AMIT KUMAR MISHRA Vs. STATE OF M.P.

JUDGEMENT

(1.) This criminal appeal has been filed by the appellant being aggrieved by the judgment dated 19.09.1997 passed by the learned Additional Sessions Judge, Shahdol in Session trial No. 51/93 whereby the learned judge has convicted the appellant for the offence punishable under Section 304-II as well as Section 324 of IPC and sentenced to him for R.I. for 5 years and 2 years respectively with fine of Rs. 500/- each and default stipulation.

(2.) According to case, on 27.07.1993, when at about 8 PM, deceased (Basant Tiwari) and victim (Arvind Tiwari-PW-5) were returning after attending nature's call then on the way, appellant/accused met them and asked for cigarette on which deceased stated that he has no money then accused assaulted him with knife on left side of lower abdomen saying that he would kill him. Thereafter, when victim Arvind Tiwari caught hold the accused/appellant, he also assaulted him also on his right forearm with knife. Thereafter the appellant ran away from the spot. Thereafter, at about 8:45 pm, the deceased lodged the FIR against the appellant, and they were sent for medical examination to the District Hospital Shahdol. The injuries found on the body of deceased and victim, were simple in nature but the deceased had been admitted in Male Surgical Ward for further treatment. On 29.07.1993, dying declaration had also been recorded by the Naib Tehsildar/P.D. Shrivastava (PW-4) in the presence of Dr. Pradeep Khare (PW-11). Dr. A.K.Shrivastava (PW-12) opined that the injuries sustained by deceased were dangerous to life. Thereafter, the deceased had been shifted to Victoria Hospital Jabalpur where on 09.09.1993 at about 10:30 pm, he died. Post mortem has also been conducted and Dr. D.K. Saklle (PW-10) prepared the post mortem report (Ex. P-14-A) and opined that the cause of death is cardiorespiratory failure due to pyogenic peritonitis. Vide Ex. P-4, weapon i.e. knife (katar) was seized from the possession of appellant/accused which was also sent to FSL for chemical examination, report is annexed in the record as Ex.P-1. Thereafter, the trial Court has framed the charges of the offence of Sections 302 and 324 of IPC. The accused/appellant abjured his guilt and asked for trial. After examining all the prosecution witnesses and evaluating the material available on record, the learned trial Court acquitted the appellant/accused for the offence punishable under Section 302 of IPC but the Court found sufficient evidence to convict the appellant for the offence punishable under Section 304-II and Section 324 of IPC.

(3.) Learned counsel for the appellant submits that the learned trial Court erred in convicting the appellant whereas no offence is made out against him. The trial Court failed to appreciate the fact that allegedly the incident took place in dark and no independent witness who saw the appellant-accused in spot has been examined. the appellant has been falsely implicated in this case. He further submits that the learned trial Court erred in holding that the death of Basant Tiwari (deceased) occurred due to injuries sustained by him on the day of incident but there is no iota of evidence to connect the death of deceased with the injuries inflicted to him. Further, Doctor who had given treatment to the deceased at Shahdol and Jabalpur have not been examined by the prosecution. Original bed head ticket was also not produced in the Court which clearly indicate that the appellant is not guilty for the aforesaid offences. He further submits that so far as conviction under offence of Section 324 of IPC is concerned, same has been passed in respect of victim Arvind Tiwari (PW-5) who has entered into compromise with the appellant and on 11.10.2017 the statement of victim has also been recorded by the registrar J-II of this registry. The learned trial Court itself found that the fact that the weapon which was seized from the possession of appellant/accused was same which was used in crime has not been found proved. Hence, the prosecution case is doubtful and benefit of said doubt should be given to the appellant/accused. The statement of medical examiners itself shows that the injury sustained by the deceased was not enough in ordinary course to cause his death. Therefore, the judgment passed by learned trial Court is not sustained and deserves to be set aside. In support of his contention he has relied the judgments of Hon'ble Apex Court in the case of Sukhar Vs. State of U.P. reported in 2000 Cri. L. J. 29 and Moti Singh and another Vs. State of U.P. reported in AIR 1964 SC 900.