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2014 DIGILAW 94 (CHH)

Madkami Budhra v. State of C. G.

2014-02-26

CHANDRA BHUSHAN BAJPAI, T.P.SHARMA

body2014
JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 09.10.2009 passed by Third Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 207/2007, whereby and where under the Additional Sessions Judge after holding the appellant guilty for causing homicidal death of his sister-in-law (elder brother's wife) Madkami Sukdi, amounting to murder, convicted him under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 300/-, in default of payment of fine, to further undergo rigorous imprisonment for one month. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned, and thereby committed illegality. 2. As per the case of the prosecution, on the fateful day of 07.9.07 at about 5.00 pm, Madkami Kosa and his wife Madkami Sukdi were taking drinks in their house. At that time, the appellant came there and asked for liquor. Since the appellant has already consumed excess liquor, deceased Madkami Sukdi refused to give him liquor. Upon which he felt angry and went to his house and came back with an axe and straightaway assaulted Madkami Sukdi over her head. After sustaining injury, there was profuse bleeding and the appellant fled away from there. Thereafter, injured Madkami Sukdi was taken to Primary Health Centre, Tongpal, where at midnight she died. Constable 483 Parmeshwar Thakur lodged morgue intimation vide Ex-P/4. Madkami Kosa, husband of the deceased lodged FIR at Police Station Kukanar. Police registered it as Ex-P/10. Dr. Kamal Singh (PW-10), Asst. Surgeon, Primary Health Centre, Thongpal examined the injured Madkami Sukdi and noticed one incised wound of 7.5" x 3.5" over the left side of the head. The injury was caused by hand and blunt object. Treating doctor gave his report vide Ex-P/6. After death of the deceased Madkami Sukdi, investigating officer left for scene of occurrence and after giving notice vide Ex-P/16, he conducted inquest over the dead body of the deceased vide Ex-P/17. The dead body of the deceased was sent for postmortem. Dr. Kamal Singh Sethe (PW-4) conducted autopsy upon written inquest by the police vide Ex-P/18. Postmortem report is Ex-P/7. Dr. Kamal Singh noticed following injuries: (1) One incised wound of 7" x 4" x 2 cm on the left side of the head. The dead body of the deceased was sent for postmortem. Dr. Kamal Singh Sethe (PW-4) conducted autopsy upon written inquest by the police vide Ex-P/18. Postmortem report is Ex-P/7. Dr. Kamal Singh noticed following injuries: (1) One incised wound of 7" x 4" x 2 cm on the left side of the head. (2) cut over temporal bone and blood clot was present over the injury. (3) fluid coming out from the head. Cause of death was due to severe hemorrhagic shock heading to cardio respiratory arrest. Death was prior to 30-36 hours of postmortem examination. Nature of death was homicidal. Spot map was prepared vide Ex-P/11. Patwari also prepared spot map vide Ex-P/1. Plain soil and blood stained soil were seized from the spot vide Ex-P/12. Axe was recovered at the instance of the appellant vide Ex-P/13. Blood stained clothes of the deceased were seized from her husband Madkami Kosa vide Ex-P/5. The axe was sent for taking opinion of the doctor as to whether the injuries found over the body of the deceased were caused by the said axe. Dr. Kamal Singh (PW-4) opined that injuries found over the body of the deceased can be caused by axe and his opinion is Ex-P/8. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur. 3. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Bastar at Jagdalpur, who in turn committed the case to the Court of Sessions. Learned Additional Sessions Judge received the case on transfer for trial. 4. In order to prove the guilt of the appellant, the prosecution has examined as many as 11 witnesses. The accused was examined under Section 313 of the Code, wherein he denied the circumstances appearing against him, pleaded innocence and false implication in crime in question. 5. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 6. We have heard learned counsel for the parties, perused the judgment impugned and records of the Courts below. 7. Learned counsel for the appellant vehemently argued that there is inconsistency in ocular and medical evidence. As per the statement of Dr. 6. We have heard learned counsel for the parties, perused the judgment impugned and records of the Courts below. 7. Learned counsel for the appellant vehemently argued that there is inconsistency in ocular and medical evidence. As per the statement of Dr. Kamal Singh Sethe (PW-4), injuries found over the body of the deceased were caused by hard and blunt object. On the other side, case of the prosecution is that the appellant assaulted his sister-in-law (bhabhi) by axe. With this there is suspicion that the injuries were inflicted by sharp edged weapon axe or by some other weapon. This creates suspicion. With this difference in ocular and medical evidence, the appellant is entitled for benefit of doubt. He further submits that even as per the case of the prosecution, this is a case of single blow without premeditation and without any clear motive for commission of offence, therefore, the act attribute to the appellant does not travel beyond the scope of Section 304 Part II IPC. He placed reliance on Sudhakar Vs. State of Maharashtra (2012) 9 SCC 725 , and the Supreme Court held that in the case of single blow of knife without premeditation, conviction would be under Section 304 Part-I IPC and not under Section 302 IPC. 8. On the other hand, learned Panel Lawyer for the State opposed the appeal and submitted that there is no inconsistency between the medical and ocular evidence. He draws attention over the medical examination of injured Madkam Sukdi (Ex-P/6) where nature of the injury was mentioned as incised wound by hard and sharp object. He also draws attention towards postmortem report (Ex-P/7) where the autopsy surgeon in his report gave the