Rajesh Soni vs State of M.P.

This appeal arises out of judgment and order dated 05.05.1999 passed by the Additional Sessions Judge, Surajpur, District Surguja in ST. No. 187/90 convicting the accused/appellant under Section 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 1,000/- plus default stipulation. In the present case, name of the deceased is Ram Vilas. It is alleged that on 3.5.89 accused/appellant with the help of other accused persons committed murder of the deceased by inflicting solitary knife blow on the stomach of the deceased. On 3.5.89 Unnumbered FIR (Ex. P-18) was lodged by the deceased himself and thereafter on 4.5.89 numbered FIR (Ex. P-18A) was registered against the accused/appellant, his father Gulab Prasad (acquitted accused) and Dinesh (juvenile). Medical examination of Ram Vilas was done on 4.5.89 by Dr. Kaushalendranath Sharma vide (Ex. P-11) and he found one incised wound in the size of 1 1/2" x 1/2" intra abdominal deep over right side fossa region and that the intestine had come out from the wound. Dying declaration (Ex. P-13) of the deceased was recorded on 4.5.89 vide Ex. P-13 by Shiv Lal Thakur (P.W. 8A), Naib Tahsildar and on 17.5.89, deceased Ram Bilas died. Postmortem examination on the body of deceased was conducted on 18.5.89 by Dr. Ashok Kumar Jain (P.W. 11) vide Ex. P-18 and according to him cause of death is shock due to pyaemia (a form of blood-poisoning in which abscesses appear in various parts of the body). After investigation, charge sheet was filed against accused/appellant and acquitted accused Gulab Prasad under Sections 302/34 and 324 IPC. However the present appellant and acquitted accused Gulab Prasad were tried by the sessions Court for the offence under Sections 302 and 302/34 IPC.

In order to establish the guilt of the accused persons, the prosecution has examined 11 witnesses. Statement of the accused persons were also recorded under Section 313 of the Cr.P.C. in which they have denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart one defence witness namely Mohammed Avaish Karni has also been examined.

After hearing the parties, the trial Court has acquitted co-accused Gulab Prasad of the charge levelled against him but convicted and sentenced the present appellant as mentioned in paragraph No. 1 of this judgment. Hence the present appeal.

Shri Sinha, counsel for the appellant submits that:

(i) even if the entire prosecution case is taken as it is, accused/appellant cannot be convicted for the offence under Section 302 IPC because only one injury has been caused by the appellant and the said injury was not the cause of death of deceased.

(ii) deceased died because of pyaemia after 15 days of the incident and the same was on account of not providing proper treatment to him in the hospital.

(iii) considering the nature of injury at best he may be convicted under Section 326 IPC.

(iv) that the appellant has already remained in jail for more than 3 1/2 years and therefore after convicting him under Section 326 IPC he may be sentenced for the period already undergone by him.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same. He submits that if the definition of murder is taken into consideration as provided under Section 300 IPC, act of the accused/appellant would fall under Section 302 IPC and not under Section 326 IPC.

Heard counsel for the parties and perused the material available on record.

Duryodhan (P.W. 1) and Jhagar Sai (P.W. 2) eyewitnesses to the incident have not stated anything against the accused/appellant and have been declared hostile. Chander (P.W. 3) - injured eyewitness has not stated anything against the appellant and has been declared hostile. Pradeep Kumar (P.W. 4) is a witness before whom oral dying declaration was made by the deceased. He has stated that after hearing the cries of the deceased when he reached the place of occurrence he saw him in injured condition and he informed him that it is the accused/appellant who had assaulted him with a knife. Ali Hasan (P.W. 5) is the seizure witness of Ex. P-4, P-5, P-6, P-7, P-8 and P-9 by which are blood stained soil, slipper, bicycle, blood stained knife and clothes of the accused/appellant were seized. Ram Kumar (P.W. 5) - eyewitness to the incident has not stated anything against the appellant and has been declared hostile. Shiv Charan (P.W. 6) who is also the witness of oral dying declaration made by the deceased has been declared hostile. Ram Lakhan Yadav (P.W. 7) is the Head Constable who helped in the initial investigation. Ishwar Lal Thakur (P.W. 8A) Naib Tahsildar has recorded the dying declaration (Ex. P-13) wherein it has been stated by the deceased that it is the accused/appellant who caused injury to him. It has also been categorically stated by the deceased that on 3.5.89 at about 6.00 p.m. accused/appellant assaulted him with a knife. Dr. Kaushalendra Nath Sharma (P.W. 8) conducted MLC of the deceased vide Ex. P-11 and noticed one incised wound in the size of 1 1/2" x 1/2" intra abdominal deep over right side fossa as a result of which intestine came out from the wound. He also conducted MLC of injured witnesses vide Ex. P14, 15, 16 and 17. He also issued fitness certificate to the deceased stating that he was in a fit state of mind for giving statement. Chamru Ram Bhagat (P.W. 9) Head constable has stated that he made entry in the rojnamcha sanha and the FIR was recorded by R.R. Verma. Balgovind Pandey (P.W. 10) is Head Constable who has done part of the investigation. Dr. Ashok Kumar Jain (P.W. 11) conducted postmortem on the body of the deceased and according to him cause of death is shock due to pyaemia. He has further stated that the deceased had developed pyaemia and the injury was not simple in nature, however, it was dangerous to life. He has stated that had he (deceased) been given proper treatment he would have survived. Radhika Prasad Verma (P.W. 11) is the Investigating Officer who has duly supported the prosecution case.

