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2005 DIGILAW 537 (MP)

Vishnu Yadav v. State of M. P.

2005-04-19

A.K.GOHIL, CHANDRESH BHUSHAN

body2005
JUDGMENT This appeal is tiled against the judgment dated 20.7.1996 passed in Sessions Trial No. 33/96 by Sessions Judge, Shivpuri of conviction of the appellant under section 302 IPC and sentence of life imprisonment. Prosecution story in brief is that on 28.12.1995 at about 12 in the noon appellant had gone to reap the mustard crop on a field which was jointly owned by the complainant and appellant. Deceased stopped the appellant from cutting her crop. In the meantime, mother-in-law of the deceased also reached on spot. There was some exchange of hot words between the parties on the us-age of well and appellant fell in the well alongwith the deceased. Complainant Sitaram, husband of the deceased, also came on spot and after knowing the facts from his mother went to lodge the report. The report of the incident (Ex. P/1) was lodged at about 7 p.m. in the evening. Dead body of the deceased was taken out from the well next day and it was referred for post mortem examination. Crime was registered matter was investigated and charge-sheet was filed. Trial Court convicted and sentenced the appellant as aforesaid against which appellant has filed this appeal. Shri Padam Singh, learned counsel for the appellant submitted that it is a case of accidental death as the deceased died due to Asphyxia by drowning. He further argued that sale eye-witness in the case is Smt. Vijabai (PW 2). mother-in-law of the deceased and her statement is not at all reliable. She was on spot but she has not stated the correct version of the incident. There are material contradictions and omissions in the FIR and her statement and looking to the conduct of PW 2 Vijabai and PW 1 Sitaram, Prosecution story is not natural as they have not tried to save the deceased. Admittedly, the deceased was carrying seven months child in her womb. He further submitted that this is not a case of murder but it is a case of culpable homicide not amounting to murder and at the most appellant can be convicted only under section 304 Part II IPC and since the appellant has suffered sufficient jails sentence of more than nine years he be released on undergone jail sentence. He further submitted that this is not a case of murder but it is a case of culpable homicide not amounting to murder and at the most appellant can be convicted only under section 304 Part II IPC and since the appellant has suffered sufficient jails sentence of more than nine years he be released on undergone jail sentence. In reply, Shri C.S. Dixit, learned public prosecutor, appearing for respondent/State supported the judgment of the trial Court and submitted that the trial Court has recorded proper findings and there is no scope for interference in the findings recorded by the trial Court and looking to the facts of the case, case will not fall under section 304 Part II IPC. After hearing learned counsel for the parties, we have perused the evidence on record. PW 1 Sitaram is the husband of the deceased who lodged the FIR. He was not present on spot at the time of commission of crime, hut he has deposed that their relations with the appellant were not cordial and, and some quarrel is going on between them on the question of partition of land and well. He immediately reached on spot after the incident, but till the next day he has not tried to take out the body of the deceased from the well. In the FIR (Ex. P/1) he has narrated the incident that there was some hot talk and quarrel between the appellant and the deceased and appellant fell down in the well alongwith his wife. In the FIR he has not mentioned that when the deceased came on the surface of water the appellant again pushed her into the water. PW 2 Vijabai who is the mother-in-law of the deceased has deposed that she was present at the time of incident on the well. There was quarrel between the appellant and her daughter-in-law and the appellant threw her in the well and thereafter he himself jumped into the well and when her daughter-in-law came on the surface of the water in the well, he again pushed her in the water and thereafter the appellant came out from the well. There was quarrel between the appellant and her daughter-in-law and the appellant threw her in the well and thereafter he himself jumped into the well and when her daughter-in-law came on the surface of the water in the well, he again pushed her in the water and thereafter the appellant came out from the well. In the cross-examination she has deposed that there was altercation before the incident between the appellant and her daughter-in-law at "Cheda" which is known as "Aapchak" (common place between the two houses) and nobody was present at that place and appellant had also beaten her daughter-in-law in the morning. In the cross-examination, she has stated that the appellant had also pressed the neck of her daughter-in-law in the well and her tongue had come out and she has stated that in the evening she had come back to her house and she has not narrated the story to anyone else in the village either to Patel or Sarpanch. She has denied this suggestion that deceased