Phooldas vs State Of Madhya Pradesh

Anand Pathak, J.

Appellant -Phooldas has preferred the present appeal against the judgment dated 01-09-2009 passed by the Sessions Judge, Guna in S.T.No.234/2008

whereby he was convicted for the offence under Section 302 of IPC and sentenced to life imprisonment with fine of Rs.200/- and in default of

payment of fine one month additional rigorous imprisonment.

2- Precisely stated facts of the case, as per prosecution, for adjudication are that sister-in-law of Jamna Prasad (wife's sister) i.e. Leelabai (PW-1)

was married to accused Phooldas. For one year Leelabai was living with her children with deceased Jamna Prasad (her Jeejajee). On 24-04-2008 in

evening accused Phooldas armed with Gupti visited the home of Jamna Prasad and stabbed the deceased Jamna Prasad at his abdomen. The blows

went through and through over the chest and abdomen and he got injured over left arm. On shouting by Jamna Prasad for help, Leelabai (PW-1) tried

to intervene, but received blow in the hands of accused. Guddu Saini and other persons rushed to the spot. Jamna Prasad himself went to Police

Station, filed the complaint. Statement was recorded, case was registered and spot map was prepared. The accused was arrested and Gupti was

seized, meanwhile Jamna Prasad succumbed to injuries and died in hospital. Post mortem was done, clothes of deceased were seized and Panchnama

of dead body was made. On chemical examination, human blood was found over Gupti and statement of witnesses were taken and after investigation,

charge-sheet was filed.

3- The accused abjured his guilt. The trial was conducted in which the question was whether the death of Jamna Prasad was homicidal in nature as

well as whether on 24-04-2008 in Darji Mohalla, Raghogarh accused Phooldas caused murder knowing fully well and with intention to cause death of

Jamna Prasad and the third question was on the same date and spot accused Phooldas caused injury under the knowledge and intention to Leelabai

and under the circumstance that the said injury may cause death to the said victim.

4- Trial Court found causing of death homicidal in nature and while considering questions No.2 and 3 came to the conclusion that accused Phooldas is

guilty of Section 302 of IPC and thus, punished for conviction and sentenced as referred above.Â

5- It is submission of  appellant that when the deceased succumbed to injuries immediately after incident then, his statement before the

police and FIR lodged by him cannot be admissible as dying declaration under Section 32 of the Indian Evidence Act. Learned counsel for the

appellant relied upon the judgments of Hon'ble Apex Court in the case of State of U.P. Vs. Chet Ram and others 1989 SC 1543, Sukhar Vs. State of

Uttar Pradesh, AIR 1999 SC 3883 and Munnu Raja and another Vs. The State of Madhya Pradesh, AIR 1976 SC 2199} and submitted that in the

instant case, as per prosecution case on 24-04-2008 at 7:30 pm, FIR has been lodged and statement was made by the deceased while he reached at

Police Station in a seriously injured condition. He died at 10:25 pm but during such period of three hours no effort has been made for calling police to

take service of Magistrate for recording of dying declaration or for certification of state of mind of deceased, therefore, it cannot be presumed that

deceased was in conscious state of mind at the time of lodging of FIR.

6- It is further submitted that eye-witness Leelabai (PW-1) and other witnesses were declared hostile and did not support the story of prosecution,

therefore, the benefit of doubt ought to be given to the appellant.

7- Alternatively, learned counsel for the appellant submits that the case in hand deserves to be altered from Sections 302 to 304 of IPC because

incident if at all took place then it was under the heat of passion and/or due to sudden provocation. Appellant also served sentence for more than 8

years, therefore, be released under Section 304 Part II of IPC while serving sentence already undergone.

8- Learned counsel for the respondent/State opposed the prayer and submitted that testimony of deceased and statement of Leelabai under Section

161 of Cr.P.C. as well as medical opinion established implication of accused and further through documents exhibited, pressed for affirmation of

judgment and order passed by the trial Court and prayed for dismissal of appeal.

