Hari Kishore and Hari Prasad vs State of Madhya Pradesh

B.D. Rathi, J.—This appeal u/s 374 of the Code of Criminal Procedure, 1973 (in short the Code) has been filed by the appellants against the judgment of conviction dated 13-02-2009 passed by learned Additional Sessions Judge, Shivpuri in Sessions Trial No. 84/2008 whereby appellants have been convicted u/s 302 of Indian Penal Code (in short IPC) and sentenced to undergo life imprisonment with fine of Rs. 5,000/- each. The prosecution story, in brief is that on 28-01-2008 at about 2:30 pm the complainant Kamal Kishore (since deceased) was sitting at the platform of Heeraman Baba situated at the hill of village Unchi Barod where Dataram Parihar and Nand Kishore Dhakad were also sitting. Appellants Hari Kishore armed with Gadasi (Farsa) and Hari Prasad armed with Axe came on the spot and after abusing they assaulted Kamal Kishore by Gadasi and Axe, resultantly he fell down and thereafter again appellants caused bodily injuries to Kamal Kishore. On interference by witnesses Dataram Parihar and Nand Kishore Dhakad both the appellants fled by saying that though today we are leaving you alive but next time we will kill you. Thereafter, injured Kamal Kishore was shifted to police station where FIR Ex-P/18 was lodged by him and crime No. 15/2008 was registered at police station Berad district Shivpuri for the offence punishable under Sections 294, 323, 324, 506-B and 34 of IPC and after completion of investigation, charge-sheet was filed, adding the offence u/s 302 of IPC. It is pertinent to mention here that victim Kamal Kishore S/o Jagannath had died on 30-01-2008 during treatment.

During the trial, the accused persons pleaded not guilty to the charge and contended that they had been falsely implicated.

It is argued on behalf of the appellants that trial Court has not properly appreciated the evidence on record. Medical report, injuries mentioned in the post mortem report and opinion of the doctor have not been considered by the trial Court. It was also argued by learned counsel for the appellants that even on accepting the prosecution case in totality, the offence at the most against the appellants would be u/s 304 Part II and not u/s 302 of IPC. It was also submitted that appellants were in jail since 3rd February, 2008. Their sentences may be reduced to the period already undergone by them.

Learned Public Prosecutor on the other hand defended the conviction and sentence of the appellants.

To bring home the charge prosecution has examined Jagannath (PW-1), Sitawati (PW-2), Rambabu Verma (PW-3), Kedari Sen (PW-4), Kalli (PW-5), Nandkishore (PW-6), Pinki Dhakad (PW-7), Mukesh (PW-8), Brijvallabh Dhakad (PW-9), Dr. A.K. Maurya (PW-10), Dataram (PW-11), Dr. O.P. Sharma (PW-12), Constable Ramesh Chandra Sharma (PW-13), Constable Ramdin Kewat (PW-14), Sub Inspector Mirza Asif Beg (PW-15) and Constable Devendra Singh (PW-16).

After taking into consideration the entire evidence and material available on record, it was held by the trial Court that prosecution has successfully proved its case on the basis of oral dying declaration of the deceased and also from the evidence of Jagannath (PW-1) and Sitawati (PW-2) so also on the basis of written dying declaration, Ex-P/18 which was very well proved from the evidence of Head Constable Ramdin Kewat (PW-14) who had written the FIR Ex-P/18 as narrated by the deceased. Thus, trial Court has found proved that murder of Kamal Kishore was committed by the appellants and sentenced them accordingly.

Now it is well-settled that where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible u/s 32(1) of the Indian Evidence Act (See Munnu Raja and Another Vs. The State of Madhya Pradesh, ). The trial Court was, thus, fully justified in treating the first information report of Kamal Kishore as his dying declaration.

The question which now calls for consideration is whether even on accepting the prosecution version in totality, the offence against the appellants would be u/s 302 or Part I and II of Section 304 of IPC.

The dying declaration/first information report of Kamal Kishore clearly reveals that the appellants after causing injuries to him fled by saying that though today we are leaving you alive but next time we will kill you. This conduct and statement of appellants cannot be ignored and most probably they would not have anticipated that the act done by them would have escalated to such a proportion that Kamal Kishore might die. On the report of Kamal Kishore, police has registered the offence under Sections 294, 323, 324, 506-B and 34 of IPC. That apart, on perusal of autopsy report, Ex-P/14 except injuries No. 1 and 11, all the injuries were caused by hard and blunt object. It is also pertinent to mention here that Kamal Kishore had died on 30-01-2008. We are therefore, inclined to think that the appellants'' thoughts were to inflict injuries to Kamal Kishore and frighten him but the situation slipped out of their control and it went to the fatal extent.

Having regard to the facts of the case, we hold that the act committed by the appellants would fall u/s 304 Part II and not u/s 302 of IPC.

Consequently we set aside the conviction of appellants u/s 302 of IPC and sentence of life imprisonment imposed to them with a fine stipulation and instead of it, convict them for the offence u/s 304 part II of IPC and sentenced them to undergo 6 (six) years rigorous imprisonment with fine of Rs. 5000 (Rs. Five Thousand Only) each and on realization, the same shall be paid to the legal heirs of the deceased as directed by the trial Court. The appellants are reportedly in jail. They be released on their undergoing the jail sentence awarded as above, if not already undergone. With the above modification, the appeal is partly allowed.

Copy of the judgment be sent to the trial Court along with record for information and necessary compliance.