Ram Kushal Gautam vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 22-6-2000 passed by Fourth Additional Sessions Judge, Rewa, in Sessions Trial No. 94/1999, convicting the appellant u/s 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/-, in default of payment of fine, further Rigorous Imprisonment for one year. The prosecution case in nutshell is that on 30-4-1999 at about 9 a.m., when complainant Premlakhan, his brother Phoolchandra, Rambahore, Mahavir and some other relatives were sitting in the house of Phoolchandra and were talking. Phoolchandra for some work, went out of the house. Suddenly, they heard Phoolchandra shouting, hearing which they went out and saw Phoolchandra lying on the passage in front of the house and groaning. Accused Ram Kaushal whose house was situated in the neighbourhood was running towards his house with an axe. Premlakhan and other persons went near Phoolchandra and saw a wound caused by axe on his head. It was bleeding profusely. Phoolchandra told to them that Ram Kushal dealt axe blow on his head, and thereafter he became unconscious. Premlakhan along with family members and other village people carried Phoolchandra in a Jeep to Semariya hospital and then went to Police Station. Semariya and lodged the First Information Report (Exh. P-2). By the time he reached back to hospital, Phoolchandra died. The offence registered u/s 307 of the Indian Penal Code was then converted to Section 302 of the Indian Penal Code. Dead body of Phoolchandra was sent for post-mortem examination.

Dr. Prakash Singh (P.W. 1), Assistant Surgeon of P.H.C. Semariya conducted the autopsy and found an injury on the skull of deceased. The injury was caused by sharp edged weapon.

Investigating Officer Virendra Kumar Mishra (P.W. 5) conducted inquest proceedings, prepared inquest memo (Exh. P-5), prepared spot map (Exh. P-3) and arrested accused on the same day, vide arrest memo (Exh. P-10). On the information given by accused u/s 27 of the Evidence Act (Exh. P-7), he recovered an axe from his possession, vide memo (Exh. P-8). Seized articles were sent to FSL and a report (Exh. P-15) was obtained. After investigation, charge-sheet was filed in the Court of Judicial Magistrate, who then committed the case to the Court of Sessions for trial.

Trial Court framed the charge u/s 302 of the Indian Penal Code against the appellant. Appellant abjured his guilt and pleaded false implication. According to him, he found deceased lying unconscious in injured condition at about 6 a.m., and he informed to other persons, but he was falsely implicated.

Prosecution, to establish its case examined five witnesses. Appellant, in his defence examined Ayodhya Prasad (D.W. 1) and Chhugai (D.W. 2) to substantiate his defence. Learned Trial Judge relying on the evidence of prosecution witnesses convicted and sentenced the appellant u/s 302 of the Indian Penal Code. Aggrieved by the impugned judgment, appellant has filed this appeal before this Court.

Learned Counsel for the appellant submitted that the evidence of Premlakhan (P.W. 2) and Garud Prasad Dahiya (P.W. 3) was not reliable since they were close relatives of the deceased. Learned Trial Judge committed error in relying on the evidence of oral dying declaration allegedly made by deceased to Premlakhan since deceased was not in a position to make the same. Dr. Prakash Singh (P.W. 1) stated that immediately after the assault deceased must have become senseless, therefore, conviction based on the evidence of Prem Lakhan (P.W. 2) was not justified. In the alternative, learned Counsel for the appellant submitted that since only one blow by axe was caused by the appellant, his conviction u/s 302 of the Indian Penal Code was not correct. Placing reliance on Ramchandra Dhondiba Kaware Vs. State of Maharashtra, , he submitted that at the most, appellant could have been held liable for the offence u/s 304I or II of the Indian Penal Code. On the other hand, learned Counsel for the State submitted that the evidence of Premlakhan (P.W. 2) was natural and consistent. It stood corroborated by the evidence of Garud Prasad Dahiya (P.W. 3) and Mahaveer (P.W. 4). He submitted that the evidence of oral dying declaration made by deceased could not be disbelieved merely on the basis of opinion of doctor since Premlakhan (P.W. 2), who deposed about the dying declaration had reached at the spot immediately on hearing the cries of deceased. He justified and supported the impugned judgment of conviction passed against the appellant.

