Rajendra vs State of Madhya Pradesh

Sushma Shrivastava, J.—Appellant has preferred this appeal against the order of his conviction and sentence passed by Sessions Judge, Chhindwara in S.T. No. 122/91, vide judgment dated 13-5-93.

Appellant has been convicted u/s 302 of IPC for committing murder of Sudhakar Rundhe at Village Baredi and sentenced to imprisonment for life by the impugned judgment.

According to prosecution, appellant Rajendra and deceased Sudhakar (hereinafter to be referred as ''deceased'') resided at Village Baredi in the adjacent houses. On 15-4-91 at about 7.30 in the morning, appellant entered into an altercation and quarreled with the deceased alleging that deceased had lowered the water-tap by digging a pit causing scarcity of water supply at the appellant''s house. Being enraged appellant caught hold of the deceased, pushed him and fell him into nearby empty well with intent to kill him. As a result deceased Sudhakar sustained head injury and went into coma. Deceased was taken out from the well in unconscious state; the doctor was called, but he was declared dead by the doctor.

The FIR of the incident was lodged by the uncle of the deceased, namely, Madhav, on the basis of which an offence was registered against the appellant and was investigated. Merg intimation was also recorded at his instance and merg inquest report was prepared. Dead body of Sudhakar was sent for post-mortem examination. After due investigation, appellant was prosecuted u/s 302 of IPC and was put to trial.

Appellant abjured the guilt and pleaded that the deceased had accidentally slipped and fell into the well.

After trial and upon appreciation of the evidence on record, learned Sessions Judge found the appellant guilty for committing murder of Sudhakar and convicted and sentenced him as aforesaid by the impugned judgment. Hence, this appeal.

Learned Counsel for the appellant submitted that the Trial Court gravely erred in convicting and sentencing the appellant and failed to consider the overwhelming evidence on record that the deceased had accidentally slipped into the well during the scuffle and erroneously relied upon the testimony of mother of the deceased, namely, Muktabai, though her name was not mentioned in the FIR as an eye-witness.

Learned Counsel for the State, on the other hand, justified and supported the impugned judgment.

We have perused the impugned judgment and evidence on record.

The conviction of the appellant is founded mainly on the evidence of Muktabai (P.W. 4), who is the mother of the deceased. Muktabai (P.W. 4) categorically deposed in her evidence that on hearing the loud altercation between her son and the appellant, she reached the place of occurrence and witnessed that the appellant had caught hold of his son Sudhakar and pushed him and fell him into the empty well in presence of a large gathering. She further deposed that when her son was taken out from the well he was unconscious and had sustained bleeding injuries in his scalp, hands and back and was declared dead by the doctor.

Muktabai (P.W. 4) was subjected to a lot of cross-examination, but she remained firm on her statement that she had seen the scuffle between the appellant and her son Sudhakar after an altercation over the water pipe and also clearly witnessed the appellant pushing her son into the well resulting into his death.

There were no reasons to disbelieve the evidence of Muktabai (P.W. 4). Few exaggerations occurring in her evidence were not such as to discard her basic version that she had seen the appellant pushing her son Sudhakar into the empty well. Her evidence also stood corroborated to some extent by the evidence of Nandlal (P.W. 6) as also by the evidence of Madhav (P.W. 1), who had lodged the FIR.

The evidence of Muktabai (P.W. 4) could not be disbelieved merely on the ground, as submitted, that she was not mentioned as an eye-witness in the FIR (Exh. P-2) lodged by Madhav (P.W. 1). The FIR is not an encyclopedia of the whole prosecution case. More so, presence of Muktabai (P.W. 4) on the place of occurrence as an eye-witness is also borne out from the testimony of Nandlal (P.W. 6).

Likewise, the evidence of Muktabai (P.W. 4) could not be discarded on the score that she being the mother of the deceased was a closely related and interested witness. As reiterated by the Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh reported in 2006 AIR SCW 4143, the evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. On careful scanning of the evidence of Muktabai (P.W. 4), we find that her evidence was clear, cogent and trustworthy and her presence on the place of occurrence as an eye-witness could not be doubted. The Trial Court, therefore, rightly acted upon her testimony.

The Trial Court also rightly disbelieved the evidence of the other eye-witnesses, namely, Hariram (P.W. 10), Digambar (P.W. 11), Vyankti (P.W. 2), Gajanan (P.W. 3), Gulab (P.W. 9) and Suresh (P.W. 12), who turned hostile to prosecution and recorded cogent reasons for discarding the version of accidental slipping of the deceased into the well during the scuffle.

Be that as it may, it was clear from the testimony of Muktabai (P.W. 4) that appellant had pushed her son into the empty well and it was not a sheer chance or accidental slip of the deceased into the well. It is also borne out from the testimony of Dr. Sukhdeo Shende (P.W. 5), who conducted the postmortem on the dead body of deceased, that the deceased had sustained ante-mortem injury over his occipital region resulting into coma, which was the cause of his death. It was thus clearly established that the death of the deceased was caused by the act of appellant.

However, it is borne out from the evidence on record, as also clearly deposed by the mother of the deceased, namely, Muktabai (P.W. 4), that appellant had no previous enmity with the deceased. It is also evident from her testimony that the incident had occurred on account of intermeddling with the water pipe by the deceased leading to an altercation and scuffle between the two. Thus, the incident had occurred on the spur of moment and the act of appellant was not premeditated. Appellant had also not used any weapon and it was during the scuffle between the two that appellant had pushed the deceased into the empty well. It was clearly deducible from these facts that the appellant did not intend to cause his death. Yet, when the appellant pushed the deceased into the empty well, it could well be inferred that he certainly had the knowledge that his act was likely to cause the death of deceased.

In view of the aforesaid discussion, we are of the considered opinion, that the act of appellant would fall within the ambit and purview of Section 304 Part II of IPC.

Accordingly, we modify the conviction of the appellant u/s 302 of IPC to one u/s 304 Part II of IPC and modify his sentence to Rigorous Imprisonment for five years with fine of Rs. 10,000/-(Rupees Ten thousand only), in default further Rigorous Imprisonment for two years. Amount of fine, if realized, shall be paid to the mother of deceased as compensation for the death of her son.

Needless to say, that the sentence of imprisonment already undergone by the appellant shall be set off against the substantive term of his imprisonment. Appellant is on bail. He shall surrender to his bail bonds to serve out the remaining part of sentence. Appeal stands allowed to the extent indicated above.