Kapil And Others vs Union of India And Others

This appeal has been preferred by the accused/appellant under

Section 374 of Code of Criminal Procedure against the judgment of

conviction dated 16th September, 2005 passed by First Additional

Sessions Judge, Harda in Sessions Trial No.119/2004, whereby the

appellant was convicted under Section 302 of Indian Penal Code and

sentenced to undergo life imprisonment and a fine of Rs.1,000/-, in

default of payment of the fine amount, further rigorous imprisonment

of six months.

In brief, the prosecution story is that, on 16.12.2003 at about

7:00 a.m. near Gram Panchayat Bhawan at Village Balgaon, the

deceased Ayodhya Bai was collecting cow-dung in front of her

house. The co-accused/wife of the appellant namely Kanta Bai raised

an objection that cow-dung belongs to her. At this point of time,

quarrel started between them. At that time, the appellant came there

armed with an Axe, with an intention to kill Ayodhya Bai. He gave a

Axe blow on the neck of the deceased-Ayodhya Bai. Ayodhya Bai

died on the spot. The matter was informed to the Police. An FIR was

registered at Police Station Rahatgaon, District Harda under Section

302 of Indian Penal Code against the appellant. After the

investigation, a charge-sheet was filed before the competent Court.

After committal of the case, the trial Court conducted the trial.

Learned trial Court framed charge against the accused/appellant

under Section 302 of IPC. Appellant abjured his guilt and stated that

he was falsely implicated by the complainant. After relying on the

testimony of Mohan Lal (PW5) (husband of the deceased) which was

corroborated by the testimony of Bholaram (PW6), Alkabai (PW7),

Rajesh (PW8) and also with the medical evidence, learned trial Court

held that the appellant has caused the death of the deceased by

inflicting a blow with an Axe on her neck. Hence, the appellant was

convicted under Section 302 of IPC and sentenced for life

imprisonment and a fine of Rs.1,000/-, in default of payment of the

fine amount, further rigorous imprisonment of six months.

This appeal has been filed by the appellant on the grounds that

learned trial Court wrongly convicted the appellant on the basis of

contradictory evidence given by the prosecution witnesses, who are

near relatives of the deceased and that no independent eyewitnesses

to the incident have been examined. Further, the trial Court has not

considered the evidence of defence witnesses. Hence, the impugned

judgment is liable to be set aside and the appellant may be acquitted

from the charges. Co-accused Kanti Bai, wife of appellant, had died

during the pendency of the trial.

Heard learned counsel for the parties. Perused the record.

It is not in dispute that appellant is the son of the sister-in-law

of the deceased and both were residing opposite to each other. It was

also not in dispute that the relations between the parties are not

cordial. The conviction of the appellant is based on the evidence of

the close relatives. Alka Bai (PW7) (daughter-in-law of the deceased)

and Mohan Lal (PW5) (husband of the deceased) were eyewitnesses

of the incident. The said incident occurred at about 7:00 a.m., at that

time the presence of the aforesaid witnesses are not doubtful. At that

point of time, Mohan Lal (PW5) (husband of the deceased) aged

about 70 years was sitting in front of his house and his presence was

also corroborated by the testimony of Ramdas (PW2). Ramdas (PW2)

is independent eyewitness, who also saw the whole incident and

corroborated the testimony of Mohan Lal (PW5) and Alka Bai

(PW7).

All witnesses stated that at the time of the incident, co-accused

Kanti Bai (wife of the appellant) was collecting cow-dung in front of

her house and at the same time, the deceased Ayodhya Bai was also

collecting cow-dung from that place, therefore, dispute arises

between them. As per the testimonies of Ramdas (PW-2) and Alka

Bai (PW7), both had quarreled with each other and scuffled with each

other, then the appellant suddenly came there with an Axe and

inflicted single blow therewith on the neck of the deceased by full

force. Thereafter, Rajesh (PW8) and Bhola Ram (PW6), sons of the

deceased, had seen the deceased in an injured condition. Rajesh

(PW8) also saw that the appellant was running over with an Axe from

the scene of occurrence.

On the aforesaid evidence, learned trial Court held that the

eyewitnesses saw and proved that the deceased was killed by the

appellant with an Axe. The Axe, the weapon of offence, was seized

from the possession of the appellant. Further in FSL report, blood stains

were found on the Axe which confirmed that the aforesaid Axe was

used for committing the murder of the deceased by the appellant.

Learned counsel for the appellant has placed reliance on the

decision of the Supreme Court in Sangili @ Sanganathan vs. State of

Tamil Nadu (2014) 10 SCC 264; which is not applicable in this case.

Further, we find that there is no contradiction between the

ocular testimony and the medical evidence. Dr. R.K. Garg (PW1)

properly proved that the deceased was killed due to the injuries

caused by the appellant by an Axe on the vital part of the neck.

Learned counsel for the appellant contended that in fact, the

appellant inflicted single blow on the neck of the deceased with

extreme force, therefore, the medical expert found other injuries over

left shoulder and right forearm. It appears that there is some

contradiction with regard to the number of injuries but in this case

such contradiction is not adversely affected the prosecution case. In

such situation, the testimony of eye witnesses shall prevail over the

medical evidence. Every eyewitness deposed that the appellant

inflicted single blow with an Axe on the deceased''s neck. Learned

counsel for the appellant explained that due to the force of blow,

incised wound was caused on the shoulder upto right arm whereby

the neck was deeply injured. We are of the considered view that the

above findings recorded by the trial Court are in accordance with the

evidence on record. There is no perversity or illegality in the findings

recorded by the learned trial Court.

Keeping in view the statements of eyewitnesses, we are with

the agreement of the aforesaid contention. Learned counsel for the

appellant also contended that in the above circumstances, the case

comes under the purview of Exception 4 to Section 300 of IPC and

act of the appellant covered under Section 304 Part-I of IPC.

We also find that there is no provocation or planning and some

domestic dispute was happened between the ladies which were taken

seriously. Therefore, in a spur of moment, the appellant caused single

fatal injury by single blow with an Axe over the vital part of neck of

the deceased. Therefore, the appellant is liable to be convicted under

Section 304 Part-I of IPC as the prosecution had failed to prove

premeditation. Exception 4 to Section 300 IPC which provides-

"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.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."

Present case is also a case where the death is due to a sudden

fight and there is no premeditation.

In this view of the matter, we are of the considered opinion that

the case would fall under Part I of Section 304 IPC. Accordingly, the

conviction is modified from under Section 302 IPC to conviction

under Section 304 Part 1 IPC and instead of life imprisonment, the

appellant is sentenced to 10 years'' R.I. with fine of Rs.1000/-. In case

if fine amount is not paid, three months'' R.I.

In the result, the appeal is partly allowed.

It is informed that the appellant is in custody since 18.12.2003.

As the appellant has already undergone the entire custodial sentence,

he be released forthwith if not required in any other case.