Shiv Singh and Another vs State of Madhya Pradesh

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence dated 21-8-2001 passed by learned Fourth Additional Sessions Judge, Morena in Sessions Trial No. 306/1995 convicting the appellant No. 1 Shiv Singh u/s 304, Part I as well as u/s 326/34 of IPC and thereby sentencing him to suffer ten years'' rigorous imprisonment and fine of Rs. 7,000/- and in default to suffer further one year''s rigorous imprisonment u/s 304, Part-I of IPC and also sentencing him to suffer three years'' rigorous imprisonment and fine of Rs. 3,000/- and in default to suffer further one year''s rigorous imprisonment u/s 326/34 of IPC and further convicting the appellant No. 2-Narayan Singh under Sections 304, Part-I/34 and 326 of IPC and sentencing him to suffer five years'' rigorous imprisonment and fine of Rs. 2,000/- and in default to suffer further six months'' rigorous imprisonment and also sentencing him to five years'' rigorous imprisonment and a fine of Rs. 3,000/-and in default to suffer further six months'' rigorous imprisonment u/s 326 of IPC, both the appellants have preferred this appeal u/s 374 of the Code of Criminal Procedure, 1973.

In brief the case of prosecution is that two days earlier to 29-8-1995 some altercation took place between the ladies of complainant party and appellants. On the date of incident viz. 29-8-1995 at 7.00 O''clock in the evening, hurling of abuses took place between the complainant and the accused party. When Shyambihari (hereinafter referred to as the deceased), who is the brother of the complainant-Ramjilal, requested not to hurl the abuses, the accused persons became annoyed and it is said that the appellant Shiv Singh and Narayan Singh and other co-accused persons armed with bhala and lathi arrived at the place where the complainant was standing. It is said that accused persons caused marpeet to the deceased. The role assigned to the appellant No. 1-Shiv Singh is that he dealt a bhala blow on the chest region of the deceased, as a result of which, blood started oozing. The other accused Naval Singh also dealt lathi blow on the person of the deceased. When complainant-Ramjilal and other persons, namely, Vrindawan, Ramcharan and Rajkumar came to intervene, it is said that appellant-Narayan Singh dealt bhala blow on the abdominal region of Vrindawan, as a result of which, blood started oozing from the wound. It is also said that accused-Sahab Singh dealt a bhala blow on the person of Ramcharan, which hit on his left hand.

After the incident took place, the complainant-Ramjilal along with Rajkumar, Deeman and Rajveer brought the dead body of the deceased as well as accompanied injured persons to the District Hospital. Morena where the doctor declared the deceased to be dead.

It is the further case of the prosecution that a written intimation about the factum of death of the deceased was received by the police station from District Hospital, Morena and it was also informed that Vrindawan and Ramcharan have sustained injuries. The investigating agency, when came to know that the physical condition of injured-Vrindawan is being deteriorated, they arranged to record his dying declaration, which was recorded by Dr. Ravindra Singh Sikarvar (P.W. 1). The investigating agency recorded dehatinalishi and later on, on the basis of dehatinalishi, lodged the First Information Report.

After the investigation was over, a charge-sheet was submitted in the committal Court against appellants Shiv Singh and Narayan Singh and also against Sahab Singh and Naval Singh, which on its turn committed the case to the Court of Sessions, from where it was received by the trial Court for trial.

The learned trial Judge, on the basis of allegations made in the charge-sheet, framed charges punishable under Sections 302, 307/34 and 324/34 of IPC against appellant-Shiv Singh while appellant-Narayan Singh has been charged under Sections 302/34, 307 and 324/34 of IPC. The other acquitted co-accused persons, namely, Sahab Singh and Naval Singh were charged under Sections 302/34, 307/34 and 324 of IPC. All the accused persons including the appellants abjured their guilt and requested for the trial.

In order to prove the charges, prosecution examined as many as thirteen witnesses and placed Ex. P/l to P/30, the documents on record. The defence of appellants and acquitted co-accused persons is of false implication and the same defence they put forth in the their statement recorded u/s 313 of Cr. P.C. However, in support of their defence they did not chose to examine any witness.

The learned trial Judge on the basis of the evidence placed on record, came to hold that charges framed against Sahab Singh and Naval Singh have not been proved, as a result of which, acquitted them. However, learned trial Judge came to hold that appellant-Shiv Singh has committed the offence punishable u/s 304, Part-I and also u/s 326/34 of IPC. According to the learned trial Judge, appellant-Narayan Singh has also committed the offence punishable u/s 304, Part-I/34 and also u/s 326 of IPC for causing injury to the injured-Vrindawan. The learned trial Judge, accordingly, passed the sentence against the appellants, which I have mentioned hereinabove.

In this manner this appeal has been preferred by the appellants against the judgment of conviction and order of sentence passed by the learned trial Court.

