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Ac A|yeliate coKrt ..--_t-'rts-asu 'y^^ ^-^J<____J^*)^ HIGH COURT OF CHHATHSGARH AT BII* GrJLBBeal No.631/1990 Tejaa Ram -Versus- State of Madhya Pradesh (now Chhatti^arh) JUDGMENT FOR CONSIDERATION Sd/- Dilip Raosaheb Deshmukh Judge Hoa'ble Shrt Justlce FaMuuddin ^ !^K3.-' Judge Post &r Sd/- ptJDOEg ^.07.2005 HIGH COURT OP CHHATnSCtARH AT BILASPUR C^Appeal No.631/1990 Tejan Ram. -Versus- State of Madhya Pradesh (now Chliatdsgarh) CORAM: HON'BtE SHRI FAKHRUDPm. HON'BU SHRI DIUP RAOSAHEB DESHMUKH. JJ AppeUaat by Ms. Sharaula Singhai, Advocate Shri U. N. S. Deo, Govt. Advocate for fhe State. JUDGMEMT (Delivered on 18.07.2005) Per DiUp R. Deshmnhh, J. This appeal is directed agaiast the judgment dated 26th April 1990 passed by Shri S.K. Mishra, 2nd Additional Sessk>ns Judge, Ambikapur (Surguja) in Sessions Trial No.210/1989 whereby fhe appeUaat has been convicted under Section 302 I.P.C. aud sentenced to undergo imprisoiunent for life. 2. It is not disputed fhat Seem.a Kuiaari P.W.5 is the daughter of the deceased Hariharaath Paudey and Jharkhande Pa&dey, P.W. l K fhe father of the deceased. 3. Briefly stated fhe prosecution stoiy is that on 9.4.1989 at about 8.00 P.M. ftie deceased Hariharaafh Pandey was retumiag fi-oiu fhe house of Somarsai P.W.3 afler watchiag television with Seeina Kuinari P.W.5 aad son Rajesh. On way, fhe appeUaat all of a sudden came fix>m. fhe front aad stabbed Harihamafh Paadey iu the stoinach by krufe. The appeUant-accused pulled the knife out and ran away. Hariharaafh Paadey also sustaiaed injuxy in the thumb ofleft haad. 4. On the samfi day, Harihamafh Paadey lodgcd F.I.R. at POUce Station Lakhanpzu- situated 16 kitometers away fix>in the place of occurrence at 10.30 P.M. Harihamath P&adey was sent for medical exaxnination to Primaiy Health Centre, Lakbaapur where Dr. M.H.Pannar P.W. 19 upon examiuation found aa incised wound on left thumb oa fhe Palmer aspect sized 1 W x 1/8" x 1/8* and one penetratmg incised woiuid at right hypochondria of fhe abdonien sized W x W x cutting fhe interior aspect of fhe abdoininal waU with bleediag preseat Dr. Parmar packed and dressed fhc wound aad ^ive fhe opinion vide report Ex.P.19 that the penetrating incised wound was grievous in nature and was dangerous to Ufe. 5. On 10.04.1989 Dr. B. P. Chandra examined Hariharaafti Pandey ia fhe Mak Surgical section of District Hospital Aiabikapur aad found him fuUy conscious and abte to gfa?e stateinent aad gavc certificate to that effect vide Ex.P.9 at 2.55 A.M. The Executive Magistrate Shankarlal Soni P.W. 14 recordcd thc dying declaratUMi of Harihanuath Pandey ia prescnce of Dr. B.P.Chandra. Hariharaath Paadey in his stateiaent Ex.P.10 told that about four years before fhe occurrence he hfld beaten the appellant since the appeUant had beaten his son and at that tinae fhc appellant had threatened to kiB hiTn but fhere was no quarrel fliereafter aad before fhe occurrence aad on 09,04.1989 at about 8.00 P.M. when he was retumiag hoiac fixiin fhc house of Somarsai, fhe appeMaat came aU ofa sudden aad stabbed Tiini by knife in his stoinach. [S 6, Hanhamafh Paadey succumbed to the injuiies on 20.4.1989 in Mission Hospital, Ambikapur. Post-niorteni on fhe body of Hariharinath Paadey was conducted by Dr. A.K.Jain on 21.4.1989 who found a stab wound thiough and through sized 3/4" x %" ia right side of abdoinen 3" away fi»niUiabilicus and W bclow fhe fcvel ofplain Uiabilicus. In his opmion, cause ofdeath was due to shock as a result ofscpticactnia. 