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2007 DIGILAW 679 (MP)

Makhanlal v. State of M. P.

2007-07-04

SHEELA KHANNA, SUBHASH SAMVATSAR

body2007
JUDGMENT Khanna, J. -- 1. Both the above appeals arise out of the judgment dated 31.3.2004 passed by Fourth Additional Sessions Judge Vidisha in ST No. 179/03 and, therefore, they are disposed of by this common judgment. By the impugned judgment appellants Makhanlal and Radhabai have been convicted under section 302/34 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 500/- each, failing which appellants are further directed to suffer one month rigorous imprisonment. 2. Appellant Radhabai alias Munnibai is mother of appellant Makhanlal. Complainant Geetabai (PW 5) is daughter of the deceased Phoolabai. 3. The case of the prosecution in brief is, that on 23.7.2003 in the morning at around 7:30 a.m., when deceased Phoolabai came to the tap of the village to take water, the appellant Radhabai abused her and said that she does not make payment of money and comes to take water. The deceased said not to abuse her. On this, appellant Radhabai assaulted the deceased by TASLA. The deceased also assaulted Radhabai by pelting a stone. Meanwhile, appellant Makhanlal came from his house having an axe in his hand and assaulted the deceased with axe on her neck. The deceased fell down. Thereafter, appellant Makhanlal gave two more blows by axe on the skull and cheeks of the deceased. At that time, appellant Radhabai was telling to kill the deceased. The deceased died on the spot. The incident was witnessed by complainant Geetabai, Shaheed Khan and other persons of neighbourhood. 4. Geetabai (PW 5) lodged first information report (Ex. P-2) at Police Station Kurwai. Station Officer of Police Station Kurwai Shri Y.K. Dwivedi (PW 7) reached on the spot. He prepared inquest memo (Ex. P-4) and sent the dead body of the deceased for postmortem. He prepared spotmap (Ex. P-5). Dr. Nirmal Jatav (PW 4) conducted autopsy on the dead body of the deceased. He found following ante-mortem injuries on the dead body of the deceased, vide his postmortem report (Ex. P-I) : (i) An incised wound with red and fresh blood of size 3 cm x 2 cm x 2 cm on post-lateral part of the skull. (ii) An incised wound above left clavicle of size 3 cm x 2 cm x 2 cm. (iii) An incised wound and red bleeding on left mandible below left lower lip region in size 3 cm x 1 cm x 0.79 cm. (ii) An incised wound above left clavicle of size 3 cm x 2 cm x 2 cm. (iii) An incised wound and red bleeding on left mandible below left lower lip region in size 3 cm x 1 cm x 0.79 cm. According to Dr. Jatav the death of the deceased was caused by Hemorrhage and injury to vital part of brain and the death was homicidal in nature. 5. During investigation blood stained earth and simple earth was seized from the spot vide seizure memo (Ex. P-12). Statements of the witnesses under section 161 of CrPC were recorded. Appellants Makhanlal and Radhabai were arrested vide arrest memos (Ex. P-6 and P-7) respectively. It is alleged that on the basis of the disclosure statement made by appellant Makhanlal, an axe was seized from him vide seizure memo (Ex. P-11). Similarly, on the basis of memorandum (Ex. P-9) by appellant Radhabai an iron TAGADI was seized vide seizure memo (Ex. P-10). 6. After investigation charge-sheet was filed against the appellants. After committal of the case, learned trial Court framed charge against the appellants for committing an offence under section 302/34 of IPC. Appellants abjured their guilt and pleaded false implication. At the trial, prosecution has examined seven witnesses. In defence, a witness Harkishan (D.W.1) was examined. After conclusion of trial and hearing the arguments, learned trial Court held that in furtherance of the common intention to kill Phoolabai, appellants caused injuries to the deceased by inficting axe blows and TAGADI blows and convicted both the appellants under section 302/34 of IPC and sentenced them to undergo life imprisonment and to pay fine of Rs. 500/-, as stated earlier. Aggrieved by their conviction and sentence appellant Makhanlal has preferred Criminal Appeal No. 239/04 and appellant Radhabai has filed Criminal Appeal No. 275/04. 