Dhruv Singh and others vs Shyamlal and another

The challenge in the present appeal is to a judgment dated

4.10.2005 passed by Special Additional Sessions Judge, Bhopal convicting

Appellant No.1 Imran Khan for an offence punishable under Sections 302 and

307 of I.P.C. and Appellant No.2 Pavan for an offence punishable under

Section 302 read with Section 34 of I.P.C. Vide separate order Appellant No.1

Imran was sentenced to undergo life imprisonment with fine of Rs.10,000/- and

in the event of default of payment of fine, he was further ordered to undergo

two years rigorous imprisonment for the offence punishable under Section 302

of I.P.C. For an offence punishable under Section 307 of I.P.C. Appellant No.1

Imran Khan was ordered to undergo seven years rigorous imprisonment and to

pay a fine of Rs.5,000/- and in default of payment of fine amount he was further

sentenced to undergo rigorous imprisonment for one year. The substantive

sentences were ordered to run concurrently. On the other hand, Appellant No.2

Pavan Gaynewar was convicted and sentenced to undergo life imprisonment for

an offence punishable under Section 302 read with Section 34 of IPC with fine

of Rs.10,000/- and in default of payment of fine to undergo rigorous

imprisonment for 2 years.

The prosecution case was set in motion on the statement of Mohan

Singh Thakur - PW-6 made to R. S. Raj - PW-14, A.S.I., Police Station - M. P.

Nagar, Bhopal at about 10:30 p.m. on 30.7.2004 in respect of an incident which

happened on the same day at about 8:30 p.m. The statement is that he is a

student of class 12th and at about 8:30 p.m. on 30.7.2004, when he and his

friend Rahul were standing in front of Quarter No.122/13, accused Imran Khan

and Pavan came. Imran abused Rahul by asking as to why he has come to his

house with boys. Rahul, in turn, questioned accused-Imran that as to why did he

hit son of his relation namely, Amit Birthare, a day before. Rahul told him that

he had gone to counsel his father. There was altercation between two of them.

Rahul told Imran that to advise was his duty. Imran abused Rahul and took out

a Gupti (dagger) and started hitting Rahul. Accused Pavan caught hold of Rahul

from behind. When he tried to intervene, Pavan caught hold of him, but, Imran

continued to hit Rahul with dagger. Rahul fell down, at that time Abdul Ajeem

@ Lalu came to protect Rahul from Imran, but Imran hit on his left arm with

dagger. Pavan kicked Rahul, when he was lying on ground. In the meantime,

villagers came from the locality and Rahul was taken to 1250 hospital by PW-6

Mohan Singh Thakur and his friend Vishal in an auto.

On the basis of such report, PW-14 Ramswaroop Raj, A.S.I. took

over the investigation. He is one who lodged the FIR Ex.P-10 soon after the

occurrence at about 11:15 p.m. He collected the blood stained earth and sample

earth vide memo Ex.P-2 in the presence of witnesses Ratnesh PW-2 and Mukul

Lokhande. On 31.7.2004, he recorded the statement of Sillu @ Shailendra,

Abdul Ajeem @ Lalu PW-10, Vishal Bhausar PW-8. On 12.8.2004 he recorded

the statement of Abdul Fahim and Panduram Nate. He took in possession the

dead body from the mortuary of Hamidiya Hospital on 31.7.2004 and sent it for

postmortem examination vide memo Ex.P-5. The accused Pavan was arrested

on 31.7.2004 vide memo Ex.P-15 and on the basis of his disclosure statement

Ex.P-17 clothes worn by appellant Pavan were recovered vide memo Ex.P-18.

