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2010 DIGILAW 101 (MP)

Pappu @ Kamod v. State of M. P.

2010-01-22

RAKESH SAKSENA, SUSHMA SHRIVASTAVA

body2010
JUDGMENT Smt. Shrivastava, J. -- 1. Appellant has preferred this appeal challenging his conviction and order of sentence passed by Second Additional Sessions Judge, Raisen in ST No.226/99, decided on 22.8.2000. 2. Appellant has been convicted under section 302 of IPC for committing murder of his wife Tarabai and sentenced to imprisonment for life with fine of Rs.2,000/-, in default further rigorous imprisonment for six months, by the impugned judgment. 3. According to prosecution, in the month of October 1999, appellant Pappu @ Kamod and his wife Tarabai (hereinafter referred to as 'deceased') had visited the place of their brother-in-law Radheshyam at village Premtalab. On 5.10.1999 Radheshyam had gone to pluck water-chestnuts from the lake and his wife had gone to sell water-chestnuts; appellant and his wife Tarabai were alone at home. At 11 O'clock in the morning when Radheyshyam came to his house to drink water, he saw appellant running away from the house. Radheyshyam asked him as to what had happened, but he did not reply back. Radheyshyam then went inside and found that his sister-in-law Tarabai was lying injured on the ground bleeding from the left side of her head. On being asked, Tarabai informed him that appellant had assaulted her by spade on her head and fled away. Radheyshyam went in search of the appellant, but he could not be traced. Tarabai was then taken to the Primary Health Centre, Obedullaganj in unconscious state. The FIR of the incident was lodged by Radheyshyam at Police Station Noorganj, on the basis of which an offence was registered against the appellant and was investigated. Tarabai having received serious injuries was referred to Hamidia Hospital, Bhopal, where he succumbed to her injuries. The intimation of her death was sent to the police by the hospital authorities, whereupon the merge intimation was recorded and merge inquest was made. The dead body of deceased Tarabai was sent for post-mortem examination. During investigation, the spade used in the commission of offence was seized from the spot. Blood stained earth, plain earth and blood stained clothes of the deceased as well as that of appellant were seized and sent for forensic examination. After due investigation, appellant was prosecuted under section 302 of IPC and was put to trial. 4. Appellant abjured the guilt and pleaded innocence. 5. Blood stained earth, plain earth and blood stained clothes of the deceased as well as that of appellant were seized and sent for forensic examination. After due investigation, appellant was prosecuted under section 302 of IPC and was put to trial. 4. Appellant abjured the guilt and pleaded innocence. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for committing murder of his wife Tarabai, convicted and sentenced him under section 302 of IPC as aforesaid by the impugned judgment, which has been challenged in this appeal. 6. We have heard the learned counsel for the parties. 7. It was no longer disputed that deceased Tarabai met a homicidal death. It is also reflected from the medical evidence that Tarabai died of bodily injuries. Dr. H.S. Rajput (PW3), who medically examined the deceased before her death on 5.10.1999 at P.H.C. Obedullaganj, found following injuries on her person: (i) Lacerated wound left side of ear behind and posterior surface of ear just three inches away from ear lobule size 4"x 1I2"x 112" bone deep, zig zag in shape. Bleeding from ear present. (ii) Lacerated wound parallel and behind injury No.1 size 3/4"x 1I2"xbone deep. 8. According to Dr. H.S. Rajput (PW3) injured Tarabai was brought to the hospital in unconscious state and her injuries were caused by hard and blunt object and she was referred to Hamidia Hospital, Bhopal. Her MLC report (Ex. P-l) given by Dr. H.S. Rajput (PW3) is also placed on record. 9. Dr. Ashok Sharma (PW7), who conducted the autopsy on the dead body of deceased Tarabai, also found the following injuries on her body: (i) Surgically stitched lacerated wound over her vertex coronal, margin abraded, size 7 x 1 cm x skull deep. (ii) Another stitched lacerated wound on left temporal parietal region vertical Z shaped, size 6, 3 and 2 cm. of each line, bony deep. (iii) Another stitched lacerated wound 3 cm. posterior to injury. No.2, size 1 x 0.5 cm over occipital region, bony deep. (iv) Scalp ecchymosed allover, more on left side. (v) Skull - Depressed fracture left parietal region above mastoid oval shape, size 5.3 cm with fractured bony pieces depressed inside. of each line, bony deep. (iii) Another stitched lacerated wound 3 cm. posterior to injury. No.2, size 1 x 0.5 cm over