Pradeep & Anr. vs The State Of M.P on 30 October, 2017

[Cites 14, Cited by 2]

Madhya Pradesh High Court

Pradeep & Anr. vs The State Of M.P on 30 October, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused persons namely Pradeep, Uttam, Bhima @ Bhimrao, Pramod Kumar and Raju against the judgment and conviction dated 30th September, 1994, passed by First Additional Sessions Judge, East Nimar, Khandwa in S.T. No.122/1991, whereby the appellants/accused persons have been convicted for commission of offences punishable under Section 148 of IPC and sentenced to undergo rigorous imprisonment for one year, Section 460 of IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.200/- and Section 302 IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.200/-.

2. The case of prosecution, in short, is that on 25.02.1991 around 10 o'clock in the night at Lalbagh Burhanpur, appellant Pradeep called the deceased Bhagwan and asked him to compromise in old pending criminal case. There occurred heated talks between them and appellant Pradeep had abused and threatened to kill him. Bhagwan Das went to Police Station Lalbagh with witness Raju and lodged the report. Thereafter, Bhagwan Das returned home and after taking meal he slept in his house. His brother Krishana Pawar was also sleeping in the house. In the late night around 1:45 a.m. there was noise of knocking and pushing at the door. Bhagwan Das and Krishna woke up, they heard the voice of accused Pradeep also. The accused persons broke open the outer door of the house and accused Pradeep and Pramod -3 - Cr. A. No.1320/1994 armed with knives, accused Bhima armed with Hockey stick, Uttam armed with Lathi and Raju Dhobi armed with some weapon entered in the house. Accused Pradeep inflicted a blow of knife over abdomen of Bhagwan Das. Pramod Dhobi inflicted blow of knife on his head, Raju Dhobi assaulted Bhagwan Das and chopped off his leg. Bhima and Uttam had assaulted him by Hockey and Lathi. Seeing the incident, Krishna came out of the house and called his brother Madhukar Pawar and Dileep Kumar and other witnesses. Madhukar, Dileep and other witnesses came in the house. They saw the accused persons assaulting Bhagwan Das. When Madhukar tried to intervene he was beaten by Bhimarao and Uttam, thereafter, accused persons ran away from the spot. Bhagwan Das was taken to Nehru Hospital Burhanpur. Madhukar also informed the police . K.N. Pathak, S.H.O. Police Station Lalbagh arrived at the hospital and recorded Dehati Nalsi (Ex.P/36) on the report of Bhagwan Das. Thereafter, his dying declaration was also got recorded by Naib Tahsildar. Bhagwan Das was admitted in the hospital for treatment and operated by Dr.. During investigation, the spot map (Ex.P/16) was prepared and red earth was seized from the spot. Witness Madhukar was also medically examined. On 26.02.1991 accused Pradeep, Uttam and Bhima were arrested. On memorandum statement of Pradeep, a knife was recovered and seized. On memorandum of Bhima, a hockey stick was seized. On memorandum of Uttam, a Lathi was seized. On 27.02.1991 accused Pramod Kumar and Raju were arrested and on memorandum of Pramod, a knife was seized and on memorandum of Raju, a sword was seized. Bhagwan Das had expired in the intervening night of 28.02.1991 and 01.03.1991. The police registered the inquest and prepared the Panchnama of dead -4 - Cr. A. No.1320/1994 body and sent the body for postmortem. The statements of witnesses were recorded and usual investigation, the charge- sheet has been filed against accused persons.

3. The appellants/accused persons have been charged under Section 148, 460, 302 in alternative 302/149 of IPC. They abjured guilt and pleaded innocence.

4. The prosecution has been examined seventeen witnesses whereas appellants have given no evidence in their defence.

5. The trial Court on appreciation of evidence relying upon the statement of Madhukar (PW-2), Raju (PW-3), Krishna (PW-8), and Madhukar S/o Govind Pawar (PW-10) arrived at the conclusion that being member of unlawful assembly, the appellants/accused persons had entered into the house of deceased by breaking open the door and assaulted the deceased by deadly weapons and committed his murder in furtherance of common object of assembly. The trial Court convicted the appellants for commission of offences punishable under Sections 148, 460 and 302 of IPC and sentenced them as mentioned hereinabove.

