Ram Bharose vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 22/2/2008 passed by the 5th Additional Sessions Judge, Chhindwara in ST No. 220/2006, whereby the appellant was convicted for commission of offence punishable u/s 307 of IPC and sentenced for seven years'' rigorous imprisonment with fine of Rs. 1,000/-, in default of payment of fine, he was to undergo six months'' RI in addition. The prosecution''s case, in short, is that on 3.8.2006 the victim Sheela Bai was at her residence situated at Village Panchgaon (Police Station Chand District Chhindwara). At about 1:30 PM in the noon, she was going to the society building to provide the keys of the society building to her son. The appellant came with an axe and assaulted her on the neck from behind and thereafter he assaulted her for more than two times with the axe. Sheela Bai fell on the earth. Rajesh son of the victim came to his house to take the keys of the society building and he found his mother in such an injured condition. He intimated his father Parsadi (complainant). The complainant took his wife to the Government Hospital Chourai in a vehicle, but she was referred to District Hospital Chhindwara. Thereafter the complainant Parsadi lodged an FIR Ex. P-1 after getting further information from his wife. Dr. K. Tirki (PW-11) who was posted as Medical Officer in CHC Chourai examined the victim Sheela Bai and gave a report Ex. P-9A. He found two incised wounds upon the victim Sheela Bai. One was situated on the back of her head and second was on her neck. He found that the injuries were fatal in nature, and therefore he referred the patient to the District Hospital, Chhindwara where she remained in the hospital for more than a month. The police went to the spot and prepared a spot map. An axe was seized from the appellant. Some blood stained earth and plain earth were collected and seized from the spot. Blood stained clothes of the victim were also taken. The seized articles were sent for Forensic Science analysis. After due investigation, a charge sheet was filed before the JMFC Chhindwara, who committed the case to the Sessions Court Chhindwara and ultimately it was transferred to the 5th Additional Sessions Judge, Chhindwara.

The appellant-accused abjured his guilt. He did not take any specific plea in the case, but he has stated that he was falsely implicated in the matter due to enmity. Also Shakun Bai (DW-1) was examined to prove the previous quarrel that occurred between Shakun Bai and Sheela Bai.

The learned 5th Additional Sessions Judge, Chhindwara after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that except the victim Sheela Bai, there was no eye-witness in the case. It was not clear as to how and when the complainant Parsadi received information from the victim. She remained unconscious upto the District Hospital, Chhindwara, and therefore the complainant could not have obtained any information from the victim. The appellant was falsely implicated in the matter on the basis of suspicion only. The injuries caused to the victim were not fatal, and therefore no offence u/s 307 of IPC is made out against the appellant. In the alternate, it is submitted that the appellant remained in the custody for more than four years, and therefore his sentence may be reduced to the period which he has already undergone in the custody.

On the other hand, the learned counsel for the State has submitted that the trial Court has rightly convicted and sentenced the present appellant, and therefore no interference is warranted from the side of this Court.

After considering the submissions made by the learned counsel for the parties and looking at the evidence adduced by the parties, it is to be considered that whether the victim Sheela Bai sustained fatal injuries? Whether the injuries were caused by the present appellant? Whether offence u/s 307 of IPC is made out against the appellant? And whether the sentence imposed upon the appellant can be reduced.

