Smt. Geeta Bai vs Smt. Prem Bai

This appeal has been filed against the judgment dated 31.1.2014 passed by Sessions Judge, Barwani in S.T.No.46/2013, whereby he found appellant/accused guilty for the offence under Section 304 (Part I) of IPC and sentenced him to undergo eight years RI with fine of Rs.1,000/- and default of fine additional three months RI.

Brief facts of the case are that one day before the incident when deceased Mojilal''s son and appellant''s daughter were playing cricket she picked the ball on which Mojilal''s wife Gudari Bai (PW-2) scolded her. On that dispute, next day on 26.2.2013 at about 3.00 PM in front of Nana Patel''s house at Village Pokhlya appellant abused Gudari Bai (PW-2) in which Mojilal intervened and appellant then started abusing Mojilal. When Mojilal stopped him, Appellant took a stone from the spot and assaulted him twice with that stone on his head due to which Mojilal sustained two injuries on his head and fell down. At that time Gudari Bai (PW-2), Sutar (PW-3), Nana Patel (PW-4), Billar Singh (PW-11) were also standing there. They saw the incident and brought Mojilal to P.S., Silawad where Mojilal lodged the report of incident Ex.P/12. That report was written by Surendra Waskale (PW-10), the then ASI, P.S., Silawad. On that report Crime No.15/2013 was registered against the Appellant for the offence under Sections 294, 323, 506 IPC and sent Mojilal for medical examination at PSC, Silawad, where Dr.G.S.Barela (PW-8) conducted medical examination of Mojilal. After primary treatment they referred Mojilal to M.Y.Hospital, Indore, for further treatment where he died on 27.2.2013 during treatment due to injuries sustained by him in the incident. The intimation of Mojilal''s death was sent from M.Y. Hospital, to Police Chowki, M.Y. Hospital, Indore. Where Marg No.099/13, Ex.P/10 was registered. In the enquiry of that marg Rameshwar Prasad (PW-9) called witness by notice Ex.P/1, prepared Enquest panchnama Ex.P/2 Before them and sent the dead body for postmortem. Dr.Deepak Gawali (PW-13) conducted the postmortem of corpus of Mojilal on 27.2.2013. After inquiry of marg no. 099/13 Rameshwar Prasad (PW-9) sent that Marg enquiry report to P.S., Silawad. Ravindra Barde(PW-7) prepared spot map Ex.P/6. Further investigation of the crime was conducted by Rajeev Uikey(PW-12 ) who recorded case diary statements of witnesses Karu Bai, Nana Patel, Biller Singh, Gudar Bai, Sutar and Prakash and arrested the accused/appellant on 1.3.2013 and prepared Arrest Memo Ex.P/4. On the information of accused seized stone from the spot and prepared memorandum Ex.P/5, Seizure Memo Ex.P/3 and filed charge sheet against the accused thereafter.

On that charge sheet S.T.No.46/2013 was registered. Learned Sessions Judge, Barwani framed charge against the accused under Section 294, 506 Part II, 325 and 302 of IPC and tried the accused. The prosecution for proving its case produced as many as 13 witnesses. Although, accused took the defence that he was being falsely implicated but after trial learned Sessions Judge acquitted the accused from charge under Section 294, 506, of IPC but found him guilty under Section 325 and 304 Part I IPC instead of Section 302, and sentenced him for the offence under Section 304 Part I of IPC which is graver offence. Being aggrieved with the same appellant filed this criminal appeal.

Learned counsel for the appellant submitted that Bilar Singh (PW-11 ) who is an eye witness according to prosecution story did not support prosecution case. In the statement of other eyewitnesses there are Many contradictions and omissions. So their statement are also not believable. Even assuming the statement of prosecution witnesses to be true, offence under section 304 Part II of IPC was made out against appellant at the most. Learned trial court Committed mistake in holding appellant guilty for the offence under Section 304 Part I of IPC.

On the other hand learned counsel for the respondent/State submitted that from the statement of eye witnesses it is clearly proved that at the time of incident appellant abused Mojilal and when he tried to stop him from doing so accused intentionally assaulted Mojilal with the stone on his head with intent to kill him. In the incident Mojilal sustained injury dangerous to life on his head due to which he died. So Learned trial Court did not commit any mistake in convicting appellant guilty for the offence under Section 304 Part I of IPC. Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Section 304 Part I of IPC are liable to be set aside for the reasons stated in the memo of appeal.