6. It is argued by learned counsel for the appellants that the case of prosecution is not supported by any independent witness. All the prosecution witnesses are relatives of the deceased who are interested witnesses. Therefore, keeping in view, the discrepancies occurred in their statements, they cannot be relied upon. There is no specific opinion of the doctor that the injuries of deceased were sufficient to cause death. The deceased has expired after three days of the -5 - Cr. A. No.1320/1994 incident. The dying declaration of deceased cannot be relied upon because the doctor, who has given fitness certificate, was not examined by the prosecution. The trial Court on erroneous appreciation of evidence has held the appellants guilty for commission of murder of the deceased. Thus, the appeal may be allowed and appellants be acquitted.

7. Heard arguments and perused the record.

8. It is not disputed by the defence that the death of Bhagwan Das was caused due to injuries received by him at the time of incident. Prosecution witness Madhukar (PW-10), Krishna (PW-8) deposed that after the incident Bhagwan Das was brought to Nehru Hospital Burhanpur where Dr. Vijay Kumar Joshi attended him. He was medically examined there and admitted for treatment. Madhukar had also given information to Police Station Lalbagh by telephone. On this information, Sub-Inspector K.N. Pathak (PW-16) arrived in the hospital and recorded the Dehati Nalasi (Ex.P/36) on the report of Bhagwan Das. This fact is duly corroborated by statement of K.N. Pathak (PW-16) and Dr. Vijay Kumar Joshi (PW-11).

