Madhya Pradesh High Court
Jugru vs The State Of Madhya Pradesh on 9 July, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
Cr. A. No.1840/2008
Jugru S/o Gulab Gond Singh ............Appellant
Vs.
The State of Madhya Pradesh ............... Respondent
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Division Bench -
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla J.
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Smt. Durgesh Gupta, Advocate for the appellant.
Smt. Namrata Agrawal, Govt. Advocate for the respondent/State.
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Reserved for orders on : 5.7.2018
JUDGMENT
(Delivered on this 9th day of July, 2018) Per Hemant Gupta, Chief Justice The challenge in the present appeal is to an order dated 24.7.2008 passed by the learned 1st Additional Session Judge Betul in Sessions Trial No.249/2007 convicting the appellant for an offence punishable under Section 302 of I.P.C. and sentenced him to undergo life imprisonment and fine of Rs.1000/- and in default of payment of fine to suffer further imprisonment for the period of two months.
02. The prosecution was initiated on the basis of statement Ex.P-7 made by Ramlal to S. I., N. L. Sharma on 10.8.2007 at about 11:00 a.m. in respect of an incident which occurred on 9.8.2007 at 9:00 p.m. The
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statement of Ramlal is that he is working as a Chowkidar (watchman) in Village Khamapur and at about 9:00 p.m. Ponga and Hasan Lal informed him that Jugru Gond is hitting his own son aged 7 years with stick. He reached the hut of Jugru and saw that Jugru was hitting his son with Lathi. He tried to counsel Jugru but Jugru rebuked him saying that he is his son and he can do whatever he likes and that he will kill him as he does not obey. Sumantri, mother of the boy told him that Raju (deceased) is son from his first husband. Jugru was hitting Raju saying that he will kill him. He caused injuries on chest, abdomen and back of his son with Lathi. The injuries have seen by him including by Gannu, Ponga, Bannu, Moti, Beda, Hasan Lal, Manju. Jugru was drunk and in spite of their counselling he was not open to any advice. At that time his son became unconscious. They told Jugru to take him to the hospital but Jugru said that he will take care of him as he is his son but in the morning at about 6:00 a.m. they saw that Raju had died. His dead body was lying in the hut. Jugru had killed his son. On the basis of such report, zero FIR Ex.P-12 was lodged and subsequently FIR Ex.P-11 was lodged at about 12:35 p.m on 10.8.2007.
03. The investigations were undertaken by N. L. Sharma PW-12 who recorded the FIR and prepared the site plan. The further investigations were conducted by S. L. Surja PW-14. On the basis of disclosure statement of the accused Lathi (stick) was recovered from the residential house of the accused and taken in possession vide memo Ex.P-
4. After completion of investigation, the accused was made to stand trial.
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The author of FIR Ramlal was examined as PW-2, whereas Hasan Lal and Ponga were examined as PW-5 and PW-6 respectively. Beda was examined as PW-7. Gannu was examined as PW-8. Munnu was examined as PW-9. Manju was examined as PW-11. Sumantri, the wife of the appellant and mother of deceased Raju was examined as PW-13. The mother of the deceased and other witnesses have turned hostile, but have admitted the occurrence as discussed hereinafter.
04. PW-2 Ramlal is the author of FIR who deposed that Beda PW- 7 and Gannu PW-8 told him that Jugru has killed his son. When he reached to the house of Jugru, he told him that Raju is his son and he is responsible for his upkeep and that he will not let the child die. When he asked the appellant to get his child treated then he started hurling abuses. After the witness was declared hostile and in a cross examination conducted by the Public Prosecutor, he admitted that the mother of Raju told him that his son is from his first husband and the accused was saying that he would kill him. He admitted that when he reached the hut of Jugru (present appellant), the boy was in pain but was not speaking. PW-5 Hasan Lal deposed that when he reached the house of appellant- Jugru, the child Raju was lying on floor but he has not seen anybody hitting him. In cross examination by the Public Prosecutor, he admitted that the wife of Jugru shouted that her husband is hitting her son. PW-6 Ponga, who has informed Ramlal as per the FIR, deposed about the beatings given by the appellant to his son. He admits that the accused was saying that he can do
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whatever he likes to his son. He also admitted that the accused said that he has killed his son under the influence of liquor, which is a mistake. He denied the suggestion that the accused has never stated that he can do whatever he likes to do with his son. PW-7 Beda, who deposed that when he reached the house of the appellant, Raju was lying on the floor. The appellant was sitting there but he does not know whether he had taken liquor or not, but he seems to be inebriated condition. PW-8 Gannu in his cross examination by the Public Prosecutor admitted that the mother of child was shouting that her husband is killing her son. PW-9 Munnu, PW- 10 Motilal and PW-11 Manju were the persons who had also gone to the house of the appellant, but all said persons have turned hostile.
05. Postmortem on the dead body of Raju aged 7 years was conducted by PW-3 Dr. P. C. Verma on 10.8.2007. The Doctor found that Injuries No.1, 2 and 3 are abrasions on the chest, back and ribs while conducting external examination whereas Injury No.4 is contusions in the abdomen. The cause of death as per the witness is rupture of spleen and excessive bleeding after conducting internal examination.
06. Learned counsel for the appellant argued that all the prosecution witnesses have turned hostile; therefore, the prosecution miserably has failed to prove the charges levelled. The evidence of most of the witnesses is based on hearsay which is not admissible as PW-13 Sumantri mother of the dceased has not supported the prosecution story.
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07. We have heard learned counsel for the parties and perused the record.
08. The argument of the learned counsel for the appellant that the cause of death was pain in the stomach is not made out as the cause of death as per the postmortem report and statement of PW 3 Dr. P.C. Verma was rupture of spleen. All the prosecution witnesses who have turned hostile but have deposed that the boy was in the hut of the appellant. Therefore, the unnatural death has taken place in the house of the appellant.
09. Though, the mother of the child has also turned hostile, but uncontroverted fact is that the child was from her first husband. All the witnesses in their testimony have deposed that the appellant was under the influence of liquor. The statement of PW-6 Ponga, in fact, is extra judicial confession of the appellant that he has killed his son under the influence of liquor and that it is mistake.
10. Therefore, keeping in view the evidence on record, we have no hesitation to hold that the son of the appellant has dies an unnatural death in the house of the appellant.
11. However, we find merit in the arguments of learned counsel for the appellant that the appellant had no intention to take life of his step- son. It was out of anger when young boy disobeyed his father. The weapon of offence is a Lathi which is normally found in the most of the
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houses. May be the appellant has given multiple blows but such blows are out of anger not with an intention to take life of his step-son. Therefore, we find that the conviction of the appellant is not made out for an offence punishable under Section 302 of IPC. But, since the appellant had the knowledge that such injury is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, therefore, the appellant is liable to be convicted for an offence under Section 304 Part II of IPC.
12. In view of the above, the appellant is convicted for an offence under Section 304 Part II of IPC while setting aside the conviction of the appellant for an offence under Section 302 IPC. He is sentenced to undergo rigorous imprisonment for 10 years. The order of fine amount is not interfered with. With the said modification, the appeal stands partly allowed. If the appellant has completed his sentence, he shall be set at liberty forthwith unless wanted in any other offence by the State.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
Anchal
Digitally signed by ANCHAL KHARE
Date: 2018.07.09 14:13:03 +05'30'