Prabhunarayan @ Tingu vs The State of M.P.

This criminal appeal has been filed assailing the impugned judgment dated 18.3.1994 passed by Vth Additional

Sessions Judge, Sagar, in Sessions Trial No.59/1992

whereby the appellant has been convicted under section

302 of the I.P.C. and sentenced to undergo life

imprisonment and fine of Rs.5000/-; in default of payment

of fine S.I for four months.

The case of the prosecution, in brief, is that shops of

Rajesh Kumar and Pramod Kumar (acquitted co-accused)

were situated side by side. On the date of incident i.e.

27/12/1991 in night at about 9.00 pm when Rajesh Kumar

and his brother Sanjay were on shop then on some point, a

dispute arose between Pramod Jain and Rajesh Kumar and

they both abused each other and appellant/accused

Prabhunarayan @ Tingu armed with katar entered into the

shop of Rajesh Kumar and assaulted Sanjay with katar on

his stomach and when injured Sanjay made hue and cry,

the appellant / accused abused and threatened to kill him

and again assaulted him but Rajesh stopped the appellant /

accused by holding his hand then appellant / accused ran

away from the spot. The incident was reported to the

concerned police station by the complainant Rajesh. Thereafter, injured Sanjay was sent for treatment to the

District Hospital, Sagar, where Dr. R.C. Agrawal (PW-10)

recorded dying declaration of Sanjay (Ex.P-19) and on

09/01/1992 the treating doctor referred him to Choithram

Hospital, Indore and on 29/12/1991 A. S. Pawar, Executive

Magistrate (PW-17) recorded dying declaration of Sanjay

(Ex.P-36). Appellant/accused Prabhunarayan @ Tingu was

arrest on 29/12/1991 and arrest memo (Ex P-7) was

prepared. On the instance of information given by him,

blood stained katar was recovered as per memo Ex.P-2 and

seizure memo Ex.P-3 and co-accused Pramod Kumar was

also arrested on the same date and the blood stained

clothes of injured Sanjay were seized. The katar seized

from the possession of the appellant/accused

Prabhunarayan @ Tingu and the clothes of Sanjay were

sent to the FSL and on them, presence of human blood

stains was confirmed as per the FSL Report Ex.P-35. During

treatment on 12/01/1992 injured Sanjay succumbed to the

injury sustained in the incident. Thereafter, on 12/01/1992

Postmortem of the deceased was conducted, the report of

autopsy is Exhibit P-32.

After completion of investigation, a charge-sheet was

filed against appellant and other co-accused Pramod

Kumar before the court of JMFC, Sagar who committed the

case to the court of Sessions, Sagar and transferred to Vth

Additional Sessions Judge, Sagar where charges were

imposed for commission of the offence under sections 114

read with section 302 of the I.P.C. against other co-accused

Pramod Kumar and under sections 449 and 302 of the IPC

against the appellant/accused and recorded the plea of the

accused persons and they abjured their guilt and claimed

for trial and stated that they are innocent.

Learned Trial court after trial, acquitted co-accused

Pramod of the charges under sections 114 and 302 of the

IPC but the appellant has been convicted under section 302

of the IPC and sentenced as mentioned above. Hence this

appeal.

The judgment of the conviction and sentence has been

assailed on the ground that the findings of the learned

lower court are contrary to law. The findings are mainly

based on the statement of the deceased''s brother Rakesh

Kumar (PW-11), whose statement is not reliable being brother of the deceased and he tried to implicate the

appellant falsely as this witness had inimical terms on

account of business rivalry with co-accused Pramod Kumar

and two dying declarations of the deceased are

contradictory to each other and also in consonance with

the statement of Rajesh Kumar (PW-11). The FIR is also

false and antedated. It is further contended that death of

the deceased was taken place after 15 days of the incident.

From the record, it does not establish that the appellant

had intention to cause death of the deceased hardly

offence under section 326 of IPC is made out. Therefore,

the impugned judgment is wholly illegal, unjust and

perverse. Learned Trial court has not appreciated the

evidence on record in its proper prospective, resulting in

erroneous conclusion. Hence the appeal be allowed and

appellant/accused be acquitted of the charges.

Learned Public Prosecutor appearing for the State has

opposed all the above grounds and supported the findings

of the learned Trial court and prayed for rejection of the

appeal.

