Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1019 (MP)

Jhumka Bai @ Ramkanya Bai v. State of M. P.

2014-08-14

S.R.WAGHMARE

body2014
JUDGMENT Waghmare, J. -- 1. By this appeal under section 374 of the CrPC, appellant Jhumka Bai @ Ramkanya Bai has challenged the judgment dated 26.8.1997 passed by the Sessions Judge, Dhar in Special Case No.498/1996 whereby the appellant has been convicted for offence under section 304II of the IPC and sentenced the appellant to undergo three years rigorous imprisonment with fine of Rs.5,000/-. In default of the payment of fine, the appellant was to undergo additional 6 months rigorous imprisonment. 2. Brief facts of the prosecution case are that on 23.10.1996 Khuman Singh s/o Sobhan filed a report at police station Naalcha that he was living in village Beda Berkheda and was a farmer and on the said day he was working in the field behind his house along with his wife Surajbai, sister-in-law Gulka Bai and wife of Karan Singh Radha Bai and they were plucking groundnuts. At around 3 p.m. when Khuman Singh went to drink water Jhumka Bai wife of Chhagan started hurling abuses at Gulka Bai. He also came to the spot. Jumkabai was accusing Gulka Bai as to why she was spoiling the name of her mother-in-law by calling Chhinal and a witch; and that is why Jhumka Bai hurled abuses in filthy language and she was wielding darata started assaulting Gulka Bai on the back and ribs by wrong side of the darata and she cast several blows. Khuman Singh reached there and tried to pacify the matter. As a result of the injury, blood started oozing out of the wound and she became unconscious. However, on hearing her shouts for help her brother Munna had come there and took up her the house and gave her some water to drink. However, Gulka Bai died. On the basis of the report, the offence was registered against the accused appellant under section 302 of the IPC and FIR was registered at Crime No.104/96 and the investigation was launched and the statements of the witnesses were recorded, spot map was prepared and merg was registered and dharata was sized from the spot itself. On completion of investigation, the accused was duly charged for offence under section 302 of the IPC and committed to her trial. 3. The accused/appellant abjured her guilt and stated that complainant Khumansingh tried to grab her land and therefore, she has been falsely implicated in the matter. On completion of investigation, the accused was duly charged for offence under section 302 of the IPC and committed to her trial. 3. The accused/appellant abjured her guilt and stated that complainant Khumansingh tried to grab her land and therefore, she has been falsely implicated in the matter. However, On the basis of the evidence on record, the trial Court has convicted and sentenced the appellant as herein above indicated. Being aggrieved, the appellant has filed the present appeal. 4. Learned Counsel for appellant has vehemently urged the fact that the conviction is contrary to the provisions of law. Counsel submitted that the appellant had been acquitted from the offence under section 302 of the IPC. Counsel submitted that there is no mensrea or intention to commit the crime as alleged by the prosecution and hence offence under section 304II of the IPC would not be made out against the appellant and at the most offence under section 325 of the IPC can be made out against the appellant. Counsel submitted that PW2 Khuman Singh was not a reliable witness since although he pretended to an eyewitness, according to his own deposition in Court he had stated that he had gone to drink water and he stated that Gulka Bai and Jhumka Bai were grappling and Jhumka Bai assaulted Gulka Bai with the wrong side of the darata and if the spot map Ex.P/5 is considered, the incident does not indicate that PW2 Khumansingh could have come on the spot on hearing the quarrel. The conduct of the PW2 Khuman Singh is unnatural as categorically held by the trial Court. Under the circumstance, Counsel for the appellant urged that the enmity cannot be marginalized. Counsel further urged in the impugned para 20 of the judgment the trial Court has categorically held that according to the statements of eye witnesses PW2 Khuman Singh, PW3 Radha Bai and PW4 Suraj Bai that when there was a dispute on the field that Jasodabai, motherinlaw of the present accused Jhumka Bai was in fact quarrelling with Gulka Bai, whereas accused Jhumka Bai came to the spot and snatched the darata from Gulka Bai and assaulted her with the wrong side of the darata. Moreover considering the medical evidence on record it was indicated that there was a rupture of spleen and the cause of death was due to syncope and shock. Moreover considering the medical evidence on record it was indicated that there was a rupture of spleen and the cause of death was due to syncope and shock. And thus, Counsel submitted that the offence under section 304 (PartII) cannot be made out against the present appellant. Counsel also referred to the fact the FIR and merg registered were under doubtful circumstances and ought not to be relied for conviction. Besides Counsel also raised the ground that there was enmity and that PW2 Khuman Singh grabbed the land belonged accused appellant Jhumka Bai. And that all the eye witnesses are the related witnesses and had exaggerated the incident. Hence, Counsel prayed that the impugned judgment of the trial Court be set aside and the appellant be acquitted from the offence. In the alternate Counsel submitted that at the most the offence one under section 325 of the IPC would be made out against the appellant and the appellant has already undergone some portion of the sentence. Moreover, Counsel contended that the material witnesses of the prosecution i.e. PW2 Khuman Singh, PW3 Radha Bai and PW4 Suraj Bai were not at all reliable and the fact that the accused appellant Jhumka Bai was being harassed and hence she snatched the darata from the hands of Gulka Bai. It indicates that there was no intention to cause the death of Gukla Bai and Counsel submitted that the offence at the most would be under section 323 of the IPC since initially none of the injuries was also declared to be grievous. It is only on internal examination in postmortem that Dr. M.K. Dhakad, PW1 has found that the spleen was