Prakash vs State of M. P. - 1992 Supreme(MP) 528

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(MP) 528

1992 JLJ 561
(SUPREME COURT)
K. Jayachandra Reddy and G.N. Ray, JJ.
Prakash and another v. State of M.P.
Cr. Appeals No.7 and 8 of 1981; against judgment of the M.P. High Court passed in Cr. Appeal No. 222 of 1977 and Cr. Appeal No. 714 of 1976, preferred against the judgment of Additional Sessions Judge, Sagar, passed in Sessions Trial No. 61 of 1974; Decided on 20.8.1992.

Advocates:
Lalit for appellants.

Headnote:(1) Penal Code, 1860 -- S. 302 -- weapon of offence recovered from possession of accused -- offence proved by direct evidence of eye witnesses and also by dying declaration of deceased -- conviction is proper. Judgment of High Court affirmed. [Para 11
       (2) Evidence Act, 1872 -- S. 27 -- recovery of gupti used in murder at instance of accused -- weapon also found stained with human blood -- injuries could be inflicted with weapon recovered -- recovery is suggestive of commission of offence when also corroborated by other evidence. [Para 11
       (3) Evidence Act, 1872 -- S. 118 -- child witness of 14 years of age -- cannot be presumed likely to be tutored -- can give a proper account of murder of his own brother. [Para 11
       (4) Evidence Act, 1872 -- S. 32 -- assailants known to deceased - - he would tell the names of such assailants to his family member -- critical position of deceased not on record -- that cannot be presumed.
       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 atleast upto half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. 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 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 nobody‘s 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. Judgment of High Court affirmed. [Para 11
       ¼1½ naM lafgrk] 1860 && /kkjk 302 && vijk/k dk vk;q/k vfHk;qDr ds dCts ls cjken && izR;{kn‘khZ lkf{k;ksa ds izR;{k lk{; rFkk e`rd ds e`R;qdkfyd dFku }kjk Hkh vijk/k lkfcr && nks"kflf) leqfpr gSA mPp U;k;ky; dk fu.kZ; vfHkiq"VA ¿ iSjk 1À

       ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 27 && gR;k ds fy, iz;qDr xqIrh vfHk;qDr dh izsj.kk ij cjken && vk;q/k ekuo jDr ls jaftr ik;k x;k && {kfr;k¡ cjken gq, vk;q/k ls dkfjr dh tk ldrh Fkha && cjkenxh vijk/k fd;k tkuk bafxr djrh gS tc og vU; lk{; }kjk Hkh laiq"V gSA ¿ iSjk 11À

       ¼3½ lk{; vf/kfu;e] 1872 && /kkjk 118 & 14 o"kZ dh vk;q dk ckyd lk{kh && laHkor% fl[kk;k x;k gksuk mi/kkfjr ugha fd;k tk ldrk && Lo;a ds HkkbZ dh gR;k dk leqfpr fooj.k ns ldrk gSA ¿ iSjk 11À

       ¼4½ lk{; vf/kfu;e] 1872 && /kkjk 32 && /kkjk 32 && e`rd geykojksa dks tkurk Fkk && og mu geykojksa ds uke vius ifjokj ds lnL;ksa dks crkrk && e`rd uktqd fLFkfr esa gksuk vfHkys[k ij ugha && mldh mi/kkj.kk ugha dh tk ldrhA

       tgk¡ rd e`R;qdkfyd dFku dk laca/k gS] ge mPp U;k;ky; dk ;g fu"d"kZ Lohdkj djus ds fy, ck/; gS fd e`rd geys ds i‘pkr~ de&ls&de vk/ks ?kaVs rd thfor FkkA og vLirky ys tk;k x;k Fkk tgk¡ mldk 10&15 feuV rd mipkj fd;k x;kA MkDVj ds lk{; ls ;g iq"V ugha gS fd {kfr;k¡ bruh xaHkhj Fkha rFkk ejht dh n‘kk bruh uktqd Fkh fd og dksbZ e`R;qdkfyd dFku nsrk ;g vlaHkkO; FkkA ekewyh vuqØe esa] firk lfgr ifjokj ds lnL;ksa ls ;g izR;kf‘kr Fkk fd os izFke volj dh gh vkgr O;fDr ls geykojksa ds uke iwNrs rFkk ;fn vkgr ckrphr djus dh fLFkfr esa gksrk] ;g ;qfDr;qDr rkSj ij izR;kf‘kr gS fd og geykojksa ds uke crkrk ;fn mlus geykojksa dks igpku fy;k gksrkA bl ekeysa esa ;g vfHkfu/kkZfjr djus dk dksbZ dkj.k ugha gS fd e`rd geykojksa dks igpkuus dh fLFkfr esa ugha Fkk D;ksafd og fdlh dk dFku ugha gS fd e`rd vfHk;qDrx.k dks ugha tkurk FkkA vr% ;g iw.kZr;k laHkkO; gs fd iwNs tkus ij e`rd geykojksa dk uke crkrkA mPp U;k;ky; dk fu.kZ; vfHkiq"VA ¿ iSjk 11À

JUDGEMENT

G.N. Ray, J. -- 1. These appeals arise out of a Judgment dated November 18, 1980 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 222 of 1977 (Prakash v. State of Madhya Pradesh) and Criminal Appeal No. 714 of 1976 (State of Madhya Pradesh v. Shibboo alias Shiv Narayan and two others). Criminal Appeal No. 222 of 1977 was preferred by the accused Prakash in the High Court of Madhya Pradash in the High Court of Madhya Pradesh at Jabalpur against his conviction under section 302 IPC and sentence of life imprisonment in Session Trial No. 61/1974 in the Court of the First Additional Sessions Judge, Sagar Criminal Appeal No. 714 of 1976 was preferred by the State of Madhya Pradesh against the accused Shiv Narayan and the other two accused Vishnu Prasad and Raju alias Raja Ram against the order of acquittal passed by the learned Additional Sessions Judge, Sagar in Session Trial No.61 of 1974. It may be mentioned here that all the four accused persons were committed to sessions trial for the murder of one Vijay Singh on 14th February, 1974 but as accused Prakash became ill and could not be tried for long, the other three accused were tried and the aforesaid order of acquittal was passed by the Additional Sessions Judge, Sagar. The accused Prakash was later on tried and he was convicted under section 302 IPC and sentenced to life imprisonment for the murder of the said Vijay Singh. The Division Bench of the High Court of Madhya Pradesh at Jabalpur allowed the Criminal appeal No. 714 of 1976 preferred by the State of Madhya Pradesh against the order of acquittal in part inasmuch as the acquittal of Shiv Narayan was set aside and he was convicted under section 326 read with section 34 of the IPC and sentenced for imprisonment for the period already undergone in the jail. The acquittal of the other two accused namely Vishnu Prasad and Raju were affirmed and the appeal of the State against acquittal to that extent was disallowed. The appeal preferred by Prakash against his conviction under section 302 and sentence of life imprisonment was, however, dismissed and the order of conviction and sentence passed by the learned Additional Sessions Judge was affirmed by the High Court.

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 & 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, the brother-in-law of 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 he reached near about the Khara Well turning from the three way (Tigda) of Prem Narayan Tiwari, accused Raj 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 Told Vijay Kumar to wait for sometime and he alongwith his brother Ajay Singh went towards Prem Narayan Tigda. At that place the accused Shiv Narayan Pathak and the co-accused Prakash and also Vishnu appeared. Vijay Singh on seeing these people attempted to enter the house of Mangal Singh and went towards the back side. H

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