Bawan vs State of M.P.

This appeal has been filed by the appellant being aggrieved by the judgment dated 28.09.2007 passed by the Additional Sessions Judge,

Burhanpur (M.P.) in S.T. No.276/2005 by which the trial Court has held the appellant guilty of an offence punishable under section 302 of the

Indian Penal Code and sentenced him to undergo life imprisonment.

The prosecution case, in brief, is that the appellant who is the elder brother of the deceased Uttam struck him with a flat piece of wood on

01.08.2005 while the deceased had bought a Vaidya for his treatment, as a result of which, the deceased suffered serious internal injuries and

fractures in the tempo parietal region and hemorrhage, resulting in his death. According to the prosecution as well as two eye witnesses; Vinod

(PW/1), son of the deceased and Rekha Bai (PW/9), daughter of the deceased, the deceased Uttam had bought a Vaidya from another village for

the treatment of the appellant, who is stated to be suffering from some mental illness. It is stated that when the deceased and the Vaidhya were

talking, the appellant struck his younger brother, the deceased from behind from a flat piece of wood on the right side of his head, resulting in

injuries, which turned out to be fatal.

As per the statements of Vinod (PW/1), Rekha Bai (PW/9) and Pramila Bai (PW/10) wife of the deceased as well as the statement of Kamla

Bai (PW/2), sister of the deceased, on receiving the injuries the deceased was taken for treatment to Community Health Center, Khaknar, where

after giving him the primary treatment, Dr. Tarun Kumar Chauksey (PW/20) referred him for further treatment as well as for CT Scan to the

District Hospital Jalgaon whereafter a CT Scan was conducted and the deceased was put on a ventilator. As per the statements of these

witnesses, when the doctor gave an opinion that the chances of the deceased surviving were very slim, the family members namely; Prabhakar

(PW/6) and Kamla Bai (PW/2) got the deceased discharged and brought him home, whereupon he died within two hours at their house in village

Sangrampur and thereafter Prabhakar (PW/6) and other family members immediately cremated him. The First Information Report in respect of the

incident was lodged by Vinod (PW/1) on the same day on 01.08.2005, whereafter the criminal law was set in motion.

According to the prosecution, when the police reached the spot, the family members had already cremated the deceased and, therefore, the

ashes etc. were seized and on the statements of the appellant, the flat piece of wood was discovered and seized vide Ex.P/13 and was sent to the

Forensic Laboratory for examination. According to the FSL report Ex.P/26, blood was found on the said stick that was seized from the appellant

in the presence of seizure witnesses; Hardas (PW/12) and Gondu (PW/15) who have affirmed the seizure of the said weapon from the appellant.

The trial Court on the basis of the statements of Vinod (PW/1), Rekha Bai (PW/9), Pramila Bai (PW/10) as well as the statements of doctors;

Dr. Rajesh Jain (PW/21) and Dr. Tarun Kumar Chouksey (PW/20) has recorded a finding of guilt against the appellant and convicted him for the

offence punishable under Section 302 of the Indian Penal Code.

We have heard the learned counsel for the parties and have extensively perused the record. From a perusal thereof, it is apparent that Vinod

(PW/1) and Rekha Bai (PW/9), son and daughter of the deceased are two eye-witnesses to the incident and have clearly stated that the appellant

struck the deceased from behind with a flat piece of the wood that was seized from him and that immediately on being struck, the deceased

collapsed and was thereafter taken to the hospital, by which time, he became unconscious, and that blood was oozing out from his ear, nose and

mouth. According to the statements of and Dr. Tarun Kumar Chouksey (PW/20) and Dr. Rajesh Jain (PW/21), it is also apparent that the

deceased was unconscious and that his condition was serious on account of which he referred the deceased to Jalgaon for CT Scan and the report

of the CT Scan indicates that there were multiple fractures in tempo parietal region of the skull with multiple hemorrhages, and that the deceased

succumbed to the said injuries.

The statements of the seizure witnesses Hardas (PW/12) and Gondu (PW15) also establish the fact that the offending weapon was discovered

on the statement of the appellant and was produced by him, whereupon it was seized in their presence and that blood was found on the said stick

as per the FSL report Ex.P/26.

The record of the case further indicates that though Kamla Bai (PW/2) and Durga Bai (PW/3) sisters of the deceased, Dwarka Bai mother of

the deceased(PW/4) and Sahebrao (PW/13) brother of the deceased have been declared hostile as they have not affirmed their case diary

statements to the effect that they saw the appellant strike the fatal blow on the head of the deceased, however, these witnesses have clearly stated

that the deceased did suffer the injuries, on account of which, he was taken for treatment, whereafter he died.

A perusal of the statement of the Pramila Bai (PW/10) wife of the deceased makes it clear that she did not see the incident, however, she heard

her husband fall whereafter she rushed out of the kitchen and saw her husband lying on the ground with the appellant standing near him with a flat

piece of wood in his hand.

Vinod (PW/1) and Rekha Bai (PW/9), son and daughter of the deceased who are the two eye-witnesses have clearly stated that the appellant

assaulted the deceased, as a result of which, he died.

In view of the aforesaid oral and documentary evidence on record, we are of the considered opinion that the trial Court has not committed any

perversity or illegality in relying upon the consistant, reliable and truthful statements of Vinod (PW/1) and Rekha Bai (PW/9) two eye-witnesses as

well as the statements of doctors Dr. Rajesh Jain (PW/21) and Dr. Tarun Kumar Chouksey (PW/20) and the FSL report Ex.P/26 to record a

finding of guilt against the appellant as the aforesaid statements of the witnesses and the documents clearly established without any reasonable

doubt the guilt of the appellant.

In the circumstances, the judgment of the trial Court dated 28.09.2007 passed in S.T.No.276/2005 and the conviction of the appellant under

Section 302 of the IPC is hereby affirmed and confirmed. The appellant who is in Jail shall remain incarceration to undergo the remaining part of

the sentence.

The appeal filed by the appellant being meritless is accordingly dismissed.