Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 168 (MP)

JAMSINGH v. STATE OF M. P.

2008-01-31

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K.Kwlshrestha, J. ( 1. ) BY this appeal, the appellant Jamsingh s/o Muniya Tadvi assails the legality and propriety of the conviction and sentence passed by judgment dated 13/11/1998 in Sessions Trial No. 50/1998 by the learned lllrd Additional Sessions Judge, Khargone, (West Nimar) whereby he has been awarded imprisonment for life under Section 302 of the Indian Penal Code._ ( 2. ) The prosecution case, succinctly put, discloses that on 07/11/1997, at about 03.00 Oclock, while deceased Chandarsingh and his wife were returning from the market to their house, the appellant and the acquitted accused met them, each armed with an axe. When the deceased inquired whether their relative had abducted his daughter, the accused started hurling abuses. When the deceased objected, the accused stated that he was trying to be a bully and accusing their relative falsely and unleashed the attack. Jamsingh struck a blow of axe over the head of Chandersingh, co-accused Vesta assaulted him with the handle of the axe and Dashariya assaulted his wife Surbai (PW 11). On report being made, Crime No. 199/97 was registered and the investigation commenced. ( 3. ) During investigation samples of blood stained and control earth were taken, the witnesses were examined and their statements were recorded u/S. 161 of the Cr PC, accused and the co-accused were arrested and on the basis of the disclosure made, the axes wielded by the accused persons, were seized. Though the deceased was rushed for medical treatment to the Hospital, he succumbed to the injuries on 10/11/1997 while under treatment. The case was thus converted to one u/S. 302 and the body of the deceased was sent for post-mortem examination. During treatment, X-Ray of Chandersingh and Surbai were taken and in the X-Ray Report (Ex.P/9), fracture of parietal was detected. The articles which were seized, were forwarded to the Forensic Science Laboratory and after completion of the investigation, the accused were prosecuted. ( 4. ) The accused denied having committed any offence and pleaded that they were innocent and had been falsely implicated. However, on trial, while acquitting co-accused Dashria @ Dashrath s/o Jamsingh and Veslia @ Vesta s/o Jamsingh, the accused was convicted and sentenced as hereinabove stated. ( 5. ) Before proceeding to consider the account rendered by the witnesses in this case, it will be advantageous to refer to the injury sustained by the deceased. However, on trial, while acquitting co-accused Dashria @ Dashrath s/o Jamsingh and Veslia @ Vesta s/o Jamsingh, the accused was convicted and sentenced as hereinabove stated. ( 5. ) Before proceeding to consider the account rendered by the witnesses in this case, it will be advantageous to refer to the injury sustained by the deceased. Deceased was first examined by Dr. J.D.Gupta who gave report Ex.P/2 containing the injuries recorded.by him. According to this report, the deceased .had received an incised wound from which blood was oozing, measuring 3" x 1" x bone deep on parietal bone. Doctor had advised X-Ray and the Radiologist Dr. D. S. Solanki (PW 5) opined, as per Ex.P/9, that there was fracture of parietal bone. After death of Chanderia, his body was sent for post-mortem examination and as per the report Ex.P/18 of the Autopsy Surgeon, the mode of death was coma as a result of fracture of skull bone with the injury to right parietal bone of brain leading to coma and death. It is, therefore, manifest that an injury over the head of the deceased was caused and on account of the fracture and the impact of the injury, the deceased had died as a result of injury to the brain. ( 6. ) To unfold the case of the prosecution, the prosecution examined Surbai (PW 11). Presence of Surbai cannot be doubted as she had also sustained injury as per Ex.P/3. There was a wound measuring 2 1/2" x 1" x bone deep on her left forearm. Surbai has stated that Ramsingh and Jamsingh had each wielded an axe. The blow landed over the head of the deceased. When she tried to intervene, Jamsingh assaulted her with an axe. She has stated that there was enmity on account of her daughter having been taken away by the relatives of the appellant. She has also stated that her son Raju had also arrived and witnessed the incident. However, she has been duly confronted with her statement u/S. 161 of CrPC, in which she had not disclosed that Raju was also present and further, only Jamsingh was armed with an axe, while Vestia and Dashria did not possess any weapon. ( 7. She has also stated that her son Raju had also arrived and witnessed the incident. However, she has been duly confronted with her statement u/S. 161 of CrPC, in which she had not disclosed that Raju was also present and further, only Jamsingh was armed with an axe, while Vestia and Dashria did not possess any weapon. ( 7. ) The prosecution has also examined Raju (PW 12), son of the deceased, to depose that