7. At this stage, it is not disputed that Phoolabai wife of Tufan Singh resident of Nai Basti, Kurwai has died and that she sustained incised wounds on her post-lateral part of skull and above left clavicle and also on left lower lip, as mentioned in her postmortem report (Ex. P-1). It is not disputed that the death of the deceased was homicidal in nature. 8. Appellant Makhanlal, in his memo of appeal has challenged his conviction under section 302 of IPC and sentence thereon. P-1). It is not disputed that the death of the deceased was homicidal in nature. 8. Appellant Makhanlal, in his memo of appeal has challenged his conviction under section 302 of IPC and sentence thereon. But during course of argument his learned counsel does not challenge and frankly submitted that the injuries sustained by deceased Phoolabai were caused by appellant Makhanlal. The challenge on behalf of appellant Makhanlal is only as to the nature of offence committed by him. The contention of learned counsel for the appellant Makhanlal is that the incident is a result of sudden quarrel and without pre-meditation and act is committed in the heat of passion. It is argued that appellant Makhanlal at the time of incident was a young boy of 18-19 years and when he noticed that his mother appellant Radhabai was beaten by the deceased by pelting a stone and looking to the quarrel between Radhabai and the deceased he lost temper and in the heat of passion he brought the axe from the house and inflicted axe blows on the deceased. It is therefore argued that the offence committed by appellant Makhanlal is not under section 302 of IPC but the offence would fall under section 304 (Part II) of IPC. His learned defence counsel further argued and submitted that appellant Makhanlal is a villager and was doing labour work and had no previous criminal history and, therefore, lenient view be taken on the question of sentence. Learned Public Prosecutor for the State has frankly admits that the incident appears to be as a result of sudden quarrel but his submission is that the appellant has given three axe blows and, therefore, he deserves a severe punishment. 9. In the light of the submissions of both the parties, we have gone through the evidence on record. Complainant Geetabai (PW 5) is a girl of 12 years of age. According to her version, her mother Phoolabai had gone to tap to take water where Radhabai assaulted her with TAGADI, but her mother could not sustain injury of TAGADI. In para 3 of her statement this witness stated that Radhabai abused her mother and Radhabai told to her mother Phoolabai that she comes to take water but does not make payment. On this, her mother told Radhabai not to abuse her. In para 3 of her statement this witness stated that Radhabai abused her mother and Radhabai told to her mother Phoolabai that she comes to take water but does not make payment. On this, her mother told Radhabai not to abuse her. Thereafter, appellant Makhanlal brought axe from his house and inflicted axe blows on the head, face and neck of the deceased. She further slated that at that time Radhabai was saying to beat Phoolabai. In cross-examination in para 7, Geetabai admits that her mother Phoolabai (deceased) also assaulted Radhabai by pelting a stone and that there was a quarrel (GAALI GALONCH) between Phoolabai and Radhabai. From the first information report (Ex. P-2) itself it is clear that first there was a dispute between appellant Radhabai and deceased Phoolabai and allegation against appellant Radhabai is that she assaulted by TASLA then Phoolabai pelted a stone on Radhabai and thereafter, appellant Makhanlal brought an axe and assaulted on the neck, head and cheek of the deceased. 10. Thus, from the evidence on record, it is clear that initially there was a dispute and quarrel between appellant Radhabai and deceased Phoolabai and the appellant Makhanlal was not present initially on the spot. When there was a quarrel between deceased and Radhabai then Radhabai assaulted with TASLA and deceased Phoolabai assaulted Radhabai by pelting a stone and there was exchange of abuses between them, thereafter, appellant Makhanlal inflicted axe blows on the deceased. Thus, the incident is result of a sudden quarrel and without pre-meditation and it appears that after seeing that the deceased had pelted stone on his mother Radhabai, the appellant Makhanlal in the heat of passion and under the influence of sudden provocation caused injuries to the deceased Phoolabai by axe. Under these circumstances the offence committed by appellant