Madhya Pradesh High Court
Madhuri vs State Of M.P. on 9 August, 2007
Equivalent citations: 2007CRILJ4190
Author: K.S. Chauhan
Bench: Arun Mishra, K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 14th July, 1998 passed by II Additional Sessions Judge, Tikamgarh in Sessions Trial No. 25/95, whereby the appellant has been convicted under Section 302 of IPC and sentenced to life imprisonment with fine of Rs. 5,000/-, in default R.I. for six months.
2. The brief facts of the prosecution case are that on 02.07.1995 Kishan was cleaning his teeth sitting near to a well situated at village Kachhora at about 9:30 a.m., at the same time, the appellant came with axe and caught hold of Kishan from behind and threw him into the well and hurled a big stone in the well upon him consequently he died. The report was lodged by his uncle Kanhaiya Lal at outpost Khajuri wherein the crime under Section 302 IPC was registered. This was sent to police station Palera wherein the Crime No. 01/95 under Section 302 was registered under Section 174 of the Code of Criminal Procedure. Panchnama of dead body of Kishan was prepared. His dead body was sent for postmortem examination. Dr.C.P.Arya conducted postmortem and opined that death was caused by fracture of occipital bone due to coma. The packet of his clothes were seized. Spot map was prepared. One Kulhari, towel and shoes of deceased and two stones were also seized from the well. The statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. After completing the investigation, the charge sheet was filed in the court of Judicial Magistrate First Class, Jatara, wherein the Criminal Case No. 236/95 was registered which was committed to the Sessions Court on 07.02.1995.
3. The appellant stood charged under Section 302 of Indian Penal Code that on 02.01.1995 at 9:30 a.m. on the well situated at village Kachhora he committed the murder intentionally or (knowingly) caused the death of Kishan and thereby committed an offence punishable under Section 302 of Indian Penal Code.
4. The appellant abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated.
5. The prosecution examined as many as 11 witnesses whereas the appellant examined only 3 witnesses. After appreciating the evidence, the appellant was convicted under Section 302 and sentenced thereunder as stated in para 1 of the judgment. Being aggrieved by the judgment, finding and sentence the instant appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned in the memo of appeal.
6. The learned Counsel for the appellant has submitted that the trial Court has not appreciated the evidence in the proper perspective. Most of the witnesses have not supported the prosecution story. The guilt is not proved beyond reasonable doubt hence the trial Court has committed an illegality in convicting and sentencing the appellant under Section 302 IPC, therefore, he is entitled for acquittal.
7. On the other hand, Shri S.K.Rai, learned G.A. appearing on behalf of the respondent/State supported the finding and sentence passed by the trial Court and submitted that the prosecution has proved the case beyond reasonable doubt against the appellant, therefore, the trial Court has rightly convicted and sentenced him hence it does not call for any interference.
8. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 302 of the Indian Penal Code for committing the murder of Kishan.
9. We have perused the entire record and evidence recorded therein.
10. Mst. Ladkunwar (PW-3) is the daughter of Kishan. She has stated that her father was cleaning his teeth at well. She heard his cries. She rushed there and saw that her father is lying in the well and appellant was throwing the stone upon her father. She tried to prevent but the appellant rushed to beat her. She fell down and cried to save her father. Her mother Mst.Leelabai (PW-4) came there to whom she told that appellant has thrown her father in the well and throwing the big stone from the platform of well, as a consequence thereof, her father died in the well. Here statement is supported by her mother Mst.Leelabai (PW-4) and also stated that she saw the appellant running from there.
11. The attempt is made on behalf of the appellant to bring the contradictions and omissions in the statement but they are not on the material point and are of no consequence.
12. Kanhaiya Lal (PW-2) has stated in examination-in-chief that he saw appellant was throwing the stone in the well and he came to know from the persons present at the well that appellant as thrown Kishan into the well and has also hurled 3-4 big stones in the well. He saw Madhuri running from there and tried to catch him but could not. He lodged the report Ex.p/1 at the concerned police station.
