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Judgment
This appeal is directed against judgment and order dated 04.09.1998 rendered by Additional Sessions Judge, Alirajpur (the then District Jhabua) in S.T. No.166/95, whereby appellant Jhapadi Bai has been convicted under Section 304 (Part-II) of IPC and has been sentenced to undergo RI for 5 years.
Prosecution story, briefly stated, is that on 14.12.1994 around 5 p.m., Vestibai, aged about 9 years (deceased), was grazing her ox near the agricultural field of Jhapadi Bai situated in village Kheved, Police Station - Alirajpur, the then District- Jhabua. Somehow the ox of Vestibai (deceased) - daughter of Hajri Bai (P.W.2) entered into the field of Jhapadi Bai, wherein Gram crop was standing. On some damage caused by the ox to the crops, appellant Jhapadi Bai got infuriated and assaulted Vestibai
by kicks and fists. She was also pushed down by her on the ground. On alarm being raised by Vestibai and one Guman (P.W.3), who was also grazing the cattle near the field of Jhapadi Bai, Hajri Bai (P.W.2) and Surbhan (P.W.4 reached the place of occurrence which was hardly 100 meters away from their residence. They saw Jhapadi Bai assaulting Vestibai by kicks and fists, however, in the meantime, Jhapadi Bai fled away from the spot. Vestibai was brought to home by Hajari Bai (P.W.2) and Surbhan (P.W.4) in injured state, however, within an hour, she succumbed to the injuries and died. Due to lack of conveyance, Hajri Bai could not same day report the matter to police, however, on the next day morning at around 11 a.m., she lodged First Information Report (Ex.P/3) in this regard at Police Station - Alirajpur; on the basis of which a case under Section 302 of IPC was registered. An inquest was carried out by B.L. Narwale (P.W.5) - the then Town Inspector, Police Station - Alirajpur. Vide inquest report (Ex.P/5), he found that Vesti Bai has died because of internal injury. Same day, Dr. DR Mandal (P.W.1) conducted autopsy on the dead body at Civil Hospital, Alirajpur. He, vide postmortem report (Ex.P/2) found following two injuries on the body of the deceased.
Swelling on the right temporal and occipital region measuring 3" X 2" and 4" X 3".
Simple linear abrasion over neck on the right side below right year measuring .1" X .2".
On internal examination clotted blood was found in the temporal and in the occipital region. Apart this, sub-dural hematoma was also found on the right temporal region. As per Dr. DR Mandal (P.W.1), Vestibai died because of ante-mortem injuries and consequent respiratory arrest and that injury No.1 was sufficient in the ordinary course of nature to cause death. He further opined that the death of Vestibai was homicidal in nature and that she died within 24-36 hours of the examination. During the course of investigation, B.L. Narwale (P.W.5) visited the place of occurrence and prepared spot map. The appellant was arrested on 19.12.1994. The witnesses were interrogated. After usual investigation, the charge-sheet was laid before the Court of a Competent Magistrate, who in turn, committed the case to the Court of Sessions from where it was made over for trial to Additional Sessions Judge, Alirajpur.
The learned trial Judge framed a charge under Section 302 of IPC against the appellant, who abjured the guilt and claimed to be tried. The prosecution in order to bring home the guilt examined as many as 5 witnesses including Hajri Bai (P.W.2), Guman (P.W.3) and Surbhan (P.W.4), who are said to be the eyewitnesses. Dr. D.R. Mandal (P.W.1) is the autopsy surgeon, while B.L. Narwale (P.W.5) has carried out investigation. Apart this, documents Ex.P/1 to Ex.P/6 were also marked in evidence.
The incriminating circumstances appearing in the evidence against the appellant were brought to her notice during her examination under Section 313 of the Cr.P.C. The appellant did not dispute that she resides in village Kherwad and is acquainted with Hajri Bai (P.W.2), however, she denied all the incriminating circumstances and submitted that she purchased
agricultural land from Hajri Bai (P.W.2) after making full payment thereof, however, Hajri Bai (P.W.2) had taken back that land and because of this enmity has falsely implicated her in this case. Appellant chose not to adduce any evidence in defence, however, Ex.D/1, D/2 & D/3 respectively, police statement of Hajri Bai (P.W.2), Guman (P.W.3) and Surbhan (P.W.4) were marked in evidence during their cross-examination. The learned trial Court on the basis of evidence adduced before it, vide the impugned judgment came to the conclusion that though a charge under Section 302 of IPC is not proved against the appellant. However, she is found guilty under Section 304 (Part-II) of IPC for committing culpable homicide not amounting to murder. Accordingly, she was convicted and sentenced to undergo 5 years R.I.
The conviction and sentence recorded against the appellant is challenged in this appeal on the ground that no independent witness was brought before the Court in support of the prosecution story. It is further submitted that the learned trial Court committed serious legal error in not considering the material contradictions present in the statement of Guman (P.W.3) and Surbhan (P.W.4). It is contended that the learned trial Court has erred in not considering the defence of the appellant that she was falsely implicated due to enmity because Hajri Bai (P.W.2) had snatched her agricultural field despite full payment having been made by appellant Jhapadi bai to her. It is further submitted that the learned trial Court has not properly appreciated the prosecution evidence and that the conviction recorded by the learned trial
Court suffers from serious factual and legal errors.
Per contra, it is submitted by the learned Public Prosecutor that the learned trial Court on proper appreciation of the evidence, which was brought before the Court has convicted the appellant under Section 304 (Part-II) of IPC. The contention is that Guman (P.W.3) is an independent witness. His evidence has stood the test of cross-examination. There was no infirmity in his testimony and, therefore, learned trial Court has not committed any error in placing reliance upon the testimony of Guman (P.W.3), hence, it cannot be said that the conviction and sentence recorded against the appellant is contrary to law or facts of the case.
