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2021 DIGILAW 98 (RAJ)

Mangu Singh v. State of Rajasthan

2021-01-13

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT : 1. The instant appeal under Section 374(2) Cr.P.C. has been preferred by the convict appellant Mangu Singh S/o Shri Amar Singh for assailing the judgment dated 23.11.2011 passed by learned District & Sessions Judge, District Jodhpur in Sessions Case No. 11/2011 whereby, the appellant was convicted and sentenced as below:- Offence under Section Imprisonment Fine Sentence in default of fine 302 IPC Life Imprisonment Rs.5,000/- 1 year’s SI 2. The facts in a nutshell are as below: Narpat Singh S/o Shri Jalam Singh (PW.2) lodged a written report (Ex. P/8) to the SHO PS Bilara on 10.07.2010 at the Government Hospital, Borunda, District Jodhpur alleging inter alia that Mangu Singh S/o Shri Amar Singh (the appellant herein) came to his house on the same day at about 2:45 pm and called his brother Mahendra Singh out. No sooner had Mahendra Singh come out of the house, than Mangu Singh took out a knife and assaulted Mahendra Singh on his chest, abdomen etc. When Mahendra Singh screamed, Narpat Singh, the first informant and Sawai Singh reached there and saw that Mahendra Singh was lying down on the ground and Mangu Singh was assaulting him with a knife. Narpat Singh (PW.2) and Sawai Singh (PW.7) intervened to save Mahendra Singh from the brutal assault on which, the appellant herein ran away from the spot. Mahendra Singh was taken to the Government Hospital at Borunda where the doctor declared him dead whereupon, the report came to be lodged by Narpat Singh (PW.2) in the above terms. On further enquiry, Narpat Singh alleged that a dispute over 'Bada' was going on between Mahendra Singh and Mangu Singh, who had killed Mahendra Singh over this dispute. 3. On the basis of the report afore-stated, an FIR No. 272/2010 (Ex. P/29) came to be registered at the Police Station Bilara for the offence under Section 302 IPC and investigation was commenced. The dead body of Mahendra Singh was inspected and Fard Surathal Lash (Ex. P/2) was prepared. Autopsy of the dead body was undertaken at the Government Hospital, Borunda from where, postmortem report (Ex. P/11) was issued as per which, a stab wound was noticed under the second left rib of the victim extending deep inside the cavity to the extent of almost 12 cms. P/2) was prepared. Autopsy of the dead body was undertaken at the Government Hospital, Borunda from where, postmortem report (Ex. P/11) was issued as per which, a stab wound was noticed under the second left rib of the victim extending deep inside the cavity to the extent of almost 12 cms. The stab wound damaged the internal organs and main blood vessels leading to the death of Mahendra Singh by excessive hemorrhage. The place of incident was inspected and site inspection plan (Ex. P/1) was prepared. Blood stained soil and control soil were collected from the place of incident vide seizure memos Ex. P/5 & Ex. P/6 respectively. The blood stained clothes of the deceased Mahendra Singh were collected and seized vide seizure memo Ex. P/7. 4. The accused appellant was arrested on 12.07.2010 vide arrest memo Ex. P/9 and the clothes worn by him at the time of incident were seized vide seizure memo Ex. P/10. The Investigating Officer Shri Bhanwarlal (PW.13) interrogated the accused who gave a voluntary information under Section 27 of the Evidence Act (Ex. P/18) in furtherance whereof the weapon of offence i.e., the knife (Chaku) was seized vide seizure memo Ex. P/14. The blood stained & control articles were forwarded to the FSL, Jodhpur for serological examination while following proper procedure of safe keeping and transmission of the samples. A report (Ex. P/28) dated 31.08.2010 was received from the FSL, Jodhpur as per which, Article No. 1 (blood smeared soil), Article No. 3 (Shirt), Article No. 4 (Baniyan of the deceased), Article No. 7 (T-shirt of the accused), and Article No. 8 (weapon of offence, knife) were all found stained with "O" group blood. After concluding investigation, a charge sheet came to be filed against the appellant herein in the competent court for the offence under Section 302 IPC. 5. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Jodhpur where charge was framed against the appellant for the said offence by order dated 25.10.2010. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses in support of its case. The accused was questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, he denied the same but chose not to lead any evidence in defence. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses in support of its case. The accused was questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, he denied the same but chose not to lead any evidence in defence. After hearing the arguments advanced by learned Public Prosecutor, learned defence counsel and learned counsel for the complainant and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence this appeal. 6. Shri Dhirendra Singh, Advocate representing the appellant did not very seriously contest the factum of existence of evidence showing that the accused appellant inflicted the knife blow to the deceased Mahendra Singh. However, his contentions were: (1) that the accused had no motive whatsoever to murder the deceased Mahendra Singh. (2) that it is a case of solitary knife blow without any premeditation and thus offence, if any, would not exceed beyond Section 304 Part I IPC (3) that the accused himself received numerous injuries in the incident as is evident from the memo Ex. P/12 which remained unexplained and thus, the accused deserves to be given the benefit of doubt. 7. On these submissions, Shri Dhirendra Singh vehemently contended that the conviction of the appellant herein for the offence under Section 302 IPC cannot be sustained and instead the same deserves to be altered to one under Section 304 Part I IPC. He thus, craved acceptance of the appeal to this extent. 