Eye witness Gudari Bai (PW-2) clearly deposed that at the time of incident her son Shivraj was playing with the ball and appellant''s daughter took the ball on which Shivraj started weeping so she asked Reta, ( appellant''s daughter) to return the ball. At that time appellant abused her. When her husband Mojilal intervened appellant assaulted him with a stone on his head, due to which Mojilal sustained injury on head and fell down. His statement was also corroborated by the statement of Sutar (PW-3), Nana Patel (PW-4) other eye witnesses of the incident. They also deposed that appellant had abused Mojilal at the time of incident and when Mojilal tried to stop him appellant picked a stone from the spot and assaulted Mojilal with it on his head due to which Mojilal sustained injury on his head and fell down.

Their statements were also corroborated from FIR Ex.P/12 logged by deceased Mojilal himself regarding the incident that comes under the purview of dying declaration as Mojilal died due to injury sustained by him in the incident. This FIR was proved by Surendra Baskale (PW-10) who also deposed that he had written the FIR Ex.P/10 on the statement of Mojilal wherein it is clearly mentioned that at the time of incident appellant abused Mojilal''s wife when he tried to intervene appellant picked a stone from the spot and assaulted Mojilal with the stone on his head due to which Mojilal sustained injury on his head. Rajeev Uikey (PW-12) deposed that he recorded the case diary statements of witnesses Karu Bai, Nana Patel, Biller Singh, Gudar Bai, Sutar and Prakash and arrested the accused/appellant on 1.3.2013 and prepared Arrest Memo Ex.P/4 on the information of accused, seized stone from the spot and prepared memorandum Ex.P/5, Seizure Memo Ex.P/3 and after investigation filed charge sheet against the accused. Gyan Singh (PW-6 ) and Sevjya (PW6) also proved Seizure Memo Ex.P/3 and memorandum Ex.P/5 respectively.

The statements of eyewitnesses of the incident were also corroborated by the statement of Dr.G.S.Barela (PW-8), who examined Mojilal soon after the incident and gave M.L.C. report Ex.P/7. He clearly deposed that on 26.2.2013 Constable Sanjay No.184 brought Mojilal for examination. On examining Mojilal @ Nan Singh he found following injuries on his body. (i) Contusion over left eye. His eyelid of left eye was also affected. Clotted blood was present on his nostril and mouth. (ii) Swelling on his head 4 x 3 cms. X skin deep left side of head.

Injuries caused by hard and blunt object and duration of the injury was within 12 hours of the examination. This witness is independent witness so there is no reason to disbelieve his statement. He examined Mojilal on 26.2.2013 at 5.45 PM while incident is said to have occurred at 3:00 PM. So it is also proved that the injuries found by the Dr.G.S.Barela, on the head of Mojilal were sustained at the time of incident.

Although Bilar Singh (PW-11) who is an eye witness according to prosecution story did not support the prosecution case and deposed that he did not see the incident. But only on the ground that Bilar Singh (PW-11) did not support the prosecution case regarding the incident the statements of other prosecution witnesses can not be disbelieved. Even Bilar Singh (PW 11) admitted in his statement that he saw applicant quarrelling with deceased Mojilal and also saw Mojilal in injured state on the spot. So his statement also support prosecution story on the point that Mojilal sustained injury on his head on the spot at the time of incident.

There are no important contradictions or omissions in the crossexamination of Gudari Bai (PW-2), Sutar (PW-3), Nana Patel (PW-4) regarding incident which also corroborate from medical evidence. So there is no reason to disbelieve their statements. From the statement of above witness It is clearly proved that on 26.2.2013 at about 3.00 PM in front of Nana Patel''s house at Village Pokhlya appellant abused Gudari Bai (PW-2) in which Mojilal intervened and appellant then started abusing Mojilal. When Mojilal stopped him, appellant took a stone from the spot and assaulted him twice with that stone on his head due to which Mojilal sustained two injuries on his head and fell down.

