tulsi Ram (PW-3) and Jagannath (PW-4) have turned hostile. They did not accept that they saw the incident. They heard about the incident. Under these circumstances, the main circumstance is the dying declaration given by the deceased to SHO Mehmood Alam Hashmi (PW-7), when the FIR Ex.P-11 was registered, again he gave his dying declaration to Dr. R.P. Sharma (PW-1) as Ex.P-2. Dying declaration Ex.P-18 was proved by Dr. Atul Agrawal (PW-11) who performed the surgery on the abdomen of the deceased Pooran. In all three dying declarations, the deceased Pooran had stated that the appellant inserted a knife in left side of his abdomen and according to the doctors, his omentum was coming out of the wound. Since the deceased Pooran had died after some time due to septicemia etc., therefore, it cannot be said that he was not conscious and he was not in a position to give dying declaration. Similarly, no enmity could be proved by the appellant with the deceased Pooran so that he would have falsely implicated by the dying declaration. The police has also seized a knife from the appellant and it was sent for Forensic Science analysis. However, no human blood was found on the knife in the reports given by the Forensic Science Laboratory Ex.P-13 and P-14. Hence, the recovery of knife does not give any evidence in support of the prosecution. 8. However, the evidence of dying declaration is sufficient to prove the guilt. Learned counsel for the appellant submits that death of the deceased was not homicidal in nature and that the blow given by the appellant was not sufficient to cause death, however, in this connection, the evidence of Dr. R.P. Sharma (PW-1) and Dr. Atul Agrawal (PW-11) may be read simultaneously. According to Dr. Learned counsel for the appellant submits that death of the deceased was not homicidal in nature and that the blow given by the appellant was not sufficient to cause death, however, in this connection, the evidence of Dr. R.P. Sharma (PW-1) and Dr. Atul Agrawal (PW-11) may be read simultaneously. According to Dr. R. P. Sharma, the incised wound was found on the abdomen of the deceased having size of 1.5×1×4 inch and piece of small intestine was coming out of the wound. Such position was there, when surgery was performed by Dr. Agrawal. Looking to the size of wound, where it was a clean cut wound, it could not be caused by any angle affixed on the surface of the land. Hence, the dying declaration given by the deceased was duly corroborated by medical evidence as given by Dr. R. P. Sharma and Dr. Atul Agrawal. Under these circumstances, looking to the aforesaid three dying declarations and corroboration of medical evidence, it is proved beyond doubt that the appellant pushed a knife in the abdomen of the deceased Pooran. If knife is inserted in the abdomen of the deceased Pooran and omentum came out then it could not be cured unless the surgery was done and, therefore, if surgery would not have done, the injury was sufficient to cause death and, therefore, the opinion given by Dr. Agrawal is to be accepted that death of the deceased was homicidal in nature and it was sufficient to cause death of the deceased Pooran. 9. The learned counsel for the appellant submits that there was no enmity between the parties and the appellant was not intending to kill the deceased. It is accepted by the deceased in the various dying declarations that the appellant was drunk at that time and the deceased told him to leave the road but thereafter he started quarrel and inserted the knife on the abdomen of the deceased. Under these circumstances, when he did not repeat the second assault, he did not intend to kill the deceased and deceased had died after few days due to septicemia and, therefore, the offence of the appellant does not fall within the purview of section 302 of IPC. Under these circumstances, when he did not repeat the second assault, he did not intend to kill the deceased and deceased had died after few days due to septicemia and, therefore, the offence of the appellant does not fall within the purview of section 302 of IPC. In this connection, learned counsel for the appellant placed his reliance upon the judgment passed by the apex Court in case of Ranjitham v. Basavaraj and others [(2012)2 SCC 414], in which in a similar condition the apex Court has found that the overt act of the accused falls within the purview of exception 4 of section 300 of IPC and, therefore, the crime which was committed was of culpable homicide not amounting to murder under section 304 (Part-II) of IPC. Looking to the facts and circumstances of the case, where the appellant did not assault for second time, he did not have any enmity with the deceased Pooran, the incident was not pre-planned and appellant was drunk at the time of incident, also the deceased died after few days by septicemia, under these circumstances, in the light of judgment passed by the apex Court in case of Ranjitham (supra), it would be appropriate to convert the conviction of appellant from section 302 of IPC to section 304 (Part-II) of IPC. 10. So far as the sentence is concerned int he judgment of Ranjitham (supra), the apex Court has found that five years’ sentence would be sufficient for such offence. In the present case, the appellant remained in the custody for two years, three months and thirteen days during the trial and three years, four months and twelve days during the appeal and, therefore, he remained in the custody for five years and seven months approximately. Under these circumstances, it would be appropriate that the sentence of the appellant should be reduced to the period for which he remained in the custody. 11. On the basis of the aforesaid discussion, the appeal filed by the appellant - Preetam is hereby partly allowed. His conviction as well as the sentence of offence under section 302 of IPC is hereby set aside. 11. On the basis of the aforesaid discussion, the appeal filed by the appellant - Preetam is hereby partly allowed. His conviction as well as the sentence of offence under section 302 of IPC is hereby set aside. He is acquitted from the aforesaid charge but under the head of same charge, he is convicted of offence under section 304 (Part-II) of IPC and sentenced to suffer the jail sentence for the period for which he remained in the custody during the trial and appeal. Also a fine of Rs.500/- is imposed upon the appellant for that offence. It is informed that when suspension of sentence was directed by this Court, the fine amount has already been deposited. Hence there is no necessity to make a provision for default sentence. 12. At present, the appellant is on bail. His presence is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged. 13. A copy of the judgment be sent to the Court below along with its record for information and compliance.