8. Per contra, Shri Farzand Ali, learned AAG assisted by Shri B.R. Bishnoi, AGC vehemently and fervently opposed the submissions advanced by appellant's counsel. They urge that it is a broad daylight incident involving brutal assault by the appellant armed with a knife on the unarmed innocent victim Mahendra Singh, who was called out from his house by the appellant and stabbed deep into the chest cavity by a knife which led to excessive bleeding and death of the victim. They urged that PW.2 Narpat Singh, the first informant and PW.7 Sawai Singh supported the prosecution case to the hilt and have given cogent evidence implicating the accused as the assailant of Mahendra Singh. They urged that PW.2 Narpat Singh, the first informant and PW.7 Sawai Singh supported the prosecution case to the hilt and have given cogent evidence implicating the accused as the assailant of Mahendra Singh. In addition thereto, the recovery of blood stained clothes of the accused and the blood stained knife effected at his instance by the IO during the course of investigation with blood stains matching the blood group of the deceased ("O" positive) conclusively establish his complicity in the crime. It was further submitted that in a case involving pre-meditated blow by a knife to an unsuspecting victim on the vital part of the body like chest, the offence cannot be toned down and hence, the impugned judgment does not warrant any interference whatsoever. 9. We have given our thoughtful consideration to the submissions advanced at bar and minutely re-appreciated the evidence available on record. 10. Suffice it to say that the factum regarding the prompt lodging of FIR (Ex. P/8) by the first informant Narpat Singh (PW.2) is not disputed. The FIR came to be lodged within six hours of the incident, in which is a specific allegation that the appellant inflicted the knife blow on the chest of the deceased which proved fatal. The informant Narpat Singh, upon being examined on oath as PW.2 supported the prosecution case to the hilt. He also gave out the details constituting motive of the appellant for murdering the victim asserting that a dispute of 'bada' was going on between the parties which led to the incident. No significant cross-examination was undertaken by the defence counsel from Narpat Singh (PW.2) on this aspect and thus, apparently, the factum of motive to commit the offence is well established against the appellant. Narpat Singh also gave convincing and clinching evidence regarding the appellant herein having called Mahendra Singh out between 2:30 to 3 O' Clock on the fateful afternoon, the victim going out of the house and then being stabbed by the accused appellant. Narpat Singh categorically stated that Mangu Singh stabbed Mahendra Singh on his chest. This significant aspect of the prosecution case was not very seriously contested by the defence counsel. Furthermore, nothing significant was elicited during cross-examination so as to dilute the evidentiary worth of Narpat Singh's ocular testimony. Narpat Singh categorically stated that Mangu Singh stabbed Mahendra Singh on his chest. This significant aspect of the prosecution case was not very seriously contested by the defence counsel. Furthermore, nothing significant was elicited during cross-examination so as to dilute the evidentiary worth of Narpat Singh's ocular testimony. Thus, the fact regarding the appellant having inflicted the knife blow on the chest of the deceased Mahendra Singh is well and truly established from the evidence of Narpat Singh. 11. The dead body of Mahendra Singh was subjected to autopsy at the Government Hospital, Borunda by Dr. Dinesh Kumar (PW. 10) who, in his evidence, testified that he noticed a stab wound ad measuring 2 x 1/2 cm below the left second rib of the deceased. The injury extended 12 cms deep into the chest cavity cutting the main artery as well as the right lung leading to excessive hemorrhage and proved fatal. No significant cross-examination was undertaken from the doctor on this aspect of his evidence. Otherwise also, after perusal of the postmortem report and medical testimony of Dr. Dinesh Kumar (PW.10), we are duly convinced that the prosecution has led convincing evidence proving that the cause of death of Shri Mahendra Singh was the stab wound on the left chest area which unquestionably is a vital part of the body. The blow was very forceful as it extended almost 12 cms into the chest cavity. 12. The accused appellant was arrested on 12.07.2010 vide arrest memo Ex. P/9. The Investigating Officer Bhanwarlal (PW. 13) interrogated the accused who gave a voluntary information under Section 27 of the Evidence Act (Ex. P/18) which led to the recovery of the weapon of offence i.e., knife which was blood stained. When the accused was arrested, he was wearing blood stained clothes which were seized vide seizure memo Ex. P/10. The knife recovered at the instance of the accused, his blood stained clothes, blood stained clothes of the deceased as well as the blood stained soil collected from the place of incident were subjected to serological examination at the FSL, Jodhpur from where a report (Ex. P/28) admissible under Section 293 Cr.P.C. was received establishing the fact that all these articles were found stained with "O" group blood. P/28) admissible under Section 293 Cr.P.C. was received establishing the fact that all these articles were found stained with "O" group blood. The accused failed to offer any explanation whatsoever about the existence of these blood stains on his clothes and the knife which was recovered at his instance. The incriminating recoveries coupled with the FSL Report corroborate the ocular testimony of Narpat Singh (PW.2) to the hilt. Thus, the factum of the accused having inflicted the fatal knife blow to the deceased Mahendra Singh is well and truly established from the clinching prosecution evidence. 