On the same day i.e. on 31.7.2004 he prepared the site plan on the basis of

statement of Mohan Singh Thakur PW-6 and Amit @ Sonu and Vishal Bhausar

vide memo Ex.P-1. Accused Imran was arrested on 31.7.2004. On the basis of

his disclosure statement, he recovered the bloodstained clothes worn by him

such as - a T-shirt of blue sky colour, one lower (Pajama) of blue colour with

white yellow strip on the side vide memo Ex.P-19. On the basis of separate

disclosure statement Ex.P-20, a dagger, the weapon of offence, kept concealed

in the bushes in Padnam Nagar was seized. Such disclosure statement was

recorded in the presence of Sharad Sharma and Abhishek. dagger was taken in

possession from the disclosed place vide memo Ex.P-21 which was sealed. Dr

Mahesh Dixit PW-4 initially examined Rahul in Jai Prakash Hospital and was

declared brought dead. PW-3 Dr. V. K. Athwal has conducted the postmortem

examination. Postmortem report of the deceased Rahul is memo Ex.P-8. He

found nine injuries on the dead body of Rahul, which read as under:-

"1. Defence incised wound present over left hand palm aspect at middle phalanx of middle ring and little finger size 5 x 5 cm muscle deep traverse. 2. Incised wound present over left forearm exterior aspect starting from 3 cm below elbow size 3.5 x 1 cm ulna bone sharply cut obliquely traverse. 3. Stab wound present over axilla left side extending from 2 cm anterior to posterior axillary line size 4.3 x 1 cm. Both the ends are narrow and vertical. It has extended the chest cavity by cutting inter costal muscles of 1st and 2nd rib and cut the lung upper lobe. Total depth of the track is 16 cm and it is ecchymosed and dissected left to right and nearly is the same plane. 4. Stab wound present over chest right side extending from 5cm below nipple and 5 cm right to midline size 5 x 1 cm obliquely vertical both the ends are narrow lateral end situated laterally. It has entered the abdominal cavity by cutting 6 th costal cartilage and surrounding muscles and cut the diaphragm and cut the right lobe through and through then entered the aorta. Total depth of the track is 15cm. It is ecchymosed and dissected right to left below upward. Thoracoabdominal cavity contains about 1500cc of blood some of which is clotted. 5. Incised wound present over left leg area and 2 x 5 cm obliquely vertical. 6. Incised wound present over left scapular region across the spine of scapula size 10 x 0.5 cm. 7. Incised wound present over right eye upper eyelid lateral half 4 x 0.2 cm traverse upto lateral orbital margin. 8. Incised wound present over nose 1 cm below bridge of nose more on left side size 1.5 x 0.2 cm obliquely traverse. 9. Incised wound present over upper lip starting from middle runs towards right side size 2.5 x 0.3 cm traverse."

According to the doctor, death was due to shock and haemorrhage

as a result of stab injuries on the chest and abdomen. The doctor has further

stated that the injury has been caused by hard sharp and penetrating object.

Death is homicidal in nature.

Dr. Amit Katlana PW-5 initially attended injured Abdul Ajeem

when he was working in Hamidiya Hospital. He found one lacerated wound

5 cm x 2 cm on left wrist. The artery was slit. It is PW-9 Dr. Alok Shrivastava

an Orthopaedician who treated Ajeem Khan at about 2:00 a.m. on 31.7.2004.

The Investigating Officer sent the articles seized to Forensic

Science Laboratory for examination vide memo Ex.P-25. The report of the

Forensic Science Laboratory is Ex.P-26 dated 2.4.2005. The Packet ''E''

containing T-shirt and Packet ''E 2'' containing Pajama of Imran, which was

taken in possession by the police on 31.7.2004, were found to have human

blood, but bloodstains on Packet ''E 2'' i.e. Pajama were not found sufficient for

serum test.

