Madhya Pradesh High Court
Bhupendra Singh & Ors. vs The State Of M.P on 8 September, 2010
Bench: Rakesh Saksena, Gulab Singh Solanki
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 1621/2001
1. Bhupendra Singh @
Gudda Singh, aged about
26 years S/o Nirmal Singh
Parihar
2. Nand Kishore @
Bulloo aged about 22 years,
S/o Baisakhu Yadav
Both R/o Village Patna,
P.S. Dhanpuri, District
Shahdol (M.P.)
Versus
The State of Madhya Pradesh
---------------------------------------------------------------------
For the Appellants: Shri, Ravi Shanker Yadav,
Advocate
For the State: Shri Prakash Gupta, Advocate
---------------------------------------------------------------------
PRESENT :
HON'BLE SHRI JUSTICE Rakesh Saksena
HON'BLE SHRI JUSTICE Gulab Singh Solanki
Date of hearing: 17/08/2010
Date of Judgment: 8/09/2010
JUDGMENT
As per G.S. Solanki,J.:
First Additional Sessions Judge, Shahdol has passed the impugned judgment dated 14.9.2001 in S.T.No. 7/2001 by which appellant Bhupendra Singh @ Gudda Singh (A/1) has been convicted under Section 302, 307 read with Section 34 of Indian Penal Code and 2 Section 25(1)(b)(b) and Section 27 of Arms Act and sentenced life imprisonment and fine of Rs. 1,000/-, in default, rigorous imprisonment for six months; and rigorous imprisonment for ten years and fine of Rs. 500/-, in default, rigorous imprisonment for six months and rigorous imprisonment for two years - two years and fine of Rs. 200/- - 200/-, in default, rigorous imprisonment for 2-2 months respectively and appellant no. 2 Nand Kishore @ Bulloo (A/2) has been convicted under section 302 read with Section 34 and Section 307 of Indian Penal Code and sentenced for life imprisonment and fine of Rs. 1,000/-, in default, rigorous imprisonment for six months; and rigorous imprisonment for ten years and fine of Rs. 500/-, in default, rigorous imprisonment for six months respectively. Being aggrieved, appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure.
2. Prosecution case in nutshell is that on 11.10.2000 at about 5.30 a.m. Sub Inspector B.D.Tiwari, (since deceased) was going with Constable No. 147, Rajkumar Patel to village Dongeratola on motor bike. Some criminal investigation was pending against Bhupendra Singh @ Gudda with B.D. Tiwari. They reached near the temple of Hanumanji at village Patna where Bhupendra Singh @ Gudda (A/1) and other two persons were standing. When they saw B.D.Tiwari, they ran away from there. After this incident when B.D.Tiwari and complainant Raj Kumar were returning to Dhanpuri at about 8.00 p.m., in the way, appellant intercepted them and suddenly appellant no.1 Bhupendra Singh @ 3 Gudda assaulted B.D. Tiwari and appellant no.2 Nand Kishore @ Bulloo assaulted complainant Raj Kumar Patel by sword but he saved himself by a Danda. Both the appellants fled away. Due to assault, B.D. Tiwari fell down from motor bike. He received injury on his right side of belly. Anyhow B.D. Tiwari started the bike and instructed the complainant to hold him by pressing the injured part of the body, but he again fell down after some distance. Courageously he again started the bike and proceeded towards village Patna where ultimately he fell down near the shop of Mathura Singh. Complainant Raj Kumar (PW1) informed the police station Dhanpuri regarding the incident and rushed to Community Health Center, Dhanpuri alongwith B.D.Tiwari.
3. First information report Ex.P/1 was lodged by Raj Kumar (PW1) at police station Dhanpuri. Dr. K.K.Gautam (PW11) primarily treated B.D.Tiwari and found a stab wound 8cm. x 4 cm. on his belly. Intestines protruded out of injury. He was shifted to Central Hospital, Budhar where Dr. S. Golash (PW14) admitted him and found that his large intestine was not reparable, therefore, he referred B.D. Tiwari to Jabalpur Hospital and Research Center for better treatment vide Ex.P/15 where he was kept in intensive care unit but despite all efforts he could not be saved and he succumbed to injuries.
