Madhya Pradesh High Court
Sanjay @ Sanju vs The State Of Madhya Pradesh on 28 September, 2021
Author: Sujoy Paul
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr.A. No.1010/2010
(Sanjay @ Sanju Vs. State of Madhya Pradesh)
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Coram: Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
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Presence :
Shri G.P. Singh, learned counsel for the appellant.
Shri Valmiki Sakargaye, learned Government Advocate for
the respondent/State.
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Whether approved for reporting :
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JUDGMENT
(Passed on 28th September, 2021)
Per Anil Verma, J:-
The appellant has preferred this appeal under Section 374 of
the Code of Criminal Procedure 1973 (for short 'the Code') against
the judgment of conviction dated 21.06.2010 passed by the
Sessions Judge in Sessions Trial No.439/2009 by which the
appellant has been convicted for offence punishable under Section
302 of Indian Penal Code (for short 'IPC') and sentenced to undergo
life imprisonment with fine of Rs.2000/- and respectively with
default stipulation.
02. The prosecution story, in short, is that on 30.06.2009 at about
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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(Sanjay @ Sanju Vs. State of Madhya Pradesh)
12 a.m., complainant Satish had gone to call the deceased Manoj @
Raju and Hemant to take them to the court. When he reached
porter's rest room, he found there Manoj, Hemant, Anna and Vijay.
There was a scuffle between the deceased Manoj and the appellant-
Sanjay over a sum of Rs.100/-. During the incident, the deceased
hit the appellant on his face with a fist due to which the appellant
Sanjay started bleeding then appellant brought a knife from the
Taand and gave knife blow from front side on chest of the deceased
and also gave a blow on his thigh. The appellant also caused injury
by teeth bite to Vijay. After committing this incident, the appellant
tried to run away from the spot, but he was caught by Govind and
Vijay. The injured Raju @ Manoj was put in an auto-rickshaw and
took him immediately to hospital, where he was declared by the
doctor as brought dead. This information was sent by treating
Doctor to the Police Station -GRP, Ujjain and on the basis of the
said information, Merg was registered.
03. As per prosecution story, Inspector A.K. Shrivastava PW-12
reached the spot and prepared inquest report (Ex.P-2) before the
witnesses. Dead body of the deceased was sent to the hospital for
postmortem, which was conducted by Dr. B.B. Purohit PW-11, who
opined that cause of death was due to excessive bleeding and shock
subsequent to stab wound over his vital part 'heart' and the death of
deceased was homicidal. Inspector A.K. Shrivastava registered
Dehati Nalishi on the information given by complainant - Satish.
During the investigation, spot map was prepared and seized plain
soil from the spot, the blood stained shirt of the deceased and knife
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr.A. No.1010/2010
(Sanjay @ Sanju Vs. State of Madhya Pradesh)
was also seized and statements of witnesses were recorded. All the
seized articles were sent to FSL for chemical analysis. After the
completion of entire investigation, charge-sheet was filed under
Section 302 and 324 of IPC against the accused / appellant.
04. The charge-sheet was filed before the Judicial Magistrate
First Class, Ujjain, who committed the case to the court of Sessions
Judge, Ujjain. The Special Judge on the basis of the allegations
made in the charge-sheet, framed charges punishable under Section
302 and 324 of IPC. The appellant abjured his guilt and pleaded
complete innocence.
05. In order to bring home the charges, prosecution examined as
many as 12 witnesses and placed Ex. P-1 to Ex.P-21, the
documents on record. The defence of the appellant is of false
implication and the same defence was taken forthwith in his
statements recorded under Section 313 of Cr.P.C. In support of his
evidence, he also examined one witness - Sanjay Singh as a
defence witness. The learned Sessions Judge after considering the
evidence adduced by the parties, convicted the accused / appellant
for the offence under Section 302 of IPC and sentenced him as
mentioned in the impugned judgment.
06. Learned counsel for the appellant submits that the trial court
has erred while relying upon the statements of the witnesses and
discarding the defence version, the identification of the accused
was neither proper nor in accordance with law, the trial court was
wrong in drawing unwarranted inferences. There are major
contradictions and omissions in the statements of prosecution
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witnesses. The judgment passed by the trail court is contrary to the
law and facts on record. Prosecution could not prove the guilt of
the accused / appellant beyond reasonable doubt. He prays that the
appeal be allowed and appellant be acquitted in the present case.