In the present case, Sheela Bai was the only eye-witness and has stated there was nobody in the house and she was going to the society building to provide the keys of the society building to her son. On the way the appellant came and attacked her. He assaulted on the back of her neck with an axe and thereafter assaulted her on head also. Thereafter he gave more blows to the body of the victim. However, Sheela Bai has admitted in her cross examination that after sustaining two injuries, she became unconscious. Rajesh (PW-6) has stated that he went to fetch the keys of the society building and he found that his mother was lying on the earth in an unconscious position. He intimated his father Parsadi (PW-2) on phone who then came to the spot. He took his wife to the CHC Chourai. Dr. K. Tirki examined the victim and found two incised wounds, one on her head and second on the back of her neck. According to his opinion, the injuries were fatal in nature and lot of blood was oozing from the wounds. It is true that there was no fracture found below the injuries and no symptoms of brain hemorrhage were found. However, it is apparent that due to the appellant''s assasult, the victim turned unconscious and a huge amount of blood was lost from her wounds. The wound caused on her head was bone deep, and therefore it appears that it was given with a powerful blow. Under such circumstances, looking at the wounds of the victim, the doctor was of the opinion that the injuries were fatal in nature, and there is no basis by which his opinion can be discarded. It is established that the victim sustained fatal injuries in the incident. According to the evidence of the victim Sheela Bai, Rajesh (PW-6) and Parsadi (PW-2), it is apparent that it was the appellant who assaulted the victim Sheela Bai with an axe. It is submitted by the learned counsel for the appellant that it is nowhere clear that at what time the victim Sheela Bai told about the incident to her husband, and therefore the FIR was lodged without any basis. If the FIR Ex. P-1 is perused, then it would be clear that the incident took place at 1:30 PM and the FIR was lodged at 3:15 PM. In the meantime, a dying declaration Ex. P-8 was recorded, which is proved by the Executive Magistrate D.K.Sharma (PW-7), then it would be apparent that the victim was taken to the CHC Chourai, then Civil Hospital Chhindwara and she gave her dying declaration at about 1.45: PM. From the dying declaration Ex. P-8 proved by the Executive Magistrate D.K.Sharma, it is apparent that the victim was conscious at the time when her dying declaration was recorded. In the dying declaration Ex. P-8, it is mentioned by the doctor that she was conscious during recording her dying declaration. Since it is apparent that the FIR was lodged after recording of the dying declaration, and therefore the version maintained by the complainant Parsadi can be accepted that his wife informed him about the incident after she was taken to the District Hospital, Chhindwara.

On the basis of the aforesaid discussion, it is apparent that the complainant Parsadi did not lodge any FIR on the basis of suspicion but he had lodged an FIR on the basis of the information given by the victim Sheela Bai. The version given by the victim Sheela Bai is similar as she has given before the Executive Magistrate in the shape of dying declaration Ex. P-8, and therefore it cannot be said that the FIR lodged by the complainant Parsadi was baseless. Actually the dying declaration Ex. P-8 was the first version of the victim''s story given to the Executive Magistrate in which she has stated that it was the appellant who assaulted her with an axe. Under such circumstances, the testimony of the complainant as well as the victim Sheela Bai is believable, which is corroborated by the dying declaration Ex. P-8, the FIR Ex. P-1 and the injuries report Ex. P-9A prepared by Dr. K. Tirki. The doctor found the injuries to the victim Sheela Bai at the same places where she had claimed that the appellant had assaulted her with an axe. Under such circumstances, the testimony of the victim Sheela Bai is reliable beyond reasonable doubt and it is proved that the appellant assaulted her with an axe causing her fatal injuries.

It is apparent from the record that the appellant assaulted the victim for 2-3 more times to the victim. He gave at least 2-3 blows to the victim on her head and neck which are the vital parts of the body. Looking at the overt-act of the appellant, his intention is visible that he was intended to kill the victim Sheela Bai, otherwise there was no need for the appellant to assault the victim Sheela Bai in such a manner for two times on the vital parts of her body until she turned unconscious. Under such circumstances, looking at the appellant''s intention and injuries caused to the victim, offence u/s 307 of IPC is squarely made out against the appellant.

So far as the sentence is concerned, the appellant remained in the custody for 69 days during the trial and he is in custody thereafter since 22.2.2008, and therefore he remained in the custody for more than four years. It is true that he assaulted the victim for at least two times, but it is also apparent that no bony injury was caused to the victim. The appellant is the first offender and he is a resident of the house right in front of the house of the victim. He assaulted the victim, because there was a quarrel between his wife and the victim but for his crime no harsh punishment can be given to the appellant. Looking at the overt-act of the appellant, the sentence of four years appears to be sufficient, and therefore since the appellant suffered the custody of more than four years, it would be appropriate to reduce his jail sentence to the period which he has already undergone in the custody.

On the basis of above discussion, the instant appeal filed by the appellant is partly allowed. The conviction directed by the trial Court against the appellant for commission of offence punishable u/s 307 of IPC is hereby maintained, but his jail sentence is reduced to the period which he has already undergone in the custody. There is no change in the fine amount. If fine amount is deposited, then entire fine amount be given to the victim Sheela Bai W/o Parsadi, R/o Village Panchgoan, PS Chand District Chhindwara by way of a compensation.

Registry is directed to issue a supercession warrant so that the appellant may be released forthwith, if he has deposited the fine amount. A copy of this judgment be sent to the trial Court with its record for information and compliance.