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2010 DIGILAW 1246 (MP)

Baboolal v. State of M. P.

2010-12-16

M.A.SIDDIQUI, RAKESH SAKSENA

body2010
JUDGMENT M.A. Siddiqui, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.01.2001 passed by learned First Additional Sessions Judge, Waraseoni in S.T. No. 230/2000 convicting the Appellant under Section 302 of IPC and sentencing him to suffer rigorous imprisonment for life and fine of Rs. 1000/- in default payment of fine amount, additional rigorous imprisonment for one month, the Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. Undisputedly, deceased Chandanlal was brother of the Appellant. Gulabi Bai (P.W.-1) is the wife of deceased and Sushila Bai (P.W.-4) is the sister of the deceased as well as of the Appellant. 3. In nutshell, the prosecution story is that on 12.10.2000 at about 3.15 in the morning Gulabi Bai reported the matter that on the night dated 11.10.2000 at 9.00 p.m. when she was at her house with her children, her husband Chandanlal (deceased) came to house and complained that nobody was willing to give company to him even she was also not giving co-operation and company to him and he used filthy language against her. Gulabi Bai went out of the house where her husband Chandanlal also reached. At that time accused Baboolal came there and talked with the deceased Chandanlal and thereafter accused/Baboolal and Chandanlal (deceased) came back to his house. Gulabi Bai also came behind them at the house of Bastaram, Deceased Chandanlal asked something from accused Baboolal. Baboolal all of a sudden started beating him with lathi (stick) so Chandanlal fell on the ground. Gulabi Bai went out of the house cried and called the villagers and when she came back she saw her husband bleeding profusely. There were several injuries on his face, and he was dead. According to her, her husband was killed by (Dewar) accused/Appellant with lathi. Gulabi Bai alongwith her neighbour Gyan Singh went to the police station, Lalbarra and reported the matter to the Police. Shri J.S. Siddu, Sub Inspection P.W-9 registered the crime of murder against accused Baboolal. 4. Police investigated the matter, reached at the spot and prepared the spot map and made inquest report and sent the dead body for postmortem. Dr. T.C. Meshram (P.W.10) conducted the postmortem on 12.10.2000 vide his report Ex.P-10 he found five lacerated wounds on the body in which bones of face were broken and death was found homicidal. 5. 4. Police investigated the matter, reached at the spot and prepared the spot map and made inquest report and sent the dead body for postmortem. Dr. T.C. Meshram (P.W.10) conducted the postmortem on 12.10.2000 vide his report Ex.P-10 he found five lacerated wounds on the body in which bones of face were broken and death was found homicidal. 5. After usual investigation, police filed a charge sheet against the accused/Baboolal before the Judicial Magistrate First Class, Waraseoni, Balaghat where criminal case No. 419/2000 was registered. Case was committed to the Court of Sessions Balaghat, where case was registered as S.T. No. 320/2000. The then Additional Sessions judge, Waraseoni framed the charges for the offence under Section 302 of IPC against the accused. 6. Accused/Appellant abjured the guilt and took the defence of innocence and false implication. 7. Trial Court on the evidence of Gulabi Bai (P.W.-1), Sushila Bai (P.W.-4) as eye witnesses, Dhruv Prasad (P.W.-2) as corroborative evidence, Shri J.S. Siddhu (P.W.-9) writer of the First Information Report, Mahesh Kumar (P.W.-8) Patwari, Dr. T.C. Meshram (P.W.-10) and V.P. Tiwari (P.W.-11) came to the conclusion of guilt of Appellant and punished him accordingly, hence this appeal is filed. 8. We have heard learned Counsel for the respective parties and also perused the relevant documents and record of the trial Court. 9. From perusal of the record it is evident that learned trial Judge relied on the aforesaid prosecution witnesses. 10. Gulabi Bai P.W.-1 stated that deceased Chandanlal was her husband and accused Baboolal is her Dewar ( younger brother of her husband). On the fateful night at 8.30 p.m. she was giving food to her children, her husband came and asked for food, she was going to serve the food meanwhile, accused Baboolal came there and asked chandandal to accompany him and to help him for irrigation of the field, so her husband went with the accused in the courtyard. In the meantime, accused/Baboolal came with lathi and dealt blow on the head of Chandanlal. Gulabi Bai further said that she cried and went outside the house for calling the villagers and came back after half an hour then she saw chandanlal lying injured in the courtyard. He was dead. Thereafter she went to police station, police came there and prepared the spot map. Dead body of her husband was sent for postmortem. 