Dharmendra Dubey vs The State of Madhya Pradesh

This appeal is directed against judgment and order dated 19.03.1997 passed by II Additional Sessions Judge, Ujjain in S.T. No.107/1996, whereby appellant-Munnalal has been convicted under Section 304 Part-II of IPC and has been sentenced to undergo 10 years RI and to pay a fine of Rs.5000/- with default stipulation.

Prosecution story, as having emerged during trial, briefly stated, is that on 04.02.1996 at around 7 P.M. Satyanarayan r/o - Ambapura, Police Station-Madhav Nagar, Ujjain while sitting on the platform (Otala) of his house was talking to his wife Raju bai (P.W.2). In the mean time, appellant Munnalal passed from there; he started hurling abuses upon Raju bai (P.W.2) and her husband Satyanarayan

saying that why she is making a lot hue and cry. In the meantime, Ajay-friend of appellant Munnalal also reached there and taking sides with Munnalal said that Satyanarayan should be done away to death because now a days he is trying to pose a lot. Pursuant to this, Munnalal picked out a big knife from his pocket and dealt with a knife blow on the abdominal region of Satyanarayan saying that they will put him to death. As per prosecution, Raju bai (P.W.2) - wife of Satyanarayan (deceased), Ashok (P.W.3), his younger brother, Hari (P.W.4) - a neighbour and Jitendra (P.W.5) - son of deceased Satyanarayan were present on the spot, however, Ajay and appellant-Munnalal fled away from the spot before they could intervene.

As per prosecution, Satyanarayan was taken by Ashok (P.W.3) on his bicycle to Police Station - Madhav Nagar, where at around 7.30 p.m. i.e. within half an hour of the incident Satyanarayan (deceased) lodged First Information Report (Ex.P/1) regarding the occurrence, on the basis whereof a case under Section 307 of IPC was registered against Munnalal. Satyanarayan was admitted to Civil Hospital, Ujjain, where on the next day i.e. 05.02.1996, he succumbed to the injuries. In this regard, ''Merg'' report Ex.P/10 was registered at Police Station - Madhav Nagar, Ujjain. Inquest proceedings were conducted. During inquest, it was found that Satyanarayan died because of the stab injuries caused on the right side of the abdomen below ribs. Dead body was sent for postmortem. On 05.03.1996 Dr.

Abhay Pustake (P.W.6) conducted autopsy on the dead body and vide postmortem report (Ex.P/7) found a stab wound, measuring 2 cm. X 1 cm. X 5 cm. piercing through the substance of liver below 10th rib on the right side of the mid- clevicular line. The liver was found damaged and a wound measuring 1 cm. X ? cm. through and through was found in the liver which was corresponding to the stab wound found below 10th rib on the right side of the chest. As per Dr. Abhay Pustake (P.W.6), Satyanarayan died because of hemorrhage caused due to injury to the liver. He further opined that the death occurred between 6-18 hours of the examination and that the same was homicidal in nature. The clothes worn by the deceased were separately sealed and handed over to the police. The investigation proceeded. Girish Subedar (P.W.11), the then Station House Officer, Police Station - Madhav Nagar during the course of investigation prepared spot map Ex.P/2. On the basis of disclosure said to have been made by appellant Munnalal, vide Ex.P/5 on 06.02.1996 a knife, vide seizure memo Ex.P/12, was recovered from his house. Co- accused Ajay was also arrested. The knife said to have been seized from the appellant and bloodstained clothes of the deceased were sent to Regional Forensic Sciences Laboratory, Indore, vide memo Ex.P/12. After usual investigation, the charge-sheet was laid before the Competent Magistrate, who after complying with formalities contemplated under Section 207 of Cr.P.C., committed the case to the Court of Sessions from where it was made over to II Additional Sessions Judge, Ujjain.

