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2008 DIGILAW 911 (MP)

Chaturbhuj v. State of M. P.

2008-07-24

A.K.SHRIVASTAVA, K.S.CHAUHAN

body2008
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order sentence dated 9.9.1993 passed by learned Sessions Judge, Narsinghpur in Sessions Trial No. 76/93, convicting the appellant under section 302 IPC and sentencing him to suffer life imprisonment and fine of Rs. 100/-, in default of payment of fine, further rigorous imprisonment of one month, the appellant has knocked the door of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that Shobharam (hereinafter referred to as 'the deceased') and his wife Phullibai were residing in a Tapariya (hut). Nearby the hut of the deceased, there is hut of the appellant, who is son-in-law of the deceased. In the said hut, appellant and his wife Ghasitibai, who is the daughter of the deceased were residing. It is admitted position that the fields of the deceased and appellant are adjoining to each other. 3. The further case of prosecution is that there was some dispute about the Medh (mound) between the two fields and appellant was saying to his wife Ghasitibai, who is the daughter of the deceased that her father (deceased) had encroached some portion of his land. On this point some altercation took place between the appellant and his wife, as a result of which appellant dealt two blows from stick side of the axe on the back of his wife Ghasitibai and rushed towards the deceased and dealt a blow of the axe on the head of the deceased and ran away. According to the prosecution, when appellant was running towards the deceased, he was chased by his wife Ghasitibai. 4. On receiving injury by the deceased, blood started oozing from the wound. On hearing hue and cry Gorelal and Dulichand also arrived at the spot and they have also seen the incident. 5. Kodulal (PW 4) lodged the FIR on 6.3.1993 in the concerning police station. On lodging of the FIR, criminal law was triggered and set in motion. 4. On receiving injury by the deceased, blood started oozing from the wound. On hearing hue and cry Gorelal and Dulichand also arrived at the spot and they have also seen the incident. 5. Kodulal (PW 4) lodged the FIR on 6.3.1993 in the concerning police station. On lodging of the FIR, criminal law was triggered and set in motion. A case under section 302 IPC was registered against the accused and the police party arrived at the spot; prepared Panchayatnama of the dead body and sent it for post mortem; prepared spot map; seized ordinary and blood stained earth from the place of occurrence; statement of the witnesses were recorded and appellant was arrested; on the disclosure made by the appellant, at his instance an axe which was used as a weapon in the commission of the offence was seized and the same was sent for serological examination. 6. After the investigation was over, a charge-sheet was submitted in the competent Court, which on its turn committed the case to the Court of Session where the accused-appellant was tried. 7. Learned trial Judge on going through the averments made in the charge-sheet framed a charge punishable under section 302 IPC against the appellant which he denied and requested for trial. 8. In order to prove its case prosecution examined as many as seven witnesses and placed Exs. P-1 to P-16, the documents on record. 9. The defence of the accused is of maladroit implication. However, he did not choose to examine any witness in support of his defence. 10. Learned trial Judge after appreciating and marshalling the evidence placed on record came to hold that the accused-appellant did commit the offence for which he was charged and eventually convicted him and passed the sentence which we have mentioned herein above. 11. In this manner the appellant has preferred this appeal assailing the impugned judgment of conviction and order of sentence passed by learned trial Court. 12. The contention of Shri Siddharth Datt, learned counsel for the appellant is that if the testimony of prosecution witnesses is considered in proper perspective it would reveal that their evidence is not worth reliable and, therefore, learned trial Judge erred in convicting the appellant. 12. The contention of Shri Siddharth Datt, learned counsel for the appellant is that if the testimony of prosecution witnesses is considered in proper perspective it would reveal that their evidence is not worth reliable and, therefore, learned trial Judge erred in convicting the appellant. An alternative submission has also been put-forth by the learned counsel for the appellant that if this Court comes to the conclusion that the appellant had dealt blow on the person of the deceased as a result of which he died and since there is single injury on the person of the deceased, which has been caused from the blunt side of the axe coupled with the fact that the incident had occurred all of a sudden in a heat of passion, the case would fall under the ambit and sweep of section Exception-4 to section 300 IPC and, therefore, since there was no intention of the appellant to kill the deceased, at the most the case would fall under section 304 Part-II of IPC. 13. Combating the aforesaid submissions of learned counsel for the appellant, it has been argued by Shri R.S. Patel, learned Additional Advocate General that as per the statement of Phullibai (PW 2) and Ghasitibai (PW 3) it has been proved that the appellant dealt blow from the blunt side of the axe and this oral testimony has also been corroborated by the medical evidence since Autopsy Surgeon Dr. R.S. Chakravorty (PW 7) has opined that the injury sustained by the deceased may come if the blunt side of the axe is used for causing the injury and, therefore, learned trial Judge did not commit any error in convicting the appellant under section 302 IPC. 14. Having heard learned counsel for the parties we are of the view that this appeal deserves to be allowed in part. 15. In the present case, Ghasitibai (PW 3) is the wife of the appellant and daughter of the deceased. Phullibai (PW 2) is the mother-in-law of the appellant and wife of the deceased. Both these witnesses have