Having considered the contentions advanced by learned counsel for the parties and on perusal of record, first of all

it is to be seen that whether the nature of death of the

deceased was homicidal. On behalf of the appellant this

fact has not been assailed very seriously. In order to prove

the aforesaid fact, Dr. Shailendra Shukla (PW-7) has stated

in his statement that on 27/12/1991 near about 9.30 pm

one Police Constable, Police Station Kotwali, Sagar brought

injured Sanjay for medical examination and he was

admitted in the hospital. Laljeet, Police Constable (PW-4)

who took injured Sanjay in the hospital also stated same

thing. Dr. Shailendra Shukla has further stated that on

examination, on stomach, left side of lumber region one

stab wound was found. The injury was fresh and caused

within 2 hours with hard and penetrating object and nature

of injury could be decided after the examination of Surgical

Specialist and general condition was very serious as per

Ex.P-11. The papers relating to admission and treatment

are Ex.P-12 to Ex.P-14.

Dr. R. C. Agrawal (PW-10) has stated that on 27/12/1991,

he operated Sanjay (deceased) near about 11.30 pm. His

general condition was serious. Relating to his further treatment, relevant papers are Ex.P-11 to Ex.P-25.

According to him, injury sustained by Sanjay (deceased)

was dangerous to life and grievous in nature. This opinion

was recorded by him on his report Ex.P-26 on the query

made by the Investigating Officer.

Dr. Chandra Shekhar Chimaniya, Senior Surgeon (PW-13)

has stated in his statement that on 10/01/1992 Sanjay was

referred to Choithram Hospital, Indore, where he saw the

patient, his stomach was operated earlier by repairing

intestine, but his condition was not good, therefore, he

was referred to Choithram Hospital, Indore. During the

treatment on 12/01/1992 Sanjay died as he was suffering

from septicemia on account of the injury sustained to him.

The papers relating to his treatment are Ex.P-28 to

Ex.P-31.

Dr. Ravindra Choudhary (PW-14), who conducted the

autopsy on the dead body of Sanjay (deceased) has stated

that the operated wound was found on the stomach of the

deceased and death was taken place on account of injuries

sustained by him and its'' further complication resulted into

cardio respiratory failure and the injuries were ante- mortem and on account of injury there was possibility to

cause death in ordinary course of the nature. As the injury

was operated, therefore, it was not possible to give any

opinion with regard to the use of weapon. The aforesaid

evidences of the medical experts were unimpeachable

during the cross-examination. Their veracity was not

challenged during the cross-examination. In the aforesaid

circumstances, it is held that the death of deceased Sanjay

was taken place on account of the injury sustained by him

on his stomach on 27/12/1991. Therefore, death was not

accidental, suicidal or natural. Its'' nature was homicidal.

Therefore, in this regard, finding of the learned trial court

is confirmed.

Now the question is that whether the

appellant/accused intentionally or knowingly caused

aforesaid injury to Sanjay (deceased) with sharp

penetrating object with a view to cause his death.

In order to prove the aforesaid fact, the prosecution

case is based on the statement of eyewitness Rajesh

Kumar Jain (PW-11), who is brother of Sanjay (deceased)

and two Dying Declarations, Ex.P-19 recorded by Dr. R.C. Agrawal (PW-10) and Ex.P-36 recorded by the Executive

Magistrate A.S. Pawar (PW-17) and oral dying declaration

of Rakesh Kumar (PW-3) another brother of Sanjay

(deceased). Learned Trial court has discarded statement of

Rakesh Kumar (PW-3) giving details and relevant reasons

in para 23, 24, and 25 of the judgment as his statement is

inconsistent with the dying declaration Ex.P-19 recorded

by Dr. R.C. Agrawal (PW-10) and his statement under

section 161 of the Cr.P.C. was also recorded after 16 days

of the incident without giving any explanation of the delay.

In our view, the learned trial court in the aforesaid

circumstances has rightly discarded the statement of

Rakesh Kumar (PW-3) being a close relative of the

deceased.

As per the dying declaration Ex.P/19, the deceased had

not declared name of the appellant while the witness has

claimed that the deceased declared him name of the

appellant before operation in the hospital on 27.12.1991.

