Madhya Pradesh High Court
Prabhunarayan @ Tingu vs The State Of M.P. on 2 May, 2017
Author: J. P. Gupta
Bench: J. P. Gupta
CRA-372-1994
(PRABHUNARAYAN @ TINGU Vs THE STATE OF M.P.)
HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT
JABALPUR
Cr.A. No.372/1994
Prabhunarayan @ Tingu
Vs.
The State of M.P.
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Coram
Honâble Shri Justice Hemant Gupta, Chief Justice
Honâble Shri Justice J.P.Gupta, J.
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Shri Sankalp Kochar, Advocate for the appellant.
Shri Akshay Namdeo, Public Prosecutor for the
respondent /State.
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JUDGMENT
{ .May, 2017 } Per J. P. Gupta, J :
This criminal appeal has been filed assailing the impugned judgment dated 18.3.1994 passed by Vth Additional Sessions Judge, Sagar, in Sessions Trial No.59/1992 whereby the appellant has been convicted under section 302 of the I.P.C. and sentenced to undergo life imprisonment and fine of Rs.5000/-; in default of payment of fine S.I for four months.
2. The case of the prosecution, in brief, is that shops of Rajesh Kumar and Pramod Kumar (acquitted co-accused) were situated side by side. On the date of incident i.e. 27/12/1991 in night at about 9.00 pm when Rajesh Kumar and his brother Sanjay were on shop then on some point, a dispute arose between Pramod Jain and Rajesh Kumar and they both abused each other and appellant/accused Prabhunarayan @ Tingu armed with katar entered into the shop of Rajesh Kumar and assaulted Sanjay with katar on his stomach and when injured Sanjay made hue and cry, the appellant / accused abused and threatened to kill him and again assaulted him but Rajesh stopped the appellant / accused by holding his hand then appellant / accused ran away from the spot. The incident was reported to the concerned police station by the complainant Rajesh. Thereafter, injured Sanjay was sent for treatment to the District Hospital, Sagar, where Dr. R.C. Agrawal (PW-10) recorded dying declaration of Sanjay (Ex.P-19) and on 09/01/1992 the treating doctor referred him to Choithram Hospital, Indore and on 29/12/1991 A. S. Pawar, Executive Magistrate (PW-17) recorded dying declaration of Sanjay (Ex.P-36). Appellant/accused Prabhunarayan @ Tingu was arrest on 29/12/1991 and arrest memo (Ex P-7) was prepared. On the instance of information given by him, blood stained katar was recovered as per memo Ex.P-2 and seizure memo Ex.P-3 and co-accused Pramod Kumar was also arrested on the same date and the blood stained clothes of injured Sanjay were seized. The katar seized from the possession of the appellant/accused Prabhunarayan @ Tingu and the clothes of Sanjay were sent to the FSL and on them, presence of human blood stains was confirmed as per the FSL Report Ex.P-35. During treatment on 12/01/1992 injured Sanjay succumbed to the injury sustained in the incident. Thereafter, on 12/01/1992 Postmortem of the deceased was conducted, the report of autopsy is Exhibit P-32.
3. After completion of investigation, a charge-sheet was filed against appellant and other co-accused Pramod Kumar before the court of JMFC, Sagar who committed the case to the court of Sessions, Sagar and transferred to Vth Additional Sessions Judge, Sagar where charges were imposed for commission of the offence under sections 114 read with section 302 of the I.P.C. against other co-accused Pramod Kumar and under sections 449 and 302 of the IPC against the appellant/accused and recorded the plea of the accused persons and they abjured their guilt and claimed for trial and stated that they are innocent.
4. Learned Trial court after trial, acquitted co-accused Pramod of the charges under sections 114 and 302 of the IPC but the appellant has been convicted under section 302 of the IPC and sentenced as mentioned above. Hence this appeal.
