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Madhya Pradesh High Court · body

2008 DIGILAW 76 (MP)

NARAYAN v. STATE OF M. P.

2008-01-16

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The appellant has filed this appeal against his conviction under Section 302 of the IPC, sentence to R.I for life and fine of Rs.500/-, in default of payment of fine, he shall suffer additional S.I, for six months, passed by learned Additional Sessions Judge, Kukshi, District Dhar in S.T. No.45/02 judgment dated 30th October, 2002. ( 2. ) According to the prosecution case, on 5/10/2001, at 6.00 p.m., deceased Ramsingh came to his house on motorcycle and was standing in front of his house. At that time, appellant met him and deceased demanded loan amount from the appellant, on which, appellant got annoyed and went to his house. Deceased Ramsingh was talking with Juwansingh(P.W.4) while standing in front of his house, at that juncture, appellant Narayan reached over there having wooden log(Khalnia, used in bullock-cart for giving support to luggage) and while saying that today he will kill him as deceased was demanding money again and again, gave a blow on the head of the deceased by Khalnia. At the time of causing injury by Khalnia on the head, appellant was picking up Khalnia by both the hands and dealt a blow on the head of the deceased resulting into his fall on the ground. The deceased became unconscious and was immediately taken to the hospital, where on examination, doctor declared him dead. Report of the incident was lodged immediately on 5/10/2001 at 8.00 p.m. by Surajbai(P.W.l), wife of the deceased. Police party reached on the spot and prepared the spot map. Inquest of the dead body (Exhibit-P/7 )was prepared and after arrest of the appellant, on his disclosure statement, weapon of the offence Khalnia was seized through seizure memo (Exhibit-P/9). The dead body was sent for postmortem examination and the same was performed by Dr. F.S. Chouhan (P.W.2). The postmortem report is Exhibit-P/2. The seized Khalnia Article-A was sent for opinion to the doctor with letter (Ex-P/3) and opinion was given by the doctor on the same letter at place A to A that injury could be caused to the deceased by the said Khalnia. The police also effected the seizure of blood stained and controlled earth as well as chappal of deceased from the spot through seizure memo(Ex-P/ll). Seized articles were sent to Forensic Science laboratory, Indore for examination. The police also effected the seizure of blood stained and controlled earth as well as chappal of deceased from the spot through seizure memo(Ex-P/ll). Seized articles were sent to Forensic Science laboratory, Indore for examination. On completion of investigation, charge-sheet was filed against the appellant under Section 302 of the IPC. ( 3. ) The appellant denied the charges and pleaded innocence, therefore, put to trial. The appellant has not examined any witness in defence whereas the prosecution examined in total six witnesses and got proved fifteen documents to prove its case. The learned Trial Court, found the appellant guilty and convicted him as mentioned here-in-above. ( 4. ) Learned counsel for the appellant has not disputed the homicidal death of deceased Rarrsingh, which is also proved by the evidence of Dr. F.S. Chouhan (P.W.2), Autopsy Surgeon. Dr. Chouhan noted one lacerated wound 2" x 1" x Bone deep on left temporal parietal region of the skull and upon opening of this injury, he found clotted blood inside. There was fracture of tempo parietal region 3" x 2" and brain was also damaged. In the opinion of Dr. Chouhan, deceased died because of shock due to head injury and excessive bleeding. He proved postmortem report (Ex-P/2). Dr. Chouhan also opined that the injury was sufficient in ordinary course of nature to cause death. Exhibit-P/3, was sent to Dr. Chouhan by the police with seized Khalnia and on examination, the doctor gave opinion that injury could be caused to the deceased by Khalnia Article-A. ( 5. ) The learned counsel for the appellant has submitted only argument that the incident occurred all of a sudden, in which, on account of demand of loan amount by the deceased, the appellant got annoyed and gave a solitary blow by Khalnia, which resulted into death of the deceased. Under these circumstances, according to the learned counsel, the offence at the most would fall under Section 304, Part-I of the I.P.C, culpable homicide not amounting to murder. ( 6. ) On the other hand, learned Dy. Under these circumstances, according to the learned counsel, the offence at the most would fall under Section 304, Part-I of the I.P.C, culpable homicide not amounting to murder. ( 6. ) On the other hand, learned Dy. A.G. Shri Desai has submitted that the appellant, after talk with the deceased regarding loan amount, went to his house which was situated at some distance and returned back with Khalnia, which is ordinarily a thick wooden log and dealt a blow by picking up Khalnia with both the hands on the head of the deceased saying that he will kill him today. This act of the appellant would be sufficient to constitute the offence punishable under Section 302 of the I.PC. and the learned Trial Court, considered all these aspects in detail and rightly convicted the appellant under Section 302 of the I.PC. ( 7. ) Having heard the learned counsel for the parties and after perusing the entire record, it emerged that conviction of the appellant is based on the eyewitnesses account of Surajbai(P.W.l), wife of the deceased, who has specifically stated that after talk regarding loan amount between the appellant and the deceased, the appellant went to his house and returned back with Khalnia of the bullock-cart and dealt a blow on the head of the deceased while saying that he will kill him. Because of the blow, the eyes bowls of the deceased had come out and blood started oozing from the head. She along with Laxman (P.W.3) and Juwansingh(P.W.4) took the deceased immediately to the