On completion of investigation, the accused were made to stand

trial. The prosecution examined the author of the FIR - Mohan Singh Thakur as

PW-6 as also Amit Birthare PW-1 and Vishal Bhausar PW-8. PW-6 Mohan

Singh Thakur deposed after giving background of altercation that Imran took

out dagger and started hitting Rahul. Pavan caught hold of Rahul from behind,

whereas Imran continued to give blows from dagger. When he came forward to

protect Rahul, then Pavan left Rahul and caught hold of him, but Imran

continued to hit Rahul with dagger. In the meantime, Abdul Ajeem @ Lalu also

came forward, but Imran also hit him with dagger which caused injury on his

left hand. Accused Pavan kicked Rahul when he was lying injured. At that time,

Vishal Bhausar PW-8 and Amit Birthare PW-1 came to the spot. He stated that

he gave the statement Ex.P-10 on the basis of which the FIR was lodged. In the

cross examination, he deposed that Vishal had gone to take auto. He came with

auto in five minutes. He and his friend Vishal lifted Rahul to carry him in the

auto and he sat with the driver on the front seat. Attention of the witness was

drawn to Ex.D-3, the statement which does not bear his signatures. In further

cross examination he deposed that Imran has hit Rahul 8 or 9 times with dagger,

but he cannot explain as to why number of attacks have not been mentioned in

the FIR Ex.P-10. He deposed that when first attack was made on Rahul at that

time, Pavan had caught hold of both arms of Rahul from behind. It was after 2 -

3 wounds Pavan caught hold of him. PW-1 Amit Birthare deposed that on

28.7.2004 at about 8:30 p.m., he and his friend Vishal Bhausar were standing at

"Sarhe 6 Number" bus stop. Imran was riding scooter, but on seeing Vishal he

stopped. Both talked about money dealings. Imran started abusing Vishal. He

intervened to counsel Imran that he should talk properly. At this stage, Imran

put the scooter on stand and gave him a slap. Vishal told Imran to go and they

will talk later. After about half an hour PW-1 Amit Birthare, Rahul and Vishal

were standing at "Sarhe 6 Number" bus stop, when Rahul came to know that

Imran had slapped him then they reached to the house of Imran. They

complained about the incident to father of Imran. It is thereafter the father of

Imran told them that he will counsel Imran. On 30.7.2004 at about 8 - 8:30

p.m., he and his friend Vishal Bhausar had gone to meet Rahul in the line of

Government Quarter No.121, 122. When they reached in front of Quarter

No.122/13 they saw Pavan had caught hold of Rahul from behind and Imran

with 30 - 40 centimeter long dagger was attacking Rahul. When Mona PW-6

tried to intervene, then Pavan left Rahul and caught hold of Mona. Mona is

called as Mohan Singh also. Thereafter, Imran gave one or two more blows to

Rahul. In the meantime, Abdul Ajeem intervened, but Imran hit Abdul Ajeem

with dagger which resulted in slitting of artery of hand of Abdul Ajeem. Abdul

Ajeem ran away to his home. He went to the house of Rahul to inform his

relations, whereas Vishal went to take auto. Vishal and Mona took Rahul to

1250 Hospital where the doctor declared him dead after one or two minutes. In

cross examination he stated that Rahul is nephew of brother of his grandmother.

He was his friend also. In his lengthy cross examination nothing contradictory

could be brought on.

Other eye witness of the occurrence examined by the prosecution is

PW-8 Vishal Bhausar, who deposed regarding altercation which happened on

28.7.2004 regarding a sum of Rs.250/- being demanded by accused Imran. He

deposed that when he told Rahul about giving of slap by Imran to Amit

Birthare, then Rahul, Mohan Singh Thakur, Amit Birthare went to meet father

of accused - Imran Khan. Imran was not at home, but his father assured them

that he will counsel his son. It is thereafter, on 30.7.2004 at about 8-8:30 p.m.

when they were taking tea near Sarhe 6 Number bus stop, they asked a tea

vendor as to where Rahul was. He told them that he had gone in the line of

quarters 121, 122. When they went there, they saw Pavan had caught hold of

Rahul from behind and accused Imram was giving blows with dagger. Mohan

Singh Thakur @ Mona sought to intervene but accused Pavan left Rahul and

caught hold of Mohan, but Imran continued to hit Rahul with dagger, Rahul fell

down. In the meantime, Abdul Ajeem @ Lalu came and tried to intervene, but

Imran hit Abdul with dagger on his hand which led to cutting of arteries. The

prosecution examined Ratnesh PW-2, Baldev Prasad PW-11 and Sharad

Sharma PW-12 as witnesses of recovery. On the basis of evidence led, learned

Trial Court convicted and sentenced the appellants as indicated hereinabove.

Learned amicus curiae for the appellant has vehemently argued

that the prosecution case is based upon the testimony of unreliable, untruthful

and introduced witnesses. The very statements of PW-1 Amit Birthare and PW-

8 Vishal Bhausar do not inspire confidence and that such statements are

contradictory. Apart from the said fact, witnesses are the introduced witnesses;

they are either near relatives or well known to the deceased, therefore, their

testimony cannot be relied upon. It is also argued that the Forensic Science

Report in respect of blood on the dagger and the clothes does not give the blood

group to prove that such clothes of accused Imran and the alleged dagger which

is said to have been recovered were having blood of the deceased. It is also

argued that accused Pavan has been falsely implicated as the allegations against

him is of immobilizing Rahul or Mohan Singh Thakur which story does not

inspire confidence. It is also argued that Abdul Ajeem, the alleged injured, has

been examined as PW-10, who has turned hostile and has not identified the

appellants as the assailants, therefore, the prosecution story is full of

contradictions, based upon unreliable and untruth witnesses. Therefore,

conviction of the appellants is not tenable.

