Full Judgment
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 21-7-2006 passed by the learned Sessions Judge, Bhopal in S.T. No. 42/2006 convicting the appellant under Section 302 of IPC and sentencing him to suffer life imprisonment, the appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief the prosecution case is that complainant Guddu and his brother Pappu (hereinafter referred to as deceased) were residing in slum area. In the same locality the appellant was also having a hut. A tree of Neelgiri was in the courtyard of complainant, which fell down during rainy season, as a result of which the complainant party kept the wood of the said tree on the other side of the road in front of the hut of the appellant. It is said that brother of the appellant cut the wooden logs and by committing theft took away the wood of the said tree as a result of which some altercation took place between the appellant and the complainant party.
3. It is further the case of the prosecution that in the night of 20-12-2005, complainant Guddu, his sister Shiv Kanti, mother Hemlata and brother Rishikant were going to sleep at that juncture accused persons came and started hurling the abuses to the complainant as well as to the deceased and insisted them to come out from hut. It is said that deceased tried to pacify accused persons and he also opened the door as a result of which accused persons dragged the deceased near by their hut. It is the further case of the prosecution that appellant was armed with Gupti and co-accused Reghuveer was having an iron rod. On being called by Hemlata mother of the complainant, the neighbours namely Leeladhar and Ganjan Singh arrived at the spot and they rushed to rescue the deceased. It is said that appellant in order to kill the deceased dealt a blow of Gupti on his right thigh of deceased and when complainant went to rescue the deceased co-accused Raghuveer dealt a blow of rod on his back. Thereafter all the accused persons fled from the spot.
4. It Is the further case of the prosecution that complainant Guddu and Leeladhar immediately shifted the deceased to the Hamidiya Hospital, Bhopal where the deceased was admitted. However, he could not survive and breathed his last at 1.30 in the night. Thereafter complainant Guddu along with Ganjan Ahirwar went to lodge the report in Jahangirabad Police Station.
5. On the report being lodged by complainant which was registered as FIR Ex. P/6, the criminal law was triggered off and set in motion.
6. The Investigating Agency arrived in the hospital; prepared the panchnama of the dead body and sent it for postmortem; at the instance of complainant Guddu seized the trouser; seized ordinary and blood stained earth from place of occurrence, recorded the statements of witnesses, arrested the accused and seized the weapons from their possession and after completion of the investigation, a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for trial.
7. The learned Trial Judge on the basis of averments made against the appellant in the charge-sheet, framed charge punishable under Section 302/34 of IPC. An alternative charge Under Section 302 of IPC against the accused persons, was also framed. Needless to emphasis the appellant abjured his guilt and pleaded complete innocence.
8. In order to bring home the charges, the prosecution examined as many as 13 witnesses and placed Exhibit P-I to P-24, the documents on record.
9. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under Section 313 of Cr. P.C. However, in support of his defence, he did not choose to examine any witness.
10. The learned trial Judge on the basis of evidence placed on record and after appreciating and marshalling the evidence came to hold that appellant committed the offence Under Section 302 of IPC for which he was charged and eventually passed the sentence which we have mentioned hereinabove. However, since charges were not proved against other accused persons they were acquitted by the trial Court. In this manner, the present appeal has been filed by the appellant.
11. It has been vehemently argued by Shri Mukesh Pandey, learned Counsel for the appellant that there is no clinching evidence against the appellant in order to arrest him for the offence Under Section 302 of IPC and therefore the learned trial Court erred in convicting him. An alternative submission has also been put forth by him that as per the case of the prosecution appellant has assaulted the deceased only by a single blow of Gupti and that too on thigh which is not a vital part of the body hence it cannot be said that the appellant has committed the offence Under Section 302 of IPC and the case would not rest beyond the ambit and scope of Section 304, Part II of IPC.
12. On the other hand Shri R. S. Patel, learned Additional Advocate General argued in support of the impugned Judgment and invited our attention to the testimony of Doctor who found the injury on thigh to be 12 cm. deep and argued that the learned trial Court has rightly convicted the appellant Under Section 302, IPC.
13. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.
14. In the present case, the prosecution has examined three eye-witnesses namely Guddu (P.W. 3). Hemlata (P.W. 4) and Shivkanti (P.W. 8). Out of these three eyewitnesses Guddu (P.W. 3) is also the author of FIR Ex. P/6. On going through the testimony of this witness we find that he has specifically stated that how the incident had occurred. According to this witness, appellant along with other co-accused persons came to his hut and asked the deceased to come out. Thereafter deceased came out from the hut and thereafter appellant dealt a Gupti blow to him. This witness has also proved his First Information Report in which specific role of the appellant causing injury by Gupti has been assigned. This witness has specifically stated that he did not see any other injury on the person of deceased. A suggestion put to him that on account of fall of the deceased he sustained injury, has been firmly denied by him.
15. We have given our anxious and bestowed consideration to the testimony of this witness and after scanning his evidence we find that his evidence is clear, cogent and trustworthy. Learned Counsel for the appellant could not point out that how and in what manner this witnesses should be disbelieved. According to us, the learned trial Court did not err in placing reliance on the testimony of this eye-witnesses. On X-raying the testimony of this witness it is gathered that appellant has caused only single injury to the deceased which landed on his right thigh.
The statement of Guddu (P.W. 3) is corroborated by another eye-witness namely Hemlata (P.W. 4) who is mother of the deceased as she has also stated that appellant dealt a blow of Gupti to the deceased.
16. The other eye-witness is Shivkanti P.W. 8) who had also corroborated the statement of the above said two eye-witnesses. She has also specifically stated that appellant caused a Gupti blow on right thigh of the deceased and thereafter he fled from the place of the occurrence. After appreciating and marshalling the evidence of the aforesaid three eye-witnesses we find that single injury by Gupti is caused to the deceased by appellant which landed on the right thigh.
17. The evidence of these three eye-witnesses is also medically corroborated. The postmortem of the deceased was conducted by Dr. Neelam Shrivastava (P.W. 6) an autopsy surgeon and the postmortem report is Exhibit P-8. On examining the dead body of the deceased, the Autopsy Surgeon found only single stab injury on thigh. On going through the testimony of the autopsy surgeon as well as postmortem report Ex. P/8 we find that deceased sustained only single stab injury on thigh. According to Autopsy Surgeon, the deceased breathed his last on account of shock and hemorrhage on account of stab injury sustained by him on his right thigh which was sufficient to cause his death in the ordinary course of nature. Doctor has further opined that the injury was caused by hard and penetrating object. Needless to say Gupti is a hard and penetrating object. All the eye-witnesses have stated that the appellant has caused injury by Gupti to the deceased. Thus the statement of the eye-witnesses is also corroborated by the medical evidence.
18. We have also given our anxious consideration to the reasons assigned by learned trial Court and by upholding the same we hereby hold that appellant has caused injury by Gupti on the thigh of deceased as a result of which he died. According to us, looking to the genesis of the occurrence and since as per the case of the prosecution the appellant dealt a single blow of Gupti on thigh region of deceased which is not a vital part of the body, it cannot be said that the appellant was having any intention to cause death to the deceased. Though it can be inferred that appellant was having knowledge that by causing injury by Gupti life of a person may come to end and therefore, according to us, the appellant has committed an offence punishable Under Section 304 Part II of IPC. It will be profitable to place reliance on the decision of Supreme Court Rajinder v. State of Haryana : 2006 CriLJ2926 in which a gun shot injury was caused on the right thigh and it was held by the Apex Court that offence under Section 304, Part II, IPC has been committed.
19. Resultantly, the appeal succeeds in part the conviction and sentence of the appellant Under Section 302 of IPC is hereby set aside and he is convicted Under Section 304, Part II of IPC and we sentence him to suffer 5 years rigorous imprisonment.