Learned counsel for the appellant has placed reliance upon
the judgments delivered by the Hon'ble Supreme Court in the case
of Stalin Vs. State represented by the Inspector of Police
(Criminal Appeal No.577/2020 arising out of SLP (Crl.) No.3171
of 2010) and Gurumukh Singh Vs. State of Haryana (Criminal
Appeal No.1609/2009 arising out of SLP (Crl.) No.7898 of 2008).
07. Learned Government Advocate for the respondent/State
supported the conviction recorded by the trial court and prays for
rejection of the appeal.
08. We have heard the learned counsel for the parties and perused
the record.
09. In the present case, first of all it is to be considered as to
whether the death of the deceased Raja @ Manoj was homicidal in
nature or not. In connection of the evidence, Dr. B.B. Purohit (PW-
11), who has performed the postmortem on the body of the
deceased has given a report Ex.P-7. According to Dr. B.B. Purohit
(PW-11), following injuries were found on the body of the
deceased Raju @ Manoj.
"(1) Stab incised wound on left side of the
chest; 2'' lateral to sternum ; 5'' below the 4th clavicle;
2'' medially to nipple; 6'' away from Lt.Axillery at the
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr.A. No.1010/2010
(Sanjay @ Sanju Vs. State of Madhya Pradesh)
level of 4th inter-postal space. This wound was
splendid shaped 1 1/2'' x 1/2'' x deep into the chest
cavity. Skin tissues and muscles were cut sharply.
Clotted blood was present in the site of the wound.
Sternum (upper post) found cut sharply. 4th Lt. Rib
found cut sharply. Depth of wound penetrated the
heart Lt. ventricle 1''x1/2''. This injury was
antimortem and caused by sharp cut penetrating
object and dangerous, fatal and sufficient to cause
death.
(2) Cut wound at left thigh 6'' below from 1 ½''
X ½''. 3'' deep upto the muscle sharply cut and clotted
blood. This injury was antimortem and caused by the
sharp cutting weapon.
Dr. B.B. Purohit opined that the deceased died due to
hemorrhage and shock, due to stab wound in the chest back side
due to which vital organs heart and all the findings are of homicidal
nature of death. There is no reason to discard the evidence given by
the Dr.B.B. Purohit and therefore, it is properly held by the trial
court that the death of the deceased was homicidal in nature caused
by injuries on his chest and the all injuries were sufficient to cause
his death.
10. Satish PW-1, Hemant PW-2 and Vijay PW3 and Rakesh PW-
6 were examined as eye witnesses. Satish PW-1 stated in his
statements that at the time of incident, he had gone to call the
deceased Manoj @ Raju and Hemant to take them to court. When
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(Sanjay @ Sanju Vs. State of Madhya Pradesh)
he reached porter's waiting room, he saw that Sanjay, Raju and
other persons were gambling. During gambling, Raju snatched a
note of Rs.100/- from Sanjay, on this act, quarrel started between
them. Raju hit Sanjay with a fist because of which Sanjay started
bleeding, then Sanjay went to washroom to wash his mouth and
from there, he brought a knife, which was kept at Taand over the
gate and then, Sanjay firstly hit on the chest and then on the leg of
the deceased by using knife. While Govind and Vijay tried to hold
Sanjay. Sanjay caused injury by biting with teeth to Vijay. Raju @
Manoj fell down then, he went to bring auto and injured Raju was
put in auto-rickshaw and was taken to hospital, where he was
declared as brought dead. Appellant also came to the hospital,
where he launched Dehati Nalish Ex.P-1.
11. Hemant has supported the statement of Satish (PW-1) and
also stated in his statements that at the time of incident, accused-
Sanjay, deceased-Sanjay and Manoj were gambling in the porter's
room and during gambling, the deceased Manoj hit Sanjay on his
face then they intervened at that time, accused Sanjay said "this
blood will become very expensive to you". Then Sanjay brought a
knife and hit the knife on the chest and thigh of the deceased due to
which the deceased Manoj fell down. Vijay and Anna tried to hold
Sanjay but Sanjay, bitten on the hand of Vijay by teeth and fled
away from the spot. When they reached hospital along with the
deceased, after examination, doctor declared him brought dead.
12. The next relevant prosecution witness, Vijay @ Hawa (PW-3)
has also stated in evidence that during gambling, over Rs.100/-
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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(Sanjay @ Sanju Vs. State of Madhya Pradesh)
quarrel started between Raju and Sanjay. Raju hit one or two fists
on the face of Sanjay, which caused bleeding on the face of Sanjay
and thereafter, Sanjay gave knife blow upon the chest of Raju and
also hit him on thigh by blow of knife.
