Vishnu vs The State of Madhya Pradesh

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 30th June 2004 passed by Additional Sessions Judge, Sohagpur, district Hoshangabad in Sessions Trial No.213/2003 convicting him u/s 354 and 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for one year and imprisonment for life with fine of Rs.1000/-. In default of payment of fine, further rigorous imprisonment for three months. In short the prosecution case is that on 15.11.1995, at about 12.00 O''clock in the day, Geetabai, a young girl of about 14-15 years of age, went to answer the call of nature in the field of Meharban Singh. Hearing her shrieks after some time, her brother Kamal Singh and mother Sumantrabai rushed towards her and saw accused grappling with her with intent to outrage her modesty. When Kamal Singh shouted at accused, he dealt knife blows in the chest and hand of Geetabai due to which she fell down unconscious and accused ran away. Kamal Singh with the help of Mohan Singh and Phool Singh carried Geetabai in a tractor to Police Station, Bankhedi, but near village Umardha she died. Kamal Singh lodged first information report (Ex.P/1) at Police Station, Bankhedi. Police registered a case under Sections 354 and 302 of the Indian Penal Code.

After inquest, dead body of Geetabai was sent for postmortem examination to Government Hospital, Bankhedi. Dr. A.K. Verma (PW-11) conducted postmortem examination and found stab and incised injuries on her body.

Accused absconded. He was arrested after about six years on 4.4.2002. Charge sheet was filed in the year 1996 in the Court of Judicial Magistrate in his absence and arrest warrants were issued. On 31.3.2003, after arrest of accused, the case was committed for trial.

On framing charges, accused abjured his guilt and pleaded false implication due to enmity. According to him, complainant wanted to grab his land, therefore, he involved him in a false case.

Learned Additional Sessions Judge, relying mainly on the evidence of eyewitnesses Kamal Singh (PW-1) and Sumantrabai (PW-10) and finding their evidence corroborated by other evidence including the medical evidence of Dr.A.K. Verma (PW-11), held the accused guilty, convicted and sentenced him as aforesaid.

Aggrieved by his conviction and sentence, appellant has preferred this appeal.

Learned counsel for the appellant submitted that the learned trial judge misappreciated the evidence of eyewitnesses who were close relatives of the deceased. According to her, none of the witnesses, who purported to be the eyewitnesses, saw the incident. In the alternative, learned counsel submitted that in the facts and circumstances it could not be held that appellant intended to commit murder of the deceased. In a sudden commotion, while running away, he inflicted a single blow by knife on the deceased, which resulted in her death. Therefore, at the most, he could be held liable u/s 304I or 304-II of the Indian Penal Code. On the other hand, learned counsel for the State submitted that from the evidence of eyewitnesses it was clearly established that it was appellant who dealt knife blows to deceased with the intention to cause her death. He justified the finding of conviction of appellant recorded by the trial court.

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 that Geetabai died of a homicidal death. Kamal Singh (PW-1) and Sumantrabai (PW-10) categorically stated that appellant caused injuries to Geetabai with a knife. Mohan Singh (PW-6), Kallu Singh (PW-7), Phool Singh (PW-3) also stated that immediately after the occurrence they came to know that appellant caused injuries to Geetabai with a knife, as a result of which she died. Investigating officer conducted inquest proceedings before the aforesaid witnesses and sent the body of Geetabai for postmortem examination. Dr. A.K. Verma (PW-11) conducted postmortem examination and found following injuries on the body of Geetabai:

Penetrating wound 31/2 x1/2x1/2" on left side of chest below fifth rib.

Incised wound 11/2x1/2x1/2" on dorsal aspect of left hand.

Abrasion 1 x 1/2" on lateral aspect of left knee.

Abrasion 1 x 1" on right knee, interior aspect. On internal examination, he found that there was a penetrating wound on the left chest cutting pericardium and heart. Left lung was also injured. The injury on the chest could have been caused by sharp penetrating object. The death of deceased was caused due to shock because of excessive haemorrhage and syncope. The death was homicidal. Postmortem report (Ex.P/15) was signed by him.

From the aforesaid evidence, it is established beyond doubt that deceased died a homicidal death.

Kamal Singh (PW-1), the brother of deceased stated that at about 12.00 O''clock when he, his father and sister Geetabai came back to their house from the field, his sister went to answer the call of nature in the field of Meharban Singh. After some time, he heard her crying. When he and his mother Sumantrabai rushed towards the place from where they heard cries, he saw appellant scuffling with Geetabai. When he shouted as to what he was doing, appellant dealt a knife blow in the abdomen of Geetabai and ran away. Geetabai fell down unconscious. According to this witness, though he tried to nab the appellant, but he escaped. In the meanwhile, Mohan Singh, Phool Singh and Kallu Singh also reached there. They took Geeta to their house and then carried her in a tractor to Bankhedi, but near Umardha she died. He lodged a report at Police Station, Bankhedi. The evidence of this witness stood corroborated by the first information report (Ex.P/1) lodged by him at 4.20 pm. His evidence further stood corroborated by the evidence of Sumantrabai (PW-10), Mohan Singh (PW-5) and Phool Singh (PW-3). Sumantrabai (PW-10) reiterated the same story stating that when she heard cries of her daughter, she and Kamal Singh rushed towards the field of Meharban Singh and saw appellant inflicting injuries to Geetabai with a knife. She also saw appellant running towards Narmada river. Learned counsel for the appellant stated that this witness admitted that when she reached at the spot, Geetabai was lying unconscious. This indicated that she in fact did not see the incident of assault. We are unable to accept the submission made by the learned counsel for the appellant since Sumantrabai categorically stated that she saw appellant assaulting Geetabai with knife. There is nothing wrong in her saying that when she reached at the spot she found Geetabai lying unconscious. She categorically stated that she saw appellant from a distance of about 35-40 feet. This witness also accepted the suggestion that there was no past enmity with the appellant.