We have heard the learned Counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed by the learned Counsel for the appellant that deceased Phoolchandra died a homicidal death. From the evidence of Premlakhan (P.W. 2), Garud Prasad (P.W. 3) and Investigating Officer Virendra Kumar Mishra (P.W. 5), it is established that deceased suffered injury on his head. Investigating Officer Virendra Kumar Mishra (P.W. 5), in presence of Prem Lakhan (P.W. 2) conducted inquest proceedings and drew inquest memorandum (Exh. P-5), recording that there was an injury on the head of deceased. Apart from it, Dr. Prakash Singh (P.W. 1), who conducted post-mortem examination of the body of deceased found following injury on his body:-

(i) Injury 4" x 1" x bone deep on the back side of head. Occipital bone of the skull was fractured. Brain was ruptured. There was excessive bleeding from injury and the blood had clotted in the brain cavity. The injury was caused by sharp edged weapon.

In his opinion, the death of deceased was caused due to coma resulting from injury to brain. The medical report (Exh. P-1) in this regard was written and signed by him. From the above evidence, it is amply established that deceased died of a homicidal death.

Premlakhan (P.W. 2) deposed that at about 9 a.m., he was sitting in the house of Phoolchandra. Mahavir, Rambhavan, Phoolchandra, Garud and Kallu were also present there and discussing about some marriage negotiation. Phoolchandra went out of house saying that he will soon come back, but immediately thereafter he heard cries of Phoolchandra. He rushed to that place and found Phoolchandra lying on the road. Appellant Ram Kushal who was running away with an axe, entered his house. On his asking, Phoolchandra told that Ram Kushal assaulted him with axe on his head and asked for some water. When he tried to tie a cloth on his head, he became unconscious. Along with 2-3 persons, he took him to Semariya Hospital and then went to Police Station, Semariya and lodged FIR. When Phoolchandra died, police conducted inquest proceedings and prepared the memorandum. In cross-examination, this witness admitted that he was brother of deceased. He stated that the house of accused was situated only at a distance of about 20 ft. from the place of incident. He categorically stated that when he first saw accused, he was around 15-20 hands away from him. Though some contradictions between his statement and the First Information Report (Exh. P-2) were pointed out by the learned Counsel for the appellant, but they appeared to be very minor in nature. In the Court, Prem Lakhan (P.W. 2) stated that deceased told to him that he will die and wanted to have some water, but this fact was not found mentioned in the First Information Report. Despite a lengthy cross-examination, this witness remained firm on the version that he saw appellant running away from the spot and that deceased told to him that appellant assaulted him with axe.

Learned Counsel for the appellant submitted that the evidence of Premlakhan (P.W. 2) was not credit worthy as he happened to be the brother of deceased. Admittedly, there was no enmity between Premlakhan (P.W. 2) and the appellant. They lived in the same locality. Learned Counsel for the appellant could not point out anything on record to indicate that there had been animus between this witness and the appellant. The Apex Court in the case of Verghese Thomas Vs. State of Kerala, observed that where there is no previous enmity between the deceased or his relatives on one side and the accused on the other, the evidence given by the relatives of the deceased cannot be regarded as suspect needing corroboration from independent witnesses. In the instant case, there is yet other evidence, which furnished corroboration to the evidence of Premlakhan (P.W. 2). Garud Prasad (P.W. 3), nephew of the deceased and Mahavir (P.W. 4) also deposed that they along with Phoolchandra and Ramsunder were sitting in the house of Phoolchandra, as soon as Phoolchandra went out of the house, they heard him shouting. When they went out of the house, they saw Phoolchandra lying on the passage moaning and appellant running away with an axe. Garud Prasad (P.W. 3) categorically stayed that when Premlakhan enquired from Phoolchandra, he disclosed that accused dealt axe blow on his head. Similar statement was given by Mahavir (P.W. 4). All of them then took deceased to Semariya Hospital. Minor discrepancies and inconsistencies pointed out by learned Counsel for the appellant in the evidence of these witnesses cannot be held sufficient for discarding their evidence.

Evidence of Premlakhan (P.W. 2) stood further corroborated by the First Information Report (Exh. P-2) lodged by him just within an hour after the occurrence. It was clearly staled by him in the report that when he went out of the house, he saw appellant running away with an axe and deceased lying injured on the passage in front of the house. On post-mortem examination of the body of deceased, Dr. Prakash Singh (P.W. 1), found an injury caused by sharp edged weapon on his skull. This fact further reinforced the credibility of the version of Premlakhan (P.W. 2).

No doubt Or. Prakash Singh (P.W. 1), in cross-examination stated his apprehension that since the brain matter of the deceased was out, he might have become unconscious soon after the assault, but in view of the natural, consistent and cogent evidence of Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4), we are unable to accept that deceased could not have spoken even a few words after the assault, especially when these witnesses reached at the spot immediately on hearing the shrieks of deceased. In view of the categoric evidence of aforesaid witnesses, the statement of Dr. Prakash Singh (P.W. 1) cannot be accepted, which is merely a hypothetical opinion based on probability.

