Fagnu vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 29.11.2001 passed by Additional Sessions Judge, Multai District Betul in Sessions Trial No. 80/2000 convicting the appellant u/s 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/-. In default of payment of fine further rigorous imprisonment for one year. Facts of the case are that Sopat, the deceased was the uncle of appellant/accused Fagnu. Agricultural lands of deceased and accused were situated adjacent in village Muariya, however, the well and motor-pump installed on it were common. Accused claimed that since his land was more than deceased, and the well was situated on his land, he would take more water. On this dispute, there occurred frequent quarrels and accused hurled abuses to deceased. Because of this dispute, in the intervening night between 19th-20th of January, 2000 at about 12 o''clock, when deceased came out of his house to urinate, accused assaulted him with axe. He dealt many blows with it as a result of which deceased died at the spot. Complainant Tillu (PW-2), the son of deceased, when heard screams of his mother Chikko Bai (PW-3), rushed to the spot and saw accused running away with axe in his hand. He saw his father lying injured in a pool of blood. Many people reached at the spot. Tillu (PW-2) went to police station Bordehi and lodged first information report Ex. P/4 at 11:40 a.m. Sub Inspector K.P.S.Chauhan (PW-17) went at the spot and conducted inquest proceedings. He prepared inquest memorandum Ex. P/2, spot map and sent the dead body of Sopat for postmortem examination to Primary Health Centre, Amla.

Dr. D. Singh conducted postmortem examination of the body and gave report Ex. P/11. Since Dr. Singh died after retirement, the said report was proved by Dr. B.P. Chouriya (PW-18), Block Medical Officer of P.H.C., Amla. As per postmortem report, number of incised wounds were found on the neck and left forearm of deceased. Deceased had died due to shock resulting from excessive haemorrhage. After requisite investigation, charge sheet was filed and case was committed for trial.

On charge u/s 302 I.P.C. being framed, accused abjured his guilt and pleaded false implication due to enmity. He also examined Ram Kishore (DW-1) and Sonu (DW-2) in his defence.

Prosecution, to prove its case, examined 18 witnesses. Relying mainly on the evidence of Chikko Bai (PW-3) as eyewitness and the medical evidence of Dr. B.P. Chouriya (PW-18), learned trial Judge held the appellant guilty, convicted and sentenced him u/s 302 I.P.C. Aggrieved by his conviction, appellant has filed this appeal.

Learned Counsel for the appellant submitted that the evidence of Chikko Bai (PW-3), the wife of deceased, as a solitary eyewitness, was not reliable. Her son Tillu (PW-2) and many other witnesses did not support the prosecution case. Since the incident had occurred in the night and there was no light, it was not possible for Chikko Bai or any other witness to identify the assailant. Learned trial Judge mis-appreciated the evidence on record and illegally recorded the finding of conviction of appellant. On the other hand, learned Counsel for State submitted that in the facts and circumstances of the case, the evidence of Chikko Bai was reliable. It stood corroborated by the evidence of Jagoti Bai (PW-9), Bagga (PW-10), Buklu (PW-11) and Bhagoti Bai (PW-12), who stated that Chikko Bai (PW-3) disclosed the name of appellant to them immediately after the occurrence. He submitted that merely because some witnesses turned hostile and did not support the prosecution version, the evidence of eyewitness Chikko Bai (PW-3) could not be discarded.

We have heard the learned Counsel for the parties, perused the impugned judgment and the evidence on record.

It has not been disputed that Sopat died in the night intervening between 19th-20th January, 2000 and that his death was homicidal. Chikko Bai (PW-3), the wife of Sopat, stated that accused Fagnu assaulted her husband with axe when he went out of the house for urination. As a result of injuries on his neck, head and hand, Sopat died. Tillu (PW-2), Vinodi, Kotwar (PW-5), Suklu (PW-8), Jagoti Bai (PW-9), Bagga (PW-10), Buklu (PW-11), Bhagoti (PW-12) and Sunde (PW-13) categorically stated that Sopat died due to injuries on his body. Investigating Officer K.P.S. Chauhan recorded first information report Ex. P/4 on the information given by Tillu (PW-2). He went at the spot, prepared inquest memorandum Ex. P/2 in presence of witnesses and sent the dead body for postmortem examination. Dr. B.P. Chouriya (PW-18) stated that postmortem examination of deceased was conducted by Dr. D. Singh, who died after his retirement. Postmortem examination report Ex. P/11 was prepared by Dr. D. Singh. According to said report, Dr. Singh found following injuries on the body of deceased:-

(i) Incised wound 4" x 2" x bone deep on right side of upper neck.

(ii) Incised wound 4" x 2" x bone deep on right side middle and lower part of neck.

(iii) Incised wound 4� x 2� x bone deep on lower part of neck.

(iv) Incised wound on left forearm.

(v) Incised wound 4" x 2" x bone deep on back.

In the opinion of doctor, the cause of death was shock due to excessive haemorrhage from the injuries found on head and neck. The injuries were ante mortem and death was homicidal in nature. Postmortem report Ex. P/11 was written and signed by Dr. D. Singh.

From the aforesaid evidence, it stood proved that deceased Sopat died a homicidal death.

Now the question before us is whether appellant caused the death of deceased. Learned Counsel for the appellant submitted that there was only solitary evidence of Chikko Bai (PW-3), the wife of deceased, who stated that she witnessed the occurrence. She could not be said to be a wholly reliable witness; her evidence was suspicious since number of witnesses contradicted her in stating that she did not disclose the name of appellant after the occurrence and that it was not possible for her to have identified the assailant in the night in the absence of light.

