Madhya Pradesh High Court
Sanjay Kumar & Ors. vs The State Of Mp on 17 January, 2012
Author: Rakesh Saksena
Bench: M.A. Siddiqui, Rakesh Saksena
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.698/1994
1. Sanjay Kumar, s/o late Maruti
Ouike, aged 27 years, r/o Railway
Quarter No.141/4, Shahdol, M.P.
2. Dipak Kumar @ Munda, s/o late
Maruti Ouike, aged 19 years, Student,
resident of Railway Colony, Shahdol,
M.P.
3. Santosh Kumar @ Gudda, s/o
Dhanpat Rajak, aged about 22 years,
Security Guard, R/o Qr. No.141/2,
Railway Colony, Shahdol, M.P.
Versus
The State of Madhya Pradesh, through
G.R. Police, Shahdol, M.P.
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For the Appellant: Shri V.K. Lakhera, Advocate.
For the Respondent: Shri Amit Pandey, Panel Lawyer.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE M.A. SIDDIQUI
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Date of hearing: 17/01/2012
Date of Judgment: 17/01/2012
JUDGMENT
Per: Rakesh Saksena, J.
1. Appellants have filed this appeal against the judgment dated 30.6.1994, passed by First Additional Sessions Judge, Shahdol, in Sessions Trial No.104/1993, convicting appellant No.2 Dipak Kumar @ Munda under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.100 and convicting appellant No.1 Sanjay Kumar and appellant No.3 Santosh Kumar @ Gudda under Section 326/34 of the Indian Penal Code and 2 sentencing them to rigorous imprisonment for three years with fine of Rs.100/- to each of them.
2. In short, the prosecution case is that on 25.3.1993, in Railway Colony, Shahdol, when Suresh, the deceased, had been sitting at his bakery shop, accused Sanjay reached there. When Suresh demanded Rs.500/- from Sanjay, which were due on him, there occurred an altercation. Sanjay went away. However, after sometime, at about 7.00 pm, he came back with his brothers Dipak and Santosh Kumar. While Suresh was standing in front of his shop, Sanjay dealt a blow with a hockey on his back and accused Dipak dealt blows with a Gupti in his abdomen. All the three accused persons then dragged and dropped him in a drain and ran away. He managed to come back near his shop and fell down unconscious. His brother Shanker, sister and mother lifted him and took him inside the shop. They wrapped clothes around his injuries and took him to hospital. However, he died. Shanker (PW-1) went to Police Kotwali and lodged first information report (Ex.P/1). Investigating officer inspected the dead body and conducted inquest proceedings. He prepared inquest memorandum (Ex.P/3). The dead body of Suresh was referred for postmortem examination.
3. Dr. M.D. Shukla (PW-5) conducted postmortem examination of the body of Suresh and found six incised injuries on various parts of his body. In his opinion, the cause of his death was excessive bleeding and the injuries to vital organs.
4. During investigation accused persons were arrested. Weapons and blood stained clothes were recovered and seized from their possession. After completion of investigation, charge sheet was filed in the court of CJM, Shahdol who committed the case to sessions court for trial.
5. All the accused persons were charged under Section 302 and 302/34 of 3 the Indian Penal Code. They abjured their guilt and pleaded false implication. However, no specific plea in their defence was put forth by them.
6. Prosecution, to support its case in the trial, examined 18 witnesses. Most of the witnesses did not support the prosecution case. However, relying mainly on the evidence of eyewitness Shanker (PW-1) and the medical evidence of Dr. M.D. Shukla (PW-5), learned Additional Sessions Judge held accused Dipak Kumar guilty of the charge under Section 302 of the Indian Penal Code and convicted and sentenced him accordingly. Finding the evidence insufficient for convicting accused Sanjay and Santosh Kumar under Section 302/34 of the Indian Penal Code, learned Additional Sessions Judge acquitted them of that charge. However, finding enough evidence to establish charge under Section 326/34 of the Indian Penal Code he convicted and sentenced them accordingly. Aggrieved by the impugned judgment of conviction and sentence, accused/appellants have filed this appeal.
