Deepak and Rakesh vs The State of Madhya Pradesh

M.A. Siddiqui, J.—The appeal has been preferred by appellants feeling aggrieved against the judgment dated 16th July, 2001, delivered by the then Sessions Judge, Bhopal in Sessions Trial No. 280/2000 convicting the accusedappellants u/s 302 of IPC sentencing them to life imprisonment and fine of Rs.500/-. In extra, appellant no. 1 Deepak has been convicted for alleged offence punishable u/s 324 IPC for one month R.I. and u/s 326 IPC for three month''s R.I with fine of Rs.100/-.

In short, the prosecution case is that on 4.5.2000 in the evening Mishrilal, Rajesh and Laxminarayan (since dead) had gone to see the fair at Bhopal and in the night at about 10.30 PM when they were returning after visiting the fair, in the way accused Deepak asked from Rajesh about the time. In reply, Rajesh said that he had no watch, on hearing this, both appellants used filthy language. Laxminarayan asked appellants not to use filthy language, then appellants slapped Laxminarayan, Mishrilal and Rajesh. At that time, appellant Deepak took out a Gupti and gave a blow on Mishrilal which hit him on his thigh. Appellant Deepak also gave blow of Gupti to Rajesh which hit him in the stomach. Then appellants and their one companion caught Laxminarayan and dealt blow of knife and Gupti on him by which he received grievous injuries, he fell down and then accused persons flew away. Mishrilal took Laxminarayan to Hamidia Hospital. Laxminarayan, Mishrilal and Rajesh were admitted in the hospital and report (P.7) was lodged by Mishrilal (PW.4) at 11.45 PM as Dehati Nalish at the hospital. In the morning, on 5.5.2000, Laxminarayan succumbed to the injuries. Inquest was made vide Ex.P/10 by the police and body of Laxminaryan was sent for postmortem, postmortem report (P.2) was received. It was found that due to penetrated wound on chest and stomach Laxminarayan died homicidal death. Mishrilal and Rajesh were also examined and treated, and it was found on their medical examination that there were injuries on their bodies.

Police visited the spot and prepared spot map (P.8), collected blood stained and simple soil vide Ex.P/9 from the spot, accused were arrested and Gupti and knife were seized from them. One co-accused person was found to be minor, so his charge sheet was filed in Juvenile Court.

After due investigation, police filed charge sheet in the Court of CJM, Bhopal for alleged offence punishable under Sections 294, 324, 307 and 302 read with section 34 of IPC. Case was committed for trial and the then Sessions Judge on 7.9.2000 put the charges under Sections 302 and 307 of IPC on both the appellants and started trial.

The defence of accused persons was that they have been falsely implicated in the case, they were not present at the spot so plea of alibi was taken.They examined Banne Khan (DW.1), Munnibai (DW.2), Shyamabai (DW.3) and Shafiq Ahmed DW.4) in their defence.

The prosecution, to substantiate its case, examined Suresh Singh (PW.1) Head Constable, Dr.V.K.Athwal (PW.2), Dr.R.K. Daheria (PW.3), Mishrilal (PW.4), Rajesh (PW.5), Dr.Raghvendra Singh (PW.6), Suhas Dravid (PW.7) Inspector, Special Cell, Police Headquarter, Bhopal, J.P.Rai (PW.8) Assistant Sub-Inspector of Police, Brajgopal (PW.9) and Mohd. Farid (PW.10).

Learned Sessions Judge held guilty both the appellants of the charges u/s 302 IPC, and in extra appellant Deepak was also convicted for offence punishable under Sections 324 and 326 of IPC and they were sentenced as aforesaid. Aggrieved thereby, this appeal has been preferred by the appellants.

Learned counsel for appellants submitted that evidence of Mishrilal (Pw.4) and Rajesh (PW.5) was not reliable. Their evidence suffered with material contradictions from the FIR and the police statement. Both the witnesses made material improvements during trial. Trial Court committed error in convicting appellants on the basis of their evidence. In the alternative, learned counsel submitted that in the circumstances of the case, the conviction of appellants u/s 302 of IPC was not justified since there was no motive or past enmity between the appellants and deceased. The incident had occurred suddenly, in the course of which injury was caused to deceased which proved fatal. Appellants have served out sentence more than 10 years.

