Sanju & Ors. vs The State Of M.P on 19 March, 2013

[Cites 2, Cited by 10]

Madhya Pradesh High Court

Sanju & Ors. vs The State Of M.P on 19 March, 2013

Appellants have filed this appeal against the judgment dated 26.12.1996 passed by I Additional Sessions Judge, Hoshangabad in Sessions Trial No.105/1995 convicting to appellant No.1 under section 302 of the Indian Penal Code and to 2 Cr.A.No.34/1997 appellant No.2 under section 302/34 of the Indian Penal Code and sentencing each of them to imprisonment for life.

2. Initially, this appeal was disposed of by this Court by the judgment dated 8.2.2005 by affirming the judgment of conviction passed by the trial Court. However, the Hon'ble Apex Court by order dated 5th July, 2010 passed in Criminal Appeal No.1153/2010 set aside the said judgment and remitted the matter back to this Court for fresh hearing on merits after appointing an amicus curiae or directing the Legal Aid Committee to nominate an experienced Advocate to represent the appellant. Earlier, the appeal was decided when learned counsel for the appellants did not appear to argue the matter. Presently, appellants have been represented by Shri S.K.Gangrade and Ku. Anita Kaithwas, Advocates.

3. In short, the prosecution case is that on 3.12.94 in the night around 9:30 p.m. when complainant Gulab Singh was asleep in his house in Itarsi, Bablu Shukla (PW-2) came to him and informed that his son Ajay was lying in his house in injured condition. Appellants Sanju and Sheru had assaulted him with knives. Gulab Singh (PW-1) rushed to the house of Bablu Shukla and saw his son in injured 3 Cr.A.No.34/1997 condition. Ajay told to Gulab that Sanju and Sheru had dealt knife blows to him. Complainant sent injured Ajay along with Lalji Ram (PW-6) to hospital and himself went to police station, Itarsi and lodged report Ex.P/1. It is said that Ajay was assaulted because he protested against the teasing of girls by the appellants.

4. In Itarsi hospital, Dr. A.T.Mangtani (PW-5) examined the injuries of Ajay. Ajay also told to him that Sanju and Sheru had assaulted him. Dr. Mangtani referred the injured to Surgical Specialist for treatment. On 4.12.94 i.e. on the next day, S.D.M. Itarsi viz. Madanlal Kaurav (PW-15), in the presence of Dr.Sanad Dalal (PW-14),recorded dying declaration of Ajay wherein he reiterated that appellants assaulted him with knife and Katar. Ajay was thereafter referred to Hamidia hospital, Bhopal for further treatment, but on 6.12.94 he succumbed to his injuries. Dr. D.K.Satpathi, Director Medico Legal Institute, Bhopal (PW-8) conducted autopsy of the dead body of Ajay.

5. During investigation, Investigating Officer M.S.Thakur (PW-9) prepared the spot map, arrested accused persons and seized knife and Katar from them and sent them to Forensic Science Laboratory for examination. After completion of investigation, 4 Cr.A.No.34/1997 charge sheet was filed in the Court of Magistrate and the case was thereafter committed for trial.

6. During trial, appellants abjured their guilt and pleaded false implication.

7. Learned Additional Sessions Judge after appreciating the evidence on record, held the appellants guilty, convicted and sentenced them as mentioned above. Aggrieved by their conviction and sentence, appellants have filed the present appeal.

8. Learned counsel for the appellants submitted that the evidence of eyewitnesses as well as the dying declaration allegedly recorded by S.D.M. was not reliable. It was not possible for deceased to have spoken anything in seriously injured condition. He submitted that appellant Sanju has already been released from jail after serving out his sentence. Learned trial Judge committed error in convicting appellant Sheru @ Narendra with the aid of section 34 of the Indian Penal Code merely on the ground that he held deceased at the time of occurrence. On the other hand, learned counsel for State while supporting and justifying the impugned judgment of conviction, submitted that the evidence on record was cogent, consistent and reliable.

