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2018 DIGILAW 397 (MP)

Varsingh v. State of M. P.

2018-04-11

S.C.SHARMA, S.K.AWASTHI

body2018
JUDGMENT Awasthi, J.--1. Appellant has preferred the present appeal being aggrieved by the judgment of conviction dated 7.7.2008 passed by Additional Sessions Judge, Jobat in Sessions Trial No. 132/2006 by which the appellant has been convicted for the offence punishable under section 302 of the IPC and sentenced to life imprisonment with fine of Rs. 300/- with further default stipulation. 2. Prosecution story in short is that on 21.4.2006 at about 10 p.m. when complainant Anu and his son were sleeping outside their house, tape recorder was playing in the house of accused/appellant Varsingh, who was residing in front of the house of the complainant and deceased Nankia s/o Sursingh and Madan were dancing to the tune of the tape recorder. At that time accused/appellant Varsingh came with a wooden stick and told Nankia that you were always demanding share of the land and today I would kill you. Then he gave 2-3 blows of wooden stick on the head of deceased Nankia due to which he fell down and succumbed to the injuries. After the incident the matter was reported to Police Station Bhabhra, district Jhabua and on the basis of the report, Police registered FIR bearing Crime No. 81/2006 for the commission of offence punishable under section 302 of the IPC. During investigation A.S.I. Narendra Singh Sengar (PW-10) visited the village Bhabhra and prepared Lash Panchnama of the deceased Nankia. Thereafter, the body of the deceased was sent for post-mortem. He prepared the spot map, took plain as well as blood stained soil from the spot and prepared seizure memo Ex.P-6. He recorded the statement of the witnesses, arrested the appellant/accused, recorded his memo under section 27 of the Evidence Act and recovered the wooden stick which was used for the commission of the offence. After completion of the investigation, charge sheet was filed before the JMFC, Jobat who committed the case to the Court of Sessions and ultimately it was transferred to A.S.J, Jobat. 3. The appellant abjured his guilt and took a plea that he is innocent and was falsely implicated in the matter. In his defence he examined Ganubai @ Galubai (DW-1). 4. 3. The appellant abjured his guilt and took a plea that he is innocent and was falsely implicated in the matter. In his defence he examined Ganubai @ Galubai (DW-1). 4. To bring home the charge proved, prosecution examined ten witnesses including Madiya (PW-1), complainant Anu (PW-2), Ramesh (PW-3), Devisingh (PW-4), Dr.Fattesingh (PW-5), Madan (PW-6), Chagan (PW-7), Ida (PW-8), Desingh (PW-9) and Investigating Officer (PW-10), out of which Chagan, Ida and Desingh have not supported the prosecution story and turned hostile. 5. The Additional Sessions Judge after considering the evidence adduced by the prosecution convicted and sentenced the appellant as mentioned above. 6. We have heard learned counsel for the parties at length and perused the record. 7. First of all it is to be considered that whether the death of Nankia was homicidal in nature or not. In this connection the evidence given by Dr. Fattesingh (PW-5), who performed the post-mortem of body of the deceased and gave his report Ex.P-8, may be considered. He found the following injuries on the body of the deceased. Lacerated wound over parietal region of the head measuring 3” x 2” Lacerated wound measuring 2” x 1” over forehead. On opening of the body, he found that left parietal bone of the deceased was broken with rupture of parietal lobe of brain measuring 2” x 1”. There was fracture of frontal bone with laceration from lobe of brain. The nasal bone was also fractured and the injuries were caused by hard and blunt object. According to the doctor Fattesingh, the deceased Nankia died due to head injury. He gave his opinion that the death of the deceased was homicidal in nature. The opinion given by the doctor Fattesingh cannot be discarded inasmuch as such injuries neither could be caused in any accident nor could be self inflicted, therefore, the death of deceased Nankia was neither accidental nor suicidal, hence it was homicidal in nature. 8. Now the question remains who has caused the death of deceased Nankia. According to the complainant Anu (PW-2), 14 months ago at about 10 p.m. he and his son were sleeping outside their house and tape recorder was playing in the house of accused/appellant Varsingh, who was residing in front of the house of the complainant. 