hospital, where on examination, he was declared dead and report(Ex-P/4) was lodged in the Police Station, Kukshi in the same night on 5/10/2001, at 8.00 p.m. The version of Surajbai(P.W.l) is fully corroborated by her F.I.R. (Exhibit-P/l). This witness also identified the seized Khalnia, Article-A in the Court by which the appellant caused the injury on the head of the deceased Ramsingh. She also identified Article-C Chappal of the deceased. In the cross-examination, nothing substantial has come to fragile the testimony of this witness. The only omission found in her police statement(Ex-D/l) regarding non-mention of the fact that Khalnia was having blood stains. ( 8. ) In our considered view, this is not a material omission and the same will not amount contradiction. Therefore, it will not cause any damage to the evidence of this witness Surajbai(P.W.l). The only omission found in her police statement(Ex-D/l) regarding non-mention of the fact that Khalnia was having blood stains. ( 8. ) In our considered view, this is not a material omission and the same will not amount contradiction. Therefore, it will not cause any damage to the evidence of this witness Surajbai(P.W.l). The incident had occurred in front of the house of Juwansingh(P.W.4). He has also supported the version of Surajbai(P.W.l). The third eye-witness Laxman(P.W.3) was also residing near the house of deceased Ramsingh and Juwansingh(P.W.4). He has also supported the prosecution case and there is absolutely nothing in the record to corrode their testimony. ( 9. ) The learned counsel for the appellant has criticized the statement of all these three eye-witnesses on the ground that they are close relatives of the deceased that is, wife, brother and nephew (sisters son) respectively. Therefore, they have exaggerated the incident. ( 10. ) We have considered the statement of all these three witnesses and find no substance in the argument of learned counsel for the appellant because the incident occurred in front of their house, therefore, their presence was natural at the time of incident at 6.00 p.m. They immediately took the deceased to the hospital and from hospital to the police station where report was lodged without any delay. The distance of police station was three kilometre from the place of the incident. The statement of all these three witnesses is also fully corroborated by the medical evidence of Dr. Chouhan(P.W.2) as discussed here-in-above. ( 11. ) The moot question for us is to consider whether the offence would fall under Section 304, Part-I of the I.P.C. or not ? ( 12. ) In the instant case, the appellant after having talk with the deceased regarding loan amount got annoyed and went to his house and returned back with Khalnia, thereafter, dealt a Khalnia blow by picking it with both the hands on the head of the deceased, who fell on the ground. Because of the blow, there was a fracture of tempo parietal bone and also damage to the brain. Dimension of the fracture was 3" x 2". The deceased fell unconscious and died. In the opinion of the doctor, the injury was sufficient in ordinary course of nature to cause death. Because of the blow, there was a fracture of tempo parietal bone and also damage to the brain. Dimension of the fracture was 3" x 2". The deceased fell unconscious and died. In the opinion of the doctor, the injury was sufficient in ordinary course of nature to cause death. At the time of causing blow, the appellant also made utterance that he will kill the deceased. On the basis of the evidence on record and the facts and circumstances of the present case, the act of the appellant would fall under Section 300, Clause- Ill, which reads as under: - Section 300. Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Thirdly:- "If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary curse of nature to cause death, or." ( 13. ) The appellant intended to cause injury by Khalnia on the head of the deceased. It is not a case of sudden quarrel or sudden fight. There was a talk between the appellant and the deceased regarding loan amount. Thereafter, the appellant went towards his house and returned back with Khalnia and dealt a blow on the head of the deceased, this shows that he returned back with premeditation for assaulting the deceased and intended to cause head injury. He picked up Khalnia by both the hands and gave a severe blow on the head, which caused injury on the head, sufficient in ordinary course of nature to cause death. ( 14. ) The learned counsel for the appellant has also pointed out paragraph 10 of the statement of Juwansingh(P.W.4) that appellant picked up Khalnia lying among the other wooden logs near the house of one Kansingh situated adjacent to the house of the appellant. This statement of Juwansingh(P.W.4) will not make any difference because all the three eye-witnesses have said that after talk regarding loan amount with the deceased, the appellant got annoyed and went towards his house, thereafter, returned back with Khalnia and dealt a blow on the head of the deceased. This act of the appellant cannot be termed as act without any pre- meditation. This act of the appellant cannot be termed as act without any pre- meditation. It is not a case that during the course of talk with the deceased, appellant picked up lathi lying there and dealt a blow without intending to cause injury on the head, but blow unfortunately landed on the head. The witnesses have specifically stated that the appellant went towards his house and returned back with Khalnia, thereafter, by picking up Khalnia by both the hands while saying that he will kill the deceased, gave a blow on the head. These statements of all the three eye-witnesses brings this case within the four corners of Section 300, Clause-Ill of the I.P.C. In our considered view, the learned Trial Court lias rightly convicted the appellant under Section 302 of the I.P.C. ( 15. ) Resultantly, we find no substance in this appeal. Therefore, same is hereby dismissed. Appeal dismissed.