The charge under Section 302 of IPC was framed against appellant Munnalal while co-accused Ajay Kumar was charged under Section 302 r/w Section 34 of IPC. Accused persons abjured the guilt and claimed to be tried. The prosecution in order to bring home the charge examined as many as 11 witnesses including Raju bai (P.W.2), Ashok (P.W.3), Hari (P.W.4) and Jitendra (P.W.5), who are said to be eyewitnesses. Dr. Abhay Pustake (P.W.6) has conducted the postmortem examination while Girish Subedar (P.W.11) is the investigating officer. Apart this, documents Ex.P/1 to Ex.P/19 were also marked in evidence.

The incriminating circumstances appearing in the prosecution evidence against the accused persons were brought to their notice in their examination under Section 313 of the Code of Criminal Procedure, 1973 (for short ''the Code''), the appellant either denied or claimed innocence with regard all such circumstances. The defence has been that of false implication, however, no witness was examined in defence, though Ex.D/1 to Ex.D/4 were marked in evidence during examination of various prosecution witnesses. The learned trial Court on appreciation of evidence adduced before the Court, vide the impugned judgment acquitted accused Ajay, however, as stated herein above the appellant was found guilty under Section 304 Part-II of IPC and sentenced to undergo 10 years RI and to pay fine.

Challenging the conviction and sentence, it is submitted by the learned counsel for the appellant that the learned trial Court has not properly appreciated the evidence on record and that the material omissions and contradictions present in the testimony of various prosecution witnesses have been overlooked. It is contended that the learned Court below failed to appreciate that the injury found on the person of the deceased did not correspond the version given in the First Information Report that it was caused by knife. It is further submitted that the name of Ajay was deliberately omitted in the FIR so as to save him and that the prosecution witnesses have falsely implicated the appellant for reasons best known to them, therefore, the conviction and sentence is liable to be set aside.

Per contra, learned Public Prosecutor supporting the impugned judgment submits that the learned trial Court on due appreciation of evidence has recorded the finding of guilt against the petitioner and that considering the quality of evidence, no interference is called for by this Court in the findings of conviction and sentence.

I have bestowed my anxious consideration to the submissions made by counsel for the rival parties and have also carefully gone through the record. The question for consideration is whether the learned trial Court has committed a factual or legal error in recording conviction and sentence against the appellant ?

Dr. Abhay Pustake (P.W.6), who on 05.02.1996 conducted autopsy on the dead body of deceased - Satyanarayan at Civil Hospital, Ujjain, has clearly testified that Satyanarayan died because of the stab injury caused to him on the right side of mid clevicular line below 10th rib which has damaged the liver of the deceased. He has further opined that the injury was caused by a sharp and pointed weapon and that the death was homicidal in nature caused within 6-18 hours of the postmortem. Detailed description of the injuries has been given in postmortem report which is marked as Ex.P/7. The testimony of Dr. Abhay Pustake (P.W.6) on the point that the deceased died because of stab injury which had damaged the liver and that death was homicidal in nature has not at all been challenged in the cross- examination. Otherwise also the same is based on observations made by Dr. Abhay Pustake (P.W.6) at the time of postmortem examination, therefore, there appears to be no reason to doubt the veracity of his testimony which has remained intact during cross-examination. Thus, it is clear that death of Satyanarayan was caused due to injury found below 10th rib on the right side of the chest which was homicidal in nature, therefore, the identical finding recorded by the learned trial Court is found to be inconformity to the evidence.

In the aforesaid premises, the question arises whether the fatal injury to Satyanarayan was caused by the appellant as alleged by the prosecution ? The prosecution case in this regard firstly, is based on First Information Report (Ex.P/1) which was lodged within half an hour of the incident by none else than deceased Satyanarayan and, therefore, amounts to dying declaration within the meaning of Section 32 of the Indian Evidence Act. Secondly, it is based on the eyewitness account given by Rajubai (P.W.2), Ashok (P.W.3), Hari (P.W.4) and Jitendra (P.W.5), who are said to be eyewitnesses of the incident.