9- We have heard the learned counsel for the parties at length and perused the record.

10- Here in the present case, the victim was Jamna Prasad who as per contents of FIR sustained severe blows in the hands of appellant over his

chest and abdomen (private part) and left arm. Medical report Ex-P/21 reflected that the appellant sustained five injuries out of which injuries No.1

and 2 were serious in nature. Similarly post mortem was conducted by Dr. Rajendra Singh Bhati (PW-8) and given his report Ex-P/11. Post mortem

as well as medical report Ex-P/21 suggest that injuries sustained by the deceased were serious in nature and through sharp edged weapon. Therefore,

cause of death was homicidal in nature.

11- The main ground of attack of learned counsel for the appellant was in respect of FIR and statement made by the deceased, cannot be treated as

dying declaration. In this regard FIR and statement made by the deceased are to be seen wherein it appears that FIR Ex-P/17 was lodged by the

deceased on his own and in the description, he narrated the course of events in a very categorical terms. He narrated the reason for visit of the

appellant to deceased's place and when the deceased did not entertain the demand of appellant, then the gory incident took place wherein the appellant

gave blows of Gupti over the person of deceased repeatedly and when Leelabai (PW-1) tried to intervene she also sustained injuries. Her injuries are

referred in the medical examination Ex-P/22 where she received two stab wounds. Scriber of FIR was fully in sense and knowledge that he made

statement under Section 161 of Cr.P.C. also (vide Ex-P/18) and FIR was also signed by the deceased. Statement contains complete course of events

including the reason for such assault.

12- According to deceased, the apprehension of appellant was illicit relationship of his wife Leelabai with him i.e. with deceased Jamna Prasad,

therefore, enmity was also shown, driven by which appellant visited the place of deceased and tried to get money for his subsistence and denial of the

same infuriated the appellant, therefore, not only the deceased Jamna Prasad faced the wrath of appellant but wife of appellant Leelabai also

sustained injuries.

13- Hon'ble Apex Court in the case of Prem Chand and another Vs. State of U.P. (1993) Supp. 4 SCC 214 has held that if at the time of recording of

dying declaration deceased was conscious, there is no discrepancy regarding name of assailant and contents of dying declaration are in conformity

with the version given by eye-witnesses then dying declaration should be relied. In the case of Munna Raja and another (supra), similarly in the case

of Chet Ram and others (supra), it has been held that if the deceased was fully conscious when she made her statement to police about assailant and

course of occurrence then the said testimony can be relied upon. Similarly, in the case of State of Madhya Pradesh Vs. Khilan Singh 1994 (1) MPWN

Note No.128 it was held that FIR containing cause of death of its maker -may be used as dying declaration although FIR is not substantive evidence, it

can be used only for corroboration or contradiction of its maker but since the deceased was has given categorical details and the course of events how

enmity drove appellant to deceased's place and how he asked money and thereafter on refusal stabbed the deceased Jamna Prasad by giving blows of

Gupti. This categorical statement given by maker of the FIR, leaves no iota of doubt that he made correct statement. Even otherwise, it is believed

that the person who is at the verge of departure (life) does not make wrong statement. Since FIR was promptly made and statement under Section

161 of Cr.P.C. was given, therefore, any improvement for false implication appears to be remote.

14- Another glaring fact arose against the appellant is statement of Leelabai (PW-1) under Section 161 of Cr.P.C. vide Ex-P/2 in which she narrated

the incident as it is. Statement was recorded on 24-04-2008 on the date of incident itself, therefore, this fact also substantiates the case of prosecution.

Besides that her statement under Section 164 of Cr.P.C. vide Ex-P/3 was also recorded. She supported the story of prosecution in his statement under

Section 164 of Cr.P.C. Her version was supported by medical examination of Leelabai vide Ex-P/22. She also sustained injuries and her injuries

corroborated the statement made by her under Section 161 and 164 of Cr.P.C. as well as statement made by the deceased Jamna Prasad. Although

Leelabai turned hostile in her court statement and she does not support the story of prosecution when she was called upon to appear as prosecution

witness but other compelling circumstances persuaded the trial Court to convict the appellant and rightly so because of statement made by Jamna

Prasad in FIR as well as under Section 161 of Cr.P.C.