We have heard learned counsel for the parties and perused the

record. We find no merit in the present appeal.

The occurrence has taken place at about 8:30 p.m. whereas the FIR

was recorded soon thereafter at about 10:30 p.m. The first version in the FIR is

reiterated by PW-6 Mohan Singh Thakur when he was examined on oath in

Court. The statement is completely corroborated by PW-1 Amit Birthare and

PW-8 Vishal Bhausar. The appellant Imran is not unknown to the victim or the

witnesses. They were familiar to each other which is evident from the fact that

the genesis of occurrence is altercation which took place on 28.7.2004. Such is

the testimony of PW-1 Amit Birthare and PW-8 Vishal Bhausar. All the

witnesses are consistent that Imran started giving dagger blows upon the person

of deceased Rahul and when Mohan Singh Thakur PW-6 tried to intervene, then

Pavan immobilized Mohan Singh Thakur but Imran continued to give dagger

blows to Rahul. The consistent statement of PW-1 Amit Birthare, PW-6 Mohan

Singh Thakur and PW-8 Vishal Bhausar has not been shattered in the cross

examination in any manner. Mere fact that PW-1 Amit Birthare is cousin of the

deceased is not a ground to discard the testimony of the witnesses which is

corroborated by the medical evidence of causing injury not only on the person

of the deceased Rahul but also on the person of injured Abdul Ajeem. Rahul

was first medically examined by Dr. Mahesh Dixit PW-4, but soon he was

declared dead. The postmortem was conducted by Dr. V. K. Athwal PW-3.

On the other hand, injured Abdul Ajeem was examined by Dr. Amit

Katlana PW-5 and Dr. Alok Shrivastava PW-9. All the three witnesses are

consistent upon the fact of inflicting injuries to deceased Rahul and injured

Abdul Ajeem. PW-10 Abdul Ajeem has not disputed receiving of injury on the

wrist on 30.7.2004, but he stated that he cannot identify the assailants, who has

hit him but he deposed that he received injury on that day. May be, in the crowd

he could not identify the assailants, but the fact that PW-1 Amit Birthare, PW-6

Mohan Singh Thakur and PW-8 Vishal Bhausar have deposed not only about

inflicting dagger blows on the person of deceased Rahul, but also on the wrist

of injured Abdul Ajeem stands proved. The non-identification of assailants by

injured witness Abdul Ajeem will not render the prosecution story doubtful as

the eye witnesses have proved the active role played by the appellants in

immobilizing the deceased Rahul in inflicting of dagger blows on him and one

blow on the wrist of injured Abdul Ajeem.

Therefore, we do not find any illegality in maintaining conviction

of the appellants Imran for the offence punishable under Section 302 of IPC for

taking life of Rahul. Similarly, accused/appellant Pavan has immobilized firstly

to Rahul and secondly Mohan when Imran continued to attack Rahul. His

continuous presence and active role played in facilitating of inflicting injuries

by appellant accused Imran makes him guilty for the offence punishable under

Section 302 with the aid of Section 34 of IPC.

The only allegation against the appellant Imran is of inflicting

single dagger blow on the person of Abdul Ajeem. None of the prosecution

witnesses have deposed to the effect that there was knowledge or intention to

take life of Abdul Ajeem. Abdul Ajeem came suddenly on spot, therefore,

looking to the injury caused by accused Imran to him offence punishable under

Section 307 of IPC is not made out for which the learned trial Court has

convicted the appellant Imran in respect of the injury caused to Abdul Ajeem,

but he can be held guilty for an offence under Section 324 of IPC punishable

under Section 325 of IPC. Thus, instead of conviction of the appellant Imran for

an offence punishable under Section 307 of IPC for causing injuries to Adbul

Ajeem, he is convicted under Section 325 of IPC to undergo rigorous

imprisonment for a period of five years. In view thereof, the appeal is partly

allowed.

Accordingly, the appeal as far as it relates to conviction of the

appellant Imran for an offence punishable under Section 302 of IPC and that of

appellant Pavan for an offence punishable under Section 302 read with Section

34 of IPC in respect of causing death of Rahul is dismissed. Their conviction

under these sections is maintained. The sentence of the appellant Imran for an

offence under Section 307 of IPC is modified to that of conviction under

Section 325 of IPC and he is sentenced to undergo rigorous imprisonment for

five years. The punishment for the offence under Section 325 of IPC will run

concurrently with the punishment under Section 302 of IPC.

The appeal stand disposed of accordingly.