VINAY KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment of the Division Bench of Madhya Pradesh High Court in Criminal Appeal No. 15 of 1979 by which the judgment of acquittal passed against the appellant, Vinay Kumar, by the learned Additional and District and Sessions Judge, Khurai, in Sessions Trial No. 12 of 1978, was reversed by the High Court and the appellant was convicted for an offence under Section 302, Indian Penal Code and was sentenced to suffer imprisonment for life. It may be stated here that the learned Additional Sessions Judge acquitted both the accused, namely, Vinay Kumar and Anil Saxena and the appeal of the State against Anil Saxena was dismissed by the High Court but the appeal against the acquittal of Vinay Kumar was admitted and disposed of as indicated.

(2.) The prosecution case in short is that Vinay Kumar had been bearing grudge against the deceased Surendra Kumar and his father and on October 19, 1977 at about 6.30 P. M. the deceased had gone to the Railway Station Bamora Mandi. The Amritsar Exress arrived by then and was at the platform. The appellant, Vinay Kumar, and the co-accused, Anil Saxena, came there. While Anil Saxena caught him, Vinay Kumar gave a knife blow which went deep into the abdominal cavity. The train whistled to move and Vinay Kumar boarded the train with the knife in his hand and Anil Saxena also ran after him and also boarded the train. 'The said infliction of the knife injury was witnessed by a number of persons present at the platform. Surendra Kumar was immediately taken to the local hospital and Dr. Nema gave the first aid to the deceased and finding the condition serious he recorded Surendra's dying declaration (Ex. P-25). It is the case of the prosecution that the Sub-inspector, Hemraj Shukla (P.W. 9) after obtaining report about the said incident given by Dayachand also reached the hospital and after ascertaining from the doctor that Surendra was conscious and in a fit state to give statement, he also recorded the statement of Surendra which is Ex. P-9. On the advice of Dr. Nema, Surendra Kumar was shifted to Bhopal Medical College Hospital immediately by stopping Lucknow-Bombay Express at the said Railway Station, with the help of Assistant Station Master but despite surgical operation, Surendra Kumar died on October, 22, 1977. On October 23, 1977, both Vinay Kumar and Anil Saxena were arrested from Bina and it is the prosecution case that a knife was recovered from the possession of the appellant. Vinay Kumar. The prosecution examined six eye-witnesses, namely, Gulab Chand (P.W. 8), Rajendra Kumar (P. W. 16), Hafiz Mohammad (P.W. 20). Raj Kumar (P. W. 17), Mohammad Khali (P.W. 25), Ratanchand (P.W. 26). Out of the said six eyewitnesses Rajendra Kumar (P.W.16) and Ratanchand (P.W. 26) were declared hostile. The learned Additional Sessions Judge after considering the evidences adduced in the case inter alia came to the finding that the complicity of' the co-accused Anil Saxena could not be established. Accordingly, he was acquitted by the learned Sessions Judge. So far as the appellant, Vinay Kumar, is concerned, the learned additional Sessions Judge inter alia came to the finding that both the dying declarations recorded by the Sub-Inspector of Police and by Dr. Nema could not be believed and the statements of the eye-witnesses also could not be believed. Accordingly, he acquitted Vinay Kumar by giving him benefit of doubt. As aforesaid, the State preferred an appeal against the said order of acquittal but the appeal against Anil Saxena was dismissed and the appeal against the appellant, Vinay Kumar, was allowed by the Division Bench of Madhya Pradesh High Court.

(3.) It has been found by the High Court that Dr. Nema was independent and respectable witness who had recorded the dying declaration in a proper manner and had. deposed that the deceased was conscious and was in a fit state of mind to make the said statement and in the dying declaration the patient lad categorically stated that Vinay Kumar had stabbed him at the Railway Platform. The High Court has also held that the doctor had taken precaution to see that no one had prompted or given suggestion to the deceased before making the dying declaration and the doctor had not permitted the mob collected at -the hospital to come in the examination hall. The High Court has further field that the incident had taken place at the Railway Station when Amritsar Express had arrived and the platform was thronged by travellers and visitors. It was, therefore, natural to expect that the incident could not go on unnoticed. It has been held by the High Court that in any event the person standing near the victim must have seen the assailant fleeing or boarding the train with knife in hand and the victim raising alarm. It has also been noted by the High Court that the victim did not immediately collapse or become unconscious and being conscious he must have immediately disclosed the name of the assailant and there could not be any mistake on the identity of the assailant. The High Court has noted that Ratanchand (P.W. 26) was declared hostile but he has admitted that when the injured was being picked up, he saw, Rajkumar (P. W. 17) and Hafiz Mohammad (P.W. 20) at the spot. Rajkumar (P.W. 17), Hafiz Mohammad (P.W.20) Mohammad Khan (P. W. 25), Gulabchand (P. W. 8) have stated that they had seen Vinay Kumar inflicting the knife blow on Surendra Kumar.