Justice Brij Kishore Dube
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.6.98 passed by the learned Second Additional Sessions Judge, Guna, in Sessions Trial No. 269 of 1997 (State of Madhya Pradesh Vs. Naresh and others), convicting the appellants under Sections 302/34, 325/34 and 324/24 of IPC and thereby sentencing each of them to suffer rigorous imprisonment for life and fine of Rs. 1,000/in default of payment of fine further three months simple imprisonment, one year rigorous imprisonment with fine of Rs. 250/, in default, further simple imprisonment for one month and six months rigorous imprisonment, respectively, with further stipulation that the jail sentences shall run concurrently, the appellants have preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. During the pendency of this appeal, the appellant, Kallu had died, therefore, his name has been deleted from the cause title, as the appeal stand abated against him.
2. The prosecution case, in brief, may be narrated as under:
(i) That, the complainant, Raj Kumar (hereinafter referred to as the deceased) in the intervening night of 10th and 11th June, 1997 at 4.45 a.m., reached to the Police Station, Kotwali Guna in an injured condition and lodged a report to the effect that on 10/06/97 at about 11.00 p.m., he (complainant) alongwith his associates, Parmanand (P.W. 2), Man Singh (P.W. 1) and Naresh (appellant No. 1) were consuming liquor in front of the factory of Sangam Babu. During the course of taking liquor, Naresh began to abuse, therefore, he requested not to do so. On this, Naresh immediately rushed to his nearby situated house and came back with a lathi in his hand and caused injuries to Parmanand and Man Singh, therefore, they flew away from the place of incident. Raj Kumar (complainant) also tried to ran away from the place, but Naresh restrained him and used flimsy abuses, thereafter gave lathi blows on the head, hands, back and various other parts of the body. He also gave threat that in case he (complainant) makes a report, he will kill him;
(ii) That, on the basis of the aforesaid, FIR was registered against Naresh only at Crime No. 338/97 (Exhibit P/19) under Sections 341, 294, 323 and 506B of IPC and the injured was sent to for medical examination to the District Hospital, Guna. The criminal law was triggered and set in motion.
(iii) That, the injured was examined at 5.30 a.m., and admitted in the hospital for treatment, where he died on the same day at 3.00 p.m., The Investigating Officer prepared the inquest on the dead body (Exhibit P/5) and sent it for postmortem, prepared the map of scene of occurrence (Exhibit P/1) and seized necessary articles from the place of occurrence. P.W. 6, Dr. Sitaram Singh conducted post mortem at District Hospital, Guna and opined that death occurred due to haemorhagic shock as a result of injury to vital organ, spleen (rupture of spleen), therefore, the case was altered under Sections 302/307 of IPC; and
(iv) That, the Investigation Officer recorded the statements of the witnesses who were acquainted with the facts of the offence and arrested the appellants/accused persons. On completion of the investigation, a charge sheet was filed against three accused persons, before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for the trial.
3. The learned Trial Judge on the basis of the material placed on record framed charge punishable under Sections 302 and in the alternate u/s 302/34 for committing murder of Raj Kumar and u/s 307/34 of IPC for attempt to murder of Man Singh against the appellant No. 1, Naresh and against the other accused persons, Kallu (since dead) and Kalla under Sections 302/34 & 307/34 of IPC. The appellants denied the charge and claimed to be tried. The defence of the appellants is of false implication and the same defence set forth in their statements recorded u/s 313 of the Code of Criminal Procedure, 1973.
4. To bring home the charge, the prosecution has examined as many as 11 witnesses and placed Exhibits P/1 to P/21, the documents on record. The accused/appellants have not examined anybody in their defence.
5. The learned Trial Judge on the basis of evidence placed on record came to hold that charges have been proved against the accused persons as a result of which convicted them and passed the sentence as mentioned hereinabove.
6. In this manner, this appeal has been preferred by the appellants assailing their judgment of conviction and order of sentence passed by the learned Trial Court.
7. Legality and propriety of the impugned judgment of conviction has been challenged by the appellants on the ground of misappreciation of the evidence on record. Learned Counsel for the appellants, Shri Dhirendra Singh has submitted that there was no cogent evidence to establish the ingredients of offence for which they have been convicted. There is abundant evidence to prove that the appellant No. 2, Kalla was not present at the spot. The learned Trial Court erred in convicting the appellants, hence, this appeal may be allowed and the appellants be acquitted from the charge.
8. An alternate submission has also been put forth by Shri Dhirendra Singh, Learned Counsel for the appellants that there was no intention to kill the deceased and the incident had taken place all of a sudden. Further that even if the prosecution case is accepted to be true, the nature of injuries caused, the weapon used, the genesis of the occurrence and the trivial dispute which gave rise to the occurrence, belie the case of the prosecution that the appellants intended to cause the death of the deceased. He submits that none of the injuries caused by itself sufficient in the ordinary course of nature to cause death, and at the best death resulted on account of the unintended injury to the spleen (rupture of spleen). According to him, injury to the spleen, which appears to be the cause of the death was not intended by the appellants, therefore, the offence made out come within the purview of explanation (iv) to Section 300 of IPC, and hence, their conviction be altered from Section 302/34 to Section 304 Part II of IPC and their sentence can be reduced to the period already undergone by them.
