Jasram vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s 374 (2) of the Criminal Procedure Code 1973 preferred by the accused/appellant is directed against a Judgment dated 9th February 2009 delivered in Sessions Trial No. 134/2008 by the Sessions Judge Guna (M.P.), convicting thereby the appellant for causing murder of his own wife Kasumalbai, which is an offence punishable u/s 302 of I.P.C. and sentencing him to suffer imprisonment for life with a fine of Rs. 500/-, in default of payment of which to undergo additional rigorous imprisonment of one month. Briefly narrated the prosecution case is that on 2nd December 2007 at about 12 in the noon, at village Banskedi, Police Station Bamori, district Guna accused Jasram in his in-law''s residence, was compelling his wife Smt. Kasumalbai to return back to his house at village Simarnia but she was refusing because the accused had no work in his village, on the other hand, she was maintaining her children by doing labour work in her parental village. On dispute between the couple, the accused inflicted injuries on the head and face by using an Axe, resultantly, she died on the spot. Mangi Adiwasi, brother of the deceased lodged the F.I.R. at Police Station Bamori. The investigation was set in motion. Postmortem was conducted on the person of Smt. Kasumalbai. The case-diary statements of the eyewitnesses were recorded. The accused was arrested. The weapon of crime (Axe) was recovered from possession of the accused. The weapon was chemically examined in the State Forensic Science Laboratory, Sagar. A Marg was also registered. After inquiry and investigation, the charge-sheet was filed. On committal, the Sessions trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence u/s 302 of I.P.C., hence this appeal.

It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the Trial Judge is against the peculiar facts, evidence of the case and the law, hence, same is liable to be set aside. It is pointed out that eyewitness Smt. Ajuddhibai (PW-4) who is mother of deceased was an old and infirm lady whose eyesight and hearing capacity gave already answered. Thus, her statement according to the learned counsel is not worthy of credence. Apart from it, the statements of other related witnesses cited by the prosecution do not inspire confidence since they contained so many omissions and contradictions. It is further pointed out that the prosecution in this very case examined only interested witnesses and no independent witness was produced and examined to prove the guilt against the accused-appellant. Lastly, it is contended that the trial Judge has erred to follow the settle proposition of law that even if the entire prosecution case is accepted as true, the guilt of the appellant, at the most, would be covered by culpable homicide not amounting to murder. Hence, it is prayed that by allowing the appeal, the accused be acquitted of the charge.

The learned Public Prosecutor appearing for the respondent/State, on the other hand, supported the impugned judgment and contended that there is no illegality or perversity in the findings arrived at by the learned trial court. Hence, it is prayed that the appeal be dismissed.

Heard the learned counsel appearing for the parties and also perused the impugned judgment and the evidence on record.

The question to be answered is whether the accused-appellant has done an act by doing which he has caused the death of the deceased ?.

To prove the charge for commission of offence punishable under Sections 302 of I.P.C., the prosecution has examined as many as eleven witnesses.

Eye-witness Smt. Ajuddhibai (PW-4), mother of the deceased deposed that eight months ago, her daughter Kasumalbai and her son-in-law (accused Jasram) visited her house. Her daughter Smt. Kasumalbai was sitting with her in open courtyard of her house. At that juncture, on some issue there was quarrel took place between her daughter and accused. Being enraged, the accused inflicted an Axe blow which hit the head and cheek of her daughter. She tried to rescue her daughter but the accused pushed her down and fled away from the spot. Her daughter died on the spot. At that time, Hari Singh, son of the accused was there. His daughter-in-law and her son had gone to forest for grazing buffaloes. Then, Hemraj called her son Mangi from the forest. On hearing her cry, Mathulal and Nandlal also rushed to the spot. In cross-examination, she admitted that she is hard of hearing and her eyesight is also weak. Her son-in-law (accused Jasram) and her daughter Kasumalbai were living in her residence since more than four months.