Apart from it, so far other evidence is concerned, the trial

court has found the same reliable. In view of this Court, in

doing so learned trial court has not committed any error as Rajesh Kumar Jain (PW-11) has categorically stated that on

27/12/1991 near about 9 pm he and his brother Sanjay

(deceased) were on the clothe shop and at that time

appellant / accused Prabhunarayan @ Tingu entered in the

shop and assaulted his brother Sanjay (deceased) with

"katar" on his stomach and also tried to assault again

then he caught hold of his hand and thereafter

appellant/accused ran away. Thereafter, he put his injured

brother Sanjay in an auto and some policemen taken

injured Sanjay to hospital and lodged report Ex.P-10 in

Police Station Kotwali Sagar. He further stated that his

shop is near City Kotwali and distance is not more than 10

feet where a number of policemen used to sit outside the

police station.

Dr. R.C. Agrawal (PW-10) has stated that on 27/12/1991

because he was going to operate the patient Sanjay,

therefore, he took his dying declaration as he was in fit

condition to give his statement and at 11.15 pm he took

statement of the patient Sanjay, which is Ex. P-19. As per

Dying Declaration (Ex.P-19), which is short statement, in

which, it is stated that a small boy came to his shop and assaulted him with "knife". He was not acquainted

with his name but he could recognize him in person.

Thereafter, on 29/12/1991 A.S. Pawar, Executive

Magistrate (PW-17) recorded statement of Sanjay

(deceased), which is Ex.P-36. He has stated that during the

statement the deceased was conscious and was in a

position to give his statement and the same fact has been

certified by the treating doctor. In Dying Declaration

(Ex.P-36) it has been stated that on the date of incident

one boy came to his shop and putting "Chhura" on the

neck of his brother, said that if he makes any quarrel with

Pramod (acquitted co-accused) then he will be murdered

by him and when he intervened then he started abusing

then he assaulted his brother but he escaped, thereafter

he assaulted on his stomach with "Chhura" then he

straightaway ran to the City Kotwali, where he narrated

the incident to the In-charge Police Officer and thereafter

2-3 policemen brought appellant/accused, who was person

of small height, fair colour, strong get-up and his name is

Prabhunarayan @ Tingu. D. N. Mishra, Sub Inspector,

Kotwali, Sagar (PW-6) has stated that on 27/12/1991 on the instance of Rajesh Kumar, he recorded FIR (Ex.P-10).

Constable, Laljeet (PW-4) stated that on 27/12/1991 near

about 9.30 pm he took injured Sanjay to the hospital. He

has also stated that at that time Sanjay was talking to the

Police Inspector J.R Lokhare (PW-16). J.R Lokhare (PW-16)

has stated that on 27/12/1991 he started the investigation

of the crime and recorded statement of the complainant

and injured Sanjay. Thereafter on 28/12/1991 inspected on

the site of the crime and also took statement of the other

witnesses and on 29/12/1991 appellant/accused was

arrested as per Arrest Memo Ex.P-1 and on the basis of his

information one "katar" which was hidden underneath

the stone was recovered and Information memo Ex.P-2 and

Seizure memo Ex.P-3 were prepared. He further stated that

on 29/12/1991 he made request to the Tehsildar Sagar for

taking dying declaration of injured Sanjay. He further

stated that on 01/01/1992 on presentation of Rakesh

(PW-10), brother of deceased Sanjay, blood stained clothes

of injured Sanjay were seized and seizure memo Ex.P-5 was

prepared and all seized articles were sent to the FSL Sagar

as per letter of the S.P, Sagar Ex.P-34 and the report of the FSL is Ex.P-35. According to the FSL report, blood stained

found on the Katar and the clothes and cut mark found on

the shirt and the baniyan which could have been caused by

the Katar.

On behalf of the appellant, it is contended that the

statement of deceased brother Rajesh Kumar Jain (PW-11)

is also not trust worthy. His statement is contradictory

with the dying declaration of the deceased and also found

to be unreliable with regard to implication of co-accused

Pramod in the incident and the two dying declaration of

the deceased are also contradictory. The FIR is also false

and antedated as no compliance of section 157 of the Cr.PC

has been proved. Hence it cannot be held beyond

reasonable doubt that appellant/accused was the author of

the incident.