4. Dr. Mukesh Shrivastava (PW21) performed the autopsy on the body of B.D.Tiwari and opined that cause of his death was septicemic/toxemic shock, due to peritonitis of stomach.
45. During investigation appellants were arrested. A Baka was seized vide Ex.P/25 from Bhupendra Singh (A/1) on 31.10.2000 and sword was seized at the instance of Nand Kishore @ Bulloo (A/2) vide Ex.P/7 on 19.10.2000. Seized articles were sent to Forensic Science Laboratory, Sagar. Scientific Officer opined vide Ex.P/41 that cut marks on Khakhi shirt of deceased, resembled with the sample cut marks of Baka, the weapon of offence.
6. After investigation appellants were charge- sheeted. They abjured their guilt and pleaded false implication.
7. On appraisal of the evidence on record, learned trial Court convicted and sentenced appellants/ accused as mentioned hereinabove.
8. Learned counsel for the appellant submitted that the trial Court failed to appreciate the evidence on record in its correct perspective. Dying declaration Ex.P/24 is inconsistent to history report Ex.P/15. Statement of eye witness Raj Kumar (PW1) is also contradictory to dying declaration Ex.P/24. These facts were not taken into consideration by the trial Court, therefore, learned counsel prays for setting aside the impugned judgment and finding of conviction recorded by the trial Court.
9. On the other hand, learned counsel for the State justified and supported the impugned judgment and the findings of the trial Court.
510. We have perused the impugned judgment, the evidence and the other material on record.
11. Prosecution examined as many as 21 witnesses and 4 witnesses were examined in the defence. Case of prosecution is mainly based on the testimony of eye witness Raj Kumar (PW1) and two dying declarations. One recorded as case history by Dr. S. Golash (PW14) and other dying declaration (Ex.P/24) recorded by A.K.Tiwari, Sub Inspector (PW18).
12. Raj Kumar Patel (PW1), who accompanied B.D. Tiwari, Sub Inspector (deceased), deposed that on 11.10.2000 at about 5.15 p.m. while they were going on Bullet Motorcycle for the purpose of investigation in a criminal case, to village Dongeratola, near a temple of Hanumanji at village Patna, he noticed that appellant Bhupendra @ Gudda and two other persons were present, who fled away after seeing B.D. Tiwari on motor cycle.
13. Since B.D. Tiwari had some criminal investigation pending in respect to appellant Bhupendra @ Gudda, therefore they chased them for some distance. After that B.D. Tiwari and he went to Dongeratola for some other inquiry. He deposed that after completing the inquiry in village Chhota Dongeratola when they were returning to Dhanpuri, appellants ambushed them near the tree of Kosam and appellant Bhupendra Singh @ Gudda (A/1) assaulted B.D. Tiwari by a sharp edged weapon at right side of his belly and appellant Nand Kishore @ Bulloo attacked him with a sword but he 6 saved himself by Danda. Complainant Raj Kumar also claimed that he chased them but they fled away.
14. He further deposed that due to assault, B.D.Tiwari fell down from the bike. Anyhow he got up and started the bike but he again fell down in the field of paddy. He again started the motorcycle and reached upto village Patna. Raj Kumar telephonically informed the police station Dhanpuri regarding incident. B.D.Tiwari was sent to Central Hospital, Dhanpuri and complainant lodged the report Ex.P/1.
15. Raj Kumar (PW1) was extensively cross- examined but he remained undeviated. Except some minor discrepancies which were not material nothing could be elicited out. His presence at the time of incident is established by Gudda @ Abhayman Singh (PW2), who corroborated complainant by saying that on 11.10.2000 at about 7 o'clock complainant and B.D. Tiwari had reached near the shop of Mathura Singh. B.D.Tiwari was injured and blood was coming out. He deposed that complainant informed the police station by telephone. He further deposed that when B.D.Tiwari was admitted in Central Hospital, Dhanpuri, he was alive. Though he was declared hostile on some other factual aspects but despite that the above mentioned part of his statement appears acceptable by which presence of complainant Raj Kumar (PW1) with B.D. Tiwari was established. This fact is also corroborated by Mangu Baiga (PW16).