The contention of Shri Sanjay Gupta, learned Counsel for the appellants, is that so far as the conviction of appellant No. 2-Narayan Singh u/s 326 of IPC in respect to causing injury to Vrindawan is concerned, since his evidence is not at all reliable, therefore, learned trial Court erred in convicting the appellant-Narayan Singh for the charge u/s 326 of IPC. Further, it has been contended by the learned Counsel that looking to the evidence of the eye-witnesses placed on record, learned trial Court has erred in convicting the appellant-Shiv Singh for the offences punishable under Sections 304, Part-I and 326/34 of IPC it has also been put forth by him that appellant-Narayan Singh has been wrongly convicted under-Section 304, Part-1/34 and 326 of IPC.

On the other hand, Shri Mohd. Irshad, learned Public Prosecutor for the respondent/State, and Shri Mahavlr Pathak, learned Counsel for the complainant, argued in support of the impugned judgment.

Having heard learned Counsel for the parties, I am of the considered view that this appeal deserves to be allowed in part.

So far as the conviction of appellant No. 2-Narayan Singh u/s 326 of IPC is concerned, if the testimony of injured-Vrindawan is taken into consideration in proper perspective, I am of the view that he is suppressing the reality. Vrindawan has been examined as P.W. 8. According to him, appellant-Narayan Singh dealt a bhala blow on his abdominal region. This witness has categorically stated that when he went to rescue the deceased, at that juncture, appellant-Narayan Singh dealt bhala blow on his abdominal region. In para 8 of his cross-examination he has admitted that he is not having any enmity with the appellants. In para 9 of his cross-examination he has admitted that when he was in hospital, the doctor on duty recorded his statement. In very specific words he stated that in the incident he received only one injury and that too has been caused by only one person. According to him, he told the doctor by naming appellant Narayan Singh in respect of causing injury to him. Further, he has admitted that the statement recorded by the doctor was read over to him and thereafter he put his thumb impression over it. However, when he was confronted by his dying declaration Ex. P/3 recorded by the doctor, he has stated that how the names of Sahab Singh and Naval Singh have been mentioned in his dying declaration he cannot say.

Dr. Ravindra Singh Sikarvar (P.W. 1) who recorded the dying declaration of Vrindawan (P.W. 8) has categorically stated that he has recorded the dying declaration of Vrindawan (Ex. P/3) in which Vrindawan had categorically stated that appellant-Narayan, Sahab Singh and Naval Singh dealt bhala blow to him. Dr. Ravindra Singh Sikarvar (P.W. 1) has proved the MLC report of Vrindawan, which is Ex. P/l in which single injury on the abdominal region of Vrindawan has been found by the doctor, which is a perforating wound, size 1/2 x 1/4" deep to the peritoneal cavity on left portion of abdomen. Since Vrindawan is alive, his dying declaration Ex. P/3, which was recorded by Dr. Ravindra Singh Sikarvar, Would be read as his statement u/s 161 of Cr. P.C.

The MLC doctor Ravindra Singh Sikarvar has categorically stated that Vrindavan received only one injury and, therefore, according to me, in order to fit his statement in the slot of the MLC report Ex. P/l, Vrindawan is somersaulting his earlier stand that three persons including the present appellant-Narayan dealt bhala blows on him and now is confining his statement upto the extent that only one person and that too appellant-Narayan dealt bhala blow on his person. According to me, looking to the mitigating circumstances and particularly the fact that this witness is changing his version in order to fit his statement in the slot of the MLC report, it would be hazardous to place reliance on the evidence of this witness. In this context, I may profitably place reliance on the decision of Supreme Court in the case of Bhola Singh Vs. State of Punjab,

Thus, I am of the view that appellant No. 2-Narayan is entitled to benefit of doubt in regard to causing injury to Vrindawan (P.W. 8) by bhala and, therefore, he is acquitted from the charge punishable u/s 326 of IPC. For the same reason, appellant-Shiv Singh is also acquitted from the charge u/s 326/34 of IPC.

The question now would rest as to whether appellant-Shiv Singh has been rightly convicted u/s 302, Part-I of IPC and whether the offence u/s 304, Part-I/34 of IPC has been proved against appellant No. 2-Narayan Singh.

In this regard the prosecution has examined four persons as eye-witnesses, they are Ramjilal (P.W. 4) Vrindawan (P.W. 8), Ramswaroop (P.W. 11) and Rajveer (P.W. 12). This position is also not disputed that Ramjilal (P.W. 4) is the brother of the deceased. According to the prosecution, Ramjilal lodged dehatinalishi Ex. P/6, on the basis of which, the FIR Ex. P/16 was recorded.

