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Madhya Pradesh High Court · body

2008 DIGILAW 601 (MP)

NANDU AHIR v. STATE OF M. P.

2008-04-22

S.A.NAQVI, S.K.KULSHRESTHA

body2008
Judgment S.K.Kulshrestha, J. ( 1. ) THIS appeal is directed against the judgment dated 9th June, 1993 of the learned Sessions Judge, Mandia, in Sessions Trial No. 163/91 by which the learned Sessions Judge has convicted the appellant under Sections 449 and 302 of the Indian Penal Code and respectively sentenced him thereunder to rigorous imprisonment for 10 years and imprisonment for life. ( 2. ) The accused was prosecuted for the said offence on the ground that on 24.8.1991 he had voluntarily caused the death of Gondu Panda. It was alleged mat the son of the accused Bhagwat, aged about 5 years, was indisposed since long and earlier he had been treated by the deceased and he had become well. Again on 24.8.1991, Bhagwat came to Bhanpur, though Nisha Bimte (PW12) advised him to take the boy for treatment to Ghughri Hospital, the child was taken to the deceased who subjected him to treatment (witchcraft) during the night, but there was no improvement. At about 4:00 a.m., the child died. On the next day the appellant entered the house of the deceased and assaulted him with an axe. Many people were present on the spot. Report was lodged on 25.8.1991 at about 10.25 a.m. to the said effect. The inquest memo Ex.P/1 was prepared. Vide requisition Ex.P/3, the dead body was sent to the hospital for postmortem examination. The autopsy was conducted by Dr. J.P.Mujwar (PW 3) on 28.8.1991. According to Dr. J.P.Mujwar (PW 3) and bis report Ex.P/3, the body was in a highly decomposed stage. Maggots were crawling all over the body and the surrounding area. Both the nostrils were eaten up by the Maggots and eye-balls were absent, the socket of the eyes were full of Maggots. Maggots were coining out from mouth, bridge of nose and both ears. The lower joint was in two pieces and full of Maggots. Pieces of skull were not present, skin pealed off easily and the underneath bone exposed easily. The skull was only intact posteriorly. There was a fine cut mark over the 3rd cervical vertebrae which was separated and skull could be moved all round. According to the opinion of the Autopsy Surgeon, the cause of death might have been shock due to profuse haemorrhage from vital organ like blood vessels and suggestive fracture of third cervical vertebrae. ( 3. There was a fine cut mark over the 3rd cervical vertebrae which was separated and skull could be moved all round. According to the opinion of the Autopsy Surgeon, the cause of death might have been shock due to profuse haemorrhage from vital organ like blood vessels and suggestive fracture of third cervical vertebrae. ( 3. ) In further sequel of investigation, the accused was arrested and as per disclosure made by him vide Ex.P/2, a blood stained axe was recovered at his instance as per seizure memo Ex.P/8. A Shirt was also seized vide Ex.P/9. Sample of blood stained and control earth were taken from the spot and panchnama Ex.P/10 was prepared. The clothes of the deceased were seized vide Ex.P/11. Spot Map (Ex.P/14) was prepared and seized articles were sent to Forensic Science Laboratory, vide Ex.P/16. After completion of investigation, the accused were prosecuted. The accused denied having committed any offence and stated that he was innocent and had been falsely implicated. However, on trial, he was convicted and sentenced, as stated hereinabove. ( 4. ) As regards death of Gondu Panda, there is ample evidence on record. The witnesses have deposed to the said fact and the testimony finds confirmation for inquest held by the police and subsequent post-mortem examination conducted by Dr. J. P. Mujwar (PW 3). The question that, therefore, arises for our consideration is whether the appellant was the perpetrator of the offence in question. ( 5. ) The prosecution has examined in all 14 witnesses to prove its case. Dumra Singh (PW 1) has been examined as regards the extra-judicial confession made by the accused, Jangli Singh (PW 2) has stated that accused had run away, Dr. J.P.Mujwar (PW 3) had conducted autopsy and reference to his testimony has already been made, Goharlal (PW 4) is witness to extra-judicial confession and so also Dumra Singh (PW 1). Baddu Lal (PW 5) came later and