Abinash vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal being aggrieved with the judgment dated 29.2.2000 passed by the learned Additional Sessions Judge and Special Judge under SC/ST (Prevention of Atrocities) Act, Narsinghpur in ST No. 125/1999 whereby, he has been convicted for offence punishable under Section 302 of IPC and sentenced to life imprisonment and fine of Rs. 1000/-, in default of payment of fine, further additional RI for one year.

The prosecution case, in short, is that on 27.3.1999 witness Hiralal (PW5) along with the deceased Sheikh Amjad were coming towards the house of latter situated at Ramnagar, Bargi Colony, Narsinghpur, on way they met the witness Babulal (PW12) and started talking to him. Thereafter, all of them started smoking beedi. In the meantime, the applicant Abinash @ Bhatole came from behind and caused an injury with a dagger to the deceased Amjad on his back. After having received one blow the deceased Amjad tried to run but, the appellant chased and grappled with him. The appellant then assaulted the deceased Amjad with a dagger 2-3 times more. Babulal (PW12) and Hiralal (PW5) tried to save the deceased but, could not do so. The appellant Abinash @ Bhatole ran away from the spot soon after the incident. Hiralal (PW5) went to the house of Amjad and informed his father Sheikh Kallu (PW4) about the incident. Sheikh Kallu immediately rushed to the spot and arranged a handcart so that the deceased Amjad could immediately be taken to the hospital but, the doctor reported as brought dead. Thereafter, Sheikh Kallu had lodged an FIR Ex. P/8 at Police Station Narsinghpur. Dead body of the deceased Amjad was sent for postmortem. Dr. Shyamlal Gupta (PW4) had performed the postmortem on the body. He found 4-5 incised wounds on the body of the deceased situated on left arm, back of the head, left jaw, left shoulder and right waist. Due to assault caused on right waist the right kidney of the deceased was found cut. Similarly there was an injury on back side of liver. The deceased died due to injury caused on his right waist and right kidney. After due investigation, charge sheet was filed before the Chief Judicial Magistrate, Narsinghpur who, committed the case to Sessions Court and ultimately it was transferred to the learned Additional Sessions Judge who, was also empowered as a Special Judge under the SC/ST (Prevention of Atrocities) Act.

The appellant-accused abjured his guilt. He took a plea that the appellant had an enmity with one Lotan Singh relating to shifting of a "Pan" (beetel leaves) shop. The witness Hiralal (PW5) is brother of Lotan Singh and therefore, he had falsely implicated the appellant in the case. However, no defence evidence was adduced.

After considering the prosecution''s evidence the trial Court has convicted and sentenced the appellant as mentioned above.

We have heard the learned counsel for the parties at length.

In the present case Dr. Shyamlal Gupta (PW2) has proved the postmortem report Ex. P/5 and gave his opinion that the deceased Sheikh Amjad sustained five injuries in all, out of them the injury caused to right waist and consequentially to right kidney and liver was fatal in nature and therefore, death of the deceased was homicidal. The appellant did not challenge the nature of the death of the deceased and therefore, it is not necessary to mention the particulars of injuries of the victim and to discuss the same.

Out of three eye witnesses Babulal (PW12) and Jagdish Goswami (PW13) have turned hostile whereas, Hiralal (PW5) has stated that the appellant assaulted the victim by a Gupti for more than 2-3 times. In the cross examination of the witness nothing could be brought by the defence counsel so that the witness may be disbelieved. The witness Hiralal (PW5) was given a suggestion that he had affectionate relation with one Jamila, wife of the deceased, and the witness Hiralal was interested in her. The witness admitted the fact that he was in the habit of sharing jokes etc. with Jamila and she was frankly talking with the witness Hiralal in comparison to her husband Sheikh Amjad. However, the witness denied the suggestion that he kept a bad eye on Jamila or he wanted to have her as his wife. He also denied the suggestion that he killed the victim Sheikh Amjad and the allegation was made against the appellant by him before Sheikh Kallu, father of the deceased.

