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2008 DIGILAW 95 (MP)

RAMS A v. STATE OF M. P.

2008-01-18

A.K.SHRIVASTAVA, PRAKASH SHRIVASTAVA

body2008
Judgment A.K. SHRIVASTAVA, J. ( 1. ) Feeling aggrieved by the judgment of conviction and order of sentence dated 8.12.2006 passed by learned Sessions Judge, Betul m Sessions Trial No.34/2006 convicting the appellant under Section 302 IPC and sentencing him to suffer life imprisonment, this appeal has been preferred under Section 374(2) Cr.P.C. of 1973. ( 2. ) In brief the case of prosecution is that on 18.8.2005 which was the festival day of Raksha Bandhan, Balaram was in his house. In the evening Bhoori Bai (hereinafter referred to as the deceased1) who is the wife of Balaram was also sitting nearby him. At that juineture, Sunderlal came and hurled the abuses. He was accompanied by his son Ramsa (appellant), Pintu and Ramdas. It is said that Ramsa was carrying an axe and all of them assaulted the deceased as a result of which she fell down in the courtyard. On hearing hue and cry Motiram who is the son of Balaram and the deceased came there and on seeing Motiram all the accused persons fled from the place of occurrence. Motkara noticed that a stick was lying nearby the dead body of the deceased and she sustained injuries on her head, abdomen and back. Thereafter, Kesho also arrived at the spot and saw the dead body of the deceased lying in the courtyard. ( 3. ) A telephonic information was given to Station Officer Incharge of the concerned Police Station on 18.8.2005 in regard to the commission of the offence as a result of which Station Officer Incharge Madan Singh Choudhary proceeded to the village. After arrival in the village, the investigating agency seized the dead body and prepared its Panchanama; sent it for postmortem; seized ordinary and blood stained earth from the place of occurrence; seized a broken lathi from the place of occurrence; recorded the statement of the witnesses; and arrested the accused persons. ( 4. ) After completion of the investigation, a charge sheet was submitted in the committal court which on its turn committed the case to the Court of Session where accused persons were tried. ( 5. ) The learned trial Judge on the basis of the allegations made against the accused persons in the charge sheet framed charge punishable under Section 302 IPC and in the alternative 302/34 of IPC. ( 5. ) The learned trial Judge on the basis of the allegations made against the accused persons in the charge sheet framed charge punishable under Section 302 IPC and in the alternative 302/34 of IPC. Needless to emphasize all the accused persons abjured their guilt and pleaded complete innocence. ( 6. ) In order to prove the charges, the prosecution examined as many as 9 witnesses and placed Ex.P/1 to P/33 the documents on record. The defence of accused persons is of false implication and in support of their defence they examined one Ganaji (DW-1). ( 7. ) The learned trial Judge after appreciating and marshalling the evidence came to hold that except appellant Ramsa, other accused persons did not commit any offence and eventually acquitted them by the impugned judgment. However, according to the learned trial Judge since there is evidence against the present appellant Ramsa, he has been convicted under Section 302 of IPC. ( 8. ) Shri Usmani, learned counsel for the appellant submits that in the present case four persons were cited as eye witnesses they are Balaram (PW-1), Kesho (PW-2), Motiram (PW-3) and Sanu (PW-4). However, the learned trial court after scrutiny of the evidence came to hold that Kesho (PW-2), Motirarn (PW-3) and Sanu (PW-4) are not the eye witnesses and thus the conviction has been based solely on the testimony of eye witness Balaram (PW-1). According to learned counsel if the statement of Balaram (PW-1) is considered in proper perspective, it is difficult to hold that the appeUant committed the offence pumshable under Section 302 of IPC ( 9. ) An alternative submission has also been putforth by learned counsel that if the case of prosecution in regard to inflicting of injury by axe is found to be proved in toto, since only one fatal blow was given by the appellant Ramsa, the case would not come under the ambit and sweep of Section 302 of IPC since it is not borne out from the record that there was any previous enmity between the parties. According to learned counsel, the incident had occurred all of sudden and, therefore, the case would not travel beyond the ambit and sweep of Section 304 part - I of IPC. ( 10. ) On the other hand Shri R.S.Patel, Additional Advocate General argued in support of the impugned judgment, ( 11. According to learned counsel, the incident had occurred all of sudden and, therefore, the case would not travel beyond the ambit and sweep of Section 304 part - I of IPC. ( 10. ) On the other hand Shri R.S.Patel, Additional Advocate General argued in support of the impugned judgment, ( 11. ) Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. ( 12. ) In the present case, four persons were cited as eye witnesses by the prosecution, they are Balaram (PW-1), Kesho (PW-2), Motirarn (PW-3) and Sanu (PW-4). Out of these four eye witnesses, three eye witnesses, namely, Kesho (PW-2), Motirarn (PW-3) and Sanu (PW-4) were disbelieved by the trial court and it has been held that they have not seen the incident. The learned trial Judge has based the conviction only on the statement of Balaram (PW-1). Thus, we have to give our emphasis on the statement of this witness. ( 13. ) Ongoing through the statement