5 Cr.A.No.34/1997

9. We have heard the learned counsel for the parties at length, perused the impugned judgment and the evidence on record carefully.

10. It has not been disputed by the appellants that deceased Ajay @ Bablu met with a homicidal death. Dr. A.T.Mangtani (PW-5) Assistant Surgeon of Itarsi hospital, deposed that on 3.12.94 Ajay @ Bablu was brought to hospital in injured condition by Lalji Ram. Lalji Ram disclosed to him that Sanju and Sheru had caused injuries to him. He also received requisition for his medical examination from police station, Itarsi. On examination, as per report Ex.P/10, he found following injuries on body of Ajay:-

(1) Incised wound 2" x 1" on abdominal cavity on left lumber region. Omentum protruding out.

(2) Incised wound 1" x 1/4" in third intercostal space muscle deep. Emphysema present.

(3) Incised wound 1¼" x 1/4" x depth not taken on right side scapular region.

(4) Incised wound 3/4" x 1/4" x bone deep on right scapular region. (5) Incised wound on right side back 1" lateral to injury no.4. (6) Incised wound 1/2" x 1/4" on left scapular region.

(7) Incised wound 1½" x 3/4" x muscle deep on right upper arm.

6 Cr.A.No.34/1997

(8) Incised wound 1½" x 1/4" x muscle deep on left forearm.

           (9)    Incised wound 3" x 1½" x muscle
           deep    on    left       upper    arm    on   posterior
           aspect.

(10) Incised wound 1/2" x 1/4" x muscle deep on left upper arm.

Injuries from 1 to 10 were caused by sharp edged weapon within 6 hours from the time of examination. Patient was in the state of semi-conscious.

Because of serious condition, Ajay was referred to Hamidia hospital, Bhopal for further treatment where on 6.12.94 he expired. Postmortem examination of the body of deceased was performed by Dr.D.K.Satpathi (PW-8) who vide his postmortem report Ex.P/15 opined that the death of deceased occurred due to shock and haemorrhage as a result of Thoracic abdominal injury. As per report Ex.P/15, he found following injuries on the body of deceased:-

(1) Stitched incised wound situated over right arm cubical fosse 4 x 5cm tranverse medially muscle deep.

         (2)      Incised          wound      (stitched)           over
         right     arm        medial        aspect       obliquely
         vertical 6 x .5cm muscle deep.
         (3)      Stab       wound    right    pectoral        region

2.5 x 1cm travel obliquely upward within the muscles for a length of 6cm.

(4) Stitched stab wound situated over right flank extending from 13cm below the axillary pit 2.5 x 1cm communicating with thoracic cavity.

7 Cr.A.No.34/1997

(5)       Abrasion           present        over           right
lateral stolid 1cm dia.
(6)       Defence incised wound present over
right    palm        upper    part       transverse        skin
deep tapering laterally.
(7)       Stitched       incised          wound        present
over    right        lumber      region      of        abdomen

starting from 8cm right to midline 5 x 1cm transverse through which loops of intestine protruding out.

(8) Stitched incised wound present over left side of abdomen extending from 5cm. left to midline vertical underneath all the layers of abdomen is stitched in layers. Another stitched wound present 2.5cm left to this stitched wound. It is 2.5 x .5cm and also communicating with abdominal wall (cavity).

(9) There is incised nick present just above left supermiliae spine. Size .5 x .1cm.

(10)      Stitched       incised         wound        situated
over      left        forearm        exterior           aspect

medially 10cm. below obesanon tip 4.5 x 1cm vertically muscle deep.

(11) Stab wound present over right back 4cm right to midline and 5cm above iliac crest medial end is broad, lateral end is sharp 2.5 x 1.5cm it has gone with the Para vertebral muscles obliquely upward medially and struck in the vertebra, total length is 8cm.

