Madhya Pradesh High Court
Monu @ Manohar vs The State Of Madhya Pradesh on 18 July, 2014
Author: N.K.Gupta
Bench: N.K.Gupta
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR, MP.
CRIMINAL APPEAL NO.9 OF 2007
Monu alias Manohar
Vs
State of Madhya Pradesh
For the appellant: Shri G.S. Thakur, Advocate appointed
by the High Court Legal Services
Committee.
For the State: Shri Yogesh Dandhe, Dy.Govt.Advocate
PRESENT: Hon'ble Mr. Justice Ajit Singh
&
Hon'ble Mr. Justice N.K.Gupta,JJ.
JUDGMENT
( /07/2014) The following judgment of the Court was delivered by: N.K.Gupta,J:
The appellant has preferred the present appeal being aggrieved with the judgment dated 31.10.2006 passed by the learned 5th Additional Sessions Judge, Chhindwara in ST No.141/2003 whereby, he has been convicted for offence punishable under Section 302 of IPC and sentenced to life imprisonment and fine of Rs.500/, in default of payment of fine, additional RI for three months. 2 Cr.A.No.9/2007
2. The prosecution case, in short, is that on 22.7.2002 in the evening the complainant Sukiya Bai (PW1) was working in the house of one Dhan Kumar Jain in Village Chandameta. She saw that the deceased Bastiram was going through a way along with the appellant Monu @ Manohar. After some time when she was going to her house, one child had informed her that the appellant assaulted the deceased Bastiram by a Gupti (a sharp cutting weapon) and the complainant Sukiya Bai found that Bastiram was lying on the road. Since the Police reached to the spot and the complainant was taken to the Police Station, she lodged an FIR Ex.P/1. The complainant Sukiya Bai (PW1) had also informed the Police that 46 months prior to the incident the appellant Monu abducted the wife of the deceased Bastiram and due to that reason the appellant and the deceased Bastiram had inimical relations. The injured Bastiram was taken to the Government Hospital, Chandameta where he was examined by Dr. N. R. Dhakariya (PW3) who gave a report Ex.P/3. Bastiram was admitted in the District Hospital, Chhindwara. He was examined by Dr. P. K. Shrivastava (PW9) and Dr. D. K. Mehra (PW10). Some surgery was also done by Dr. P. K. Shrivastava whereas, Dr. Mehra recorded a dying declaration of the deceased Bastiram. 3 Cr.A.No.9/2007 During the treatment Bastiram had expired and therefore, his body was sent for postmortem. Dr. Subhash Bhagat (PW7) had performed postmortem on the body of the deceased and gave his report Ex.P8/A. He found that his lung was cut and the anterior wall of the stomach was stitched and omentum was also found tied. Deceased died due to multiple injuries caused to him and hemorrhage. After due investigation charge sheet was filed before the Additional Chief Judicial Magistrate, Chhindwara who, committed the case to the Sessions Court and ultimately it was transferred to the Vth Additional Sessions Judge, Chhindwara.
3. The appellantaccused abjured his guilt. He did not take any specific plea in the case and therefore, no defence evidence was adduced.
4. The learned Additional Sessions Judge after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.
5. We have heard the learned counsel for the parties at length.
6. In the present case Sukiya Bai (PW1) has claimed herself to be an eye witness but, after considering the FIR Ex.P/1 lodged by her, it would be apparent that she was not an eye witness. She was the witness of factum of last 4 Cr.A.No.9/2007 seen that the appellant was seen with the deceased soon before the incident by her. After considering the various suggestions given to her in the cross examination and material contradictions between her statement before the Court and the case diary statement Ex.D/1 as well as the FIR (Ex.P/1), it would be apparent that she was not the eye witness. However, due to that exaggeration her testimony cannot be disbelieved in toto. She had lodged an FIR Ex.P/1 soon after the incident, by which it is corroborated that she saw the appellant and deceased Bastiram going together on the road in front of the house of Dhan Kumar Jain.
