GAJJU @ GAJENDRA Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant has been convicted under section 304, Part II of the Indian penal Code and sentenced to rigorous imprisonment for five years. The prosecution case, briefly stated, is that on 17 -7 -1988 at about 8.30 p.m. deceased Bharat Kumar was taking two passengers in his cycle -rikshaw from Bajariya to bus stand. When he reached in front, of the shop of Mathura Sahu at Tamaryayee accused Gajju Patwa of Shobhanagar, who earlier used to sell Kulfi, was sitting on bench along with two other boys. Bharat Kumar asked to remove the bench so that his rikshaw may pass which was not acceded to by the accused and the accused hurled abuses. Bharat Kumar asked not to abuse. On that the accused took out a knife and inserted it above the abdominal area towards the left side of rib of Bharat Kumar which was cut and started bleeding. The accused wanted to inflict another injury. His hand was caught hence he could not inflict second injury on Bharat Kumar. On raising hue and cry by deceased Bharat Kumar Kallu (PW 4) and Raju (PW 8) intervened. The incident was witnessed by other persons also. Owing to the knife blow Bharat Kumar fell down. He was taken to the police station in another cycle rikshaw where Bharat Kumar himself lodged the F.I.R. (Ex. P/15). For eight days Bharat Kumar was treated in the hospital and discharged on 25 -7 -1988. He was re -admitted in the hospital on August 2nd, 1988 owing to loss of blood and pain. He ultimately died on 5 -8 -1988 at 11.30 a.m. in the hospital. The accused abjured the guilt and contended that he was falsely implicated in the matter. He submitted that he was not at all involved in the alleged incident.

(2.) THE learned counsel for the appellant in the present appeal has submitted that the appellant has been roped in the case. The actual assailant was not known. The name of the accused has been falsely written subsequently. His submission is that in the requisition Ex. P/1(a) it was mentioned that the assailant was not known. He further submitted that in Ex. P/20 which is a letter written by the Station House Officer, Kotwali on 30 -7 -1988 it was initially mentioned that unknown person had inflicted knife injury on July 17, 1988. Thereafter, the words 'unknown person' were scored off from the letter Ex. P/20 which is still visible. In such circumstances, it is submitted that conviction cannot be upheld. Reliance is placed on Kalusingh vs. State of M.P., : 1994 MPLJ 560 and two decisions of the Supreme Court in Rehmat vs. State of Haryana, : AIR 1997 SC 1526 and Devinder vs. State of Haryana, : AIR 1997 SC 454. Further submission of the learned counsel is that compliance of section 157, Code of Criminal Procedure has not been proved by the prosecution which casts a serious dent on the prosecution case and shakes the entire edifice of the prosecution case. His further submission is that eye witness Lakhanlal Soni (PW 1) is not a reliable witness. He had not disclosed the incident for about three to four days to anybody. The learned counsel has placed reliance on the decisions of the supreme Court in State of Orissa vs. Brahmananda, : AIR 1976 SC 2488, Peddireddy Subbareddi vs. State of A.P., : AIR 1991 SC 1356; and Alil Mollah vs. State of West Bengal, : AIR 1996 SC 3471 to contend that such a witness is not a reliable witness. Other eye witness Kallu alias Bharose (PW 4) did not support the prosecution case and was declared hostile. The learned counsel has further submitted that the dying declaration was recorded after 17 days of the incident. There was enough time to improve upon and that is not a reliable piece of evidence. Another submission of the learned counsel is that conviction could not be recorded under section 304, Part II, Indian Penal Code. It was simple injury caused by knife blow punishable within the purview of section 325, Indian Penal Code. The learned counsel for the State has submitted that the conviction recorded under section 304, Part II, Indian Penal Code calls for no interference. Delay in recording the statement of Lakhanlal (PW 1) has been satisfactorily explained. F.I.R. was lodged promptly by the deceased himself. In the F.I.R. name of the accused was mentioned by the deceased. The incident took place at 21.00 hrs and the report was lodged 30 minutes thereafter. Dying declaration has been proved by S.K. Tawar (PW 7) Executive Magistrate.

(3.) IN order to examine the first submission of the learned counsel that the name of the accused was subsequently inserted, corresponding documents on record require close scrutiny, in order to find out the truth. Ex. P/1 is a medical requisition issued to the doctor on 17th July while sending the injured for investigation. In that it is apparent that initially it was mentioned that unknown person had inflicted knife injury, but the words (unknown person) had been scored off and 'Gajju Patwa' has been inserted. Ex. P/20 is requisition dated 30th July 1988 as after the discharge the deceased was to be re -admitted again for treatment. In the third line of Ex. P/20 after the words 'July 17, 1988' it was mentioned initially that unknown persons had inflicted the knife injury. These words have been scored off on Ex. P/20, which is a carbon copy of the letter, by using ink pen and name of accused Gajju Patwa has been inserted after deleting the words. In view of these documents, it becomes necessary to examine other contemporary documents in order to find out whether the name of the accused was not known to the police upto 30th July 1988. The documents prior to 30th July 1988 may be scrutinised first. On 18th July 1988 at 12.05 hrs. police had prepared seizure memo of plain soil and blood stained soil. In this document Ex. P/8 name of the accused does not find place. Spot map Ex. P/9 is said to be drawn 18th July, 1988 in which name of the accused Gajju Patwa has been no doubt mentioned at point No. 5 as the person who had inflicted the injury on the deceased with knife. It is also apparent from spot map that the incident took place in a thick locality on the main road known as 'Ghanta Ghar Road'. The spot map was prepared at the instance of Raju and Ramsingh Thakur one of the witness was Mattu who had refused to sign the spot map as mentioned in the witness column on the back of Ex. P/9. It bears the signature of witness Mohammad Ismail Khan. Raju Thakur (PW 8) has denied that he has witnessed the incident. He denied his police statement, seizure of soil vide Ex. P/8 and also stated that spot map (Ex. P/9) was not prepared in his presence. He has admitted his signature in the portion 'A' to 'A' on the spot map (Ex. P/9). Ismail Khan has not been examined by the prosecution. F.I.R. (Ex. P/15) which was recorded immediately after the incident records the name of Gajju Patwa as the assailant. The report was lodged after 30 minutes of the incident on 17 -7 -1988 by the victim Bharat Kumar himself. In the F.I.R. prima -facie there is no interpolation. Clothes of the deceased were seized by the police on July 28, 1988 vide Ex. P/17. In the seizure memo obviously name of the accused has not been mentioned as there is no column which requires mentioning of the name of the accused or details of the offence.