saw the wife of the accused wailing, Jhanaklal (PW6) has deposed about the conduct of the accused on learning about the death of his son, Arjun Singh (PW 8) and Sukhdeo (PW 9) panch witnesses, have deposed about the seizure of the axe. Smt. Nisha Bimte (PW 10) is Doctor and Bhagwati Bai (PW 10) is the witness to extra-judicial confession, while Arjun Uike (PW 14) conducted the investigation. ( 6. Smt. Nisha Bimte (PW 10) is Doctor and Bhagwati Bai (PW 10) is the witness to extra-judicial confession, while Arjun Uike (PW 14) conducted the investigation. ( 6. ) Insofar as the witnesses are concerned, they have confirmed that contrary to the advice of Nisha Bimte (PW 10), the accused had taken his son to the house of the deceased for treatment. It was only when it was declared thai his son has died in the morning at about 4.00 p.m., that the accused brought an axe and assaulted the deceased. Baddu Lal (PW 5) deposed that when wife of the accused started wailing, he proceeded to the house of the deceased and saw that dead body of the child was lying. The accused proceeded to chop wood and on return assaulted the deceased on his neck. Jhanaklal (PW 6) has also stated that after learning about the death of his child, the accused went and brought an axe and without saying anything, he assaulted the deceased on his neck as a result of which he died. Jangli Singh (PW 2) corroborates the testimony of the above eye-witnesses Baddu Lal (PW 5) and Jhanaklal (PW 6) and states that he saw the accused running away after having assaulted the deceased with an axe. ( 7. ) We have already gone through the testimony of Dumra Singh (PW 1) and Goharlal (PW 4) with regard to the extra-judicial confession. Even if the extrajudicial confession is kept aside for the sake of argument, there appears no reason to disbelieve the testimony of Baddu Lal (PW 5) and Jhanaklal (PW 6). ( 8. ) The axe was seized from the accused and sent to the Forensic Science Laboratory along with Shirt and other articles seized. According to the Forensic Science Laboratory (Ex.P/17), these articles were stained with blood. Since report of the Serologist has not been received, it is not confirmed that articles were stained with human blood. Under these circumstances, these articles lose their incriminating value. ( 9. ) On conspectus of the aforesaid evidence, it is apparent that hot only witnesses Baddu Lal (PW 5) and Jhanaklal (PW 6) have stated about the axe having been used by the accused, there is evidence of extra-judicial confession deposed to by Dumra Singh (PW 1) and Gohar Lal (PW 4). ( 9. ) On conspectus of the aforesaid evidence, it is apparent that hot only witnesses Baddu Lal (PW 5) and Jhanaklal (PW 6) have stated about the axe having been used by the accused, there is evidence of extra-judicial confession deposed to by Dumra Singh (PW 1) and Gohar Lal (PW 4). Though, a part of the confession is missing in Ex.D/1, Section 161 of CrPC statement, yet the FIR lodged by Jangli Singh (PW 2), coupled with the testimony of eye witnesses and the other circumstances on record and extra-judicial confession, it is clear that the accused caused injury to the deceased to which the deceased succumbed. ( 10. ) We have also examined the case of the accused in the light of Exception I to Sec. 300 of the IPC since counsel for the accused has not appeared on account of Strike. Exception I to Sec. 300 states 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 the death of any other person by mistake or accident. Even if we accept hypothetically that death of the child of the accused constituted provocation, the fact that accused went to Jungle and chopped would and brought the same to the house of the deceased, and thereafter suddenly struck him with an axe, shows that suddenness which is an important constituent to bring the case within the said Exception, was not present in the case. We are, therefore, of the view that the case of the appellant does not fall within Exception I to Sec. 300 and he has rightly been convicted for the said offences. ( 11. ) Consequently, this appeal is sans merit and is hereby dismissed. The appellant is on bail. He shall surrender to his bail bond. Simultaneously, warrant of arrest be issued for his production before the trial Court for being sent to Jail to serve out his remaining sentence. Appeal dismissed.