AI Structured Summary
Not yet generated for this judgment
Judgment
Heard.
This appeal is directed against impugned judgment of conviction and order of sentence dated 05.05.2014 passed by the First Additional Sessions
Judge, Raigarh (C.G) in Sessions Trial No.89/2013, whereby the appellant has been held guilty of commission of offence under Section 302 of I.P.C.
and sentenced to undergo life imprisonment with fine of Rs. 5000/- and in default of payment of fine, R.I. for 3 months.
Briefly stated, prosecution story as reflected from the records of the impugned judgment is that the appellant assaulted his mother-Jungo Bai by
using wooden plank during the course of quarrel with his wife, due to which, mother sustained fracture injury on her shoulder and thigh and then
succumbed to death because of excessive bleeding and syncope. First Information Report was lodged by Balsai (PW-4), brother-in-law of the
deceased, who set the investigation rolling. The inquest over the dead body was prepared vide Ex.P.-12 by the Investigation Officer Tulsiram Sidar
(PW-6), followed by Postmortem vide Ex.P.-5 Dr. B. L. Bhagat (PW-3). A Wooden Plank, alleged to have been used in the commission of offence
was seized vide Ex.P.-2. Upon completion of usual investigation, charge sheet was filed before the jurisdictional Magistrate who, in turn, committed
the case for trial to the Court of sessions.
The trial Court relied mainly on the eyewitness is (PW-2) and (PW-5) namely Jailal Bek, the brother and Muktilata Bek, daughter of the appellant.
The appellant was held guilty of the commission of offence and sentenced as discussed above. It is relevant to state that the appellant did not examine
any defense witness and in his examination under Section 313 Cr.P.C., he denied having committed the offence.
Learned counsel for the appellant sought to challenge the impugned judgment of conviction and sentence mainly on the submission that the appellant
had no intention to cause death of his mother. It is submitted that even if the evidence of Jailal Bek (PW-2) and Muktilata Bek (PW-5), the
eyewitnesses is accepted as having seen the incident, at the most, it would be a case of commission of offence under Section 304 Part -II only and,
not a case of murder punishable under Section 302 of IPC. According to the learned counsel for the appellant, the evidence on record shows that the
appellant was drunken and was quarreling with his wife and when his mother Jungo Bai, deceased, intervened and deterred him not to quarrel, the
appellant took up a wooden plank and assaulted her on the shoulder, thigh as also on the abdomen. This contention only proves that upon a sudden
quarrel between the appellant and his wife, when the deceased intervened, in the heat of passion, he suddenly gave blows. Learned counsel for the
appellant would also argue that the appellant neither used any dangerous weapon nor chose any vital part of the body meaning thereby that there was
no intention to cause death nor to cause any bodily injury, which in ordinary course of nature, was likely to cause death. Further submission is that
though shoulder and thigh bones were fractured, because of old age, death took place, therefore, it cannot be said that the appellant had no knowledge
that the bodily injury was likely to cause death. Therefore, there was neither any intention to cause death nor to cause any bodily injury which was
likely to cause death. Therefore, no ingredients for commission of offence of culpable homicide amounting to murder are made out. According to
learned counsel for the appellant, in the totality of the circumstances, in which the incident happened, may warrant conviction for commission of
offence under Section 304 Part-II of IPC. As the appellant has also undergone more than five years of imprisonment, the sentence may be reduced to
the period undergone.
On the other hand, State counsel supported the judgment of conviction and submits that the appellant is not entitled to the benefit of any of the
exceptions made out under Section 300 of IPC because it is not a case of sudden quarrel between the appellant and his mother. He would submit that
the appellant inflicted injury on his mother, whom he knew that she was about 70 years of age and any hard blow on any part of the body is likely to
cause her death. He would also submit that the appellant inflicted/assaulted the deceased with the help of a wooden plank on shoulder, thigh and
abdomen with so much of force due to which, her bones got fractured. Therefore, it would be a case where the appellant acted in a cruel and unusual
manner and even Exception-4 under Section 300 IPC would not apply and it is a case of conviction under Section 302 of IPC only.