7. On 12.4.1989 S.H.O. K. L. Magiaya, PoKce Station Lakhanpur at the iastance of the appellant, seized one folding knife with aa iron handle wlth blood like stains fioia onc Jot Sii^h to whoin fhe appellaat had givcn fhe krufe soon after fhe occurrence. On fhe same day vide Ex.P.7 one white half sleeve shirt aad one Khadi Dhoti containing btood lifee stains vrete also seized fiom fhe appeBaat Spot map was prepared vjde Ex.P.8 by Patwari Baikunthnath Siagh P.W.10. Blood stained sofl and ordinaiy soflwere also seized on 10.04.1989 vide Ex.P.13 by Sub- Inspector U.S.Mjshra. One balfshirt and one sando banianwere also seized fi?om fbe appeUant vidc Ex.P.14 by Sub-Inspector U.S.Mishra who also prepared the spot map vide Bx.P.15. On beiag sent for cheinical aaatysis, Forensic Scieiice LaboratDiy, Sagar, blood stains wcre confirmed on fhe half shut and the Dhoti seized fioin fhe accused and also on fhe knife seized at the iastance ofappeUant STOIU Jot Su^h. 8. After contptetiou of investigatioa, fhe appeQsmt was prosccuted for offence under Section 302 I.P.C. Upon committal of fhe case by Shri V.B.Smgh, Judicial M^isteate First CIass, Ambikapur, the appellaat was tried for ttie ofience under Sectfon 302 I.P.C. by fhe 2ml Additional Sessions Judge, Ambikapur. Thc accused abjured his guflt, pteaded false unplication in his examinatutn under Section 313 Cr.P.C. and kd no evidence ia defence. Prosecution examined EIS maDy as 20 witnesses ia support of its case. The fcamed triat Judge refying upon the prosecution evidence convicted and sentenced tfafi appeBant as shown iu paragraph 1 supra. 9. Ms. SIiaruula Siaghai, leamed counsel for fhc appeUant has assailed fhe coaviction offhe appcllaat uiMler Sectfon 302 I.P.C. on the ground tfaat no legal evidence was ted by the prosecution to substantiate the guflt of the appellaat fbr thc ofifeuce of inzuder. She also contended fhat Secma Kumari P.W.5 was an iaterested witness bemg the daughter of fhe deceased. The fact that Dr. A.K.Jain. had in pars^raph 7 of cross-examinatfon admittcd fhat nnmediate treatment couM have saved fhe Itfe of Hanhamafh and tfae fact fhat deafh of Harihamatli Pandey occurred afiker 11 days on 20.04.1989 in Mission Hospital, Ambikapur, tocdt Itie o&nce, if aay, out ofthe andBit ofSection 302 I.P.C. There was nofhing on record to prove any motive for the appeBant to commit inuidcr of Harihamafli Paadey. Oiity one injiuy was aUeged to have been infficted by fhe appeBaat in the stoinach of Harihamath. Placing relJancc on RfSanpsan. Vs. State ITvunSl Nadu), reported m A.I.R.1993 8.C. 2636, Saruw Stnoll Vs. State «f BmTvmn. rewresewbsS. lifi the ffome Secreta»y. reported in A.I.R. 1995 S.C. 8452, JtanwtchtUMlrB OMuir 7s. State ftfBthar^ reported in A.I.R. 1999 S.C. 998 and Ramaswami V& State ofTumff Wotla, reported in (1983) 1 8CC 4T4 she contended ia fhe altemative that fhe offence, if aay, comnutted by fhe appellant would not teavel beyond Section 304 Part II ofthe I.P.C. 10. On fhe other hand, Shri U.N.S.Deo, G.A. aigued ttaat fhe testunony of Taees Rain P.W.2 ctearly establishes fhat the appeBant wifh fhe intention of stabbing Harihamath Pandcy was lurking in wait for Harihamafh at fhe tiiue of o(X:urreuce and faad wifh the requisite intention to kfll, mflicted fhe peneteatmg wound on vital part of Harihamath Pandcy as a result of whfch Harihamafh. Pandcy succumbed to ttie injuiy on 20.04.1989. Placing reliance on SSahcsh BeSmikt Vs. State afJB.P., reported in 2000 8CC (CSri.) 178 aigued that fhc trial Court had rigbfly convicted the appeBaat undcr Scction 302 I.P.C. 11. We havc considered tlie rival submissions and ha»e also given our thoughtful consMleration to the evidence on recoid. So far as the question wheflier Harihamafh Paadey hfld died a homicidal death is concemed, the whoHy unrebutted testiinony of Dr. M.H.Parmar P.W.19 prcwcs fhat hc cxamined Harihamafh Pandey at 11.00 P.M. on 9.4.1989 and fcund an incfacd wouad on left thumb on the Palmer aspect