Roosa vs State Of Madhya Pradesh

Subodh Abhyankar, J.

This appeal has been filed under Section 374 (2) of Cr.P.C. against the judgment of conviction dated 10.11.2006 passed in S.T. No.114/2006 by the Sessions Judge, Betul whereby while finding the appellant guilty under Section 302 of IPC, the learned Judge has awarded life imprisonment to the appellant without any fine.

In brief the facts giving rise to the present appeal are that on 25.02.2006 at around 8.00 to 9.00 p.m. when deceased Dalsu and appellant Roosa along with other persons were working in the construction work of a house, Dalsu asked Roosa for a matchbox which led to altercation between the appellant Roosa and deceased Dalsu and subsequently resulted in appellant Roosa causing head injury to Dalsu with a stick.

The prosecution has examined 07 witnesses whereas the appellant has not examined any person in his accused statement under Section 313 of Cr.P.C. His defence is that he has been falsely implicated as the death has occurred on account of falling of wooden log on the head of the deceased in the house which was under construction.

Learned counsel for the appellant has submitted that the prosecution has not been able to prove the case against the present appellant beyond reasonable doubt as even Dr. Ramesh Badve (PW-6) has also opined that the injury can also be caused on account of accident. The counsel has further submitted that it is not a case of homicidal death and is, in fact, an accidental death, hence the appellant is entitled to be acquitted. It is further submitted that the eye-witness account is not trustworthy and the FSL report is also not produced in evidence which could have given some indication towards the appellant’s involvement in the offence and hence on this ground also the appellant is entitled to be acquitted. It is also submitted that in any case looking to the injuries received by the deceased no case under Section 302 of IPC is made out against the appellant and at the most he can be convicted under Section 304 part II of IPC. The learned counsel has placed reliance on the judgments of the Apex Court in the case of Jagpati v. State of Madhya Pradesh, AIR 1993 SC 1360; Masumsha Hasanasha Musalman v. State of Maharashtra, 2000 AIR SCW 719; and Bhera vs State of Rajasthan, (2000) 10 SCC 225.

The learned counsel for the respondent/State has opposed the prayer and submitted that no illegality has been committed by the learned Judge of the Trial Court in passing the impugned judgment as the case has been proved by the prosecution beyond reasonable doubt.

Heard learned counsel for the parties and perused the record.

The FIR in the present case was lodged on 26.02.2006 at around 2. 20 a.m. i.e. in the wee hours of the morning in respect of an incident which had taken place on 25.02.2006 at around 8.00 to 9.00 p.m. in the night. The FIR has been lodged by Rajesh Uikey (PW-1) who had also taken the deceased to the hospital. According to Rajesh Uikey (PW-1), on the date of incident, at around 8 O’clock when he was also working along with deceased Dalsu and appellant Roosa in a house which was under construction, at that time deceased Dalsu asked Roosa for matchbox but appellant Roosa instead of bringing matchbox came up with a stick and assaulted Dalsu on his head. This witness snatched the stick from the appellant Roosa and after tying a cloth on the head of Dalsu, took him to the hospital where he was declared dead on arrival. Subsequently, he lodged the FIR (Ex.P/1) and a spot map (Ex.P./3) was also prepared before him. A question was put to him that Dalsu was passing a wooden log to some other person which fell on his head only which has resulted in his death, to which this witness has denied.

Charan (PW-2) was also present on the spot. He had also seen the incident. He has stated that appellant Roosa and deceased Dalsu had a quarrel over a matchbox and in the said quarrel Roosa picked up a stick and hit it on the head of Dalsu. He has further stated that Dalsu was bleeding and was unconscious soon after the assault. He has also stated that a cloth was tied on the head of Dalsu and he was taken to police station on motorcycle of Santlal Mama (PW-4). He has also stated that Dalsu was bleeding soon after the incident but a question was put to him that neither any head injury was caused to Dalsu nor was there any bleeding from his head.

Surendra Verma (PW-3) is a Head Constable of Police Chowki, District Hospital, Betul. He has recorded the FIR. He is also a witness to various memos and has also stated that he had seized the clothes of deceased and blood stained soil etc. and sealed them vide Ex.P/9.

Santlal (PW-4) is a person on whose motorcycle the deceased was taken to hospital by Rajesh (PW-1) who happens to be the brother-in-law of Santlal. Kamalnath Pawar (PW-5) is a witness to seizure memorandum Ex.P/10 and Ex.P/11 of the stick which was used in the commission of offence and recovered at the instance of appellant — Roosa. Similarly appellant’s clothes were also recovered vide Ex.P/12.

Dr. Ramesh Badve (PW-6) is the doctor who had conducted postmortem of deceased Dalsu and had found 04 injuries on the person of Dalsu as under :

(i) One scratch ad measuring 7x5 cm on the left armpit.