11. Gulabi Bai further said that she cried and went outside the house for calling the villagers and came back after half an hour then she saw chandanlal lying injured in the courtyard. He was dead. Thereafter she went to police station, police came there and prepared the spot map. Dead body of her husband was sent for postmortem. 11. Sushila Bai P.W.-4 is sister of accused/Baboolal as well as deceased Chandanlal. She stated that at about 9.00 p.m. when she was sleeping, she heard noise from the house of Chandanlal so she went to the house of Chandanlal and saw baboolal beating to Chandanlal with lathi. She called another brother Dhruv Prasad (P.W.-2) then accused Baboolal ran away from the spot. (P.W.-2) Dhruv Prasad supported version of both these witnesses and stated that this incident had taken place on 11.10.2000 at night at about 10.00 p.m. Baboolal was beating to Chandanlal and chandanlal was lying in the courtyard bleeding. So many people had gathered there. 12. Dhruv Prasad P.W.-2 another brother of deceased stated that on 11.10.2000 at about 10.p.m., he was sleeping after taking meals. His sister came and told him that Baboolal was beating to Chandanlal so he went to the house of Chandanlal and found that in the courtyard Chandanlal was lying, breathing his last and so many persons gathered there. Police was informed and police came there and dead body sent for postmortem. 13. Baboolal S/o Koddulal P.W.-3 stated that on 11.10.2000 at about 8.45 p.m Chandanlal's wife Gulabi Bai came to his house and informed that brothers are fighting so he went to her house and found that Chandanlal lying dead in his house. 14. Chandanlal Kotwar P.W.-6 stated that the incident took place on 11.10.2000 at about 9.00 p.m. Nathulal informed that Chandanlal had died. He saw that chandanlal was lying in the courtyard. So the brother of Gulabi Bai and he went to the police station Lalbarra and informed about the incident. police came with them and in the morning inquest report and panchnama was prepared thereafter dead body was sent for postmortem vide Ex. P-5. 15. Mahesh Kumar P.W.-8 stated that he was directed by Naib Tahsildar in the month of November 2000 to prepare the spot map of murder place so he visited the spot and prepared the spot map Ex. P-7. 16. P-5. 15. Mahesh Kumar P.W.-8 stated that he was directed by Naib Tahsildar in the month of November 2000 to prepare the spot map of murder place so he visited the spot and prepared the spot map Ex. P-7. 16. Shri J.S. Siddu P.W.-9 Sub Inspector P.S. Lalbarra stated that on 12.10.2000 at about 3.00 a.m. Gulabi Bai came to Lalbarra police station and lodged the report against accused Baboolal that he killed her husband Chandanlal on which he registered the offence under Section 302 of IPC vide report Ex. P-8. 17. Shri V.P. Tiwari, P.W.-11, Sub Inspector of police stated that in the investigation, he visited the spot seized sample of soil from the spot before the witnesses vide Ex. P-6. He further submitted that he arrested Baboolal vide Ex. P-3. Baboolal made confessional statement to him before the witnesses and his statement was recorded Ex. P-1 memorandum. Shri V.P. Tiwari further stated that accused got seizure of stick as well as shirt stained with blood which was seized from him vide Ex. P-4. He further stated that on the spot he issued notice Ex. P-4 to the witnesses and made inquest report of the body of the deceased and sent the body of Chandanlal to Govt. Hospital Lalbarra for postmortem vide Ex. P-12. 18. Dr. T.C. Meshram P.W.-10, conducted the postmortem and found following injuries on his body. 1. Lacerated wound on left side ifs of chin, angle of mouth about 2 1/2" x 1x1/2" Deep to mandible part of chin. Verticale above upto downward (AN). 2. Lacerated wound about 1 1/2"x1/2"x1/2" transversely oblique on the left side , lateral to nose. (AN). 3. Lacerated wound on the left side, above the eyebrow, 2x1"/2x1/2". 4. Lacerated wound on the left angle of eye on temporal part its 1/3" 1x1/2"x1/2" transversely oblique (AN). 5. Lacerated wound on the right side below lateral angle of face of mandible 1x1/2"x1/2" left to lateral and of clavicle. (AN). 19. Dr. Mehsram P.W.-10 further stated that all the injuries were ante mortem, mostly all bones of face were found fractured and all injuries were sufficient to cause of death and the death was homicidal. 20. Learned Counsel for the Appellant submitted that there is no independent witness and all the examined witnesses are near relatives of deceased. 21. (AN). 19. Dr. Mehsram P.W.-10 further stated that all the injuries were ante mortem, mostly all bones of face were found fractured and all injuries were sufficient to cause of death and the death was homicidal. 