Smt. Chunjoobai (PW-5) deposed that deceased was her sister-in-law and accused was husband of her deceased/sister-in-law. She stated that on the day of incident, she had gone for doing labour work. In the evening when she returned back to her residence, she saw the dead-body of her sister-in-law lying in the courtyard of her residence. Mangi @ Mangilal (PW-3) deposed that his sister Kasumalbai was married to accused Jasram and both her sister and her husband accused were residing with him and were doing labour work in village Banskedi. He stated that on the date of incident, accused was insisting his sister to return back to village Simaria but her sister was refusing for return to village Simarania. In the noon, his son Hemraj came to him and informed that accused Jasram killed his sister Kasumalbai. Then, he returned back to his residence when he saw dead body of his sister with injuries on head and cheek. His mother also informed the incident to him. By that time, accused fled away from the spot. He then lodged the F.I.R. (Ex. P/7) at the police station. Police reached the spot and prepared the memo of dead body of his sister. In cross-examination, he admitted that dead body of his sister was lying in an open courtyard of his brother-in-law Nandlal. Both court-yards are adjacent to each other. Child witness Hemraj (PW-8) son of Mangi @ Mangilal, the complainant also confirmed the incident. However, another child witness, namely, Hari Singh, son of deceased and accused did not support the prosecution version. Parsadilal (PW-6) Kotwar of the village Banskedi deposed that complainant Mangi @ Mangilal reached at his agricultural field and informed that his brother-in-law killed his sister and fled away from the spot. He reached the spot and saw dead body which was lying on the spot covered with clothes. Police prepared the memo of dead-body (Ex. P/1), spot map (Ex. P/8) and seizure memo (Ex. P/9) of simple and blood stained soil in his presence. In cross-examination he did not support the prosecution version up to some extent.

Dr. Suresh Ragi (PW-2), deposed that at the relevant period, he was posted and discharging his duty as a Block Medical Officer in the Community Health Centre, Bamori district Guna. On 3rd December 2007 at 10-25 a.m., he performed autopsy on the body of Smt. Kasumalbai, aged 35 years, resident of village Banskedi, which was brought by a Constable No. 490, namely, Pawan of police station Bamori and identified by Mangi @ Mangilal, brother of deceased. On examination, he found: (i) Incised wound top of scalp ad-measuring 2 1/2" x 1/2" x skull deep. Margins were regular and clean cut. Skull was fractured; and (ii) Incised wound over left cheek ad-measuring 21/2" x 1/2" x muscle deep, vertical margins were regular and clean cut. He opined that the death of deceased occurred due to shock and haemorrhage as a result of head injury. The time of death from postmortem was in between 18-20 hours. Postmortem report (Ex. P/6) is written and signed by him. In cross-examination, the doctor deposed that there was a fracture in parietal bone. He also admits that a person having fracture in parietal bone can not be saved. However, he admits that if proper treatment was provided to the deceased, he could have survived. He further admits that the treatment for the injuries was not available at Community health Centre Ambah and so after providing primary medical treatment at Community Health Centre, the patient was referred to the District Hospital Bhind.

Jagannath Singh (PW-10) Head constable deposed that on 2nd December 2007 while he was posted in the police station Bamori, he was furnished with an information by the complainant about the death which was reduced in writing vide Ex. P/12 and accordingly crime was registered vide Ex. P/7. He also seized the sealed articles received from the Government Hospital vide seizure memo (Ex. P/13).

Radhvendra Singh Tomar (PW-11) deposed that on 2nd December 2007, he was working as Sub Inspector/In-charge of the Police Station Bamori. On that day, he reached the spot and issued the notices (Ex. P/14) to the witnesses for joining the investigation. He then began with the investigation on the spot. He prepared the memo of dead body in presence of witness vide Ex. P/1. He also prepared the spot map (Ex. P/8) Then he sent the dead body for postmortem. He also seized the simple and blood stained soil from the spot by seizure memo Ex. P/9. He recorded the case diary statements of witnesses Mangi, Hemraj, Hari Singh Ajuddhibai, Chunjoobai, Parsadilal and Mathulal on 2nd December 2007 and on subsequent dates. He arrested the accused on 10th March 2007 in presence of witnesses Mathulal (PW-1) and Raju (PW-9) by arrest memo (Ex. P/2). The accused after arrest in police custody informed in presence of witnesses Mathulal (PW-1) and Raju (PW-9) about the weapon of crime (Axe), which was kept hidden by him in the bushes in forest of which memorandum (Ex. P/3) was prepared. On 10th March 2007 at about 5 p.m., he seized the Axe which was produced by the accused in presence of the above witnesses. He sent the articles seized from the spot and Hospital including the articles which were recovered from accused for their chemical examination to the State Forensic Science Laboratory Gwalior by letter (Ex. P/15) through Superintendent of Police Guna. He received the report from the Chemical Examiner. The report confirmed the presence of blood on the blade of the Axe seized from possession of the accused. Mathulal (PW-1) however, did not support the statement of Raghvendra Singh Tomar (PW-11) in regard to the arrest memo and seizure memo of the Axe from accused Jasram but, another witness Raju (PW-9) proved the arrest of the accused and seizure of the weapon in his presence.

