Rajendra And Another vs State Of Madhya Pradesh

This criminal appeal has been filed by the appellant No.1 Rajendra S/o. Hanumat Singh and appellant No.2 Vijendra S/oHanumat Singh under Section 374(2) of the Code of Criminal Procedure against the judgment dated 03.09.2004 passed by the Fourth Additional Sessions Judge, Sagar, in S.T.No.319/2001 whereby the learned Judge finding the appellants guilty under Section 304-Part 2 read with Section 34 of the IPC has sentenced them to undergo R.I. for 7 years each with a fine of Rs.1,000/- each. The appellants have already undergone their sentences as they were arrested on 14.05.2001 and are in custody since then.

In brief the facts of the case are that the appellants were initially charged under Section 302/34 of the IPC on an allegation that on 14.05.2001 when the deceased Mardansingh had gone to fetch water from a bullock cart, while returning back, he was surrounded by appellant No.1 Rajendra Singh Rajput, appellant No.2 Vijendra, Shivraj Singh and Bhagwan Singh. Appellant No.1 Rajendra Singh had an axe in his hands, appellant No.2 Vijendra had Katarna, Bhagwan Singh had iron rod while Shivraj also had an axe. At that time, appellant No.2 Rajendra Singh gave a blow on the right leg of Mardan Singh without any provocation while appellant No.2 Vijendra hit him with Katarna on his right hand.

The other two accused persons also assaulted him with the aid of axe and iron rods. At that time, Ramji (P.W.13) reached on the spot and also witnessed the incident. After seeing him, accused persons ran away from the spot. Soon thereafter, other villagers also came on the spot and deceased Mardan Singh, who was alive by then, narrated the incident to them also. The other villagers included Pratham Singh (P.W.1), Bhagwan Singh (P.W.12), Nandu Maharaj (P.W.2) and Govind Singh (P.W.3) also came on the spot. Soon thereafter, they put him in the bullock cart and took him to the police station, where Ex.P/22 was lodged by the deceased Mardan Singh only, which was recorded by Shravan Kumar Sharma (P.W.17).

Subsequently, Mardan Singh was taken to the hospital where Dr. Rajendra Singhai (P.W.15) examined him and gave his report Ex.P/17. Looking to the injuries suffered by the deceased, he was referred to the District Hospital, Sagar. The dying declaration of the deceased i.e. Ex.P/21, was recorded by the Naib Tehsildar Virendra Kumar Karn (P.W.18). While the deceased was being taken to the District Hospital, Sagar from the Hospital at Rehli, before 5 kms. from the hospital, at around 11:45 a.m., he passed away. This information was given by Pratap Singh (P.W.4) to the police station Rehli and Marg intimation Ex.P/3 was recorded by Shri R.K. Pandey (P.W.16). Post-mortem examination was conducted by Dr. Rajendra Singhai (P.W.15), who gave his report vide Ex.P/20.

The learned Judge of the trial Court after recording the evidence, held that it is not a case falling under Section 302 of the IPC but u/s. 304-Part II of the IPC has convicted the appellants under Section 304-Part 2 of the IPC , while acquitting them under Section 302 of the IPC..

Learned counsel for the appellants has submitted that the appellants have been falsely implicated in this case as no offence against them even under Section 304-Part 2 of the IPC could be said to be made out as there is no cogent corroborative evidence to convict the appellants under Section 304- Part II of the IPC.

On the other hand, learned Govt. Advocate for the State has opposed the prayer and has submitted that the case of the prosecution has been proved beyond reasonable doubt and the appeal is liable to be dismissed.

Heard the learned counsel for the parties and perused the record.

From the record, it is apparent that the death of deceased Mardan Singh was homicidal in nature as opined by Dr. Rajendra Singhai (P.W.15), who had conducted post-mortem examination on 14.05.2001 and had found as many as eight incised wounds. Injury No.1 was an incised wound on the parietal region of the deceased of size 2 x 0.5 x 0.2 cm and the other injuries were also grievous in nature. The doctor has clearly opined that the death was homicidal in nature occasioned by the injuries caused and death occurred within 6 to 12 hours. This doctor had also examined the deceased at the time when he gave the dying declaration before the P.W.18 Virendra Kumar Karn, Tehsildar and stated that his mental condition was found to be fit.

In the dying declaration, it is clearly stated by the deceased that he was assaulted by Rajendra and Vijendra on the ground that there was a dispute between the parties around 2 years ago in which compromise had also taken place. The aforesaid dying declaration (Ex.P/21) has been recorded by P.W.18 Virendra Kumar Karn, who has clearly stated that he had recorded the dying declaration and before that, he got it verified from the doctor as to whether the deceased was in a fit mental condition to give dying declaration or not. The testimony of this witness cannot be said to be suffering from any infirmity and even in his cross-examination, nothing substantive could be brought out by the appellants.

The incident was witnessed by P.W.1 Pratham Singh who has stated that he was informed by his younger brother Bhagwat Singh that Mardan Singh has been assaulted by the appellants and other accused persons. He was also informed by Mardan Singh about the manner in which he was assaulted by the appellants and the other accused persons.

So far as the recovery of weapons is concerned, the prosecution has examined Raja Bhaiya Bharadwaj as P.W.7 who has been declared hostile by the prosecution, however, in his cross-examination he has admitted that at the instance of appellant Rajendra, an axe was recovered.

P.W.8 Ramdayal is the witness of recovery memo Ex.P/11 but this witness has also been declared hostile by the prosecution. Thus, the recovery could not be proved so far as the appellant Vijendra is concerned.

P.W.9 Kamlesh Kumar Dixit, who is also a witness of seizure, has not supported the case of the prosecution.

Despite recovery is not positively established so far as appellant No.2 Vijendra is concerned but the recovery from appellant No.1 Rajendra cannot be said to be not proved beyond reasonable doubt. In their defence u/s.313 of Cr.P.C., no specific plea has been taken by the appellants except that they have been falsely implicated in the case.

After giving due consideration to the facts and circumstances of the case, this court also finds that the dying declaration Ex.P/21 was recorded by P.W.18 Tehsildar who has, before recording the statement of the deceased had also got him examined through P.W.15 Dr. R.K. Singhai. who has certified that the Mardan Singh was in a fit condition to give the statement. Although, after recording the dying declaration, before he could be cross-examined in the trial Court, he died but this cannot be said to be a circumstance which would render the dying declaration not admissible. Even otherwise, Section 32 of the Evidence Act, 1872 has already taken care of such defences made on behalf of the accused persons This Court is also of the opinion that there is no reason to disbelieve the deceased who had not only narrated the entire incident to the persons who had reached on the spot

viz. Pw/1 Pratham Singh, Pw/2 Nandu and Pw/4 Pratap Singh but also before Naib Tehsildar Virendra Kumar Karn (P.W.18) who had recorded the dying declaration Ex.P/21, hence it cannot be said that the appellants have been falsely implicated.

In view of the aforesaid facts and circumstances, this Court is of the considered opinion the prosection has been able to bring home the charges of murder against the appellant and no illegality or jurisdictional error has been committed by the learned Judge of the Trial court. Under these circumstances, the appeal being devoid of merits is hereby dismissed. C.C. As per rules.