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Judgment
Rakesh Saksena, J.—Since both the appeals arise out of the common impugned judgment, this judgment shall govern the disposal of both the appeals. Appellants have filed the above appeals against the judgment dated 17.04.2002 passed by VIII Additional Sessions Judge, Bhopal in Sessions Trial No. 202/2001 convicting the appellants u/s 302/34 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs. 1000/-. In default of payment of fine further rigorous imprisonment for 6 months.
In short, the prosecution case is that over a past dispute on 14.5.2001 at about 8 o''clock in the night, three accused persons viz. Tolaram, Raju and Karu reached in front of the house of Deepu @ Amandeep (deceased) situated in Bairagarh Bhopal, hurled abuses and extended threats to his aunt Rajkumari. Since the aunt was not at the house, he and his uncle Jogender Singh came on the front side of the roof. As soon as they reached there Raju threw a Nunchaku (a martial art weapon which consists of two short thick sticks joined by a length of chain) at his uncle, but he escaped. Amandeep went down and asked them as to why they were abusing. Then Tolaram, Raju and Karu caught hold of him saying that he should be eliminated and Raju dealt a knife blow in his abdomen; when he fell down he dealt another blow on his thigh. Thereafter they put him and Sumit (PW-11) in an Auto and left them in front of hospital. In the absence of police report, since hospital people did not provide treatment to Amandeep, they went to police station, Bairagarh and lodged report at 8:45 p.m. Amandeep was taken to Hamidia Hospital, Bhopal. In the hospital, on 15.5.2001, Naib Tehsildar Rajesh Gupta (PW-14) recorded dying declaration Ex. P/13 of Amandeep. On the same day, Amandeep died in the hospital. After recording inquest memorandum Ex. P/21, Investigating Officer P.N. Malviya (PW-13) referred his dead body for postmortem examination. Dr. C.S. Jain (PW-6) conducted postmortem examination of the body. After further investigation and arrest of accused persons, police filed charge sheet in the Court of Magistrate. The case was then committed for trial.
During trial, all the accused abjured their guilt and pleaded false implication. They also examined two witnesses in their defence viz. Wakeel Mal (DW-1) and Advocate R.K. Pathik (DW-2).
Upon trial and after appreciation of evidence, learned trial Judge held the appellants guilty and convicted and sentenced them as mentioned above, however, finding the evidence insufficient against co-accused Karu, acquitted him. Aggrieved by their conviction and sentence, appellants have filed the present appeals.
Shri V.K. Lakhera, learned counsel for appellant Raju, submitted that the evidence of sole eyewitness Sumit (PW-11) was not reliable. The evidence of dying declaration Ex. P/13 was also not reliable since the signatures of deceased endorsed on the said dying declaration were different from his signatures recorded on first information report and the seizure memo. Learned trial Judge mis-appreciated the evidence on record and committed error in convicting Raju u/s 302 I.P.C. Learned counsel, in the alternative, submitted that in the facts and circumstances of the case, the conviction of Raju u/s 302 was not justified. At the most he could have been held liable u/s 304 Part I I.P.C. Shri Y.K. Gupta, learned counsel for appellant Tolaram, submitted that from the evidence on record and in the circumstances of the case, appellant Tolaram could not have been convicted vicariously with the aid of section 34 I.P.C. Learned trial Judge committed error in holding that he shared common intention with appellant Raju to cause death of deceased. Per contra, Smt. Nirmala Nayak, learned Government Advocate justified the impugned judgment and supported the finding of conviction recorded by the trial Court. According to her, the finding of conviction of both the appellants was based on cogent, consistent and reliable evidence. No interference was called for in the impugned judgment of conviction.
We have heard the learned counsel for the parties at length, perused the impugned judgment and the evidence on record carefully.
