Rohit Arya, J
This appeal by an accused under section 374 Cr.P.C., is directed against the judgment of conviction and order of sentence dated 13/01/2011 passed in
sessions trial No.254/2009 by the Special Judge [S.C. S.T Act (Prevention of Atrocities Act, 1989), Rajgarh (Biaron) convicting the appellant under
section 302 IPC and sentenced to suffer life imprisonment with fine of Rs.2000/-and in default of payment of fine to undergo one year additional
rigorous imprisonment.
2. As per prosecution story, the daughter of Mangilal (P.W.12) Hokambai (since dead) was married to Ravi Singh (the accused) about 12 years ago
and begotten a son, namely; Ankit prior to one and half years of the incident. Her son Ankit has been suffering from boils on the face, as such,
Mangilal (P.W.12) on 01/08/2009 took his grandson alongwith his daughter (since dead). After treatment at the hospital, he left them at her inlaws
house. As Ankit was required to be taken to the hospital on the next day and he had some urgent work, he gave Rs.200/- and instructed his son
Gaurilal (P.W.9) for taking Ankit to hospital for administering injection.
By acting thereupon, Gaurilal (P.W.9) went to his sister's house and informed her that Ankit has to be taken to the hospital for administering injection.
However, the deceased refused to do so under the influence of mother-in-law and her husband/the accused. At that time, the accused physically
assaulted him with stick. To rescue him, the deceased intervened. He escaped from their house and reached his home situated at village Patri but, the
deceased received serious and grave injuries on her head inflicted by the accused resulting into her death.
In the aforesaid factual matrix, Marg Intimation under section 174 Cr.P.C., (Exhibit P/10) was lodged at the Police Station Machalpur at about 5.30
p.m., whereupon Dehati Nalishi (exhibit P/9) was recorded by Virendra Kumar Singh (P.W.11), Station House Officer of the Police Station in respect
of the alleged incident at about 12.00 p.m., under Section 302/34 of IPC to the effect that while Hokambai (since dead) was taken to hospital in an
injured condition by Fateh Singh (father-in-law of the deceased) alongwith one Narayan, she died due to the injuries caused upon her person on the
way. Ashok Verma, Naib Tahsildar (P.W.1) prepared the panchayatnama lash (exhibit P/1) on 03/08/2009 who has found three external injuries on
the person of the deceased; out of which from one injury, blood was oozing.
During investigation, Virendra Kumar Singh the Investigating Officer (P.W.11) has arrested the accused in the presence of witnesses; Kamal Singh
(P.W.3) & Girraj (P.W.5) and prepared arrest memo (exhibit P/5). On the basis of information furnished by the accused, seized the stick (lathi) made
from Babul tree used in the commission of offence (exhibit P/3). Spot map was prepared vide exhibit P/2. Also seized, simple earth, blood stained soil
etc., and FSL report is exhibit P/14. The dead body was sent for post mortem. On completion of the investigation, a charge sheet was filed against
two accused persons including the present appellant before the concerned Court. The body of deceased was sent for post mortem (exhibit P/15).
3. Dr. Pradeep Kumar Jain (P.W.4) and his team of three doctors conducted post mortem (exhibit P/15) has found; (i) the age of deceased as 25
years; (ii) eyes semi-open; (iii) pupil dilated and fixed; (iv) bleeding through both nostrils and dribbling on left cheek (v) contusion present 2 x 2 cms.,
over right frontal area of skull; (vi) contusion 3 x 3 cms., on occipital region of skull; (vii) lacerated wound 3 x 1 cms., upto bone deep on occipital area
of skull fracture with clotted blood. (viii) rigor mortis present forehead to hypostasis on back and opined that mode of death was due to shock and
intracranial heamorrhage and the cause of death was due to injuries present on occipital region of the skull. As such, deceased had suffered death
within 12-24 hours of the post mortem.
4. The trial Judge on the basis of the material placed on record framed charge punishable under Sections 302 IPC against both the accused persons.
In addition to the aforesaid charge, charge under section 302/34 IPC has been framed against them. All the accused denied the charge and claimed to
be tried. The defence of the accused including the present appellants is of false implication and the same defence they set forth in their statements
recorded under Section 313 of the Code of Criminal Procedure, 1973.
5. The prosecution has examined as many as 12 witnesses and placed Exhibits P/1 to P/16, the documents on record. The accused have examined
two witnesses; Radheshyam (D.W.1) and Mohanlal (D.W.2) in their defence.
6. The Trial Judge while carefully examining the evidence of eye-witnesses has found that there is consistency in the statements of eye-witness
Gaurilal (P.W.9) who has also received injuries vide MLC report (exhibit P/16) and the other witnesses, i.e., father of the deceased Mangilal
(P.W.12) and the independent witness, Ashok Verma (P.W.1). On the basis of overwhelming evidence of occurrence of the incident and involvement
of the accused/appellant reached the conclusion that the death of the deceased is culpable homicide amounting to murder as the accused-appellant hit
the deceased with a stick made from Babul tree with an intent to kill her and consequently, convicted him for offence under Section 302 of IPC
sentencing him for life imprisonment. Accordingly, held that charge under Section 302 IPC has been proved against the accused/appellant as a result
of which he has been convicted and passed the sentence as mentioned hereinabove. However, he has been acquitted from the charge under Section
302 read with section 34 IPC. The Trial Court after close scrutiny of the evidence came to hold that the charge under Sections 302 and 302/34 IPC
are not proved against the co-accused, Kanchanbai and, eventually, acquitted both of them from the aforesaid charges.
