Jor Singh vs State Of Madhya Pradesh

Vivek Agarwal, J

This appeal has been filed by appellant Jor Singh son of Ramdas being aggrieved by judgment dated 12.11.1999 passed by the learned Sessions

Judge, Bhind, in Sessions Trial No.188/98, whereby appellant has been convicted under Section 302 of IPC with life imprisonment and fine of

Rs.5,000/- and in default of payment of fine, further six months RI.

As per prosecution story, there is history of frequent quarrels between the accused and the complainant party. On 25.6.98 mother of accused

Jaisingh had lodged a report accusing deceased Kalle and Chakraveer, so also Chatursingh @ Bamboo, brother of accused Jorsingh, had lodged a

report on 22.6.98 against deceased Kalle and Satyaveer. On 13.7.1998 when Kalle had gone to bring press used to iron clothes from the place of

Punni Dhobi, it is alleged that close to the house of Majboot Ojha, appellant Jorsingh armed with an axe alongwith co-accused Jaysingh and Sarman

came there and hit Kalle with axe on his head when Jaysingh and Sarman were exhorting that Kalle should not be permitted to escape. After making

such assault, accused left the place when Chakraveersingh lodged a report (Ex.P/6) registering Crime No.24/1998 under Section 307 read with

Section 34 of IPC at police Station, Nayagaon. Kalle was sent for medical examination. He sustained an incised wound measuring 6 cm x 2.5 cm x

bone deep on left parietal region parallel to mid line. As per MLC (Ex.P/7) general condition of the patient was low. Patient was unconscious and was

vomiting and doctor had advised for x-ray of skull. When doctor was asked as to whether patient was in a condition to give his statement, then RSO,

Neurosurgery on 16.7.1998 vide Ex.P/8 reported that patient was not in a condition to give statement and thereafter on 7.8.1998 at about 11 am Kalle

succumbed to such injury as is evident from Merg intimation Ex.P/9.

Initially FIR was lodged against three persons, namely Jorsingh, Jaysingh and Sarman Singh, and trial was also conducted against them, but learned

Sessions Judge has acquitted two of the accused and has convicted present appellant.

Learned counsel for the appellants submits that author of the FIR (Ex.P/6) Chakraveer has not been examined. It is also submitted that case rests

on the sole testimony of two witnesses, namely Sadhna (PW-2) corroborated by Savitri (PW-3). It is submitted that child witness Sadhna (PW-2) has

admitted in her testimony that for quite some time she had not revealed to anybody in her house that who had hit Kalle with an axe. It is submitted that

at the time of deposition age of witness Sadhna was about 8 years. She has admitted that at the time of incident she was playing on Chabutara of

Majboot and she had not informed anybody about such incident taking place i.e. Jorsingh hitting Kalle with an axe. She further admits in her

examination that she had not informed anybody at her home that Kalle was attacked with an axe or he had sustained any injury with axe, whereas

Jorsingh is a person from her village. She has also admitted that when Jorsingh was hitting Kalle with axe, Jaysingh had caught hold of Kalle from his

waist and there was nobody else except for these persons at the place of incident. However, in cross-examination, she has admitted that other small

children were playing with her at the time of incident and has named them as Durge, Puja and Bhunte as her co-players. She has stated that Puja is

daughter of Majboot, whereas Bhunte and Durge are sons of Majboot. She has also admitted that she had not informed the police when it had taken

her statement that who all were playing with her. She also admits that the names revealed by her in the Court were not narrated to anybody else prior

to her Court statement. In para 4, she admits that brother of Kalle namely Chhuttu was also playing at the time of incident and it was Chhuttu only

who had given intimation at Kalle's house. She admits that Chhuttu was also playing was not revealed by her to the police and such statement was

being given for the first time in the Court. She also admits that she had not informed anybody about hitting with an axe except the police. She admits

that mother of Kalle had asked her to inform police. She further admits that it was Chhutte who had given narration of incident to mother of Kalle and

it was not she who had given such intimation. It is submitted that in para 9 this girl has admitted that Kalle had fallen down from a electric pole. Later

on, she improvised this statement and deposed that Kalle's head was not hit with the electric pole, whereas he had sat by the side of the pole. It is also

pointed out that Kalle was brother of Sadhna.

Savitri (PW-3), who is mother of Kalle, has admitted in para 4 that she had not revealed this fact to anybody as narrated by Sadhna that Kalle was

attacked by an axe except to the police. She also did not narrate this fact to anybody else except the police that she had seen the culprits running

away. This witness in para 8 admits that three months prior to the incident Kalle had hit Bambusingh, brother of Jorsingh, with Lathi as Bambu Singh

was abusing him under the influence of alcohol. Reading such testimony of Sadhna (PW-2) and Savitri (PW-3), it is submitted that appellant has been

falsely implicated.

It is further submitted by learned counsel for the appellant that Dr. B.S.Tomar (PW-9) in para 6 has admitted that the patient can die because of

pus formation in brain if he is not properly treated within a period of 4-5 days. Reading such testimony, it is submitted that since death of the deceased

was due to septicemia, case will not fall under Section 302 of IPC but will fall under Section 304 part II of IPC.