The contention of the learned counsel for the appellant

has no substance. On perusal of the statement of the

witnesses and dying declarations we failed to find out

material contradictions in the statement of the eye witness

Rajesh Kumar Jain (PW-11) and two Dying Declarations

(Ex.P-19 and Ex.P-36). Rajesh Kumar Jain (PW-11) in his statement categorically stated that the aforesaid injury to

the deceased Sanjay was attributed to the

appellant/accused by sharp object using words "knife"

in the FIR and later on saying "katar" is immaterial as

the object is of the same nature. His statement has got

corroboration from the FIR (Ex.P-10). The FIR has been

lodged immediately and investigation has also started

immediately. In such circumstances, it cannot be said that

FIR is not reliable or it is antedated. However, compliance

of section 157 of the Cr.P.C with regard to sending the

copy of the FIR to concerned Magistrate immediately has

not been proved beyond reasonable doubt. As in this

regard, the statement of the Constable Dwarika Prasad

(PW-5) is doubtful as on the receipt (Ex.P-5) date is

mentioned 30/12/1991 while he has stated that he

submitted intimation report on 28/12/1991 and the

concerned Clerk of the Court, Govind Prasad Dubey (DW-3)

has denied the fact that he received the intimation of FIR

(Ex.P-9), but only on the aforesaid ground, it cannot be

held that the FIR is antedated or recorded after thought in

view of the other circumstances as mentioned earlier.

The statement of eye witness Rajesh Kumar Jain

(PW-11) cannot be said to be contradictory or inconsistent

with the two dying declarations (Ex.P-19 & Ex.P-36).

Ex.P-19 is very short statement of deceased Sanjay and he

has not named appellant/accused in the statement and

even later on 29/12/1991 in Ex.P-36 also, he has not claimed

that he knows the name of the accused at the time of

incident. If whole statement to be read with cautiously then

it is clear that on the information given by other persons

he has narrated the name of the appellant/accused but he

also categorically discloses the get-up of the culprit and

according to the opinion of the trial court, get-up of the

appellant/accused matched with the description given by

the deceased in his statement. As Sanjay (deceased) was

not aware about name of the appellant/accused he did not

disclose the name of the appellant/accused but Rajesh

Kumar Jain (PW-11) knew the accused with the name also

so he mentioned the appellant -accused''s name in the FIR

and during the cross examination of this witness, it is not

suggested that the witness was not acquainted with the

name of the appellant/accused.

So far other part of the dying declaration (Ex.P-36) is

concerned, which is related to caught holding of the

appellant/accused or further activities of him about which

Rajesh Kumar Jain (PW-11) has expressed his ignorance.

This part of statement be considered to be contradictory or

inconsistency with the statement of Rajesh Kumar Jain

(PW-11) and dying declaration (Ex.P-36) with regard to

substantial part of the incident. In the other words, there

is no material contradiction or inconsistency in the

aforesaid evidence.

The other contention with regard to discarding the

evidence of Rajesh Kumar Jain (PW-11) is that learned trial

court has discarded his statement and acquitted co-

accused Pramod and State has not made any appeal with

regard to acquittal of the co-accused Pramod. In such

circumstances, the statement of Rajesh Kumar Jain (PW-11)

cannot be relied against other co-accused as his testimony

is held doubtful. This contention also legally unacceptable

as in India falsus in uno, falsus in omnibus (false in one

point, false on all points) is not applicable as one hardly

comes across a witness whose evidence does not contain a grain of untruth, or at any rate some exaggeration,

embroideries and embellishment. Therefore it is duty of

the court to make exercise to extract the truth. (See

Gurucharan Singh Vs. State of Punjab, AIR 1956 SC 460,

State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 & Masalti

Vs. State of U.P. AIR 1965 SC 202).

In the present case, in view of all evidence available on

record, the statement of eye witness Rajesh Kumar Jain

(PW-11) is believable with regard to appellant/accused

even though his statement with regard to other co-accused

Pramod was found inconsistent or doubtful. Further, there

is no reason to falsely implicate the appellant/accused in

the case and the evidence of eye witness Rajesh Kumar

Jain (PW-11) is corroborated by the medical evidence and

also further corroborated by the FSL report (Ex.P-35).