16. Dr.K.K. Gautam (PW11) deposed that on 7 11.10.2000 at about 9.15 p.m. he examined B.D. Tiwari and recorded his Blood Pressure 110/70 and pulse 112 per minute. He deposed that he found a stab wound of 8cm. x 4cm. on his stomach. Injury was bleeding and intestines and colon were protruding out from the injury. Injury was a cut wound. He prepared MLC report Ex.P/22. He referred B.D. Tiwari for further treatment. Dr. S. Golash (PW14), who operated B.D. Tiwari. Substantially corroborated the injury received by B.D.Tiwari.
17. Dr. Mukesh Shrivastava (PW21), who performed the post-mortem on the body of B.D. Tiwari deposed that he found para-median surgical incision on stomach of B.D. Tiwari which was stitched. After opening the stomach he found peritonitis inside the cavity and there was a colostomy between large intestine and colon was raptured. Death was caused due to septicemic/toxemic shock. Post-mortem report is Ex.P/30A. By the evidence of Dr. K.K. Gautam (PW11), Dr. S. Golash (PW14) and Dr. Mukesh Shrivastava (PW21), the version of complainant that appellant Bhupendra Singh @ Gudda assaulted B.D. Tiwari on the right side of belly by a sharp cutting weapon stands corroborated. It is further corroborated by FIR Ex.P/1 lodged by him.
18. Regarding assault to Raj Kumar (PW1), it was argued on behalf of appellants/accused that prosecution did not produce the danda by which he saved himself. It is true that danda was not seized and produced before the Court, but testimony of Raj Kumar remained intact 8 on the point that appellant Nand Kishore @ Bulloo attempted a blow by sword on him.
19. Complainant and B.D. Tiwari were on the running bike, hence this attempt also appears on B.D. Tiwari. Further more appellant Nand Kishore @ Bulloo had hidden himself with appellant Bhupendra Singh @ Gudda (A/1) behind the Kosam tree. They ambushed complainant and B.D. Tiwari with deadly weapons. These circumstances clearly show their common intention was to kill B.D. Tiwari. Despite the fact that no injury on the person of Raj Kumar could be caused yet, it is established that an attempt was made to murder him by Nand Kishore @ Bulloo.
20. Learned counsel for the appellants vehemently contended that there is inconsistency between dying declaration Ex.P/24 recorded by A.K.Tiwari, Sub Inspector (PW18) and the injury history report Ex.P/15 recorded by Dr. S. Golash (PW14), and that prosecution failed to establish the correctness of dying declaration, therefore, benefit of doubt should be given to appellants. He relied on AIR 2008 SC 19, Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur A.P., AIR 2005 SC 1277, (State of Punjab Vs. Praveen Kumar).
21. Inspector A.K. Tiwari (PW18) deposed that on 12.10.2000 between 2.30 to 2.45 dying declaration of B.D.Tiwari (Ex.P/24) was recorded at Railway Platform, Amlai. According to him, at that time B.D.Tiwari was conscious.
922. Dr. K.K. Gautam (PW11) corroborated this witness by saying that he certified about the consciousness and fitness of B.D.Tiwari during the recording of dying declaration. Despite elaborate cross- examination this witness appears reliable because he primarily treated injured B.D.Tiwari and referred him to the District Hospital. According to him, while injured was shifted to Jabalpur, he had also gone alongwith him. It is quite natural when a police officer was injured and was struggling for his life, being a treating doctor he also went with him. It cannot be said to be unnatural conduct of this witness.
23. On careful perusal of Ex.P/24, it is revealed that B.D.Tiwari specifically stated about the assault on him by Bhupendra Singh @ Gudda (A/1) and Nand Kishore @ Bulloo (A/2). As we have discussed hereinabove that B.D.Tiwari (deceased) and Raj Kumar Patel (PW1) were moving on the bike and appellant Nand Kishore assaulted them by sword, therefore, if B.D.Tiwari stated that both the appellants attacked him, it cannot be said to be unnatural.