On considering the entire scenario of the present case, it appears that incident took place in an open courtyard of the parents of the deceased, therefore, in such circumstances, presence of any independent witness could not be expected at the place of occurrence to watch the accused committing crime. It is also true that the prosecution witnesses are related to the deceased but whether they are having any animus against the accused who was the husband of the daughter/sister of the witnesses is not proved. Although there are material contradictions/omissions in their case-diary and court statements of the witnesses but said contradictions/omissions are not of such degree which can affect the case. It cannot be ignored that the eyewitnesses of the present case belong to tribal area and they are illiterate persons, so they are not expected to give the exact version. Ajuddhibai (PW-3) mother of the deceased Kasumalbai was the eye-witness of the incident and in her cross-examination she admitted that her eyesight is weak and she is hard of hearing but at the time of incident, her daughter Kasumalbai was sitting near to her. So, identity of the accused by her, who is none else but her son-in-law as well as visualization of the incident by her cannot be doubted. Her testimony cannot be thrown away only on the ground of her old age factors. On examining, her evidence is found to be reliable, clinching and beyond reproach.

Thus, on perusal of the statement of eye-witness of the case, namely, Ajuddhibai (PW-4), mother of the deceased and the statement of child witness Hemraj (PW-8), it appears that the accused-appellant went to his wife Kasumalbai (deceased) and told her to accompany him to go back to his residence at village Simaria and when she refused for return back to her matrimonial residence because she was well maintaining her family by doing labour work in village Banskedi, the accused, being annoyed inflicted Axe blows twice causing two injuries on her head and face which she could not sustain and died on the spot. Thus, the prosecution successfully brought home the guilt of accused.

Now, we have to consider whether the act of accused/appellant comes within the purview of culpable homicide not amounting to murder because as per his learned counsel the accused/appellant had caused the death of the deceased in a sudden and heat of passion and therefore, the case would fall within the ambit of exception IV to Section 300 of I.P.C. and the appellant shall be liable for the offence u/s 304 Part-I of I.P.C.

Although we are aware of the ingredients of Section 300 defining culpable homicide amounting to murder, it would be worthwhile to recollect the exception therein specially Exception 4 to Section 300 of I.P.C. which lays down when culpable homicide does not amount to murder and may be quoted for facility of reference:

Exception 4 to Section 300.-"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''s having taken undue advantage or acted in a cruel or unusual manner

In the case of Laxminath Vs. State of Chhattisgarh, , the Hon. Apex court held:-

In the scheme of the IPC culpable homicide is genus and ''murder'' its specie. All ''murder'' is ''culpable homicide'' but not vice-versa. Speaking generally, ''culpable homicide'' sans ''special characteristics of murder is culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree''. This is the gravest form of culpable homicide, which is defined in Section 300 as ''murder''. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

Again, in the case of A. Maharaja Vs. State of Tamil Nadu, , the Apex court held:

The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ''sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage.

In the light of the aforesaid discussions on the factual and legal aspects of the matter, it appears from the ocular and medical evidence on record that on the date of incident firstly there was some altercation took place on the point of return back between accused and the deceased and thereafter the accused-appellant inflicted blow twice with an Axe and caused death of deceased. Thus, it appears that the accused due to grave and sudden provocation was deprived of self-control and therefore caused death of his wife by inflicting blows with the Axe twice on her head and face. The injury on the head became fatal and was the direct result of instantaneous death of Smt. Kasumalbai, wife of accused. The evidence on record discloses that the appellant with the intention of causing such bodily injury as likely to cause death, inflicted blows on the deceased. Therefore, in our considered view the appellant shall be liable for the offence u/s 304 Part-1 and not u/s 302 of I.P.C. It would meet the ends of justice if he is sentenced to undergo rigorous imprisonment for ten years.

Accordingly, the conviction of the appellant is altered from Section 302 of I.P.C. to section 304 Part-I of I.P.C. The findings of the trial court in holding the appellant guilty of offence of murder punishable u/s 302 of I.P.C. are set aside and the appellant is held guilty for the commission of offence of culpable homicide not amounting to murder, punishable u/s 304 Part-I of I.P.C. and sentenced to undergo rigorous imprisonment of ten years with a fine of Rs. 15,000/- (Rs. Fifteen thousand only). The fine amount shall be deposited within a period of three months from the date of this judgment and in case of failure to deposit the same within the period prescribed above, the appellant shall suffer additional rigorous imprisonment of one year. It is further directed that the fine amount, if any, deposited by the appellant in the trial court, shall be adjusted against the amount enhanced by this court. The period of detention if any undergone by the accused during investigation, inquiry or trial of the case and before the date of such conviction shall be set off against the term of sentence of imprisonment imposed on him by this court. In the result, the appeal stands partly allowed in the manner indicated above.