Before 1 deal with the evidential value of these eye-witnesses, I would like to examine dehatinalishi Ex. P/6 lodged by Ramjilal on the basis of which, FIR Ex. P/16 was registered. On bare perusal of the record, this Court finds that Ex. P/6 dehatinalishi is not a primary piece of evidence as it is a very faint photocopy. Merely because this document has been exhibited as P/6, itself is no ground to hold it to be a primary evidence, because it does not come under the ambit and sweep of Section 62 of the Evidence Act. It has come in the testimony of the Investigating Officer Rajendra Pathak (P.W. 15) that dehatinalishi was written in three parts, but not even a single part was submitted along with the charge-sheet and only a photocopy has been filed. According to the Investigating Officer, he cannot say where the original is lying in the police station. Since only a photocopy has been filed, even if this Court assume the said document to be a secondary evidence, since no permission has been sought from the Court under Sections 65 and 66 of the Evidence Act to adduce secondary evidence, therefore, this photocopy of the alleged dehatinalishi Ex. P/6 cannot be even taken into consideration as a secondary evidence.

So far as FIR Ex. P/16 is concerned, since it is based on dehatinalishi, its nature is that of a secondary evidence. There is nothing on record that why two other copies of dehatinalishi, if one copy was lost, have not been filed in the Court and. therefore, in absence of primary evidence, the FIR Ex. P/16, which has been registered on the basis of primary evidence (not filed and proved), is a secondary evidence and no reliance can be placed on it. Thus, the FIR Ex. P/16 in the present case is not proved.

The law is not that if the FIR is not proved, the guilt of an accused cannot be proved for the simple reason that FIR is not a substantive piece of evidence and it can be taken into consideration only for contradiction and corroboration. Therefore, by ignoring the FIR, a shall not examine the evidence of the eye-witnesses.

Ramjijal (P.W. 4) has categorically stated that on the date of incident in the evening the appellants were hurling abuses at that juncture the deceased after evacuating arrived at the spot and pacified not to hurl the abuses, as a result of which, appellant-Shiv Singh came and dealt bhala blow on the chest region of the deceased, as a result of which, deceased fell down on the ground. There is no averment of this witness that appellant-Narayan dealt any blow of bhala to the deceased, though bhala has been assigned to him. If his intention was to share the common intention to kill the deceased, certainly he must have dealt with blow of bhala, which he was carrying, on the person of the deceased. Thus, I am of the view that appellant Narayan Singh has been wrongly convicted u/s 304, Part-I/34 of IPC.

His conviction under this section is set aside.

The evidence of Ramjilal has been corroborated by the evidence of Vrindawan (P.W. 8), Ramswaroop (P.W. 11) and Rajveer (P.W. 12). These witnesses were cross-examined at length, but they remain embedded in their version despite there being a roving cross-examination over them. From different angles they were cross-examined, but they remain vivid. After going through the statement of these four witnesses, I am of the view that their statements are clear, cogent and trustworthy, so far as inflicting bhala blow by appellant-Shiv Singh on the person of the deceased on chest region is concerned.

The evidence of eye-witnesses has been further corroborated by the evidence of autopsy surgeon Dr. Vinod Gupta (P.W. 6), who has also proved his postmortem report Ex. P/18. According to the autopsy surgeon, the deceased sustained single injury on his chest, which reads thus:

Penetrating wound 1 cm. right to median line towards sterna at nipple level. 1 cm. long having 9 cm. depth by penetrating sterna upto thoracic cavity.

According to the doctor, the deceased died due to shock and cardio-respiratory failure on account of haemorrhage and the injury was caused by pointed and penetrating object. The injury was homicidal and was caused within 24 hours. Needless to say, bhala is a penetrating and pointed object.

I am not at all impressed by the submission of the learned Counsel for the appellants that because the doctor has not opined that the injury sustained by the deceased was sufficient to cause death in ordinary course of nature and, therefore, no conviction under Sectioa''304, Part-I of IPC could be accorded. If the doctor has not opined about the nature of the injury, the Courts are not helpless and they can examine the nature of wound, its size and impact on the body and the place where it has been dealt in order to ascertain whether the injury caused was sufficient in ordinary course to cause death or not. Looking to the depth of the wound of the deceased which is 9 cm. cutting the sterna and was going upto thoracic cavity. I am of the view that the injury caused by appellant-Shiv Singh was sufficient in ordinary course to cause death.

The learned trial Court has already taken into consideration that the offence u/s 302 of IPC has not been made out. The appellant-Shiv Singh has thus rightly been convicted u/s 304, Part-I of IPC and has rightly been sentenced as mentioned in the impugned judgment.

For the reasons stated herein-above this appeal succeeds in part. The conviction of appellant No. 1-Shiv Singh u/s 326/34 of IPC is hereby set aside. However, his conviction and sentence u/s 304 Part-I of IPC, as awarded by the learned trial Judge, is hereby affirmed. The conviction of appellant No. 2-Narayan Singh u/s 304, Part-I/34 of IPC as well as u/s 326 of IPC is hereby set aside and he is acquitted from the said offences. The appellant No. 2-Narayan is on bail, his bail bonds are discharged. The appellant No. 1-Shiv Singh is also on bail, his ball bonds are hereby cancelled and he is hereby directed to surrender before the learned trial Judge on or before 10th August, 2009, failing which the learned trial Judge shall issue arrest warrant against him. After the appellant No. 1-Shiv Singh is arrested and sent to jail, the learned Trial Court shall also intimate the Registry of this Court.