8. Now the question remains who has caused the death of deceased Nankia. According to the complainant Anu (PW-2), 14 months ago at about 10 p.m. he and his son were sleeping outside their house and tape recorder was playing in the house of accused/appellant Varsingh, who was residing in front of the house of the complainant. Deceased Nankia s/o Sursingh and Madan were dancing to the tune of the tape recorder, at the same time accused/appellant Varsingh came with a wooden stick and gave 2-3 blows of wooden stick on the head of deceased Nankia. When he raised alarm Madan and Ramesh came there and they took Nankia to his house. After a while Nankia succumbed to his injuries. He further deposed that Nankia was demanding his share on the disputed land due to this enmity Varsingh killed Nankia. Thereafter, he went to Police Station Bhabhra where the FIR Ex.P-2 was lodged. 9. On a similar way Ramesh (PW-3) has stated that around 14 months back in the night at about 10 p.m. when he was at the house of Desingh, Madan (PW-6) came there and informed him thatVarsingh was beating his father. Then immediately he reached the place of occurrence and found that Nankia was lying there in injured condition. He sustained injuries on his head and parietal region. The blood was oozing from his mouth. Madan and Anu took him to the house. After some time he succumbed to his injuries. Madan told him that tape recorded was playing in the house of Varsingh and he was dancing to the tune of the tape recorder and at the same time accused Varsingh came there and killed Nankia. 10. Madiya (PW-1) deposed that when he got information that Nankia has died, he went to the house of Nankia and saw that there was injuries on his head and blood was oozing from his wounds but did not know how he has died. 11. The incident took place on 21.4.2006 at about 10 p.m. in the night. The FIR of the incident was lodged at about 2.30 a.m. on 22.4.2006 i.e. within 4½ hours of the incident whereas the place of occurrence was 6 kms. away from the Police Station Bhabhra, hence the FIR was lodged within reasonable time which confirmed the evidence given by the complainant and eye-witness of the incident Anu (PW-2). The FIR of the incident was lodged at about 2.30 a.m. on 22.4.2006 i.e. within 4½ hours of the incident whereas the place of occurrence was 6 kms. away from the Police Station Bhabhra, hence the FIR was lodged within reasonable time which confirmed the evidence given by the complainant and eye-witness of the incident Anu (PW-2). Although there was a lengthy crossexamination of this witness, however, nothing was brought out and his evidence is natural and did not create any doubt as to the veracity of his statement. The post-mortem report Ex.P-8 by Dr. Fattesingh confirms the version given by eye-witness Anu (PW-2). Various wounds were found on the head and nose of the deceased as described by Anu (PW-2), hence the evidence of the eye-witness Anu is trustworthy. Thus, the medical evidence corroborated the ocular evidence of Anu (PW-2) and it is proved beyond reasonable doubt that accused appellant inflicted injuries on the head of deceased Nankia by means of wooden stick due to which he died. 12. Learned counsel for the appellant submitted that the incident took place after sun set and that too in night, therefore, the eyewitness could not have seen the incident, however, in this regard suggestion has been given to the eye-witness and he replied that there was electric bulb at the place of occurrence and he has seen the incident in the aforesaid light. This fact has also been mentioned in the statement of Anu (PW-2) recorded under section 161 of the CrPC Therefore, on the basis of such factual position the evidence of the eye-witness cannot be discarded. 13. From the statement of Anu (PW-2) and Ramesh (PW-3) it is evident that Nankia demanded his share on the disputed land from the accused and due to this enmity he attacked the deceased and in the said incident he was killed. 14. Learned counsel for the appellant further submitted that the incident has taken place all of a sudden and there was no permeditation on the part of the appellant to cause death of Nankia, however, from the statement of witness Anu (PW-2) and Ramesh (PW-3) it is clear that there was enmity between deceased and the accused/appellant and appellant gave repeated blows on the head and nose of the deceased which are vital part of the body due to which he sustained three fractures and the brain was also damaged. In these circumstances, it cannot be accepted that the appellant was not interested to kill the deceased Nankia. 15. On the basis of the aforesaid discussion, we are of the considered opinion that prosecution has succeeded to prove beyond reasonable doubt that the appellant murdered the deceased Nankia. The trial Court has rightly appreciated the evidence adduced by the parties and held the appellant guilty for the offence punishable under section 302 of the IPC and there is no reason to interfere in the finding of the trial Court. Accordingly, the conviction and sentence passed by the trial Court is hereby affirmed and the appeal is dismissed.