Rajabhaiya vs State Of Madhya Pradesh

CONTENT & CONTEXT

Being aggrieved by judgment of conviction and order of sentence dated 15th September, 2009 passed by Second Additional Sessions Judge (Fast Track) Pichhore, District Shivpuri in Sessions Trial No. 19/2009, appellant has preferred this Appeal under Section 374(2) of Cr.P.C. By the impugned judgment, appellant has been held guilty of offence punishable under Section 302 of IPC and sentenced to suffer imprisonment for Life alongwith fine of Rs. 500/- and in default of payment of fine, to further undergo three months additional rigorous imprisonment.

As per the case of prosecution, on 4/9/2008 about 11.30 am at village Nagraila near Dagwaha Check Dam, Smt. Manjuraja (deceased), her daughter Pooja and niece Jyoti were taking bath. Suddenly, accused Rajabhaiya visited wielding Lathi and gave 5-6 Lathi blows to deceased over her head and back, which caused oozing of blood from the injuries and due to said blows, her fronto parietal bone broke and brain matter came out. Husband of deceased Sumer Singh also reached the spot during said period for taking bath and witnessed the incident. Deceased shouted for help, but succumbed to the injuries immediately. It was alleged that accused used to coerce her for entering into illegitimate relationship but his advances were repelled by the deceased which resulted into such gory incident. On spot deceased's husband Sumer Singh, daughter Pooja, niece-Jyoti and other members of village were present and witnessed the incident.

Information was given to Police Station Picchore, over which FIR was noted down and offence under Section 302 of IPC registered against the accused. After investigation, charge-sheet was filed and matter was committed to the Court of Sessions.

Appellant abjured his guilt and pleaded innocence, therefore, trial was commenced but appellant did not produce any evidence in defence.

Trial Court framed the charge against the appellant and trial was conducted. Prosecution examined as many as 9 witnesses whereas; no witness was examined on behalf of appellant in his defence. Out of the prosecution witnesses, three were eye-witnesses namely PW/1-Jyoti, PW/2-Sumer Singh and PW/3-Pooja, who witnessed the incident.

Trial Court after considering the evidence led, documents produced and arguments advanced, convicted the appellant as mentioned hereinabove for offence under Section 302 of IPC for Life Imprisonment alongwith fine of Rs. 500/- and in default of payment of fine to further undergo three months additional rigorous imprisonment.

SUBMISSIONS

It is the submission of learned counsel for the appellant that trial Court erred in ignoring the evidence led by the prosecution which did not bring home the fact that appellant committed the offence of murder of deceased. He raised the plea of previous enmity between the families of appellant-accused and the complainant. He referred the cross-examination of PW/1-Jyoti in para 2; wherein, she has referred the fact of dispute existing between the parties. It is further submitted that deceased succumbed to the injury caused to her while splashing in pond and having got wounded while her head accidentally hit a rock in the pond. It is the submission of counsel for the appellant that as per the eye-witness, accused hit the deceased 5-6 times, whereas, two injuries have been caused.

7.1. It is further submitted that Lathi is not a deadly weapon as per the decision of Hon'ble Apex Court in the matter of Joseph Vs. State of Kerala, AIR 1994 SC 34.

7.2. Alternatively, it is submitted that if any dispute arose all of a sudden and it resulted into death then it cannot be constituted as murder because no motive has been attached by the prosecution and since repeated blows are not there, the conviction may be converted into Section 304-II of IPC i.e. Culpable Homicide not amounting to murder.

Learned counsel for the State opposed the prayer. It is submitted that prosecution has proved its case beyond all reasonable doubts. All witnesses stood by their statements given under Section 161 of Cr.P.C. and no material contradictions exist in their statements. Similarly, nature of injuries suggest that appellant has given repeated blows,therefore, her brain matter came out. Such brutal way of killing cannot be converted into offence under Section 304 Part I or II of IPC. He prayed for dismissal of the appeal.

CONSIDERATION

Heard learned counsel for the parties and perused the record.

Here in the present case, eye witnesses are PW/1-Jyoti, PW/2-Sumer Singh and PW/3-Poojaraja. FIR (Ex. P/1), lodged by the husband of deceased-Sumer Singh (PW/1) has narrated the incident which has been supported by prosecution witnesses PW/1 and PW/3. PW/1-Jyoti is niece of complainant and she has referred the incident and the act of the appellant in clear terms. She denied the suggestion given by the defence that cause of death was accidental hitting of head against the rocks. PW/2- Sumer Singh also narrated the story almost in the same tenor and course of events are almost same. Although in his cross-examination, in para 4, he admits the fact that no dispute earlier existed between him and family of appellant but in his examination-in-chief, he categorically referred the motive in para 1 that appellant used to persuade and coerce his wife for making illicit relationship with him and when his wife checked his advances then infuriated by said rejection, he committed the offence. Slight variation in theory of previous enmity which is denied by witnesses PW/2 vis-a-vis statement of PW/1-Jyoti can be ignored for the reasons that this fact might have not been known to the witness PW/1 because she is daughter of Sumer Singh's sister, therefore,she might not be abreast with the relationship of accused with the family of deceased. Same holds true for the witness Poojaraja(PW/3), who happened to be the daughter of deceased and might not be familiar with the social developments between two families. Even otherwise, previous dispute theory does not support the cause of accused and he cannot be absolved on this minor variation.

