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Madhya Pradesh High Court · body

2004 DIGILAW 298 (MP)

Gouri Shankar v. State of M. P.

2004-03-25

AJIT SINGH, S.P.KHARE

body2004
Judgment ( 1. ) APPELLANT Gaurishankar has been convicted under Section 302, IPC and sentenced to imprisonment for life. ( 2. ) THE prosecution case is that on 9-12-1989 deceased Indudas entered into the house of accused Gaurishankar and was found in a room with Sheelabai (P. W. 3) who is wife of elder brother of the accused. According to the prosecution, Indudas was attempting to commit rape on her and at that point of time, accused Gaurishankar came there. Indudas begged to be excused for his misconduct. Indudas tried to run away and accused Gaurishankar caused injuries to him with an axe and he died there. The accused himself went to the police station and lodged the FIR (Ex. P-19 ). The accused gave the information in this respect that he had put the dead body of Indudas and the axe in his house. Thus, according to the prosecution the accused committed murder of Indudas. ( 3. ) THE accused pleaded not guilty. ( 4. ) THE Trial Court after appreciation of the evidence on record held that accused Gaurishankar has caused the death of Indudas by inflicting injuries on him by an axe. The reliance was placed mainly on the information given by the accused in his FIR that he has kept the dead-body of Indudas and the axe in his house and the recovery of dead body, severed arm of Indudas and the axe from the possession of the accused. The Trial Court negatived the defence plea that Chandi (D. W. 1) who is husband of Sheelabai (P. W. 3) caused the death of Indudas. ( 5. ) IN this appeal it has been argued that the FIR lodged by the accused is inadmissible in evidence in view of Section 25 of the Evidence Act. It is further argued that the circumstantial evidence against the appellant is not of such a nature on which the conviction can be based. ( 6. ) THE evidence on record has been scrutinised by this Court. It is true that the confessional FIR by the accused to the police can not be used against him in view of Section 25 of the Evidence Act. ( 6. ) THE evidence on record has been scrutinised by this Court. It is true that the confessional FIR by the accused to the police can not be used against him in view of Section 25 of the Evidence Act. It has been held in Aghnoo v. State of Bihar, AIR 1966 SC 119 that where the accused himself gives the first information report, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against him as an admission under Section 21. But a confessional part of the FIR by the accused to the police is not admissible against him. The whole of the first information report need not be excluded. ( 7. ) IN the present case in the FIR (Ex. P-19) lodged by accused Gaurishankar, the accused has given the information that he has thrown the dead-body of Indudas from Atari to Mada and he has concealed the axe in the house. Chandra Shekhar (P. W. 11) is Inspector of Police. He has deposed that accused Gaurishankar took out the left arm and produced before him. He has prepared the seizure memo of this arm and that is Ex. P-3. The accused also produced the axe which is article a. That was seized as per seizure memo (Ex. P-2 ). He had seized the blood stained earth from the house. The seizure memo of the same is Ex. P-4, He had sent the severed arm to the doctor for examination and the other articles to the Forensic Science Laboratory in sealed condition with letter Ex. P-18. Ramkrishna Tripathi (P. W. 12) is head-constable. He has deposed that he had recorded the FIR (Ex. P-19) on the information given by accused Gaurishankar on 9-12-1989 at 8 P. M. He had arrested him as per arrest memo (Ex. P-12) and then he took him to his house. He has further deposed that accused Gaurishankar took out the key of the house from some place below the tiles, opened the door of the room and then he saw Indudas lying in an injured condition. His left hand was totally severed. He seized a blood stained shirt of accused Gaurishankar as per seizure memo (Ex. P-11 ). He has further deposed that accused Gaurishankar took out the key of the house from some place below the tiles, opened the door of the room and then he saw Indudas lying in an injured condition. His left hand was totally severed. He seized a blood stained shirt of accused Gaurishankar as per seizure memo (Ex. P-11 ). Ramsingh Parihar (P. W. 13), Head Constable had prepared the panchnama of dead body of Indudas and that is Ex. P-9. It was sent for post-mortem examination. ( 8. ) DR. Narain Shivhare (P. W. 9) conducted the autopsy on 9-12-1989 and the post-mortem report is Ex. P-15. He found six injuries on the body of Indudas. There were incised and punctured wounds on his body. The cause of death of Indudas was the injuries sustained by him. ( 9. ) NANUA (P. W. 2) has also deposed that the accused had taken out severed arm of Indudas from his house. He has attested the seizure memo (Ex. P-3 ). He has further stated that Gaurishankar produced the axe also and that was seized as per