Chikko Bai (PW-3) stated that she knew the appellant since he was the son of her husband''s younger brother. In the night at about 12 o''clock, when she was in her house with her children and her husband went out for urination, she heard noise. When she went out she saw appellant assaulting her husband with axe on his neck, head and hand. On her shouting, her son Tillu also reached there and appellant ran away. Tillu informed the incident to Kotwar and went to lodge the report. She stated that there was light in her house and also at the place where appellant had assaulted her husband. She denied the suggestion that she did not tell Tillu that somebody killed her husband and that she could not identify the assailant due to darkness. It is true that Vinodi, Kotwar (PW-5), Tillu (PW-2) and Suklu (PW-8) stated that Chikko Bai did not tell them that it was appellant who assaulted the deceased, but at the same time Jagoti Bai (PW-9), Bagga (PW-10) and Bhagoti (PW-12) who were with Chikko Bai in the house, categorically stated that Chikko Bai immediately after the occurrence, told to them that appellant killed Sopat.

As far as the evidence of Sunde (PW-13) is concerned, he did not say that appellant assaulted deceased, but he was confronted with his police statement recorded u/s 161 Cr.P.C., by the Court wherein he stated that he saw appellant assaulting his son with axe. Tillu (PW-2) stated that he heard her mother shouting that his father had been killed. When he reached there, he saw his father lying dead. He did not see appellant assaulting his father, but he saw appellant running away. There were about seven injuries of axe in the neck of his father. This witness did not support Chikko Bai on the point that she shouted that Fagnu killed his father. From his evidence, it however seems that he saw appellant running away from the spot. Even if Tillu (PW-2), Vinodi, Kotwar (PW-5) and Suklu (PW-8) did not support the evidence of Chikko Bai on the point that she disclosed the name of appellant after the incident, yet her evidence finds corroboration from the evidence of Jagoti (PW-9), Bagga (PW-10), Buklu (PW-11) and Bhagoti (PW-12) who stated that Chikko Bai informed them that appellant killed Sopat with axe.

As far as question of identification of appellant by Chikko Bai (PW-3) is concerned, appellant was her close relative and was well known to her. According to Chikko Bai, there was light of electric bulb. It is true that Tillu (PW-2), Suklu (PW-8), Bhagoti (PW-12) and Sunde (PW-13) admitted that there was no light, but Tillu stated that there was sufficient moon light in which a person from close distance could be seen. Apart from it, no question about the absence of light on the spot was asked to investigating officer K.P.S. Chauhan (PW-17). Placing reliance on a decision of this Court rendered in Chain Singh Vs. State of Madhya Pradesh-Criminal Appeal No. 554/1993, learned Counsel for the appellant submitted that if an eyewitness improved his evidence and planted the story of electric bulb, which was not mentioned by him in the first information report, and the night was a dark night, the evidence of such witness suffered with material omission. Merely because some witnesses including the son and father of the deceased did not support the prosecution case, it cannot be held that evidence of Chikko Bai who happened to be the wife of deceased, was rendered unreliable. There was no reason for her to have falsely implicated the son of her husband''s younger brother. Her evidence about the presence of electric light and the evidence of Tillu (PW-2) and Bhagoti Bai (PW-12) about the presence of moon light at the time of occurrence cannot be lightly brushed aside. The fact about there being light in the house and at the place of occurrence was brought in evidence in the cross-examination part of the evidence of Chikko Bai (PW-3). This fact was not proved to be an omission in her any earlier statement.

As far as motive on the part of appellant to cause death of deceased is concerned, Tillu (PW-2), Suklu (PW-8), Jagoti Bai (PW-9), Buklu (PW-11) and Bhagoti (PW-12) categorically stated that there had been some dispute between deceased and his brother Sopti. Appellant was the son of Sopti. Sopti used to tell that he would not give water to deceased from the well for irrigation. True, the enmity is a double edged weapon, but in the instant case, Chikko Bai (PW-3) remained firm in saying that it was appellant who caused the death of her husband whereas her son Tillu and father of deceased Sunde went against the prosecution version. Therefore, there seemed no reason for Chikko Bai to have falsely implicated appellant as assailant in these circumstances.

No doubt Tillu (PW-2) denied that he saw appellant assaulting deceased with axe, but he admitted that he saw him running away and that he lodged first information report Ex. P/4. The fact that he saw appellant running away from the spot was mentioned by him in the first information report Ex. P/4 also.

Evidence of eyewitness Chikko Bai (PW-3) that appellant assaulted deceased with axe finds further corroboration from the evidence of Dr. B.P. Chouriya (PW-18) who proved the postmortem examination report Ex. P/11 recorded by Dr. D. Singh. According to Dr. Chouriya, in the postmortem report, Dr. Singh recorded that injuries by sharp edged weapon were found on the body of deceased.

On a close and critical scrutiny of the evidence of Chikko Bai, we find that she was a wholly reliable witness. Learned trial Judge, in our opinion, committed no error in placing reliance on her evidence and holding that it was appellant who caused the death of deceased by causing injuries to him with axe.

For the aforesaid reasons, the conviction of appellant u/s 302 I.P.C. and the sentence of life imprisonment with fine of Rs. 1000/- awarded to him by the trial Court is affirmed. Appeal dismissed.