Mohan Singh (PW-6), another brother of deceased, stated that hearing hue and cry at the field, he also reached at the spot and saw appellant running away with a knife. According to him, on the spot Sumantrabai told to him that appellant ran away after assaulting Geetabai. He, however, could not say as to for what reason appellant assaulted Geetabai. He also accompanied Kamal Singh on the tractor while carrying Geetabai to police station. From his evidence, it is apparent that he did not see the actual assault, but he reached at the spot immediately after the occurrence and saw deceased lying unconscious and Sumantrabai and Kamal Singh sitting there. He stated that Sumantrabai and Kamal Singh told to him that appellant caused knife injuries to Geetabai. Phool Singh (PW-3), who was declared hostile, admitted that when he reached at the spot, Kamal Singh and his mother informed him that appellant assaulted deceased with knife.

The evidence of Kamal Singh (PW-1) and Sumantrabai (PW-10) appears cogent, consistent and trustworthy. Though some omissions were pointed out in the statement of Kamal Singh (PW-1), but they did not appear to be material. Merely because he mentioned in the first information report that appellant dealt knife injury in the abdomen of deceased whereas the injury was found on the chest of deceased, it did not render the evidence of Kamal Singh unreliable. On perusal of spot map (Ex.P/4) it is apparent that the field of Meharban Singh where the incident occurred is visible from the back side of the house of Kamal Singh. Therefore, the argument advanced by the learned counsel for the appellant that the eyewitnesses could not have seen the place of occurrence from their house, cannot be accepted.

It has been argued by the learned counsel for the appellant that injuries found on the body of deceased could have been caused by a fall on some sharp and pointed object, therefore, it cannot be held that appellant caused the stab injuries. We find no substance in the submission of learned counsel for the appellant in the absence of any evidence that deceased fell down on any such object.

About the recovery of weapon of offence, it is to be noted that after the occurrence appellant absconded. He could be arrested only on 4.4.2002 i.e. after about six years of the occurrence. Though investigating officer recorded a memorandum u/s 27 of the Evidence Act about the recovery of knife given by appellant, but the knife was not recovered. Therefore, the absence of evidence about the weapon of offence does not affect the prosecution case adversely, rather abscondence of the appellant for so many years gives an indication that appellant, with a view to evade arrest, remained out of reach of police.

After critically examining and appreciating the evidence of Kamal Singh (PW-1) and Sumantrabai (PW-10) we find that them trustworthy witnesses. Merely because of their being close relatives of deceased, their testimony cannot be discarded. From their evidence, in our opinion, it has been established beyond doubt that appellant attempted to outrage modesty of deceased and when she resisted and shouted, appellant caused injuries to her with knife and thereby caused her death.

Learned counsel for the appellant argued that in the facts and circumstances of the case it did not appear that appellant intended to commit the murder of deceased since the circumstances indicated that he merely intended to molest the deceased, but on her shouting and resisting and seeing witnesses approaching there, in a commotion, on spur of the moment, dealt a knife blow to her and ran away. In these circumstances appellant, at the most, could have been held guilty u/s 304-II of the Indian Penal Code.

Learned counsel for the State submitted that appellant caused two injuries to deceased with knife; one on chest and another on hand, therefore, it cannot be held that the intention of appellant was not to commit the murder of deceased.

On perusal of the evidence of Kamal Singh (PW-1) and Sumantrabai (PW-10) it is apparent that there was no past enmity between appellant and the deceased. According to them, on hearing cries of deceased, when they rushed towards her, they saw appellant scuffling with her. Deceased told nothing to these witnesses, but in that situation it was assumed that appellant outraged modesty of deceased. Appellant had a knife in his hand, which might have been for frightening the deceased to make her submit to his demand, but, on the resistance exerted by the deceased and the hue and cry made by her, appellant got excited and just on the spur of moment stabbed deceased on her chest and ran away. None of the aforesaid witnesses stated that appellant repeated the blow. It is true that besides the stab injury on chest an incised injury on the back side of the hand of deceased was also found by the doctor, but it is quite possible that this injury might have been suffered by her in a bid to ward off the blow with her hand. In these circumstances, in our opinion, it cannot be held that appellant intended to commit murder of deceased. It was something like hit and run. However, since the appellant used a weapon like knife and inflicted injury on a vital part of the body like chest and the injury was sufficient to cause death in the ordinary course of nature, it can be held with certainty that the appellant either intended to cause death or to cause such bodily injury to deceased as was likely to cause her death making him liable to be punished u/s 304-I of the Indian Penal Code.

In view of the above discussion, the conviction of appellant Vishnu u/s 302 of the Indian Penal Code is modified to one u/s 304-I of the Indian Penal Code and he is sentenced to rigorous imprisonment for a period of 10 years. The conviction and sentence of appellant u/s 354 of the Indian Penal Code is affirmed. Subject to modification as indicated above, this appeal is dismissed.