(1) Cr.A.1343/2002
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE G.S.SOLANKI
CRIMINAL APPEAL NO. 1343/2002
APPELLANT: Bachhu @ Pachhu Gond, S/o Rama Gond, aged 42
years, R/o Dampuri Police Station, Kindrai District
Seoni (M.P.).
Versus
RESPONDENT: State of Madhya Pradesh
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For the Appellant : Smt. Durgesh Gupta, Advocate.
For the respondent/State : Shri S.K.Rai, Govt. Advocate.
Date of hearing : 10/08/2010
Date of judgment: 10/08/2010
(J U D G M E N T )
Per: Rakesh Saksena; J,
Appellant has filed this appeal against the judgment dated 31.7.2002
passed by Additional Sessions Judge, Lakhnadaun in Sessions Trial No.
50/2002, convicting him under Section 302 of the Indian Penal Code and
sentencing him to imprisonment for life with fine of Rs. 5000/-, in default of
payment of fine rigorous imprisonment for two years.
2. In short, the prosecution case is that on 19.3.2002 at about 8 O’ clock in
the morning when Halkeram (PW7) and Yeshwant (PW8) were going towards
Hiragarhi, they passed from front of the house of accused. Accused invited
them to his house and served them liquor. Accused then asked his wife
Muliyabai to serve lunch, but she did not do it. Being annoyed accused
assaulted his wife with lathi. When Halkeram and Yeshwant tried to intervene,
he also attempted to assault them, whereupon they left his house. This
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incident was witnessed by Abdul Kadir (PW6) also. As a result of injuries,
Muliyabai died. On 20.3.2002 at about 7.00 A.M. Abdul Kahar (PW1) went to
the house of accused and saw Muliyabai dead. He went to police station
Kindrai and lodged first information report Ex. P/19. A merg intimation Ex. P/1
was also recorded.
3. Head Constable Santram Tiwari (PW10) along with his staff went to the
house of accused and conducted inquest. He recorded injuries found on the
body of Muliyabai in inquest report Ex. P/3. Next day morning i.e. 21.3.2002
dead body of Muliyabai was sent for postmortem examination to Community
Health Centre, Ghansaur. Dr. S.C.Jain (PW11) conducted the postmortem
examination and found six injuries on the body caused by hard and blunt
object. Fourth, fifth, eleventh, and twelveth ribs of the left side were found
fracture. Spleen of the deceased was also ruptured. Death was homicidal in
nature. After investigation, charge sheet was filed and the case was committed
for trial.
4. Accused pleaded false implication. According to him, deceased had
consumed liquor. Under the spell of liquor, she had fallen down on woods and
stones and contracted injuries which resulted into her death.
5. Prosecution examined Abdul Kadir (PW6), Halkeram (PW7) and
Yeshwant (PW8) as eye witnesses of the incident. Halkeram and Yeshwant did
not support the prosecution case. However, relying on the evidence of Abdul
Kadir (PW6) and finding his evidence corroborated by the evidence of Dr. S.C.
Jain (PW11) trial Judge held the accused guilty and convicted and sentenced
him under Section 302 of the Indian Penal Code.
6. Smt. Durgesh Gupta, learned counsel for the appellant submitted that
eye witnesses Halkeram (PW7) and Yeshwant (PW8), who are said to be
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present in the house of accused did not support the prosecution case. Abdul
Kadir (PW6), who resided at some distance from the house of accused, in fact
did not see the incident, but falsely implicated the accused in the case. His
evidence was not reliable. Learned counsel further submitted that in view of
the evidence on record and the nature of injuries found on the body of
deceased, the conviction of accused under Section 302 of the Indian Penal
Code was not justified. Since there was no evidence on record to indicate that
accused intended to cause death of his wife, at the most accused could have
been held liable for the offence under Section 304-II of the Indian Penal Code.
Accused had been in custody since about 8 years. On the other hand, Shri
S.K.Rai, learned Govt. Advocate for the State contended that the evidence of
Abdul Kadir (PW6) was fully reliable. The contradictions found in his statement
were in fact not material. There was sufficient evidence against the accused
and the trial Court rightly convicted the accused under Section 302 of the
Indian Penal Code.
7. It is true that alleged eye witnesses Halkeram (PW7) and Yeshwant
(PW8), who were admittedly present in the house of deceased, did not support
the prosecution story. According to them, deceased was not present in the
house, therefore, they did not see the incident. Their evidence apparently is of
no help to prosecution. However Abdul Kadir (PW6) categorically stated that
when he was present in his `Badi’ he heard accused asking for food from his
wife. He saw Muliyabai running out of the house and accused chasing her
wielding a lathi. Accused assaulted Muliyabai with lathi, due to which she fell
down. Accused repeatedly assaulted her with lathi. Thereafter, he went inside
the house. Though, certain contradictions were pointed out by learned counsel
for the accused in the statement of this witness, but in our opinion they were
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not on material parts of the prosecution story and did not effect the credibility
of this witness. There appeared no reason for this witness to have falsely
implicated the accused for causing death of his wife. Trial Court after closely
appreciating the evidence of this witness, rightly concluded that his evidence
was trustworthy. The evidence of this witness is also corroborated by the
evidence of Dr. S.C.Jain (PW11), who performed the postmortem examination
of the body of deceased. As per postmortem examination report Ex. P/17-A, he
found following injuries on the body of deceased:
(i) One contusion on left axillary region above ilium bone on 11th and 12th
rib size 2″x1″,
(ii) bruise on the back of fourth left thoracic spine 1 1/2″x1/2″,
(iii) bruise on the back of seventh thoracic vertebra 2″x1.5″,
(iv) bruise on the left side of back on 10th thoracic spine 2″x1/2″,
(v) bruise on left side of chest 2″x1/2″ &
(vi) bruise on left arm near acromial angle 2×1/2″.
On internal examination, Dr. Jain found that 4th, 5th, 11th and 12th ribs of
the left side of the deceased were fractured. Spleen was also ruptured. Cause
of death of deceased was excessive haemorrhage and shock due to injury of
spleen. The death was homicidal in nature. The injuries were grievous in
nature.
8. After examining the evidence of Abdul Kadir (PW6), the eye witness, in
the light of evidence of Dr. S.C. Jain (PW11), we find that it is amply
established that it was accused only, who had caused injuries to deceased
which resulted into her death.
9. The next question before us is whether the accused was rightly
convicted under Section 302 of the Indian Penal Code.
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10. From the evidence of Abdul Kadir (PW6), it appears that the incident had
occurred on a sudden altercation between the accused and the deceased for
giving food to him. There is nothing on record to indicate that accused had any
intention or motive to commit murder of his wife. The incident had occurred
suddenly without any premeditation. Apart from it, none of the injuries found
on the body of deceased was on any vital part of the body. Dr. Jain opined
that the injuries were grievous in nature. The cause of death was haemorrhage
by rupture of spleen. In these circumstances, we are of the view that the
conviction of appellant under Section 302 of the Indian Penal Code was not
justified. However, since accused assaulted the deceased with lathi, it can be
held that he had knowledge that by his act he was likely to cause death of
deceased. Accordingly, the conviction and sentence of appellant under Section
302 of the Indian Penal Code is set aside. Instead he is convicted under
Section 304-II of the Indian Penal Code. It is on record that appellant is
continuously in jail since 20.3.2002. Thus, he has already suffered
imprisonment for a period of about 8 years. In these circumstances, he is
sentenced to the period of custody already undergone by him. He be released
forthwith if not required in any other case.
11. Appeal partly allowed.
(RAKESH SAKSENA) (G.S.SOLANKI)
JUDGE JUDGE
AD/