13. Yet another witness, Rakesh (PW-8) has narrated the event
which confirms the prosecution story. He stated that at the time of
incident, he along with Manoj, Sanjay, Govind and Vijay were
playing gamble. Manoj took a note of Rs.100/- then scuffle started
and Manoj hit the right side of the lips of Sanjay, where blood
started oozing then Sanjay went to washroom and took out a knife
from the drawer of the porter room and gave a blow of knife to
Manoj. Manoj started bleeding thereafter, he along with Hemant
took Manoj by auto-rickshaw to civil hospital. After the quarrel,
Sanjay was caught hold by Vijay and Govind but finally, he ran
away from the spot.
14. Learned counsel for the appellant has submitted that there
are some material contradiction and omission in the statement of
eye witnesses - Satish (PW-1), Heman (PW-2) and Vijay (PW-3)
that whether various blows were given to the deceased. It is true
that as per Satish, Sanjay hit on the chest and leg of the deceased
by using knife but as per Hemant Sanjay hit on the chest and thigh
of the deceased. Although, thigh is also a part of leg, therefore, it
cannot be said that it is a material contradiction. Yet another
witness was Satish, who states that deceased- Manoj slapped
Sanjay on his face. Vijay said that Manoj gave a fist to Sanjay. As
per Satish (PW-1), the accused -Sanjay bit Vijay on his hand but,
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr.A. No.1010/2010
(Sanjay @ Sanju Vs. State of Madhya Pradesh)
Vijay did not support that accused had bitten him on hand but, it is
not material in nature.
15. Although, several contradictions and omissions in the
statements of Satish (PW-1) and Dehati Nalish (Ex.P-1), which was
lodged by Satish. Satish deposed in court statement that
accused/appellant said that "khoon ka badla khoon" but, it was not
mentioned in Dehati Nalish. He deposed that they were gambling at
porter's room, but no such version was given by the witness in
Dehati Nalishi. There is not much discrepencies in the statements
of theses witnesses. Various suggestions were given to these
witnesses, but there are no material contradictions in material
particulars in their testimonies which tends much credibility to their
statements.
16. Inspector- A.K. Shrivastava (PW12) has also proved the
document to show that blood stained shirt was recovered from the
appellant and he prepared seizure memo Ex.P14 and a knife was
seized from the spot and prepared seizure memo Ex.P-3. FSL
report Ex.P-20 also proves that shirt of the appellant had blood
stains of the deceased Manoj. This evidence corroborates the
prosecution story that deceased was stabbed with such knife by the
appellant.
17. The Dehati Nalishi was lodged at Hospital after one hour and
30 minutes of the incident, whereas the spot was few kilometers
away from the hospital and the complainant Satish had to arrange
for transportation etc. so that the deceased whose condition was not
good, could be taken to the hospital. In these circumstances, Dehati
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Nalishi was lodged within a reasonable period.
18. Satish PW-1 was the author of Dehati Nalishi Ex.P-1, which
clearly mentions the name of the appellant for the commission of
offence mentioned hereinabove. The names of prosecution
witnesses Satish PW-1, Hemant PW-2, Vijay PW-3 and Rakesh
PW-8 are also mentioned in Dehati Nalish. All these witnesses have
corroborated prosecution witnesses in verbatim. There are no
material contradictions and omissions in their testimonies, which
lend much credibility of their statements. There is no material
which has been produced on the record, indicates that the
complainant had any previous enmity with the appellant. Presence
of the injuries have been affirmed by the postmortem report Ex.P-7.
19. In view of the statements of these eye witnesses, it has been
established that at the time of incident, appellant gave a blow of
knife to the deceased Manoj due to which he sustained grievous
injuries and succumbed on the spot, therefore, we find no
perversity or deficiency in the impugned judgment dated
21.06.2010 passed by the trial court which may warrant
interference.
20. Learned counsel for the appellant has also submitted that
when the incident took place, the appellant had no reason to kill the
deceased- Manoj @ Sanjay, it is also apparent from the evidence
that incident took place all of a sudden under the sudden
misunderstanding. The accused / appellant assaulted by means of
knife and hit in passion to the deceased due to this injury, the
deceased died when he was brought to the hospital. It is not a case
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of the prosecution that the appellant assaulted the deceased with an
intention to commit murder. It is also held by the trial court that
there was no motive of the accused to commit murder of the
deceased. In such circumstances, it can be inferred that the incident
took place all of a sudden during gambling and in said heat of
passion, the accused / appellant assaulted the deceased by means of
knife over heart. While there was a sudden quarrel, at that time he
did not act in a cruel or unusual manner.
