Nandram vs The State of M.P.

This appeal has been filed assailing the judgment dated 16/10/2006 passed by the 2nd Additional Sessions Judge, Khandwa, in Sessions Trial

No.103/2006 whereby the appellant has been convicted under section 302 of IPC for committing murder of Lakhan and sentenced him to

undergo R.I. for life imprisonment as mentioned in the impugned judgment.

It is undisputed in the case that Pintu (PW-5) is son of the deceased, Sulochna Bai (PW-4) is wife of the deceased and Ranju Bai (PW-1) and

Manda (PW-6) are daughters of the deceased and house of the deceased and the appellant are situated in the same vicinity.

In brief, the facts of the case emerge from the findings of the learned trial court and evidence on record are that one day before the incident

altercation were taken place between the deceased and the appellant on account of throwing of live electric wire towards the house of Lakhan. On

21/03/2016 near about 6.30 PM Lakhan went towards the betel shop and his son Pintu (PW- 5) was coming towards his house, he saw that the

appellant was beating his father Lakhan with the stick. Then Pintu (PW-5) got frightened came to his house and informed to his mother and sisters,

then he along with his mother Sulochan Bai (PW-4) and his sisters Ranju Bai (PW-1) and Manda (PW-6) went towards the place of the incident

and they found Lakhan lying in the front of the house of the appellant. He was injured and dead. Then Sulochan Bai (PW-4) called for Shivlal

(PW-7) and Rameshchand (PW-8).

They came on the spot and Sulochan Bai (PW-4) informed that Pintu (PW-5) had narrated that appellant assaulted the deceased with the stick

and caused his death. Thereafter Rameshchand (PW-8) telephonically informed to the police station Piplod. Thereafter police party reached on the

spot near about 11 PM where Dehati Nalish (Ex.P-5) and Marg Intimation (Ex.P-7) was recorded on the basis of information given by Sulochan

Bai (PW-4) and thereafter FIR (Ex.P-13) was registered at Police station Piplod, Tehsil Khandwa as Crime No.80/2006 under sections 302 of

the IPC. During the investigation the dead body of the deceased was examined by Dr. Anil Kumar (PW-2) and after completing the other

formalities of the investigation, the charge sheet for commission of offence punishable under section 302 of IPC against the appellant was filed

before the Chief Judicial Magistrate Khandwa, who in turn committed the case to the court of Session Khandwa from where it was received on

transfer by the 3rd Additional Session Judge (Fast Track Court) Khandwa who conducted the trial.

During trial against the appellant/accused charge for the offence punishable under sections 302 of the IPC was framed. He abjured his guilt and

claimed to be tried. His defence is that he has been falsely implicated in this case and in his defence no witness has been adduced.

Learned Trial court after completion of the trial, convicted and sentenced the appellant for commission of the offence punishable under section

302 of IPC on the basis of evidence of Pintu (PW-5) finding his testimony creditable and getting corroboration from the statements of Sulochan

Bai (PW-4), Ranju Bai (PW-1) and Manda (PW-6) as well as Shivlal (PW-7) and Rameshchand (PW-8) and further getting corroboration from

the statement of Dr. Anil Kumar (PW-2).

On behalf of the appellant in the appeal, the findings of the trial court has been assailed on the ground that the statement of Pintu (PW-5) is not

reliable as he is chance and child witness and relative and interested witness and there was dark night and no source of light was there and so far

other witnesses are concerned they are not eye witness of the incident. Their testimony are also not reliable. As per prosecution story

Rameshchand (PW-8) informed the police about the incident and in the police station it was recorded in the Roznamchasanha (Ex.P-11) in which

name of the assailant has not been recorded. This circumstance shows that there is no eye witness of the incident. Apart from it, there is no

compliance of section 157 of Cr.P.C. The FIR is antedated with a view to falsely implicate the appellant. Further contended that Dr. Anil Kumar

(PW-2) has not opined that any single or all injuries in cumulative effect was sufficient to cause death in ordinary course of nature. In such

circumstances, looking to the alleged motive, nature of weapon, it can''t be said that the appellant assaulted the deceased with the intention to kill

him or caused injuries intentionally which were sufficient to cause his death in ordinary course of nature. Therefore, the appellant can''t be convicted

under section 302 of IPC. His conviction and sentence is required to be modified and punishable under section 304 Part-II of the IPC.

