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Madhya Pradesh High Court · body

2003 DIGILAW 614 (MP)

Johar Singh alias Jorsingh v. State of M. P.

2003-04-25

A.K.AWASTHY, DEEPAK VERMA

body2003
JUDGMENT AWASTHY, J. 1. The appellant has preferred this appeal against the judgment dated 8.2.1990 passed by the learned Sessions Judge, Balaghat in Sessions Trial No. 144 of 1989' against his conviction under section 302 and 307 of the Indian Penal Code and sentence to undergo imprisonment for life and rigorous imprisonment for 4 years respectively. 2. It is not in dispute that the complainant Krishnabai (PW 4) is the wife of the accused and the deceased Janiyabai was bua of said Krishnabai (PW 4). That at the time of the incident, the accused and his wife Krishnabai (PW 4) were living with deceased Janiyabai in her house in village Nevargaon. 3. The prosecution story in brief is that on 21.9.1989 at about 11.00 a.m. in Amrai Tola of village Nevargaon, the accused came to his house in intoxicated state and when his wife declined to give him money for liquor, the accused started beating his wife Krishnabai (PW 4) with firewood. The deceased Janiyabai intervened and asked the accused not to beat his wife then the accused struck lathi blow on the head of Janiyabai. The deceased Janiyabai fell down and thereafter the accused dragged his wife out from the house and took her forcibly to nearby village. The quarrel attracted the eye-witnesses Pacchal Singh (PW 2) and Phundobai (PW 3). . 4. Phundobai (PW 3) apprised about the incident immediately to Premlal (PW 1) who is elder brother of Krishnabai (PW 4). Just after the incident, the first information report (Ex. P-l) was lodged at about 2.40 p.m. in the police station Malajkhand. Police went to place of incident and after preparation of the panchnama of the dead body, sent it for post-mortem. That 'on 22.9.1989 at 12.30 autopsy of the dead body was conducted by Dr. C.S. Shiv (PW 9) who has reported vide Ex. P-15A that on the right parietal bone of the deceased there was a fracture due to lacerated wound which has resulted in her death. Dr. D. Banerjee (PW 10), on the same day, has examined Krishnabai (PW 4) and found the following injuries which were caused by hard and blunt object within 24 hours: (i) Lacerated wound 4 cm x 1/2 cm x lcm right parietal scalp. (ii) Lacerated wound 3 cm x 1/2 cm occipital parietal scalp. (iii) Abrasion 2 cm x 2 cm right parietal scalp. (ii) Lacerated wound 3 cm x 1/2 cm occipital parietal scalp. (iii) Abrasion 2 cm x 2 cm right parietal scalp. (iv) Lacerated wound with bruise 2 cm x 1/4 cm x 1/4 cm right forearm proximal 1/3rd. The Investigating Officer Shiv Naresh Upadhyaya (PW 8) took the recovery statement (Ex. P-4) of the appellant on 22.9.1989 and the firewood was got recovered from the appellant from the bushes beside nearby nala. The Investigating Officer has also seized the stained shirt and the pant of the appellant and it was sent for chemical examination to the Forensic Science Laboratory. After usual investigation, the charge-sheet against the appellant was filed for offence punishable under section 302 and 307 of the Indian Penal Code. 5. The accused has abjured the guilt and he has pleaded his false implication. The defence story of the accused is that when Janiyabai objected the presence of paramour Mahendra of Krishnabai (PW 4) in the house, the paramour, namely Mahendra, inflicted the fatal blow to Janiyabai and he had then injured Krishnabai (PW 4). Learned Sessions Judge has examined Premlal (PW 1), Pacchalsingh (PW 2), Phundobai (PW 3), Krishmbai (PW 4), Daulatram (PW 5), Mohanlal Dongre (PW6), Sudhir Kumar Shrivastava (PW 7), Shiv Naresh Upadhyaya (PW 8), Dr. C.S. Shiv (PW 9) and Dr. D. Banerjee (PW 10) and convicted and sentenced the appellant accused accordingly. 6. The appellant has alleged that the learned trial Court has committed an error in believing the statements of the witnesses Premlal (PW 1), Pacchal Singh (PW 2) and Krishnabai (PW 4) and prayed that the accused deserves to be acquitted. 7. Dr. C.S. Shiv (PW 9) has stated that on 22.9.1989 at about 10.30 a.m., dead body of Janiyabai aged about 70 years was brought by the police and during the autopsy, he found lacerated wound 7.5 cm long and 2.5 cm wide at the centre on the upper part of the right parietal bone. Doctor has further stated that there was a contusion 6 cm x 3.5 cm on the left foot. Dr. C.S. Shiv (PW 9) has deposed that Janiyabai has died due to the lacerated wound of the head which was sufficient in the ordinary course of nature to cause her death. Consequently it is proved that laniyabai had homicidal death. 8. Doctor has further stated that there was a contusion 6 cm x 3.5 cm on the left foot. Dr. C.S. Shiv (PW 9) has deposed that Janiyabai has died due to the lacerated wound of the head which was sufficient in the ordinary course of nature to cause her death. Consequently it is proved that laniyabai had homicidal death. 8. Krishnabai (PW 4) has stated that her husband demanded some money for purchasing the liquor and on her refusal to provide the money, the appellant struck blows from half bum stick. Krishnabai (PW 4) has further stated that when her bua laniyabai objected, the appellant assaulted on her head with stick and she collapsed in the house. She has further deposed that accused also gave several stick blows to her (Krishnabai) and she was dragged to the nearby hotel. 