7. Learned counsel for the appellants submitted that the trial court misappreciated the evidence of eyewitness Shanker (PW-1), who happened to be a younger brother of deceased and a child of about 12 years of age. Since other witnesses did not support the prosecution case, appellants were entitled to be acquitted. He further submitted that the conviction of appellants Sanjay and Santosh Kumar under Section 326/34 of the Indian Penal Code was not justified in view of the medical evidence of Dr. M.D. Shukla (PW-5), who, on postmortem examination of the body of deceased, found no injury on his body caused by hard and blunt object. According to him, the evidence of sole eyewitness Shanker (PW-1) was belied by the medical evidence. In alternative, learned counsel for the appellants submitted that appellants Sanjay and Santosh were young boys at the time of occurrence, which took place in the year 1993. In the facts and circumstances of the case, their jail sentences 4 deserved to be reduced. On the other hand, learned counsel for the State submitted that the evidence of Shanker (PW-1) was cogent, consistent and reliable. It was corroborated by the other circumstances proved, and further by the medical evidence of Dr.M.D. Shukla (PW-5). He justified the conviction of accused/appellants and supported the impugned judgment.
8. From the evidence of Shanti Rajak (PW-2), Raju (PW-3) and Deepak Kumar Rajak (PW-4) it is clearly established that Suresh Kumar had died due to injuries. Their evidence stood corroborated from the inquest memorandum (Ex.P/3) drawn by K.P. Shukla (PW-12) in presence of the aforesaid witnesses. On examination of the body of deceased by witnesses, many injuries by sharp and pointed weapon were found by them on his body. The fact that he died because of the injuries was mentioned in the first information report (Ex.P/1). The fact that he died a homicidal death is also established by the evidence of Dr.M.D. Shukla (PW-5), who conducted autopsy of the body. According to Dr.Shukla (PW-5), he found following injuries on the body of deceased:-
"1. Incised wound 6 cm x 4 cm deep into cavity near right armpit.
2. Penetrating wound 2 cm x 1 cm x cavity deep near 10th rib.
3. Penetrating wound 2 cm x 1 cm x cavity deep near 7th rib. It had pierced spleen.
4. Penetrating wound 2 cm x 1 cm x abdominal cavity deep on left side near 9th rib, on mid axillary line.
5. Incised wound 3 cm x 1 cm x deep up to brain over vertex, on back side of head.
6. Penetrating wound 3 cm x 1 cm on iliac spine of spinal bone. All the aforesaid injuries were ante-mortem and homicidal in nature. On internal examination liver and spleen were found cut. All the injuries had been caused by sharp and pointed weapon. The death of deceased had been caused due to shock resulted from excessive haemorrhage from the injuries. The postmortem examination report (Ex.P/11) was written and signed by him. From the above evidence, it is clearly established that the deceased died a 5 homicidal death.
9. Shanker (PW-1), a young boy of about 12 years of age, who happened to be the real brother of deceased, deposed that at about 7.00 O'clock in the evening, when he was present in front of his bakery shop, all the three accused persons came to his shop and called Suresh out of the shop. They talked about some transaction of money. In the meanwhile, suddenly, accused Dipak dealt a blow of Gupti in the abdomen of Suresh. He dealt further 5-6 blows of Gupti to Suresh. Accused Sanjay and Santosh assaulted Suresh with Lathi and hockey. They dragged him and dropped in a drain. When Suresh shouted, his mother, who was inside the house near the bakery shop, came out. Other persons also assembled there. By that time, accused persons ran away. Suresh came out of the drain and fell near the garbage. He, his mother and two servants lifted Suresh and took him inside the bakery and wrapped clothes on his wounds. He took Suresh to hospital, but he died. He and his mother went to police station and lodged a report (Ex.P/1).
10. It is true that at the time of incident Shanker (PW-1) was a young boy of about 12 years of age, but he was subjected to a lengthy and rigorous cross-examination, which he faced firmly and remained undeviated. His presence at the spot cannot be doubted. He was present at the bakery shop since before the occurrence. He categorically stated that when his brother was assaulted, he was standing at the door of the shop. The evidence of this witness stood corroborated by the first information report (Ex.P/1) lodged by him soon after the occurrence. The names of all the accused persons were mentioned by him in the said report. It was clearly stated in the FIR that accused Dipak assaulted deceased with Gupti. The evidence of Shanker (PW-1) stood further corroborated by the evidence of Dr. M.D. Shukla (PW-5), who found six penetrating injuries on the body of deceased. 6
11. Though Shanti Rajak (PW-2), mother of deceased, stated that when she reached, deceased told to her that Munda (Dipak), Sanjay and Santosh assaulted him, but her evidence about this oral dying declaration was disbelieved because no injuries caused by hard and blunt object were found on the body of deceased on postmortem examination. In our opinion, trial court committed error in doing so because Shanti Rajak (PW-2) did not say as to with which weapon accused persons assaulted deceased. She merely stated that deceased told to her that the aforesaid three accused persons assaulted him. Thus, the evidence of Shanti Rajak about the oral dying declaration made by the deceased to her was reliable and it furnished corroboration to the evidence of Shanker (PW-1). The evidence of Raju (PW-3), younger brother of deceased, appears to be hearsay in nature since he named the appellants on the basis of information furnished to him by his mother. Shanti Rajak (PW-2), however, did not say that she told to him that Dipak, Sanjay and Santosh assaulted the deceased.