It has not been disputed that Amandeep died a homicidal death. The report of the incident Ex. P/16 was lodged by deceased himself. This report was recorded by Investigating Officer P.N. Malviya (PW-13). In the report, deceased disclosed that appellant Raju dealt knife blows to him. Deceased was sent to Civil Hospital, Bairagarh where Dr. Bharti Bhargava (PW-12) examined his injuries. Dr. Bhargava deposed that on the body of Deepu @ Amandeep on 14.5.2001, he found following injuries:-
(i) Incised wound on anterior abdominal region above umbilicus 2" x 1/2" x muscle deep in size. The blood was oozing out. The margins of wound were clean cut. Injury was appearing grievous in nature.
(ii) Incised wound on left thigh 1" x 1/2" x 1/2". Margins clean cut. Blood was clotted around the wound.
Since the condition of patient was serious he referred him to Hamidia Hospital, Bhopal. During the treatment on 15.5.2001 Deepu @ Amandeep died in Surgical Ward No. 5. On receiving information from the hospital, Head Constable Shivshankar Pandey (PW-7) recorded marg intimation Ex. P/12. During inquest proceedings Inspector P.N. Malviya (PW-13) recorded inquest memorandum Ex. P/21 and referred the dead body for postmortem examination. Dr. C.S. Jain (PW-6), Forensic Expert of Medico Legal Institute, Bhopal on the same day conducted autopsy and noted four stitched injuries on the body of deceased:-
(i) Stabbed injury 8 cm long muscle deep. By this injury femur bone was also cut. Depth of wound was 9 cm.
(ii) A wound 2 cm above umbilicus. On opening the wound, one end of the wound was found pointed and another blunt. This wound was 14 cm long and deep upto kidney. Hilum of right kidney was cut. Blood vessels of kidney were also cut.
(iii) Stitched wound 14 cm long on the abdomen. This wound was caused by laparotomy (operation).
(iv) Stitched wound 1.5 cm long on right side of abdomen. Wound was deep upto liver. Right liver lobe was cut but sealed. Duodenum was also cut and stitched.
These injuries were caused by sharp edged weapon. In the opinion of doctor, the injuries were sufficient to cause death in the ordinary course of nature. Cause of death was shock due to excessive haemorrhage. The death was homicidal in nature.
From the above evidence, we find it proved that deceased died a homicidal death.
Now the question is whether appellant Raju caused injuries to deceased which resulted into his death? Except Sumit (PW-11), no other alleged eyewitnesses supported the prosecution case. They all were declared hostile. The case of the prosecution, therefore, rested on the evidence of Sumit (PW-11), dying declaration Ex. P/13 recorded by Naib Tehsildar Rajesh Gupta (PW-14), first information report Ex. P/16 and statement recorded u/s 161 Cr.P.C. (Ex. P/18) made by deceased himself to Inspector P.N. Malviya (PW-13).
Sumit (PW-11) deposed that at about 1 o''clock in the noon, there had been a quarrel between his mother and Raju about putting electric wire on the grill. On the same day, in the night at about 8 o''clock, Raju threw a Nunchaku at his father Jogender, but it did not hit him. He threw it again but it missed. His brother Amandeep when went down there occurred a quarrel between him and Raju. Raju dealt three knife blows to Amandeep causing injuries on his hip and abdomen. Accused Tolaram was also present with Raju who held his brother when Raju dealt knife blows to him. PW-11 deposed that his mother did not see the occurrence. Prior to incident wife of Tolaram had indulged in quarrel with his mother then Tolaram had provoked Raju to fight with Amandeep. He deposed that he carried Amandeep in an Auto to hospital. At first they went to Babani hospital then to Government hospital and ultimately to Hamidia Hospital. Evidence of PW-11 finds corroboration from the evidence of Bablu (PW-5). Bablu deposed that in his Auto rickshaw he carried a boy to private doctor but since the doctor refused to see the injured he took him to Government hospital, Bairagarh. Government doctor asked them to take patient first to police station then they went to police station. He did not support the prosecution case any further.