9. From the perusal of the cross-examination of Phundobai (PW 3) it is clear that there is only one contradiction in her statement with her earlier police statement (Ex. D-2). This contradiction is on the point of demand of money for the purpose of making the treatment to laniyabai. The contradiction is minor and insignificant. Nothing exists on record to create the doubt in the testimony of Krishnabai (PW 4). She had no rancour or axe to grind against the accused. The presence of Krishnabai (PW 4) at the time of the incident was natural. From the promptly lodged first information report, it is clear that Krishnabai (PW 4) was the witness to the incident. Dr. D. Banerjee (PW 10) has deposed that Krishnabai (PW 4) had four lacerated wound which were caused by hard and blunt object and were fresh in nature. Consequently, the statement of Krishnabai (PW 4) is worthy of reliance. 10. Pacchalsingh (PW 2) has stated tha1 at about 11.00 a.m. he saw that the accused was beating his wife with danda and after some time the accused forcibly took Krishnabai towards Malajkhand, Pacchalsingh (PW 2) has further stated that in the evening he came to know that Janiyabai was lying dead in the house, There is no contradiction in the statement of Pacchalsingh (PW 2) with his police statement. Nothing exists to discredit Pacchalsingh (PW 2) and he is a reliable witness. The first information report (Ex, P-l) was lodged by Premlal (PW 1) on 21.9.1989 at 2.40 p.m. to ASI Shiv Naresh Upadhyaya (PW 8). Nothing exists to discredit Pacchalsingh (PW 2) and he is a reliable witness. The first information report (Ex, P-l) was lodged by Premlal (PW 1) on 21.9.1989 at 2.40 p.m. to ASI Shiv Naresh Upadhyaya (PW 8). The story narrated in the first information report which was recorded just within 3 and half hours of the incident is in consonance with the statement of the witnesses examined by the prosecution. In case of Hardev Singh v. Harbhej Singh [1997 SCC (Cr.) 5 = 1996 (4) Crimes 216] it is observed that the very fact that the first information report was lodged within 3 hours of the occurrence naming the accused with a1l details unmistakably proved the involvement of the accused in the crime as there was hardly any time to concoct any false story against the accused. Consequently unblamished prompt first information report (Ex. P-l) lends valuable support to the statement of Krishnabai (PW 4). 11. Now it will be discussed whether the appellant has caused the death of Janiyabai intentionally and knowingly and thereby committed an offence under section 302 of the Indian Penal Code. The appellant had inflicted the injury on the head of Janiyabai when she happened to intervene when the appellant was quarrelling with his wife. Consequently the incident was neither premeditated nor pre-planned. The weapon used by the appellant for causing the injury was not lethal but it was a fire wood. The appellant has inflicted a single blow. It is borne out in the evidence of Krishnabai (PW 4) that the appellant at the time of the incident was under the influence of liquor. There is no strong motive to cause the murder of Janiyabai. Clause IV of section 300 of the Indian Penal Code is usually invoked in those cases where there is no intention to cause the death of the person. Clause IV of section 300 of the Indian Penal Code is used in those cases where there is callousness towards the result and the risk taken is that it may be stated that person knows that the act is likely to cause death or such bodily injury as is likely to cause death. Clause IV of section 300 of the Indian Penal Code is used in those cases where there is callousness towards the result and the risk taken is that it may be stated that person knows that the act is likely to cause death or such bodily injury as is likely to cause death. Therefore, in aforesaid circumstances we are of the considered opinion that the appellant is not guilty of the offence of murder punishable under section 302 of the Indian Penal Code but he is guilty of committing culpable homicide not amounting to murder punishable under section 304 Part II of the Indian Penal Code. 12. The appellant is convicted under section 307 of the Indian Penal Code for causing attempt to murder Krishnabai (PW 4). Doctor Banerjee (PW 10) has deposed that injuries of Krishnabai (PW 4) were simple in nature. Appellant had no intention or motive to cause death of Krishnabai (PW 4). Consequently the appellant deserves to be acquitted from the offence under section 307 of the Indian Penal Code. Appellant is liable to be convicted under section 304 Part II and section 323 of the Indian Penal Code. The conviction and sentence under section 302 of the Indian Penal Code for life imprisonment is converted to conviction under section 304 Part II of the Indian Penal Code and sentence of ten years rigorous imprisonment, and conviction and sentence under section 307 of the Indian Penal Code for four years is converted in conviction under section 323 of the Indian Penal Code and sentence of one year rigorous imprisonment. Secntences to run concurrently. 13. With the aforesaid modifications, we hereby allow the appeal partly and partly confirm the judgment of the trial Court. The appeal is decided accordingly.