Learned Public Prosecutor has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for

the appellant stating that the findings of the learned trial court are based on the cogent evidence and prayed for rejection of this appeal.

Having considered the contention of learned counsel for the parties and on perusal of the record, we found that in the case there is no

controversy about the nature of the death of the deceased. From the statement of Dr. Anil Kumar (PW-2), it is found that on 21/03/2006 Lakhan

was died on account of the injuries sustained to him and injuries were not caused accidentally or suo muto. The same was caused on account of

assaulting by other person. Therefore, the nature of the death was homicidal.

As per Ex.P-1 according to Dr. Anil Kumar (PW-2) following injuries were found on the body of the deceased:-

i. Lacerated wound 2 X1X1 cm over lateral end of left eyebrow;

ii. Contusion 15X2 cm over chest extended from just above left nipple to down ward to Right nipple region;

iii. Contusion 17 X2 cm over chest extend from below 3 cm from Left nipple to right nipple;

iv. Contusion 16 X2 cm over left hypchorid region and Epigestric region extend from near mid axillary line lower chest left to downward epigestric

region;

v. Abrasion 1 X1 cm lateral to 2 cm from No.1 On dissection following injuries were found:-

I. Fracture 17 cm long right and left parietal bone region;

II. Fracture Left zygomatic arch;

III. Fracture Left 5th rib near sterrium bone region;

Sub dural and extra dural haemorrhage present and large haemorrhage present;

He opined that cause of death was excessive haemorriage and shock due to multiple fracture of body and chest injury. Leading to cardio

respiratory arrest. Injuries are homicidal in nature and duration of injuries were within 24 hours.

Now the question is that whether the aforesaid injuries was caused by the appellant with the stick. In this regard Pintu (PW-5), who is son of

the deceased has categorically stated that on the date of incident near about 7 pm when he was coming to his house in the front of the house of

appellant, he saw appellant was beating his father with the stick. Seeing this incident, he was frightened and go home from the way of back side

and told his mother that the appellant is beating his father. Thereafter he along with his mother and sisters went towards the appellant''s house and

saw his father was lying dead and there were injuries on forehead, chest and stomach of his father. Sulochan Bai (PW-4), Ranju Bai (PW-1) and

Manda (PW-6) have also stated the same thing in their statements. As per statement of Sulochan Bai (PW-4) she called for Shivlal (PW-7) and

Rameshchand (PW-8) and told them the facts of the incident and then Rameshchand (PW-8) informed to the police. Shivlal (PW-7) and

Rameshchand (PW-8) have supported this story and Investigating Officer, N.P Dhada (PW-11) have also stated that near about 10 PM

Rameshchand (PW-8) telephoned to the police station Piplod and informed that one person is killed in his village and thereafter he sent police

force to the village. Sulochan Bai (PW-4) also stated that in the night police force came, she informed to them about the incident and Dehati Nalish

(Ex.P-5) and Marg Intimation (Ex.P-7) was recorded by the police.

In the statement of the aforesaid witnesses, there is no material contradiction and omission. Shivlal (PW-7) and Rameshchand (PW-8) are

independent witnesses and they have reached on the spot very soon where Sulochan Bai (PW-4) have categorically disclosed them that his son

Pintu (PW-5) saw the incident and the deceased was beaten by the appellant with stick.