On the other hand, learned Panel Lawyer appearing for State, submitted that the evidence of eye witness was reliable. Trial Court committed no error in convicting the appellants u/s 302 IPC, and in extra appellant Deepak has been rightly convicted and sentenced u/s 324 and 326 of IPC. He has supported and justified the finding of conviction recorded by the trial Court.

We have heard learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed by learned counsel for appellants that deceased died a homicidal death. Mishrilal (PW.4) and Rajesh (PW.5) categorically stated that appellants assaulted Laxminarayan as a result of which he suffered injuries. The FIR (P.7) in this regard was lodged by Mishrilal (PW.4) at Hamidia Hospital, Bhopal. J.P.Rai (PW.8) stated that at Hamidia Hospital, Bhopal, Mishrilal lodged verbal report which he wrote as Dehati Nalish (P.7) and at police station he wrote report (P.20) in Rojnamcha Sanha. Suresh Singh (P.1) Head Constable stated that on 4.5.2000 he got the information that near Palash Hotel somebody has been hit by knife so he wrote the report (P.1). Suhas Dravin (PW.7) stated that he saw the dead body of Laxminarayan and after due notice inquest (P.10) was prepared and dead body was sent for postmortem. Mishrilal (PW.4) stated that inquest report (P.10) was made before him. Dr. R.K. Dahria (PW.3) stated that when he was posted at Hamidia Hospital, Bhopal in Causality Department, then on 4.5.2000 at about 10.50 PM, he examined Laxminarayan Son of Mehandilal, aged 26 years and found that his right leg was injured and blood was oozing out and there was injury on his back side. He found that general condition of Laxminarayan was poor, he gave report (P.4) in this regard.

Dr. V.K. Athwal (PW.2) stated that on 5.5.2000, he examined dead body of Laxminarayan and found the following injuries :

(i) penetrating wounds measuring 3 x 1 cm. on the front side of right thigh which was 12 cm. in depth, and the other one was 2 x 1 cm.

(ii) penetrating wound behind the right thigh measuring 2.5x.7 cm., 14 cm.in depth, opening from front side 1 x.5 cm.

(iii) penetrating wound on right buttock measuring 1.5 x.5 cm., 4 cm.in depth.

(iv) penetrating wound on upper part of right buttock measuring 1.5 x.5 cm., 2 cm. in depth.

(v) A penetrating wound on the back side of chest below 20 cm. from C-7 of the neck measuring 2.5 x 1 cm. This wound was on the 8th rib and it was penetrated inside, diaphragm and liver was cut by 5 cm, ecchymosis was present.

(vi) Penetrating wound on right side of chest measuring 2.5 x 1 cm., 16 cm. in depth, inside the 5th and 6th ribs due to which there was whole on the lungs and pericardium and on the atrium of heart.

(vii) There was sign of surgery on the right upper arm measuring 2 x 1 cm.

Doctor further stated that he gave postmortem report (P.2). He opined that the injuries were ante mortam and were caused by hard, sharp and pointed object within 24 hours. Death was homicidal in nature.

Aforesaid injuries were caused by some hard and sharp object and they were ante mortam and death was homicidal. So, from the above evidence, it stood clearly established that deceased died a homicidal death.

The next question is whether the appellants caused injuries to deceased as a result of which he died. Mishrilal (PW.4) and Rajesh (PW.5) categorically stated that when they and Laxminarayan were returning at about 10 PM from fair of Dussehra ground, then Deepak asked time, when it was answered that watch was not there, then Deepak rebuked them and started beating them. Deepak and Rakesh dealt blows of knife and Gupti on them. Deepak gave blow of Gupti on stomach of Rajesh and on thigh of Mishrilal and both the accused persons with a juvenile companion caught hold of Laxminarayan and Laxminarayan was given blows of knife and Gupti by both the appellants.

