Pandit @ Sampoornanand vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 27.3.1996 passed by Fifth Additional Sessions Judge, Rewa in Sessions Trial No. 142/1993, convicting the appellant u/s 304-I of the Indian Penal Code and sentencing him to rigorous imprisonment for seven years with fine of Rs. 500/-. In default of payment of fine, further rigorous imprisonment for three months. In short, facts of the case are that on 20.5.1993, in the evening when Mahendra Prasad (deceased) and his sons Shashi Kumar (PW1) and Santosh Kumar (PW7) were removing stones kept adjacent to the wall of their house and were making an embankment, Kashi Prasad asked them not to do so. Despite that, Mahendra Prasad picked up stones and threw away. It is said that other accused persons viz. Raja @ Shivendra Kumar, Indradatt, Muniraj, Ashwani Kumar and appellant reached there. Shivendra and Indradatt caught hold of the hands of Mahendra, appellant took out a knife from his pocket and stabbed him on the left side of the chest. Mahendra fell down. He was taken to hospital, but he died. None lodged formal report about the occurrence, but when a report was received from Control Room, a merg was registered. Dead body of Mahendra Prasad was sent for postmortem examination and a Dehati Nalishi report u/s 302/34 of the Indian Penal Code was recorded.

Dr. S.K. Pathak (PW8), C.M.O. in G.M.H. Hospital, Rewa conducted the autopsy and found a stab wound on the left side of the chest of deceased. As a result of injury, pericardium and heart of the deceased was cut. He died due to failure of the heart because of excessive bleeding. After investigation, charge sheet was filed against six accused persons including the appellant and the case was committed for trial.

Charges under Sections 302/149 and 147 of the Indian Penal Code were framed against all the accused persons. Appellant was also charged under Sections 302 and 148 of the Indian Penal code. All the accused persons abjured their guilt. According to them, deceased and the members of the complainant party were forcibly removing stones from the land which belonged to them. When they objected to it, Shashi, the son of deceased assaulted appellant with a Danda and deceased took out a knife and grappled with him. In the quarrel, deceased fell down and suffered injury by his own knife.

With a view to substantiate its case, prosecution examined 10 witnesses. In his defence, appellant also examined 3 witnesses namely Dr. S.C. Sinha (DW1), Dr. A.A.Siddiqui (DW2) and Rajwa (DW3). Appellant also exhibited documents Ex. D/5 to Ex. D/8 to prove his injuries. Learned trial Court after appreciating the evidence on record held other accused persons not guilty, however, convicted and sentenced appellant as mentioned above.

Aggrieved by the impugned judgment of his conviction and sentence, appellant has filed this appeal.

Shri Satish Chaturvedi, learned counsel for the appellant did not assail the finding of guilt of the appellant recorded by the trial Court, he, however submitted that the trial Court committed error in holding the appellant guilty u/s 304-I of the Indian Penal Code. According to him, appellant could have been held liable only u/s 304-II of the Indian Penal Code. On the other hand, Shri R.S. Shukla, learned Panel Lawyer for the State supported and justified the conviction of appellant u/s 304-1 of the Indian Penal Code.

I have heard the learned counsel of the parties and perused the impugned judgment and evidence on record.

Shashi Kumar Mishra (PW1), Mahendra Pratap (PW2), Shobha (PW3), Surya Prakash Mishra (PW5) and Santosh Kumar Mishra (PW7) were examined as eye witnesses of the occurrence. Since Mahendra Pratap (PW2) and Surya Prakash Mishra (PW5) gave a different story at trial then as given by them during investigation, they were declared hostile. Shashi, Santosh and Shobha are respectively the sons and daughter of deceased Mahendra Prasad. From the evidence of these witnesses, it is apparent that the deceased and the appellant had common ancestors. Deceased was uncle of the appellant and both resided in the neighbourhood. None of the witnesses said that there was past enmity between the two parties. According to them, stones of accused Kashi, the uncle of appellant were kept by the side of the wall of the house of deceased. Deceased asked accused persons to remove stones as they obstructed the flow of water from their house, but accused Kashi refused for the same. When deceased removed stones from the site, a quarrel ensued, in the course of which, accused Raja caught hold of deceased, other accused caught Shashi Kumar and appellant whipped out a knife and stabbed on the chest of deceased. Though, there appeared some inconsistency between the evidence of aforesaid eye witnesses as to who caught the hands of the deceased and what was the genesis of the occurrence, yet it appeared clear that the incident occurred all of a sudden and without premeditation.