7. This appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the Trial Court.
8. The State of Madhya Pradesh did not chose to file any appeal against acquittal of the co-accused person under Sections 302 and 302/34 IPC and
the acquittal of the appellant under Section 302/34 IPC, hence the case has attained finality in that behalf.
9. Gaurilal (P.W.9) in para 1 of his deposition has deposed that on the fateful day he went to his sister's house to administer injection to Ankit son of
his sister at the hospital. However, his sister informed that Ankit went to the field alongwith her mother-in-law. Therefore, he went to the field and
asked them to come to the village. They did so. After reaching home, on account of some misunderstanding in the house, the mother-in-law of the
deceased tried to hit her with broom. However, his sister (since deceased) resisted him to take Ankit to the hospital. At that time, his brother-in-law
(the accused) hit him with a stick. To rescue him, the deceased intervened, however, he ran away from their house. The accused hit her with the stick
on head as a result she received various injuries on head and died. In the cross examination, the testimony of Gauruilal (P.W.9) remained intact.
Likewise, Mangilal (P.W.12) though not an eye-witness has also narrated the factual matrix given the eye witness account of incident and his
testimony has also remained intact in cross-examination. The aforesaid depositions of witnesses are well corroborated with the post mortem report as
well as the deposition of Dr.Pradeep Kumar Jain (P.W.4), who has described the injuries sustained by the deceased as stated above.
10. Learned counsel for the appellant while criticizing the impugned judgment contends that there is mis-appreciation of the evidence on record and
committed grave illegality having relied upon the testimony of the evidence led by cited witnesses including the alleged eye-witnesses, i.e., Gaurilal
(P.W.9) and Mangilal (P.W.12). According to the learned counsel, the act of commission of crime by the appellant has not been proved by the
prosecution and further there was no cogent evidence to establish the ingredients of offence under Section 302 IPC, therefore, the trial Court erred in
convicting the appellant, hence, the appeal be allowed and the appellant be acquitted from the charge.
11. An alternate submission has also been put-forth by the learned counsel for the appellant that if this Court comes to the conclusion that the
appellant has caused injuries on the person of the deceased, the same were not intentional or premeditation or pre-planned but the act was due to
sudden provocation. According to him, since the deceased Hokambai meddled into unnecessary arguments and acting against the wishes of the
appellant, that caused appellant sudden provocation and inflicted the injuries on the head of the deceased. There was no premeditation either to cause
bodily injury or death of the deceased Hokambai. Under such circumstances, the case at the most fall within the exception 4 of section 300 IPC,
which reads as under -
“300. Murder :
Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, while deprived of the power of self-control by
grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or
accident.
The above exception is subject to the following provisos:-
First. … … …
Secondly … … …
Thirdly …. … …
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. Explanation.- It is immaterial in such cases which party
offers the provocation or commits the first assault.
and therefore punishment under Section 302 IPC is wholly unwarranted, instead, the appellant may be held guilty for offence under Section 304 Part II
IPC. Further, the sentence may be reduced to the period already undergone by him as he has already undergone about 09 years of the sentence.
12. Per contra, learned Public Prosecutor has supported the impugned judgment and finding arrived at by the trial Court and submitted that the
conviction in question is well merited.
13. Heard.
14. Taking into consideration the evidence of Gaurilal (P.W.9), Mangilal (P.W.12) and Dr. Pradeep Kumar Jain (P.W.4), this court is of the view that
death was homicidal in nature but, there is no evidence of any premeditation of the accused appellant to cause injury upon the body of the deceased;
much less, with an intention to cause such bodily injury, which could result into death, as it has come in the evidence of Gaurilal (P.W.9) that while he
went to administer injection to Ankit to the hospital, there was resistance, the appellant took a wooden stick and hit him and to rescue him, the
deceased intervened and received the injuries on her head. Such course of event in the opinion of this court, in fact, suggests that the same provided a
sudden and grave provocation to the accused appellant which drove him to use force by inflicting injuries on the head of the deceased and, therefore,
this court finds substantial force in the submission advanced by the learned counsel for the appellant that the instant case falls under Exception IV to
Section 300 IPC. Under such circumstances, we are not in agreement with the conclusion of the trial court for conviction of the appellant under
Section 302 IPC. Therefore, this court is of the view that the present case is a case of culpable homicide not amounting to murder and, therefore, the
appellant is liable for punishment under Section 304 Part II of IPC. The aforesaid view finds support from the judgment of the Supreme Court in the
case of State Vs. Sanjeev Nanda - AIR 2012 SC 3104.
15. Consequently, the appeal is allowed in part. The conviction of the appellant under Section 302 IPC is hereby set aside, instead he is convicted
under Section 304 Part II of IPC and sentenced to 09 years RI with fine of Rs.2,000/- (Rupees two thousand only) and default stipulation [relied upon
judgment of Division Bench of this Court in the case of Premsingh s/o Lal Singh and another Vs. State of M.P., (2006) 4 MPLJ 526]
16. At this stage, learned counsel for the appellant submits that the appellant is in jail since 13/01/2011 and about 09 years period he has undergone,
therefore, he may be set at liberty. This fact is found verified with the record of the case. In the obtaining facts and circumstances, since the appellant
has undergone the sentence of about 09 years, he is directed to be released forthwith if not required in any other criminal case subject to payment of
fine amount.
17. Consequently, this appeal is allowed in part to the extent indicated hereinabove.
18. The Registry is directed to send the copy of this judgment immediately along with the record to the Trial Court for necessary compliance.