20. Learned Counsel for the Appellant submitted that there is no independent witness and all the examined witnesses are near relatives of deceased. 21. Learned Panel Lawyer Shri Dhande submitted that, though Gulabi Bai P.W.-1 is widow but Dhruv Prasad P.W.-2 is not only the brother of deceased, but he is also real brother of accused. The status of Sushila Bai P.W.-4 is the same, she is not only the sister of deceased but she is real sister of the accused. 22. Learned Counsel for the Appellant submitted that Gulabi Bai PW-1 stated that she did not go to police station and her report was registered at her house in the morning. While J.S. Siddu, Sub Inspector of Police P.W.-9 has stated that Gulabi Bai reached to police station, Lalbarra at about 3 O'clock in the morning and reported the matter and police registered the crime at police station. Chandanlal S/o Budhiya, Kotwar P.W.-6 also stated that he visited police station, Lalbarra with Dhruv Prasad and police came with them. 23. Learned Counsel for the State submitted that Gulabi Bai PW-1 and Chandanlal Kotwar PW-6 are the rustic and illiterate villagers. F.I.R. register is kept in the police station. There might be irregularities on this account but prosecution case cannot be thrown on this account alone. 24. Learned Counsel for Appellant submitted that deceased and Appellant were the brothers and no motive has came out, there is no intention to kill and the case falls under the category of culpable homicide not amounting to murder and not under the category of murder, but trial Court has illegally punished the Appellant for the offence of murder. 25. Learned Panel Lawyer submitted that accused came with stick (lathi) and dealt so many blows choosing the vital part, head and the face of deceased. Bones of his face were found fractured in the medical examination, so case of intentional murder is established. 26. Learned Counsel for the Appellant submitted that as deceased was not only abusing to wife of Appellant but was also trying to catch hold hand of her, so the Appellant got provoked and this grave provocation resulted into incident. Bones of his face were found fractured in the medical examination, so case of intentional murder is established. 26. Learned Counsel for the Appellant submitted that as deceased was not only abusing to wife of Appellant but was also trying to catch hold hand of her, so the Appellant got provoked and this grave provocation resulted into incident. Apex Court in Arun Rai v. Union of India and Ors. (2010) SCC 457, after referring to Virsa Singh V. State of Punjab AIR 1858 SC 465. held that provocation is stimulus which can result into to loss of self-control. Such provocation and the resulting reaction need to be measured from the surroundings of circumstances. As the modesty of the wife of Appellant was at stake so, naturally Appellant was suddenly provoked but he exceeded the limit and gave so many blows so the case falls under Section 304(1) of IPC. 27. Learned Counsel for the Appellant has placed reliance on the case of Lachman Singh v. State of Haryana (2006) 10 SCC 524 , wherein it has been held that where sudden quarrel took place and no premeditation was there, and the act was not imminently dangerous to cause of instant death, the case would fall under the head of culpable homicide not amounting to murder, so the case , in our opinion has to be altered from Section 302 of IPC to Section 304 Part I IPC. 28. On due consideration, we are of the considered view that though no pre-plan was there. but more than one blows of stick were dealt on vital parts of the deceased so intention was to kill. But the act was not so imminently dangerous to cause death in the ordinary course of nature, so the offence would fall under Section 304(1) of IPC and not under Section 302 of IPC. 29. Accordingly, this appeal is partly allowed. Appellant is acquitted of the charge under Section 302 of IPC but he is convicted under Section of the IPC. 30. Learned Counsel for the Appellant submitted that Appellant is in jail from 18.10.2000. More than 10 years have passed. 31. Looking to the facts and circumstances of the case, Appellant is sentenced to the period of sentence already undergone by him and the sentence of fine of Rs. 1,000/-, inflicted by the trial Court is affirmed. 30. Learned Counsel for the Appellant submitted that Appellant is in jail from 18.10.2000. More than 10 years have passed. 31. Looking to the facts and circumstances of the case, Appellant is sentenced to the period of sentence already undergone by him and the sentence of fine of Rs. 1,000/-, inflicted by the trial Court is affirmed. It is made clear that if fine has already not been deposited by the Appellant, and he fails to deposit the fine amount within three months, he will further suffer on month's rigorous imprisonment.