Mohammad Avaish Karni (D.W. 1) has stated that the injury to the deceased was caused by Ram Prasad and not by the accused persons.

Before marshaling the evidence, it would be appropriate to refer to the dying declaration (Ex. P/13) of the deceased recorded on 4.5.1989. In this dying declaration it has been stated by the deceased that when on the date of incident he was returning to his house along with Chandar and five others, he met accused/appellant Rajesh Soni, Dinesh Soni and Gulab Soni (acquitted accused), who asked Chander as to why he has made bricks on their land, on which Chander replied that the land in question is leasehold land, if it is theirs, they can get the same measured by Patwari. On this, the accused/appellant and Dinesh Soni (juvenile offender) abused them filthily and made them run for beating whereupon all other persons, except himself (deceased), fled from there, however, he was caught hold of by accused/appellant Rajesh Soni. The accused/appellant told him (deceased) that it is he (deceased) who has allowed the others to fled from there and therefore, he (appellant) will assault him and then a knife blow was given on his stomach by the appellant. On hearing his cries, Chander and others came to his rescue and snatched the knife from the appellant.

Even though the other witnesses have not fully supported the prosecution case, but on the basis of dying declaration of the deceased and the FIR lodged by himself, it is apparent that it is the accused/appellant who caused stab injury on the stomach of the deceased resulting in his death. As such, involvement of the accused/appellant in commission of the crime in question is established beyond all reasonable doubt. No doubt that the deceased died after 14 days of the incident and the cause of death has been shown as shock due to pyaemia, but the doctor has also stated that the injury was grievous in nature and was also dangerous to life. Though the doctor has stated that had the deceased been given proper treatment, he would have survived, but the fact remains that the injury was caused by the accused/appellant on the vital organ i.e. stomach of the deceased which ultimately resulted in his death. Even if the nature of injury is seen, it is found that the appellant assaulted the deceased by knife on his stomach with such a force that his intestine had come out from the stomach and it was fatal to life.

Now the question for consideration before this Court is whether the act of the accused/appellant would come within the ambit of Section 302 or 304 of IPC?

From the evidence it appears that on the date of incident, both the parties came across, there was some hot talk between them over making of bricks on the disputed land and when the complainant party was being chased by the accused persons, including the appellant, they could catch hold of the deceased and it is the accused/appellant who caused stab injury on the stomach of the deceased ultimately resulting in his death. Thus, in the totality of facts and circumstances of the case and the evidence available on record, it is clear that there was no premeditation on the part of the accused/appellant to commit murder of the deceased, the incident took place all of a sudden in the heat of passion upon a sudden fight and as such, the case of the appellant would fall under Exception 4 to Section 300 of IPC and his act would be culpable homicide not amounting to murder.

Now the next question for consideration is whether the appellant is guilty under Section 304 Part-I or 304 Part-II of IPC?

A close scrutiny of the evidence makes it clear that there was no intention of the appellant to kill the deceased. However, keeping in view the fact that the appellant assaulted the deceased with a deadly weapon knife on his vital organ i.e. stomach with such a force that his intestine had come out of the stomach, it can safely be inferred that the appellant had the knowledge that the injury being inflicted by him on the deceased was likely to cause his death and as such, he is guilty under Section 304 Part-II of IPC.

In the result, the appeal is allowed in part. While acquitting the appellant of the charge under Section 302 of IPC, he is convicted under Section 304 Part-II of IPC and sentenced to undergo RI for seven years. He is reported to be on bail, therefore, his bail stands cancelled and he is directed to be taken into custody forthwith to serve out the remaining part of the sentence.