sized 1 W x 1/8" x 1/8" aad c«ne penetratuag incised wound at right hypochondria of the Adoinen sxaed V/' x W x cutting the interior aspect of the abdonunal waU wifh bfeeding present on Harihamafh Pandey. In his opnuoii, fhe injuiy was (aused by a sharp objcct Peaetrating mcised woimd was a grievous mjuiy. Dr. A.K.Jain P.W.20 who conducted tfac post-inortein examitiation on Harihamath PSndqr has deposed fhat he fouad a stab woiuid ttuoi^h and fhiough sized 3/4" x W in right side ofabdomen 3" away fioiu Uinbilicus aad W below fhe 6 tevel of plain Unibflicus. He opined fhat the septic nifectiDn had taken place diiru^ treatnaent in the hospitaL 12. Taees Ram P.W.2 is an independent eye witness who had seen fhe occurrence. He has deposed fhat at 8.00 P.M. when he was siuoking Bidi iiear fhe house of Soxnarsai, he saw the accused Tejan Ram lurking who had covered hinaselfwith a white dhoti. He asked fhe appeUant to yp away but the appdlaat did not say anyfhing. At that time Ughts went o£F. Harihamafh Randey with his daughters Seema Kuniari, Pushpa and son Pappu canae out fix>ni the house of Soinarsai after watehing television and started for his house and when they reached ncar fhs Mahua tree, the appeUant struck a knife blow on the stomach of Harihamafli Paadey and ran away. Harihamath Pandey was bteediag profusety fioin fhe stomach and fhere was an injuiy in his fhuxnb also. The appeUaat had run away wifh the kmfc. Tfais testanony is whoUy unrebutted in cross-examination. 13. Sceiaa Kumari P.W.5 has also fiilty conoboiated thc testnaony ofTaeesraia and has deposed fhat no sooner her father Harihamath Paadcy proceedcd towards fhdr house fioin fhe house of Soxnarsai, the appeDaut Tcjaa Ram came aad dealt a taufe blow on fhe stoinach of hcr fafher. The appeBant pulted out fhe ktufe and raa away fhereafter. Even this testiiaony is wholfy unrebzitted. Subhagraia P.W.6 is the witness who testified fhat the Soinarsai caine to Iiis house at about 8.00-9.00 P.M. and told hlTn fhat Tejanram had stsibbed Harihamath Pandey by a knife. He fhen went to fhe place of occutrence, saw Qse injured Hariharinafh who was bleeding profusety fioin tfae stomach. Harihamath had toM hiin fhat Tejanram had stabbed hiin. 14. Jot Singh P.W.7 has testified that in the nig^tt at about 10.00 P.M. Tejaxirain came to his house and inade an extra judicial coufession that he had stabbed Harihamath by a laufe and waated to slcep in his house and handed over fhe knife to himi which had blood like stams. Tejatuain fhen went away to Iiis house. This knife was seized fiona Jot Singh vide Ex.P.5. No questun has been. asked in cross-exaxnination to fhis witness. Raninarayan P.W.9 has also provcd fhe seizure of one knife finm Jot Sii^h vide Ex. P.7. Sharif Khan P.W.16 has also pioved the seizure of one half steevc white shirt and one Khadi Dhoti fioin the appeUant Tejanrain. Nofhiag has bcen cUcited ia cross- examination of ftiese witoesses which wouM render fhetn unworthy of credit We find -ftat fhc testiinony of lliese witnesses whoUy reliable. 15. Executive Magistrate Shankarlal Soxii P.W.14 has pxuved fhat on 10.04.1989 he had icconled fhc dymg declaration of Hanhamath Pandey in Dista-ict Hospital, Ambikapur wherein Harihamath Pandey had said fhat due to an oU qtianel the appeBant Tejaxu-ain had threatencd to kill hini aad on 9.4. 