9. On the contrary, Shri Prabal Solanki, learned Public Prosecutor has supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited.
10. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.
11. So far as the role assigned to appellant No. 2 Kalla is concerned, we find that according to FIR (Ex. P/19), he was neither present at the place of occurrence nor he has taken any part in the beating of Man Singh and the deceased, Raj Kumar. The deceased, Raj Kumar himself lodged the FIR (Ex. P/19) on 11/6/1997 at 4.45 a.m., immediately after the incident at police station, Kotwali Guna. The Head Constable, Jagmohan Singh (P.W. 11) who recorded the FIR has proved the report (Ex. P/19) of the deceased. After death of the deceased, Raj Kumar, this document would become his dying declaration, as envisaged in Section 32 (1) of the Evidence Act. It has been categorically stated by P.W. 11, Jagmohan Singh, Head Constable that on the basis of information given by Raj Kumar, he recorded FIR which was (Ex. P/19) and he himself put his signature and injured Raj Kumar put his thumb impression on it. This witness further stated that he sent the injured, Raj Kumar to hospital at Guna for medical examination and treatment.
12. The FIR (Ex. P/19) is to the following effect:
13. Admittedly, Man Singh (P.W. 1), Parmanand (P.W. 2) and Pappu (PW 3) are real brothers. They deposed that Kalla armed with an axe and Kallu armed with sword had also came at the place of occurrence along with Naresh who was having lathi and all the aforesaid three persons have caused marpeet with Raj Kumar and Man Singh as a result of which Raj Kumar and Man Singh sustained injuries. The aforesaid testimony is amply and materially belied by the deceased Raj Kumar in his FIR (Ex. P/19). Apart from this, the medical evidence also contradicts the oral testimony of Man Singh (PW1), Paramanad (PW2) and Pappu (PW 3). The genesis of the occurrence as mentioned in FIR also contradicts the oral testimony of the aforesaid witnesses.
14. For the foregoing reasons, we are of the considered view that the appellant No. 2 has been wrongly convicted u/s 302/34, 325/34 and 324/34 of the IPC and therefore, he is hereby acquitted from these charges.
15. So for as the conviction of appellant No. 1 Naresh is concerned, there is overwhelming evidence of (PW 1), Man Singh, (PW2), Paramanand and dying declaration of deceased Raj Kumar in the form of FIR (Exhibit P/19) that this appellant gave lathi blows on the person of the deceased which landed on his head, arms, back and various other parts of the body. The aforesaid oral testimony is corroborated by the medical evidence.
16. We have gone through the evidence on record and have noticed the features of the case in regard to the appellant No. 1, Naresh. Firstly; the occurrence has it''s genesis on a trivial matter, namely; during the course of consuming liquor, He began to abuse the deceased and when the deceased restrained him not to do so then the appellant went to his nearby situated house and brought a lathi and caused marpeet. It is thus apparent that what was happened was not premeditated and appellant had not come particularly prepared for causing death. Secondly, as per FIR (Exhibit P/19), the appellant gave threats to the deceased that in case he makes a report, he will kill him. This threat indicates that while beating the deceased, Raj Kumar, the appellant had no intention to kill him. Thirdly, the medical evidence discloses that the following injuries were found on the person of the deceased:
(i) Lacerated wound 4 cm x 1 cm x deep to bone over parieto occipital region.
(ii) Penetrating wound 1.5 cm x.5 cm x deep to mussel over right upper arm shoulder.
(iii) Penetrating wound 1.5 cm x.5 cm x deep to mussel over right upper arm.
(iv) Contusion 2" x 1" swelling over right forearm of lower 1/3rd.
(v) Contusion 5" x 1 1/2 " over back of left side of chest. Radish colour.
(vi) Contusion 4" x 1 1/2 " over middle of back.
(vii) Contusion 5" x 1 1/2 " over right side of back. Radish colour.
(viii) Contusion 6" x 1 1/2" over middle of back lower.
(ix) Contusion 2" x 1" over left shoulder. Radish.
(x) Lacerated wound 2 cm x 1 cm x deep bone over left leg below knee.
(xi) Lacerated wound 2 cm x 1 cm x deep bone over left left leg middle 1/3rd.
Fourthly, the post mortem report (Exhibit P/5) which was proved by Autopsy surgeon, Dr. Sitaram Singh (P.W. 6) discloses that no fracture was found on the person of the deceased. Dr. Sitaram Singh (P.W. 6) has specifically deposed that none of the injury found on the person of the deceased was sufficient in the ordinary course of nature to cause his death. None of the injury was also dangerous to his life. As per the opinion of the autopsy surgeon, the death has been caused due to the injury on vital organ, spleen (rupture of spleen).