I have bestowed my careful attention to the submissions made at Bar by learned counsel for the rival parties and have also carefully gone through the record. The point for consideration is whether the learned trial Court has committed any factual or legal error in recording conviction against the appellant for offence under Section 304 (Part-II) of IPC ?
As regards death of Vestibai, the testimony of Dr. DR Mandal (P.W.1), who conducted post-mortem examination on the dead body of the deceased, is clear and cogent on the point that Vestibai died because of the bodily injury found on right parietal region. He has further clearly deposed that the death of Vestibai was homicidal in nature and that she died within 24-36 hours of the postmortem examination and that the injury found on her head was sufficient in the ordinary course of nature to cause death. The
testimony of Dr. D.R. Mandal (P.W.1) has not at all been challenged on the aforesaid points. Otherwise also the same is found to be clear and consistent. Hence, there is no reason to disbelieve the same. Accordingly, on the basis of testimony of Dr. D.R. Mandal (P.W.1), it is found proved that Vestibai suffered a homicidal death and that the death was primarily because of the head injury leading to sub-dural hematoma on the right parietal region.
In the aforesaid premises, it has to be seen whether the injuries which resulted in the death of Vestibai were caused by appellant Jhapadi Bai ? In this regard, I have to advert to the testimony of Guman (P.W.3) a boy of about 14 years at the time of occurrence, who is said to be an eyewitness because though it has been claimed in the prosecution story that Hajari Bai (P.W.2) and Surbhan (P.W.4) had also seen appellant Jhapadi Bai assaulting Vestibai, however, in their examination before the Court, these two witnesses have clearly stated that by that time they reached the spot, the appellant had fled away from there and that they did not see Jhapadi bai assaulting deceased Vestibai.
Though Surbhan (P.W.4) has deposed that when he along with Hajari Bai (P.W.2) reached the place of occurrence, Vestibai, who was lying in injured state told them that she has been assaulted by kicks and stone by appellant Jhapadi bai, however, Hajari Bai (P.W.2), who is said to be accompanying Subhan (P.W.4) at that time has not stated anything to the effect that Vestibai narrated about the incident to them. Apart this,
Guman (P.W.3) has also stated in para-2 of the cross-examination that Vestibai had not narrated the incident. As the testimony of Hajari Bai (P.W.2) and Surbhan (P.W.4) does not fall within the category of ocular evidence, therefore, the omissions and contradictions appearing in their testimony with regard to the manner of alleged incident may not have any bearing on the issue under consideration.
Guman (P.W.3), is a boy of 14 years. He understands the importance of speaking truth and, therefore, he has been examined by the learned trial Court after ascertaining that he understands the nature of questions being put to him and is capable of answering the same. There is nothing in his testimony that this witness has any previous ill-will, enmity or animosity against the appellant. Because no suggestion in this regard has been given to him during cross-examination. The testimony of Guman (P.W.3) has remained undented despite being cross-examined on various relevant points. The sole omission that has emerged in para-3 of his cross-examination is with regard to the reason of his presence at the place of occurrence. He has deposed that at the time of occurrence, he too was grazing the cattle nearby the field of the appellant. This part is missing in his police statement (Ex.D/2). However, at the same time, there is nothing in Ex.D/2 at the time of incident that he was present at some other place and not at the place of occurrence, therefore, the aforesaid omission may not be made ground to discredit him. The testimony of this witness is found to be clear, cogent and consistent. He has deposed that on the date of the incident, Vestibai was grazing her ox which entered
into the agricultural filed of appellant Jhapadi Bai due to which Jhapadi Bai has assaulted Vest bai by fists and also by stone; thereby causing injuries to her on head and chest. He has further deposed that he raised cries that Jhapadi Bai is assaulting Vesti bai and that because of cries being raised by him, Hajari Bai (P.W.2) and Surbhan (P.W.4) reached at the spot, however, by that time appellant fled away from the spot. On a close and careful scrutiny of the testimony of Guman (P.W.3), this Court does not find any reason to hold that he is not worthy of reliance or that he wants to falsely implicate the appellant in the present matter, therefore, this Court is in full agreement with the view taken by the learned trial Court that the testimony of Guman (P.W.3) is fully credible and on the basis of his testimony it is proved beyond reasonable doubt that it is appellant and appellant alone, who assaulted deceased Vestibai on the alleged date and place of occurrence because the ox of Vestibai has entered into the field of appellant Jhapadi Bai, where gram crop was standing. Therefore, this Court concurs with a view taken by the learned trial Court in this regard that Jhapadi bai had caused death of Vestibai by assaulting her and causing her injuries on head and other parts of the body which amounts to culpable homicide.
The learned trial Court has assigned reasons for holding that the act of Jhapadi Bai in causing death of Vestibai does not come within the ambit of culpable homicide amounting to murder because the incident occurred all of a sudden and that Jhapadi bai has not acted in a cruel or unusual manner or has not taken undue advantage of her position. Therefore, it cannot be said that the
learned trial Court has committed any error in convicting the appellant under Section 304 part-II of IPC .
As regards sentence of 5 years RI that has been imposed by the learned trial Court against the appellant, considering the facts and circumstances of the case, it cannot be said that sentence is in any manner unreasonable or disproportionate.
Therefore, this appeal being devoid of merits, deserves to be and is accordingly hereby dismissed. The appellant is on bail. She is directed to surrender to her bail bonds within a period of 3 weeks from today, failing which, the learned trial Court will secure her presence by coercive means, so as to send her to jail to suffer remaining part of the sentence.