It appears that such suggestions were hypothetically given to Hiralal (PW5) as well as Sheikh Kallu (PW4). If the witness Hiralal had a bad eye on Jamila, wife of the deceased, then it should have been objected not only by the deceased but, also by Sheikh Kallu, father of the deceased. An hypothetical suggestion was given to the witness Hiralal (PW5) that Jamila was residing as his wife after death of the deceased but, no evidence is advanced by the appellant to that extent. On the other hand the appellant has blamed that it was Hiralal who had falsely implicated the appellant in the matter because he had enmity with Lotan Singh, brother of the witness Hiralal whereas, no such suggestion of enmity was given to the witness Hiralal.

Hence the appellant could not prove any enmity with Lotan Singh or the witness Hiralal. It was not the case of the appellant that Hiralal was the main culprit who shifted his guilt upon the appellant though such type of hypothetical suggestion was given to the witness Hiralal and the witness Sheikh Kallu (PW4). If the witness Hiralal was the assailant then he would not rush immediately to the house of the deceased. Also if Hiralal would have assaulted the deceased then Sheikh Kallu, father of the deceased, ought to have found blood stains on his clothes. The witness Hiralal immediately rushed to the house of Sheikh Kallu who, came to the spot and took his son to the hospital on a handcart where the doctor found him dead. He then went to the Police Station, Narsinghpur and lodged an FIR Ex. P/8, which is duly proved by Sub Inspector M.L. Chaturvedi (PW5). If the entire description of the incident before lodging the FIR is considered then it would be apparent that the FIR was timely lodged. No delay has been caused by complainant Sheikh Kallu (PW4) and hence the testimony of the witness Hiralal is duly corroborated by Sheikh Kallu and timely lodged FIR Ex. P/8.

On the basis of the aforesaid discussion where the appellant could not prove any reason so that Hiralal would have implicated him falsely, the testimony of the witness Hiralal (PW5) cannot be brushed aside. By hypothetical suggestion given to the witness Hiralal, it was not proved that he was interested to kill the deceased Mohd. Amjad or he was the culprit. When it is established that the testimony of the witness Hiralal is acceptable beyond doubt which is duly corroborated by the evidence of Sheikh Kallu and also by the post mortem report Ex. P/5 proved by Dr. Shyamlal Gupta along with FIR F/8, guilt of the appellant is established. Dr. Gupta found various injuries on those parts of the body of the deceased caused by a dagger on which the witness Hiralal has stated about the assaults caused by the appellant therefore, it is proved beyond doubt that the appellant assaulted the victim by a dagger causing him 4-5 injuries out of them one injury was fatal in nature.

If the entire evidence produced by the prosecution before the trial Court is considered then it would be apparent that no quarrel took place between the deceased and the appellant prior to the incident. The appellant suddenly came to the spot and assaulted the victim 4-5 times with a dagger and gave powerful blows. Due to his one powerful blow the injury was caused on the back which damaged the right kidney and liver of the deceased. Witness Sheikh Kallu (PW4) in para 4 has stated that the appellant had an enmity with the deceased since long because initially both of them had participated in doing the business of "Satta" (gambling) and thereafter, they had separated due to dispute and therefore, their relation were inimical thereafter. Under such circumstances, looking to the overt act of the appellant that he suddenly caught the deceased and repeatedly assaulted him with a dagger for 4-5 times, it is established that he intended to kill the deceased. Hence the appellant is guilty of offence under Section 302 of I.P.C. The learned Additional Sessions Judge has rightly convicted the appellant for aforesaid offence.

So far as the sentence is concerned, the trial Court did not inflict death sentence upon the appellant and looking to the sentence imposed to the appellant it appears that a reasonable sentence has been imposed by the trial Court. There is no reason for interference with the sentence imposed by the learned Additional Sessions Judge.

On the basis of the aforesaid discussion there is no reason to interfere in the conviction as well as the sentence directed by the trial Court against the appellant and therefore, appeal filed by the appellant cannot succeed. Consequently, the appeal filed by the appellant is hereby dismissed by maintaining the conviction and sentence directed by the trial Court.

Copy of the judgment be sent to the trial Court along with its record for information.