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Madhya Pradesh High Court · body

2008 DIGILAW 888 (MP)

NASA v. STATE OF M. P.

2008-07-21

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K. KULSHRESTHA, J. ( 1. ) THIS appeal is directed against the judgment dated 21st April, 1999 of the learned Addl. Sessions Judge, Sendhwa, in Sessions Trial No. 121/98, whereby the appellant has been convicted under Section 302 and sentenced to imprisonment for life and fine of Rs. 1,000/-. ( 2. ) The case relates to the murder of Peetaram by his brother accused Nasa. Gallu (PW 4) is the father of the deceased and the accused, who lodged FIR (Ex.P/5) and Amnabai (PW 10) is the wife of deceased Peetaram. According to the case of the prosecution, Gallu (PW 4) had six sons including accused and the deceased. He had already partitioned the land among his sons and they were living separately. His son Richha had shifted to Maharashtra about a decade and a half ago. In respect of the land of his son Richha, there was dispute as it was being cultivated by the accused. On 9/1/1998 when Peetaram and Nasa both had gone to Sendhwa to sell cotton, on their return to village Japdipadla, prompted by the dispute of land, they quarreled. When Ranji (PW 5), uncle of the accused and the deceased, tried to intercede, he also received injury ofKharaliya; a vertical log on which bullock-cart rests. However, the quarrel subsided on intervention of Ranji. At about 11.00 p.m., accused Nasa went to the house of Peetaram and assaulted him with Kharaliya with the result Peetaram fell down and died instantaneously. On the report (Ex,P/5) having been lodged by Gallu (PW 4), a case u/S. 302 of the IPC was registered. Ranji was sent for medical examination while the dead body of Peetaram was sent for autopsy, of which report Ex.P/11 was received. As per the statement of Dr. Mannalal Pawar (PW 11), Autopsy Surgeon, and his report Ex.P/11, the deceased received as many as eight injuries, as extracted herein below :- (1) Lacerated wound 4 cm x 1 cm x fracture of mandible, (left half shaft); (2) Lacerated wound 3 cm x cm x upto bone - left temporal region of head; (3) Bruise - reddish black 10 x 2 cm left lower costal region in mid axillary line; (4) Bruise - reddish black 8 x 2 cm - medial to injury No.3. (5) Haemotoma 5 x 5 cm left fronto temporal region under skin, (6) Haemotoma 10 x 10 cm right parito temporal region under skin; (7) Fracture of midline of right parietal bone to right fronto temporal region upto outer orbit region, blood clot under membrane in area 10 x 8 cm underneath. Fracture bone (injury No.3) with laceration of right parietal lobe, temporal lobe and frontal lobe in area of 5 x 5 cm. In his opinion, the Doctor stated that mode of death was coma produced by head trauma. ( 3. ) In further sequel of investigation, the clothes of the deceased were seized from the Hospital. On the basis of the memo of the accused, a Kharaliya was recovered from him and after recording the statements of witnesses, the accused was prosecuted. ( 4. ) The accused denied having committed any offence and stated that he was innocent. The learned Judge, however, found the appellant guilty and convicted and sentenced him as hereinabove stated. It is against this conviction and sentence that the present appeal has been filed. ( 5. ) Learned counsel for the appellant submits that the prosecution has deliberately divided the incident in two parts to show that the accused had caused injury to his deceased brother later while, in reality, Ranji (PW 5), uncle of the accused and the deceased, had sustained injury in the same transaction. She has further stated that in any case, the offence would not traverse beyond Sec. 304 Part II of the IPC. Learned State counsel submits that it is a case where brother has killed his own brother and the evidence of parents clearly indicates that the offence was committed by the appellant for no ostensible reason and, therefore, the conviction does not call for any interference. ( 6. ) We have heard the learned counsel for the parties and perused the record. ( 7. ) The