Learned counsel for appellants contended that appellants were not familiar and were not known to Mishrilal (PW.4) and Rajesh (PW.5) and they have been falsely implicated in this case. While learned Panel Lawyer appearing for State contended that Mishrilal and Rajesh categorically stated that they know both the appellants and as per Dehati Nalish (P.7) which was lodged within half an hour, names of appellants were very much there. So, there is no suspicion in identification.

Learned counsel for appellants submitted that four persons, namely, Banne Khan (DW.1), Munnibai (DW.2), Shyamabai (DW.3) and Shafiq Ahmed (DW.4) have been examined about non-presence of accused-appellants.

From perusal of their statements, it is very much clear that their statements are omnibus. Banne Khan (DW.1) stated that incident of Chaku chhuri had taken place and they were calling about the name of Mishrilal. It is pertinent to note here that Mishrilal (PW.4) is the complainant. Munnibai (DW.2) is the mother of Deepak and Shyamabai (DW.3) is the mother of Rakesh. So they have every reason to defend their children. Shafiq Ahmed (DW.4) stated that incident of inflicting knife had taken place, but there was darkness. So, he could not recognize. There is specific statement of Mishrilal (PW.4) vide para 12 that at the spot street light was lightening. The incident happened near Palash Hotel and on the way of famous fair of Dussehra ground where sufficient arrangements of light is made. So, the defence version has rightly not been relied on by the learned trial Court.

On close appraisal of evidence of aforesaid two eye witnesses, we find a ring of truth therein. From their evidence, in our opinion, it has been clearly established that appellants caused injury to Laxminarayan as a result of which he died on 5.5.2000. It has also been established that appellant Deepak caused simple injury to Mishrilal (PW.4) and grievous injury to Rajesh (PW.5) for which Dr. R.K.Daharia (PW.3) stated that he found that there was wound on person of Mishrilal on his left thigh for which he gave report (P.5), and there was penetrating wound in the stomach of Rajesh for which he gave report (P.6). Dr.Raghvendra Singh (PW.6) stated that on 5.5.2000, he found that there was a cut wound measuring 2.5 x 1 cm. on the stomach of Rajesh and he found that there was cut on the omentum and this was caused by sharp and pointed object. He gave report (P.11) and he further stated that he had operated Rajesh and his injury was not simple.

In view of above, the learned trial Court has rightly held appellant Deepak guilty of offence punishable u/s 324 IPC for causing simple injury to Mishrilal and u/s 326 IPC for causing grievous injury to Rajesh. There is no ground for false implication. The direct evidence is also supported by evidence of memorandum and recovery of weapon. The evidence of prosecution witnesses is natural and trustworthy.

Learned counsel for appellants next submitted that the conviction of appellants u/s 302 of IPC was not justified as the incident occurred suddenly and without premeditation. It is true that there is no evidence on record to indicate that there was enmity between the appellants and the deceased. It was suddenly some altercation took place between appellants and injured persons along with the deceased. Appellants caused injuries by knife and Gupti to Laxminarayan, injuries caused on Laxminarayan proved fatal to his life. Under these circumstances, we are of the opinion that the conviction of appellants u/s 302 of IPC was not justified. This case clearly falls within the ambit of exception 4 to Section 300 of IPC. Since, appellants dealt more than one blows to deceased and they proved fatal to his life, it has to be held that appellants acted with the intention of causing such bodily injury to deceased as was likely to cause his death making them liable to be punished u/s 304-I of IPC.

For the reasons recorded hereinabove, the conviction of appellants u/s 302 of IPC and sentence of imprisonment for life as awarded by the Court below is set aside, instead they are convicted u/s 304-I of IPC and sentenced to the period of custody already served out by them which admittedly is more than 10 years. Sentence of fine is affirmed. The conviction of appellant Deepak under Sections 324 and 326 of IPC and the sentence of rigorous imprisonment as awarded to them by the trial Court is affirmed.

Appeal is partly allowed.