7. Tilku (PW2) has stated that at about 6.00 p.m, he had met Bastiram who, was sitting on a culvert. Bastiram went with the witness Tilku. They consumed some liquor and thereafter, they came back. The deceased Bastiram was walking behind the witness Tilku and therefore, Tilku could not see the incident but, on hearing the noise of fall, he turned his face and saw that Bastiram was lying on earth and appellant Monu was present there with a dagger. Monu even gave a threat to witness Tilku to leave the place immediately and not to tell about the incident to anyone. Some contradictions were marked in the statement of witness Tilku and his case diary statement Ex.P/2. 5 Cr.A.No.9/2007 Initially according to the case diary statement Ex.P/2, Tilku was the eye witness but, in the Court he did not claim himself to be an eye witness. However, a little portion of his testimony can be accepted though he was declared as hostile witness. It is true that Tilku did not claim himself to be an eye witness but, the statement to the fact are acceptable that when he saw the deceased lying on the ground, appellant was present on the spot with a dagger and he gave a threat to the witness. No enmity with the witness Tilku could be proved by the appellant and therefore, the statement given by witness Tilku can be accepted for the purpose of Section 6 & 8 of the Evidence Act.
8. On the basis of the statements given by Sukiya Bai (PW1) and Tilku (PW2), it would be apparent that initially the appellant was in company of the deceased when they passed on the way, in front of the house of Dhan Kumar Jain where, the complainant Sukiya Bai was working but, thereafter, they separated and the witness Tilku found the deceased Bastiram to be all alone on a culvert. Thereafter, when Tilku and Bastiram were coming after consuming liquor suddenly the appellant appeared in the scene of occurrence and when Tilku saw deceased Bastiram, lying injured and the appellant was present 6 Cr.A.No.9/2007 there with a dagger who, gave a threat. Under such circumstances, though there is no ocular evidence in the case but, by the statement of witness Tilku (PW2), it is established that soon after the incident the appellant was found with weapon, who gave a threat to the witness Tilku. Such a statement given by Tilku proves the subsequent conduct of the appellant soon after the incident and by such circumstances, it can be presumed that the appellant was present who, assaulted the victim Bastiram.
9. The prosecution has also proved the dying declaration Ex.P/14 recorded by Dr. Mehra (PW10). Dr. Mehra has stated that he recorded the statement as told by the deceased. In his cross examination, it was pointed out that he did not mention about the fitness of the deceased who, gave his statement but, he cleared such a position in his statement before the Court that although deceased Bastiram was in a serious condition and irritated, he was fit to give his statement. The statement given by Dr. Mehra is acceptable. Dr. Mehra committed a mistake in recording the dying declaration that when he mentioned the name of the deceased to be "Mastram" whereas, his name was Bastiram. Similarly, he mentioned his father's name to be "Atarlal" in dying declaration Ex.P/14 whereas, it was mentioned by some witnesses that the father's name of 7 Cr.A.No.9/2007 deceased Bastiram was Anakchand. In the document Ex.P/14 he did not record his statements in detail to show about the incident as to how the appellant assaulted the victim. In this context, it is to be noted the victim was referred from Government Hospital, Chhindwara and in case sheet Ex.P13/B, name of the deceased and his father's name were already mentioned. If Dr. Mehra (PW10) would have recorded the statement of the deceased on his own then he would have taken name and father's name of the deceased from the case sheet. It appears that due to serious injuries, voice of the deceased was not much clear and therefore, Dr. Mehra had mentioned the name of the deceased and his father's name, what he had heard. Looking to the condition of the deceased, detailed statements could not be recorded. Under such circumstances, the recording of dying declaration Ex.P/14 done by Dr. Mehra appears to be natural and dying declaration is clear and not suffering from any infirmity.
10. In this context the judgment passed by the Apex Court in the case of "Krishan Vs. State of Haryana"
[(2013) 3 SCC 280] in which it is held that if dying declaration, reiterated, can form sole basis of conviction without corroboration when it is voluntary, true, reliable, free from suspicious circumstances and recorded in 8 Cr.A.No.9/2007 accordance with established practice and principles. In the present case, looking to the text of document Ex.P/14, it is apparent that the statement recorded by Dr. Mehra is not polluted. He recorded the statement of the deceased as told by him in a natural way and though he has not mentioned about his physical condition in the document Ex.P/14 but, his physical condition as told by Dr. Mehra in the Court is to be accepted.