Poojaraja (PW/3) also narrated the story in similar manner as other eye-witnesses and referred the motive for killing her mother. From discussion of eye-witnesses, it appears that appellant had the motive to kill deceased because she did not like the proposal and advances made by appellant towards deceased for entering into an illicit relationship and therefore, being driven by anger coupled with lust, he committed the crime. Witness Pooja (PW/3) has in fact made statement in her examination-in-chief that her mother used to hate appellant. This aspect is worth consideration because rejection of proposal and pulpable hatred displayed by deceased for the accused must have prompted him to take such drastic step.

The seizure witness in the case in hand is Manohar Singh Chauhan (PW/4) who proved seizure of Lathi from appellant. He stood firm in his deposition. His testimony also goes against the accused.

So far as, injuries are concerned, Dr. S.K.Sande (PW/6) referred two injuries and source of injury was hard and blunt object. A suggestion was given in cross-examination by defence, in reply to which, said doctor, categorically opined that the present injuries cannot be caused by hitting of head against rocks, therefore, accident theory as tried to be propounded by the appellant did not gain support from the opinion given by expert, Dr. S.K.Sande (PW/6).

So far as reliability of witnesses is concerned, defence, nowhere shook the prosecution witnesses by making out any coreof false implication. Therefore, there is no reason to disbelieve the case of prosecution and prosecution case proved beyond all reasonable doubts.

Lathi may not be a deadly weapon, but its use with ferocity and precision can cause death, like in the present case. Therefore, the arguments advanced by appellant in this respect lack credence and do not evoke confidence and reason.

So far as submission regarding conversion of case from Section 302 of IPC to Section 304 of IPC is concerned, upon close scrutiny of exceptions enumerated under Section 300 of IPC, no respite is there for appellant as with a premeditated thought, appellant wielded Lathi blows. Although two injuries have been referred in the medical report but the brutality applied and nature of injuries, same indicate the motive of appellant to kill the deceased at any cost ignoring presence of other eye-witnesses and even fear that he would be apprehended. Therefore, it is not the case, where single blow has been given and that under the heat of passion or under sudden provocation, appellant killed the deceased. In fact, he killed a woman who always repelled his sexual overture and advances. Therefore, case of appellant lacks merits so far as conversion of offence from Section 302 of IPC to Section 304 of IPC is concerned.

The Hon'ble Apex Court in the case of Sukhdev Singh Vs. State of Punjab, 1992 Supp (2) SCC 470 converted conviction from Section 302 to Section 304 Part II of IPC and in the case of Janab Ali Shaikh Vs. State of West Bengal, 1992 Supp (2) SCC 545 converted the sentence from Section 302 to Section 304 Part I of IPC with the aid of exceptions No.2&4 of Section 300 of IPC. Similarly, in the case of Masumsha Hasansha Musalman Vs. State of Maharastra (2000) 3 SCC 557 in the fact situation of the case, converted the sentence under Section 304 Part II of IPC. In the case of Buddhu Singh and others Vs. State of Bihar (Now Jharkhand), (2013) 3 SCC (Cri) 460, Hon'ble  Apex  Court converted the case from Section 302 to Section 304 Part II of IPC and Division Bench of this Court in the case of Rajesh alias Jadu S/o Babulal vs. State of M.P., 2014(1) MPLJ (Cri.) 64 with the aid of exception -4 of Section 300 of IPC, conviction under Section 302 of IPC set aside and altered to Section 304 Part I of IPC. The ratio of all these decisions is that when incident occurs in sudden quarrel without premeditation and accused gives a single blow and does not act in cruel or unusual manner.

Here, in the present case, it appears that repeated blows have been inflicted by appellant and and the case does not appear to be of sudden provocation in heat of passion or on the basis of sudden provocation,therefore, conviction of appellant from commission of offence under Section 302 of IPC to Section 304 Part I or II cannot be converted.

Appellant has given repeated blows to the deceased and his clear intention was to kill the deceased. Same has been proved by witnesses. Therefore, in the considered opinion of this Court, no case for interference in the impugned judgment of conviction and order of sentence passed by trial Court is made out and same is affirmed. Appeal fails and is hereby dismissed. Appellant is in jail, therefore, he shall have to undergo the remaining part of his jail sentence.

Trial Court and concerned Jail Authorities be informed accordingly.