occipital region, bony deep. (iv) Scalp ecchymosed allover, more on left side. (v) Skull - Depressed fracture left parietal region above mastoid oval shape, size 5.3 cm with fractured bony pieces depressed inside. (a) There is radiating fracture arising from anterior border of main fracture traveling anteriorly up-to acoustic meat-us left side then ear-line in the base of skull along the piteous part up-to sella turcica crossing it and then to right wing of sphenoid. (b) Another radiating fracture arising from posterior border of main fracture traveling upward and corning anteriorly over left parietal bone 8 cm. long. Brain - Massive ubdural hemorrhage and subarachnoid hemorrhage. Base of skull having blood clots. 10. In the opinion of Dr. Ashok Sharma (PW7) death of deceased Tarabai was due to cardio-respiratory failure as a result of head injury caused by hard and blunt object and injuries were sufficient to cause death in the ordinary course of nature. Her postmortem report (Ex.P-10) is also placed on record. 11. There are no cogent reasons to discard or disagree with the aforesaid medical evidence. It is thus, clearly evident that the death of deceased Tarabai was homicidal in nature. 12. Learned counsel for the appellant, however, submitted that the trial Court gravely erred in placing implicit reliance on the unreliable testimony of the interested and partisan witnesses and failed to appreciate that there was no eye-witness to the incident and Gourabai (PW2) was a planted witness. Learned counsel further submitted that the trial Court failed to consider that the appellant had no intention or motive to murder his wife and he was falsely implicated. It was also alternatively submitted that his case would not travel beyond the ambit of section 304 of IPC. Learned counsel further submitted that the trial Court failed to consider that the appellant had no intention or motive to murder his wife and he was falsely implicated. It was also alternatively submitted that his case would not travel beyond the ambit of section 304 of IPC. Relience was also placed in this behalf on the decisions rendered in the case of Deepak Bhikaji Dharmale v. State of Maharashtra, reported in (2002)2 SCC 1430, Shubhkaran v. State of Madhya Pradesh, reported in 2004(II) MPWN 54 = 2004(1) MPHT 168 (DB), Bagdi Ram v. State of Madhya Pradesh, reported in 2005(1) JLJ 263 =2004(1) MPHT 258 (SC), Tamo Budaru v. State, reported in 2006(4) MPHT 66 (C.G.), Badri v. State of Madhya Pradesh, reported in 2004(2) MPHT 408 (DB), Pramod Kumar v. State of Madhya Pradesh, reported in . 2008(3) MPHT 485 (DB). 13. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. 14. We have gone through the entire evidence on record. 15. Gourabai (PW2) is the main eye-witness. Gourabai (PW2) deposed in her evidence that at the time of occurrence about 10/11 O'clock in the morning when she was washing clothes in her Bathroom, she heard the shrieks of Tarabai from the adjacent house. She peeped out and found that appellant Kamod Singh was assaulting Tarabai by means of a spade on her head; she got frightened and screamed. Then Radheyshyam, Gaya Prasad and Kanhaiyalal came there and found that Tarabai had bleeding injury on her head; they also saw the appellant fleeing away. Tarabai was then taken to the hospital where she died. 16. Kanhaiyalal (PW4) also deposed that appellant Kamod Singh and his wife Tarabai had visited the place of his elder brother Radheyshyam, where both husband and wife had fought over something and appellant Kamod Singh had. assaulted his wife Tarabai by spade on her head. According to Kanhaiyalal (PW4), at that time he, and his brother Radheyshyam, Devlal, Pappu and Gaya Prasad were plucking water chestnuts from the nearby lake and on hearing the screams of Gourabai, they had rushed to the spot and found that appellant Kamod Singh was assaulting his wife by spade and by the time they could reach, appellant Kamod Singh had fled away. Kanhaiyalal (PW4) also chased the appellant, but he could not catch hold of him. 17. Kanhaiyalal (PW4) also chased the appellant, but he could not catch hold of him. 17. Gaya Prasad (PW1) also deposed that about 11 O'clock in the morning when he was plucking water-chestnuts from the lake at village Premtalab he heard the call of his siter-in-law Gourabai and when he reached, he found that Tarabai was lying injured and unconscious in the courtyard with bleeding injury on her head and appellant was running away. 18. The aforesaid witnesses were extensively cross-examined and also contradicted on some points with their respective police statements. Yet, so far as the evidence of Gourabai (PW2) is concerned, there are no reasons to doubt her testimony that she had seen the appellant assaulting Tarabai by spade on her head. She also clarified in her cross-examination that her house is adjacent to the house of her brother-in-law Radheyshyam where the appellant and his wife Tarabai were staying at the time of occurrence. She categorically deposed that Tarabai (deceased) and her husband had visited the place of her brother-in-law Radheyshyam a day or two before the incident. She denied the suggestion that it was not possible for her to have witnessed the incident from her house. Her statement could not be disbelieved in view of the fact that the incident of assault on the deceased occurred in the courtyard of the house of Radheyshyam, as also evident from the testimony of Gaya Prasad (PW1) and Kanhaiyalal (PW4). 