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2017 DIGILAW 725 (MP)

Krishna Pal Mishra v. State of M. P.

2017-05-25

J.K.MAHESHWARI, J.P.GUPTA

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ORDER Maheshwari, J. -- 1. Being aggrieved by the judgment dated 26.12.2003 passed by Sessions Judge, Rewa in S.T. No.247/2002 convicting the appellant for the charge under section 302 of the IPC and to sentence him to Life Imprisonment for committing the murder of Gangadhar Mishra, this appeal has been preferred under section 374(2) of the CrPC. 2. The prosecution case in brief is that dispute arose due to grazing of cattle by the son of deceased in the field of the accused. On the date of occurrence, at about 9:00 a.m. in the morning due to altercation, the accused has abused to the deceased in harsh language and assaulted by means of Tangi (a weapon similar to Axe), when deceased started running away, accused followed him and assaulted over the back by means of Tangi and Khurpi due to which Gangadhar made cry and fell down in the field. Hearing the cry made by Gangadhar, complainant Rambaran Mishra (PW1), Jaiprakash (PW10) and other witnesses have reached on the spot and seen the incident while the accused ran away from the spot. Due to various injuries the blood started oozing, however Rambaran Mishra (PW1) with the help of other brought him to the PHC, Sirmour and lodged the FIR. Deceased died in the evening during treatment, prior to his death dying declaration (Ex.P-7) was recorded by Manoj Kumar Chourasia, Naib Tehsildar (PW5) wherein the allegation of assault by appellant using deadly weapon has been alleged by the deceased. 3. After preparation of Panchnama's and completing investigations, challan was filed in the competent Court, however, the Court of Judicial Magistrate took the cognizance and committed it to the Court of Session for trial. The trial Court framed charge under section 302 of the IPC against accused who abjured his guilt and made demand for trial putting a defence of his false implication. 4. Learned trial Court considered the statement of Dr. S.K. Pathak (PW13), Autopsy Surgeon, who has proved the post-mortem report (Ex.P-15) and also the testimony of Rambaran (PW1), Janaklali (PW2) (wife of the deceased), Kalyan Singh (PW7), Jaiprakash Mishra (PW10) (son of the deceased) and the statement of Dr. 4. Learned trial Court considered the statement of Dr. S.K. Pathak (PW13), Autopsy Surgeon, who has proved the post-mortem report (Ex.P-15) and also the testimony of Rambaran (PW1), Janaklali (PW2) (wife of the deceased), Kalyan Singh (PW7), Jaiprakash Mishra (PW10) (son of the deceased) and the statement of Dr. D.P. Pandey (PW4), Ram Das Sharma, Investigating Officer (PW12) and dying declaration (Ex.P-7) recorded by Manoj Kumar Chourasia, Naib Tahsildar (PW5) and concluded that the injury received to the deceased were caused by accused using deadly weapon, therefore, prosecution proved the guilt of the accused beyond reasonable doubt and defence put forth by the accused was not found plausible. However, directed to undergo the sentence as described above. 5. Learned counsel representing the appellant has strenuously urged that in the statement of Rambaran (PW1), Janaklali (PW2) (wife of the deceased), Kalyan Singh (PW7), Jaiprakash Mishra (PW10) (son of the deceased), there are inconsistencies with respect to the place and the manner in which the incident has taken place, which are fatal but the trial Court has not duly considered those contradictions and omissions, therefore, the conviction as directed by the trial Court is not in accordance with law. 6. Per contra Shri Akshay Namdeo, learned Panel Lawyer representing the State contends that looking to the testimony of the eye witnesses Rambaran (PW1), Jaiprakash Mishra (PW10) (son of the deceased) and other witnesses and also dying declaration of the deceased, which has been proved by the scriber, the findings has rightly been recorded, which are supported by the medical evidence. However, such finding of fact do not suffer from any perversity or illegality warranting interference in this appeal. 7. Having heard the learned counsel for the parties and on perusal of the record, it reveals that the incident occurred on 22.9.2002 in the morning at about 9:00 a.m. at Village Dol, P. S. Sirmour, District Rewa. The dispute took place merely due to grazing of cattle in the field of the accused by the son of the deceased. The accused came to make complaint where altercation took place with the deceased who assaulted by means of a Tangi. When deceased started to ran away from the spot, accused followed and assaulted over the back at scapula as well as sternum region as a result of which the lungs of the deceased got punctured. The accused came to make complaint where altercation took place with the deceased who assaulted by means of a Tangi. When deceased started to ran away from the spot, accused followed and assaulted over the back at scapula as well as sternum region as a result of which the lungs of the deceased got punctured. On some distance when deceased fell down where complainant Rambaran (PW1) reached first and thereafter, Janaklali (PW2) (wife of the deceased), Kalyan Singh (PW7), Jaiprakash Mishra (PW10) (son of the deceased) were reached. The injuries received by deceased were severe wherefrom blood was oozing, however shifted to the Hospital Sirmour and the FIR was lodged. On the intimation given by the Police Station, (PW5) Manoj Kumar Chourasia, Naib Tahsildar recorded the dying declaration (Ex.P-7) of the deceased specifying the act of accused making allegation of assault by deadly weapon. Dr. S.K. Pathak (PW13), Autopsy Surgeon proved the post-mortem report whereby the cause of death is due to injuries caused to him by use of Tangi and Khurpi. The nature of injuries co-relates the act of the accused as per in ocular testimony of the eye witnesses. The Court has also found that the Naib Tahsildar recorded the dying declaration (Ex.P-7) and proved the same, which cannot be disbelieved, however, convicted the appellant for the charge of section 302 of the IPC. In our considered opinion, the finding recorded by the trial Court do not suffer from any perversity or illegality warranting interference in this appeal. 8. In view of the foregoing discussion, we are of the considered opinion that the finding recorded by the trial Court convicting the appellant under section 302 of the IPC is based on due appreciation of evidence, which do not warrant interference in this appeal. The sentence as directed is also commensurate the seriousness of the offence. Accordingly, the appeal is devoid of any merit, hence dismissed.