As regards F.I.R. Ex.P/1, Gorakh Prasad Prajapati (P.W.1), who at the relevant time was posted as Assistant Sub- Inspector in Police Station - Madhav Nagar has deposed that he on 04.02.1996 at the instance of Satyanarayan recorded First Information Report Ex.P/1. Except for slight overwriting in column - 3(B) with regard to timing which has been explained by this witness in para-5 of the cross-examination, there is no anomaly in the testimony of this witness, who had no axe to grind against the appellant, therefore, it cannot be said that he has a motive to falsely deposed against the appellant and wants to implicate him in this case. As First Information Report Ex.P/1 was recorded by Gorakh Prasad Prajapati (P.W.1) in discharge of his official duties and as Satyanarayabn expired on the very next day, therefore, Ex.P/1 assumed the character of dying declaration and was, therefore, admissible in evidence under Section 32(1) of the Indian Evidence Act, whereunder statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is relevant where that

person''s death is in question.

In Jaswant Singh vs. State, AIR 1979 SC 190, it has been held that dying declaration made to a Sub-Inspector of Police, which is found to be truthful is sufficient to convict the accused. In the instant case, there is no reason to disbelieve the veracity of Ex.P/1, which was recorded by Gorakh Prasad Prajapati (P.W.1) at the instance of deceased Satyanarayan. Ex.P/1 clearly speaks about the fact that stab wound to Satyanarayan was caused by none else than appellant-Munnalal with whom deceased had a quarrel on the fateful day.

As regards ocular testimony of Rajubai (P.W.2), the wife of the deceased, Ashok (P.W.3) - the brother of the deceased, Hari (P.W.4) - the neighbour of the deceased and Jitendra (P.W.5) - the son of the deceased, they all have consistently and clearly deposed that it was appellant, who dealt with a knife blow on the abdomen of the deceased Satyanrayan thereby causing a stab wound to him. They have further clearly deposed that after the incident the deceased was taken by Ashok (P.W.3) to the Police Station where he lodged First Information Report (Ex.P/1) in this regard. Though, certain anomalies and omissions have emerged in the statement of this witness vis-a-vis their police statements which have been exhibited as Ex.D/1, D/2, D/3 and D/4, however, these anomalies are with regard to role played by co-accused-Ajay in causing death of Satyanarayan, who

clearly did not attribute any role to Ajay while lodging First Information Report (Ex.P/1). Rajubai (P.W.2), Ashok (P.W.3) and Hari (P.W.4) have also not attributed any overt act against Ajay in causing stab injury by appellant to Satyanarayan. Though Jitendra (P.W.5) has deposed that Ajay had caught hold of Satyanarayan and thereafter, appellant Munnalal had a struck a knife blow on the abdomen of the deceased, however, this witness has also very categorically stated that stab wound was caused by none else than appellant Munnalal.

The law is settled that if there is a ring of truth in the testimony of the witness about the substantive part of the story then his testimony cannot be rejected because of omissions or contradiction on peripheral issue. In this regard, reference can be made to the observations of the apex Court in State of U.P. vs. Anil Singh, AIR 1988 SC Page 1998, which are as under:

" In Abdul Gani v. State of Madya Pradesh AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff. ...It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless

there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.''''

The learned trial Court on due appreciation of evidence had come to the conclusion that it was appellant Munnalal, who dealt with a knife blow on the abdomen of the deceased which ultimately resulted in his death. The fact that knife recovered from the accused is not sharp edged on both the sides and that the margins of the stab wounds were clean cut on both the sides cannot be a ground to reject the direct testimony of as many as 4 eyewitnesses which stands corroborated with dying declaration (Ex.P/1) of the deceased. The learned trial Court has dealt with all the factual and legal aspects in a proper manner and has arrived at a finding with regard to conviction. This Court on careful re-appreciation of entire evidence on record does not find any reason to differ with the view taken by the learned trial Court, therefore, there is nothing to interfere with the finding of conviction and sentence recorded by the learned trial Court.

In view of the aforesaid, this appeal having no merit deserves to be and is accordingly, hereby dismissed. The conviction and sentence passed by the learned trial Court are

affirmed. The appellant is on bail. He is directed to surrender to his bail bonds within a period of 3 weeks from today, failing which, the learned trial Court will take coercive steps to secure presence of the appellant, so as to send him to jail to suffer remaining part of the sentence.

A copy of this order be sent to the trial Court concerned for compliance.