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2018 DIGILAW 537 (MP)

Ramkumar v. State of M. P.

2018-06-18

ANAND PATHAK, S.A.DHARMADHIKARI

body2018
JUDGMENT Pathak, J.--1. Appellant -Ramkumar has preferred the present appeal against the judgment dated 30.1.2009 passed by the Additional Sessions Judge, Mungaoli District Guna in S.T.No. 348/2007 whereby he was convicted for the offence under section 302 of IPC and sentenced to life imprisonment with fine of Rs. 2000/- and in default of payment of fine six months additional rigorous imprisonment. 2. Precisely stated facts of the case, as per the case of prosecution, for adjudication are that 5.9.2007, the complainant Jagbhan (PW9) lodged a complaint to the effect that in the morning (on 5.9.2007), his wife namely Smt. Usha Bai (since deceased) told him to sell the wheat for daily need and to settle the outstanding, hence had gone to village at Athaikheda and when he returned home, he found that his house was locked and his son Vicky (PW10) was crying and stating that Ramkumar (appellant) had killed her mother by axe. Vikcy further stated that appellant Ramkumar told his mother to move Jaipur along with him and when she refused, he killed her through axe. Statements were recorded, case was registered and spot map was prepared. The accused was arrested and axe was seized. Usha Bai died on the same day and post mortem was done, clothes of deceased were seized and Panchnama of dead body was prepared. On chemical examination, human blood was found over axe and statement of witnesses were taken and after investigation, charge-sheet was filed. 3. After filing of charge-sheet, case was committed to the Court of Session. The appellant/accused abjured his guilt. The trial was conducted. On behalf of prosecution, 13 witnesses were examined whereas on behalf of defence, none examined. Trial Court after considering the evidence convicted the appellant under section 302 of IPC for life imprisonment along with fine of Rs. 2,000/- with default stipulation, therefore, this appeal. 4. According to learned counsel for the appellant, trial Court erred in passing the impugned judgment convicting the appellant. It was the case where husband of the deceased, Jagbhan was real culprit who killed his wife because of alleged illicit relationship with the appellant and implicated the appellant so that he can get rid of his wife as well as her alleged paramour. Story of the prosecution does not evoke enough confidence. It was the case where husband of the deceased, Jagbhan was real culprit who killed his wife because of alleged illicit relationship with the appellant and implicated the appellant so that he can get rid of his wife as well as her alleged paramour. Story of the prosecution does not evoke enough confidence. Jagannath Singh (PW9) tried to show that at the relevant point of time, he was not available in his house and he was out of village to sell wheat to the shopkeeper to settle outstanding amount incurred by him. Story of prosecution carries enough contradictions and inconsistencies to show that the appellant was not guilty of committing murder of the deceased Usha Bai. Alternatively, learned counsel for the appellant submits that the case involves alteration of charge from section 302 to section 304 Part I or II of IPC because the motive of the appellant was never to kill the deceased Usha Bai. 5. Learned counsel for the respondent/State opposed the prayer and submitted that statements as well as medical opinion establish implication of accused and further through documents exhibited, pressed for affirmation of judgment and order passed by the trial Court and prayed for dismissal of appeal. 6. We have heard the learned counsel for the parties at length and perused the record. 7. The first and foremost question for consideration of the case in hand is the nature of death of deceased- Usha Bai. Dr. Prashant Dubey (PW6), who was the medical officer and conducted autopsy over the corpse was examined. According to him, nature of injuries were as under : “(i) one sharp cut injury of size 6cmx2cmx3cm deep scalp with bone protruding out on right parietal region of head. (ii) one sharp cut injury of size 5cmx1cmx1cm deep scalp on left side of parietal region and head. (iii) one sharp cut injury of size 7cmx2cmx5cm deep scalp on center of occipital region of h ead with bone protruding outside.” His opinion was categorical that death was homicidal in nature. Therefore, it can be safely concluded that death was homicidal in nature. 8. The deposition of Jagbhan (PW9) indicates that at the relevant point of time he was out of home and when returned back, his wife was in blood pool and was unconscious. His son Vicky (PW10) was eye-witness who saw the incident from his eyes. Therefore, it can be safely concluded that death was homicidal in nature. 8. The deposition of Jagbhan (PW9) indicates that at the relevant point of time he was out of home and when returned back, his wife was in blood pool and was unconscious. His son Vicky (PW10) was eye-witness who saw the incident from his eyes. Vicky (PW10) narrated the story in which he categorically referred the name of assailant (present appellant) and also narrated the reason for such blows because he was insisting Usha to move Jaipur along with him which she declined and therefore, took axe from her house and given blows over the head of the deceased. Although testimony of Jagbhan (PW9) in para 2 vis-a-vis Vicky (PW10) in para 3 are bit contradictory when Jagbhan (PW9) says that his son Vicky used to tell him that in his absence appellant Ramkumar used to visit his home but the said fact has been denied by Vicky, his son in para 3 of his deposition. 