Pintu (PW-5), Sulochan Bai (PW-4), Ranju Bai (PW-1) and Manda (PW-6) are relative of the deceased but merely on the aforesaid ground, it

can''t be said that they have falsely implicated the appellant. In ordinary course, no one can leave the actual culprit and implicate a person falsely

merely on account of quarrel or altercation taken place two days before the incident.

On behalf of the appellant, statement of Pintu (PW-5) has been assailed on the ground that at the time of incident there was dark night and there

was no source of light.

Hence, he was not in a position to see the incident. Therefore, his statement can''t be believed. This argument have no much importance as the

witness have categorically stated that at the time of incident there was no dark night and night darkness was going to start and without further

source of light he was coming from the way, then he could also see the person who was beaten or the person who was beating. Therefore in the

aforesaid circumstance, it can''t be said that Pintu (PW-5) was not in a position to see the incident.

On behalf of the appellant more emphasis given on the circumstance that if Rameshchand (PW-8) had disclosed the fact that the appellant

caused death of the deceased, then the same fact would have been recorded by the police in Roznamchasanha (Ex.P-11) and that fact has not

been recorded in the aforesaid Roznamchasanha, which indicates that the name of the appellant was not disclosed by Sulochan Bai (PW-4) to

Rameshchand (PW-8) and no witness was aware of the fact that who and by whom the death was caused and on the basis of suspicion, appellant

have been arrayed in the case. This argument is very attractive but in view of all facts of the case, we find that Rameshchand (PW-8) categorically

stated that he also informed to the police about the name of the assailant. In such circumstances, if police officer have not recorded the whole

information then it can''t be said that the concerned witness was making false statement about the fact, particularly when the Investigating Officer,

N.P Dhada (PW-11) in his cross examination has stated that when he got telephone of witness Rameshchand, he was disclosing the name of the

assailant but when he hurrily disconnect the telephone and he was trying to talk to Rameshchand further he was unsuccessful. In the circumstance,

merely on the aforesaid ground it cannot be said that Rameshchand (PW-8) is not trustworthy witness.

In view of the aforesaid discussion, we find that the prosecution has proved beyond reasonable doubt the fact that the deceased was assaulted

by the appellant and appellant caused aforesaid injuries to the deceased and he is responsible for homicidal death of the deceased.

Now the crucial question is that whether the appellant committed murder of the deceased or culpable homicide not amounting to murder of the

deceased. In the case Dr. Anil Kumar (PW-2) has not given opinion that any single or all the injuries cumulatively was sufficient to cause death in

ordinary course of nature. The motive of the incident was previous quarel with regard to throwing of live electric wire towards the house of the

deceased is also very trivial. Apart from it, the weapon used by the appellant was a stick. In these circumstances and facts, it can''t be said that the

appellant beaten the deceased with the intention to cause his death or caused intentionally such bodily injuries which were sufficient in the ordinary

course of nature to cause his death. The act of the appellant comes under purview of culpable homicide not amounting to murder. It can also not

be inferred from the evidence and material on record that intention of the accused was causing such bodily injury to the deceased which would be

sufficient in ordinary course of nature to cause death. However, at the same time it can be held that certainly while causing injury to the deceased,

the appellant knew that by his act he is likely to cause death or by such bodily injury death is likely to be caused. In these circumstances, we are of

the definite opinion that the act committed by the appellant/ accused would come within the category of offence punishable under Section 304

Part-II instead of 302 of the IPC.

In view of the foregoing discussion, we allow this appeal in part and set-aside the judgment of conviction and order of sentence awarded by the

trial court to the appellant / accused for the offence under Section 302 of the IPC and instead thereof, the appellant is convicted for the offence

punishable under Section 304 Part-II of the IPC and sentenced to undergo RI for 10 years.

On perusal of the record, it appears that the appellant is in jail since 22/03/2006 and he has completed more than 10 years. The period already

undergone by the appellant in jail shall be set off in the sentence awarded by this court. Appellant be released from jail forthwith if not required in

any other case.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.

A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.