seizure memo (Ex. P-2), It was blood stained. He has added that the room of the house was opened by the father of the accused. ( 10. ) SHEELABAI (P. W. 3) is wife of Chandi who is elder brother of accused Gaurishankar. She has deposed that Indudas came to his house and caught hold of her. He took her in the room and threatened to cause her death. She started weeping. She has further deposed that Indudas had forcible sexual intercourse with her. Thereafter, Indudas ran and jumped from the window and fell down on a piece of stone resulting in the injury on head. This witness has been declared hostile. ( 11. ) FROM the above evidence it is clear that body of Indudas, his severed arm and the blood stained axe were recovered from the house of accused Gaurishankar on the basis of information given by him in the FIR. These recoveries were made in consequence of information given by the accused and that is admissible in evidence under Section 27 of the Evidence Act. The statement of the accused in the FIR that he has kept the dead body of Indudas and the axe in his house is admissible in evidence as there has been recovery of these things. These recoveries were made in consequence of information given by the accused and that is admissible in evidence under Section 27 of the Evidence Act. The statement of the accused in the FIR that he has kept the dead body of Indudas and the axe in his house is admissible in evidence as there has been recovery of these things. The information given by the accused has been confirmed by the subsequent evidence of recovery of these articles. The conduct of the accused also incriminates him and that is admissible in evidence under Section 8 of the Evidence Act. ( 12. ) THE Supreme Court has observed in State of Karnataka v. David Rozario, (2002) 7 SCC 728 that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. ( 13. ) THE recovery of dead body of Indudas, his severed arm and the axe from the house of accused Gaurishankar coupled with his conduct in lodging the FIR and taking the police to his house and the evidence of Sheelabai (P. W. 3) lead to the conclusion that accused Gaurishankar caused the death of Indudas by inflicting injuries on him with an axe. ( 14. ) THE question is whether the offence committed by the appellant is murder or culpable homicide not amounting to murder ? In other words the question is whether the Exception 1 to Section 300, IPC is attracted in the present case. This Exception provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. ( 15. ) IN the present case accused Gaurishankar when he entered into the house saw deceased Indudas in the room with the wife of his elder brother. ( 15. ) IN the present case accused Gaurishankar when he entered into the house saw deceased Indudas in the room with the wife of his elder brother. The prosecution has not assigned any other reason for the entry of the deceased in the house of the accused. The accused must have been deprived of the power of self control on seeing the deceased with his Bhabhi in the room. Any reasonable person would be deprived of power of self control in such a situation. The provocation was undoubtedly grave and sudden. The accused acted under the immediate impulse of such provocation. The fatal blow given by the accused to the deceased is traceable to the passion arising from the provocation. In the famous case of K. M Nanavati v. State of Maharashtra, AIR 1962 SC 605 , the Supreme Court has held that the test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control. ( 16. ) IN Hansa Singh v. State of Punjab, AIR 1977 SC 1801 , the accused on seeing the person committing the act of sodomy on his son lost his power of self-control and it was held to be a case of grave and sudden provocation for him which led him to commit the murderous assault on that person. It was held that the case of the accused fell under Section 304 (Part II), IPC and the accused was convicted under Section 304 (Part II), IPC. Similarly, in State of U. P. v. Lakhmi, AIR 1998 SC 1007 the accused found his wife indulging in lascivious act with another person and caused her death. He was held entitled to the benefit of this Exception. ( 17. ) WE are of the opinion that the accused in the present case acted under grave and sudden provocation in causing the injuries to the deceased by an axe. He is entitled to the benefit of Exception 1 to Section 300, IPC. His case should be covered by Section 304 (Part II), IPC. ( 18. ) IN the result this appeal is partly allowed. He is entitled to the benefit of Exception 1 to Section 300, IPC. His case should be covered by Section 304 (Part II), IPC. ( 18. ) IN the result this appeal is partly allowed. Conviction and sentence of the appellant under Section 302, IPC are set aside and instead he is convicted under Section 304 (Part II), IPC and sentenced to rigorous imprisonment for five years. He would be entitled to the benefit of Section 428, Cr. PC. The period of his detention during investigation, trial and appeal shall be set off against the term of imprisonment imposed on him by this Court.