9. Daulat Singh (PW1), father-in-law of deceased Usha Bai also supported story of prosecution. One witness Toran (PW7), had seen the appellant while visiting to deceased place on the date of incident and after around 45 minutes came back from her residence. Testimony of said witness Toran (PW7) remained unshaken. Since his testimony corroborated the testimony of Jagbhan (PW9) and Vicky (PW10), therefore, prosecution successfully established the case and chain of circumstances which led to such gory incident. 10. The submission of counsel for the appellant is that as per eye-witness account deceased was whitewashing the house and therefore, she should have received some stains or paint and colour over her person but in absence of any such colour or paint eye-witness account of witness come into doubtful area and cannot be made to believe. Such inconsistencies are minor in nature. Seizure witness Chandrabhan (PW2) and Ajab Singh (PW3) both supported the story of prosecution. Investigating officer K.G. Tiwari (PW11) also supported the story and the procedure adopted by the police for investigation. Registration of FIR is of the same date and this is not a case of delayed FIR and name of accused has been referred in column No. 7 of form No. 1 of FIR. Therefore, registration of FIR supports and corroborates story of prosecution. Registration of FIR is of the same date and this is not a case of delayed FIR and name of accused has been referred in column No. 7 of form No. 1 of FIR. Therefore, registration of FIR supports and corroborates story of prosecution. Medical report also supports the story of prosecution, wherein nature of injuries was found to be homicidal in nature and the injuries sustained were prior to the death. Therefore, cause of death was homicidal in nature and the injuries sustained by the deceased over her head were suggestively wielded by the appellant. Therefore, medical evidence supports the case of prosecution. 11. Alternative argument of counsel on behalf of appellant was alteration of charge from section 302 to section 304 of IPC because even if the case is treated as the case of sufficient evidence then it is to be treated as a case influenced by sudden provocation and under the heat of passion, therefore, alteration of charge appears to be imperative and in the interest of justice and it would further the spirit of justice. Here the case appears to fall under section 300 exception-4 of IPC. Said Exception-4 of section 300 of IPC reads as under : “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.” The necessary ingredients of exception- 4 of section 300 of IPC are:- (1) a sudden fight; (2) absence of pre meditation; (3) no undue advantage or cruelty; 12. The Hon'ble apex Court in the case of Sukhdev Singh v. State of Punjab, [1992 Supp (2) SCC 470], converted conviction from section 302 to section 304 Part II of IPC and in the case of Janab Ali Shaikh v. State of West Bengal, [1992 Supp (2) SCC 545], converted the sentence from section 302 to section 304 Part I of IPC with the aid of exceptions No. 2 and 4 of section 300 of IPC. Similarly, in the case of Masumsha Hasansha Musalman v. State of Maharastra [ (2000) 3 SCC 557 ], in the fact situation of the case, converted the sentence under section 304 Part II of IPC. Similarly, in the case of Masumsha Hasansha Musalman v. State of Maharastra [ (2000) 3 SCC 557 ], in the fact situation of the case, converted the sentence under section 304 Part II of IPC. In the case of Buddhu Singh and others v. State of Bihar (Now Jharkhand) [(2013) 3 SCC (Cri) 460], Hon'ble apex Court converted the case from section 302 to section 304 Part II of IPC and Division Bench of this Court in the case of Rajesh alias Jadu S/o Babulal vs. State of M.P. [2014(1) MPLJ (Cri.)] 64 with the aid of exception -4 of section 300 of IPC, conviction under section 302 of IPC set aside and altered to section 304 Part I of IPC. The ratio of all these decisions is that when the incident is occurred in a sudden quarrel without premeditation and accused did not act in cruel or unusual manner, the case of accused would attract exception -4 to section 300 of IPC. Here, in the present case, inconsistencies in the statements of eye-witnesses account itself discarded the prosecution case but nonetheless injury appear to be inflicted by repeated blows by appellant and the case appears to be of sudden provocation in the heat of passion (exception -4 under section 300 of IPC) or on the basis of sudden provocation (exception -2 of section 300 of IPC), therefore, appellant ought to be punished for offence under section 304 Part -II of IPC. The judgment of the apex Court in the case of Sarman and others v. State of M.P., 1993 Supp. (2) SCC 356 as well as in the case of Ranjitham v. Basavaraj and others, [ (2012) 1 SCC 414 ], are worth consideration in this regard. 