Full Judgment
S.S. Saraf, J.
1. This Criminal Appeal has been filed by the accused-appellant against the judgment and order dated 20-12-1994 passed by Additional Sessions Judge, Gadarwara District Narsinghpur in Sessions Trial No. 28 of 1994 whereby the accused-appellant has been convicted for offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment.
2. The prosecution case in brief was that on 29-9-1993 at Gadarwara, District Narsinghpur, that being the Anant Chaturdashi day, the accused-appellant, the deceased Mukesh and the other acquitted accused were participating in Ganesh Visarjan Procession. When the procession reached Hanuman Ward, the accused-appellant suggested to play a filmy song. The deceased Mukesh declined the request of the accused-appellant and told that only religious songs would be played during the procession. Thereupon the accused-appellant took a knife out of the pocket of his pant and inflicted stab wounds on the person of the deceased. Thereafter, the accused-appellant along with acquitted accused fled away from the place of incident. The deceased was taken to the Government Hospital, Gadarwara. Dr. N.K. Bajpai (P.W. 2) gave treatment to him and also sent the information to the police to get the deceased's dying declaration recorded. Dr. N.K. Bajpai (P.W. 2) found eight injuries on the person of the deceased out of which five were stab wounds and three were bruises. C.L. Dheriya, Sub-Divisional Magistrate, Gadarwara (P.W. 11) recorded the dying declaration of the deceased. Meanwhile, Ranjit Singh Chouhan, Station House Officer of Police Station, Gadarwara (P.W. 9) recorded 'Dehati Nalishi' (Ex. P-22) which contained thumb impression of the deceased. During the investigation, the accused-appellant gave information as per Memorandum (Ex. P-9) leading to the recovery of a knife (Gupti) which was concealed in the house of the accused-appellant. The said knife (Gupti) was seized as per Seizure Memo (Ex. P-10). Kurta & Pyjama of the accused-appellant were also seized as per Seizure Memo (Ex. P-16). After completion of investigation, challan was submitted against the accused-appellant and the other acquitted accused. After evaluating the evidence on record, the learned trial Court found that the prosecution has proved the offence against the accused-appellant alone beyond reasonable doubt and therefore, it convicted the accused-appellant for offence under Section 302 of I.P.C. and sentenced him as mentioned above. Aggrieved by the impugned judgment and order, the accused-appellant has filed the present appeal.
3. The learned Senior Advocate for the accused-appellant has vehemently challenged the finding of the learned trial Court on one ground only that the identity of the accused-appellant has not been established by the prosecution and therefore, the finding of conviction recorded by the learned trial Court is erroneous. On the other hand, the learned Panel Lawyer appearing for the respondent-State has urged that the identity of the accused-appellant has been fully established by the evidence and other material on record and therefore, the order of conviction passed by the learned trial Court needs no interference.
4. Having heard the Senior Advocate Shri S.C. Datt appearing for the accused-appellant and the Panel Lawyer appearing for the respondent-State and having gone through the entire evidence and other material on record, it is difficult to accept the contention of the learned Senior Advocate.
5. It has been urged with great vehemence by the Senior Advocate that the Dehati Nalishi (Ex. P-22) contains the name of the assailant as ^^gfj egkjkt dk yM+dk ccyw**(Babloo S/o Hari Maharaj) and the Dying Declaration (Ex. P-32) also contains the same phraseology i.e., ^^gfj egkjkt dk yM+dk ccyw us** while the name of the accused-appellant is Kapil Kumar not Babloo and therefore, the finding of the learned trial Court that the accused-appellant inflicted injuries on the person of the deceased is not sustainable in law.
6. It is manifest from the record that the charge against the accused-appellant was framed and explained to him as under :
^^vki dfiy m QZ ccyw iq= gfj'kadj nqcs uhpsfy[ks vuqlkj vkjksi yxkrk gw**
The above language of the charge clearly shows that the accused-appellant was put on trial as a person whose name was Kapil @ Babloo S/o Harishankar Dubey. Not only this, the challan filed against the accused-appellant also contains his name as Kapil Kumar @ Kapil @ Babloo S/o Harishankar Brahman which also goes to show that the accused-appellant was put on trial as person whose name was Kapil Kumar @ Kapil @ Babloo. In spite of the fact that the accused-appellant was put on trial as a person whose name was Kapil @ Babloo, he did not reply at the time of charge having been explained to him that he was not Babloo or his name was not Babloo. This circumstance clearly shows that the contention of the accused-appellant that his name was not Babloo is false and does not deserve to be accepted.