9. Dr. Vijay Kumar Joshi (PW-11) deposed that on examination of Bhagwan Das, he found following injuries on his person:-

1- mldh lkekU; gkyr Bhd ugha FkhA gks'k esa FkkA ilhuk vk jgk FkkA gkFk iSj BaMs FksA ukMh dh xfr 120 izfr fefuV FkhA chih 78 FkkA tcku ihyh gks x;h FkhA uhyh cfu;ku igus gq;s Fks tks [kwu ls Hkjh gqbZ FkhA cfu;ku ,d txg QVk gqvk FkkA vkSj ck;h vksj nks txg QVh FkhA pM~Mh ij ck;ha vksj mij dh rjQ QVk gqvk Fkk vkSj cfu;ku fudyokdj mUgsa flycan -6 - Cr. A. No.1320/1994 dj iqfyl dks lkSi pksV dz-1%& ,d dVk gqvk ?kko ftlls [kwu cg jgk Fkk gksdj 2 bap yack ,d bap pkSMk FkkA ftldh xgjkbZ ugha ukih x;hA lkal ds lkFk gok vanj ckgj tk jgh FkhA ;g ?kko Nkfr ij nkghuh rjQ vkxs dh vksj fupys Hkkx esa dkLVy ekftZu ds ikl feM Dysfo;j ykbZu esa fLFkr FkkA rFkk dkLVy ekftZu ls lekukarj FkkA peMh rFkk vanj dh ekal&is'kh dVh gqbZ FkhA ;g fu;fer fdukjsnkj ftldk Mk;xzke eSus esfMdy fjiksVZ esa fn;k gSA bl pksV ds fy;s Nkfr dk ,Dljs fudykokus dh lykg nh x;hA pksV dz02%& ck;s ij dVk gqvk ?kko ck;s iSj ij vkMk FkksMk mij dh vksj fLFkr gksdj 5 bap yack nks bap pkSMk rFkk iwjh rjg ls peMh vanj dh ekalis'kh rFkk VklZy gM~Mh;ka lc dkV gq;s FkkA uls Hkh VsaMsal dVh gqbZ FkhA [kwu cg jgk FkkA rFkk rhljs pkSFks ikapos uacj dh maxfy;ksa dh esVk MklZy gM~Mh dV dj vyx gks x;hA nks ls ikap rd maxyh;ka ugha py ik jgh FkhA bl ?kko esa ls xgjkbZ esa dsy ds fu;e rFkk Vsyl cksu fn[kk;h ns jgh FkhA peMh dk fdukjk vyx gks x;k FkkA fu;fer fdukjsnkj FkhA bl pksV ds fy;s ck;s iSj rFkk V[kus ds ,Dljs dh lykg nh x;hA pksV dz-3%& dVk gqvk ?kko ck;h mijh Hkqtk ij dksguh ds mij fiNs vkSj ckgj dh rjQ fLFkr gksdj 1 bap x vk/kk bap x vk/kk bap dk Fkk ;g frjNk FkkA rFkk blds vanj dh Vªk;lsIl ely dVh gqbZ FkhA pksV dz-4%& dVk gqvk ?kko fiNs iqVBs ij mijh Hkkx esa bZyk;d fjtu esa fLFkr gksdj ,d bap x vk/kk bap x vk/kk bap dk FkkA ;g vkMk FkkA pksV dz-5%& ,d dVh gq;h [kjkasp xnZu ij ck;h rjQ mij ds Hkkx esa tcMs ds ,saxy ds ikl fLFkr gksdj ,d bap x 1 @4 bap dh FkhA pksV dz-6%& ,d yach [kjksap 3 bap x 1 @2 bap dh gksdj frjNh Fkh tks fd ck;h tka?k ij e/; esa vkxs dh rjQ fLFkr FkhA -7 - Cr. A. No.1320/1994 pksV dz-7%& ,d dqpy gqvk ?kko fljij ck;h rjQ QzUVks iSjk;Vy fjtu esa e/; ykbZu ds ikl mYVh oh ds vkdkj dk FkkA ftldh nksuksa Hkqtk nks bap x1 @4 x1 @4 bap dh FkhA blesa ls [kwu cg jgk FkkA pksV dza- 8%& dVk gqvk ?kko nkfgus ikao ij e/; ykbZu esa yack gksdj 1 bap x1@4 x1@4 bap dk FkkA pksV dz- 9%& dVk gqvk ?kko ck;h tka?k ds VkdsUVhx fjtu esa fLFkr gksdj vk/kk bap x ikap bap x vk/kk bap dk Fkk rFkk frjNk FkkA pksV ua- 10%& ,d dVk gqvk ?kko nkfguh mijh Hkqtk ij vkxs dh rjQ fLFkr gksdj vkMk FkkA rFkk ;g ,d bap x vk/kk bap x vk/kk bap dk FkkA pksV ua- 11%& ,d dVk gqvk ?kko nkfguh mijh Hkqtk ij fiNs dh vksj fLFkr gksdj e/; esa FkkA rFkk vkMk FkkA mlesa ls [kwu cg jgk FkkA pksV ua- 12%& ,d dVk gqvk ?kko Nkfr ij fiNs ^^ihB ij^^ fLFr gksdj vkBoha ilyh ds Lrj ij FkkA rFkk Ldsiwyj fjtu ds uhps FkkA ;g ikSu bap x vk/kk bap nks bap dk gksdj vanj dh rjQ uhps dh vksj tkrs gq;s e/; js[kk dh rjQ tk jgk FkkA 3 pksV u- 1 thou ds fy;s [kkrjukd FkhA pksV ua- 2 fizfo;l Fkh pksV u-3]4]5]6]7]8]9]10]11] rFkk 12 lk/kkj.k FkhA ;g pksVs fdlh /kkjnkj rFkk l[r ,oa cksFkjs gfFk;kj ls 6 ?kaVs ds vanj vk;h izfrr gksrh FkhA 4 mls vLirky esa HkrhZ fd;k x;kA vkSj mfpr bZykt gsrq lftZdy Lis'kyhLV MkW vkj ih flUgk dks cqyok;k x;k FkkA iqfyl dks e`R;q iwoZ dFku ysus ds fy;s lwfpr fd;k x;k FkkA vkSj mls vkWijs'ku FkszVj eas ys x;s FksA esjs }kjk nh x;h fjiksVZ iz ih&20 gSA ftl ij esjs gLrk{kj gSA

10. It is further deposed by the doctor that the injury no.1 was dangerous to life whereas injury no.2 was grievous one.

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Other injuries were simple in nature. The injuries No.1, 2, 3, 4, 8, 9, 10, 11, and 12 were caused by hard and sharp object whereas other injuries were caused by hard and blunt object within six hours of examination. The patient was taken for operation and police was informed to record the dying declaration. In cross-examination, this witness has not made any contradictory statement and his testimony is duly corroborated by MLC report (Ex.P/20) given by him.

11. It is not disputed that Bhagwan Das had expired in intervening night of 28.02.1991 and 01.03.1991. The police conducted the inquest and sent the dead body for postmortem. Dr. S.K. Sengar (PW-12) deposed that on 01.03.1991 at Nehru Hospital Burhanpur, he had performed the postmortem of dead body of Bhagwan Das. He found the same injuries as described by Dr. Vijay Kumar Joshi (PW-11) and his MLC report (Ex.P/20). Dr. Sengar further deposed that on internal examination, he found the fracture of ninth rib and punctured wound on the liver size 0.6 inch depth 5 inch. Peritoneal cavity and plural cavity were full of blood. Right lung collapsed. The injuries were ante-mortem. The cause of death was shock due to multiple injuries, injury to liver causing haemorrhage. The statement of doctor is duly corroborated by postmortem report (Ex.P/23). Thus, relying upon the statement of Dr. S.K. Sengar and Dr. Vijay Kumar Joshi, the trial Court has rightly found the death of deceased was homicidal.