Homicidal death of Jungo Bai is not in dispute in view of the evidence of Dr. B. L. Bhagat (PW-3) who conducted postmortem and proved his
report vide Ex. P.-5. In his evidence, he deposed as below:-
ckg~; ijh{k.k%& e`frdk dk ckg; ijh{k.k djus ij vka[ksa can] eqag can rFkk fuEu fyf[kr pksVsa ikbZ xbZ A
1- ck,a da/ks ds uhps dfUB;wtu Fkk ftldk vkdkj 29x13 lseh Fkk ,oa gM~Mh VwVk gqvk Fkk A
2- ck,a tk?k esa ,d dfB;wtu Fkk ftldk vkdkj 29x5 lseh dk Fkk ,oa gM~Mh VwVk gqvk Fkk A
3- nkfgus isV esa ,d dfUVtu Fkk vkdkj 12x8 lseh dk Fkk A
4- ck,aa isV ds ihNs rjQ ,d Qvk gqvk ?kko Fkk ftldk vkdkj 9x4 lseh- FkkA ?kko esa rFkk ?kko ds vklikl jDr ds FkDds FksA
5- lhus ds ihNs rjQ cgqwr lkjs fNys gw, ?kko Fks ftlesa jDr ds FkDds Fks blds vfrfjDr vU; dksbZ pksVs ugh ik;k x;k FkkA
vkarfjd ijh{k.k %& e`frdk dk vkarfjd ijh{k.k djus ij eaSus ik;k fd cka;k ,oa nk;ka QsQMk dUtsLVsM Fkk gn; dk ck;k psEcj [kkyh Fkk ,oa nkfguk
psECkj es jDr dk FkDdk FkkA vkek'k; es yxHkx 100 ,e ,y rjQ inkFkZ rFkk v/kipk Hkkstu Fkk NksVh vkar es ipk Hkkstu Fkk cMh vkar es ey Fkk
;d`r Iyhgk ,oa xqnkZ dUtsLVsM FkkA e`frdk dk cak;k g;wej gMMh VwVk gqvk Fkk ,oa cka;k Q;wej gMMh VqVk gqvk Fkk ,oa jDr dk FkDdk tek
gqvk FkkA
The opinion with regard to cause of death was subjected thus :
esjs erkuqlkj e`frdk dh e`R;q vR;f/kd jDr dk L=ko gksus ds dkj.k fludksi dh otg ls gqbZ A ftldh vof/k 'ko foPNsnu ds le; 12 ls 24 ?kaVs dh vof/k
FkhA tks gR;kRed izd`fr dh FkhA
Therefore, it is clearly proved that the deceased Jungo Bai died because of excessive bleeding and syncope, as a result of multiple injuries.
In order to prove that it is the appellant who inflicted injury on deceased Jungo Bai, prosecution has relied upon the testimony of Jailal Bek (PW-2),
who is the brother of the appellant and Muktilata Bek (PW-5), who is the daughter of the appellant. Jailal Bek (PW-2) has emphatically stated in
Para-2 of his evidence that at about 10.00 â€" 11.00 in the night, the appellant, in a drunken state, assaulted his mother. He has been subjected to
detailed cross-examination but nothing was elicited to the doubt of the testimony of the witness in so far as the role of the appellant inflicting injury on
his own mother is concerned.
Apart from this, appellant's daughter Muktilata Bek (PW-
5) has also deposed that the appellant assaulted her grand mother. She has stated that the appellant assaulted her grand mother by a wooden plank
because of which, she died. In her cross-examination, she admitted that she, along with other members of the family, ran away to another house and
she does not know what happened thereafter but she has emphatically stated that she has not seen the incident. The evidence of this witness shows
that when they were crying, she came back and she has seen the appellant assaulting the victim. To that extent that she came back and then
witnessed the incident, is an improvement upon her police statement.
The two witnesses are the closest relatives of the appellant, one being the brother and the other being his daughter, therefore, there is no reason for
false implication. However, it appears from the evidence of these two witnesses that when throughout the incident of assaulting, Jailal Bek (PW-2)
was present but daughter Muktilata Bek (PW-5) went out and then came back. However, these discrepancies are not of such nature that the entire
evidence of these witnesses should be disbelieved. It is beyond doubt that it is the appellant alone, who assaulted his mother by use of a wooden plank.
We shall now consider the submission of learned counsel for the appellant that in the circumstances of the case, the conviction may be altered to
that under Section 304 Part -II of IPC.
Before we examine the evidence and circumstances on record, we consider that it is necessary to look into the relevant provisions of the Indian
Panel Code containing the definition of culpable homicidal death, murder and exception thereof.
Culpable homicide has been defined under Section 299 of IPC as below:
Culpable homicideWhoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as
is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Subject to exception which has been excepted under Section 300 IPC culpable homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or SecondlyIf it is done with the intention of causing such bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or ThirdlyIf it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.
