Param And Another vs State Of Madhya Pradesh

J.P. Gupta, J

The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 18.9.2008 passed by Second Additional Sessions

Judge, Damoh in S. T. No. 185/2007 whereby the appellants have been convicted for commission of offence under Sections 302 and 450 of the IPC

and sentenced to imprisonment for life along with fine of Rs.2000/- in default of payment of fine further 1 year rigorous imprisonment and RI for 5

years along with fine of Rs.500/- in default of payment of fine further 3 months RI, respectively. All the sentences are ordered to run concurrently.

The facts giving rise to this appeal in brief are that in the intervening night of 27th & 28th of August, 2007 at about 12 O’clock, deceased

Haribai was sleeping in her hut (Taparia) situated in the agriculture field of village Barkheda and at some distance in another Taparia, her mother

Shantibai (PW-2) was also sleeping. Shantibai (PW-2) heard noise of her daughter Haribai and rushed towards her Taparia where she saw appellants

Param armed with Ballam and Khilan and another person armed with lathi. They were beating Haribai. When Shantibai (PW-2) intervened then

appellants / accused persons also assaulted her and caused several injuries on her person. During the incident, Shantibai (PW-2) with a view to save

herself ran from the spot and hid herself behind bushes / grass and when the appellants and their another companion went away from the spot, she

went to Taparia of her daughter Haribai and found several injuries on the person of Haribai and also found her dead. In the next morning, she called

her son Vrindavan who took her to Police Chowki Bandakpur where she lodged FIR Ex.P/1 and Police of Police Station Hindoria, District Damoh

registered crime no. 299/07. During the investigation, dead body of the deceased was medically examined and injury of Shantibai (PW-2) was also

examined by the medical expert. During the investigation, another person was also identified as co-accused Laxman Singh and after completion of the

investigation, charge sheet was filed against the appellants and co-accused Laxman Singh before the JMFC, Damoh who on its turn committed the

case to the court of Sessions for trial and learned Second Additional Session Judge, Damoh tried the case and acquitted co-accused Laxman Singh,

however, convicted the appellants / accused persons as mentioned above.

The finding of the learned Trial court is only based on the evidence of the injured eye witness Shantibai (PW-2) corroborated by FIR Ex.P/1,

Vrindavan (PW-5), Ganeshibai (PW-4), medical expert Dr. Anuja Jain (PW-8) and Dr. Sanjeev Gupta (PW-9). The aforesaid finding has been

assailed on the ground that statement of Shantibai (PW-2) is not reliable as soon after the incident she did not disclose the incident to anybody else

residing nearby her and her Taparia was not so near to the Taparia of deceased Haribai that she could have heard the voice of the deceased. As she

had enmity between the appellants / accused persons, they have been falsely implicated. On behalf of learned counsel for the appellants, it is further

submitted that medical expert has not opined that the injuries caused to the deceased were sufficient to cause her death in ordinary course of nature

and only one injury was fatal and other injuries were simple in nature and the death had taken place on account of excessive bleeding. Hence, it

cannot be said that the appellants had intention to cause death of the deceased or to cause such bodily injury which was sufficient to cause her death

in ordinary course of nature and hardly it can be said that the appellants had knowledge to cause such injury which was likely to cause death of the

deceased. Hence, the appellants can hardly be convicted for commission of offence punishable under Section 304 Part-II of the IPC.

Learned GA appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of conviction and

sentence of the learned trial court is based on legal evidence and is in accordance with law. No interference is required in the impugned judgment.

Hence, the appeal be dismissed.

Having considered the contentions of learned counsel for the parties and on perusal of the record, in this case it is not controversial that the death of

deceased Haribai took place on account of the injuries sustained to her in the intervening night of 27th & 28th of August, 2007. The prosecution has

proved this fact by the statement of Dr. Anuja Jain (PW-8) who has stated that on 29.08.2007 she was posted as Medical Officer atÂ

District Hospital, Damoh and  she performed autopsy on the person of deceased Haribai and found injuries on her person and opined that cause

of death was cardio respiratory arrest due to haemorrhage shock as a result of head injuries which were caused by sharp object. Death was caused

before 24 to 48 hours from the time of autopsy done at 3:05 pm and she also prepared postmortem report Ex.P/17.

The aforesaid statement of medical expert Dr. Anuja Jain (PW-8) has remained unimpeachable. Hence, there is no hesitation to hold that deceased

Haribai died on account of the aforesaid injuries.

Therefore, nature of her death was homicidal.