Inspector P.N. Malviya (PW-13) stated that on 14.5.2001 Sumit brought Amandeep in an Auto to police station, Bairagarh where Amandeep lodged an oral report Ex. P/16. He sent injured to Hamidia Hospital for treatment. When he found that his condition was serious, he requisitioned Tehsildar Rajesh Gupta for recording his dying declaration. Naib Tehsildar Rajesh Gupta (PW-14) stated that on 15.5.2001 he went to Hamidia Hospital and after obtaining the certificate about the fitness of injured, recorded dying declaration of Amandeep. Amandeep was in full senses. After recording of the dying declaration Ex. P/13, he signed on it. Evidence of Naib Tehsildar PW-14 stood corroborated from the evidence of Dr. Nitin Garg (PW-8) who endorsed the certificate about the fitness of the patient before recording the dying declaration.
It is true that in his police statement, Sumit (PW-11) named accused Karu also, but in the Court he did not mention his presence in the incident. Though Sumit happened to be a young boy of 14 years and also a relative of deceased, but his evidence appeared consistent, cogent and reliable, as it found corroboration from the evidence of first information report Ex. P/16 lodged by deceased, which has been treated as a dying declaration and also by the dying declaration Ex. P/13 recorded by Naib Tehsildar PW-14.
First information report Ex. P/16, lodged by deceased, revealed that there had been a quarrel between his aunt Rajkumari and accused Tolaram on his putting an electric wire on the grill. Tolaram along with his servant Raju came in front of his house and indulged in quarrel. Both of them abused his aunt who was not at home. When his uncle Jogender Singh came in front of the roof, Raju attacked him by throwing a Nunchaku, but it did not hit him. When deceased went down and asked as to why they were abusing and assaulting, all the three accused persons abused and caught him and suddenly Raju dealt knife blows to him. Similar statement was made by deceased to Investigating Officer P.N. Malviya (PW-13) who recorded the same as Ex. P/18.
First Information Report Ex. P/16 cannot be said to have been lodged after an inordinate delay since it was lodged just 45 minutes after the occurrence. From the evidence on record, it is apparent that the time must have been consumed in arranging for an Auto and taking deceased to hospital and then to police station. It has been revealed by Sumit (PW-11) as well as by Bablu (PW-5) that doctors did not provide treatment to deceased until a report was lodged with the police. It is also important to note that P.N. Malviya (PW-13) sent a copy of the first information report next day to concerned Magistrate.
Main eyewitness of the incident viz. Jogender Singh could not be examined in the Court since he died on 6.6.2001. As far as dying declaration Ex. P/13 recorded by Naib Tehsildar Rajesh Gupta (PW-14), he deposed that on 15.5.2001, on receiving information from police station, Bairagarh, he went to Hamidia Hospital and recorded dying declaration of Amandeep Singh, who was admitted therein. He stated that before recording his statement he obtained certificate from doctor that deceased was in senses and was fit to give his statement. Deceased told to him that in the evening at about 8:00 p.m. when he came to his house from the Factory, his aunt told to him that neighbour Raju was abusing and threatening to her and all the family members. When he went out of the house Raju dealt knife blow in his thigh then in his abdomen. According to him, at that time, accused Tolaram had caught him from behind.
Learned counsel for the appellants urged that in dying declaration Ex. P/13, name of accused Karu was not mentioned and that signatures on this dying declaration and the signatures allegedly made by deceased on first information report Ex. P/16 and the seizure memo Ex. P/17 were different. They referred to the evidence of R.K. Pathik (DW-2), the handwriting expert, who in his report Ex. D/3, opined about dissimilarity. Trial Court considered this aspect elaborately and found that the evidence of defence witness was not reliable mainly on the ground that he instead of basing his opinion on the original documents, based it on the photocopies of the certified copies of the documents. Though Court insisted for getting the documents examined by the Expert of the police department, the documents were got examined by Mr. Pathik (DW-2). Apart from it, expert Pathik admitted that the signatures of the same person may be dissimilar if they are made in different postures. The signatures made in standing position may be different if obtained when the person is in lying condition. We find the reasonings assigned by the trial Court just and proper for disbelieving the evidence of R.K. Pathik (DW-2) and his report Ex. D/3.
