Mohan S/o Naniya Bhil vs State of Madhya Pradesh

1) This criminal appeal is arises from judgment of conviction dated 29.09.2003 passed by the Additional Sessions Judge, Sardarpur, District- Dhar in Session Trial No.198/2003 whereby the learned Additional Sessions Judge found the present appellant guilty under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs.1,200/- with default stipulation.

2) The prosecution story in brief was that on 07.05.2003, mother of the deceased Suresh lodged a report at Police Station- Amjhera, District- Dhar at 8:30 a.m. stating therein that she was a resident of village Keshvi and she was running a provision store in the village. His younger son Suresh was going towards the adjacent forest for answering call of nature at 6:00 a.m. in the morning, when he was called by the appellant- Mohan, who is residing nearby, and thereafter, he inflicted one knife injury in abdomen of her son. The incident was witnessed by Hiriya Tadvi, who is next to neighbour of the present appellant. He raised a cry, hearing which, complainant also reached on the spot and saw the present appellant running away from the spot. She picked up her son, who was alive at that time and she was bringing him towards her house for taking him to the hospital, when he succumbed to his injury. Hearing the cry, his elder son Mahesh (P.W.-4), who is also residing nearby, also reached the spot and many other villagers reached on the spot. So far as motive and genesis of the incident are concerned, story of prosecution was that Hirababa (P.W.-2) discovered the present appellant in his house in the morning of the incident at 06:00 a.m. It was also a case of the prosecution that on earlier occasion, he was found having intimate relationship with wife of the appellant, on which wife of the present appellant was scolded by him and other villagers and cautioned her not to call the deceased to her house. The incident took place after discovering the deceased in house of the present appellant.

3) Leaving the dead body, in a gali behind her house, she proceeded to police station to lodge the report. On her report, Crime No.110/2003 was registered at Police Station- Amjhera, District- Dhar under Section 302 of IPC. A punchnama lash was prepared of the dead body, and thereafter, the dead body was sent for postmortem. The Investigating Officer- Lokesh Tiwari (P.W.- 11), who was Assistant Sub-Inspector proceeded to the spot and prepared the spot map, recorded statements and after usual investigation, filed the charge-sheet, which was committed to the Court of Sessions.

4) During the trial, the learned Additional Sessions Judge framed charges under Section 302 of IPC, recorded statements of prosecution witnesses and statement of the accused under Section

313 Cr.P.C. No defence witness was produced, and thereafter, hearing arguments of both the counsels, the learned trial Judge, pronounced him guilty under Section 302 of IPC.

5) Aggrieved by the judgment of conviction and sentence, this appeal is filed on the ground that the learned trial Judge failed to take into consideration the defence that the present appellant was falsely implicated in this case. He is also failed to take into consideration the fact that motive of murder could not be established by the prosecution.

6) Learned counsel for the State supports the impugned judgment and prays that the same may be confirmed.

7) Admitted facts are that the appellant is living very near to the house of the deceased. Between their houses, there are two houses, one is of Radia (P.W.-9), which is immediately next to the house of the appellant, and thereafter, the house of Hirababa (P.W.-

2) is located. It was also admitted that the dead body of the deceased was found by the Investigating Officer in the gali behind the house of the complainant- Shantabai (P.W.-1). In light of these admitted facts, it is apparent that presence of prosecution witnesses Shantabai (P.W.-1), Hirababa (P.W.-2), Madaiya (P.W.-3), Mahesh (P.W.-4), brother of the deceased, Babulal (P.W.-5), father of the deceased and Radia (P.W.-9) was natural.

8) Shantabai (P.W.-1) stated that she heard cries of Hiriya Tadvi @ Hirababa (P.W.-2), who was shouting that "Run Mohan is beating Suresh". On this, they ran towards the house of Mohan, who had a knife in his hand, he inflicted an injury by knife and ran

away. The clothes of the deceased Suresh were drenched in blood.

She tried to take her son to hospital, but he died. She further stated that there was no enmity between the deceased Suresh and the appellant Mohan. She also stated that when she raised a cry, her second son Mahesh (P.W.-4) also came on the spot. Hirababa (P.W.-2) supported part of the prosecution story and said that at 6:00 o'clock in the morning, he was sleeping in his house, when he heard the deceased Suresh and the present appellant fighting.

