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Madhya Pradesh High Court · body

2017 DIGILAW 1028 (MP)

Ramchandra v. State Of M. P.

2017-09-22

ANJULI PALO, VANDANA KASREKAR

body2017
JUDGMENT : ANJULI PALO, J. This appeal has been preferred by the accused/appellant under section 374 of Code of Criminal Procedure against the judgment of conviction dated 16th September, 2005 passed by First Additional Sessions Judge, Harda in Sessions Trial No. 119/2004, whereby the appellant was convicted under section 302 of Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs. 1,000/-, in default of payment of the fine amount, further rigorous imprisonment of six months. 2. In brief, the prosecution story is that, on 16-12-2003 at about 7:00 a.m. near Gram Panchayat Bhawan at Village Balgaon, the deceased Ayodhya Bai was collecting cow-dung in front of her house. The co-accused/wife of the appellant namely Kanta Bai raised an objection that cow-dung belongs to her. At this point of time, quarrel started between them. At that time, the appellant came there armed with an Axe, with an intention to kill Ayodhya Bai. He gave a Axe blow on the neck of the deceased-Ayodhya Bai. Ayodhya Bai died on the spot. The matter was informed to the Police. An FIR was registered at Police Station Rahatgaon, District Harda under section 302 of Indian Penal Code against the appellant. After the investigation, a charge-sheet was filed before the competent Court. 3. After committal of the case, the trial Court conducted the trial. Learned trial Court framed charge against the accused/appellant under section 302 of Indian Penal Code. Appellant abjured his guilt and stated that he was falsely implicated by the complainant. After relying on the testimony of Mohan Lal (PW5) (husband of the deceased) which was corroborated by the testimony of Bholaram (PW6), Alkabai (PW7), Rajesh (PW8) and also with the medical evidence, learned trial Court held that the appellant has caused the death of the deceased by inflicting a blow with an Axe on her neck. Hence, the appellant was convicted under section 302 of Indian Penal Code and sentenced for life imprisonment and a fine of Rs. 1,000/-, in default of payment of the fine amount, further rigorous imprisonment of six months. 4. This appeal has been filed by the appellant on the grounds that learned trial Court wrongly convicted the appellant on the basis of contradictory evidence given by the prosecution witnesses, who are near relatives of the deceased and that no independent eyewitnesses to the incident have been examined. 4. This appeal has been filed by the appellant on the grounds that learned trial Court wrongly convicted the appellant on the basis of contradictory evidence given by the prosecution witnesses, who are near relatives of the deceased and that no independent eyewitnesses to the incident have been examined. Further, the trial Court has not considered the evidence of defence witnesses. Hence, the impugned judgment is liable to be set aside and the appellant may be acquitted from the charges. Co-accused Kanti Bai, wife of appellant, had died during the pendency of the trial. 5. Heard learned counsel for the parties. Perused the record. 6. It is not in dispute that appellant is the son of the sister-in-law of the deceased and both were residing opposite to each other. It was also not in dispute that the relations between the parties are not cordial. The conviction of the appellant is based on the evidence of the close relatives. Alka Bai (PW7) (daughter-in-law of the deceased) and Mohan Lal (PW5) (husband of the deceased) were eyewitnesses of the incident. The said incident occurred at about 7:00 a.m., at that time the presence of the aforesaid witnesses are not doubtful. At that point of time, Mohan Lal (PW5) (husband of the deceased) aged about 70 years was sitting in front of his house and his presence was also corroborated by the testimony of Ramdas (PW2). Ramdas (PW2) is independent eyewitness, who also saw the whole incident and corroborated the testimony of Mohan Lal (PW5) and Alka Bai (PW7). 7. All witnesses stated that at the time of the incident, co-accused Kanti Bai (wife of the appellant) was collecting cow-dung in front of her house and at the same time, the deceased Ayodhya Bai was also collecting cow-dung from that place, therefore, dispute arises between them. As per the testimonies of Ramdas (PW-2) and Alka Bai (PW7), both had quarreled with each other and scuffled with each other, then the appellant suddenly came there with an Axe and inflicted single blow therewith on the neck of the deceased by full force. Thereafter, Rajesh (PW8) and Bhola Ram (PW6), sons of the deceased, had seen the deceased in an injured condition. Rajesh (PW8) also saw that the appellant was running over with an Axe from the scene of occurrence. 8. Thereafter, Rajesh (PW8) and Bhola Ram (PW6), sons of the deceased, had seen the deceased in an injured condition. Rajesh (PW8) also saw that the appellant was running over with an Axe from the scene of occurrence. 8. On the aforesaid evidence, learned trial Court held that the eyewitnesses saw and proved that the deceased was killed by the appellant with an Axe. The Axe, the weapon of offence, was seized from the possession of the appellant. Further in FSL report, blood stains were found on the Axe which confirmed that the aforesaid Axe was used for committing the murder of the deceased by the appellant. 9. Learned counsel for the appellant has placed reliance on the decision of the Supreme Court in Sangili @ Sanganathan vs. State of Tamil Nadu, (2014) 10 SCC 264 ; which is not applicable in this case. 10. Further, we find that there is no contradiction between the ocular testimony and the medical evidence. Dr. R. K. Garg (PW1) properly proved that the deceased was killed due to the injuries caused by the appellant by an Axe on the vital part of the neck. 11. Learned counsel for the appellant contended that in fact, the appellant inflicted single blow on the neck of the deceased with extreme force, therefore, the medical expert found other injuries over left shoulder and right forearm. It appears that there is some contradiction with regard to the number of injuries but in this case such contradiction is not adversely affected the prosecution case. In such situation, the testimony of eye witnesses shall prevail over the medical evidence. Every eyewitness deposed that the appellant inflicted single blow with an Axe on the deceased’s neck. Learned counsel for the appellant explained that due to the force of blow, incised wound was caused on the shoulder upto right arm whereby the neck was deeply injured. We are of the considered view that the above findings recorded by the trial Court are in accordance with the evidence on record. There is no perversity or illegality in the findings recorded by the learned trial Court. 12. Keeping in view the statements of eyewitnesses, we are with the agreement of the aforesaid contention. We are of the considered view that the above findings recorded by the trial Court are in accordance with the evidence on record. There is no perversity or illegality in the findings recorded by the learned trial Court. 12. Keeping in view the statements of eyewitnesses, we are with the agreement of the aforesaid contention. Learned counsel for the appellant also contended that in the above circumstances, the case comes under the purview of Exception 4 to section 300 of Indian Penal Code and act of the appellant covered under section 304 Part-I of Indian Penal Code. 13. We also find that there is no provocation or planning and some domestic dispute was happened between the ladies which were taken seriously. Therefore, in a spur of moment, the appellant caused single fatal injury by single blow with an Axe over the vital part of neck of the deceased. Therefore, the appellant is liable to be convicted under section 304 Part-I of Indian Penal Code as the prosecution had failed to prove premeditation. Exception 4 to section 300, Indian Penal Code which provides — “Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 14. Present case is also a case where the death is due to a sudden fight and there is no premeditation. 15. In this view of the matter, we are of the considered opinion that the case would fall under Part I of section 304, Indian Penal Code. Accordingly, the conviction is modified from under section 302, Indian Penal Code to conviction under section 304 Part I, Indian Penal Code and instead of life imprisonment, the appellant is sentenced to 10 years’ R.I. with fine of Rs. 1000/-. In case if fine amount is not paid, three months’ R.I. 16. In the result, the appeal is partly allowed. 17. It is informed that the appellant is in custody since 18-12-2003. As the appellant has already undergone the entire custodial sentence, he be released forthwith if not required in any other case.