It would thus be seen that in order to constitute the offence of murder, it has to be proved that the injury is caused with an intention of causing
death or with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is
caused, or if it is done with the intention of causing bodily injury to any person or bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such an act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
There are however, exceptions inbuilt in Section 300 IPC. If the act alleged is brought under any exceptions, then it would be a case of culpable
homicide not amounting to the murder, which is punishable under Section 304 IPC. Our endeavor would be to examine the material available on record
to find out whether the present case is covered under any of the exceptions enumerated under Section 300 of IPC.
The circumstances in which the incident has happened, as stated by Jailal Bek (PW-2) and Muktilata Bek (PW-5) both, Jailal Bek (PW-2)
deposes that the appellant was in a drunken state. He further stated that when after taking meals the appellant was quarreling with his wife, his
mother Jungo Bai (deceased) intervened to bring the quarrel to an end and at that stage, the appellant assaulted his mother. He states that the
appellant had assaulted her mother with the help of a wooden plank. In cross-examination, he admitted that a quarrel between the appellant and his
wife was going on and mother had intervened saying as to why the appellant was quarreling with his wife. This would show that there was a quarrel
going on between the appellant and his wife and suddenly, his mother intervened asking them to stop quarreling. Muktilata Bek (PW-5), daughter of
the appellant, who is one of the witnesses, states that her father was in a drunken condition and was searching for an axe to assault his mother and
then they ran away. This Court has already examined the evidence of this witness and has found that this witness has left the scene of incident for
sometime and then returned back. Therefore, under what circumstance, the incident happened, is proved from the evidence of Jailal Bek (PW-2). It is
though proved that in fact there was no dispute and quarrel between the appellant and the mother (deceased) but the appellant got annoyed with the
mother when she intervened between the husband and wife and at that heat of moment, he assaulted his mother. There is nothing on record to show
the genesis of the dispute between the appellant and to the mother and to say that the appellant had an intention to cause death of his mother. There
would be no occasion for the appellant to assault his mother had she was intervened in the quarrel between the husband and wife.
The other important aspect of the matter is that the incident happened in the house and the appellant picked up a wooden plank lying in the house.
It is not a case where the appellant has arrived at the spot from some other place armed with weapon so as to infer that there was preparation of
commission of offence. Circumstances of the case lead us to infer that the appellant must have picked up a wooden plank lying in a visible spot the
house and assaulted his mother. It is not a case that any dangerous weapons like sword, axe or any iron rod or even a club was used for commission
of offence.
Another important aspect of the matter would be that the appellant did not choose the most vital parts of the body to inflict injury. In fact, there
was no head injury and fracture is said to have been caused in the shoulder and the thigh. There is no internal injury in the abdomen. A scratch injury
was found on the back. It is seen that the appellant caused injury, assaulted his mother in the heat of passion upon sudden quarrel by using a wooden
plank. Unfortunately, the mother was aged about 70 years, who could not sustain the injuries and because of bleeding and syncope succumbed to
death. Therefore, in the totality of the circumstances, we are inclined to bring the present case under Exception-4, which reads as under:
Exception 4. -. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue advantage or acted in a cruel or unusual manner.
The circumstances discussed above shows that the death took place due to sudden fight in the heat of passion without there being any premeditation.
It is also not a case where it can be held that the appellant acted in cruel and unusual manner. The weapon used was a wooden plank and the blows
were on the shoulder and thigh. Perhaps the deceased may have succumbed to death only because of the injuries which she sustained.
Therefore, we are of the considered opinion that the present is a fit case where conviction of the appellant should be altered to one under Section
304 Part-II because it would be a case where the appellant must be attributed with the knowledge that such bodily injury is likely to cause death. As to
how much sentence should be awarded to the appellant, we have taken into consideration various circumstances of the case. The aggravating
circumstance of the case is that the appellant assaulted his own mother knowing fully well that she was 70 years old. The other aggravating
circumstance is that he gave multiple blows and did not stop at one blow. Not only this, after the incident he took up the body of the mother and took it
into the field rather than repenting at what he had done. After giving our anxious consideration that the appellant has been found guilty of culpable
homicide of the one who gave him birth and brought to the world, we are inclined to impose sentence of ten years to the appellant. He has already
undergone five years imprisonment.
The conviction is altered to one under Section 300 Part-II and sentence awarded to him is ten years. Fine amount and default sentence remain
unaltered. The appeal is partly allowed.