Mahipal and Others vs State of Haryana

A.N. Jindal, J.—This revision petition is against the judgment dated 1.6.2006 passed by the learned Additional Sessions Judge-II, Bhiwani,

dismissing the appeal of the appellants and affirming the judgment dated September 4, 2001 passed by the Sub Divisional Judicial Magistrate,

Loharu, vide which the accused revision-petitioners PW4 Kamaram before whom the accused made extrajudicial confession as also medical

evidence of PW5 Dr. B.K. Tirki, it is established that the death of deceased Tamodeve was homicidal in nature.

As far as involvement of the accused/appellant in crime in question is concerned, that has also not been disputed by learned counsel for the

accused/appellant. PW1 Sukman, who is the brother of the accused, has stated that the accused came to his house and made extrajudicial

confession before him that he has murdered his wife. Thereafter, Panchayat was convened and before the Panchayat also the accused made extra

judicial confession regarding commission of offence. The above evidence has been corroborated by the evidence of PW3 Dasru. Even though this

witness has been declared hostile but in the cross-examination by the Public Prosecutor he has categorically sated that the accused made

extrajudicial confession before him that as his wife Tamodeve (since deceased) was quarrelling with him on the ground that as to why he has

consumed her food and she assaulted him with axe, therefore, he attacked the deceased with same axe, as a result of which she died. PW4

Kamaram has also corroborated the above evidence and stated that the accused made extrajudicial confession before the Panchayat that he has

assaulted the deceased with axe. PW5 Dr. B.K. Tirki has also stated that there was injury on the head of the deceased, as a result of which there

was fracture of parietal bone which was fatal and sufficient to cause death. Therefore, from the evidence of above witnesses, it is established that

the accused assaulted the deceased, as a result of which she received fatal injury on the head and succumbed to the injury. Hence involvement of

the accused is established.

Learned counsel for the accused/appellant submitted that if the evidence and case of the prosecution is taken as it is, even then the offence u/s

302 of the I.P.C. was not made out against the accused/appellant for the reason that the accused after consuming his meal was sleeping, at that

time, the deceased came with an axe and attacked him saying that as to why he has consumed her food, which enraged the accused, he stood up

and snatched the axe all of a sudden and in a sudden quarrel he assaulted the deceased; therefore, the case of the accused is covered under

Exception IV of Section 300 of the I.P.C

On the other hand, learned counsel for the State supported the judgment of the trial Court.

Having heard learned counsel for the parties, we have perused the evidence. PW-1 Sukman has stated that the accused came and said that

deceased Tamodeve attacked him, therefore, he attacked the deceased with axe. PW3 Dasru before whom the accused made extra judicial

confession, in the cross-examination he has stated that the accused informed him that when he was sleeping the deceased came with an axe and

attacked him saying that as to why he has consumed her food, on which he snatched the axe and all of a sudden attacked the deceased. Similar is

the evidence of PW4 Kamaram. The evidence of above witnesses stands corroborated by the medical evidence. Apart from that, PW6 T.R.

Nagvanshi (I.O.) in para-4 of his evidence has stated that he had arrested the accused on 12.4.98 and on examination of his body, he found that

there was an injury on eyebrow of the left eye and, therefore, he sent the accused for medical examination under Ex.P/16. Perusal of Ex.P/16

shows that there was injury on eyebrow of the accused. Therefore, from the evidence of prosecution witnesses, it is established that in the first

instance, the deceased came with an axe and assaulted the accused, which enraged the accused, he snatched the axe and assaulted the deceased.

In this case, there was no pre-meditation or preparation. The accused assaulted the deceased in a sudden fight, all of a sudden, in a heat of passion

and upon sudden quarrel, without taking undue advantage or acted in a cruel or unusual manner, as such, the case of the accused is covered under

Exception IV of Section 300 of the I.P.C, therefore, finding of the trial Court convicting the accused u/s 302 of the I.P.C. cannot be sustained.