Ashok Kumar vs State of Madhya Pradesh

Hon''ble Mr Justice Pritinker Diwaker

This appeal has been preferred against the judgment and order dated 22.2.1996 passed by Additional Sessions Judge, Durg in Sessions trial No. 311/1995 holding the accused/appellant guilty u/s 304 Part-I IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for six months. Case of the prosecution in short is that on 1.5.1995 at about 11.30 a.m. there was some dispute between the accused/appellant and the deceased namely Pitamber Yadav in which the accused/appellant is said to have assaulted the deceased with a wooden piece causing as many as nine injuries. Thereafter, he was admitted in Government Hospital, Durg on the same day for treatment where he died on 5.5.1995. Merg intimation Ex. P-11 was given by constable namely Johan Panna which was reduced to writing by Shivram Ahirwar (PW-7). Based on the said merg intimation, FIR Ex. P- 13 was registered for the offence u/s 302 IPC and after investigation challan was filed by the police on 19.7.1995 for the said offence.

So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the trial Court though acquitted the accused/appellant u/s 302 IPC but has convicted and sentenced him as mentioned above. Hence, this appeal.

Counsel for the appellant submits that present is a case where first of all the deceased assaulted the accused/appellant with sword causing injury on his palm and shoulder. According to him, there is no eyewitness to the incident and this apart none of the witnesses has stated that it was the accused/appellant who assaulted the deceased. He submits that the star witness of the prosecution namely Kejiya Bai (PW-8) has not supported the case of the prosecution and has been declared hostile. He submits that even if the first plea of the accused with respect to false implication is not accepted, his alternative argument is that it is the deceased who first assaulted the accused/appellant for which a report was also lodged by him and that this fact has been admitted by the Investigating Officer (PW-9). He further submits that the accused/appellant was assaulted by the deceased with sword and the accused/appellant might have used the wooden plank in causing injuries just to save him. He submits that when the deceased was hospitalised, only simple injuries were noticed on his body which has been admitted by the Investigating Officer (PW-9) categorically stating that as the deceased had suffered simple injuries, he did not inquire into the matter. He submits that diary statement of Ram Krishna (PW-2) and Kejia Bai (PW-8) have been recorded on 9.5.1995 and this inordinate delay in doing so has not been explained by the prosecution as required under the law. He further submits that even the injuries sustained by the accused/appellant have not been explained by the prosecution.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that though none of the witnesses has narrated the actual occurrence, there is enough evidence on record to show that on the date of incident the accused/appellant, the deceased and Kejia Bai (PW-8) were standing together and there was some dispute between the accused/appellant and the deceased. He submits that if the accused/appellant is taking the plea of self defence, it amounts to admission of the fact that it is he who assaulted the deceased. He further submits that the wooden plank was seized from the possession of the accused/appellant vide seizure memo Ex. P-2 on the basis of memorandum Ex. P-1. He submits that the plea of self defence and false implication cannot be taken at the same time and that even if the plea of self defence is accepted, the appellant has exceeded his right of private defence by causing as many as nine injuries on the vital parts of his body including three fractures. He further submits that the Court below has already taken a lenient view by not convicting the appellant u/s 302 IPC and has convicted him u/s 304 Part-I IPC and sentenced him to undergo RI for seven years. He submits that if the investigation has not been done properly by the police immediately after the incident, the accused/appellant cannot draw any benefit of the same and it was the duty of the appellant to produce the medical certificates showing that he was assaulted by the deceased.

Heard counsel for the parties and perused the material available on record.

Smt. Laxmi Khalko (PW-1) has stated in her evidence that on the date of incident she saw the deceased lying on the ground and in front of him the accused/appellant and Kejia Bai (PW-8) were also standing. According to this witness, blood was coming out from the head of the deceased. When she enquired from someone whose name she did not know, it was told to her that there was some quarrel between the accused/appellant and the deceased in which the accused assaulted him. She has further stated that in the meanwhile one Manoj Mishra came there and took the deceased to the hospital in a jeep. According to this witness, as Kejia Bai (PW-8) - the wife of the deceased used to sit with the accused/appellant, the dispute erupted between the deceased and the accused. In cross examination, this witness has stated that the place where the deceased was lying, wooden pieces were lying there including one wooden plank. She has further stated that she saw the deceased lying in an unconscious condition and he was unable to speak anything. According to her, the accused/appellant had also sustained certain injuries which were bleeding but she was not aware as to how he had sustained the same. Ram Krishna (PW-2) is the witness of memorandum (Ex. P-1) and seizure of handle of sofa vide Ex. P-2 and plain as well as blood stained soil vide Ex. P-3. This witness has categorically stated that seizure was made in his presence and that his house is near to Prayag Timber shop where the incident had taken place. According to him, after hearing the shouts of the wife of the deceased when he rushed to the spot, he saw that the blood was coming out from the arm of the accused/appellant and on being asked, he told him that deceased had assaulted him. Thereafter, this witness has stated that he also saw one person lying near the Prayag Timber shop where his wife was also standing. However, at this stage, this witness has been declared hostile. In cross examination, this witness has denied that the police had ever recorded the statement of the accused/appellant. He has stated that the police had obtained his signature on a blank paper and he was not aware as to what was written thereon subsequently. Patiram Bareth (PW-3) is the Patwari who prepared the spot map Ex. P-5. Ghanshyam (PW-4) is the witness of inquest Ex. P-6 and P-7. Dr. R.N. Pandey (PW-5) is the witness who had conducted post mortem examination on the body of the deceased and found the following nine injuries:

(i) Abrasion on right hand measuring 1"X1/2".

