HARIOM Vs. STATE OF M P

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 18-5-98, passed by Sessions Judge, evidence of premeditation or intention to cause death- Conviction of appellants under Section 302 read with Section 34, IPC modified to that under Section 304, Part II read with Section 34, IPC- Jail sentence reduced to that already undergone by appellants/accused- Appeal partly allowed. 1994 SCC (Cri.) 581, 1994 SCC (Cri.) 1413, 2000 (8) Supreme 572 and AIR 2003 SC 836 followed. AIR 1957 SC 474 distinguished. The deceased has not received any injury on the vital parts of his body. All the injuries received were on non-vital parts of the body of the deceased. The injuries were on legs and hands. Though the appellants were having sword and "tomy" in their hands which are sharp cutting objects but there is no evidence of premeditation or intention to cause death. Looking to the other evidence on record that there was no previous enmity between the parties and the deceased himself went on the place of occurrence, we find that the case of the appellants will not fall under Section 302, IPC, but, it will fall under Section 299 read with Section 304, Part ii of IPC for culpable homicide not amounting to murder. (Para 11)Vidisha in Sessions Trial No. 196/97 whereby appellants have been convicted under Sections 302 read with Section 34 of IPC and sentenced to life imprisonment and fine of Rs. 2000/- each and in default of payment of fine to further undergo R. I. for one year each, appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure.

(2.) ACCORDING to the prosecution story, the incident took place on 9-7-97. On that day, one Shivnarayan had gone to purchase some grocery goods from Village Barwai to Ganj Basoda. From there he returned on a motorcycle with one Anshul and one Bahadur Singh. On returning from Ganj Basoda, he stopped at the Bus Stand of Village Barwai to collect the aforesaid goods. Appellants Hariom, Jai Singh and Jaggu are also having their "gumti" shops at the Barwai Bus Stand. Appellant Hariom is also having his shop to Iron clothes at the Barwai Bus Stand. At that time there was some altercation between shivnarayan and the appellants on the Barwai Bus Stand. Thereafter shivnarayan went to his house and informed his father Gokul Prasad (P. W. 6)and brother Brajesh Kumar (P. W. 1) about the altercation with the appellants. After informing his family members he again came on the Bus Stand. His brothers Brajesh Kumar (P. W. 1) and Pratipal (P. W. 4) also came behind him as shivnarayan had intimated them about the altercation. When Shivnarayan reached at the place of occurrence, appellant Hariom assaulted him by Sword and appellants Jai Singh and Jaggu assaulted him by "tomy". The incident was witnessed by Brajesh (P. W. 1) and Pratipal (P. W. 4) who were coming behind shivnarayan. Seeing them, the appellants ran away from the spot. Brajesh (P. W. 1) and Pratipal (P. W. 4) saw the injured and injuries on his hands and legs. Brajesh (P. W. 1) and Pratipal (P. W. 4) immediately came back to their house and informed about the incident to their father Gokul Prasad (P. W. 6) and chowkidar Netram. They also brought Dr. Sanjay who is having his Unani Clinic at the Bus Stand. Dr. Sanjay came on spot and after seeing the injured, advised that he be taken to Civil Hospital Kurwai. After arranging Tractor-Trolley, the injured was shifted to Kurwai. FIR was also lodged at Police Station, Kurwai, from where the injured was referred to hospital where he was medically examined by Dr. K. M. Goyal (P. W. 7 ). MLC was recorded. Dying declaration of the injured was also recorded by Dr. K. M. Goyal (P. W. 7) which is Ex. P-l 1 as in the late night, no Executive Magistrate was available to record his statement and thereafter the injured was referred to District Hospital, Vidisha where he was declared dead (hereinafter referred to as "deceased" only ). Merg was registered at Kotwali, Vidisha and Panchayatnama of the dead body (Ex. P-2) was prepared. Safina form (Ex. P-3) was also prepared. Post mortem of the dead body was performed by Dr. M. K. Ostwal (P. W. 15) next day and the intimation about the death was given to Police Station, Kurwai. Matter was further investigated by Mukesh Choubey (P. W. 14), Sub-Inspector. He arrested the accused persons and recovered sword and Tomy from them. Spot map was prepared. Plain and blood stained soil was seized. Blood stained clothes of the deceased were also seized. Seized articles were referred for chemical examination to Gwalior, its report is Ex. P-30 and charge-sheet was filed.

(3.) DURING trial, appellants abjured their guilt and denied their participation in the commission of crime. Trial Court found the evidence of dying declaration and the evidence of Brajesh Kumar (P. W. 1) coupled with the evidence of Dr. K. M. Goyal (P. W. 7) to be reliable. As per Dr. K. M. Goyal (P. W. 7), injuries received by the deceased on both the hands were dangerous to life and as per the evidence of Dr. M. K. Ostwal (P. W. 15), injuries were sufficient in the ordinary course of nature to cause death. Appellants have not produced any witness in defence. Trial Court after appreciating the evidence, found the appellants guilty, convicted them and sentenced them as aforesaid against which they have preferred this appeal.