nature of injury as incised wound. Eye witnesses have also stated that the appellant caused injuries over deceased Madkami Sukdi by axe, which is a sharp and hard object. The axe was seized at the instance of the appellant and the doctor gave his opinion vide Ex-P/8 that the injuries caused over the body of the deceased could be by seized axe. On behalf of the State there is no inconsistency and also as per the story of the prosecution, when the deceased refused to provide liquor to the appellant, the appellant went to his house, came with an axe and assaulted the deceased. On behalf of the State there is no inconsistency and also as per the story of the prosecution, when the deceased refused to provide liquor to the appellant, the appellant went to his house, came with an axe and assaulted the deceased. This act attributed to the appellant clearly indicates that he had intention to kill the deceased. On behalf of the State it is submitted that the prosecution has successfully proved its case and discharges its burden. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 10. In the present case, homicidal death of deceased Madkami Sukdi, as a result of injury found over the head of the deceased, has not been substantially disputed on behalf of the appellant, even otherwise, from the evidence of Dr. Kamal Singh (PW-4), postmortem report (Ex-P/7) and also from the evidence of Madkami Kosa (PW-5), Hidma (PW-6) and Hadme (PW-7), the eyewitnesses, it is established that death of the deceased was homicidal in nature. 11. As regards complicity of the appellant in committing the crime in question, the prosecution has examined three eye witnesses, Madkami Kosa (PW-5), Hidma (PW-6) and Hadma (PW-7). As per their statement, the deceased and her husband Madkami Kosa were in their house. The appellant came with axe and assaulted Madkami Sukdi over her head. The injured was immediately taken into Primary Health Centre, Tongiapal, where at midnight, she died. All the three witnesses clearly stated the act of the appellant. 12. Defence has cross-examined these witnesses at length, but their statement over the incident remain trustworthy, acceptable and truthful. Nothing came in the cross-examination of these eyewitnesses so that any suspicion could be held over the incident. We are of the considered view that evidence of all these three eye witnesses inspire confidence and their statement should be accepted. 13. As regards material contradiction and inconsistency between the medical and ocular evidence, upon perusal of the statement of Dr. Kamal Singh (PW-4), in para 2, he has stated that he noticed incised wound caused by hard and blunt object. Upon perusal of medical evidence (Ex-P/6), it is clear that the weapon used for commission of crime was hard and sharp and also in the postmortem report (Ex-P/7), the doctor termed the nature of wound as incised. Kamal Singh (PW-4), in para 2, he has stated that he noticed incised wound caused by hard and blunt object. Upon perusal of medical evidence (Ex-P/6), it is clear that the weapon used for commission of crime was hard and sharp and also in the postmortem report (Ex-P/7), the doctor termed the nature of wound as incised. Both the documents regarding injury report and postmortem report, nowhere it is mentioned that the injuries were caused by hard and blunt object, hence the word appeared in examination-in-chief of Dr. Kamal Singh (PW-4) kade evam bhotare (hard and blunt) simply can be termed as not acceptable since the nature of injury is incised and the weapon used is hard and sharp indicated in the medical examination report and in the postmortem report. Also at the time of giving information vide Ex-P/8, autopsy surgeon opined that injury found over the body of the deceased could be caused by seized axe. Therefore, we are of the view that there is no inconsistency and contradiction between the medical and ocular evidence. 14. As regards the submission of learned counsel for the appellant that the case of the appellant falls within the ambit of Section 304 Part-II IPC or Section 304 Part-I IPC, it is true that only one blow was caused to the deceased by the appellant when the deceased refused to provide liquor to him. The appellant was in a condition to inflict more than one blows, because he was having axe and on the other hand both Madkami Kosa and Madkami Sukdi were unarmed. It is undisputed that the appellant is brother-in-law (devar) of the deceased, there was no previous enmity. It indicates that he has no premeditation, he simply inflicted injury over the head of the deceased on account of refusal to provide liquor. The appellant had not taken undue advantage or has not acted in an unusual manner. We are of the considered view that the act attributed to the appellant squarely falls within the ambit of Section 304 Part-I IPC and not under Section 302 IPC. Since the incident took place without premeditation upon refusal to provide liquor to the appellant, we are of the view that this a case of culpable homicide not amounting to murder, but the murder falls under the category of exemption 4 of Section 300 IPC. Since the incident took place without premeditation upon refusal to provide liquor to the appellant, we are of the view that this a case of culpable homicide not amounting to murder, but the murder falls under the category of exemption 4 of Section 300 IPC. Evidence adduced on behalf of the prosecution is not sufficient to establish that the appellant has committed culpable homicide amounting to murder. But the act of the appellant squarely falls within the ambit of Section 304 Part-I IPC, therefore, while convicting the appellant under Section 302 IPC, the trial Court has not considered this aspect and has thereby committed illegality. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 IPC is altered to Section 304 Part-I IPC and the appellant is hereby sentenced to undergo for the period already undergone by him. He is in jail since 12.9.2007. He be released forthwith, if not required in any other case.