7. A perusal of the record of the Lower Court reveals that the Memorandum (Ex. P-9) recorded by Ranjit Singh Chauhan (P.W. 9) contains the name of accused-appellant as Kapil @ Babloo. This fact also goes to show that it was known to the accused-appellant that his name was being given as Kapil @ Babloo. It was the accused-appellant who gave information leading to the recovery of a knife (Gupti) which was allegedly used for inflicting injuries on the person of the deceased and the knife (Gupti) was also recovered from the house of the accused-appellant which was kept concealed in the heap of chaff and was given by the accused-appellant. Dr. N.K. Bajpai (P.W. 2) has categorically stated in para 5 of his statement that the injuries found on the person of the deceased could have been caused by the said knife (Gupti). These facts and circumstances clearly show that the accused-appellant is the same person who inflicted the injuries on the person of the deceased and whose name has been mentioned by the deceased in Dehati Nalishi (Ex. P-22) and Dying Declaration (Ex. P-32) as 'Babloo S/o Hari Maharaj'.
8. A careful scrutiny of the record of the trial Court clearly shows that in para 3 of his statement Mukesh Kumar (P.W. 6) used the word ^^vfHk;q ccyw** (accused Babloo) and second time only 'Babloo' while third time as ^^vfHk;q dfiy** (accused Kapil) which clearly indicates that it was the accused-appellant whose name was 'Babloo' as well as 'Kapil'. This witness was not cross-examined on this point by the accused-appellant. No suggestion has been made to this prosecution witness Mukesh Kumar (P.W 6) that the name of the accused-appellant was not Babloo but Kapil. It is true that under the Scheme of Code of Criminal Procedure, there is no scope for the accused to lead defence evidence until the prosecution is closed and the examination of the accused under Section 313 of Cr.P.C. is over but for the purpose of proving his version, the accused can reply on the statements made by the prosecution witnesses or the documents filed by the prosecution. As discussed above, the documents filed by the prosecution and the statements of the prosecution witness clearly indicate that the accused-appellant was put on trial as a person whose name was Kapil @ Babloo but he never made any suggestion to the prosecution witnesses in their cross-examination that the name of the accused-appellant was not Babloo. This circumstance clearly goes to establish that the defence taken by the accused-appellant that his name was not Babloo is false.
9. There is yet another circumstance which clearly establishes that it was the appellant and the appellant alone who caused death of the deceased. Evidently, the deceased disclosed in his Dying Declaration (Ex. P-32) and Dehati Nalishi (Ex. P-22) the name of the assailant as 'Babloo S/o Hari Maharaj'. Mukesh Kumar (P.W. 6) has stated in para 4 of his statement that the deceased and accused-appellant resided in the same Mohalla. It is also evident that the deceased was young boy while the father of the accused-appellant is elderly person and there was no animosity between their families. It is, therefore, quite natural that the deceased named his elderly neighbour as 'Hari Maharaj' instead of 'Hari Shanker Dubey'. This clearly shows that the accused-appellant was the person mentioned as the assailant by the deceased in his Dying Declaration (Ex. P-32) and also in Dehati Nalishi (Ex. P-22).
10. Undoubtedly, the accused need not prove his defence and it is sufficient if he is able to show by preponderance of the probability that the plea taken by him is plausible and raises a reasonable doubt then he is entitled to the benefit. In the present case, the accused-appellant has miserably failed to show by preponderance of the probabilities that plea taken by him that his name was not Babloo as mentioned in Ex. P-22 Dehati Nalishi and Ex. P-32 Dying Declaration. There is not an iota of materials on record to show that the name of the accused-appellant was not Kapil @ Babloo.
11. The learned Senior Advocate placing reliance on Sharad Birdi Chand Sarda v. State of Maharashtra (AIR 1984 S.C. 1622) has contended that the above circumstances appeared against the accused-appellant have not been put to the accused-appellant during his examination under Section 313 of Cr.P.C. and therefore, they cannot be used against the accused-appellant. After giving thoughtful consideration, we are unable to accept the above contention. Defence of the accused-appellant can be inferred from the circumstances appearing in the case and such circumstances need not be put to the accused-appellant in his examination under Section 313 Cr.P.C. The above circumstances, except the fact that the accused-appellant gave information leading to the recovery of the knife (Gupti), are not being mentioned for conviction of the accused-appellant. They have been mentioned to show the improbability and falsity of the defence taken by the accused-appellant that his name was not Babloo. These circumstances were, therefore, not required to be put to the accused-appellant during his examination under Section 313 Cr.P.C. and thus their non-inclusion in the material put to the accused-appellant during his examination under Section 313 Cr.P.C. is not, in our opinion, fatal to the prosecution case. So far as the fact that the accused-appellant gave information leading to the incriminating article is concerned, it has been put to the accused-appellant in question Nos. 22 and 23. The principle laid down by the Supreme Court in Sharad Birdi Chand Sarda's case (supra) is, therefore, of no assistance to the accused-appellant.
12. For the reasons stated above, it is manifest that there are abundant material on record to establish that it was the accused-appellant who inflicted injuries on the person of the deceased and the mentioning of name 'Babloo S/o Hari Maharaj' by the deceased in his Dying Declaration (Ex. P-32) and Dehati Nalishi (Ex. P-22) is, in our opinion, sufficient to establish the identity of the accused-appellant.
13. No other point has been urged before us.
14. In view of above, the appeal is devoid of any merit and deserves to be dismissed. Hence it is dismissed.