1989 at about 8.00 P.M. in village Kalcha wtute he was retuming fioin fhc house of Soinarsai after watehu^ tetevision, the appcflaat came and stabbed him in the stomach and raa away. Dr. B.P.Chandia P.W.ll has proved fhat Hariharaatli Pandey was faSty conscious and was ia a position to make the dyis^ declaBation Ex.P.lO which was given in his presence. Tfac presence ofbtood Hke stains on fhe clothes of the appeBaat and the knife seized fi-oin Jot Singh also proves fhe coinpUcaly ofthe appeDant beyond aU reasonabk doubt 16. The testunony of the abovementioned prosecution witnesses is whoUy reliable aad proves fhat Harihamath Pandey had died a hoinicidal death due to a peneteating incised injiuy iaflicted by the appeUaat Tejaa Ram by knife on fhe ujght of 9,4.89. Thus, in our considered opiiuon, the prosecution has estabUshed beyoud doubt that fhe appeUaat had given a knife blow to Hariharaath Pandey and (hat he died as result of fhe injuiy caused by that blow. However, there is no inedical evidcncc on record to sbow fhat injury sustained by Harihamath was siif&cient ia fhe ordinaiy course ofnature to cause death. Dr. A.K-Jain bas m. paragraph 6 testified fhat fhe patient had died due to coiaplications of Septicaemia. If proper trcatment was givcn, Ufe of Hanhamafti could have been saved. The dispute narrated by HaBiharinath Pandey in his dying declaration Bx.P.10 was not such as would have proinpted the appeDant Tejaniain to cause the deafh of Hadhamath Paadey that too after a period of foiir years. Besides, the accused had infficted onty one injuiy in the stomach of Harihamath Pandey. There was no sudden fight between the appeBaat and tlie deceased and fhe appeUant had given a suigle blow wifti knife on fhe stoniach of Harihamath Pandey. No other injuiy was caused by fhe appcBant upon the deceased. The appellaat himselfwent to Jot Singh to handover fhe blood stamed knife and inade extra-judicial confessiou. 17. So far as tfae case of aSahesh BcdmUd rs. .Sfarte oT JH.P (supra) relied upou by the Govenunent Advocate, is coaceraed, the @ facts and circuinstances of that case are different as iu that case tfae appellant had given a sii^le blow with knife on fhe chest on the lefit side of the stemuin betwecn the coastal joint of fhe 6& and 7th ribs, fiacturu^; bofh the ribs. The track ofthe wound had gone fhrough fhe steraum, pericardiuin, aaterior and posterior after passiug fhe ri.bs and fhereafter entermg the liver and pcrforating a portion offhe stomach. Therefore, itwas held that requireinents of Exceptk>n 4 of Sectfon 300 I.P.C. were not sattefied. Howcver, in tliis case, fhe single iajuiy was caused by a knife on fhe stoinach. As per m.edical evidence, if proper treatment was giveti, life of Harihamafh could have been saved. Deafh of Harihamafh occunred due to Septicaemia aad as a result of iafectk»n, during treatment in fhe Hospital. In fhe case of Rf^emgftm. Vs. Stalx fTand.1 JWadtd, A.I.R. 1993 8.C. 2636, fhe accused had mfficted siagfe injuiy by knife on fhc abdoinen of deceased. The deceased had undeigone operation and death had occurred after 8 days. It was held fhat fhfi accused could be attributed wlfh the knowledge ttiat he was Ukely to cause death but not the iatention to cause deafh, It vraa fherefore held that fhe ofifence feU under Sectfon 304 Part II I.P.C. lu fhe iastant casc also Hariharaath dicd after 11 days in fhe District Hospital due to Septicaemja as a result of coinpUcations. No suigical operation had been perfonned on Harihanaafh. lu inedjcal opmion also, if proper medical aid was given, his Ufecould have been saved. Therefore, we are of thc consalered opmion that the offence committed by fhe appeUaat docs not travel beyond Section 304 Part II offhe I.P.C. —-_ 17. In the result, fh.e appeal is partly aUowed. Conviction offhe appeUant is altered to Section 304 Part II of the I.P.C. We, fherefore, reduce ftie sentence to r^orous imprisoiunent for 10 years. However, Shri U.N.S.Deo G.A. has iafonned fhat the accused has already undei^one fhe sentence and has been released fix>m the jaU on 15.08.2003 on the eve of Independence "'^ Day upon remission being granted. Sd/- Dilip Raosaheb Deshmukh in