12. The trial Court has relied upon the statement of Krishna (PW-8), Madhukar (PW-10) and dying declaration of the deceased and held the appellants guilty for commission of offence. Krishna (PW-8) deposed that Bhagwan Das was -9 - Cr. A. No.1320/1994 his younger brother. In the intervening night of 25.02.1991 and 26.02.1991, he was sleeping in the front room of the house of Bhagwan Das. Bhagwan Das was also sleeping in the room adjacent to front room of the house. The outer door of the room was closed from inside by a bolt. At about 2 o'clock in the night, the outer door of the house was started pushing and knocking from outside. Hearing the noise Krishna woke up, meanwhile, the outer door was got opened forcefully from outside and appellants/accused persons entered in the house. Accused Pradeep, Raju and Pramod were armed with knives, accused Bhima was armed with hockey stick and accused Pramod was armed with Lathi. Seeing the accused persons with arms, Krishna being scared and frightened, hide himself under the cot. The accused persons entered into the room of Bhagwan Das by breaking open the door and started beating him by knives, lathi and hockey stick. Seeing the incident, Krishna came out of the house and started crying for help and went to the house of his brother Madhukar and informed him about the incident. Thereafter, Madhukar and Krishna came to the house of Bhagwan Das to save him. As soon as Madhukar entered in the house, accused Bhima gave a blow of hockey stick on his head, thereafter, accused Uttam assaulted him by lathi. Madhukar came out of house to save himself and ran towards the house of Vishnu Totaram. After beating Bhagwan Das, accused persons ran away. Bhagwan Das was seriously injured, he was taken to Nehru Hospital Burhanpur where he was admitted for treatment.

13. Madhukar (PW-10) deposed that in the intervening night of 25th and 26th Feb, 1991 he was sleeping in his house. At about 2 O' Clock in the night his brother Krishna came in

-10 - Cr. A. No.1320/1994 the house. He told him that the accused Pradeep, Bhim Rao, Raju, Pramod, Uttam entered in the house of Bhagwan Das by breaking open the door and beating Bhagwan Das by knife and other weapons. Madhukar went to the house of Bhagwan Das with Krishna. As soon as he entered in the house and arrived in the courtyard, accused Bhima assaulted him by hockey stick on his head. He had seen Pradeep and Pramod armed with knife, Raju armed with a broken sword, Uttam armed with lathi who were beating Bhagwan Das. Seeing Madhukar the accused persons exhorted to kill him, then Uttam and Bhima again assaulted him by lathi and hockey stick. Madhukar ran away from the spot to save himself and went to the house of neighbour Vishnu Totaram. His brother Krishna also followed him. After beating Bhagwan Das the accused persons ran away from the spot. The neighbours and a crowd gathered at the spot. Madhukar and Krishna returned to the house of Bhagwan Das where Bhagwan Das was lying inside the house in injured condition. He was taken to Nehru Hospital, Burhanpur. Madhukar also gave information at police station Lalbagh about the injured Bhagwan Das on the way to hospital. Bhagwan Das was admitted in the hospital. Police also arrived there and Investigating Officer recorded the statement of Bhagwan Das. Thereafter Naib Tahsildar was called and he had recorded the dying declaration. Madhukar was also examined by the doctor. Police prepared the spot map (Ex.P/16) seized the red earth from the spot. On 28.02.1991 in the night Bhagwan Das had expired. The police prepared panchnama of dead body and conducted inquest.

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14. At the time of incident Madhukar had also received injuries this fact is duly corroborated by the statement of Dr. Vijay Kumar Joshi (PW-11) who deposed that on 26.02.1991 at about 5 O' clock in the morning he had examined Madhukar and found following injuries:-

i. Lacerated wound 2 X 1/4" X 1/2" on back of scalp in parieto occipital region.

ii. Abrasions with bruise on the face 1 X 1/2". iii. A linear red abrasion 4" X 1/8" over left scapular region.

iv. Semi circular abrasion 2 X 1/8" over left side of back.