5. The judgment of the conviction and sentence has been assailed on the ground that the findings of the learned lower court are contrary to law. The findings are mainly based on the statement of the deceased's brother Rakesh Kumar (PW-11), whose statement is not reliable being brother of the deceased and he tried to implicate the appellant falsely as this witness had inimical terms on account of business rivalry with co-accused Pramod Kumar and two dying declarations of the deceased are contradictory to each other and also in consonance with the statement of Rajesh Kumar (PW-11). The FIR is also false and antedated. It is further contended that death of the deceased was taken place after 15 days of the incident. From the record, it does not establish that the appellant had intention to cause death of the deceased hardly offence under section 326 of IPC is made out. Therefore, the impugned judgment is wholly illegal, unjust and perverse. Learned Trial court has not appreciated the evidence on record in its proper prospective, resulting in erroneous conclusion. Hence the appeal be allowed and appellant/accused be acquitted of the charges.
6. Learned Public Prosecutor appearing for the State has opposed all the above grounds and supported the findings of the learned Trial court and prayed for rejection of the appeal.
7. Having considered the contentions advanced by learned counsel for the parties and on perusal of record, first of all it is to be seen that whether the nature of death of the deceased was homicidal. On behalf of the appellant this fact has not been assailed very seriously. In order to prove the aforesaid fact, Dr. Shailendra Shukla (PW-7) has stated in his statement that on 27/12/1991 near about 9.30 pm one Police Constable, Police Station Kotwali, Sagar brought injured Sanjay for medical examination and he was admitted in the hospital. Laljeet, Police Constable (PW-4) who took injured Sanjay in the hospital also stated same thing. Dr. Shailendra Shukla has further stated that on examination, on stomach, left side of lumber region one stab wound was found. The injury was fresh and caused within 2 hours with hard and penetrating object and nature of injury could be decided after the examination of Surgical Specialist and general condition was very serious as per Ex.P-11. The papers relating to admission and treatment are Ex.P-12 to Ex.P-14.
8. Dr. R. C. Agrawal (PW-10) has stated that on 27/12/1991, he operated Sanjay (deceased) near about 11.30 pm. His general condition was serious. Relating to his further treatment, relevant papers are Ex.P-11 to Ex.P-25. According to him, injury sustained by Sanjay (deceased) was dangerous to life and grievous in nature. This opinion was recorded by him on his report Ex.P-26 on the query made by the Investigating Officer.
9. Dr. Chandra Shekhar Chimaniya, Senior Surgeon (PW-13) has stated in his statement that on 10/01/1992 Sanjay was referred to Choithram Hospital, Indore, where he saw the patient, his stomach was operated earlier by repairing intestine, but his condition was not good, therefore, he was referred to Choithram Hospital, Indore. During the treatment on 12/01/1992 Sanjay died as he was suffering from septicemia on account of the injury sustained to him. The papers relating to his treatment are Ex.P-28 to Ex.P-31.
10. Dr. Ravindra Choudhary (PW-14), who conducted the autopsy on the dead body of Sanjay (deceased) has stated that the operated wound was found on the stomach of the deceased and death was taken place on account of injuries sustained by him and its' further complication resulted into cardio respiratory failure and the injuries were ante- mortem and on account of injury there was possibility to cause death in ordinary course of the nature. As the injury was operated, therefore, it was not possible to give any opinion with regard to the use of weapon. The aforesaid evidences of the medical experts were unimpeachable during the cross-examination. Their veracity was not challenged during the cross-examination. In the aforesaid circumstances, it is held that the death of deceased Sanjay was taken place on account of the injury sustained by him on his stomach on 27/12/1991. Therefore, death was not accidental, suicidal or natural. Its' nature was homicidal. Therefore, in this regard, finding of the learned trial court is confirmed.
11. Now the question is that whether the appellant/accused intentionally or knowingly caused aforesaid injury to Sanjay (deceased) with sharp penetrating object with a view to cause his death.
12. In order to prove the aforesaid fact, the prosecution case is based on the statement of eyewitness Rajesh Kumar Jain (PW-11), who is brother of Sanjay (deceased) and two Dying Declarations, Ex.P-19 recorded by Dr. R.C. Agrawal (PW-10) and Ex.P-36 recorded by the Executive Magistrate A.S. Pawar (PW-17) and oral dying declaration of Rakesh Kumar (PW-3) another brother of Sanjay (deceased). Learned Trial court has discarded statement of Rakesh Kumar (PW-3) giving details and relevant reasons in para 23, 24, and 25 of the judgment as his statement is inconsistent with the dying declaration Ex.P-19 recorded by Dr. R.C. Agrawal (PW-10) and his statement under section 161 of the Cr.P.C. was also recorded after 16 days of the incident without giving any explanation of the delay. In our view, the learned trial court in the aforesaid circumstances has rightly discarded the statement of Rakesh Kumar (PW-3) being a close relative of the deceased.
