Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 414 (MP)

Narayan v. State of M. P.

2012-04-17

RAKESH SAKSENA, S.C.SINHO

body2012
JUDGMENT Saksena, J. -- 1. Appellant has filed this appeal against the judgment dated 27th August, 2002 passed by Additional Judge to the Court of First Additional Sessions Judge, Katni in Sessions Trial No.819/2001, convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.2,000/-. In default of payment of fine, further rigorous imprisonment for six months. 2. In short, the prosecution case is that on 22.10.2001 when Gariba, the deceased returned to his house after working on a kiln and sat for taking bath near his house, appellant-accused reached there and dealt a blow with an axe on his neck causing his instantaneous death. Kishori Lal Kotwar (PW1) on getting information from wife of Fakru reached there and snatched the axe from the hand of accused. Kishori Lal went to Police Station Vijayraghogarh and lodged the first information report Ex.P-1. 3. Sub-Inspector Ramkishore Goutam (PW6) went to the spot, conducted inquest proceedings and sent the body of Gariba for post-mortem examination to Community Health Centre, Vijayraghogarh. Dr. B.K. Sahu (PW9) conducted post-mortem examination and found that the death of Gariba was caused by an incised injury on his neck. 4. On 22.10.2001, appellant was arrested. On his information, an axe was seized. After completion of investigation, police filed charge-sheet in the Court of Magistrate. The case was, thereafter committed for trial. Appellant was charged under section 302 of the Indian Penal Code. He abjured his guilt and pleaded false implication. 5. Learned trial Judge relying mainly on the evidence of Kishorilal (PW1), Bittan Bai (PW7), Deepak (PW8), Dr. B.K. Sahu (PW9) and Investigating Officer Ramkishore Gautam (PW6) held the appellant guilty for committing murder of Gariba, convicted and sentenced him as mentioned above. Aggrieved by his conviction, appellant has filed this appeal. 6. Learned counsel for the appellant submitted that learned trial Judge mis-appreciated the evidence on record. There was no direct evidence in the case. Neither Kishorilal (PW1), nor Bittan Bai (PW7) and Deepak (PW8) saw the incident, therefore, merely on the basis of their evidence, the conviction of appellant was not justified. The evidence of extra judicial confession made by appellant to Kishorilal (PW1) was not reliable. The recovery of axe on the alleged information of appellant was fabricated. Neither Kishorilal (PW1), nor Bittan Bai (PW7) and Deepak (PW8) saw the incident, therefore, merely on the basis of their evidence, the conviction of appellant was not justified. The evidence of extra judicial confession made by appellant to Kishorilal (PW1) was not reliable. The recovery of axe on the alleged information of appellant was fabricated. In the alternative, learned counsel for the appellant submitted that there was no past enmity between the appellant and the deceased. The incident occurred all of a sudden, therefore, appellant, at the most could have been held liable under section 304I or II of the Indian Penal Code. On the other hand, learned counsel for the State submitted that the evidence adduced by the prosecution was sufficient to prove the charge against the appellant. Trial Court committed no error in holding the appellant guilty on the basis of evidence of Kishorilal (PW1) and Bittan Bai (PW7). 7. We have heard the learned counsel for the parties, perused the impugned judgment and the evidence on record carefully. 8. It has not been disputed by the appellant that Gariba has died. From the evidence of Kishorilal (PW1), Bittan Bai (PW7) and Deepak (PW8), it has been established that Gariba has died. Investigating Officer Ram Kishore Goutam (PW6), after recording the first information report reached at the spot, conducted inquest proceedings before the witnesses and recorded memorandum Ex.P-9. He sent the dead body for post-mortem examination. Dr. B.K. Sahu (PW9) of Community Health Centre, Vijayraghogarh conducted post-mortem examination of the body of deceased and found one incised wound on the left side of his neck. It’s size was 2”x2.5” deep and 1/2” wide. The great vein (juglar) of the neck was cut by this injury. In his opinion, the cause of death of deceased was this injury of neck which resulted into neurogenic shock due to excessive bleeding and that his death was homicidal in nature. Post-mortem examination report Ex.P-15 was written and signed by him. Aforesaid evidence has not been challenged. Thus, it has been established beyond doubt that deceased died a homicidal death. 9. The next question before us is whether learned trial Judge rightly held appellant guilty for causing death of Gariba. The only eye-witness of the occurrence Ramrati(PW4) did not support the prosecution case. She was declared hostile. Therefore, the case rested on the circumstantial evidence. 10. Thus, it has been established beyond doubt that deceased died a homicidal death. 9. The next question before us is whether learned trial Judge rightly held appellant guilty for causing death of Gariba. The only eye-witness of the occurrence Ramrati(PW4) did not support the prosecution case. She was declared hostile. Therefore, the case rested on the circumstantial evidence. 10. Bittan Bai(PW7), the mother of deceased stated that when her son Gariba was taking bath near the house, appellant reached there and dealt a blow with an axe on his neck, due to which his neck got cut and Gariba died. When she shouted, appellant intimidated her that he will cut her into three pieces. Kishorilal, Ramdas and Radha also reached at the spot. They caught hold of the appellant. In cross-examination, this witness admitted that her mental condition was not sound, but in our opinion, this was not sufficient to discard her evidence altogether. She, however, admitted that she did not see appellant assaulting Gariba with axe because she was inside her house. According to her, when she heard some sound, she immediately rushed out and saw appellant standing near the body of her son having an axe in his hand. Appellant did not leave the place of incident. 