It is opined by the doctor that the injuries were caused by hard and blunt object, within six hours of examination, simple in nature. The statement of doctor is duly corroborated by MLC report (Ex.P/21) given by him. Thus, relying upon the statement of doctor it is rightly found proved by the trial Court that at the time of incident Madhukar was also beaten and received injuries.

15. Investigating Officer K.N. Pathak (PW-16) deposed that in the intervening night of 25th and 26th Feb, 1991 at about 2 O' clock Madhukar had given information in the Police Station that his brother Bhagwan Das had received injuries by knife and he is in serious condition, being taken to hospital thereafter Madhukar went to hospital hurriedly. On this information Rojnamcha sana (Ex.P/34) was recorded and K.N. Pathak visited Nehru Hospital, Burhanpur where Bhagwan Das was brought for treatment. He recorded the statement of Bhagwan Das and registered Dehati Nalishi (Ex.P/36) and called Naib Tahsildar for recording of dying

-12 - Cr. A. No.1320/1994 declaration. Tahsildar came there and recorded the dying declaration. On next day i.e 26.02.1991 he had recoded the statement of witnesses and prepared and spot map (Ex.P/16) and seized red earth and blood stained clothes from the spot. Accused Pradeep Kumar, Uttam, Bhima were arrested on 26.02.1991 and on the basis of memorandum statement of Pradeep (Ex.P/4), a knife was recovered and seized from his house vide seizure memo (Ex.P/7). Similarly, on memorandum statement of Bhima (Ex.P/5), a hockey stick was seized vide seizure memo (Ex.P/8), on memorandum statement of Uttam (Ex.P/9), a lathi was seized from his house vide seizure memo (Ex.P/6). On 27.02.1991, accused Pramod and Raju were arrested and on memorandum statement of Pramod (Ex.P/12), a knife was seized from his house vide seizure memo (Ex.P/11) and on memorandum statement of Raju (Ex.P/13), a broken sword was seized vide seizure memo (Ex.P/10). It is further deposed by investigating officer that Bhagwan Das had expired on 25.02.1991 in the night. He had conducted the inquest prepared Panchnama (Ex.P/38) of dead body and sent it for postmortem.

16. Tukaram, Naib Tahsildar, (PW-15) deposed that in the intervening night of 25.02.1991 and 26.02.1991 around 3 O'clock he was called by Police for recording the dying declaration of Bhagwan Das who was admitted in Nehru Hospital. He visited the hospital and found Bhagwan Das in serious condition. Bhagwan Das was in fit condition to give statement. He obtained the certificate of doctor about the physical and mental condition of Bhagwan Das and thereafter, recorded his dying declaration (Ex.P/26). After

-13 - Cr. A. No.1320/1994 recording of the statement, he obtained the signature of Bhagwan Das on dying declaration (Ex.P/26) on it at the place A to A. Doctor Vijay Kumar Joshi (PW-11) also corroborates the above fact and deposed in his statement that at the time of recording of dying declaration, he had examined Bhagwan Das and found him fully conscious and fit to give statement. He remained present there during recoding of statement. He has endorsed the fitness certificate on the dying declaration (Ex.P/26) also. Other prosecution witness Madhukar S/o Sadashiv (PW-2), Krishna (PW-8), Ashok (PW-9), Madhukar (PW-10) had categorically deposed that after the incident Bhagwan Das was fully conscious and was talking with the witnesses, even at the time of recording of dying declaration, he was fully conscious. The Investigating Officer K.N. Pathak (PW-16) who had recorded the Dehati Nalasi (Ex.P-36) in the hospital deposed that Bhagwan Das was fully conscious and he had lodged the report. Thus, from above evidence, relying upon the statement of Naib Tahsildar and Doctor and other witnesses it is proved that the deceased Bhagwan Das was fully conscious and in fit condition and had made the dying declaration (Ex.P/26). In the dying declaration (Ex.P/26) , the deceased Bhagwan Das had stated as under :-

"On 25.02.1991 around 10 O'clock in the night he had a dispute with Pradeep at Lalbagh square. He had lodged the report at Police Station Lalbagh at 10:30 p.m. Thereafter, he returned home and after taking meal went to sleep. His brother Krishna was also sleeping in the house. At about 2'O clock in the night accused Pradeep, Pramode, Raju, Uttam and Bhima entered in the house by breaking open the door. Pradeep, Pramod and Raju were armed with knives whereas Uttam and Bhima were armed with hockey. All accused persons had started beating him simultaneously. Pradeep gave a blow of knife on his

-14 - Cr. A. No.1320/1994 abdomen. His brother Krishna ran away from the house to call his other brother. Hearing the cry of Bhagwan Das, Kailash, Shyam, Madhukar came there and brought Bhagwan Das to Police Station and hospital."

