Jaimal vs State of M.P.

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 27.12.2012 passed by learned First Additional Sessions Judge, Harda in Sessions Trial No. 67/2011 convicting appellant for the offence punishable u/s 302 of IPC and thereby sentencing him to suffer life imprisonment with fine of Rs. 2000/- with default stipulations, this appeal has been preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since in elaboration they are mentioned in para 2 of the impugned judgment. However, for ready reference, it would condign to mentioned here that as per the prosecution''s own case the appellant and deceased were friends and both of them had gone to consume the liquor and laughter was going on between them. During the course of laughter, all of a sudden the appellant took out a stick from the thatch roof of the house of Mangilal and inflicted its single blow on the temporal region of deceased, as a result of which he died. Dehati-nalishi was lodged by Ganesh and on the basis of which a case was registered and investigation was made.

After the investigation was over, a charge sheet was submitted in the committal court which committed the case to the Court of Session from where it was received by the trial Court for trial.

The learned Trial Judge on the basis of material available on record, framed the charge punishable u/s 302 of IPC. Needless to say that appellant abjured his guilt and pleaded complete innocence.

In order to bring home the charge of Section 302 of IPC against the appellant the prosecution examined its witnesses and proved certain documents. The defence of the appellant is of maladroit implication and the same defence he set-forth in his statement recorded u/s 313 Cr.P.C. but in support of his defence he did not choose to examine any witness.

The learned Trial Judge on the basis of evidence placed on record came to hold that the charge has been proved against the appellant and eventually convicted him and passed the order of sentence which we have mentioned in paragraph 1 of this judgment.

In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

The contention of learned counsel for appellant is that the sole eyewitness to the incident is Ganesh (PW2). By inviting our attention to the testimony of this witness, it is submitted that it is not worth reliable, therefore, learned Trial Court has erred in convicted the appellant u/s 302 of IPC. An alternative submission has also been put-forth by learned counsel that if this Court comes to the conclusion that on account of giving single stick blow by the appellant on the temporal region of deceased resulting into his death, since laughter was going on in between them and there was no previous enmity between them and they also consumed liquor, therefore, in that state of mind, if the appellant snatched the stick from the thatch roof of house of Mangilal (PW1) and dealt its blow, at the most case would rest within the ambit and scope of Section 304 (Part-II) of IPC.

On the other hand, Shri Mishra, learned Public Prosecutor has argued in support of impugned judgment and submitted that learned Trial Court did not commit any error in convicting the appellant u/s 302 of IPC holding the appellant to be guilty of the said offence and hence prayed that this appeal be dismissed.

Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.

On bare perusal of the testimony of Ganesh (PW2) we find that appellant and deceased were consuming liquor in the house of Mangilal (PW1) and exchange of laughter was going on between them. During the course of exchange of laughter, all of a sudden the appellant snatched the stick from the thatch roof of house of Mangilal and dealt its blow on the temporal region of deceased, resulting into his death.

The testimony of sole eyewitness Ganesh (PW2) is corroborated by Autopsy Surgeon Dr. Shailendra Thakur (PW10) and the postmortem report of the deceased is Ex. P/20 in which we find that solitary injury caused by hard and blunt object has been found on the right temporal region of the deceased. Hence, according to us, learned Trial Court did not commit any error in holding that the appellant dealt stick blow on the temporal region of the deceased.

Coming to alternative submission made by learned counsel for appellant, we find that as per the prosecution''s own case which has been proved by the eyewitness Ganesh (PW2) there is no previous enmity between the deceased and appellant and both of them were friends and were consuming liquor together and exchange of laughter was also going on and during that juncture, if the appellant snatched the stick from the thatch roof of house of Mangilal and dealt its blow on the temporal region of deceased, he was not having knowledge that on account of giving said blow, the deceased would die and therefore case would come within the sphere of Section 304 (Part-II) of IPC. Resultantly, this appeal succeeds in part. Conviction of appellant is altered from section 302 IPC to Section 304 (Part-II) of IPC and he is sentenced to suffer seven years rigorous imprisonment with fine as awarded by learned Trial court.