Jamsingh and other assaulted his father while Dashria shot an arrow at him which struck him in his thigh and Vestia assaulted with a heavy stick over the forehead. The medical report of Jamsingh contradicts the testimony of Raju. As would be seen from the report Ex.P/2, X-Ray (Ex.P/9) and the Post Mortem Report (Ex.P/19), the deceased had sustained a single injury over his head aid, therefore, the statement of Raju that Vestia had struck an arrow which had caused injury in the thigh of the deceased, cannot be believed. This witness has further stated that his mother was also injured and when they intervened, the accused persons ran away. The fact that the presence of Raju was artificially introduced at the time of the deposition by Surbai (PW 11) who had been confronted with her statement to the Police wrdi regard to the omission of name of Raju, shows that Raju was not and could not have been, an eye witness. ( 8. ) The prosecution has also examined Sonibai (PW 13), wife of Raju (PW 12), who has deposed on the basis of the information given by some woman to her. She has Stated that Jamsingh was armed with a heavy stick and she did not see axe in his hand. She has admitted that the incident was watched from a distance. The fact that she had learnt about the incident from some woman who has not been examined, renders her testimony hear-say.. Under these circumstances, there is singular testimony of Surbai (PW 11) insofar as the ocular account of the incident is concerned. ( 9. ) The FIR (Ex. P/17) was lodged by the deceased. Since during treatment the deceased died, the said FIR can be used as dying declaration. Under these circumstances, there is singular testimony of Surbai (PW 11) insofar as the ocular account of the incident is concerned. ( 9. ) The FIR (Ex. P/17) was lodged by the deceased. Since during treatment the deceased died, the said FIR can be used as dying declaration. The deceased had given vivid description in the FIR with regard to the assault and had clearly stated that it was Jamsingh who had struck an axe over his head causing the said injury. In view of the testimony of Surbai (PW 11), injured witness, and the FIR lodged by the deceased, the irresistible conclusion is that it was Jamsingh who had caused the injury over the parietal region of the deceased which resulted in a fracture and eventually in his death. ( 10. ) Learned counsel for the appellant has submitted that evidence of Surbai (PW 11) should not be believed as she has modulated her statement to artificially introduce the presence of Raju (PW 12) whose testimony has been disbelieved by the trial Court. He has further submitted that the witness Surbai (PW 11), being the wife of the deceased, was an interested witness and, therefore, her testimony also should not be acted upon. ( 11. ) While it is true that the witness Surbai (PW 11) has attempted to introduce Raju as a person on the spot, the said statement does not render her entire testimony unworthy as the rule of falsus in uno, falsus in omnibus, does not apply. While it is true that Surbai (PW 11) being wife of the deceased has interest in deposing against the accused persons, but merely on account of being a relative of the deceased, the evidence cannot be discarded. Only caution that is required to be exercised is that such evidence should be subjected to minute scrutiny. Applying the said test, it is clear that not only Surbai (PW 11) has made statement implicating the appellant, the statement is corroborated by the FIR (Ex.P/17) lodged by the deceased and the medical evidence which is fully consistent with the ocular account. ( 12. ) Learned counsel has next contended that since the incident was, not in contemplation and had occurred suddenly in the heat of passion, the offence, at the most, would fall u/S. 304 of the IPC and will not be an offence of the description whichis punishable u/S. 302 thereof. ( 12. ) Learned counsel has next contended that since the incident was, not in contemplation and had occurred suddenly in the heat of passion, the offence, at the most, would fall u/S. 304 of the IPC and will not be an offence of the description whichis punishable u/S. 302 thereof. Attention has been invited to Exception 4 to Sec. 300 of the IPC. Exception 4 reads as follows :- Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. ( 13. ) In order that an accused can claim advantage of Exception IV, he has to prove that the offence was committed without pre-meditation, in a sudden fight, in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. As the facts disclose, though the act may have been without pre-meditation, it was not a case of sudden fight in which in the heat of passion, in a sudden quarrel, the injury was caused. Under these circumstances, the act of the accused does not fall within Exception 4. ( 14. ) In view of the above discussion, it is clear that the offence committed by the accused falls squarely within the description of an offence of murder punishable u/S. 302 of the IPC. The appeal, therefore, fails and is dismissed. Appeal dismissed.