(ii) Abrasion on 9th I.C.S of left chest measuring 1/2"x1/2"

(iii) Abrasion on nose measuring 1"x1/2".

(iv) Abrasion on forehead measuring 1"x1/2".

(v) Abrasion on left ankle point measuring 1"x1".

(vi) Abrasion on left elbow point measuring 1/2"x1/2".

(vii) Black eye both sides.

(viii) Lacerated wound measuring 1"x1/2"x1/4" on left occipital region.

(ix) Lacerated wound measuring 1/2"x1/2"x1/2" in nostril. Lacerated wound measuring 1/2"x1/4"x1/4" in medial aspect and left eye upper part.

He has stated that on internal examination, he found three fractures including that of left parietal and temporal bone. According to him, left base of skull was also fractured and epidural and sub-dural intra-cerebral haematoma was present in the left parietal and temporal area. He has further stated that the deceased was hospitalised on 1.5.1995 in District Hospital Durg where he died on 5.5.1995. According to him, cause of death is shock and hemorrhage as a result of head injury. This witness has further stated that the injuries sustained by the deceased could be caused with the wooden plank seized by the police and produced before him. In paragraph 13 of his deposition, this witness has also stated that the injuries found on the body of the deceased could also be caused by fall on a stone or piece of wood. B.P. Bhoi (PW-6) has done part of the investigation. Shivram Ahirwar (PW-7) is the witness who recorded merg intimation Ex. P-11 based on which FIR Ex. P-13 was registered. Kejia Bai (PW-8) -wife of the deceased with whom it is alleged that accused/appellant was having some relation, has stated that when she was returning from her work-place, her husband came there with sword and while after assaulting the accused/appellant, he was running away, he fell down and sustained injuries on his head as a result of which he became unconscious. At this stage, she has been declared hostile. She has admitted the fact that her statement Ex. P- 12 was recorded by the Police. M.D. Tiwari (PW-9) is the investigating officer who has supported the case of the prosecution. The appellant in his statement recorded u/s 313 of the Code of Criminal Procedure has stated that he was assaulted by the deceased and when after assaulting him he was running away, he fell down on the ground.

From the evidence available on record, it is apparent that there is no eyewitness to the incident who has narrated the entire incident. However, from the statement of Ram Krishna (PW-2) it is clear that there was some dispute between the accused and the deceased as the accused/appellant was having some relation with the wife of the deceased. Evidence also makes it clear that the deceased had assaulted the accused/appellant as a result of which he sustained certain injury but from the circumstances it could be gathered that the accused/appellant had assaulted the deceased with a wooden plank causing as many as nine injuries on vital parts of his body. Post mortem report shows the gravity of the injuries sustained by the deceased including three fractures. This Court finds no force in the argument of the counsel for the appellant that the deceased had sustained injuries because of fall while running after assaulting the accused/appellant for the reason that as many as nine injuries were sustained by the deceased and no specific question was put to the doctor so as to elicit the justification thereof. Further, the evidence adduced by the prosecution goes to show that it is the accused/appellant who had assaulted the deceased causing injuries on vital parts of his body including three fractures. The factum of assault by the accused/appellant further gets strengthened because he has taken the plea of self defence. Mere fact that no report was lodged by the deceased does not give any benefit to the accused/appellant because the record itself shows that after sustaining injuries on 1.5.1995, he became unconscious and was admitted in the hospital on the same day where he died on 5.5.1995. This Court further finds no force in the argument of the counsel for the appellant that the star witness of the prosecution namely Kejia Bai (PW-8) - the wife of the deceased has not supported the case of the prosecution. Case of the prosecution itself is that said Kejia Bai was having some relations with the accused/appellant which was objected to by the deceased and this led to some dispute between the appellant and the deceased as a result of which deceased was killed by the appellant. Once Kejia Bai was having some relations with the accused/appellant, question of her speaking anything against him does not arise and that being so the appellant can not have any benefit if said Kejia Bai has not stated against the accused/appellant. Similarly, no benefit goes to the accused/appellant because of the report lodged by him for the alleged assault by the deceased. Statement of the investigating officer that because of the injuries being simple in nature he did not enquire anything from the deceased after 1.5.1995, is of no help to the accused/appellant. If there is some lacuna on the part of the investigating officer in not conducting the prompt investigation, accused/appellant cannot derive any benefit from the same. Even if for the sake of argument the plea of self defence is taken to be true, then in that case he has exceeded his right of private defence because the evidence goes to show that as many as nine injuries were caused to the deceased including three fractures. Having thus considered all the aspects of the matter, this Court is of the considered opinion that the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above are based on due appreciation of the evidence on record and that being so the judgment impugned appears to be fully justified. Accordingly, the appeal being without merit is liable to be dismissed. It is dismissed as such. As the appellant is on bail, his bail bonds stand cancelled. He be sent to jail forthwith for completing his sentence.