13. As per the dying declaration Ex.P/19, the deceased had not declared name of the appellant while the witness has claimed that the deceased declared him name of the appellant before operation in the hospital on 27.12.1991. Apart from it, so far other evidence is concerned, the trial court has found the same reliable. In view of this Court, in doing so learned trial court has not committed any error as Rajesh Kumar Jain (PW-11) has categorically stated that on 27/12/1991 near about 9 pm he and his brother Sanjay (deceased) were on the clothe shop and at that time appellant / accused Prabhunarayan @ Tingu entered in the shop and assaulted his brother Sanjay (deceased) with âkatarâ on his stomach and also tried to assault again then he caught hold of his hand and thereafter appellant/accused ran away. Thereafter, he put his injured brother Sanjay in an auto and some policemen taken injured Sanjay to hospital and lodged report Ex.P-10 in Police Station Kotwali Sagar. He further stated that his shop is near City Kotwali and distance is not more than 10 feet where a number of policemen used to sit outside the police station.
14. Dr. R.C. Agrawal (PW-10) has stated that on 27/12/1991 because he was going to operate the patient Sanjay, therefore, he took his dying declaration as he was in fit condition to give his statement and at 11.15 pm he took statement of the patient Sanjay, which is Ex. P-19. As per Dying Declaration (Ex.P-19), which is short statement, in which, it is stated that a small boy came to his shop and assaulted him with âknifeâ. He was not acquainted with his name but he could recognize him in person. Thereafter, on 29/12/1991 A.S. Pawar, Executive Magistrate (PW-17) recorded statement of Sanjay (deceased), which is Ex.P-36. He has stated that during the statement the deceased was conscious and was in a position to give his statement and the same fact has been certified by the treating doctor. In Dying Declaration (Ex.P-36) it has been stated that on the date of incident one boy came to his shop and putting âChhuraâ on the neck of his brother, said that if he makes any quarrel with Pramod (acquitted co-accused) then he will be murdered by him and when he intervened then he started abusing then he assaulted his brother but he escaped, thereafter he assaulted on his stomach with âChhuraâ then he straightaway ran to the City Kotwali, where he narrated the incident to the In-charge Police Officer and thereafter 2-3 policemen brought appellant/accused, who was person of small height, fair colour, strong get-up and his name is Prabhunarayan @ Tingu. D. N. Mishra, Sub Inspector, Kotwali, Sagar (PW-6) has stated that on 27/12/1991 on the instance of Rajesh Kumar, he recorded FIR (Ex.P-10). Constable, Laljeet (PW-4) stated that on 27/12/1991 near about 9.30 pm he took injured Sanjay to the hospital. He has also stated that at that time Sanjay was talking to the Police Inspector J.R Lokhare (PW-16). J.R Lokhare (PW-16) has stated that on 27/12/1991 he started the investigation of the crime and recorded statement of the complainant and injured Sanjay. Thereafter on 28/12/1991 inspected on the site of the crime and also took statement of the other witnesses and on 29/12/1991 appellant/accused was arrested as per Arrest Memo Ex.P-1 and on the basis of his information one âkatarâ which was hidden underneath the stone was recovered and Information memo Ex.P-2 and Seizure memo Ex.P-3 were prepared. He further stated that on 29/12/1991 he made request to the Tehsildar Sagar for taking dying declaration of injured Sanjay. He further stated that on 01/01/1992 on presentation of Rakesh (PW-10), brother of deceased Sanjay, blood stained clothes of injured Sanjay were seized and seizure memo Ex.P-5 was prepared and all seized articles were sent to the FSL Sagar as per letter of the S.P, Sagar Ex.P-34 and the report of the FSL is Ex.P-35. According to the FSL report, blood stained found on the Katar and the clothes and cut mark found on the shirt and the baniyan which could have been caused by the Katar.
15. On behalf of the appellant, it is contended that the statement of deceased brother Rajesh Kumar Jain (PW-11) is also not trust worthy. His statement is contradictory with the dying declaration of the deceased and also found to be unreliable with regard to implication of co-accused Pramod in the incident and the two dying declaration of the deceased are also contradictory. The FIR is also false and antedated as no compliance of section 157 of the Cr.PC has been proved. Hence it cannot be held beyond reasonable doubt that appellant/accused was the author of the incident.