12. On a close appraisal of the evidence of Shanker (PW-1) we find that his evidence was cogent, consistent and reliable. He did not appear to be a tutored witness. His evidence was natural and spontaneous. In our opinion, the trial court committed no error in placing reliance on his evidence.
13. From the evidence of Dr. M.D. Shukla (PW-5), it was clearly established that the injuries found on the body of deceased were sufficient in ordinary course of nature to cause his death. It was established by the evidence of Shanker (PW-1) that accused Dipak caused those injuries to deceased with a Gupti. Thus, trial court committed no mistake in holding accused Dipak Guilty of commission of offence u/s 302 of the Indian Penal Code.
14. As far as the conviction of accused/appellants Sanjay Kumar and Santosh Kumar is concerned, the evidence in regard to causing of injuries by 7 them to deceased with hockey and Lathi stands belied by the evidence of Dr.M.D. Shukla (PW-5), who did not find any injury on his body caused by hard and blunt object. Therefore, in our opinion, trial court was justified in holding that they did not share the intention of accused Dipak or had common intention with him to commit murder of deceased, but, since they went at the shop of deceased with accused Dipak and quarreled with him when Dipak wielded a weapon like Gupti, it could be clearly inferred that they knew that a grievous hurt was likely to be caused to deceased with a sharp cutting and pointed weapon. The trial court rightly held them guilty of the charge under Section 326/34 of the Indian Penal Code, which could be held to be a minor offence of charge under Section 302 of the Indian Penal Code.
15. For the aforesaid reasons, we are of the opinion that the trial court rightly convicted appellant Dipak @ Munda under Section 302 of the Indian Penal Code and to appellants Sanjay and Santosh under Section 326/34 of the Indian Penal Code. Their conviction for the aforesaid charges is, therefore, affirmed.
16. As far as the question of sentence of appellants Sanjay Kumar and Santosh Kumar under Section 326/34 of the Indian Penal Code is concerned, trial court has imposed sentence of imprisonment for three years on them.
17. Learned counsel for the appellants submitted that the incident in question had occurred in the year 1993. Since then about 18 years have elapsed. At the time of occurrence, appellants were young boys of about 27 and 22 years of age. By now, both the appellants have settled in their occupations. They are looking after their families and leading peaceful life. Though it was alleged that they assaulted deceased with hockey and Lathi, but it has been found that they did not cause any injury to deceased. They have been convicted only because they accompanied accused Dipak, who assaulted 8 deceased with Gupti. In these circumstances, if the aforesaid appellants are sent back to suffer imprisonment, it shall irreparably affect their lives and career and shall serve no purpose. Appellant No.1 Sanjay has served out about one year of jail sentence and appellant No.3 Santosh has remained in custody for a period of 8 months and 10 days. Their sentence of imprisonment therefore deserved to be reduced to the period of sentence already undergone by them.
18. We find substance in the submission made by the learned counsel for the appellants. Therefore-
(a) The conviction of appellant No.2 Dipak Kumar @ Munda under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him is affirmed. His appeal is dismissed.
(b) The conviction of appellant No.1 Sanjay Kumar and appellant No.3 Santosh Kumar @ Gudda under Section 326/34 is affirmed.
However, the sentence of imprisonment of three years as awarded to them by the trial court is reduced to the period of sentence already undergone by them. Sentence of fine is, however, affirmed.
19. Appeal partly allowed.
(RAKESH SAKSENA) (M.A. SIDDIQUI)
JUDGE JUDGE
shukla
9
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Reference No.3/2010
IN REFEENCE
Received from III Additional Sessions
Judge, Satna, M.P.
Versus
Gudda @ Dwarikendra
Criminal Appeal No.2246/2010
Gudda @ Dwarikendra
Versus
State of Madhya Pradesh
Criminal Appeal No.1870/2011
State of Madhya Pradesh
Versus
Smt. Geeta Vishwakarma
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/01/2012
Hon'ble Shri Justice M.A. Siddiqui
JUDGE
__/01/2012
POST FOR /01/2012
(Rakesh Saksena)
Judge
___/01/2012