ruptured. Hence, Counsel placed reliance in the matter of Dnyaneshwar v. State of Maharashtra: 1982 CRI.L.J. 1870. Counsel submitted that the Court had in the said case converted the offence from one under section 304 (PartII) to under section 323 of the IPC. Hence, Counsel prayed that similar benefit be granted to the present appellant also. 5. Learned Counsel for respondent/State, on the other hand, has fully supported the impugned judgment of the trial and has submitted that judgment is in accordance with law and it is based on proper marshalling of evidence and does not require any interference. Hence, Counsel prayed that similar benefit be granted to the present appellant also. 5. Learned Counsel for respondent/State, on the other hand, has fully supported the impugned judgment of the trial and has submitted that judgment is in accordance with law and it is based on proper marshalling of evidence and does not require any interference. The trial Court had itself reduced the offence from 302 to 304 (PartII) of the IPC since it was not satisfied regarding intention of the accused to commit the murder and urged that the appellant did not deserve any further sympathy. Hence he prayed that the appeal be dismissed. 6. On considering the above submissions and the material available on record, I find a single question arises for consideration in this appeal is whether the offence would fall under section 304 (PartII) of the IPC considering the evidence on record ? Hence, it is utmost importance to consider the post-mortem report. According to Dr. M. K. Dhakad, PW1 and the postmortem report Ex.P/1 the cause of death of Gulka Bai is “due to syncope due to shock may be due to injured spleen on vital part of the body”; thereby indicating that there was a rupture on spleen. Serial No.7 of the postmortem indicates that there was congestion with contracted torn and right lower inner part measuring about 1”×1”× ½” in oblique and the peritoneal cavity was found to be full of blood and the ruptured site found plugged with clotted blood. When these two facts are considered in juxta position it is obvious that the anti-mortem external injuries did not indicate any grievous injury. Injury No.3 is as follows : Anti-mortem contusional marks on over her lower of both inside of chest on spleenic and hepatic area goes downwards in vertical manner each measuring by 3” × 1”. And thus, there is some substance in the objections and in the argument put forth by the Counsel for the appellant. Injury No.3 is as follows : Anti-mortem contusional marks on over her lower of both inside of chest on spleenic and hepatic area goes downwards in vertical manner each measuring by 3” × 1”. And thus, there is some substance in the objections and in the argument put forth by the Counsel for the appellant. In this context even in the testimony of eye witnesses is considered, PW2 Khuman Singh, PW3 Radha Bai and PW4 Suraj Bai, it has been unanimously declared that the darata was used by the wrong side by the accused and it was snatched from the hands of deceased Gulka Bai and in this regard it cannot be said that the accused appellant had gone on the agricultural field with the intention to cause the murder of Gulka Bai. The weapon itself has been seized from the hands of the accused, on the spur of the moment, or in the heat of the dispute; and in this sense it can be said that there was no intention to cause death of Gulka Bai. Moreover, primarily the postmortem also indicates that the injury No.3 on the external body was merely a contusion, however, deceased Gulka Bai had suffered a rupture of the spleen. Hence, I find that the impugned judgment needs to be set aside regarding the conviction of the accused Jhumka Bai for offence under section 304 Part II of the IPC by also placing reliance on the judgment passed by this Court in the matter of Amarsingh S/o Bhanwarji v. State of M.P. {Criminal Appeal No.971/1996} decided on 20.4.2012. And in that appeal the Court had found that the doctor had admitted that none of the ribs of the deceased were broken and the accused was responsible for causing three injuries and the said injury could not have been categorized as being dangerous to life and the Court had set aside the offence accused may be convicted for offence under section 325 of the IPC instead of 304 (Part II) of the IPC. The Court had also relied on 1997 (1) MPLJ Note 19 Page 17 Badami v. State of M.P.; 2000(II) MPWN 204 – Narayan v. State of M.P.; 2003 CrLJ 1663 Raj Ghanshyam v. State of Rajasthan; 1995 CrLJ 914 Bbj. Shailesh v. State and 1996 CrLJ 2398 Orissa Khagpati v. State. The Court had also relied on 1997 (1) MPLJ Note 19 Page 17 Badami v. State of M.P.; 2000(II) MPWN 204 – Narayan v. State of M.P.; 2003 CrLJ 1663 Raj Ghanshyam v. State of Rajasthan; 1995 CrLJ 914 Bbj. Shailesh v. State and 1996 CrLJ 2398 Orissa Khagpati v. State. Thus, in the present appeal also I find that the accused appellant used the darata by the wrong side and hence the act by the accused Jhumka Bai cannot be termed as culpable homicide, or amounting to offence punishable under section 304 (Part II) of the IPC. Under the circumstance the accused appellant Jhumka Bai can be held to be guilty for offence under section 325 of the IPC. 7. Resultantly, the conviction for offence under section 304 (PartII) of the IPC is set aside and the accused appellant is convicted for offence under section 325 of the IPC. However, the alternate prayer of the counsel for the appellant is reasonable and limited and thus allowed, in the interest of justice and the custodial sentence for offence under section 325 of the IPC is reduced to the period already undergone. The fine amount is however, enhanced further by Rs.10,000/- which shall be given to the legal representatives of the deceased Gulka Bai within a period of two months from the date of this order. On failure to pay the fine within the stipulated period and the appellant shall undergo the remaining sentence as directed by the lower Court. 8. With these observations and directions, the appeal is partly allowed to the extent herein above indicated. Appellant is on bail, her bail bond and surety bond are hereby discharged. A copy of this judgment be sent to the concerned trial Court for compliance and compliance report in writing be filed before this Court.