Makhanlal does not appears to be under section 302 of IPC, but looking to the injuries caused he committed an offence of culpable homicide not amounting to murder punishable under section 304 (Part I) of IPC. 11. As far sentence of appellant Makhanlal is concerned, the age of the appellant as per charge-sheet was around 19 years. Thus, he was a young boy at the time of incident. He is labour by profession and resident of a village. No previous criminal history has been shown or proved by the prosecution. He is in custody in this case from 23.7.2003. Thus, he was a young boy at the time of incident. He is labour by profession and resident of a village. No previous criminal history has been shown or proved by the prosecution. He is in custody in this case from 23.7.2003. Thus, he has suffered imprisonment of four years. But, it is equally important to note that the appellant has inflicted three blows by axe on the skull, face and neck of the deceased. Thus, looking to the facts and circumstances of the case, the injuries caused to the deceased, the age and background of the appellant sentence of seven years rigorous imprisonment with fine of Rs. 500/- would meet the ends of justice. 12. So far as appellant Radhabai is concerned, his learned counsel argued and submitted that the incident had occurred suddenly and there was no prior concert or pre-plan between the present appellant Radhabai and her son Makhanlal and there is no evidence of exhortation by her to kill the deceased by axe and therefore, it cannot be said that there was common intention between both the appellants to cause the death of the deceased. Learned Public Prosecutor also submits that looking to the evidence on record common intention of the appellants cannot be gathered. 13. We have perused the evidence on record and we find that appellant Radhabai had gone to take water where deceased Phoolabai had also come, at that time appellant Makhanlal was not present. Appellant Radhabai told the deceased that she comes to take water but does not make payment. Then there was exchange of abuses between Radhabai and deceased Phoolabai then Radhabai assaulted deceased Phoolabai with TASLA and thereafter, the deceased Phoolabai also assaulted Radhabai by pelting stone. Thereafter, Makhanlal had come. It is clear that appellant Radhabai neither called his son nor exhorted him to bring axe and caused injuries to the deceased Phoolabai. Thus, it can safely be inferred that there was no prior meetings of minds or pre-plan between both the appellants to kill the deceased. Hence, section 34 of IPC is not applicable in this case. The allegation against appellant Radhabai is only that she assaulted by TASLA and Geetabai (PW 5) clearly stated in para I that her mother could not sustain any injury by TASLA or TAGADI. Hence, section 34 of IPC is not applicable in this case. The allegation against appellant Radhabai is only that she assaulted by TASLA and Geetabai (PW 5) clearly stated in para I that her mother could not sustain any injury by TASLA or TAGADI. Thus at the most, looking to the fact that appellant assaulted by TASLA or TAGADI it can be said that this appellant committed an offence punishable under section 323 of IPC and she is convicted for the same. Looking to the evidence and facts and circumstances of the case and keeping in view that appellant Radhabai is a lady, who had no previous criminal history, sentence of one month rigorous imprisonment would meet the ends of justice, which she has already suffered, as she is undergoing sentence from the date of impugned judgment i.e. from 31.3.2004. 14. In the result, both the appeals (Criminal Appeal No. 239/04 and Criminal Appeal No. 275/04) are allowed in part. The conviction of the appellant Makhanlal under section 302/34 of IPC and sentence thereon is set-aside and instead appellant Makhanlal is convicted under section 304 (Part I) of IPC and sentenced to suffer seven years rigorous imprisonment and to pay fine of Rs. 500/-, failing which he shall further suffer one month rigorous imprisonment. The conviction of appellant Radhabai under section 302/34 of IPC and sentence thereon is set-aside and instead appellant Radhabai is convicted under section 323 of IPC and sentenced to suffer one month rigorous imprisonment, which she already suffered. Therefore, if she is not required in any other case then she be released forthwith.