17. Earlier before recording of dying declaration the Dehati Nalasi was recorded on the report of deceased Bhagwan Das. Thus, this version of the deceased in Dehati Nalasi (Ex.P/36) can also be treated as dying declaration after the death of deceased and for this view I am fortified from the judgment of the Supreme Court in the matter of Paras Yadav v. State of Bihar reported in (1999) 2 SCC 126 wherein it has been held by the Supreme Court that "a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement".

18. In the case law Gulzari Lal Vs. State of Haryana AIR 2016 SC 795 Hon'ble Apex Court has relied upon the dying declaration recorded by Police Head Constable without having the certification of the doctor regarding fitness of the deceased.

19. In disputably conviction can be recorded on the basis of dying declaration alone but therefore, the same must be wholly reliable. The admissibility of dying declaration is explained by Hon'ble Supreme Court in case law Ramesh v state of Haryana AIR 2016 SC 5554 as under:-

"Law on the admissibility of the dying declarations is well-settled. In Jai Karan v. State of N.C.T., Delhi3,

-15 - Cr. A. No.1320/1994 this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable."

3. (1999) 8 SCC 161 : AIR 1999 SC 3512

20. In the instant case the Dehati Nalasi (Ex.P/36) and dying declaration (Ex.P/26) are consistent and corroborates each other wherein it is clearly mentioned by the deceased that he had been assaulted by the appellants. These dying declarations are duly corroborated by the statement of eye witnesses Krishana (PW-8) and Madhukar (PW-10). Although Krishna and Madhukar are real brothers of deceased but only on this ground we cannot discard or doubt their statements. It is settled law that merely because in a murder case, prosecution witnesses were interested and inimical, that by itself is no ground to reject their testimony in toto. The evidence of interested witnesses should however be scrutinized with care. Close relationship of the witness with the injured is not sufficient to suspect credibility and desirability subjecting the testimony of the evidence of the relatives to close and severe scrutiny arises only when it is

-16 - Cr. A. No.1320/1994 shown that there was likelihood of an attempt to falsely implicate an accused.

21. In the instant case the incident occurred at late hours of the night when deceased was sleeping in the house. Since witness Krishna is real brother of deceased, therefore, his presence in the house is natural and reliable. Accused persons were armed with deadly weapons like, knives and lathi. They entered in the house by breaking open the door, therefore, it is quite natural and reliable conduct that seeing the accused persons, this witness Krishna became afraid and scared and to save himself, he hide below the cot. Since the electric bulb in the room was switched on, therefore, Krishna had sufficient time to see and identify the assilents. As the accused persons were beating the deceased in another room, he had escaped from the house and went to call his brother Madhukar for help. He had told the names of accused persons to Madhukar also. Madhukar came in help of deceased but he was assaulted by accused persons than he ran away from the spot to save himself. This is his natural conduct. He received injuries at the time of incident is duly corroborated by MLC report (Ex.P/21) given by doctor (PW-

11). Since he is injured witness, therefore, his testimony inspires confidence. There is no material discrepancies or contradictions found in the testimony of these witnesses Krishna and Madhukar in their cross-examination. Their testimony appears to be cogent, trustworthy and reliable.

22. It is argued by the learned counsel for the appellant that after the incident deceased was brought to Police Station Lalbagh where Madhukar had lodged the report. This