Even on reappraisal of the evidence, we find the evidence of Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4) consistent and credit worthy. From the fact that these witnesses saw appellant running away from the spot with an axe and heard deceased saying that appellant dealt axe blow on his head, in our opinion, it is established beyond doubt that it was the appellant who caused injury on the head of deceased with axe.

As far as the evidence of defence witnesses namely Ayodhya Prasad (D.W. 1) and Chhugai (P.W. 2) is concerned, they stated that they saw deceased lying near hand pump in injured condition early in the morning. According to Ayodhya Prasad (D.W. 1), he called appellant Ram Kushal and enquired from him about Phoolchandra and thereafter Ram Kushal informed to the family members of Phoolchandra. It appears unnatural that instead of informing the family members of deceased, this witness first informed to Ram Kushal. Though, Ayodhya Prasad (D.W. 1) stated that he informed to police that he had seen Phoolchandra lying injured in the morning at about 6 o''clock, but it was not stated by the Investigating Officer Virendra Kumar Mishra (P.W. 5). With respect to Chhugai (D.W. 2). Mahavir (P.W. 4) stated that he had come only after other persons had reached the spot at about 8-9 a.m. Chhugai (D.W. 2) himself admitted that when he reached the spot, number of other persons including family members of Phoolchandra were already present. In view of the reliable and trustworthy evidence of prosecution witnesses therefore, the evidence adduced by accused does not appear to us truthful.

Learned Counsel for the appellant on the strength of the ratio of Apex Court decision rendered in Ramchandra Dhondiba (supra), argued that since appellant dealt only a single blow of axe on the head of deceased, his conviction u/s 302 of the Indian Penal Code was not justified. Had he intended to cause death of deceased, he might have repeated the assault. According to him, since there was no evidence on record to throw light on the genesis of the occurrence it ought to have been presumed that there was some cause or altercation, which led appellant to assault the deceased. In Ramchandra''s case (supra), Apex Court observed that "the accused and the deceased were in inimical terms. Only one blow was given with the Yoke in the night. P.W. 4 admitted that it was dark, but he identified the accused because he was known to him. Number of injuries is always not a determinative factor regarding applicability of Section 302 of the Indian Penal Code. The nature of the weapon, place where it was struck and several other relevant factors throw light on this aspect." In the above case, the weapon used by the assailant was a Yoke, a wood used in a bullock cart, and the assault was made in the night, whereas in the instant case, appellant dealt an axe blow from the edge side on the head of deceased and that too in the day light at about 9 o''clock in the morning.

In State of Rajasthan Vs. Dhool Singh, , Apex Court held that "the number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, part of body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the respondents caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondents had dealt one single blow with a sword measuring about 3 ft. in length on a vital part of the body, namely, the neck. This act of the respondents though solitary in number............... led to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such vital part of the body with a sharp edged weapon would cause death. Such an injury not only exhibits the intention of attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack, which could be none other than causing the death of victim."

On examining the fact-situation of the instant case in the light of above legal propositions, we are unable to accept the aforesaid contention made by the learned Counsel for the appellant. It was clearly stated by the witnesses that as soon as deceased went out of the house, he was assaulted. It was apparent from the fad that Premlakhan (P.W. 2), Garud Prasad Dahiya (P.W. 3) and Mahavir (P.W. 4), who immediately rushed to spot saw appellant running away from the spot. It can, therefore, be readily inferred that nothing transpired between the deceased and the appellant before the assault made on deceased. It was incumbent on the accused to have put-forth circumstances in the trial to bring his case in the ambit of any of the exception attached to Section 300 of the Indian Penal Code. It is true that the burden on accused to establish his defence is not so onerous as on the prosecution to prove its case yet he is expected to bring such circumstances on record, which may probabilise his defence. We are of the considered opinion that in the absence of such circumstances, merely on the ground that appellant inflicted a single blow on the head of deceased, he cannot be deemed to have committed the offence of culpable homicide not amounting to murder. The fact that appellant dealt a forceful blow on the head of deceased with a sharp edged weapon like axe resulting in fracture of the skull bone and rupture of brain, itself indicate that appellant intended to cause death of deceased making him liable to be punished u/s 302 of the Indian Penal Code.

For the reasons aforementioned, we are of the opinion that the Court below rightly appreciated the evidence on record and held appellant guilty of the charge u/s 302 of the Indian Penal Code. Accordingly, the conviction and the sentence of appellant u/s 302 of the Indian Penal Code as awarded by the Trial Court is affirmed. Appeal dismissed.