And lastly, from the external and internal injuries found on the person of the deceased, we have come to the conclusion that it was the injury caused to the spleen resulted in profuse bleeding which caused the death. If the spleen has not been damaged, perhaps death could not have been resulted.
17. From the foregoing reasons, we find that the occurrence took place suddenly, there was no intention of the appellant, Naresh to kill the deceased and also there was no premeditation and preplan to kill the deceased. The quarrel really arose on trivial issue. However, several injuries were caused by lathi, therefore, appellant, Naresh was having knowledge that by his act, the deceased may die, hence, the present case would rest u/s 304 Part II of the IPC. In this context, we may profitably place reliance on the decisions of the Apex Court in the case of
18. We have gone through the findings rendered by the learned Trial Court convicting the appellant No. 1, Naresh under Sections 325/34 and 324/34 of the IPC for causing injuries to Man Singh (PW 1) and also the evidence placed on record. According to Man Singh (PW 1) accused, Naresh dealt lathi blows on his chest and legs as a result of which he sustained injuries. The above testimony of Man Singh (PW 1) gets corroborated by the testimony of P.W. 2, Paramanand.
19. Existence of following injuries on the person of Man Singh were proved by Doctor R.K. Jain (PW 7) :
(i) Incised wound on right knee. Size: 1/2" x 1/4" x 1/4" blood hunt obliquely. Advised xray.
(ii) Incised wound on left upper leg. Size: 2" x 1/4" x 1/4" blood hunt obliquely. Advised xray.
(iii) Incised wound on left eye frame. Size: 1/4" x 1/4" x 1/4".
(iv) Incised wound on left cheek. Size: 1/2" x 1/4" x 1/4" blood hunt. Advised xray.
(v) Contusion on back of forechest from right half. Size: 4" x 2". Radish. Advised xray.
(vi) Abrasion on back of right upper chest. Size: 3" x 1/2". Advised xray.
20. According to Doctor R.K. Jain (PW 7) injury Nos. 1 to 4 were caused by hard and sharp object while injury Nos. 5 and 6 were caused by hard and blunt object. Injury No. 3 was simple in nature. However injured Man Singh was referred for Xray of injury Nos. 1,2,4,5 and 6. Doctor R.K. Jain (PW 7) has opined that injury Nos. 1 to 4 may be received on fall from some height on stone. Xray of Man Singh was carried out by Doctor Sitaram Singh (P.W. 6). He found crack fracture of III rib of right side of chest. No bony injury was found in right knee, left upper leg and left cheek.
21. There is no convincing evidence on record to show that injury Nos. 1 to 4 found on the person of Man Singh were caused by the appellant, Naresh by hard and sharp object as he was having lathi (hard & blunt object) with him at the time of occurrence and caused injuries to the Man Singh by that hard and blunt object i.e. lathi, therefore, we are of the considered view that learned Trial Court has wrongly convicted appellant, Naresh u/s 324/34 of IPC. However, learned Trial Court has rightly convicted him for causing grievous injury by means of lathi to Man Singh.
22. Resultantly, the appeal filled on behalf of appellant No. 2, Kalla is allowed. His conviction under Sections 302/34, 325/34 and 324/34 of the IPC is hereby set aside and he is acquitted from these charges. He is on bail and his bail bonds stand discharged.
23. The appeal filled on behalf of appellant No. 1, Naresh is allowed in part. His conviction and sentence u/s 324/34 of the IPC is hereby set aside. However his conviction under Sections 302/34 and 325/34 of the IPC is hereby altered to Sections 304 Part II and 325 of the IPC respectively, and he is directed to suffer five years R.I. and fine of Rs. 5,000/( Rupees five thousand only) and in default of payment of fine, further rigorous imprisonment for six months for the offence u/s 304 Part II of the IPC and one year rigorous imprisonment with fine of Rs. 2,000/( Rupees two thousand only), in default of payment of fine, further rigorous imprisonment for three months for the offence u/s 325 of IPC. The substantive part of sentence shall run concurrently.
24. The amount of fine, if not already deposited, be deposited within a period of two months from today and on realisation of the aforesaid fined amount, Rs. 2,000/( Rupees two thousand only) to be paid to the injured Man Singh.
25. The appellant No. 1 Naresh is on bail and his bail bonds stand cancelled after he offers his surrender before the learned Trial Court on or before 01/5/2012, failing which learned Trial Court on 01/5/2012 shall issue arrest warrant against this appellant No. 1, Naresh and shall also initiate proceedings and pass necessary orders against his surety. Learned Trial Court is directed to take appellant No. 1 Naresh into custody if he has not served out aforesaid sentence awarded by this Court, to serve out the remainder of the sentence. Consequently, the appeal stands allowed in part to the extent indicated hereinabove.