21. Learned counsel for the appellant also contended that the
ingredients of Section 302 of IPC are not proved in this case and
the act committed by the accused / appellant falls within the
exception of Section 302 of IPC. Learned counsel refers the
judgment delivered by the Apex Court in the case of Gurumukh
Singh Vs. State of Haryana (supra) wherein it has been held as
under:-
"23. Before we part with the case, we would like to
clearly observe that we are not laying down that in
no case of single blow or injury, the accused cannot
be convicted under section 302 IPC. In cases of
single injury, the facts and circumstances of each
case has to be taken into consideration before
arriving at the conclusion whether the accused
should be appropriately convicted under section 302
IPC or under section 304 Part II IPC.
24. These are some factors which are required to be
taken into consideration before awarding
appropriate sentence to the accused. These factors
are only illustrative in character and not exhaustive.
Each case has to be seen from its special perspective.
The relevant factors are as under:
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a) Motive or previous enmity;
b) Whether the incident had taken place on the spur
of the moment;
c) The intention/knowledge of the accused while
inflicting the blow or injury;
d) Whether the death ensued instantaneously or the
victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the
accused;
g) Whether the injury was caused without pre-
meditation in a sudden fight;
h) The nature and size of weapon used for inflicting
the injury and the force with which the blow was
inflicted;
i) The criminal background and adverse history of
the accused;
j) Whether the injury inflicted was not sufficient in
the ordinary course of nature to cause death but the
death was because of shock;
k) Number of other criminal cases pending against
the accused;
l) Incident occurred within the family members or
close relations;
m) The conduct and behaviour of the accused after
the incident. Whether the accused had taken the
injured/the deceased to the hospital immediately to
ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken
into consideration while granting an appropriate
sentence to the accused. The list of circumstances
enumerated above is only illustrative and not
exhaustive. In our considered view, proper and
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appropriate sentence to the accused is the bounded
obligation and duty of the court. The endeavour of
the court must be to ensure that the accused receives
appropriate sentence, in other words, sentence
should be according to the gravity of the offence.
These are some of the relevant factors which are
required to be kept in view while convicting and
sentencing the accused.
25. When we apply the settled principle of law which
has been enumerated in the aforementioned cases,
the conviction of the appellant under section 302
I.P.C. cannot be sustained. In our considered view,
the accused appellant ought to have been convicted
under section 304 Part II I.P.C. instead of under
section 302 I.P.C."
Learned counsel further heavily placed reliance upon the
judgment delivered by the Apex Court in the case of Stalin Vs.
State represented by the Inspector of Police (supra), wherein the
Apex court in paragraph No.11 has held as under:-
"Now, the next question which is posed for
consideration of this Court is whether the case would
fall under Section 304 Part II IPC? Considering the
totality of the facts and circumstances of the case and
more particularly that the accused inflicted the blow
with a weapon like knife and he inflicted the injury on
the deceased on the vital part of the body, it is to be
presumed that causing such bodily injury was likely to
cause the death. Therefore, the case would fall under
Section 304 Part I of the IPC and not under Section
304 Part II of the IPC."
22. This Court refers the judgment delivered by the Apex Court
in the case of Atul Thakur Vs. State of Himachal Pradesh
(Criminal Appeal No.522-523 of 2016) date 19.01.2018 whereby
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the Hon'ble Apex Court after setting aside the conviction under
Section 302 of IPC, convicted the appellant for the charges under
Section 304 Part-II of IPC and directed to undergo sentence of 10
years with fine.
23. In the considered opinion of this Court, it is a fit case for
setting aside the conviction under Section 302 of IPC thereby
convicting the appellant under Section 304 Part-II of IPC. On
perusal of the record, it reveals that the appellant is in custody
w.e.f. 06.07.2009 from the date of arrest and he has not been
released on bail during the trial or during pendency of this appeal,
therefore, by this time he has already served his sentence for more
than 12 years. In such circumstances, the sentence already
undergone would be sufficient for conviction of charge under
Section 304 Part-II of IPC as discussed above.
24. Accordingly, the appeal is hereby partly allowed and the
conviction of the appellant under Section 302 of IPC stands set
aside and instead, convict the appellant under Section 304 Part-II
of IPC. The sentence already undergone by the appellant would be
sufficient to prove his guilt. Appeal is partly allowed. It is directed
that the appellant, if not required in any other case, be released.
Registry is also directed to send a copy of this order to the jail
authorities as well as trial court concerned to take appropriate steps.
(Sujoy Paul) (Anil Verma)
Judge Judge
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2021.09.30 16:11:14
+05'30'