(12)      Stab       wound      situated         over      left
scapula     vertical          2.5    x     .5cm       it     has

reached upto muscle with 5cm deep. Lower end is broad.

(13) Stab wound 4cm right to midline vertical 2.5 x .5cm lower end is broad 8 Cr.A.No.34/1997 over medial aspect of scapula right. It has reached the thoracic cavity and stabs the right upper lobe and has travel within the lung for 5cm length.

(14) Stab wound present over mid of right scapula lower end is broad 2.5 x 0.5cm runs obliquely upward medially within 5cm.

(15) Stab wound present over lower end of scapula transverse medial end is broad 2.5 x .5cm. It has travel within the muscle deep for 7cm length.

       (16)       Stitched incised wound paramedial
       line       of     abdomen           it     is     20cm      long

underneath all abdominal layers stitched layer by layer.

(17) Both thoracic cavities contain blood tinged fluid about 300cc some of which is clotted along with abdominal cavity.

(18) Transverse colon repaired at three places. Small intestine is anatomized at one place. Descending colon also repaired at left iliac region.

                  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.

11. From the aforesaid evidence, we find it established that deceased died a homicidal death on account of shock and haemorrhage resulting from the 9 Cr.A.No.34/1997 injuries caused on his chest and abdomen by hard and sharp pointed object.

12. Now it has to be seen whether appellants caused injuries to deceased which resulted into his death ? In this regard, the case mainly rests on the evidence of eyewitnesses Narmada Prasad (PW-3),Ram Kumar Sharma (PW-4) and dying declaration Ex.P/19 recorded by S.D.M.Madanlal Kaurav (PW-15).

13. Narmada Prasad (PW-3) deposed that he and Ajay @ Bablu had gone to market for purchase of some articles. When they were returning, they saw appellants standing on the crossing. They came forward and appellant Sanju dealt a knife blow in the abdomen of Bablu. When he tried to repeat the assault he caught his hand whereby the blow was prevented. When Bablu begged pardon from him they started talking peacefully. Appellant Sanju then proposed to take Bablu to doctor. They went where a compounder lived but he was not found at the house. In the meantime, appellant Sanju asked him to bring his bicycle. When he came back with bicycle he saw appellant Sheru holding Bablu with his one hand and in another hand holding a Katar and appellant Sanju inflicting knife blows to him. When he tried to intervene Sanju pushed him and ran after him. Getting scared he ran away crying. He then met Gulab 10 Cr.A.No.34/1997 Singh, the father of Bablu, who asked him to bring a rickshaw. Bablu was lying in the house of Shukla saying that Sanju and Sheru assaulted him.

14. Ram Kumar Sharma (PW-4), the another eyewitness,reiterated almost the same story. He deposed that in the night at about 9 o'clock on hearing cries "Bachao Bachao" he came out of his house and saw appellant Sheru holding the hand of Ajay @ Bablu by one hand and holding a Katar in another. Appellant Sanju was inflicting knife blows to Bablu. He saw the incident in the street light in front of his house. He corroborated Narmada Prasad (PW-3) by saying that when Narmada came, Sanju and Sheru pushed Bablu over him and ran away towards the crossing. Bablu and Narmada also ran away. Subsequently he saw Bablu lying on a bed in the house of Shukla Master. Father of Bablu also reached there and called a rickshaw. With Bablu he also went to hospital. He stated that no passer-by stopped there. Though people of the neighbourhood saw the quarrel from their house but none came forward. Though he was not scared, but out of fear he did not go near the assailants to save his friend.

15. Narmada Prasad (PW-3) and Ram Kumar Sharma (PW-4) were though subjected to a lengthy cross- 11 Cr.A.No.34/1997 examination but nothing material could be brought out to discredit their testimony.