19. Gourabai (PW2) as well as Gaya Prasad (PW1) and Kanhaiyalal (PW 4) denied the suggestion made in their cross-examination that Radheyshyam had tried to molest the deceased and thereafter assaulted her by spade. It is pertinent to mention that no such suggestion was ever made to Radheyshyam (PW8). Had there been some substance or truth in such suggestion or plea, it would have been put to Radheyshyam (PW8) against whom such accusation was attempted to be made. Moreover, had it been a fact, appellant could have himself lodged such report against Radheyshyam (PW8). On the other hand, it transpires from the evidence of Gaya Prasad (PW1) and Kanhaiyalal (PW4) that appellant was seen fleeing and running from the place of occurrence after the incident. 20. In fact, there are no cogent reasons to discard the evidence of Gourabai (PW2) that she had witnessed the appellant assaulting the deceased by means of spade on her head. 20. In fact, there are no cogent reasons to discard the evidence of Gourabai (PW2) that she had witnessed the appellant assaulting the deceased by means of spade on her head. A few contradictions of omissions with her police statement (Ex.D-4) brought forth are not such so as to cast any doubt on her basic version that on hearing the shriek of Tarabai she had seen the appellant assaulting her by spade. As she is the next door resident to the house of Radheyshyam (PW8) where the incident occurred, her presence on or near the place of occurrence cannot be doubted. It is also clearly borne out from the evidence on record that appellant Kamod Singh and his wife Tarabai (deceased) had visited to the place of Radheyshyam (PW8) at village Premtalab. Although Radheyshyam (PW8), who lodged the FIR (Ex.P-12), did not support the prosecution case, though he admitted his signatures on Dehati Nalishi (Ex.P-12), and declared hostile by the prosecution, yet his wife Laxmibai (PW9) clearly deposed in her evidence that appellant Kamod Singh and Tarabai had come to their place and had stayed in her house, while she herself left for Bhopal next morning for selling water-chestnuts, where she came to know of the incident and saw the dead body of Tarabai in Hamidia Hospital. 21. Learned counsel for the appellant strenuously urged that Gourabai (PW2) was a planted witness, as her police statement was recorded much after the incident. However, the evidence of Gourabai (PW2) cannot be discarded merely on the ground that the 1.0. did not record her police statement immediately, particularly when her evidence is not found to be suspicious or tainted in any manner. There are also no cogent reasons why Gourabai (PW2) would falsely implicate the appellant. 22. Although Kanhaiyalal (PW4) also tried to depose that he had also seen the appellant assaulting the deceased, but in view of his statement in cross-examination, that he was at the lake, his version having actually witnessed the assault does not inspire confidence. However, his statement that he saw the appellant fleeing from the place of occurrence cannot be doubted. Needless to repeat that Gaye Prasad (PW1) also witnessed the appellant fleeing from the place of occurrence after the incident Thus, the conduct of the appellant like running away from the place of occurrence after the incident also lends assurance to the testimony of Gaurabai (PW2). Needless to repeat that Gaye Prasad (PW1) also witnessed the appellant fleeing from the place of occurrence after the incident Thus, the conduct of the appellant like running away from the place of occurrence after the incident also lends assurance to the testimony of Gaurabai (PW2). 