of PW-1, Balaram, we find that Sunderlal came at his house and was hurling the abuses and thereafter the other accused persons as well as present appellant armed with an axe came there. It has been stated that appellant dealt an axe blow on the person of the deceased as a result of which she died. It has further been stated that the police party arrived in the village and he lodged Dehati Nalish (Ex.P/1) which has been proved by him in his evidence. On going through Dehati Nalish (Ex.P-1) we find that some altercation took place between the complainant side and Sunder who was one of the accused and who has been acquitted by the trial court. Thereafter appellant dealt a blow of axe on the person of the deceased, as a result of which she died. This witness was cross-examined at length but nothing has been carved out from his testimony in order to disbelieve him. Learned counsel for the appellant by inviting our attention to Dehati Nalish (Ex.P/1) as well as the police case diary statement of this witness (Ex.D/1) has argued that there are some omissions and contradictions, but, on going through those discrepancies, omissions and contradictions we find that they are minor in nature. Learned counsel for the appellant by inviting our attention to Dehati Nalish (Ex.P/1) as well as the police case diary statement of this witness (Ex.D/1) has argued that there are some omissions and contradictions, but, on going through those discrepancies, omissions and contradictions we find that they are minor in nature. Learned counsel for the appellant could not point out that how and in what manner the testimony of Balaram (PW-1) should be disbelieved on material point of inflicting injury by axe to the deceased by appellant. On the other hand, we find that his evidence is clear, cogent and trustworthy and therefore the learned trial Judge did not err in placing reliance on the testimony of this witness. Thus, on the basis of the evidence of Balaram (PW-1) it is proved that appellant caused injury by axe on the person of the deceased, as a result of which she died. ( 14. ) The testimony of eye witness Balaram is further corroborated by the evidence of Dr.Priti (PW-8) and her postmortem report (Ex.P/27) in which following injuries were found on the person of the deceased : "(i) Injury over left side of scapular region of 5 cm x 3 cm x 1" depth, Nature fresh injury. (ii) Head Injury over occipital region - of size - 1 1/2 x 1 1/2 x 1" bony depth. It is a fresh injury." ( 15. ) We have gone through the evidence of Dr.Priti (PW-8) who has stated that the deceased has received head injury on occipital region having size 1 1/2 "x 1 1/2" x 1" bony depth. However, the lady doctor did not opine whether the injury is incise or lacerated wound. After the arrest of the appellant and,seizure of axe which was used as weapon in the commission of offence from him, was sent to the doctor and in the inquest report the lady doctor opined that the injury sustained to the deceased on her head could come by the axe. According to the doctor, the deceased had died on account of head injury and the said injury was sufficient in ordinary course to cause death. On scanning the testimony of Dr.Priti (PW-8), we do not find that what is the nature of injury which was received by the deceased on left shoulder on scapular region whether it was simple or grievous in nature. On scanning the testimony of Dr.Priti (PW-8), we do not find that what is the nature of injury which was received by the deceased on left shoulder on scapular region whether it was simple or grievous in nature. But, there is overwhelming evidence in order to hold that it was appellant who caused injury on the person of the deceased, as a result of which she died. We have also given our anxious and bestowed consideration to the reasoning assigned by learned trial Judge holding the appellant to be responsible for causing injury to the deceased, as a result of which she died and we do not find illegality in it. Thus we hereby extend our stamp of approval to the reasoning assigned by learned trial Judge. ( 16. ) We shall now advert ourselves to the alternative submission made by learned counsel for the appellant. The contention of learned counsel is that there is nothing on record and there is no evidence that the complainant party and the appellant and acquitted co-accused persons were in inimical terms. On the contrary it has been stated by PW-1, Balaram in para 16 that there was no dispute with the accused earlier to the incident. After X-raying the testimony of PW-1, Balaram we find that all of a sudden altercation took place between the complainant party and acquitted co-accused Sundar as a result of which appellant came and dealt axe blow on the person of the deceased. Thus, according to us the case would rest under exception 4 to Section 300 as it is borne out from the evidence of Balaram (PW-1) who is the sole eye witness that without pre -meditation in the heat of passion, as acquitted co-accused Sunder was hurling abuses to the deceased, the incident occurred and therefore, according to us, the case would rest under the ambit and sweep of Section 304 part I of IPC as the incident had occurred all of a sudden in a spur of moment. In this context we may profitably rely the decision of Supreme Court Pappu vs. State of M.P. (2006) 7 SCC 391 . ( 17. ) Resultantly, this appeal succeeds in part. The conviction of appellant under Section 302 of IPC is hereby set aside and he is convicted under Section 304 part-I of IPC and sentenced to eight years R.I. Appeal succeeds in part.