-17 - Cr. A. No.1320/1994 report was recorded in Rojnamcha Sanha (Ex.P/34) wherein the names of assailants were not mentioned. This shows that in first report of the incident the complainant had not mentioned the names of accused persons. The complainant and deceased were assaulted by unknown persons but due to enmity, the names of appellant had been given later on in Dehati Nalasi and dying declaration. This argument cannot be accepted. The Investigating Officer K.N. Pathak (PW-16) deposed that in the night when deceased was brought in the Police Station in a vehicle his condition was very serious, therefore, without making any inquiry he referred him to hospital for treatment. No report was lodged at that time, merely a message was given by the persons who brought the deceased regarding his injuries and they took the deceased to hospital immediately. This fact is corroborated by Madhukar (PW-10) also who had stated in his evidence para- 3 that they stopped in Police Station hardly for two minutes and informing the Police Inspector they took the deceased to hospital for treatment because he was seriously injured. Thus from above evidence we can very well presume that no report was lodged at that time in Police Station. Investigating Officer has sent the deceased to hospital immediately for treatment looking to his serious condition. Thereafter he followed the deceased to hospital where he had recorded the statement of deceased without any delay as Dehati Nalasi. Therefore, the initial intimation to Police Station, which is recorded in Rajnamcha Sanha (Ex.P/34) cannot be treated as FIR. Thus, non mentioning of the names of appellants in Ex.P/34 does not create doubt on credibility of prosecution case.

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23. It is further argued by the learned counsel for the appellant that the injuries caused to deceased were not sufficient to cause death in ordinary course of nature. The doctor conducting postmortem did not opined that the injuries were sufficient to cause death in ordinary course of nature. Therefore, appellants cannot be convicted under Section 302 of IPC. Learned counsel has relied on the case laws Rampal Singh Vs. State of U.P. (2012) 8 SCC 289, Abdul Wahid Khan and Others Vs. State of A.P. (2002) 7 SCC 175, State of A.P. Vs. Rayavarapu Punnayya and another, AIR 1977 SC 45, Vineet Kumar Chouhan Vs. State of U.P. (2007) 14 SCC 660 and Swaran Singh Vs. State of Punjab AIR 1978 SC 1525.

24. We are unable to accept the arguments of learned senior counsel in given facts of present case. On scrutiny of statement of Dr. Vijay Kumar Joshi (PW-11) who had examined the deceased at first instance we find that he had deposed that the deceased was in serious condition and his injuries were dangerous to life. Dr. S.K. Sengar (PW-12) who performed post mortem deposed that in his opinion the cause of death was shock due to hemorrhage result of injuries caused to deceased. In cross-examination para-10 he deposed that due to injuries the deceased may not die instantaneously but he can die after some time. The injuries caused to deceased shows that there was punctured wounds in liver and also on right lung. This fact is also explained by treating Dr. R.P. Sinha (PW-17). Thus the medical report indicates that the injuries caused to deceased were sufficient to cause death in ordinary course of nature.

-19 - Cr. A. No.1320/1994

25. In case law Rampal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289 Hon'ble Apex Court has explained the distinction between Section 299 and 300 of IPC. In para Nos. 13 to 17 Hon'ble Apex Court observed as under:-

"Section 300 IPC proceeds with reference to Section 299 IPC. Section 300 IPC states what kind of acts, when done with the intention to causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature of cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would a mount to 'murder'. It is also "murder" when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The section also prescribes the Exceptions to "culpable homicide amounting to murder". The Explanations spell out the elements which need to be satisfied for application of such Exceptions like an act done in the heat of passion and without premeditation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other persons by mistake or accident, provided such provocation was not at the behest of the offender himself. "culpable homicide would not amount to murder". This Exception itself has thee limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."

26. Hon'ble Apex Court in case law Rampal Singh (supra) in para 22 further observed that:-

"Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code

-20 - Cr. A. No.1320/1994 and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed"

27. The appellants entered in the house by breaking open the door of the house in late hours of the night. They were armed with deadly weapons. They have started beating the deceased without any provocation. Deceased had received 12 injuries. Inflicting the fatal injuries on vital part of body damaging lungs and liver shows the intention of appellants. Therefore, the act of appellants and nature of injuries sustained by the deceased shows the intention of appellants to kill him. Raju (PW-3) had stated about a quarrel between deceased and accused Pradeep at about 10 O' clock in the night against which the deceased had lodged the report at police station. Due to this enmity the accused Pradeep and other accused persons had assaulted and killed the deceased. Thus, we can infer that the appellants had assaulted the deceased with intention to kill him, therefore, the act is murder, which is punishable under Section 302 of IPC.

28. The trial Court on proper appreciation of evidence has found the appellants guilty for commission of offence punishable under Sections 148, 460 and 302 of IPC. There is no illegality or perversity found in the findings recorded by the trial Court.

29. This the present appeal is devoid of merits is hereby dismissed.

  (S.K. Gangele)                       (Anurag Shrivastava)
                               -21 -      Cr. A.
                       No.1320/1994


               Judge                  Judge

haider/Vin**

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