Rameshwar Prasad (PW-9) deposed that on 27.2.2013 he received intimation from M.Y.Hospital, Indore that Mojilal had died. On that he registered Marg Intimation Ex.P/10. Thereafter, he prepared enquest memo Ex.P/2 and sent the corpus of deceased Mojilal for postmortem along with the application Ex.P/11. His statement is also supported by Ex.P/2 Enquest memo. Wherein it is mentioned that Mojilal died due to injuries.

Dr.Deepak Gawali (PW-13), who conducted the postmortem of deceased Mojilal desposed that he conducted P.M. on 27/02/13 at 4:00PM on which he found following injuries on the body of Mojilal. (i) One Contusion present over right frontal region of head size 3.0 x 2.0 cm . (ii) On dissection contusion present all over scalp, clotted blood present all over scalp. (iii) Hematoma of size 8.0x5.0 cm present over skull at occipital region. (iv) A depressed fracture of size 6.0x6.0 cm present over left parietal region of skull. (v) A linear fracture present over right fronto-parietal region of skull size 17 cm. (vi) A linear fracture present over right parietal bone size 8.0 cm. (vii) A linear fracture over left frontal bone size 6.0 cm. Meninges healthy. Hematoma present all over cerebellum.

He further deposed that in his opinion Mojilal died due to cardiorespiratory failure as a result of head injury and its complications. Injury was sufficient to cause death in ordinary course of nature and duration of death was within 24 hrs. since postmortem examination. His statement is also corroborated by the postmortem report Ex.P/15 given by him. Dr.Deepak Gawali is an independent witness. So there is no reason to disbelieve his statement which clearly proves that Mojilal, who sustained injury on his head during incident died due to that injury. The injury received by Mojilal in the incident was sufficient to cause his death in ordinary course of nature. So it is proved that on 26.2.2013 at 3.00 PM at village Pokhlya in front of house of Nana Patel appellant assaulted Mojilal with stone due to which Mojilal sustained injury on his head, which is sufficient to cause death in ordinary course of nature and due to which Mojilal died on 27.02.13 i.e. the very next day of incident.

Then the only question which falls for consideration of this court is whether, on consideration of the facts and circumstances of the case, the conviction of the appellant under section 304 part I of IPC should be upheld or the conviction be converted to one under section 304 Part II IPC Learned counsel for the appellant submitted that from the evidence it is clear that at the time of incident appellant had no motive to murder Mojilal. In the incident appellant did not use any weapon to inflict injury on Mojilal. Incident occurred in the heat of moment in a sudden fight. From the statements of prosecution witnesses it also does not appear that at the time of incident appellant had an intention to cause death of Mojilal. So at the most the act of appellant comes under Section 304 part II not under Part I as found by the trial court. But his argument has no force. Section 304 of IPC reads as thus :- "304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Which shows that if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, the act comes under Part I of the section. And if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. The act comes under Part II of the section In the case from the prosecution evidence, it is clearly proved that applicant assaulted Mojilal on his head which is vital part of the body and applicant inflicted two injuries on deceased Mojilal on his head in the incident as mentioned in the FIR one Contusion over left eye and Swelling on his head 4 x 3 cms. X skin deep left side of head as mentioned in the M.L.C. report Ex.P/7. The blow so powerful that Mojilal sustained depressed fracture of size 6.0x6.0 cm over left parietal region of skull, A linear fracture over right fronto-parietal region of skull size 17 cm., a linear fracture over right parietal bone size 8.0 cm and A linear fracture over left frontal bone size 6.0 cm. As mentioned in P.M. report Ex.P/15. According to the opinion of the doctor the injury sustained by Mojilal in the incident was sufficient in the ordinary course of nature to cause death, which clearly shows that appellant Dayaram caused injuries to Mojilal with the knowledge that from the injuries he could cause such bodily injury as is likely to cause death. So the act appellant comes under Part I of section 304 of I.P.C.

As far as sentence under section 304 (Part I) of IPC is concerned, maximum sentence prescribed is Life Imprisonment and sentence up to to ten years. The learned trial Court awarded eight years RI, which cannot be said to be in excess on any count. So the sentence awarded by the trial court is maintained. The appellant would be entitled to get benefit of section 428 of The Criminal procedure Code. Hence the appeal fails and is hereby dismissed.