11. Dr. Mehra took signature of the witness Anand on the document Ex.P/14 to establish that the statement was recorded before Anand. But, Anand turned hostile. He did not corroborate the story of recording of the dying declaration. It was clear from the statement of Dr. Mehra (PW10) and Dr. Shrivastava (PW9) that some surgery of the deceased was required and due to blood loss, he could die at any instance and there was no time for the Police to call the Executive Magistrate for recording the dying declaration. It was also apparent from the statement of Dr. N. R. Dhakariya (PW3) that the deceased Bastiram was semiconscious. Only on insisting he was giving reply. Under such circumstances, it cannot be said that opinion of Dr. Mehra about the physical condition of the deceased is not acceptable. The learned counsel for the appellant has submitted that since no medical certificate was given by the 9 Cr.A.No.9/2007 the doctor concerned, the dying declaration recorded by the doctor cannot be accepted as such. He has placed reliance upon the judgment passed by Hon'ble the Apex Court in the case of "Arun Bhanudas Pawar Vs. State of Maharashtra"
[2008 Cri.L.J. 1798 (SC)] in which it was held that no medical certification produced to prove that the deceased was in a fit condition to make declaration then the dying declaration alleged to be given by the deceased cannot be accepted. In the present case, the factual position is different. The dying declaration is recorded by the doctor himself who, has also deposed before the Court that the deceased was in a condition to give the dying declaration and therefore, the law laid in the case of Arun Bhanudas Pawar (supra) cannot be applied in the present case and the practice and principles relating to dying declaration as laid in the judgment passed by the Apex Court in the case of Krishan (supra) are fully complied with in the present case. No suspicion is found in the procedure of recording the dying declaration.
12. Rajkumari (PW12) and Santoshi (PW17), the daughters of the deceased have stated that on getting the information that their father sustained injuries, they went to the District Hospital, Chhindwara and their father told them that assaults were made by the appellant Monu by 10 Cr.A.No.9/2007 Gupti. In the crossexamination of these witnesses, it was found that when they reached to the hospital, blood transfusion was being done to the deceased in the hospital. When blood was supplied to the deceased during and after the operation then certainly his condition was improved and therefore, if these witnesses have stated that they were informed by their father then their version can be accepted though they are interested witnesses. Hence the witnesses Rajkumari and Santoshi have proved the fact of oral dying declaration given by the deceased before them.
13. In the cross examination of Dr. Mehra (PW10), it was suggested by the defence counsel that he made entries in the bed head ticket Ex.P13(B) at about 12.05 a.m and on document Ex.P/14, time of its recording is mentioned to be 12.05 a.m, and he accepted the suggestion that both the writings could not be done simultaneously. In that respect on page 3 of of the document Ex.P/13B the entry was made 23.7.2013 at about 12.05 a.m, whereas, in document Ex.P/14 Dr. Mehra started recording the dying declaration at 12.05 a.m and completed at 12.15 a.m. He gave an explanation that by mistake he had mentioned the same time on both the papers. However, he made the entry in the bed head ticket before recording the dying declaration. Explanation given by Dr. Mehra appears to be 11 Cr.A.No.9/2007 acceptable because he urgently made an entry in the bed head ticket and referred the patient to the Surgical Specialist and soon after he started recording the dying declaration and therefore, if there was a difference of 45 minutes in writing both the documents then entry relating to time made by Dr. Mehra on the documents makes no difference and by such suggestion his testimony cannot be brushed aside.
14. Dr. N. R. Dhakariya (PW3) who examined the deceased initially found five incised wounds on his body. He mentioned injury no.3 to be a stab wound. His description relating to the injuries may be read as under :
1. Incised wound 3 cm. outer to left nipple 3.5 x 0.2 cm. x muscle deep.
2. Incised wound left lateral of mid neck 1.5 x0.25 x muscle deep.
3. Penetrating injury on the midway between umbilicus and xiphisternum size 3 x 1 cm. from which omentum was coming out.
4. Incised wound just below infraclavicular region left side 0.5 x 0.25 cm x muscle deep.
5. Incised wound on mid lumbar spine (back) size 3 x 1 cm. X muscle deep.
12 Cr.A.No.9/2007
He gave his opinion that injuries no.1,2, 3 and 4 were simple in nature whereas, injury no.5 was to be examined by a Specialist. Dr. D. K. Mehra (PW10) who examined the deceased at District Hospital, Chhindwara found two incised wounds, first wound was found on his neck and second near clavicle bone whereas one stab wound was found in the abdomen and another stab wound was found near the left nipple of the chest. He referred the patient to the Surgical Specialist. Dr. P. K. Shrivastava (PW9) operated the deceased and found that in the stab wound caused in the obdomen, omentum was protruding from the abdomen. A hole was also found on the interior surface of the abdomen which was repaired. There was a hole in the mesentry of the small intestine which was also repaired. However, the condition of the patient was serious and after the surgery the patient died. According to Dr. Shrivastava the injuries caused to the victim were fatal in nature.