Learned counsel for the appellant submitted that in the same incident appellant also suffered injuries which were reported to police and were also examined by doctor. Since none of the eye witnesses explained the injuries of appellant, their version about the genesis of the incident was not reliable. It could not be inferred that appellant knowingly or intentionally caused the injury on the chest of deceased. Learned counsel drew my attention to the evidence of Shashi Kumar (PW1), who in paragraph-4 of his statement disclosed that the land on which they were constructing embankment by removing stones, was being used by accused Kashi since last two years for tying his cattle. The incident occurred soon after the construction of embankment. Shashi Kumar (PW1) also admitted that when he was removing stones appellant asked them not to do that, but they did not yield to his request and continued to remove stones. Shobha (PW3), in her chief examination, stated that when she heard commotion she came out of her house and saw that accused dealt a knife blow to her father and ran away. She admitted that by erecting wall at the place where stones were kept, the passage of accused persons was narrowed down.

None of the aforesaid witnesses, including Santosh Kumar (PW7), disclosed as to how appellant suffered injury. When specifically asked, Santosh denied to have seen any injury on the body of appellant. He, however, admitted that on third day of the incident, he came to know that appellant was also admitted in the hospital.

Mahendra Pratap (PW2) an independent witnesses, though declared hostile, disclosed that there had been an altercation between Mahendra Prasad and appellant. Sons of Mahendra Prasad were removing stones from the place of occurrence. Appellant asked them not to remove stones as they were kept by him, but they did not yield to his request and deceased grappled with him. According to this witness, Shashi (PW1) dealt a blow with Danda on the head of appellant due to which deceased and appellant both fell down and deceased contracted injury by knife. Since the versions given by Mahendra Pratap (PW2) and Surya Prakash Mishra (PW5) were against their police statements, they were declared hostile and trial Court did not place reliance on their evidence.

In the statement of appellant recorded u/s 313 of the Code of Criminal Procedure, he stated that deceased and his sons were forcibly constructing embankment on the land which belonged to them. When he asked them not to erect wall, Shashi assaulted him with a Danda and deceased assaulted him with a Knife. In scuffle, deceased fell down and suffered injury.

Trial Court after appreciating all the above evidence came to conclusion that the right of private defence as claimed by the appellant was not established. However, trial Court found that the incident occurred in a sudden quarrel without any premeditation. Appellant had no intention to commit murder of deceased, but since he caused such injury to deceased from which probability of his death was imminent, he was liable to be punished u/s 304-I of the Indian Penal Code.

Learned counsel for the appellant drew my attention to the evidence of Dr. A.A. Siddiqui (DW2), who proved the injuries of appellant. Dr. Siddiqui deposed that on 22.5.1993, he examined the injuries of appellant. He found (i) lacerated wound 3 cm x 1/2cm x 1/2cm on the left parietal region of the skull, (ii) an abrasion 5 cm. long on the left forearm and (iii) an abrasion 4 cm. long on the left side of the back. These injuries were simple in nature. It was found by the trial Court that these injuries were received by the appellant in the same incident. It is true that it is not necessary for the prosecution to explain the injuries of accused in all the circumstances, but presence of injuries on the body of accused may some times furnish material to test the veracity of the prosecution version. Trial Court, in the instant case found participation of other accused persons doubtful and acquitted them.

The version of the eye witnesses in this case remained that appellant suddenly dealt a blow on the chest of deceased and ran away. He did not repeat the assault. From the evidence on record, it also appeared that appellant too was assaulted. This all occurred on the spur of moment without any premeditation. In these circumstances, in my opinion, appellant could be attributed with the knowledge that he was likely to cause an injury to deceased which was likely to cause death. In case of Tholan Vs. State of Tamil Nadu, where accused, on a sudden altercation took out a knife from his waist and stabbed deceased on his chest and went away, Apex Court held him guilty u/s 304-II of the Indian Penal Code. The circumstances of the present case appear similar. Therefore, in the present circumstances, it cannot be held that appellant dealt single knife blow to deceased with the intention of causing death or causing such bodily injury as was likely to cause death. It can, however, be safely held that he assaulted deceased with knife with the knowledge that it was likely to cause death or to cause such bodily injury as was likely to cause his death.

Accordingly, the conviction of appellant u/s 304-I of the Indian Penal Code is modified to one u/s 304-II of the Indian Penal Code and his sentence is reduced to the rigorous imprisonment for four years, though with enhancement of fine. Appellant is ordered to pay a fine of Rs. 7,000/-. This amount shall be deposited in the trial Court within a period of three months from today. The amount of fine already deposited by the appellant shall be adjusted in the computation of total amount of fine. In default of payment of fine, he shall suffer further rigorous imprisonment for a period of one year. Bail bond and surety bond of appellant are cancelled. He is directed to surrender forthwith to serve out remaining part of the sentence. Appeal partly allowed.