When he reached there, they were scuffling with each other, thereafter, the appellant inflicted one injury by knife. Madaiya (P.W.-3), Mahesh (P.W.-4), Babulal (P.W.-5) reached on the spot thereafter. Radia (P.W.-9) is son of Hirababa (P.W.-2). He said that first his father went to the spot and then he also got up and went to the spot and saw the present appellant running away with knife.

The deceased Suresh was lying injured in front of his house.

Mother of Suresh, Shantabai was taking him to her house.

9) Learned counsel for the appellant submits that the prosecution failed to prove the motive. Hirababa (P.W.-2) in his statement under Section 161 Cr.P.C. stated that when he reached the house of present appellant, he saw the deceased Suresh, appellant- Mohan and wife of Mohan in the house of present appellant. They were fighting with each other as Mohan caught him with his wife in objectionable condition. He tried to caution the present appellant not to kill the deceased, and thereafter, he ran towards house of other villagers to call them. However, when he came back, he saw that the appellant inflicted injury on the deceased and mother of the deceased Shantabai was taking him to her house. The motive was stated that wife of Mohan used to call the deceased and she had illicit relationship with him. This fact was also mentioned in the FIR by Shantabai (P.W.-1), but she denied stating this part, which is marked as A - A, in the FIR.

Similarly, in the court statement of Hirababa (P.W.-2), the fact in respect of illicit relationship of the deceased with wife of the appellant was totally suppressed by him and all the prosecution witnesses. The other prosecution witnesses Mahesh, brother of the deceased and Babulal, father of the deceased also did not state anything in respect of motive for killing.

10) Apart from the fact that the motive for killing is not proved in this case, the fact remains that dead body of the deceased was found in a gali behind the house of the complainant Shantabai (P.W.-1). She explained that the incident took place in the house of the appellant and she was brought his son back to her house and was taking him hospital when he died. However, the Investigating Officer reached on the spot and the spot map Exb.P/2 was prepared at 9:45 a.m., 1:45 hour after the incident and in the spot map, blood was shown in house of the appellant at two places, which are marked as A/1 & A/2. The Investigating Officer- Lokesh Tiwari (P.W.-11) also confirmed this fact that when he reached on the spot, the spot was shown to him by Mahesh (P.W.-4), brother of the deceased. He prepared Exb.P/2. He denied the suggestion put to him in his cross-examination that there was no blood in the house of the present appellant.

11) The doctor, who performed post-mortem on the deceased is also examined as P.W.-10, Dr. A.K. Choudhary. One single wound was found on body of the deceased, which is described as under :-

"A sharp margin wound with both margins are everted (inverted) with liver matter escape out from wound. The wound are (is) obliquely directed medial to lateral size 8 cms x 2 cms at Rt. Hypo condrium region." (Corrections in brackets are supplied)

12) Taking the statements of prosecution witnesses, the doctor and the Investigating Officer into consideration, it is proved that the present appellant inflicted one single wound over the abdomen of the deceased, due to which, he suffered death.

However, the motive could not be proved by the prosecution.

13) This takes us to the argument raised by the counsel for the appellant. He submits that only one single knife injury was inflicted on the deceased. The motive and enmity are not proved, and therefore, the offence under Section 302 of IPC is not proved and only offence under Section 304 part-II of IPC is proved. He places reliance on judgment of Hon'ble Apex Court in cases of Jagtar Singh vs. State of Punjab ; (1983) 2 SCC 342 and Tholan

vs. State of Tamilnadu ; (1984) 2 SCC 133.

