Case: Prakash &amp; Another Vs. State of Madhya Pradesh

2. Against the aforesaid judgment of the Madhya Pradesh High Court convicting Prakash and Shiv Narayan, the said accused persons moved petitions for special leave to appeal giving rise to the present appeals viz. Criminal Appeals Nos. 7 and 8 of 1981.3. On 14th February, 1974 one Vijay Singh Chauhan was murdered at about 2.45 p. m. at the Bada of Mangal Singh in the town of Sagar. The prosecution case was that Vijay Singh had love affair with the daughter of Shiv Narayan, namely Kumari Geeta who was a student in the Girls School in the town. Such love affair was not liked by Shiv Narayan, his brother Prakash Pathak and other members of the family. On the date of occurrence Vijay Singh had been to the school of Kumari Geeta and Kumari Geeta left the school and went with Vijay Singh to different places. Thereafter Vijay returned to the garage of Shiv Narayan where one Sri Vijay Kumar, theof one Sri S. K. Singh had come to the garage of Shiv Narayan for the purpose of finding out the residence of S. K. Singh. Vijay Singh and his younger brother Ajay Singh were asked by Shiv Narayan to accompany Vijay Kumar for the purpose of showing him the house of S. K. Singh. When they reached near about the Khara Well turning from the three way (Tigda) of Prem Narayan Tiwari, accused Raju came from behind and putting his hand on the shoulder of the deceased Vijay Singh asked him to come to discuss some matter. The deceased Vijay Singh told Vijay Kumar to wait for sometime and he along with his brother Ajay Singh went towards Prem Narayan Tigda. At that place the. Accused Shiv Narayan Pathak and thePrakash as also Vishnu appeared. Vijay Singh on seeing these people attempted to enter the house of Mangal Singh and went towards the back side. He tried to cross the barbed wire fencing at the back side of the Bada of Mangal Singh but his pant got stuck up in the barbed wire and he fell down. While he was trying to extricate himself from the barbed wire fencing, the accused persons reached the place by entering through the gate of the Bada and came upon Vijay Singh. Accused Vishnu shut the mouth of the deceased. The accused Raju caught hold of his hand and accused Shiv Narayan attacked him with knife and accused Prakash also inflicted injury with gupti and caused serious injuries on the chest and abdomen of Vijay Singh and he fell down. Thereafter, the accused persons ran away leaving Vijay Singh at the spot and Shiv Narayan threw away the knife at the spot.the further case of the prosecution that when Ajay Singh found his brother being attacked by the said accused persons he ran to save his life but he was kicked away by Prakash. At that time the uncle of Vijay Singh namely. Chatter Singh was returning from the Bazaar. On hearing the cries Chatter Singh also went to the Bada of Mangal Singh and had witnessed the assault made on Vijay. Another witness Ram Gopal was also going to Kapra from the main Bazaar and seeing the crowd by the road side he also stopped and had seen the accused persons assaulting Vijay Singh. The prosecution also alleged that Muntizar Ali (P.W. 7), Bithal (P.W. 14), Laxmi Prasad (P.W. 16), Durga Prasad (P.W. 17) and Uttam Singh (P.W. 18) were also passing through the road, and standing by the road side they had also seen the incident. After the incident, Uttam Singh father of the deceased Vijay Singh was informed and he reached the place of occurrence by riding a scooter. Vijay Singh was removed to the local hospital with the help of a tempo and though he was immediately attended by the doctor at the hospital he died withinminutes after reaching the hospital. The defence case was that the cause of the murder was the love affair of Vijay Singh with Kumari Geeta. The members of the family of Geeta were displeased and Geeta herself apprehending trouble advised Vijay to remain alert against possible attack on him particularly by Prakash, her uncle who was highly displeased with Vijay Singh. Vijay Singh went to the school of Geeta and both went to different places on scooter taxi and while they reached near Prem Narayan Tigda they met Raju Pathak, Geetas paternal uncles son. Raju was accompanied by a friend. Seeing Raju Pathak, Geeta and Vijay entered the Bada of Mangal Singh. Raju came in search of Vijay and they saw Vijay and Geeta there. Seeing Raju Pathak, Vijay ran towards them with knife and Geeta left the place. The defence suggested that the incident .did not take place in the manner as alleged by the prosecution, and in all probabilities, Vijay Singh was injured in the hands of Raju Pathak and/or his friend.4. It is an admitted position that Kumari Geeta was in love with the deceased and the family members of Geeta including her father Shiv Narayan and uncle Prakash did not like the love affair. On the date of incident, Vijay Singh came to the school of Geeta and Geeta left the school in the company of Vijay and both of them went to different places including a temple. A number of love letters written by Geeta were also found in the pocket of the pant of the deceased which revealed that Kumari Geeta had love affair with Vijay and noticing that her family members did not like the relationship between the two and the deceased was likely to face trouble, she had advised Vijay to keep some weapon to protect himself.5. The learned Additional Sessions Judge did not place reliance on the evidence of Muntizar Ali (PW 7), Bithal (PW 14), Laxmi Prasad (PW 16) and Durga Prasad (PW 17). Inasmuch as they were declared hostile by the prosecution.6. The learned Sessions Judge considered the evidence adduced by Ajay Singh, Chatter Singh (PW 2) and Ram Gopal (PW 4) who according to the prosecution had seen the occurrence. The learned Judge discarded their evidences inter alia holding that they could not be believed. The learned Judge was of the view that it was quite likely that the injuries were inflicted either by Raju Pathak or his friend. He held that since the prosecution did not establish the case beyond reasonable doubt, the accused persons were entitled to the benefit of doubt. Accordingly, he acquitted the three accused namely Shiv Narayan, Vishnu and Raju by his Judgment delivered on 28th July, 1975 in Sessions Trial 61/1974.7. As indicated earlier, thePrakash was not tried along with the said three accused and later on the said Prakash was tried separately and was convicted under Section 302, IPC and sentenced to life imprisonment. In basing the conviction of Prakash the learned Additional Sessions Judge relied on the oral dying declaration given by the deceased Vijay Singh.8. As aforesaid, the Division Bench of the High Court of Madhya Pradesh at Jabalpur affirmed the conviction and sentence of Prakash and also allowed the appeal preferred by the State of Madhya Pradesh against the acquittal of the three accused in part inasmuch as only Shiv Narayan was convicted under Section 326 read with section 34, IPC and sentenced to imprisonment for the period already undergone by him.

Reasoning:
11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and theof Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by theThere may be some minor discrepancies in the evidence of thebut so far as the complicity of Prakash is concerned, the depositions of thewere consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for aboutminutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobodys case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 502, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view. the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the. said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC.