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2002 DIGILAW 516 (MP)

Nandaua alias Munda v. State of M. P.

2002-05-10

RAJEEV GUPTA, S.L.JAIN

body2002
JUDGMENT 1. Nandaua alias Munda, the appellant was tried by Additional Sessions Judge, Dindori, District Mandla, on charges under section 302 of the IPC for committing the murder of Santu and under section 307 of the IPC for attempting to commit murder of Phulabai, the mother of deceased Santu in Sessions trial No. 21 of 1990. 2. Vide judgment and order dated 8.10.1990, the trial Court found the appellant guilty for the offences charged and sentenced him to imprisonment for life for the offence punishable under section 302 of the IPC and RI for five years for the offence punishable under section 307 of the IPC. Both the sentences were directed to run concurrently. 3. The prosecution case as unfolded during trial is that deceased Santu was the brother of complainant Kallu (PW 1), Phulabai (PW 9) is the mother of Kallu, Ritabai (PW 2) is the wife of Kallu and Lulibai (PW 18) is sister of Kallu. Lulibai was married to Munna (PW 21). A few days before the date of incident, Lulibai leaving her matrimonial home came to village Subkhar to live with her brother. Munna, with a view to take his wife back came to village Subkhar and requested Kallu to send Lulibai with him. Kallu told Munna that he will send his sister after 3-4 days. Munna insisted that his wife should be sent with him. Therefore, Munna in order to pursuade Kallu to send his wife with him stayed at the place of Nandaua alias Munda, the appellant. Munna requested certain persons of the locality to advise Kallu to send Lulibai with him. A Panchayat was held in the morning, but Kallu did not participate in this meeting. In the evening some elderly persons of the village assembled again at the house of Baburam (PW 3). In this meeting, Kallu also participated. During the course of conversation there was some scuffle between appellant Nandaua and Kallu. Thereupon, Kallu's wife Rita and his sister Lulibai reached the spot and were bringing Munna back to his house. In the meanwhile, accused came armed with an iron rod. He manhandled Santu and twisted his neck forcefully. When Phulabai, the mother of deceased tried to intervene, the accused assaulted her with the iron rod causing severe injuries to her. Injured Phulabai and Santu were taken to P.S. Dindori where Kallu lodged the FIR Ex. P-1. In the meanwhile, accused came armed with an iron rod. He manhandled Santu and twisted his neck forcefully. When Phulabai, the mother of deceased tried to intervene, the accused assaulted her with the iron rod causing severe injuries to her. Injured Phulabai and Santu were taken to P.S. Dindori where Kallu lodged the FIR Ex. P-1. An offence punishable under section 307 of the IPC was registered. . 4. At Dindori hospital Santu was declared 'brought dead'. Infoffi1ation to that effect was sent to the S.O., P.S. Dindori by Dr. B.K. Jharia (PW 22). Inquest Panchnama was prepared. Post mortem examination of the dead body of deceased Santu was conducted by Dr. R.M. Mishra (PW 19). Dr. Mishra found an ante mortem contusion over upper lip around its whole length and the fracture and dislocation of cervical vertabrae of the deceased. In the opinion of the doctor it was due to forcible twisting of the neck. Dr. Mishra opined that the death was caused due to syncope as a result of fracture and dislocation of cervical vertabrae. Ex. P-13 is the Post Mortem Report by Dr. R.M. Mishra. 5. Phulabai was examined by Dr. B.K. Jharia (P.W. 22). At the time of her medical examination, she was in a semi conscious state. Dr. Jharia found the following injuries on her body. : (1) One lacerated wound 1/2" x 1/4" x 1/4" on the left eye. (2) Contusion 2" x 2" on the left cheek; and (3) One abrasion over right knee. Dr. Jharia opined that the injuries caused to Phulabai were sufficient in the ordinary course of nature to cause death. Ex. P. - 11 is the report given by Dr. Jharia. 6. During investigation at the instance of accused an iron rod (Article A) was seized. One Dhoti and one Kurta which the accused wore at the time of incident were also seized vide Ex. P-4. A blouse, which Phulabai wore at the time of incident was also seized vide Ex. P-7. The above referred Dhoti, Kurta, blouse and iron rod were sent for chemical examination; As per report of Officer-in-charge, FSL, Mandla (Ex. P-10) blood was found on all the above articles. 7. After investigation, a charge sheet was filed against the appellantaccused for the offences indicated above. 8. Charges were framed against the appellant-accused. Accused abjured his guilt. His case is that he has been falsely implicated. P-10) blood was found on all the above articles. 7. After investigation, a charge sheet was filed against the appellantaccused for the offences indicated above. 