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2018 DIGILAW 396 (MP)

Gopali @ Gopal v. State of M. P.

2018-04-11

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Gangele, J.--1. Appellant has filed this appeal against the judgment dated 29.4.1995 passed in Sessions Trial No. 705/1994. 2. Appellant was prosecuted for commission of offence of murder and under section 324 of IPC along with one co-accused. The trial Court held appellant guilty for commission of offence punishable under sections 302 and 324 of IPC and awarded sentence of life and R.I. for one year respectively. The trial Court further observed that both the sentences shall run concurrently. 3. Prosecution story in brief is that the deceased along with his wife Ramrati Bai had gone at well to fetch water. Accused also came there. Appellant insisted that he was first, hence, he will fetch water from the well first. On this ground there was dispute between the appellant and deceased. Both had abused each other thereafter, accused/ appellant had inflicted injuries by iron rod on the head of the deceased and other parts of the body. Wife of the deceased tried to save the deceased, appellant had also beaten her. The deceased was taken to police station where wife of the deceased lodged report Ex. P/1. He was admitted in the hospital. Subsequently, the deceased was died on 14/05/1994. Police conducted investigation and filed charge-sheet. Appellant abjured his guilt and pleaded innocence. 4. PW-1 Ramrati Bai is the wife of the deceased. She deposed that I went along with my husband to fetch water from well. There were two wheels fitted at the well to fetch water. Both accused persons were fetching water from the well from both wheels. I waited 15 to 20 minutes for my turn. Thereafter my husband came there then my husband told the appellant that I would also fetch water. On that, appellant abused my husband and there were talks between my husband and appellant. In that event appellant had taken out an iron rod from the wheels and inflicted injuries at my husband. I tried to save my husband, appellant had also inflicted injuries to me. Thereafter other villagers came on the spot. I had taken the deceased to the police station and lodged report. Deceased was referred to hospital. He was admitted there, after 48 hours he was died. 5. PW-2 Durga Prasad, another witness. I tried to save my husband, appellant had also inflicted injuries to me. Thereafter other villagers came on the spot. I had taken the deceased to the police station and lodged report. Deceased was referred to hospital. He was admitted there, after 48 hours he was died. 5. PW-2 Durga Prasad, another witness. He deposed that I was sleeping and I had heard sound of quarrel, thereafter I came out and I came to know that appellant had inflicted injuries to the deceased. 6. PW-5 Batto Bai, deposed that I was also present at the well because I had gone there to fetch water and witnessed that appellant had been beating the deceased by iron rod. 7. PW-8 another witness Kusum Bai also deposed that I was present at the well and appellant had inflicted injuries on the head of the deceased by iron rod. 8. PW-3 Dr. Arvind Chodha, deposed that on 12.5.1994 I was posted as Assistant Surgeon, I examined Ramrati Bai and noticed following injury on her person of the body. One lacerated wound 1”x2”x1/4” at left hand. Injury was simple in nature. 9. PW-11 Dr. T.N. Khare, who performed autopsy of the deceased on 14.5.1994. He deposed that I noticed following injuries on the persons of the body of the deceased : (1) One lacerated wound 1”x1/2” parallel to left eye. (2) One crush injury 1”x1/2” muscle deep below to left eye. (3) One crush injury 1”x1/2” muscle deep below to right eye. (4) One crush injury 2”x1/4” muscle deep right side of skull occipital region. (5) One crush injury 1/2”x1/2” lingering on right hand. (6) Frontal bone of the head was broken and brain mater was coming out. On internal examination I noticed that deceased was died due to head injury. Injury could be caused from garra which was seized from the possession of the appellant. 10. PW-10 R.K. Pandey, investigating officer deposed that I was posted as Sub-Inspector at police station Tikuri on 12.5.1994. On the information given by Ramrati Bai report Ex. P-1 was registered. Deceased was sent for medical examination. I prepared spot map. On the memorandum of the appellant Ex. P-4 a rod was seized vide seizure memo Ex. P-5. He further deposed that I recorded statements of Kusum Bai, Ramkali Bai, Magniya Bai, Durga Prasad and sent seized articles for FSL. 11. P-1 was registered. Deceased was sent for medical examination. I prepared spot map. On the memorandum of the appellant Ex. P-4 a rod was seized vide seizure memo Ex. P-5. He further deposed that I recorded statements of Kusum Bai, Ramkali Bai, Magniya Bai, Durga Prasad and sent seized articles for FSL. 11. From the evidence of PW-1 an injured eye witness and evidence of other witnesses PW-5 and PW-8, this fact has been proved that the appellant had inflicted injuries by iron rod garra on the person of the body of the deceased. He had also inflicted injury to PW-1 Ramrati Bai. Deceased received injuries as per evidence of PW-1 injuries were antemortem in nature, hence, the deceased was died due to injuries inflicted by the appellant. 12. The next question is that what offence appellant has committed. The apex Court in the case of B.D. Khunte v. Union of India and others reported in (2015) 1 SCC 286 has held as under in regard to exception 1 to section 300 of IPC : 12. What is critical for a case to fall under Exception 1 to section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder : (1) The deceased must have given provocation to the accused. (2) The provocation so given must have been grave. (3) The provocation given by the deceased must have been sudden. (4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control. In the present case there was grave and sudden provocation. There was quarrel at the well, appellant was not pre-armed. In that quarrel he had taken out iron rod garra which was fitted earlier in the well and inflicted injuries on the person of the body of the deceased. Only one injury which was caused on head was fatal. In that event due to the aforesaid injury, deceased was died. There was quarrel at the well, appellant was not pre-armed. In that quarrel he had taken out iron rod garra which was fitted earlier in the well and inflicted injuries on the person of the body of the deceased. Only one injury which was caused on head was fatal. In that event due to the aforesaid injury, deceased was died. Hence, in our opinion, offence committed by appellant would fall under section 304 Part-I of the IPC. Appellant had caused injury to wife of the deceased, hence, the trial Court has rightly convicted the appellant for commission of offence punishable under section 324 of IPC. Consequently, appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial Court for commission of offnece punishable under section 302 of IPC is hereby set aside. He is convicted for commission of offence punishable under section 304 Part-I of IPC and awarded sentence of RI ten years. The conviction and sentence awarded by the trial Court for commission of offence punishable under section 324 of IPC is hereby upheld. Both the sentences shall run concurrently. Sentence of the appellant was suspended by this Court vide order dated 15.3.2002, he has suffered actual jail sentence of 8 years including remission more than 10 years, hence he has already undergone jail sentence as awarded by this Court. He is on bail, his bail bonds are discharged.