(ii) One scratch 4x3 cm on the left side of face.

(iii) A swelling in the forehead ad-measuring 1x1 cm

(iv) A swelling on the head ad-measuring 12x7 cms and the skull was also fractured.

The doctor has also found blood clot on the head of the deceased below the brain membrane. The injuries were ante-mortem and the cause of death was on account of injury on the head of the deceased. He has also opined vide Ex.P/14 that the injuries caused to the deceased could be caused by the stick which was seized from the appellant. In the cross-examination he has further stated that he did not find any sign of bleeding from the head injury. He has further admitted that the said injury can also be caused by falling as also by falling of a log on the head during the construction.

Bhishm Dubey (PW-7) is an investigating officer. He has admitted that the stick was recovered from the open ground. He has aso stated that all the articles which were seized vide Annexure P/11 & P/12 relating to the incident were sent for FSL vide Ex.P/19. However, this court finds that no FSL report is available on record.

After perusing the statements of aforesaid witnesses, this Court finds that four injuries were caused to the deceased Dalsu, out of which two were minor scratches, one was swelling on the forehead and the fourth injury was also a swelling on the left side of the head. In the postmortem report (Ex.P/13) it has come that skull was fractured, however the doctor has clearly opined that he did not find any bleeding from these injuries.

From the testimony of the witnesses, the presence of the appellant on the spot is established and causing of injury by him is also established. Thus it cannot be said that the injury was accidental in nature and hence it is held that the injury was homicidal. The only question that arises for consideration by this Court is that whether the appellant is entitled to be sentenced u/s.304 part II of IPC or the conviction of appellant under Section 302 of IPC is just and proper as has been awarded by the learned Trial Court.

After minutely examining the postmortem report as also the deposition of the doctor, the fact which is established is that from the injuries which were caused to the deceased the doctor did not find any blood. It is surprising that even after collecting the clothes of the appellant and the deceased as also the stick which was used for causing the injury, the FSL report has not been produced on record. Hence it cannot be presumed that the injuries which were caused to the deceased had occasioned the bleeding from the head of the deceased as has been deposed by the witnesses. Thus this part of the prosecution story relating to bleeding of the deceased is not corroborated. At this juncture it would be fruitful to refer to exception 4 of Section 300 of IPC 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.”

Thus applying the aforesaid provisions of law to the facts of the present case where in all there are four injuries caused to the deceased, out of which two are minor scratches and one is swelling on the forehead. and the fourth injury is also a swelling admeasuring 12x7 cm on the head. The doctor has not opined that the death was due to shock on account of excessive bleeding, in fact, the doctor has opined that there was no bleeding on the head of the deceased on account of head injury. Thus it cannot be said that the incident which had taken place at the spur of moment without pre-meditation in a sudden fight and the appellant has not taken any undue advantage of the situation which is positively established by the injuries suffered by the deceased. It is true that a head injury has been caused by the appellant which has resulted in the death of Dalsu but looking to the nature of injury, it cannot be said that that particular injury was intended by the appellant. At this juncture, it would be germane to refer to the decision rendered by the Apex Court in the case of Jagpati (supra), the relevant paras of the same read as under :-

“4. In a case of this nature no doubt clause thirdly can be attracted in a technical manner, but what the courts have to see is whether there was an intention to cause that particular injury which was sufficient in the ordinary course of nature to cause death. The courts have to take into consideration the nature of the injuries caused and the attendant circumstances.

Having given our earnest consideration, we think that it is not a case where Section 302 IPC is attracted. However, in causing those two injuries, one swelling and one skin-deep injury the accused must be attributed the knowledge that they were likely to cause death. In such an event, the offence committed by them would be one punishable under Section 304 Part II with Section 34 IPC.

Accordingly, we set aside the convictions and the sentence of Jagpati (appellant in Crl. A. No. 795 of 1980) and of Ram Krishna (appellant in Crl.

A. No. 49 of 1981) under Section 302 read with Section 34 IPC and the sentence of imprisonment for life. Instead we convict them under Section 304, Part II, IPC read with Section 34 IPC and sentence each of them to undergo seven years’ rigorous imprisonment.”

(emphasis supplied)

Relying upon the aforesaid dictum in which the facts are akin to the case at hand, this Court is of the considered opinion that instead of Section 302 of IPC the sentence should have been under Section 304 part-II of IPC which is culpable homicide not amounting to murder.

In view of the aforesaid, the conviction and sentence of appellant under Section 302 of IPC awarded by the learned Trial Court is hereby set aside and in its place the appellant is convicted under Section 304 Part-II of IPC and since he has already undergone about eight years and two months until now, he is sentenced to the period he has already undergone.

In the result, the impugned judgment is modified and the appeal is partly allowed to the extent as indicated herein-above. The appellant is in jail, he be released forthwith, if not required in any other case.