Dr. Sanjeev Gupta (PW-9) has also stated that on 28.08.2007 he examined Shantibai (PW-2) and found injuries on her person which are as under :-

(i) Incised wound present over forehead size 3 ½ cm. x 1/2 cm. skin deep. Advised - X-ray.

(ii) Incised wound present over forehead size 2 ½ cm x 1/2 cm. skin deep. Advised - X-ray.

(iii) Swelling present over left shoulder. Joint movement restricted. Advised- X-ray.

(iv) Complaining pain in right leg. Advised â€" X-ray.

(v) Complaining pain in left hand but no sign of injury was visible.

(vi) Lacerated wound present over right hand size 1/2 cm. long x 1/2 cm. wide.

(vii) Swelling on left side face. Advised â€" X-ray.

He further stated that nature of injuries no. 1,2, 3,4 and 7 depends upon x-ray report and injuries no. 5 and 6 were simple in nature. Injuries no. 1 and 2

were caused by sharp object and remaining injuries were caused by hand and blunt object. The aforesaid injuries were caused within 24 hours and

prepared report Ex.P/18. No x-ray report has been proved.

Shantibai (PW-2) who is an injured eye witness of the incident has categorically stated that in the fateful night of the incident she was sleeping in

her Taparia and nearby her Taparia, her daughter Haribai was also sleeping in another Taparia. She heard voice of her daughter Haribai then she

rushed towards her Taparia and she found that the appellants were beating Haribai. When she interfered, she was also beaten by the appellants. At

the time, appellant Khilan was armed with lathi and appellant Param @ Patrakar was armed with ballam and with a view to save herself, she hid

herself in the grass and when the appellants ran away from the spot then she immediately went to Haribai and found her dead and injuries on several

places. In the next morning, she through one Babu called her son Vrindavan and narrated the whole incident to him and he took her to Police Chowki

where she lodged report Ex.P/1. She was admitted in the hospital for treatment.

N.P. Tiwari (PW-15) ASI has stated on 28.8.2007 he written FIR Ex.P/1 as described by Shantibai (PW-2). Vrindavan (PW-5) and Ganeshbai

(PW-4) have stated that their mother Shantibai (PW-2) told them that she and Haribai were beaten by the appellants and they caused death of Haribai

and injuries to Shantibai (PW-2).

Having gone through the statements of aforesaid witnesses meticulously, we do not find any infirmity in their statements. We are of the considered

view that statement of injured eye witness Shantibai (PW-2) corroborated by FIR Ex.P/1, statements of Vrindavan (PW-5) and Ganeshbai (PW-4)

and also corroborated by medical evidence, establishes beyond the reasonable doubt the fact that the appellants were the persons who caused injuries

led to the death of Haribai and injuries sustained to Shantibai (PW-2).

Now the question is that the appellants had caused the aforesaid injuries to deceased Haribai with a view to cause her death or to cause such

bodily injuries which were sufficient to cause her death in ordinary course of nature. On perusal of the evidence it is found that the prosecution has not

proved any motive of the incident. If they had been intention to cause death of Haribai, they would have also caused death of Shantibai (PW-2) as a

prudent man would not leave Shantibai, injured eye witness, alive. Medical expert Dr. Sanjeev Gupta (PW-9) has not stated that any injury or alone

cumulative effect of the injuries was sufficient to cause death of the deceased in ordinary course of nature. In such circumstances, only it can be said

that the appellants had knowledge to cause such injury by which death is likely to be caused. With all certainty it cannot be said that they assaulted the

deceased with intention to cause her death or to cause such injury which was sufficient to cause death in ordinary course of nature. Therefore, the

appellants can be safely convicted for commission of offence punishable under Section 304 Part-II of the IPC for culpable homicide in place of

commission of murder. So far as the conviction under Section 450 of the IPC and sentence thereof are concerned, it does not require any

interference.

In view of the aforesaid discussions, the appeal is partly allowed. The appellants’ conviction under Section 302/34 of the IPC and sentence

thereof are hereby set-aside. They are convicted for commission of offence punishable under Section 304 Part-II read with section 34 of the IPC. So

far as sentence part is concerned, the appellants have been in custody since 29.8.2007 till today and the ends of justice would be achieved by

sentencing the appellants to the period already undergone by them in jail. Hence, they are sentenced to the period already undergone by them in jail

which is more than 10 years. They are directed to be released forthwith if not required to be detained in any other case.

A copy of this order be sent immediately to the trial Court and the jail Authorities concerned for information and necessary compliance.