8. Charges were framed against the appellant-accused. Accused abjured his guilt. His case is that he has been falsely implicated. According to him, the deceased Santu was a patient of epilepsy. Three days prior to the date of alleged occurrence he had fallen from a tree. 9. After the trial, the learned Additional Sessions Judge found the appellant guilty for the offences punishable under sections •302 and 307 of the IPC and sentenced him as indicated above. 10. Heard Shri Siddharth Datt, learned counsel appearing for the appellant and Shri S.K. Rai, learned Panel Lawyer, appearing for the respondent/State. Shri Datt led us through the record and contended that the learned Trial Judge erred in holding the appellant guilty for committing murder of Santu and for attempting to commit murder of Phulabai. He submits that the conviction and sentence of the appellant are bad, improper and illegal. The evidence of the eye witnesses is contradictory and full of omissions. It is belied by the medical evidence. He also submits that the defence version ought to have been accepted by the trial Court. His further contention is that at the most the case would be one under section 326 of the IPC or section 304 (Part II) thereof. As against this, the learned Panel. Lawyer has supported the impugned judgment. 11. Kallu (PW 1), Ritabai (PW 2), Phulabai (PW 9) and Lulibai (PW 18) have been examined by the prosecution as eye witnesses. Kallu (PW 1) has stated that Lulibai, his sister was married to Munna (PW 21), who came to his place to take Lulibai with him. Kallu proposed that LuIibai will be sent after 3-4 days, but Munna did not accede. He stayed with the accused Nandaua. A Panchayat was called in the next morning but Kallu did not participate in that Panchciyat. In the evening another Panchayat was held in which he among others participated. In this meeting Baburam pursuaded him to send Lulibai with Munna. In the meeting of Panchayat accused Nandaua started abusing Kallu and some scuffle took place. After this incident when Kallu was returning in the company of above witnesses, accused came there armed with an iron rod and forcefully twisted the neck of deceased Santu. In this meeting Baburam pursuaded him to send Lulibai with Munna. In the meeting of Panchayat accused Nandaua started abusing Kallu and some scuffle took place. After this incident when Kallu was returning in the company of above witnesses, accused came there armed with an iron rod and forcefully twisted the neck of deceased Santu. Ritabai (PW 2), Phulabai (PW 9) and Lulibai (PW 18) also supported version of Kallu. 12. The occular version has been corroborated by medical evidence also. Dr. R.M. Mishra (PW 19) who conducted postmortem examination on the dead body of deceased Santu had found an antemortem contusion over upper lip around its whole length and also found fracture and dislocation of cervical vertabrea which was possibly due to forceful twisting of neck. According to this witness the injury was sufficient in the ordinary Course of nature to cause death. Ex. P-7 is the report of post mortem examination. 13. Shri Datt, learned counsel for the appellant Nandaua invited our attention to the statement of Kallu and argued that Kallu does not state that the neck of Santu was twisted by the accused. On the contrary, according to this witness, the neck was simply pressed. How the neck was pressed has not been stated in detail by Kallu. Even if Kallu does not state that the neck was twisted, there is no reason to disbelieve other witnesses namely, Ritabai (PW 2), Phulabai (PW 9) and Lulibai (PW 18). Their evidence is corroborated by medical evidence. According to Dr. Mishra, the dislocation and fracture of survical vertabrae is not possible unless the neck is forcibly twisted. It is true that Manorath (PW 4) and Parmu (PW 5) have not supported the prosecution case but this alone is no reason to disbelieve the evidence of other eye witnesses, who have supported the prosecution. The evidence of Kallu (PW 1), Ritu (PW 2), Phulabai (PW 9) and Lulibai (PW 18) inspires confidence. 14. It has been contended on behalf of the appellant that Kallu, Ritu, Phulabai and Lulibai are the relations of deceased Santu. The relationship of witnesses with the deceased is no ground for not acting upon their testimony as it is otherwise reliable in the sense that they were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened there at the scene of occurrence. The relationship of witnesses with the deceased is no ground for not acting upon their testimony as it is otherwise reliable in the sense that they were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened there at the scene of occurrence. In the case of related and interested witnesses, all that is necessary is to scrutinize the evidence with extra care. The learned Trial Judge has rightly relied upon these witnesses as there is no reason as to why the relatives of the deceased shall exculpate the. real culprit and implicate the accused in this case. The evidence of Kallu, Rita, Phulabai and Lulibai does not suffer from embellishment or exaggerations due to interestedness. Their evidence does not loose credibility on this score. Having regard to the fact that their presence at the scene of occurrence is natural and presence of Phulabai is established by reason of the fact that she also sustained injuries at the hands of the accused, their evidence is reliable and is free from infirmity. In Mani Ram v. State of Rajasthan. AIR 1993 SC 2493 it has been held that the close relatives of the deceased would, in the ordinary course of things, be the last persons to screen the actual offender and implicate the appellant falsely. 15. Shri Datt, learned counsel for the appellant further contended that the deceased Santu died due to "Gadda Masani". According to him 'Gadda Masani' means the scuffle but where the witnesses have clearly stated that it was the accused who deliberately twisted the neck of deceased and they are corroborated by medical evidence, it cannot be said that Santu died due to 'Gadda Masani' only. Therefore, we do not find any fault with the finding of the learned Trial Judge to the effect that the accused caused the death of Santu. 16. So far as the charge of attempting to commit murder of Phulabai is concerned, Kallu (PW 1), Ritabai (PW 2), Phulabai (PW 9) and Lulibai (PW 18) have categorically stated that the accused tried to press the neck of Phulabai. He also caused her injuries with the iron rod. The testimony of these eye witnesses is corroborated by medical evidence of Dr. B.K. Jharia (PW 22), who found the injuries on the person of Phulabai as described above. He also caused her injuries with the iron rod. The testimony of these eye witnesses is corroborated by medical evidence of Dr. B.K. Jharia (PW 22), who found the injuries on the person of Phulabai as described above. In the same incident the accused-appellant committed the murder of Santu by twisting his neck, thus we have no doubt that the appellant while pressing the neck and causing the injury to Phula Bai by iron rod intended to cause her death. Therefore, we do not find any fault with the finding of the learned Trial Judge that the accused caused injuries to Phulabai with such intention or knowledge and in such circumstances that if he by that act would have caused death, he would have been guilty of murder. 17. Shri Datt vehemently argued that the act of accused in twisting the neck of deceased does not amount to murder. At the most the case would fall one under section 326 of the IPC. Relying On Jagat Singh and another v. State (1984 Cr.LJ 1551), he submitted that on the proved facts of this case it may not be safe to held that the appellant intended to kill Santu. It can be safely said that his act of twisting the neck would fall under Part II of 304 IPC because he had the knowledge that this act of his is likely to cause death. We find it difficult to agree with the view taken in this judgment. The neck of a young boy aged 12 years was twisted with such a force that it resulted in fracture and dislocation of cervical vertabrae of the deceased. 18. In the case of murder the offender has a positive intention to cause death of the victim. He assaults him with the intention of causing death or with the definite knowledge that the bodily injury inflicted by him would cause death or the injury would be sufficient in the ordinary course of nature, to cause death. The manner of causing the injury, the nature of injury caused, the part of the body where the injury was caused and the conduct of the accused are relevant factors in considering that the offence committed is one of murder or culpable homicide not amounting to murder. The manner of causing the injury, the nature of injury caused, the part of the body where the injury was caused and the conduct of the accused are relevant factors in considering that the offence committed is one of murder or culpable homicide not amounting to murder. Accused had definite knowledge that the twisting of neck causing the fracture of survical vertabrae would be sufficient in ordinary course of nature, to cause death. Therefore, the offence would be murder. The case of the appellant-accused does not come within any of the exceptions enumerated under section 300 of the IPC. 19. For the foregoing reasons, we do not find fault with the conviction recorded under sections 302 and 307 of the IPC. So far as the sentence is concerned for the offence under section 302 of the IPC, the minimum sentence has been awarded by the Trial Court. For the offence under section 307 of the IPC the sentence of rigorous imprisonment for five years cannot be said to be excessive. The appeal, therefore, fails and is hereby dismissed.