24. As far as inconsistency with the history given in medical report Ex.P/15 is concerned, Dr. Golash (PW14) deposed that when injured B.D.Tiwari was admitted in hospital, he informed that he was shot at by gun. This witness further deposed that witness Raj Kumar (PW1) informed him that B.D.Tiwari was shot by gun and on their information he wrote Ex.P/15. But this witness fairly admitted that during operation he did not find any bullet inside the body of injured B.D.Tiwari. In 10 these circumstances, history recorded by Dr. Golash does not appear believable. In our opinion, in this case where eye witness Raj Kumar (PW1) categorically deposed about the incident and the dying declaration Ex.P/24 corroborated his testimony, the inconsistency shown by the defence is of no avail. In these circumstances, principles laid down by Apex Court in AIR 2008 SC 19, (Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur A.P.), AIR 2005 SC 1277, (State of Punjab Vs. Praveen Kumar) are not applicable to the instant case.
25. In Nallapati Sivaiah (supra) inconsistency was between the condition of the victim at the time of recording his statement and medical evidence of professor and doctor of Forensic Medicine. The medical evidence of Medical Expert remained unimpeached and raised great suspicion about the prosecution story.
26. In Praveen Kumar (supra), two dying declarations were inconsistent and no other corroborative evidence was available, but in the instant case eye witness Raj Kumar (PW1) is an eye witness of the incident. Therefore, principle laid down in this case also is not applicable to the facts of instant case.
27. Learned counsel for the defence also relied on AIR 2009 SC 2703, Kanti Lal Vs. State of Rajasthan. In that case dying declaration was not found genuine because no certificate was taken from the doctor that deceased was in fit state of mind to give statement. Such situation is not in instant case.
1128. Learned counsel for the appellants also argued that prosecution had not tried for recording dying declaration by the Executive Magistrate and the dying declaration recorded by a police officer, an interested witness, is not reliable. We are not impressed by this argument because police had tried to call the Executive Magistrate but due to distance and urgency of shifting the injured to Jabalpur, dying declaration was recorded by police officer at railway platform, Amlai.
29. Inspector A.K. Tiwari (PW18) deposed that on 12.10.2000 a request memo Ex.P/45 was sent to the Executive Magistrate, Sub Tehsil Budhar for recording the dying declaration of B.D. Tiwari. This fact shows that police tried to call the Executive Magistrate but Sub Tehsil, Budhar is a distant place and injured B.D. Tiwari was required to be shifted immediately to Jabalpur, for further treatment. In these circumstances, if dying declaration Ex.P/24 was recorded by police officer A.K. Tiwari (PW18), it cannot be said to be unnatural and its genuineness cannot be doubted. In these circumstances, version of sole eye witness Raj Kumar (PW1), who accompanied B.D. Tiwari (deceased) stands further corroborated by the dying declaration Ex.P/24 recorded by A.K. Tiwari (PW18). In our opinion, prosecution succeeded to establish the fact that appellants assaulted B.D.Tiwari in furtherance of their common intention, who died a homicidal death due to injuries caused by sharp edged weapon. Prosecution further established that appellant Nand Kishore @ Bulloo attempted to commit murder of Raj Kumar (PW1). In these circumstances, in our opinion, no error has 12 been committed by the trial Court in recording the conviction of the appellants and we accordingly affirm conviction recorded by the trial Court. The conviction of the appellant No.1 Bhupendra Singh @ Gudda Singh under Section 25(1)(b)(b) and Section 27 of the Arms Act is also affirmed.
30. Considering the facts and circumstances of case, we are of the opinion that sentences awarded by the trial Court cannot be said to be excessive.
31. In the result, there is no force in appeal. Same is liable to be dismissed and his hereby dismissed.
(Rakesh Saksena) (Gulab Singh Solanki)
JUDGE JUDGE
8/09/2010 8/09/2010
ravi