13. He has been subjected to a lengthy cross-examination wherein he has admitted that he did not saw the appellant throwing the stone into the well is self contradictory. Further, his statement that he saw the appellant running from there is intact in the cross examination also.
14. Raju (PW-7) is the son of deceased Kishan. He has stated that his Babba (Kanhai) told that appellant has thrown Kishan into well and hurled the stone and killed. He immediately rushed to the well and found that his father was sunken into the well.
15. Chhidami (PW-9) has also seen appellant running from there.
16. By this evidence, the prosecution tried to establish that appellant threw Kishan into the well and hurled the big stones. The statement of Ganesh (DW-3) that Kishan himself fell down in the well is not acceptable in the light of the statement of these witnesses. The appellant has taken the plea alibi examined Swami Prasad (DW-1) and Janki (DW-2) who have stated that he was at their village at Kapasi. This village is situated only two kilometers away from village Kachhora and their evidence is not acceptable in the light of the prosecution witnesses who have seen the appellant running from there at the relevant time. The defence is an after thought and not acceptable. The statement of Mst. Ladkunwar (PW-3) is clear on the point wherein she has stated that the appellant was throwing the stone in the well and consequently her father died. The other prosecution witnesses Kanhaiya Lal and Chhidami have also seen him running from there.
17. Puranlal (PW-11) has stated that Kulhari and two stones were seized on 03.01.1995 vide Ex.P/13 by Shri S.N.Singh who has now been retired and the shoes were also seized vide Ex.P/14.
18. From the prosecution evidence, it is clear that after preparing panchnama the dead body was sent for postmortem examination which was conducted by Dr.C.P.Arya (PW-1) wherein he found the following injuries on the person of the deceased:
(i) Abrasion 2cm x 1cm in size right post surface of the right base of the little finger.
(ii) Lacerated injury 3 x upto deep bone.
According to his opinion, death was caused by fracture of occipital bone due to coma. Compression of the brain resulting form injuries. In brain substance due to subordinoid haemorrhage. The death occurred within 24 hours of examination. He has submitted the report Ex.P/1.
19. On 27.01.1995 he made the reply of queries asked by police station Palera that the death may be caused by the stone. The stone is heavy and the fracture of occipital bone may be caused by this stone. In cross examination he has stated that if the person drowns in the water then such fracture is not possible. His opinion is that if immediately after the fall in the well if the stones are thrown then such injuries possible.
20. Thus, medical evidence supports the ocular evidence adduced by the prosecution.
21. The learned Counsel of the appellant has submitted that there is sudden quarrel and no intention of killing has been proved, therefore, the offence of murder is not made out.
22. The submission of learned Counsel of the appellant appears to be correct because no evidence has been adduced regarding cause of quarrel on that day. Moreover, it has come on record that they were friends and their relations were cordial but became tense recently because deceased went with Puranlal to lodge the report regarding outraging the modesty of his daughter by the appellant. How the quarrel started has not been brought on record, therefore, it appears that sudden quarrel is squarely covered by exception 4 to Section 300 of I.P.C. Exception 4 of Section 300 runs as follows:
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 offenders having taken undue advantage or acted in a cruel or unusual manner.
23. Since his case is covered under the above exception, therefore, the offence of murder is not made out. His case falls under Section 304I of IPC.
24. Section 304 IPC runs as follows:
Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
25. Keeping in view the facts and circumstances and the evidence adduced thereon, the offence under Section 304I is established instead of Section 302 of I.P.C., therefore, he is acquitted from the offence under Section 302 of I.P.C. but convicted under Section 304I of Indian Penal Code.
26. The learned Counsel for the appellant has submitted that the accused is languishing in jail for more than 12 years. The submission of the learned Counsel of the appellant also finds supports from record. In such circumstances, we deem it proper to release the appellant on the sentence already undergone.
27. Consequently, the appeal is partly allowed as indicated above. Conviction under Section 302 IPC is set aside instead he is convicted 304-I IPC and sentenced to already undergone. He be released forthwith, if not required in any other case.
28. The order regarding the disposal of criminal properties passed by the trial Court is hereby affirmed.