Mohan S/o Shyamlal Ahirwar vs State of M.P.

This appeal has been filed by the accused-appellant challenging the judgment dated 3.1.2008, passed by District Judge, Damoh in Sessions

Trial No.188/2007, whereby the appellant has been convicted for offence under Section 302 of Indian Penal Code and sentenced for life

imprisonment and fine of Rs.2000/- with default stipulation.

The prosecution story in brief is that on 8.9.2007 at about 8.00 pm at Mallpura in front of the shop of Arjun, the appellant alongwith Ravi (co-

accused acquitted by the trial Court) were abusing in the society. When Dharmendra tried to stop him, the appellant inflicted blows of an axe on

his neck and ear. Dharmendra fell down and died on the spot. His wife Savita and other persons came there. They brought him to District Hospital

Damoh. FIR has been lodged by eye witness Hariram at Kotwali, Damoh and registered as Crime No.603/2007. A crime for the offence under

Section 302/34 has been registered against the appellant and other accused person. After investigation charge sheet was filed against them.

The trial court framed charge under Section 302 of IPC against the appellant. He abjured guilt and pleaded innocence. Learned trial Court

found the testimony of eye witnesses trustworthy which is corroborated by the medical evidence. Hence the appellant has been convicted under

Section 302 of IPC and sentenced as mentioned above.

Appellant has challenged the aforesaid judgment on the grounds that the trial court has erred by ignoring the fact that Hariram (PW2) who is one

of the eye witnesses turned hostile. The other witnesses have improved their evidence to support the prosecution story. Testimony of Savita (PW4)

wife of the deceased is not credible because her house is far away from the spot. There is no sufficient evidence against the appellant to convict

him under Section 302 of IPC, hence the impugned judgment is liable to be set aside and the appellant be acquitted from the charge levelled

against him.

Learned Govt. Advocate has vehemently opposed the submissions of the appellant and contended that the learned trial Court has rightly held

the appellant guilty for committing the offence punishable under Section 302 of IPC, hence it cannot be interfered with.

We have heard learned counsel for the parties at length and perused the record.

Hariram (PW-2), Jagmohan (PW-3) witnessed the entire incident. They were present in front of Arjun''s Shop. They heard, the appellant was

abusing there. Dharmendra (since deceased) came to the shop of Arjun to buy some goods and he tried to stop the appellant. But, suddenly the

appellant inflicted two blows of an axe on back side of his neck, thereafter ran away. The deceased died on the spot. Jagmohan and Hariram

brought him to the hospital. Savita (PW-4) wife of the deceased also corroborated the testimony of Hariram and Jagmohan. She also established

their presence on the spot.

Learned counsel for the appellant has contended that Savita was living far away from the scene of occurrence, hence, her testimony is not

reliable. In this regard, we considered the testimony of Inspector J.P. Garg I.O. (PW7). In spot map (Ex.P/3) he clearly indicated that the house of

the deceased situated in front of the spot and distance of the house of Savita is about 25 ft. from the scene of occurrence. She was capable to see

the incident. Hence the presence of Savita on the scene of occurrence is reliable. She explained that on the spot source of light was available.

Other witnesses also corroborate the said testimony. Deceased went to Arjun''s shop to buy some goods. The incident happened between 8:30

and 8:40 p.m. at that time shopkeepers normally arrange sufficient light at their shop for doing business. Savita (PW-4) has also stated that there

was a bulb on the shop, therefore, the contention of learned counsel for the appellant is not acceptable that in dark night it was not possible for

anyone to witness the incident.

Inspector J.P. Garg (PW-7) seized some plain and blood stained soil from the spot vide seizure memo Ex.P/1. He sent the dead body for the

postmortem. Dr. Anuj Jain (PW-6) conducted the autopsy of the deceased on 9.9.2007 and found following injuries on the deceased :-

(i) One incised wound below the left ear from which bone was appeared and the brain matter was coming out. Size of injury was 4""x1.5''''x bone

deep.

(ii) One lacerated wound over left eye and infraorbital region. Size of injury was 2.5''''x1/2''''.

During internal examination of deceased, Dr. found following fractures on the head :-

(i) Compound fracture on left side of parietal bone.

(ii) Fracture behind left eye.

(iii) Fracture on occipital bone.

As per Dr. Anuj Jain (PW-6), all the injuries were antemortem in nature and caused at the vital organs of the deceased. Due to shock, comma

and excessive bleeding deceased Dharmendra died within 6-18 hours of the postmortem. We find that the postmortem report Ex.P13 is duly

proved by Dr. Anuj Jain. In cross-examination, he denied that the aforesaid three fractures on head of the deceased can be caused by a single

blow.

Learned counsel for the appellant submitted that the medical report is contrary to direct evidence. We are not inclined to accept this

contention. Conviction cannot be based totally on the medical evidence. There is sufficient direct evidence on record against the appellant. We do

not find any material contradiction or omission in the testimony of eyewitnesses and medical evidence, therefore, medical evidence cannot be

discarded. In our opinion, the prosecution has properly established that the appellant has committed murder of the deceased in front of Hariram

(PW-2), Jagmohan (PW-3) and Savita (PW4). Prompt FIR was lodged by eyewitness Hariram against the appellant. There is sufficient evidence

to convict the appellant for the alleged offence.

There is no evidence with regard to premeditation or provocation. Further the deceased only wants to stop the appellant to abuse anyone. He

was bare handed, on the contrary, the appellant was armed with an axe, which is a deadly weapon. The appellant inflicted repeated fatal blows on

his vital part of the deceased. Hence, it is duly proved that he has intentionally killed the deceased. In our opinion, the offence of the appellant is

duly proved and comes under the purview of Section 302 of the IPC. We are not inclined to interfere in the findings of learned trial Court against

the appellant. Hence, the appeal is hereby dismissed.

A copy of this judgment be sent to the trial Court for information and compliance alongwith the record immediately.