11. Deepak (PW8) also deposed that he saw appellant assaulting deceased, but from his cross-examination, it appeared that he reached at the spot after the occurrence was over and he came to know from the people present at the spot that appellant killed the deceased. Evidence of this witness does not go to help the prosecution. 12. Another important witness Kishorilal (PW1), who happened to be the Kotwar of the village, and who lodged the first information report, stated that the wife of Fakru informed him that appellant killed Gariba with an axe. Immediately, when he reached at the place of occurrence, he saw appellant present with an axe and Gariba lying there tossing and squirming. He snatched the axe from the hand of appellant. When he asked appellant as to why he did so, he could say nothing, but said he thought it fit. He took Narayan to the house of Sarpanch and informed the incident to Sarpanch. He then went to police station and lodged the report Ex.P-1. 13. Investigating Officer Ram Kishore Goutam (PW6) recorded the first information report and went to spot. He took Narayan to the house of Sarpanch and informed the incident to Sarpanch. He then went to police station and lodged the report Ex.P-1. 13. Investigating Officer Ram Kishore Goutam (PW6) recorded the first information report and went to spot. According to him, on the same day, he arrested the appellant and on his information Ex.P-3 recovered and seized the axe from the bushes infront of the house of the appellant. 14. Learned counsel for the appellant submitted that the evidence of recovery of the axe at the instance of appellant was not reliable since Kishorilal (PW1) stated that he took the axe from the hand of appellant and that carried him to the house of Sarpanch. Independent witnesses about the information and the consequent recovery of the axe from the appellant viz. Sonelal (PW3) and Badri Prasad (PW10) did not support the prosecution story. In our opinion, learned Court below committed error in relying on the sole evidence of Inspector Ram Kishore Goutam (PW6) in this regard. It seems suspicious when the axe was taken by Kishorilal then how it could have been recovered at the instance of appellant. 15. The evidence of Kishorilal (PW1) and Bittan Bai (PW7) finds corroboration from the medical evidence of Dr. B.K. Sahu (PW9), who found an incised injury on the neck of Gariba. Evidence of Kishorilal (PW1) finds further corroboration from the first information report Ex.P-1 lodged by him soon after the occurrence. It is true that Sarpanch to whom appellant was said to have been taken by Kishorilal was not examined in the Court, but merely by his non examination, the evidence of Kishorilal was not rendered unreliable. Kishorilal (PW1) is an independent witness. Bittam Bai (PW7) is a rustic village woman. Her evidence appeared to be very simple, natural and consistent, smacking of no embellishment. She fairly admitted in cross-examination that she did not see appellant assaulting the deceased with axe, but she saw appellant standing just near her injured son having an axe in his hand. She stated that there was no enmity between her son and the appellant, therefore, she could say nothing as to why appellant killed her son. 16. She fairly admitted in cross-examination that she did not see appellant assaulting the deceased with axe, but she saw appellant standing just near her injured son having an axe in his hand. She stated that there was no enmity between her son and the appellant, therefore, she could say nothing as to why appellant killed her son. 16. After a careful appraisal of the evidence of Kishorilal (PW1) and Bittan Bai(PW7), we find that the trial Court committed no error in holding that it was appellant, who caused death of Gariba by assaulting him with axe on his neck. 17. The next question before us is whether the conviction of appellant under section 302 of the Indian Penal Code was justified. Learned counsel for the appellant submitted that there was no enmity or motive on the part of appellant to have committed murder of deceased. The incident was sudden. None had witnessed or spoken about the genesis of the incident. Kishorilal (PW1), who reached the spot soon after the occurrence, though stated in the Court that on his asking, appellant stated that he thought it fit, but in the first information report Ex.P-1 lodged by him, he mentioned that when he asked appellant why he did so, appellant told that Gariba abused him, therefore, he picked up axe from the house of Gariba and assaulted him. This piece of evidence is in the nature of an extra judicial confession to Kishorilal (PW1). It is true that Kishorilal (PW1) was not confronted with the first information report Ex.P-1, but he admitted that he lodged the said report at the police station and admitted his signature. Since this fact was disclosed by Kishorilal in the first information report, a document tendered by prosecution in the case, giving some indication about the genesis of the occurrence and throwing light on the mental condition of appellant, it could be taken into consideration for appreciating the situation under which the incident occurred. In the above fact situation, in our opinion, it could be gathered that appellant dealt one axe blow to deceased on being abused by him, suddenly by picking up the axe from the house of deceased itself. In these circumstances, in our opinion, the act of appellant fell within the ambit of the offence of culpable homicide not amounting to murder. In these circumstances, in our opinion, the act of appellant fell within the ambit of the offence of culpable homicide not amounting to murder. However, since the appellant wielded a weapon like axe and dealt its blow on the neck of deceased, it can be held with certainty that he assaulted deceased with an intention of causing death or of causing such bodily injury as was likely to cause his death making him liable to be punished under section 304I of the Indian Penal Code. 18. Accordingly, the conviction of appellant under section 302 of the Indian Penal Code as awarded by the trial Court is modified to section 304-I of the Indian Penal Code and his sentence is reduced to the period of sentence already undergone by him. Sentence of fine is set aside. Appellant is said to be in jail since 22.10.2001. He be released forthwith, if not required in any other case. 19. Appeal partly allowed. .............