15. The learned defence counsel asked the same question to Dr. Mehra about the nature of the injuries and tried to create a difference that whether the deceased sustained stab wounds or incised wounds. However, there was a difference in language of Dr. Dhakariya (PW3) and Dr. Mehra (PW9) relating to only one wound which was near the left nipple of the deceased. Dr. Dhakariya opined that 13 Cr.A.No.9/2007 wound was deep upto muscles but if Dr. Mehra found it to be a stab wound then it makes no much difference in the opinion given by the two doctors. The stab wound is an incised wound whose depth is much more than the depth of the incised wound. By a knife, stab wound as well as incised wound can be caused according to the direction of assault and force. Under such circumstances, it cannot be said that there was any difference in the injuries as opined by Dr. Dhakariya (PW3) or Dr. Mehra (PW10).
16. Dr. Subhash Bhagat (PW7) did the post mortem on the body of the deceased and gave his report Ex.P/8. He found that there were four stitched wounds on the body of the deceased below the wound on the back of the deceased. Left lung was also affected. A stab wound of 1cm. length and huge blood was found in the pulmonary cavity. Similarly he found the injuries in the abdomen as stated by Dr. P. K. Shrivastava (PW9). In his opinion, the deceased died due to so many injuries caused and hemorrhage due to that injury.
17. After considering the evidence given by Dr. Bhagat (PW7), it would be apparent that the deceased sustained mainly two stab wounds, one was in the abdomen from where omentum was protruding out from the abdomen. Certainly, if that wound would not have 14 Cr.A.No.9/2007 been repaired, the victim should have died. Similarly, the second stab wound was found on the back (injury no.5 as found by Dr. Dhakariya) and due to that wound lung was also affected and found cut. That would was not found to be repaired and ultimately the deceased died then certainly that injury was fatal in nature.
18. It is also proved by the witnesses Tilku (PW2), Sukiya Bai (PW1), Rajkumari (PW12) and Santoshi (PW17) that there was enmity between the deceased and the appellant because appellant abducted the wife of the deceased in the past and therefore, he assaulted the victim by a dagger.
19. The prosecution has also tried to prove the seizure of a weapon from the appellant. However, in the Forensic Science Laboratory's report Ex.C/1, no blood stain was found on the knife and therefore, it is not necessary to discuss about the evidence relating to seizure of knife. If the entire circumstantial evidence produced by the prosecution against the appellant is considered then it would be apparent that Tilku was in the company of deceased after consuming liquor. Suddenly, he found that the deceased fell down on the ground and when he turned around he saw the appellant standing there around with a dagger. The deceased sustained the injuries by a sharp 15 Cr.A.No.9/2007 cutting weapon. Dr. Mehra (PW10) recorded the dying declaration of the deceased in which the deceased had alleged that he was assaulted by the appellant. Rajkumari (PW12) and Santoshi (PW17) have also proved the oral dying declaration given by their father. Enmity between the appellant and the deceased is also proved. After considering the entire circumstantial evidence, it would be apparent that the chain of circumstantial evidence is complete and no suspicion is visible in the chain of circumstantial evidence. It is complete with a conclusion without any doubt that the appellant assaulted the victim by a dagger for 45 times due to which at least two fatal injuries were caused and in the result the deceased had died.
20. The appellant suddenly appeared in the scene of crime and assaulted the victim. He gave 45 blows to the deceased, out of those blows, two blows were given with force causing fatal injury to the deceased and therefore, intention of the appellant is visible that he intended to kill the deceased. Hence it is proved that the appellant had intended to kill the deceased and ultimately, he killed the deceased by making 45 assaults by a sharp cutting weapon upon him. The learned Additional Sessions Judge 16 Cr.A.No.9/2007 has rightly convicted the appellant for offence under Section 302 of I.P.C.
21. So far as the sentence part of the judgment passed by the trial Court is concerned, the appellant is sentenced to life imprisonment and with a small amount of fine of Rs.500/. Looking to the crime committed by the appellant the sentence directed by the trial Court appears to be reasonable. There is no reason to interfere in the quantum of sentence directed by the trial Court.
22. On the basis of the aforesaid discussion, there is no case made out by the appellant so that any interference can be done either in conviction or in findings of sentence given by the trial Court. The appeal filed by the appellant is devoid of any merit and therefore, it cannot be accepted. Consequently, the appeal filed by the appellant is hereby dismissed.
(Ajit Singh) (N.K.Gupta)
Judge Judge
/07/2014 /07/2014
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