14) Before reverting back to the facts of the present case, we may go through briefly the facts in case of Jagtar Singh

(supra) and Tholan (supra). In case of Jagtar Singh (supra), the facts were that the deceased was injured while he was passing in front of the house of the appellant- Jagtar Singh by a projecting parnala. Some dispute ensued between the appellant and the deceased, and thereafter, it was alleged that on being instigated by co-accused Joginder Singh, the appellant inflicted one single blow by knife on chest of the deceased Narinder Singh, which proved

fatal. The Hon'ble Apex Court observed that the dispute arose on spur of moment and there was no intention to kill on part of the appellant, and therefore, the conviction was converted from Section 302 IPC to Section 304 part-II of IPC . Similarly, in case of Tholan (supra), the appellants were abusing organizers of a chit including one K.G. Rajan and P.W.-4 Chinnu. The deceased tried to stop them from using such obscene language, as there were human around. The appellants questioned authority of the deceased and asked him to go away. There were some altercation took place between them, and thereafter, one single injury was caused by knife on chest of the deceased, which proved fatal. In this case also the Hon'ble Apex Court held that there was no prior animosity between the deceased and the appellant. The appellants infact were having grudge against the organizers of the chit, and thereafter, converted the conviction from Section 302 IPC to Section 304 part-II of IPC .

15) In the present case, case of the prosecution initially was that the deceased was found by the appellant in his house and infuriated by this, the appellant scuffled with the deceased, and subsequently, the injury was inflicted on his chest. This part of prosecution story was not proved, as the prosecution witnesses suppressed this part of the story. The prosecution did not confront Hirababa (P.W.-2) with his statement under Section 161 Cr.P.C., and therefore, motive remained unproved. Even mother of the deceased stated that she had no idea why her son was killed by the present appellant, however, fact remained that injury was caused on the deceased when he was in the house of the appellant. This part of story is well proved. The force of causing injury was such that liver of the deceased protruded out of the wound. The single injury caused his death. The part of the prosecution story showing motive and genesis behind the incident, which is suppressed by prosecution witnesses, can be read in favour of the accused, as it is available on record. The prosecution witnesses probably suppressed the fact to bring the case within the purview of Section 302 of IPC. Similarly, the defence could not bring these facts on record, as their defence has been that the present appellant was falsely implicated. He did not inflict any injury on the deceased.

However, when we have already reached to the conclusion that the present appellant caused the injury, due to which he died, that part of the prosecution story, which explains the motive and genesis of the incident, can be read in favour of the appellant to decide whether this case falls within the purview of Section 302 of IPC or Section 304 of IPC.

16) Taking into consideration the facts stated by Hirababa (P.W.-2), in his statement under Section 161 Cr.P.C. to the Investigating Officer, it is apparent that the deceased was discovered by the appellant in his house in flagrante delicto. In such a situation, it is apparent that his case falls in exception 1 appended to Section 300 IPC. Seeing the present appellant in such a situation with his wife gave him sudden and grave provocation and deprived of the power of self control, he inflicted the injury on the deceased. It is further apparent from the statement that earlier also wife of the present appellant was scolded by him as well as other villagers not to call the deceased to her house, but it appears that inspite of earlier incidences, the act was repeated by the deceased, and therefore, infuriated by his audacity, he inflicted the injury on him. It may also be noted here that Investigating Officer- Lokesh Tiwari (P.W.-11) in para 6 of his statement specifically stated that he recorded the statement of Hirababa (P.W.-2) on 07.05.2003 and not much challenge was given in his cross-examination regarding the portion, where motive and genesis of the incident was narrated by Hirababa (P.W.-2) in his statement under Section 161 Cr.P.C. In this situation, it is apparent that the case falls under Section 304 IPC and not under Section 302 IPC.

The next question is whether it falls under part-I or part-II of Section 304 IPC. It is apparent that inspite of cautioning him by Hirababa (P.W.-2) that he should not inflict any injury on the deceased, as he caught him in his house in the morning and he assured him that he is calling to other villagers, the appellant inflicted the injury thereafter. This shows that intention to cause death, and therefore, this case falls in part-I of Section 304 IPC.

17) Accordingly, this appeal is partly allowed. The conviction of the appellant for an offence under Section 302 of IPC and sentence of imprisonment of life are set aside. The appellant is convicted for having committed offence under Section 304 part-I IPC . He is sentenced to rigorous imprisonment for 10 years and fine of Rs.1,200/-. He will further undergo simple imprisonment for 4 months in case of default in payment of fine.

With modification as aforesaid, the appeal stands disposed of.