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Madhya Pradesh High Court · body

2018 DIGILAW 835 (MP)

Hare Singh v. State of M. P.

2018-10-01

R.S.JHA, SANJAY DWIEDI

body2018
JUDGMENT Dwivedi, J.--1. This appeal under section 374 (2) of the Code of Criminal Procedure, 1973 has been filed by the appellant being aggrieved by the judgment of conviction and order of sentence dated 25.10.2008, passed by the Sessions Judge, Khandwa, District Khandwa in Sessions Trial No. 32/2008, whereby, the appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 and sentenced to suffer R.I. for life imprisonment with fine amount of Rs. 200/- and for default of payment of fine amount, R.I. for one month. 2. The prosecution version is that on 6.11.2007 between 7:00 p.m. and 08:00 p.m., when Shyam Singh (PW3) was having dinner and Anokha Bai (PW4) was making chapattis and Mahendra Singh (deceased) was sitting there, at that point of time, Sewanti Bai, wife of accused, who is sister of Anokha Bai and aunt of deceased came to the house of deceased to give Diwali Sweets and went back to her house. Thereafter, she again came back and behind her, the accused came with a knife in his hand started abusing and assaulted the deceased with the knife on right side of chest and as the accused was about to assault again, Shyam Singh (PW3) intervened and caught hold of the knife whereby, he had sustained injuries on his middle finger of his right hand and the accused who is the brother of Shyam Singh (PW3) ran away from the spot. He took his son Mahendra Singh to the Civil Hospital, Sanavad at about 9:30 p.m., where Mahendra Singh was declared dead at about 11:30 p.m. The information was sent to the Police Station, Sanavad by Dr. A.S. Chouhan (PW11) through ward boy Heera Lal (PW1) about injured Mahendra Singh thereafter, information of death of Mahendra Singh was also submitted. The police registered the first information report at Police Station Mandhata, District Khandwa vide Ex.P.-7 and Ex.P.-7A and recorded the statements of witnesses under section 161 of the Code of Criminal Procedure and thereafter the accused was arrested and as per the memorandum under section 27, a knife was seÁed. 3. After conclusion of the investigation, a charge-sheet was filed against the appellant under section 302 of Indian Penal Code. The prosecution has based its case primarily on the evidence of prosecution witnesses namely Shyam Singh (PW3), Anokha Bai (PW4), Chetram (PW5), Dr. R.S. Patidaar (PW9) and Dr. 3. After conclusion of the investigation, a charge-sheet was filed against the appellant under section 302 of Indian Penal Code. The prosecution has based its case primarily on the evidence of prosecution witnesses namely Shyam Singh (PW3), Anokha Bai (PW4), Chetram (PW5), Dr. R.S. Patidaar (PW9) and Dr. Rohit Hirve (PW15) and on the documents i.e. the seÁure and FSL Report (Ex. P-29 and Ex.P-30). The trial Court found the testimony of the eye witnesses Shyam Singh (PW3) and Anokha Bai (PW4) credible and trustworthy, analyzed the prosecution version and came to a clear conclusion that it is a case beyond the shadow of doubt and thus, convicted the appellant under section 302 of Indian Penal Code. Hence, this appeal is preferred by the appellant against his conviction and sentence. 4. The learned counsel appointed as Amicus Curiae for the appellant/accused while assailing the legality and correctness of the impugned judgment submits that the trial Court has committed an error while recording finding of conviction as firstly, the evidence of relatives should not have been believed as they being interested witnesses; secondly, there are contradictions in the statements of eye witnesses and lastly that there was a single knife blow, therefore, the section 302 of Indian Penal Code has no application. 5. The learned Government Advocate placing strong reliance on the statements of the eye witnesses, seÁure and the supportive post-mortem report submitted that the appellant has rightly been convicted under section 302 of Indian Penal Code and this appeal lacks merit and is liable to be dismissed. 6. We have considered the rival submissions made by learned counsel for the parties and perused the records. Now the first question which arises for consideration is that whether the evidence of the eye witnesses should be discarded only on the ground that the evidence of partisan or interested witnesses is unreasonable. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice, moreso, when there is no inconsistency between the ocular evidence and medical evidence on record and the place of occurrence and the presence of accused is also not doubtful, the plea that evidence should be rejected because it is partisan cannot be accepted as correct. Reliance is placed on the decisions of the Supreme Court reported in (2013) 15 SCC 298 parties being Gangabhavani v. Rayapati Venkat Reddy and others. (2018) 7 SCC 429 parties being Khurshid Ahmed v. State of Jammu and Kashmir. 7. We have critically gone through the record especially the evidence of Shyam Singh (PW3) and Anokha Bai (PW4) and find that there are no material discrepancies. Normally discrepancies are due to normal errors of memory, due to lapse of time, observation, mental disposition such as shock and horror at the time of occurrence. Normal discrepancies in evidence do not corrode the credibility of party’s case. 8. The residuary plea relates to the applicability of section 302 of Indian Penal Code as is connected that there was single knife blow during right of private defence. 9. To claim a right of private defence extending to causing of death accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. As per the evidence, the accused was carrying the knife and has attacked the unarmed man and further was stopped by Shyam Singh by way of catching knife where Shyam Singh has also suffered injuries. The factum of sustaining injuries is also supported by the statement of Dr. Rohit Hirve (PW15). 10. The death caused by a single knife blow on a vital part cannot be said to necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part-II of Indian Penal Code. The whole thing depends upon the intention to cause death. The nature of intention must be inferred from the kind of weapon used, the part of body hit, the amount of force employed and the circumstances attendant upon death. 11. As per the Autopsy Surgeon (PW9), vide postmortem report (Ex.P-13), the cause of death was due to shock (cardiac failure) caused by fatal stab injury on heart. It is evident from the medical report and statement of doctor that the appellant has given knife blow with full force and speed. It is also opined by the Doctor (PW9) that the fatal injury is not possible in a scuffle. Thus, Section 304, Part-II of Indian Penal Code is not at all attracted. 12. It is evident from the medical report and statement of doctor that the appellant has given knife blow with full force and speed. It is also opined by the Doctor (PW9) that the fatal injury is not possible in a scuffle. Thus, Section 304, Part-II of Indian Penal Code is not at all attracted. 12. We, therefore, find no infirmity in the reasoning of the trial Court in convicting the appellant under section 302 of Indian Penal Code. We, therefore, dismiss the appeal and the conviction and sentence imposed on the appellant under section 302 of Indian Penal Code is hereby maintained.