prosecution examined 12 witnesses, but eye witness account was rendered by Ranji (PW 5), Sitaram (PW 8) and Amnabai (PW 10). We may clarify that Ranji (PW 5) is the uncle of the accused, Sitaram (PW 8) is his brother and Amnabai (PW 10) is the wife of the deceased. ( 8. ( 7. ) The prosecution examined 12 witnesses, but eye witness account was rendered by Ranji (PW 5), Sitaram (PW 8) and Amnabai (PW 10). We may clarify that Ranji (PW 5) is the uncle of the accused, Sitaram (PW 8) is his brother and Amnabai (PW 10) is the wife of the deceased. ( 8. ) In order to have a first glimpse at the prosecution story, it would be proper to first consider the testimony of Sitaram (PW 8), brother of the deceased and the accused. Gallu (PW 4) has stated that when his sons were returning, there ensued a quarrel between Nasa and Peetaram with regard to the cultivation of the land, but he had separated them with the result all of them went to their respective houses. Thereafter he heard scream of Amnabai (PW 10) and when he rushed to the place, he saw that Nasa was assaulting deceased Peetaram with Kharaliya. He saw injuries on his face and lips. Peetaram, on account of the deadly assault, fell down while Nasa ran away. If his testimony is examined apposite the testimony of Sitaram (PW 8), Sitaram has fully corroborated the testimony of Amnabai (PW 10). She has also stated that on hearing alarm raised by the deceased when she rushed to the place of the incident, she saw the accused striking over the head of Peetaram, chin and chest. The evidence is further corroborated by Jirbhan (PW 6), brother of Ranji (PW 5). Jirbhan (PW 6) has stated when, on alarm being raised by Amnabai, he rushed to the place, he saw that accused Nasa was running away and he had the log in his hand while Peetaram was lying in a pool of blood. ( 9. ) The FIR (Ex.P/5) of the incident was lodged by Gallu (PW 4). Gallu (PW 4) has deposed that when he heard the cries, he rushed to the place and found that Peetaram was having an injury on his head and other places and had died instantaneously. He had been told by Amnabai that Peetaram had been assaulted by the accused with a Kharaliya. Accordingly, he went to report the matter to the Police Station. He has confirmed having made the report Ex.P/5. ( 10. ) Even the arrest and seizure made by U.R.Waman (PW 9) have been supported by Darbar (PW 1) and Surpal (PW 2). He had been told by Amnabai that Peetaram had been assaulted by the accused with a Kharaliya. Accordingly, he went to report the matter to the Police Station. He has confirmed having made the report Ex.P/5. ( 10. ) Even the arrest and seizure made by U.R.Waman (PW 9) have been supported by Darbar (PW 1) and Surpal (PW 2). In presence of Surpal, inquest had taken place, while Darbar is a panch witness to the arrest and seizure of Kharaliya. Ex.P/18, however, states that on account of the fact that the blood was disintegrated, no opinion could be given with regard to the origin of the blood. ( 11. ) In addition, Ranji (PW 5) and Jirbhan (PW 6) have deposed that on hearing the alarm raised by Amnabai, they rushed to the place and found that Nasa was running away and Peetaram was lying injured on the ground. ( 12. ) From the narration of the incident by the eye witnesses and by the witnesses who support on the basis of circumstances including Jirbhan (PW 6) and Sukhlal (PW 7), we find that prosecution has fully succeeded in proving the guilt of the accused. The contention of the counsel, however, is that the offence would not fall within the description of offence punishable u/S. 302 of the IPC. We have already referred to the injuries of the deceased caused by the appellant by a heavy log like Kharaliya. The injuries include two lacerated wounds, two bruises and two haemotomas with fracture of skull. The appellant had selected a vital part of the body namely; scalp and caused a number of injuries. The injuries so caused clearly indicate the intention of the appellant to commit murder of the deceased. Accordingly, we find no substance in this appeal. The appeal is dismissed. Appeal dismissed.