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2013 DIGILAW 846 (MP)

Barro Bai @ Leela Bai v. State of M. P.

2013-07-23

AJIT SINGH, B.D.RATHI

body2013
JUDGMENT B.D. Rathi, J. 1. This common judgment shall govern the disposal of both the appeals as they have arisen out of the same impugned judgment. The above named appellants have been convicted for an offence under Section 302 read with Section 34 of the Indian Penal Code (for short "the IPC") for committing the murder of Chokhelal on 13-7-2004 at 1.00 p.m. at Village Mangudiya, and sentenced to undergo imprisonment for life with fine stipulation. The impugned judgment dated 17-11-2006 was passed by VII Additional Sessions Judge, Jabalpur in Sessions Trial No. 640/2004. 2. According to the prosecution case, Chamanlal lodged a report that on 13-7-04, at about 1.30 p.m., while he was there in his home, daughter of Bhagirath came and informed that Chokhelal had been assaulted jointly by Bhure, Chippu and Gayadeen with lathis and was lying near Rethra Hand-pump. Chamanlal immediately rushed towards the spot and found that Chokhelal was lying on the ground and blood was oozing from his head. On his query as to assailants, Chokhelal informed that when he was going to lodge report of Bhure with regard to the altercation in the backdrop of Chokhelal prohibiting Bhure from letting Bhure's cattle graze in his paddy field, Bhure, Chippu and Gayadeen assaulted him with lathis on his head and hand near the Rethra Hand-pump and the incident was witnessed by some inhabitants of the locality. Saying this, Chokhelal fell unconscious. 3. Thereafter, Chokhelal was shifted to Hospital. Injury report (Exh. P-13) was prepared by Dr. H.P. Singh (P.W. 6). He found lacerated wounds, one on the right parietal region, second on the left parietal region and third on the right middle finger. At that time also, Chokhelal was unconscious. Chokhelal died on 15-7-2004 during the course of treatment. Autopsy was conducted by Dr. Ashok Jain (P.W. 13) and after recording of evidence of material witnesses and on completion of the investigation, charge-sheet was filed. 4. During the trial, the appellants pleaded not guilty to the charges and contended that they had been falsely implicated. 5. Learned Counsel on behalf of the appellants argued that the Trial Court has wrongly held that appellant-Barro Bai was also involved in committing the murder of Chokhelal. According to him, the evidence of material witnesses is not in conformity with the recitals of the First Information Report (for brevity "FIR"). 5. Learned Counsel on behalf of the appellants argued that the Trial Court has wrongly held that appellant-Barro Bai was also involved in committing the murder of Chokhelal. According to him, the evidence of material witnesses is not in conformity with the recitals of the First Information Report (for brevity "FIR"). It was also submitted that Deena (P.W. 5) was the only independent eye-witness and he was declared hostile. Therefore, on the basis of evidence of interested witnesses full of contradictions and omissions, her conviction cannot be sustained. So far as the case of other appellants is concerned, it was argued that they had entered into a sudden and unpremeditated quarrel with Chokhelal and he was assaulted by lathis without any intention to kill him, therefore, in the interests of justice, it would be just and proper that their conviction is altered to one under Section 304Part II of the IPC and sentenced accordingly. 6. On the contrary, learned Government Advocate, while making reference to the incriminating pieces of evidence on record, submitted that the convictions are well-merited and, no interference with the impugned judgment is called for. 7. Having regard to the arguments advanced by the parties, we have perused the evidence and material on record. 8. Author of the FIR, Chamanlal (P.W. 2) deposed that FIR (Exh. P-3) was lodged by him. The FIR does not contain the name of Barro Bai. It was lodged on the basis of oral dying declaration. All the facts which were narrated by declarant to Chamanlal were mentioned in FIR. The presence of independent eye-witness Deena was proved by Yashodabai (P.W. 1) in Paragraph No. 3 of her evidence. Deena has not deposed anything against the appellants and he was declared hostile. 9. As per the statement of Yashodabai, when Chokhelal restrained Barro Bai from grazing her cattle in his field, Barro Bai started pelting stones and Chokhelal returned to his house. Barro Bai also reached to the house of Chokhelal and assaulted him by the wooden plank but this fact was not mentioned in the FIR. Besides this, Yashodabai also deposed that deceased was beaten twice, first at her house and second time near the Peepal tree situated near the hand-pump, but Chamanlal stated that deceased was assaulted only at hand-pump. Barro Bai also reached to the house of Chokhelal and assaulted him by the wooden plank but this fact was not mentioned in the FIR. Besides this, Yashodabai also deposed that deceased was beaten twice, first at her house and second time near the Peepal tree situated near the hand-pump, but Chamanlal stated that deceased was assaulted only at hand-pump. On the information given by Kamini Devi (P.W. 12), child witness, Chamanlal reached on the spot (near the hand-pump) whereby entire story was narrated by Chokhelal. If deceased was beaten twice, then certainly this fact ought to have been told to Chamanlal and thereafter, mentioned in the FIR, but it appears that deceased was not beaten at the house by appellant Barro Bai, therefore, the child witness Kamini Devi, is also not trustworthy. 10. Yashodabai deposed in her evidence that deceased was beaten by wooden plank and that plank was snatched by her. Afterwards, the same was seized by Police vide seizure memo (Exh. P-2). But as per the Forensic Science Lab report (Exh. P-21), no blood stains were found on the said wooden plank. 11. On the aforesaid premises, we are of the considered view that Barro Bai did not commit any offence, therefore, her conviction cannot be sustained. 12. As per the prosecution story mentioned in FIR (Exh. P-3), Chokhelal was assaulted when he was going to lodge report, meaning thereby, that there was an unpremeditated quarrel with the deceased. He was not assaulted by any sharp edged weapon and after wielding two lathi blows, appellants Bhure, Chippu and Gayadeen fled. It reveals that they had no intention to kill Chokhelal, otherwise, he would have been dealt with more lathi blows. 13. Having regard to the facts and circumstances of the case, in our considered opinion, the act committed by the appellants Bhure, Chippu and Gayadeen would fall under Section 304 Part II of the IPC and not under Section302 of the IPC. Resultantly, both the appeals are allowed in part. We set aside the conviction and consequent sentences of appellant-Barro Bai and acquit her of the offence. Her bail bonds stand discharged. Fine amount, if deposited by her, be refunded. Resultantly, both the appeals are allowed in part. We set aside the conviction and consequent sentences of appellant-Barro Bai and acquit her of the offence. Her bail bonds stand discharged. Fine amount, if deposited by her, be refunded. Convictions and consequent sentences of the appellants Bhure, Chippu and Gayadeen, under Section 302 read with Section 34 of the IPC are also set aside, instead, they are convicted under Section 304 Part II of the IPC and sentenced to undergo rigorous imprisonment for 61/2 years and to pay a fine of Rs. 2000/- each, in default to suffer RI for six months. Fine amount, if already deposited, be refunded after adjustment.