15- Expert opinion Dr. Jaiprakash Chaurasiya (PW-12) medically examined the deceased and injuries were as referred as under:

“i- stab wound triangle in shape 3x3x3 cm with 3 cm. Depth right side of abdomen below umbilicus, perforating into abdomen small intestine

protruding out and faecal matter around the wound bleeding.

ii- stab wound bleeding 1x1/2x1/2cm. Right side of abdomen lateral to wound No.1.

iii- stab wound bleeding 1/2x1/2x/1/2cm.

Left side of chest below left nipple. iv- stab wound 1/2x/12/x/1/2 cm. left side of lower back.

v- two lacerated wounds each of 1x1/2 over left forearm on vertral surface.â€​

16- Nature of injuries establish the fact that they were sufficient to cause death because blows went through and through. Autopsy report was

supported by Dr. Rajendra Singh Bhati (PW-8) and his report indicates that small intestine, abdominal cavity, spleen, liver kidney all were ruptured or

damaged and right lung turned pale whereas left lung sustained cut injury. Cause of death was internal hemorrhage and due to injuries of stomach.

Doctor as well as Investigating Officer, Dilip Singh (PW-11) supported the story of prosecution. Dilip Singh mentioned the fact that Jamna Prasad

visited Police Station in injured condition along with Leelabai and Yogesh. He narrated the story as recorded in FIR, therefore, no question of after

thought comes to rescue the appellant. Adding woes of appellant, weapon was also seized.

17- Since the deceased has given categorical statement in FIR about role of appellant and reason of enmity has also been shown, therefore, all

inferences go against the appellant. Therefore, he cannot be acquitted on minor contradictions or inconsistencies of statement or because some of the

witnesses turned hostile.

18- So far as alternative submission of appellant for alteration of charge of conviction from 302 to 304 Part I or II of IPC is concerned, we are afraid

that such submission cannot be accepted on two counts; one appellant visited deceased place with Gupti and used the said Gupti when dispute arose

between two. Another is repeated blows. For conversion of case from 302 to 304 of IPC, it should pass the test of exceptions carved out under

Section 300 of IPC. 19- If any culpable homicide is being committed due to sudden provocation or under the heat of passion and the conditions

enumerated in Section 300 of IPC then the case of accused falls under Section 304 of IPC (from Section 302 of IPC), but here, in the present case

once the appellant visited the place of deceased of his own volition accompanying Gupti and his offer of payment of money was turned down by the

deceased then he used that weapon to settle the score with deceased on the ground of keeping accused's wife Leelabai with him, then he showed full

of enmity and revenge for deceased. Therefore, the whole incident turned ugly. Appellant gave repeated blows to the deceased which indicates that

the appellant was well prepared and he was executing the well thought of conspiracy against the deceased.

Resultantly, submission of appellant cannot be allowed to sustain and the case cannot be altered from Section 302 to Section 304 Part I or II of IPC.

20- On the basis of cumulative analysis of the evidence adduced by the prosecution and submission made by learned counsel for the parties, there is

no reason to interfere in the judgment of conviction passed by the trial Court. Hence, the appeal filed by the appellant Phooldas against the judgment

of conviction cannot be accepted. Trial Court has rightly convicted the appellant Phooldas for the offence under Section 302 of IPC. So far as

sentence part is concerned, trial Court has given minimum sentence prescribed for the offence under Section 302 of IPC, therefore, no dilution can be

done.

21- On the basis of aforesaid discussions, appeal filed by the appellant Phooldas is hereby dismissed. Appellant is in jail and he shall serve the

remaining part of jail sentence as per law.

22- A copy of the judgment be provided to the appellant Phooldas through the concerned Jail Superintendent with the information that he may file SLP

before the Apex Court.

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