categorically stated that the appellant had dealt the blow of axe on the person of the deceased as a result of which he died. On close scrutiny of the evidence of these two witnesses, it is revealed that there was some dispute about the Medh (mound) between the two fields. Both these witnesses have categorically stated that the appellant had dealt the blow of axe on the person of the deceased as a result of which he died. On close scrutiny of the evidence of these two witnesses, it is revealed that there was some dispute about the Medh (mound) between the two fields. Admittedly one field is of the appellant and adjoining field is of the deceased. It has come in the testimony of Ghasitibai (PW 3) that appellant was saying about the factum of trespassing some piece of his land by the deceased. On this, she suggested the appellant to assemble the village people in order to redress the dispute. This made annoyance to the appellant and he dealt two blows from the stick side of the axe to her (PW 3) and ran away towards the deceased by saying that he will not be spared. Ghasitibai (PW 3) also stated chasing her husband (appellant) and immediately thereafter appellant dealt a blow from the blunt side of the axe on the person of the deceased. 16. We do not find any merit in the submission of learned counsel for the appellant that if the use of axe has been stated by the eye-witnesses it would be presumed that the same has been used from the blade side unless and until specific averment is made that the same has been used from its blunt side. According to the learned counsel for the appellant since no incised wound has been found by the Autopsy Surgeon on the person of the deceased. therefore, presence of these two witnesses becomes doubtful. On the other hand, according to Shri Patel, learned Additional Advocate General since eye-witnesses were at some distance from the place where the incident had taken place, there are all possibilities that they must have not seen from which side of the axe the blow was dealt by the appellant and, therefore, it should be inferred that appellant used the blunt side of the axe. According to us, there is merit in the contention of learned counsel for the State. On close scrutiny of the evidence of the eye-witnesses, namely, Phullibai (PW 2) and Ghasitibai (PW 3) it is revealed that they were at some distance from the place where the incident had taken place and, therefore. According to us, there is merit in the contention of learned counsel for the State. On close scrutiny of the evidence of the eye-witnesses, namely, Phullibai (PW 2) and Ghasitibai (PW 3) it is revealed that they were at some distance from the place where the incident had taken place and, therefore. it can be inferred that they were unable to see that which side of the axe was used by the appellant for giving blow to the deceased. 17. Autopsy Surgeon Dr. R.S. Chakravorty (PW 7) has stated that if the blunt side of the axe is used, injury caused to the deceased may come. The autopsy surgeon has categorically stated that there was only one injury on the head of the deceased as a result of which bones of the skull were fractured. 18. Thus we are of the view that learned trial Judge did not err in holding that the appellant dealt axe blow from the blunt side of the axe as a result of which deceased died. 19. We shall now advert ourselves to the alternative submission made by the learned counsel for the appellant. By placing reliance on two decisions of the Supreme Court Jagrup Singh v. The State of Haryana, AIR 1981 SC 1552 and Hardev Bhanji Joshi v. State of Gujarat, AIR 1993 SC 297 , it has been submitted by learned counsel for the appellant that since there is single injury on the person of the deceased, therefore, the case would fall under the ambit and sweep of section 304 Part-II of IPC. 20. We have considered this argument. 21. If the evidence of PW 3 Ghasitibai is considered in proper perspective it would throw sufficient light how the incident had occurred and what is the genesis of the occurrence. According to PW 3 Ghasitibai, appellant was saying to her that deceased had encroached some portion of his land, as a result of which she suggested to assemble sensible persons of the village. On this point some altercation took place between her and the appellant and thereafter appellant ran away towards the deceased and dealt the blow of axe on him. Had there been any intention of the appellant to kill the deceased, definitely he would have dealt some more blows and that too from blade side of the axe. On this point some altercation took place between her and the appellant and thereafter appellant ran away towards the deceased and dealt the blow of axe on him. Had there been any intention of the appellant to kill the deceased, definitely he would have dealt some more blows and that too from blade side of the axe. The act of the appellant dealing only single blow on the head of the deceased and that too from blunt side of the axe indicates that he was not having any intention to kill the deceased, but he was having knowledge that by his act the deceased may die and, therefore, according to us, the appellant has committed the offence punishable under section 304 Part-II of IPC. The decisions of the Supreme Court Jagrup Singh (supra) and Hardev Bhanji Joshi (supra) placed reliance by learned counsel for the appellant are squarely applicable in the present case. 22. On going through the record it is revealed that on 11.3.1993 the appellant was taken into custody and he was enlarged on bail on 7.12.2001 In this Court and, therefore, the appellant had undergone the jail sentence about eight years and nine months and according to us this would appropriate punishment for the offence which he has committed. 23. Resultantly, this appeal succeeds and is allowed in part. The conviction of appellant is altered from section 302 IPC to section 304 Part-II of IPC. The sentence of life imprisonment and fine of Rs. 100/awarded to him by the learned trial Court is also altered and he is hereby sentenced to the period already undergone by him. The appellant is on bail, his bail-bonds are discharged.