There appears absolutely no reason for Naib Tehsildar Rajesh Gupta (PW-14) to record a false declaration against the appellants. The dying declaration Ex. P/13 finds corroboration from the evidence of Dr. Nitin Garg (PW-8), first information report Ex. P/16 and also from the evidence of Sumit (PW-11). It is also significant to note that Dr. Bharti Bhargava (PW-12) who for the first time examined deceased in Civil hospital. Dr. Bhargava also deposed that deceased disclosed to him that his neighbour Raju caused injuries to him.
After a close and critical analysis of the evidence of eyewitness Sumit (PW-11), dying declaration Ex. P/13 recorded by Naib Tehsildar PW-14 and the first information report Ex. P/16 recorded by Investigating Officer PW-13, we find the same to be consistent, cogent and trustworthy. Therefore, we hold that it stood established that appellant Raju caused injuries to deceased with a knife which resulted into his death.
Learned counsel for appellant Tolaram submitted that Tolaram cannot be held guilty for causing death of deceased with the aid of section 34 of the Indian Penal Code since the evidence was not clear that he caught deceased with a view to facilitate appellant Raju to stab him. It is also doubtful that he even knew that Raju had a knife.
Learned counsel for appellant Raju submitted that in the circumstances of the case, the conviction of appellant Raju u/s 302 I.P.C. was not justified since the incident had occurred suddenly when deceased came down and indulged in quarrel with the appellants.
On perusal of the evidence of Sumit (PW-11), it appears that when both the appellants went in front of the house of Jogender, they abused Rajkumari who was not present in the house. When Jogender came forward on the roof, Raju threw a Nunchaku at him which did not hit him. Then deceased himself went down which led to a quarrel in which Raju dealt knife blows to him. In dying declaration Ex. P/13, deceased disclosed that as soon as he came out of the house first of all Raju dealt knife blows in his thigh then in his abdomen and in later part of his statement he said that when he came down Tolaram caught him from behind and Raju dealt knife blows to him. In first information report Ex. P/16, deceased disclosed that when he went down and inquired from Raju as to why he was abusing and throwing knife, all the three accused persons caught hold of him and shouted that he should be killed. Then Raju dealt knife blows to him. From the aforesaid versions, it can be gathered that appellant Raju was not wielding the knife openly, rather when deceased and Jogender were on upper part of their house, he threw a Nunchaku, which is not like an ordinary knife, at Jogender and when deceased came down and indulged in altercation, appellants caught him and suddenly Raju dealt knife blows to him. The fact mentioned in the first information report Ex. P/16 that all the three accused persons shouted that deceased should be killed is not found mentioned in dying declaration Ex. P/13 and in the evidence of Sumit (PW-11). In these circumstances, in our opinion, it remains in the region of suspicion that appellant Tolaram knew that Raju wielded a sharp edged conventional knife. There is no evidence on record to indicate that Raju brandished or wielded the said knife openly. In this situation, appellant Tolaram seems entitled for benefit of doubt.
As far as appellant Raju is concerned, he dealt two blows of knife to deceased when deceased came down and indulged in altercation with him. Initially the quarrel was between Rajkumari and Jogender on one side and Raju and Tolaram on other side. The quarrel between Raju and deceased erupted suddenly when deceased came out and questioned as to why he was abusing and throwing Nunchaku at Jogender. In such a situation, it cannot be held that Raju acted with a premeditation to commit murder of deceased. However, since he dealt two knife blows to deceased, one of which damaged the vital organs like kidney and liver, it can be held with certainty that he assaulted deceased either with the intention of causing his death or of causing such bodily injury to him as was likely to cause his death making him liable to be convicted u/s 304 Part I of Indian Penal Code. For the aforesaid reasons:-
(i) Conviction of appellant Tolaram u/s 302/34 I.P.C. and sentence awarded to him is set aside. He is acquitted. His appeal (Criminal Appeal No. 657/2002) is allowed.
(ii) Conviction of appellant Raju u/s 302 I.P.C. is set aside, instead he is convicted u/s 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for ten years. His appeal (Criminal Appeal No. 747/2002) is partly allowed.
A copy of this judgment be kept in the record of Criminal Appeal No. 747/2002.