13. The contention of Shri Dhirendra Singh, Advocate that as it is a case of solitary knife blow, the offence should be toned down from one under Section 302 IPC to that under Section 304 Part-I IPC is noted just to be rejected for the ensuing reasons. From the evidence of Narpat Singh (PW.2), it is well and truly established that the accused called the unsuspecting victim out of his house on the fateful afternoon and inflicted a stab blow by the knife on his chest no sooner had the victim come out of the gate. The accused was carrying the weapon with him and thus, the incident was apparently perpetrated in a well planned manner and with full preparation. It is thus, a clear case of premeditated attack by the accused on the victim leading to his death by the fatal knife blow. The intentional knife blow which was inflicted on the chest of Shri Mahendra Singh without any provocation etc. using great force, damaged the main artery and the lung leading to heavy bleeding and proved fatal. Thus, there exist no such mitigating circumstances by which, the Court can be convinced that the offence attributed to the accused can be termed to be anything other than a brutal cold blooded murder. The intention of the accused while inflicting the forceful knife blow on the vital area i.e., chest of the victim was to murder him and nothing less. In the case of Virsa Singh Vs. State of Punjab, reported in AIR 1958 SC 465 , Hon'ble the Supreme Court considered this aspect of the matter and held as below:- "2. The appellant was tried with five others under Sections 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302. 3. In the case of Virsa Singh Vs. State of Punjab, reported in AIR 1958 SC 465 , Hon'ble the Supreme Court considered this aspect of the matter and held as below:- "2. The appellant was tried with five others under Sections 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302. 3. The others were acquitted of the murder charge by the first Court but were convicted under Sections 326, 324 and 323 read with s. 149, Indian Penal Code. On appeal to the High Court they were all acquitted. 4. The appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld by the High Court. 5. There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was. 6. "a punctured wound 2 x 1/2" transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. 7. He also said that "Three coils of intestines were coming out of the wound." 8. The incident occurred about 8 p.m. on July 13, 1955. Khem Singh died about 5 p.m. the following day. 9. The doctor who conducted the postmortem described the injury as- 10. "an oblique incised stitched wound 2 1/2" on the lower part of left side of belly, 1 3/4" above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines and there were six cuts......... at various places, and digested food was flowing out from three cuts." 11. The doctor said that the injury was sufficient to cause death in the ordinary course of nature. 12. The learned Sessions Judge found that the appellant was 21 or 22 years old and said- "When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer." 13. Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code. 14. The learned High Court Judges considered that "the whole affair was sudden and occurred on a chance meeting". But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one. 15. It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted: " If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." 16. It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." 17. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the "thirdly" would be unnecessary because the act would fall under the first part of the section, namely- "If the act by which the death is caused is done with the intention of causing death." 14. Facts of the case at hand are absolutely identical and thus, the argument advanced by the defence counsel that the offence deserves to be toned down to one under Section 304 Part I IPC is devoid of merit. 15. Regarding the contention of Shri Dhirendra Singh, Advocate that the accused himself received injuries in the incident which remained unexplained and thus, the prosecution case becomes doubtful, the nature of injuries found on the person of the accused when he was arrested on 12.07.2010 has to be seen. 15. Regarding the contention of Shri Dhirendra Singh, Advocate that the accused himself received injuries in the incident which remained unexplained and thus, the prosecution case becomes doubtful, the nature of injuries found on the person of the accused when he was arrested on 12.07.2010 has to be seen. These injuries were (1) bruise over left scapula region (2 x 1 cm), (2) bruise over left shoulder (3 x 2 cm), (3) bruise over right sight of chest (4) abrasion over fingers of the left hand and (5) abrasion over finger of the right hand. All the injuries were superficial in nature and thus, their existence does not lead to any inference which can bring the prosecution case under a cloud of doubt. That apart, neither when questioned under Section 313 Cr.P.C. nor at any other stage of the case, did the accused claim to have received these injuries in the same incident in which Mahendra Singh was assaulted. Hence, no prejudice is caused to the prosecution case by the so-called unexplained superficial injuries noticed on the person of the accused when he was arrested. 16. Thus, it is our firm opinion that the trial court appreciated the evidence available on record in a just and apropos manner while reaching to the conclusion of guilt of the accused by the impugned judgment dated 23.11.2011, which does not suffer from any illegality, infirmity or perversity whatsoever warranting interference in this appeal. Hence, the appeal is dismissed as being devoid of merit. Record be returned to the trial court forthwith.