Therefore, the evidence is trust worthy.

In view of the aforesaid discussion, we have no

hesitation to hold that the injury on account of which

deceased Sanjay succumbed was attributable to the

appellant/accused. Now further it is seen that whether the

injury was caused by the appellant/accused with intention to cause death of the deceased or to cause such injury as is

likely to cause death or with the knowledge that by such

act to cause death. On considering the aforesaid reliable

evidence, it is clear that the appellant did not make the

assault with the intention of causing death of the

deceased. After acquittal of co-accused Pramod motive of

the incident is also remained unproved. The nature of the

weapon, injury place on the body and nature of the injury

makes it clear that he had no intention to cause such

bodily injury which he knows to be likely to cause death.

Therefore, he is liable to be culpable homicide of the

deceased.

Now further question arises whether appellant/accused

is liable to commit murder or a culpable homicide not

amounting to murder. In this regard, learned counsel for

the appellant placed reliance on the judgment of Vijay

Ramkrishan Gaikwad Vs. State of Maharashtra (2012) 11

SCC 592 relevant para are 8 and 9 as under:-

Having said that and keeping in view the fact that the appellant used a knife and chose the abdomen of the deceased for inflicting the injury as also keeping in view the nature of the injury itself which was sufficient in the ordinary course to cause death, it is a case that would squarely fall within Part I of Section 304 IPC. We may in this regard refer to the following passage from the decision of this Court in Jai Prakash v. State (Delhi Admn .) [(1991) 2 SCC 32 : 1991 SCC (Cri) 299] : (SCC p. 43, para 13)

"13. " when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.

However, as pointed out in Virsa Singh case [ Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 IPC is attracted."

We accordingly allow this appeal in part, set aside the conviction of the appellant for the offence punishable for murder under Section 302 IPC and convict the appellant for culpable homicide not amounting to murder punishable under Section 304 Part I IPC and sentence him to undergo rigorous imprisonment for ten years. The fine of Rs 20,000 and sentence in default of payment of fine awarded to the appellant shall remain unaltered."

The Apex Court in the case of Thakurji Hiraji Vs.

Thakore Kubersing (2001) SCC (Cri.) 1070 has held that

"the injury dealt by him by a sharp weapon had cut into

the intestine. Though an intention to cause death or such

bodily injury as is likely to cause death cannot be

attributed to him, knowledge is attributable to Accused 2

that an injury by a knife into the abdomen was likely to

cause death. As it was a case of sudden fight, the act of

this accused would amount to culpable homicide not

amounting to murder punishable under Part II Section 304

IPC."

In the present case also, the injury attributed to the

appellant/accused with a sharp weapon had cut intestine of

the deceased but in the facts and circumstance of the case,

it cannot be gathered that there was an intention to cause

death or such bodily injury as is likely to cause death. As

per the Dying declaration Ex.P-36 incident was not

premeditated and suddenly in the heat of passion it was

taken place without taking undue advance or acted in the

cruel or unusual manner. It appears that initially the

intention of the appellant/accused was to warn the brother of the deceased for not to come in the way of Pramod

(acquitted co-accused) or to make any quarrel with him

and started abusing when he was restrained then he made

aforesaid assault. In the aforesaid circumstances, it is

difficult to hold that the act of the appellant/accused

comes into purview of the offence of murder as the

provisions of Exception fourth of Section 300 IPC is

attracted very well. In view of the aforesaid discussion and

the aforesaid citations of the Apex Court, in the present

case, the act of the appellant/accused would amount to

culpable homicide not amounting to murder punishable

under section 304 Part-I of the IPC.

In view of the aforesaid discussion, we allow this

appeal in part and set aside the conviction of the

appellant/accused for the offence punishable for murder

under section 302 of the IPC and we convict the

appellant/accused for culpable homicide not amounting to

murder punishable under section 304 Part-I and sentence

him to undergo rigorous imprisonment for 10 years. The

fine of Rs.5000/- and the sentence in default of payment of

fine awarded by the trial court to the appellant shall remain unaltered.

The appellant / accused is on bail. He is directed to

surrender forthwith before the trial court and he be sent to

jail for serving out the remaining jail sentence in

accordance with law. His bail bonds shall stand discharged.

In the result, the appeal stand partly allowed.