was not thrown in the well by the appellant. Appellant has taken a specific defence in his statement recorded under section 313 CrPC that there was altercation between Sitaram (husband of the deceased) and Roopwati (deceased) and due to that the deceased herself fell in the well and committed suicide. PW 3 Dr. R.S. Rajpoot has performed the post mortem examination of the dead body of the deceased and has deposed that he had not seen any scars in the neck of pressing the neck and when neck would be pressed eyes will come out. He has admitted that she was carrying a seven months child in the womb which was a boy and it was also found dead in the womb. From the aforesaid evidence on record, it is clear that the appellant is the uncle-in-law of the deceased and their relations were not cordial. There was fight and quarrel in the morning between the appellant and the deceased as well as there was quarrel on the well before the incident. Though PW 2 Vijabai is the eye-witness of the incident and PW1 Sitaram, husband of the deceased, had reached on spot but prosecution has not explained why they have not tried to take out the dead body from the well. Though PW 2 Vijabai is the eye-witness of the incident and PW1 Sitaram, husband of the deceased, had reached on spot but prosecution has not explained why they have not tried to take out the dead body from the well. Admittedly incident took place at about 12 in the noon but the report of the incident was lodged at 7 p.m. in the evening. It is also stated that the distance between the place of incident and police station is around twenty five kilometers, therefore, the delay in lodging report is not fatal but certainly the conduct of PW 1 and PW 2 appears to be fatal because they have not tried to take out the dead body of the deceased from the well immediately knowing the fact that the deceased was pregnant and carrying a seven months child in her womb and this fact was known to both the witnesses. FIR was lodged by PW 1 but in the FIR he has not mentioned that either the neck of the deceased was pressed in the well or she was again pushed into water. This material fact does not find place in the FIR. PW 1 has stated that they both fell down in the well and PW 2 who is the eye-witness in the cross-examination has stated that deceased was thrown in the well and thereafter the appellant jumped into the well. Prosecution has not explained the cause of jumping of the appellant in the well. Thus considering the totality of the facts that the incident took place all of a sudden and there was altercation between the parties on the question of partition of land and all other prosecution witnesses have not supported the story and the question of intention of causing death is also missing in the prosecution evidence, the submission made by learned counsel for appellant appears to be reasonable that it is not it case of murder but it is a case of culpable homicide not amounting to murder. In the case of Ruli Ram v. State of Haryana [ (2002) 7 SCC 691 ]. Supreme Court has again explained the distinction between the culpable homicide and murder and in paragraph 22. In the case of Ruli Ram v. State of Haryana [ (2002) 7 SCC 691 ]. Supreme Court has again explained the distinction between the culpable homicide and murder and in paragraph 22. the Supreme Court has held that on the basis of the facts it was found that there was no intention to commit murder but to create some disturbance at the polling station in order to divert the attention of the crowd collected so that booth capturing would be facilitated. No injuries were caused to the deceased before they were thrown in the pond and there was no attempt to even strangulate them. However, the accused appellants could be attributed the knowledge that the natural and proper consequence of their act was likely to cause death. The High Court did not indicate any basis to hold that the case was covered by section 302 IPC. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellants candidate. There is absolutely no discussion to fortify the conclusion. The inevitable result is that the proper provision to be applied is section 304 Part II, IPC only. Thus, considering the dictum of the aforesaid decision in this case too it is clear that the appellant also fell down with the deceased in the well and there is no reliable evidence on record that when deceased came out from the water in the well she was again pushed in the water or her neck was pressed. The appellant may have the knowledge but his intention to cause death is not proved from the evidence on record. Therefore, considering the evidence on record, we find that m the facts and circumstances of the case, it is not a case of murder but this case falls under the category of culpable homicide not amounting to murder. This appeal is partly allowed. Conviction of appellant under section 302 IPC is set aside. Instead, he is convicted under section 304 Part II. IPC. Appellant is in jail with effect from the date of his arrest and he has suffered jail sentence of about 9 years and 4 months. Therefore, his jail sentence is reduced to that already undergone by him. He is in jail. He be released forthwith, if not required in any other case.