Dariyaonath vs State

Hon'ble Shri Justice A.K. Shrivastava

Feeling aggrieved by the judgment of conviction and order of sentence dt. 13.11.1997 passed by learned XIth Additional Sessions Judge Indore in S.T. No. 692/1993 convicting the appellant u/s 304 Part-II IPC and thereby sentencing him to suffer 7 years RI this appeal has been preferred u/s 374 (2) of the Code of Criminal Procedure, 1973. In brief, the case of prosecution is that in the night of 25.7.1993 Onkarnath (hereinafter referred to as the deceased) slept in his house at that juncture, he heard the sound of jumping of a dog on the roof of his house, resultantly the deceased started hurling the abuses. At that juncture, the appellant who is neighbour arrived and told that it was his dog who jumped to the house of the deceased and asked him not to hurl the abuses but the deceased continued hurling the abuses. Resultantly, the appellant dealt blows of iron rod upon him as a result of which, the deceased sustained injuries and he died on the spot The FIR was lodged by Banobai (PW-1) who is daughter of the deceased and the matter was investigated.

After investigation was over a charge sheet was submitted in the Committal Court and the case was committed to the Court of Session and from where, it was received by the Trial Court for the trial.

The learned Trial Judge framed charges punishable u/s 302 IPC against the appellant which he denied. The prosecution thereafter examined its witnesses and also proved the documents. The defence of appellant is of false implication and the same defence is set forth in his statement recorded u/s 313 Cr.P.C. but he did not choose to examine any witness in support in his defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charge u/s 302 of IPC is not proved but on the basis of evidence placed on record came to hold that charge u/s 304 Part-II of IPC has been proved and resultantly convicted and sentenced the appellant to suffer 7 years RI.

In this manner, this appeal has been filed by the accused assailing the judgment of conviction and order of sentence. I have heard Shri Trivedi, learned Counsel for the appellant and Shri Parmar, learned Public Prosecutor at length. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed.

On bare perusal of the testimony of the eye-witnesses Banobai (PW-1) who is also the author of the FIR Ex. P/1 it is gathered that on the point of jumping of the dog of appellant at the roof of the house of the deceased the incident took place as a result of which, the appellant dealt iron rod blows upon the person of the deceased. This witness has also proved the FIR Ex. P/1. Despite their being a roving cross-examination, this witness remained firm in her testimony. I do not find any merit in the contention of learned Counsel for the appellant that the statement of this witness cannot be relied upon because as per her testimony on account of giving blows by the iron rod by the appellant the temporal bone of the deceased was fractured and it was exposed. Even if this statement was not medically corroborated, since the Dr. Suresh Kumar Mundara (PW-10) did not find that any bone was exposing out of the body, at the most it can be said that she is aggravating the circumstances and the manner in which the blows were given by the appellant to the deceased. The principle of legal maxim ''falsus in uno, falsus in omnibus'' is not applicable in India and, therefore, even that part of her evidence is ignored, since there is clear, cogent and trustworthy evidence of this witness Banobai (PW-1) that appellant dealt iron rod blows upon the person of the deceased as a result of which he has died, it cannot be said that appellant has not dealt the iron rod blows to the deceased.

The statement of this witness has been corroborated by the evidence of Shakribai (PW-4) who is the wife of the deceased and also the evidence of Autopsy Surgeon Dr. Suresh Kumar Mundara (PW-10) who found following injuries on the person of the deceased which are shown in the post mortem report Ex. P/9:

(i) Abrasion-3.0 cm x 1.0 cm vertical, 1.5 cm lateral to right angle of right eye.

(ii) Abrasion postero medial aspect of left elbow 3,1/2 cm x 1 cm vertical oblique.

(iii) Abrasion back of right elbow 1.0 cm x 1.0 cm irregular.

(iv) Abrasion anterior medial aspect of left knee 1.5 cm x 10 cm oblique.

(v) Abrasion anterior lateral aspect of right knee 1.0 cm x 0.7 cm transverse.

(vi) Abrasion left side of back T. 11-12 region 6.0 cm x 1, 1/2 cm vertical, 4, 1/2 cm.

On going through the evidence of eye-witnesses Banobai (PW-1) and Shakribai (PW-4) which is also medically corroborated I am of the view that learned Trial Court did not commit any error in convicting the appellant u/s 304 Part-II of IPC. The learned Trial Court has already adopted leniency while awarding sentence of 7 years. No further leniency is to be adopted. For the reasons stated hereinabove, I do not find any merit in this appeal. The same is, hereby, dismissed. The appellant is on bail. His bail bond shall stand cancelled only after he surrenders before the learned Trial Court on or before 31.10.2012 to serve out the remaining part of sentence. The learned Trial Court is, hereby, directed that in case appellant fails to appear on or before 31.10.2012, he shall issue perpetual arrest warrant against him and shall also issue notice against his surety and may pass necessary orders against the surety. However, if appellant surrenders on or before 31.10.2012, he shall be sent to the Jail to serve out the remaining part of sentence and then only the bail bonds shall stand cancelled. After sending the appellant to the Jail, the learned Trial Court shall intimate the Registry of this Court. The bail bond papers shall be sent to the learned Trial Court by Registry of this Court along with the record so as to reach that Court much prior to 31.10.2012. The photocopy of bail bond papers shall be retained in this file.