16. Matru @ Brajkishore (PW-13) though did not support the prosecution case wholly and was declared hostile still corroborated the evidence of Narmada (PW-3) by saying that in the night at about 9-9:30 when he was coming back from picture, near the crossing he saw Bablu @ Ajay, Narmada and appellants standing. They were indulging in some altercation. He saw blood oozing out from the abdomen of Bablu and appellant Sanju holding a knife in his hand. According to him, he saw nothing in the hand of another appellant and also did not see as to who caused injuries to Bablu. He stated that when he reached his house he heard the noise of quarrel between appellants and Ajay and also the shrieks of Ajay. In cross-examination, when this witness was confronted with his police statement Ex.P/10 he admitted that he disclosed to police that Sanju dealt a blow of knife in the abdomen of Bablu.

17. Gulab Singh (PW-1), the father of deceased, deposed that in the night at about 9-10:00 p.m. Bablu Shukla (Sunil) came to his house and informed that his son Ajay was lying in his house soiled in blood. He reached the house of Bablu Shukla and saw his son injured. There were number of injuries on 12 Cr.A.No.34/1997 his body. On his asking,his son told that appellants Sanju and Sheru assaulted him with Chhuri and Gupti. He and Lalji Ram then carried Ajay to Jan Sewa hospital, Itarsi. The doctors refused to provide treatment in the absence of police report. He then went to police station, Itarsi and lodged report Ex.P/1. For further treatment, on the advice of doctors, he took Ajay to Hamidia hospital, Bhopal where on 6.12.94 he died.

18. The evidence of Gulab (PW-1) comes in the category of oral dying declaration since he categorically stated that deceased told to him that Sanju dealt knife blows in his abdomen and that appellant Sheru also gave blows to him. According to Gulab, though Bablu Shukla (Sunil-PW-2) was also present there, but Sunil stated that deceased did not tell anything to him. He, however, admitted that on asking of his father he went to the house of Gulab Singh and called him to his house and that Gulab Singh immediately thereafter reached his house. Evidence of Gulab Singh however finds support from the evidence of Lalji Ram (PW-6) who also reached at the house of Shuklaji. When he went in his house and asked from deceased, he told to him that Sanju and Sheru assaulted him with Katar etc. He then arranged for a rickshaw and along with Gulab 13 Cr.A.No.34/1997 Singh carried Bablu to hospital. This witness remained firm in stating that Bablu told to him that Sanju and Sheru caused injuries to him with Katar etc. His evidence finds further corroboration from the evidence of Dr. A.T.Mangtani (PW-5) who deposed that when Lalji Ram brought injured to him he informed him that injured had told to him that Sanju and Sheru had caused injuries to him.

19. Apart from the above evidence, prosecution also examined S.D.M.Madanlal Kaurav (PW-15) to prove dying declaration Ex.P/19 recorded by him. S.D.M. (PW-15) deposed that on receiving information from police station for recording dying declaration of Ajay, son of Gulab Singh, on 4.12.94 he went to Jan Sewa hospital, Itarsi and at 10:40 a.m. recorded dying declaration of Ajay. He obtained certificate from doctor about the fitness and mental condition of Ajay before recording his statement. Deceased stated that "in the last night at about 8 o'clock just ahead of Panja Chowraha Sanjay Gadwal and Sheru Goswami dealt Katar blows in his abdomen. They also had a six round (pistol) which also they took out. He was coming after taking goods from the shop. Both the assailants lived near his house. Narmada saw them assaulting. Father's name of Narmada is Devlal. Lalji Badkur had brought him to hospital. He had no 14 Cr.A.No.34/1997 quarrel with them; they used to do Rangbaji (teasing girls) because of which quarrel occurred. No more he has to say." Since there were injuries on the hands of Ajay, he obtained his left hand thumb impression on Ex.P/19.

