Tunnu @ Rajesh Kumar vs State of M.P.

Rakesh Saksena, J.—This appeal has been preferred against judgment dated 30.06.2004 passed by Third Additional Sessions Judge (Fast Track) Court Betul (M.P.) in S.T. No. 261/2003, convicting the appellant u/s 302 of IPC for committing murder of his wife Ratai bai (since deceased) and sentencing him to imprisonment for life. Facts of the case, in short, are that deceased along with her husband, the appellant and two children had been living in adjoining portion of the house of her brother Shankar (PW-1) since about 7 years. Appellant was in habit of making quarrels with the deceased, doubting her character and loyalty. On 3.9.2003 also appellant reached his house at 11:00 p.m. and quarrelled with the deceased saying she goes anywhere without taking him in confidence. In morning at about 8:00 a.m. blood stained body of deceased was found in the house. Appellant fled from the place. Ajay aged 4 years, minor son of the appellant and the deceased, stated to the persons assembled there that appellant demanded money from the deceased and assaulted her with a burning wood.

Shankar, brother of deceased (PW-1) informed the incident at police station Jhallar District-Betul. On 4.9.2003 inquest proceeding Ex. P-1 was registered. Police prepared Naksha Panchnama of laash and sent dead body of the deceased to hospital for postmortem. Police seized broken bangle pieces from the spot and arranged to take photographs of the dead body and of the scene of the occurrence. Dr. Manish Sharma (PW-4) conducted postmortem of dead body and prepared postmortem report Ex. P-17 mentioning the cause of death to be the head injury. On 5.9.2003, vide FIR (Ex. P-21) a case was registered against appellant u/s 302 of IPC - On 8.9.2003 appellant was arrested. At his instance, weapon of offence, the wood stick was recovered. Prior to that appellant had made extrajudicial confession to Ashok (PW-6) stating that he has committed murder of his wife and police is running after him.

After completing the investigation, police Jhallar, District-Betul submitted a charge sheet against the appellant in the Court of concerned magistrate. Case was committed to the Court of Sessions for trial. Trial Court framed charge u/s 302 of IPC. Appellant abjured guilt and pleaded that he has been implicated in the matter.

To substantiate the case of prosecution, statements of Shankar, brother of deceased (PW-1), Bhagabai, sister-in-law of deceased (PW-2), Shivaji, cousin of deceased (PW-3), Dr. Manish Sharma (PW-4), Keshorav Savle, Patwari (PW-5), Ashok (PW-6), M.R. Malviya, Head Constable (PW-6), H.L. Sharma, Sub Inspector (PW-7) and Santosh Patil, Head Constable (PW-8) were recorded. After appreciating aforesaid evidence, trial Court has convicted and sentenced the appellant as above.

Assailing aforesaid judgment, this appeal has been preferred on the grounds that prosecution has failed to adduce sufficient evidence before the trial court to prove the chain of circumstances against the appellant. Trial Court has not appreciated the evidence in right perspective. Conviction has been based on unreliable and insufficient evidence. Conviction is bad in law. On the other hand, learned Panel Lawyer supported the finding of conviction and sentence both.

Dr. Manish. Sharma (PW-4) on 5.11.2003 at Public Health Center Betul conducted the postmortem of the deceased and found a contusion measuring 3 inch X 4 inch on left side of parital region. He found 3 fractures of spiral shape in the frontal bone on left side. Cause of death was found shock due to head injury which damaged the brain also, within 24 to 36 hours of the postmortem examination. Death was found to be homicidal in nature. In response to the querry Ex. P-18, Dr. Sharma (PW-4) further opined that swelling on face and neck of the deceased might be caused as a result of head injury and is not indicative of asphyxia. Cause of death was the head injury. In view of the evidence of Dr. Sharma (PW-4), postmortem report (Ex. P-17) and query report (Ex. P-18), it remains no longer disputed that death of deceased was homicidal in nature.

Bhagabai, sister-in-law of deceased (PW-2) over heard a quarrel between the appellant and the deceased in the night, expressing annoyance by the appellant with the deceased that she used to Leave the house for anywhere without asking him. Shankar, brother of deceased (PW-1) saw the dead body of the deceased in the adjoining portion of his house where the appellant and deceased live. PW-1 informed about the incident to his cousin Shivaji (PW-3). They did not find the appellant in the house. On asking Ajay aged 4 years, minor son of the appellant and the deceased. He stated that appellant was demanding money from her mother and inflicted a burning wood on her head.

It is submitted by learned counsel for the appellant that prosecution did not examine Ajay in the Court, hence what he has stated would be an evidence of "hearsay" category and cannot be considered and relied upon.

It is submitted by learned Panel Lawyer that during investigation police recorded statement of child who narrated the incident "Korku" language, translated in Hindi with the help of PW-3. On 26.04.2003 child was produced in the trial Court for recording his statement but despite lot of efforts his statement could not be recorded as he was not able to state the facts clearly before the Court. Learned Panel Lawyer further submitted that what happened before Ajay in the night in the house was disclosed by him in the morning before PW-1 and PW-3 would be admissible u/s 6 of the Evidence Act because child witnessed the incident occurred in the night in the house and immediately thereafter in the morning disclosed what he saw there.

Shivaji (PW-3) stated that at the instance of appellant a burnt Sagoan wood was recovered from the back side of Majar. On 8.9.2003 H.L. Sharma, Sub-Inspector (PW-7) arrested the appellant. On the basis of information furnished by the appellant PW-7 recovered a Sagoan wood and sent it to doctor seeking an opinion whether head injury of the deceased could have been caused by it or not. Dr. Sharma (PW-4) submitted a positive opinion in query report Ex. P-18.

Ashok (PW-6) did not support the prosecution and he was declared hostile. Hence, fact of extra judicial confession could not be found to be proved.

From the aforesaid evidence, in our opinion, prosecution succeeded to prove beyond doubt that (1) appellant, as usual, quarrelled with the deceased in the late night, (2) The deceased and the appellant were seen last together in the house, (3) Dead body of the deceased was found in his house in the morning, (4) Appellant absconded from the place of occurrence, and was arrested after about 5 days of the incident, (5) At his instance, weapon of offence, a burnt Sagoan wood was recovered and (6) Death of deceased was found to be homicidal. Aforesaid circumstantial evidence against the husband (appellant) clearly and unerringly indicated that only appellant caused the death of deceased.

It is submitted by learned counsel for the appellant that death of the deceased was a result of a solitary head injury caused by appellant. There was no intention of the appellant to commit murder of his wife. It appears that appellant had been provoked all of a sudden on a trivial issue i.e. demand of money by him and refusal by the deceased. The appellant did not use any conventional weapon to inflict injury. Learned Panel Lawyer also conceded the above fact situation.

Though, the appellant (husband) and deceased (wife) used to quarrel frequently but on fateful night according to evidence of PW-3, a quarrel arose on the point of demand of money by the appellant. On a sudden quarrel being provoked the appellant inflicted a blow with a burning wood log without premeditation. Said one and only blow was caused in heat of passion on the head of the deceased during quarrel which resulted into her death. There is no evidence to show that the appellant took undue advantage and acted in unusual or cruel manner. Act of the appellant is fully covered under exception 4 of Section 300 IPC. As discussed above conviction of appellant u/s 302 of IPC deserves to be and is set aside. Instead appellant is convicted u/s 304 (Part 1) of IPC for committing culpable homicide not amounting to murder and is sentenced to 10 years RI. Needless to write that period of sentence served out by the appellant during investigation, trial and appeal shall be adjusted accordingly.

Appeal partly allowed.