Shriram vs State of Madhya Pradesh

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 21/07/2004 passed by learned First Additional District Judge, East Niwar, District Khandwa in Sessions Trial No. 203/2003 convicting the appellant u/s 302 of IPC and sentencing him to suffer life imprisonment and fine of Rs. 1000/- with default stipulation, the appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since elaborately they are mentioned in the impugned judgment. However, for ready reference, it would be condign to mention here that on 26.9.2004 at 9.30 am. Manisha came to her home and narrated the incident to her brother Bholaram that appellant had caused injuries by Axe to their father on the rear side of his house. On receiving such an information by Bholaram from his sister Manisha both of them went to the rear side of the house of the appellant where they found that their father Mansaram (hereinafter referred to as ''the deceased'') was lying in injured condition and his body was smeared with blood. The deceased was having umpteen injuries upon his neck and head and the blood was oozing from the wounds. On being asked to the deceased he told that appellant dealt Axe blows upon him. Thereafter, Bholaram by carrying the deceased in the bullock-cart went to lodge the report to the police station along with Kamal Jain and Topaliya. However, on the way to the police station, the deceased could not survive and breathed his last.

On lodging of the First Information Report, the criminal law was triggered and set in motion. The investigating agency arrived at the spot; seized the dead body; seized the ordinary and blood stained earth; sent the dead body for postmortem; recorded the statements of witnesses; arrested the appellant and seized the Axe which was used as weapon in the commission of offence.

After the investigation was over, a charge-sheet was submitted in the committal Court who committed the case to the Court of Session and from where it was received for trial.

Learned trial Judge on the basis of allegations made in the charge-sheet framed charge u/s 302 IPC against the appellant. Needless to say, the appellant abjured his guilt and pleaded complete innocence.

In order to bring home the charge, the prosecution examined as many as 14 witnesses and also placed Ex. P-1 to P-7, the documents on record. The defence of the appellant is of false and maladroit implication and the same defence he set forth in his statement recorded u/s 313 of the Cr.P.C. However, in support of his defence, he did not choose to examine any witness. A plea of alibi was taken in the statement recorded u/s 313 Cr.P.C. that appellant was doing agricultural work in the field and the police came and arrested him.

Learned trial Judge after appreciating and marshalling the evidence arrived at the conclusion that charge u/s 302 IPC has been emphatically proved against the appellant and eventually convicted him and passed the sentence which we have already mentioned herein above.

In this manner, this appeal has been filed by the accused/appellant assailing his judgment of conviction and order of sentence.

The contention of Shri Narendra Sharma, learned counsel for the appellant is that there is no eye-witness to the incident and the entire case rests upon the oral dying declaration of the deceased. But learned counsel submits that the said dying declaration cannot be relied upon. That apart, the contention of learned counsel is that since there was no motive to kill the deceased, therefore, merely on the basis of suspicion the appellant has been arrested and was put to trial and, therefore, it is prayed that this appeal be allowed and the appellant be acquitted from the said charge.

On the other hand, Shri Mishra, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned trial Judge by placing reliance upon oral dying declaration and if that is the position, learned trial court did not commit any error in convicting the appellant u/s 302 of the IPC. Therefore, it has been prayed that the appeal be dismissed.

Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed.

In the present case there are two main witnesses, they are Manisha (PW-10) and Bholaram (PW-9). According to Manisha, the deceased had gone along with appellant from her own home because appellant came to her house and asked the deceased to accompany him. After some time when she went to call her father from the house of the appellant, at that juncture she found that appellant was carrying an Axe and was saying that he has killed the deceased. Thereafter, this witness came to home and told the entire episode to her brother Bholaram and thereafter both of them went towards the house of the appellant where they found that their father was lying in pool of blood having umpteen injuries upon his face, right ear and on the head. The blood was oozing from different wounds. On being asked to their father who had caused the injuries he told that appellant had dealt Axe blows to him. This witness was cross-examined at length but nothing has been carved out in order to disbelieve her. In cross-examination also, she has deposed that on being asked to her father, he told that appellant had caused injuries by Axe. The evidence of this witness is also corroborated by the evidence of her brother Bholaram (PW-9) who has categorically deposed that her sister Manisha told that appellant had killed their father as a result they rushed towards the house of the appellant and found that deceased was lying in injured condition nearby the house of the appellant and was saying that appellant had caused Axe blows to him. This witness is also saying that blood was oozing from different wounds which the deceased had sustained. According to us, there is no reason to disbelieve the testimony of these two witnesses. The Supreme Court in Vishram and others Vs. State of Madhya Pradesh, has categorically held that if oral dying declaration is clear, cogent and trustworthy, it can be relied upon.

We have examined the testimony of these two witnesses from different angles, but we could not find anything in order to hold that the oral dying declaration was not given by the deceased to these two witnesses. On the contrary, we find that their testimony is very specific and clear that on being asked to their father that who had caused the injuries to him, specifically he told that appellant had dealt Axe blows upon him. Thus, according to us, learned Trial Court did not err in placing reliance upon the oral dying declaration given by the deceased to these two witnesses.

We do not find any merit in the contention of learned counsel for the appellant that because there is no enmity between the appellant and the deceased, therefore, the conviction of the appellant be altered from Section 302 to 304 Part I of IPC. By taking into consideration this argument we have examined the testimony of autopsy surgeon doctor Anil Kumar (PW-4) and also the postmortem report of the deceased Ex. P/1 in which we find following injuries on the person of the deceased:-

Incised wound with clear margin 7 cm long extending downward from mastoid process toward sterno cleidomastoid.

Incised wound with clear margin 7 cm long extending posteriorly from mastoid process to occipital bone.

Incised wound 7 cm long extending from base of skull towards downward anteriorly.

Right occipital parietal bone region 8 cm x 1 1/2 cm x deep.

Left parietal bone region 7 1/2 cm x 1 1/2 cm.

Looking to the aforesaid injuries which are referred hereinabove we find that all injuries are caused by sharp edged weapon and there are fractures also upon right occipital bone and left parietal bone region and looking to its size, we are of the considered view that the act of the appellant amounted to culpable homicide amounting to murder and the learned trial court did not err in convicting the appellant for the charge punishable u/s 302 IPC.

For the reasons stated hereinabove, we do not find any merit in this appeal, the same is hereby dismissed.