16. The contention of the learned counsel for the appellant has no substance. On perusal of the statement of the witnesses and dying declarations we failed to find out material contradictions in the statement of the eye witness Rajesh Kumar Jain (PW-11) and two Dying Declarations (Ex.P-19 and Ex.P-36). Rajesh Kumar Jain (PW-11) in his statement categorically stated that the aforesaid injury to the deceased Sanjay was attributed to the appellant/accused by sharp object using words âknifeâ in the FIR and later on saying âkatarâ is immaterial as the object is of the same nature. His statement has got corroboration from the FIR (Ex.P-10). The FIR has been lodged immediately and investigation has also started immediately. In such circumstances, it cannot be said that FIR is not reliable or it is antedated. However, compliance of section 157 of the Cr.P.C with regard to sending the copy of the FIR to concerned Magistrate immediately has not been proved beyond reasonable doubt. As in this regard, the statement of the Constable Dwarika Prasad (PW-5) is doubtful as on the receipt (Ex.P-5) date is mentioned 30/12/1991 while he has stated that he submitted intimation report on 28/12/1991 and the concerned Clerk of the Court, Govind Prasad Dubey (DW-3) has denied the fact that he received the intimation of FIR (Ex.P-9), but only on the aforesaid ground, it cannot be held that the FIR is antedated or recorded after thought in view of the other circumstances as mentioned earlier.
17. The statement of eye witness Rajesh Kumar Jain (PW-11) cannot be said to be contradictory or inconsistent with the two dying declarations (Ex.P-19 & Ex.P-36). Ex.P-19 is very short statement of deceased Sanjay and he has not named appellant/accused in the statement and even later on 29/12/1991 in Ex.P-36 also, he has not claimed that he knows the name of the accused at the time of incident. If whole statement to be read with cautiously then it is clear that on the information given by other persons he has narrated the name of the appellant/accused but he also categorically discloses the get-up of the culprit and according to the opinion of the trial court, get-up of the appellant/accused matched with the description given by the deceased in his statement. As Sanjay (deceased) was not aware about name of the appellant/accused he did not disclose the name of the appellant/accused but Rajesh Kumar Jain (PW-11) knew the accused with the name also so he mentioned the appellant -accused's name in the FIR and during the cross examination of this witness, it is not suggested that the witness was not acquainted with the name of the appellant/accused.
18. So far other part of the dying declaration (Ex.P-36) is concerned, which is related to caught holding of the appellant/accused or further activities of him about which Rajesh Kumar Jain (PW-11) has expressed his ignorance. This part of statement be considered to be contradictory or inconsistency with the statement of Rajesh Kumar Jain (PW-11) and dying declaration (Ex.P-36) with regard to substantial part of the incident. In the other words, there is no material contradiction or inconsistency in the aforesaid evidence.
19. The other contention with regard to discarding the evidence of Rajesh Kumar Jain (PW-11) is that learned trial court has discarded his statement and acquitted co- accused Pramod and State has not made any appeal with regard to acquittal of the co-accused Pramod. In such circumstances, the statement of Rajesh Kumar Jain (PW-11) cannot be relied against other co-accused as his testimony is held doubtful. This contention also legally unacceptable as in India falsus in uno, falsus in omnibus (false in one point, false on all points) is not applicable as one hardly comes across a witness whose evidence does not contain a grain of untruth, or at any rate some exaggeration, embroideries and embellishment. Therefore it is duty of the court to make exercise to extract the truth. (See Gurucharan Singh Vs. State of Punjab, AIR 1956 SC 460, State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 & Masalti Vs. State of U.P. AIR 1965 SC 202).
20. In the present case, in view of all evidence available on record, the statement of eye witness Rajesh Kumar Jain (PW-11) is believable with regard to appellant/accused even though his statement with regard to other co-accused Pramod was found inconsistent or doubtful. Further, there is no reason to falsely implicate the appellant/accused in the case and the evidence of eye witness Rajesh Kumar Jain (PW-11) is corroborated by the medical evidence and also further corroborated by the FSL report (Ex.P-35). Therefore, the evidence is trust worthy.
