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Madhya Pradesh High Court · body

2007 DIGILAW 747 (MP)

Jhinnu v. State of M. P.

2007-07-17

S.S.JHA, SUSHMA SHRIVASTAVA

body2007
JUDGMENT 1. Appellant has filed this appeal challenging his conviction for the offence under section 302 of IPC and sentenced to imprisonment for life by the Court of Additional Sessions Judge, Lakhnadaun, District Seoni in ST No. 20103, decided on 13.2.2003. 2. Counsel for the appellant submitted that if the prosecution case is accepted as it is, then also offence is not culpable homicide amounting to murder. Incident occurred in a sudden fight without any pre-meditation in a heat of passion upon sudden quarrel. Counsel for the appellant submitted that appellant's goat entered the field of deceased Gulab Rajak and started grazing the gram crop and deceased was chasing away the goat. Appellant abused him and assaulted him on his head by 'Khalua'. After the injury was caused, injured was taken to the Primary Health Centre of Dhuma from where he was referred to Medical College, Jabalpur. He died at the Medical College, Jabalpur. 3. Counsel for the appellant is not challenging the findings recorded by the trial Court about the assault by the appellant on deceased Gulab Rajak. He submitted that this case will fall under Exception 4 of section 300, IPC. There was no intention on the part of appellant to cause the death of the deceased. Incident has occurred all of a sudden without any pre-meditation. Deceased has received only one grievous injury, which was fatal to his life. He further submitted that Dr. N.S. Kukrele (PW 13) has not deposed that the injury was sufficient in the ordinary course of nature to cause death. 4. Shri J.K. Jain, learned Public Prosecutor supported the judgment and submitted that appellant had caused the injury with an intention to cause death. He invited attention to the deposition of Leelabai (PW 6) and submitted that appellant told Kamal that he is going to murder the deceased and thereafter appellant gave one blow by 'Khalua' with full force and deceased fell on the ground and later died in the hospital. Learned counsel for the State, therefore, submitted that this case will fall under clause Thirdly of section 300 of IPC. 5. Perused the evidence on record. Incident is witnessed by sole eyewitness Leelabai (P.W.6). Leelabai is wife of the deceased. She was in the agricultural field along with deceased Gulab Rajak. Her presence on the spot cannot be doubted. Learned counsel for the State, therefore, submitted that this case will fall under clause Thirdly of section 300 of IPC. 5. Perused the evidence on record. Incident is witnessed by sole eyewitness Leelabai (P.W.6). Leelabai is wife of the deceased. She was in the agricultural field along with deceased Gulab Rajak. Her presence on the spot cannot be doubted. She admitted that appellant's goat entered their field and started damaging the crop and when deceased went to chase the goat out of the field, appellant gave one blow on his head. This witness has stated that there was single assault. 6. Injured was immediately taken to the Primary Health Centre, Dhuma, where he was examined by Dr. Y.S. Thakur (PW 4). On medical examination, doctor found a lacerated wound 41/2"x1/2"x skin deep on the left fronto-parietal region with huge blood clots and bleeding from the end of artery. (2) A contusion 1/2"x1/2" on the right thigh on the middle 113 portion on the back side. Condition of patient was grievous and injury No.1 was likely to be caused by hard and blunt object and injury No.2 was simple in nature. He referred the patient to Medical College, Jabalpur. In Medical College, deceased died at 4 a.m. in the morning and his dead body was sent for post-mortem. Post-mortem report is Exhibit P-26. Doctor has found following injuries on the head: Stitched wound 10 cm (7 stitches) from left parietal region to right parietal region. He was unable to give details of injury and deposed that the doctor who has stitched the wound can only speak about the details of the injury. On internal examination, doctor has found fracture of both parietal bones and extradural and sub-dural haematoma. Brain tissue was lacerated and blood was found in the cranial cavity. He opined that cause of death was injury on the head. 7. Looking to the nature of injuries received by the deceased and the eye-witness account of Leelabai (PW 6), we find that he incident has occurred in a sudden quarrel without any pre-meditation. Though, Leelabai has deposed that the appellant told Kamal that he is going to kill the deceased but this part of her statement is an improvement from her earlier statement under section 161 of CrPC (Exh. D-2). In Exhibit D-2, she has not mentioned that the appellant told Kamal that he is going to kill the deceased. Though, Leelabai has deposed that the appellant told Kamal that he is going to kill the deceased but this part of her statement is an improvement from her earlier statement under section 161 of CrPC (Exh. D-2). In Exhibit D-2, she has not mentioned that the appellant told Kamal that he is going to kill the deceased. FIR is proved as Exhibit D-1. On the contrary, it is mentioned that when deceased objected on grazing of his field by appellant's goat, appellant abused him filthily and told him that he will finish him and then caused injury on the head. 8. Considering the evidence on record, it is apparent that the incident has occurred in a sudden fight without any pre-meditation. The incident occurred in a heat of passion upon a sudden quarrel. Appellant has not acted cruelly or has taken undue advantage after giving one blow on the head of deceased. Appellant has not given repeated blows to deceased which clearly indicates that the incident occurred in a sudden fight in a heat of passion. Therefore, accepting the case of prosecution, as it is, then also it will not be a case of culpable homicide amounting to murder, this is a case of culpable homicide not amounting to murder. The conviction and sentence of appellant under section 302 of IPC is set aside and instead appellant is convicted for the offence under section 304, Part I of IPC and sentenced to 5 years' Rigorous Imprisonment and fine of Rs. 5,000/-(Rupees· five thousand only), on failure to deposit fine, appellant shall undergo Rigorous Imprisonment for two years. Out of the amount of fine so deposited, Rs. 4,500/- be paid to widow of the deceased. Judgment and sentence is modified. Appeal succeeds in part.