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2018 DIGILAW 501 (MP)

Tersee Bhujwa v. State of M. P.

2018-05-16

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Smt. Palo, J--1. Appellant has filed this appeal challenging the judgment dated 26.5.2008 passed by the Sessions Judge, Sidhi in Sessions Trial No. 221/2007 whereby the appellant has been convicted under section 302 of the Indian Penal Code and sentenced for life imprisonment and fine of Rs. 500/- with default stipulation. 2. In brief, the prosecution story is that on 20.10.2007 at village Bichipather, at about 11:00 a.m., deceased Nakul who is the father-in-law of appellant Tersee, was grazing the cattle in the field along with his grandson Lallu. Appellant Tersee also came there to graze her cattle. She started quarreling with the deceased Nakul. Thereafter, both of them scuffled due to which they fell down and rolled towards the culvert. Then the appellant inflicted blows by stones on her father-in-law (Nakul). After sometime, Nakul died on the spot. Ayodhya Singh reported the matter to police station Kamarjee. FIR was lodged accordingly under section 302 of IPC against the appellant. After due investigation, charge-sheet was filed under section 302 of IPC against the appellant before the concerned Court. 3. The trial Court conducted the trial and found appellant guilty of committing murder of her father-in-law Nakul, hence she was convicted under section 302 of IPC and sentenced as mentioned above. 4. Appellant has challenged the aforesaid finding on the ground that there is no evidence against the appellant. She had no intention to commit murder of the deceased. There is contradiction between the FIR and the deposition of the witnesses. No human blood was found on the body of the appellant and the seized articles. Hence, the appellant prayed to set aside the impugned judgment and acquittal from the charges levelled against her. 5. Heard learned counsel for the parties at length. Perused the record. 6. Learned Government Advocate strongly opposed the contentions of learned counsel for the appellant and submitted that the case of the appellant comes under the purview of section 302 of IPC. 7. It is not in dispute that the appellant is the daughter-in-law of deceased Nakul. Her husband had died earlier. Appellant had some property dispute with the deceased. As per the FIR Ex. P-3 Ayodhya Singh (PW1) and Lallu Bhujwa (PW7) both are eye witnesses. At the time of incident, Lallu was present on the spot along his grandfather Nakul (since deceased). He deposed that the deceased was grazing cattle on the spot. Her husband had died earlier. Appellant had some property dispute with the deceased. As per the FIR Ex. P-3 Ayodhya Singh (PW1) and Lallu Bhujwa (PW7) both are eye witnesses. At the time of incident, Lallu was present on the spot along his grandfather Nakul (since deceased). He deposed that the deceased was grazing cattle on the spot. The appellant also came there. Both were quarreling. Thereafter, the appellant scuffled with the deceased. Then they fell down and rolled towards the culvert. Then the appellant pelted stones on the deceased. He sustained several injuries on his head, face, chest, hands and legs. Other villagers Suryadeen, Parmeshwar Lohar etc. witnessed the incident. The appellant also threw stone on Lallu and ran away from the spot. Thereafter, Lallu went to the village to inform his uncle Chhotelal about the incident. 8. Chhotelal (PW2) corroborate the testimony of Lallu (PW7). 9. Another eye-witness Ayodhya Prasad (PW1) corroborate the testimony of Lallu (PW7). He deposed that he saw the fighting and scuffling between the appellant and the deceased. They fell down and rolled down 15 meters towards the culvert. He denied that the appellant pelted stone on the deceased. Prosecution declared him hostile. Even then, he did not support the remaining version of Lallu. Ayodhya Prasad admitted that he lodged merg intimation Ex. P-2. 10. R.K.Dwivedi (PW13) stated that he received information about the incident from village Bichipather. Then he reached on the spot and registered merg suchna report Ex. P-2. Thereafter, he sent the body of the deceased for postmortem. 