13. Considering the fact situation on the anvil of above legal situation, two facts come in favour of appellant; one he did not carry any weapon with him to the place of deceased Usha Bai therefore, it can be gathered from his conduct that he was not driven by any object or intention to kill Usha Bai and second he wanted to pursue Usha Bai to come along with him to Jaipur as both were having illicit relationship. If this fact as tried to be projected by the prosecution and established by it, is to be seen then it is obvious that a person who is having illicit relationship with his paramour and trying to elope to marry her or to proceed to live-in relationship, then he might have persuaded the deceased to elope with him but she might have refused and therefore, under the heat of passion and due to sudden provocation because of her turning down the offer, he committed murder. Expression of the deceased (saying 'No') must have infuriated the appellant and therefore, he took axe which was lying in the house of Usha Bai and inflicted blows. Although blows were given thrice but it was guided under the heat of passion because of turning down of his proposal by the deceased Usha Bai. From account of various witnesses, it was established by the prosecution that due to illicit relationship, appellant caused death of deceased Usha Bai, therefore, the motive was only to maintain illicit relationship or remarry or live in and therefore, the said sudden provocation was because of turning down of proposal. Once relationship between the assailant and victim was established and the fact that accused wanted the victim to move along with him to Jaipur was also established, then it is obvious that at the last moment if victim Usha Bai turned down the proposal of the accused then he was surrounded with anger, passion, disappointment and feeling of rejection which infuriated the accused and under the heat of passion and with sudden provocation caused such gruesome act. It is also possible that behaviour of victim might have been such cold or dejected in nature which might have precipitated the heated debate between them and without premeditation, accused under the heat of passion committed murder. Since he used an axe lying in the house of Usha Bai, therefore, it can safely be concluded that he did not visit the place of victim for committing murder otherwise he would have carried any weapon with him. 14. Theory of sudden provocation gains ground because of one more fact and that is son of deceased Usha i.e. Vicky (PW10) who at the relevant point of time was around 9 years of old and he witnessed the whole incident. 14. Theory of sudden provocation gains ground because of one more fact and that is son of deceased Usha i.e. Vicky (PW10) who at the relevant point of time was around 9 years of old and he witnessed the whole incident. If appellant wanted to take revenge from the family of deceased Usha Bai or wanted to eliminate family due to animosity then he might have inflicted injury to her boy Vicky (PW10) also, but he did not do so. 15. Accused/appellant had sufficient time and opportunity to kill the boy Vicky because he was alone with him at the time of incident when accused gave blows to Usha Bai of axe and if he would have harboured any mens rea or premeditation to kill the deceased since beginning, then he would not have spared child, knowing fully well that he would stand as important eye-witness in the whole chain of circumstances. In fact all other witnesses were establishing the story of prosecution on the basis of circumstantial evidence except Vicky (PW10) who stood as eye-witness. Therefore, accused had all reason to eliminate son Vicky but he did not do so. This fact further established the theory of sudden provocation and in fact had proved that he really wanted the victim Usha Bai to take her along with him to start new life at Jaipur. This fact also persuaded this Court to think over the theory of sudden provocation/under the heat of passion as tried to be projected by learned counsel for the appellant. The Court intends to convert the conviction and sentence of appellant from section 302 of IPC to section 304 Part I of IPC. 16. From the certificate given by the trial Court after the judgment under section 428 of CrPC it is reflected that at the time of judgment, appellant already suffered 506 days of conviction which were to be adjusted from his suffering of sentence. Since the date of conviction i.e. 30.1.2009 appellant is in jail so already suffered more than 9 years 4 months since the date of passing of judgment and thus, in total he suffered more than 10 years of incarceration. Therefore, the case of the appellant deserves to be and is altered from section 302 to section 304 Part I of IPC. Therefore, the case of the appellant deserves to be and is altered from section 302 to section 304 Part I of IPC. The sentence of life imprisonment imposed upon the appellant by the trial Court is reduced to the sentence already undergone by the appellant while maintaining the conviction under section 304 Part I of IPC. 17. Appellant is in jail. Since sentence of appellant is reduced by this Court to the sentence already undergone by him, therefore, Registry is directed to issue supersession warrant for releasing him without any delay. 18. Appeal is allowed in above terms. 19. Copy of the judgment be sent to the trial Court along with record for information.