20. Learned counsel for the appellants submitted that the said dying declaration was not reliable. No separate certificate about the fitness of deceased was taken before recording his dying declaration. We are unable to accept the submission made by learned counsel for the appellants for the reason that the certificate given by Dr. Sanad Dalal is endorsed on the dying declaration Ex.P/19 itself. Dr. Dalal (PW-14) deposed that on 4.12.94 he was posted as Surgical Specialist in Jan Sewa hospital, Itarsi. At 10:40 a.m. S.D.M. Itarsi had recorded dying declaration of Ajay. At that time he was on the round and he had endorsed the certificate on Ex.P/19 that during recording of the dying declaration patient had remained conscious. It is true that Dr. Dalal admitted that the certificate was not given before recording the statement but he endorsed the certificate when recording of the statement was completed. Dr. Dalal clarified that though the condition of patient was delicate but it did not mean that he was not in a position to talk. 15 Cr.A.No.34/1997 The delicacy of the condition was recorded by him before the patient was sent for operation. This was for obtaining the consent before administering anesthesia to patient. Learned counsel for the appellants referring to the evidence of Dr. A.T. Mangtani (PW-5) submitted that at the time of examination by him deceased was semi-conscious and was not answering the questions effectively because of shock, therefore, it was suspicious that his dying declaration could be recorded by S.D.M. (PW-15). We find no substance in the aforesaid submission. The condition of patient just after 5-6 hours of the occurrence may be different then the condition after administering treatment to him. The condition noted by Dr. Mangtani pertained to the time just after the occurrence on 3.12.94 whereas the dying declaration Ex.P/19 was recorded by S.D.M. on 4.12.94. Apart from it, S.D.M. (PW-15) and Dr.Sanad Dalal (PW-14) are not alleged to have any animus against the appellants for which they would have created false declaration against them.

21. After scanning and critically analysing the evidence of eyewitnesses, the oral dying declaration and dying declaration Ex.P/19 recorded by S.D.M. (PW-15), we find them to be cogent, consistent and reliable, as such we hold that the trial Court 16 Cr.A.No.34/1997 committed no error in appreciating the aforesaid evidence and holding that appellants caused injuries to deceased with knife and Katar which resulted into his death.

22. Learned counsel for the appellants contended that since the eyewitnesses did not say that appellant Sheru @ Narendra dealt any blow with Katar to deceased, his conviction with the aid of section 34 of the Indian Penal Code was not justified. We have already discussed that Narmada (PW-3) and Ram Kumar (PW-4) proved that both the appellants participated in the incident together, armed with knife and Katar and that while appellant Sanju dealt blows with knife to deceased, appellant Sheru kept on holding him armed with a Katar facilitating Sanju to inflict injuries to deceased. Apart from it, oral dying declarations made by deceased to Gulab Singh (PW-1) and Lalji Ram (PW-6) and the dying declaration Ex.P/19 recorded by S.D.M. (PW-15), it clearly stood established that both the appellants caused injuries to deceased in furtherance of their common intention to cause death of deceased. In our considered opinion, learned trial Judge rightly convicted appellant Sheru @ Narmada under section 302/34 of I.P.C. 17 Cr.A.No.34/1997

23. From the evidence of Dr.Mangtani (PW-5), who examined the injuries of deceased, while he was alive and from the evidence of Dr.D.K.Satpathi (PW-8) who conducted autopsy of the body of deceased, it is apparent that at least 10 injuries were caused on the body of deceased by sharp and pointed weapon. Injuries were also caused on the vital parts of the body of deceased. Thus, in our opinion, it stood established that both the appellants assaulted deceased with knife with the intention of committing his murder.

24. For the aforesaid reasons, the conviction of appellant No.1 Sanju under section 302 of I.P.C. and the conviction of appellant No.2 Sheru @ Narendra under section 302/34 of I.P.C. and the sentence of imprisonment for life awarded to them by the trial Court is affirmed.

25. Appeal being devoid of merits, is dismissed.




            (Rakesh Saksena)                          (Smt. Vimla Jain)
                 Judge                                     Judge


b
 18   Cr.A.No.34/1997

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