11. Dr. S.B.Khare (PW8) conducted post-mortem of the deceased on 21.10.2007. He found the following injuries on the person of the deceased : (i) Contusion 4”x2” over back of scalp. (ii) Contusion 2”x2” over left side of scalp. (iii) Depressed lacerated wound of 4”x4” over frontal region scalp. (iv) Contusion linear 4”x1/2” on right side of forehead. (v) Contusion 8”x8” over right lower side of backside of chest. (vi) Contusion 8”x7” over left side of back. (vii) Contusion 5”x5” over back of left side of chest. (viii) Contusion 6”x5” over right side of abdomen. (ix) Contusion 5”x5” over right side of buttock. (x) Contusion 3”x3’ over left side of chest. (xi) Contusion 4”x3” over right side of chest. (xii) Contusion 4”x4” over left hand. (xiii) Contusion 3”x2” over right hand palm. (xiv) Lacerated wound 1½”x 1½” on upper lower lip. 12. (viii) Contusion 6”x5” over right side of abdomen. (ix) Contusion 5”x5” over right side of buttock. (x) Contusion 3”x3’ over left side of chest. (xi) Contusion 4”x3” over right side of chest. (xii) Contusion 4”x4” over left hand. (xiii) Contusion 3”x2” over right hand palm. (xiv) Lacerated wound 1½”x 1½” on upper lower lip. 12. On internal examination, Dr. Khare found that fractures in frontal bone, 3rd and 6th ribs on the left side and 4th and 5th ribs on the right side. He further opined that the injuries were caused by hard and blunt object. The deceased died due to shock and excessive bleeding from the internal vital organs. The death was homicidal in nature and caused within 36 hours of the postmortem. In his cross-examination, he denied that such injuries would be caused to a person if he fell down from a height of 25 feet. 13. Learned counsel for the appellant urged that the appellant only scuffled with the deceased. Other injuries were caused to the deceased accidentally due to falling down from 15 meter height into the culvert. 14. Looking to the number of injuries and opinion of Dr. Khare, we are not inclined to accept that the deceased sustained all the above injuries accidentally due to fall. 15. After considering the rival contentions of both the parties and the factual basis of the case, in our opinion the act of appellant is covered under Exception 1 of section 300. She committed culpable homicide which is not murder. Under the grave and sudden provocation, she caused death of the deceased by mistake. At the time of incident, she had no deadly weapon with him. Firstly she scuffled with her. 16. Ayodhya Prasad (PW1) corroborated the testimony of R.K.Dwivedi (PW13) that the police recovered vide seizure memo Ex. P-7 some stones from the place where the body of the deceased was found. 17. According to seizure memo one large stone, one small stone and other three stones were seized. Police also recovered 20 pieces of broken bangles of the appellant. 18. In cross-examination, paragraph 20, R.K.Dwivedi (PW13) Investigating Officer has not specified the weight of the aforesaid stones. Therefore, we come to the conclusion that the appellant used stones from the spot for inflicting blows which caused his death. Police also recovered 20 pieces of broken bangles of the appellant. 18. In cross-examination, paragraph 20, R.K.Dwivedi (PW13) Investigating Officer has not specified the weight of the aforesaid stones. Therefore, we come to the conclusion that the appellant used stones from the spot for inflicting blows which caused his death. Only because of the number of injuries, it cannot be presumed that she intentionally caused death of the deceased. 19. In case of B.D.Khunte v. Union of India and ors. [ (2015) 1 SCC 286 ], the Hon’ble Supreme Court has held as under : “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.” 20. Hence, in our opinion, the offence committed by the appellant would fall under section 304 Part I of the Indian Penal Code. 21. Consequently, the appeal filed by the appellant is partly allowed. Her conviction and sentence under section 302 of the Indian Penal Code awarded by the learned trial Court is hereby set aside. The appellant is acquitted from the charge under section 302 of IPC. She is convicted for commission of offence punishable under section 304 Part I of the IPC. She is awarded sentence of R.I for 10 years along with fine of Rs. 200/-. In default of payment of fine amount, further S.I. for 7 days. 22. Appellant was arrested on 20.10.2007. She was granted temporary bail on 16.12.2010 and 17.2.2012 for a period of three months. She has completed jail sentence of more than 10 years including remission. Hence, the appellant be released forthwith, if not required in any other case. 23. 200/-. In default of payment of fine amount, further S.I. for 7 days. 22. Appellant was arrested on 20.10.2007. She was granted temporary bail on 16.12.2010 and 17.2.2012 for a period of three months. She has completed jail sentence of more than 10 years including remission. Hence, the appellant be released forthwith, if not required in any other case. 23. Copy of this judgment be sent to the Court below for information and compliance alongwith its record.