Learned Public Prosecutor for the State on the other hand refers to the testimony of Dr. O.P.Kastwar (PW-8) and points out that Dr. Kastwar has

admitted that such injury could not have been caused if a cement concrete electric pole falls on the upper portion of the head of a person. Further it is

admitted by Dr. Kastwar that there was a single blow and injury was bone deep. It is further submitted that in absence of any contradiction, testimony

of child witness can be relied on and it cannot be rejected merely because such statement has been given by a child witness. In support of such

contention, learned Public Prosecutor has placed reliance on two judgments of the Supreme Court, namely Suryanarayana vs. State of Karnataka as

reported in (2001) 9 SCC 129 and Nikka Singh vs. State of Punjab as reported in (1996) 11 SCC 283.

At this stage, learned counsel for the appellant submits that statements of child witness under Section 161 of Cr.P.C. Ex.D/1 do not corroborate

with her Court statement and in absence of such corroboration, her Court statement cannot be taken on its face value. It is submitted that in the

paper-book, case diary statements of only two other witnesses are available, namely Ramdhar (PW-7) and another person namely Ramprakash who

has not been examined before the Court. It is submitted that Ramdhar (PW-7) has turned hostile and has not supported the case of the prosecution,

therefore, in absence of corroboration from the case diary statements of Sadhna (PW-2) and Savitri (PW-3), no definite finding can be given and

appellant should be extended benefit of doubt. In the alternative, it is submitted that at the most it is a case of single blow as has been admitted by Dr.

O.P.Kashtwar (PW-8), and therefore, conviction of appellant be altered from one under Section 302 of IPC to Section 304 Part II of IPC.

After hearing arguments, going through the record and appreciating the material available on record, it is evident that Savitri (PW-3) is a hearsay

witness. She is not an eye-witness, as is evident from her case diary statement Ex.D-2. Further Sadhna (PW-2) though a child witness, could not be

discredited in her testimony. There is minor aberration in regard to her saying that Kalle had sustained such injury due to fall from the electric pole, but

this fact has been denied by her in further cross-examination on behalf of the accused. In fact, further cross-examination of PW-2 has fortified her

161 Cr.P.C. statement that Jor Singh had hit Kalle with an axe on his head.

It is evident from Annexure P/18, postmortem report of the deceased, that there was a stitched wound present over left frontoparietal region 10

cm in length, placed anteroposteriorly having 10 stitches with black thread. On removing the stitches ecchymosis and pus formation was present in the

scalp. Below wound 10x5 cm bone part of skull is absent. Brain matter is visible with pus formation and death is opined to be caused by cardio

respiratory failure as a result of injury to brain and its complications. Duration of death was within 24 hours from the postmortem.

Thus, it is evident that deceased was operated before, therefore, a part of skull bone was removed as is apparent from reading of postmortem

report Ex.P/18. Thereafter deceased developed septicemia as pus formation is evident. Therefore, single axe blow is a cause for injury, but possibility

of post-operative complications leading to septicemia cannot be ruled out as the cause of death.

In case of Chamru Budhwa v. State of Madhya Pradesh as reported in AIR 1954 SC 65 2where the fatal injury was inflicted by the accused on

the head of the deceased by only one Lathi blow, it has been held that the act appears to have been done with the knowledge that it was likely to

cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death within the meaning of part -II of

Section 304 of IPC.

In case of Ramaswami Vs. State of Tamil Nadu as reported in (1982) 1 SCC 474, where deceased died due to infection after 10 days of

hospitalization, it is held that offence falls under Section 304, Part II IPC.

Recently Supreme Court in the case of Dashrath Singh v. State of U.P. as reported in (2004) 7 SCC 408 wherein as per the allegation appellant

Rajaram had inflicted a single injury on the head of the deceased with Kanta and deceased died after 38 days of the incident, has held that prosecution

case as regards head injury inflicted by appellant Rajaram is though established, but there is absence of intention to kill since no further assault was

made after the first blow. It has been further held that there is no report or case-sheet to indicate condition of the deceased after surgery and scope

for any intervening ailment unconnected with the head injury cannot be ruled out and thus it is not proved beyond reasonable doubt that the eventual

cause of death was only the injury inflicted by appellant Rajaram and nothing else and altered his conviction from Section 302 of IPC to Section 326 of

IPC with six years R.I.

In the present case, it is apparent that incident took place on 13.7.1998, postmortem was conducted on 7.8.18 and as per Merg intimation (Ex.P/9)

death took place on 7.8.1998 i.e. after 24 days of the incident. There is no material on record to show that appellant was not subjected to any

operation in JAH, Gwalior, where he was admitted in Neurosurgery Ward, on the contrary, postmortem report reveals that one piece of skull bone

was absent indicating surgical intervention. There is no allegation of any repeat blow against the appellant.

In view of the aforesaid facts and circumstances and the decisions of the Supreme Court in case of Chamru Budhwa, Ramaswami and Dashrath

Singh (supra), the appeal is partly allowed and conviction of the appellant is altered from one under Section 302 of IPC to Section 304 Part II IPC and

he is sentenced to six years RI with fine of Rs.25,000/- which shall be payable to the family members of the deceased. Appellant was in custody from

8.9.1998 to 12.11.1999 during trial and thereafter upto 5.7.2001 when High Court had allowed his suspension of sentence. Therefore, appellant's bail

bonds stand cancelled, he be taken in custody to undergo remaining sentence. Record of the trial Court be sent back.