23. In view of the aforesaid discussion and the evidence available on record, the finding arrived at by the trial Court that appellant assaulted the deceased by means of spade and thereby caused her homicidal death cannot be faulted with. 24. The next submission of learned counsel for the appellant has been that the appellant had no motive or intention to kill his wife; he also submitted that there was no pre-meditation and the incident occurred on the spur of moment in a sudden fight in the heat of passion and as per medical evidence the blunt idea of the spade was used, the act of the appellant would come within the purview of section 304 of IPC and he could not be held guilty under section 302 of IPC. 25. We have given our anxious consideration to the submissions made by learned counsel for the appellant. However, on perusal of the record, we find that there is virtually no such evidence on record that there was a sudden fight between the appellant and his wife (deceased) and the appellant acted in the heat of passion upon a sudden quarrel. Although Kanhaiyalal (PW 4) stated in his evidence that appellant and his wife had fought over something and then appellant assaulted his wife Tarabai, but as said earlier, Kanhaiyalal (PW4) did not actually witness the assault because according to his own version, he was at the lake and he and others rushed to the spot on hearing the screams. The principal witness Gourabai (PW2) also nowhere deposed that she heard any altercation or any quarrel between the appellant and his wife Tarabai, rather she pleaded ignorance as to the cause of incident. In her own words "". According to Gourabai (PW2), Tarabai (deceased) never told her anything, nor to anybody else before her. Nothing is elicited in this regard even from the evidence of Radheyshyam (PW8), who lodged the FIR, or any other witness examined by the prosecution. Appellant himself has not stated anything in this behalf in his examination under section 313 of CrPC. According to Gourabai (PW2), Tarabai (deceased) never told her anything, nor to anybody else before her. Nothing is elicited in this regard even from the evidence of Radheyshyam (PW8), who lodged the FIR, or any other witness examined by the prosecution. Appellant himself has not stated anything in this behalf in his examination under section 313 of CrPC. In absence of any evidence, it can hardly be presumed that there was a sudden fight between the appellant and his wife and that appellant acted in the heat of passion upon a sudden quarrel or any altercation between the husband and wife led to the fatal assault by the appellant on the deceased. 26. Moreover, it was not a case of single blow. The medical evidence on record, particularly that of Dr. Ashok Sharma (PW7), who conducted the autopsy on the dead body of deceased and gave a detailed post-mortem report, indicates that there were three stitched lacerated wounds present on the scalp of the deceased, besides multiple fractures in the skull bone, which means that repeated blows were wielded on the scalp of the deceased with force, which resulted into such injuries, as were sufficient in the ordinary course of nature to cause death. When the appellant wielded repeated blows by means of weapon like spade, may be its edges were blunt, on a vital part like scalp of the deceased and caused such injuries, which were sufficient in the ordinary course of nature to cause death, it could well be inferred that the appellant assaulted the deceased with intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death, justifying his conviction under section 302 of IPC. 27. In the aforesaid facts of the case, where sudden fight or sudden quarrel between the appellant and his deceased wife was not established and the appellant gave repeated fatal blows by means of spade on the scalp of the deceased, the benefit of exception 4 to section 300 of IPC cannot be given to the appellant. As reiterated by the apex Court in the case of Bangaru Venkata Rao. As reiterated by the apex Court in the case of Bangaru Venkata Rao. State of Andhra Pradesh, reported in (2008)9 SCC 707], for application of exception 4 to section 300 of IPC it is not sufficient to show that there was a sudden quarrel and there was no pre-meditation, it must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. In the facts of the instant case, it could not be said that the appellant has not taken undue advantage or has not acted in a cruel or unusual manner, when he dealt repeat blows by spade on the scalp of the deceased. 28. Thus, in our considered opinion, the submission of the learned counsel for the appellant that the case of the appellant falls under section 304 of IPC, has no merit. The citations referred to by him as reported in (2000)2 SCC 1430, 2004(III) MPWN 54= 2004(1) MPHT 168 (DB), 2005(1) JLJ 263 =2004(1) MPHT 258 (SC), 2006(4) MPHT 66 (C.G.), 2004(2) MPHT 408 (DB), 2008(3) MPHT 485 (DB) (supra), are distinguishable on facts and are of no avail to the appellant in the facts of the instant case. 29. We find no merit in the appeal. We uphold the conviction of the appellant and life sentence with fine of Rs.5,000/- awarded to him under section 302 of IPC. Appeal fails and is dismissed.