21. In view of the aforesaid discussion, we have no hesitation to hold that the injury on account of which deceased Sanjay succumbed was attributable to the appellant/accused. Now further it is seen that whether the injury was caused by the appellant/accused with intention to cause death of the deceased or to cause such injury as is likely to cause death or with the knowledge that by such act to cause death. On considering the aforesaid reliable evidence, it is clear that the appellant did not make the assault with the intention of causing death of the deceased. After acquittal of co-accused Pramod motive of the incident is also remained unproved. The nature of the weapon, injury place on the body and nature of the injury makes it clear that he had no intention to cause such bodily injury which he knows to be likely to cause death. Therefore, he is liable to be culpable homicide of the deceased.
22. Now further question arises whether appellant/accused is liable to commit murder or a culpable homicide not amounting to murder. In this regard, learned counsel for the appellant placed reliance on the judgment of Vijay Ramkrishan Gaikwad Vs. State of Maharashtra (2012) 11 SCC 592 relevant para are 8 and 9 as under:-
8. Having said that and keeping in view the fact that the appellant used a knife and chose the abdomen of the deceased for inflicting the injury as also keeping in view the nature of the injury itself which was sufficient in the ordinary course to cause death, it is a case that would squarely fall within Part I of Section 304 IPC. We may in this regard refer to the following passage from the decision of this Court in Jai Prakash v. State (Delhi Admn.) [(1991) 2 SCC 32 : 1991 SCC (Cri) 299] : (SCC p. 43, para
13) â13. ⦠when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
However, as pointed out in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception.
In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 IPC is attracted.â
9. We accordingly allow this appeal in part, set aside the conviction of the appellant for the offence punishable for murder under Section 302 IPC and convict the appellant for culpable homicide not amounting to murder punishable under Section 304 Part I IPC and sentence him to undergo rigorous imprisonment for ten years. The fine of Rs 20,000 and sentence in default of payment of fine awarded to the appellant shall remain unaltered.â
23. The Apex Court in the case of Thakurji Hiraji Vs. Thakore Kubersing (2001) SCC (Cri.) 1070 has held that âthe injury dealt by him by a sharp weapon had cut into the intestine. Though an intention to cause death or such bodily injury as is likely to cause death cannot be attributed to him, knowledge is attributable to Accused 2 that an injury by a knife into the abdomen was likely to cause death. As it was a case of sudden fight, the act of this accused would amount to culpable homicide not amounting to murder punishable under Part II Section 304 IPC.â
24. In the present case also, the injury attributed to the appellant/accused with a sharp weapon had cut intestine of the deceased but in the facts and circumstance of the case, it cannot be gathered that there was an intention to cause death or such bodily injury as is likely to cause death. As per the Dying declaration Ex.P-36 incident was not premeditated and suddenly in the heat of passion it was taken place without taking undue advance or acted in the cruel or unusual manner. It appears that initially the intention of the appellant/accused was to warn the brother of the deceased for not to come in the way of Pramod (acquitted co-accused) or to make any quarrel with him and started abusing when he was restrained then he made aforesaid assault. In the aforesaid circumstances, it is difficult to hold that the act of the appellant/accused comes into purview of the offence of murder as the provisions of Exception fourth of Section 300 IPC is attracted very well. In view of the aforesaid discussion and the aforesaid citations of the Apex Court, in the present case, the act of the appellant/accused would amount to culpable homicide not amounting to murder punishable under section 304 Part-I of the IPC.
25. In view of the aforesaid discussion, we allow this appeal in part and set aside the conviction of the appellant/accused for the offence punishable for murder under section 302 of the IPC and we convict the appellant/accused for culpable homicide not amounting to murder punishable under section 304 Part-I and sentence him to undergo rigorous imprisonment for 10 years. The fine of Rs.5000/- and the sentence in default of payment of fine awarded by the trial court to the appellant shall remain unaltered.
26. The appellant / accused is on bail. He is directed to surrender forthwith before the trial court and he be sent to jail for serving out the remaining jail sentence in accordance with law. His bail bonds shall stand discharged. In the result, the appeal stand partly allowed.
(HEMANT GUPTA) (J. P. GUPTA) CHIEF JUSTICE JUDGE tarun