1. Appellant has filed this appeal against the judgment dated 29th April, 2002 passed by Sessions Judge, Balaghat in Sessions Trial No. 32/2002, convicting him under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life.
2. In short, the facts of the case are that appellant felt annoyed with Brajlal Pawar (deceased) on his providing a room to Dasharam, uncle of appellant for living in his house. He entertained suspicion that the deceased would obtain the land of Dasharam. On 3.12.2001, appellant went at the house of deceased and sat there for talking. He asked for food. When he and the deceased were eating food and Raman Bai, the wife of deceased was cleaning utensils, she heard an altercation between them. Appellant abused deceased saying that why he gave shelter to Dasharam in his house. He assaulted deceased with fists and ran after him to beat with an ' Ubhari ' of bullock cart. Raman Bai tried to intervene, but she was pushed away. Appellant pulled the deceased out of the house and brought him on passage and kept on assaulting him by fists and kicks and in the end pressed his throat. Though, Raman Bai raised hue and cry, but none intervened and as a result of injuries, deceased died. Raman Bai (PW1) went to Police Lamta and lodged the report Ex. P/1 at 17.00 hours. Police registered the offence under Section 302 of the Indian Penal Code against the appellant. On the information given by Raman Bai, police recorded merg intimation Ex. P/2.
3. Dead body of deceased was sent for postmortem examination to Primary Health Centre, Lamta, where Dr. V.K. Balbhadra (PW9) conducted autopsy. Vide his postmortem examination report Ex. P/8-A, he opined the death of deceased because of asphyxia due to strangulation. It was homicidal in nature.
4. After requisite investigation and arrest of the appellant, charge sheet was filed in the Court of Chief Judicial Magistrate, Balaghat and the case was then committed for trial.
5. Trial Court framed the charge under Section 302 of the Indian Penal Code. Appellant abjured his guilt and pleaded false implication. According to him, witnesses spoke against him due to enmity.
6. Learned Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, came to hold that appellant was guilty of committing murder of deceased Brajlal Pawar and convicted him under Section 302 of the Indian Penal Code. Appellant has challenged the impugned judgment in this appeal.
7. We have heard the learned counsel for the parties.
8. Learned counsel for the appellant submitted that the trial Court gravely erred in relying upon the evidence of alleged eye witnesses viz. Raman Bai (PW1), Taran Bai (PW2), Leela Bai (PW4), Bharat Lal (PW5) and Kamla Bai (PW6). Their evidence was not reliable. In the alternative, learned counsel submitted that in the facts and circumstances of the case, conviction of appellant under Section 302 of the Indian Penal Code was not justified. At the most, appellant could have been held liable under Section 304-Part-I or Part-II of the Indian Penal Code.
9. We have gone through the impugned judgment and perused the entire evidence on record.
10. It has not been disputed that deceased died of a homicidal death as a result of strangulation. It is also reflected from the evidence of Dr. V.K. Balbhadra (PW9), who performed the postmortem examination of the body of the deceased. According to him, on 4.12.2001, while he was posted as Medical Officer in Primary Health Centre, Lamta dead body of Brajlal Pawar was brought for postmortem. He had examined the body and found
(i) multiple scratch marks of nails on the right and left side of neck of deceased in various directions of varying size,
(ii) finger pressure marks were present on the right face and on the right side of neck and
(iii) three marks were present on the left side of neck. In his opinion, death was caused due to asphyxia, as a result of strangulation of neck by manual pressure.
11. It has also been deposed by Raman Bai (PW1), the wife of deceased and Taran Bai (PW2) that deceased had died due to injuries caused by appellant.
12. S.P.Singh Baghel (PW13), Sub Inspector deposed that on 3.12.2001, on getting information from Raman Bai about the death of Brajlal Pawar he had gone to village Dongarbodi and conducted the inquest proceedings. He prepared the inquest memo of the dead body Ex. P/5 and sent the dead body for postmortem examination. Dilip Kumar (PW11), Constable took the body of Brajlal Pawar for postmortem examination. From the evidence of Dr. V.K.Balbhadra (PW9), who categorically stated that the death of deceased was homicidal in nature and was caused by ante mortem injuries, it stands established that deceased died a homicidal death.
13. Now the question before us is whether appellant caused injuries to deceased, as a result of which he died. Raman Bai (PW1) testified that deceased was her husband with whom she was living in village Dongarbodi. She knew appellant Bhuwan to whom because of village relation she treated as his brother. On the date of occurrence at about 10 A.M. when she prepared food, her husband told that he will take meals with Bhuwan. She served meals to her husband and Bhuwan. When she went to fetch water, appellant started assaulting her husband with fists and kicks. He also tried to assault him by an 'Ubhari ' but she snatched it from his hands. Appellant pressed the throat of deceased and took him dragging out near a temple. As a result of assault, her husband died. She, however, admitted that there was no past quarrel or dispute between her husband and appellant. She did not know why suddenly the quarrel occurred between them during the time when she had gone to fetch water from the tap. According to her, though she tried to save her husband, but she failed. She categorically denied the suggestions that she did not see appellant assaulting her husband. She stated that she sent Taran Bai to call her husband's brother and she went with him to lodge the report Ex. P/1 with the police. She also lodged merg intimation Ex. P/2. Raman Bai was though cross examined at length, but her evidence was absolutely consistent. There was no discrepancy or contradiction. Evidence of Raman Bai (PW1) finds support from the evidence of Taran Bai (PW2), who resided in front of her house. Taran Bai (PW2) deposed that she saw Bhuwan sitting in the house of Brajlal Pawar. When she was inside her house, she heard Raman Bai shouting that Bhuwan killed her husband. She saw that appellant caught and dragged Brajlal out of the house and dropped him on the passage. When accused went away Raman Bai asked her to call her children. It is true that in her police statement Ex. D/1, it was not mentioned that Raman Bai shouted, but merely by this fact her evidence cannot be discarded. She stated that she peeped through her door, but out of fear she kept her door slightly closed. It is not disputed that she resided in front of the house of the deceased, therefore, it was quite natural for her to have heard the voice. It was not challenged that she did not see appellant assaulting the deceased.
14. Leela Bai (PW4), a neighbour of deceased deposed that at about 12 O' clock when she was coming back from her field, she saw appellant assaulting Brajlal by fists and kicks, but she did not stop there and went to her house. According to her, several other persons were also present. Similarly Bharat Lal (PW5) and Kamla Bai (PW6), who were also the neighbours of deceased deposed that they saw appellant assaulting deceased by fists and kicks. According to Bharat Lal (PW5), though number of persons were present there, but no body came forward to intervene. According to him, relations between appellant and deceased were cordial and he did not know as to why the quarrel occurred. Despite subjecting the aforesaid witnesses to a lengthy cross examination, nothing could be elicited to render their evidence unreliable.
15. It is true that except the injuries of pressing of the neck, no other injuries were found on the body of deceased, but merely by that the evidence of Raman Bai (PW1) cannot be discarded. It is quite possible that injuries caused by fists and kicks might not be visible, but it was clearly stated by Raman Bai (PW1) that appellant had pressed the throat of deceased and immediately thereafter deceased had died. This fact is amply corroborated by the evidence of Dr. V.K. Balbhadra (PW9), who performed the postmortem examination of the body of deceased.
16. On scanning and scrutinizing the evidence of all the above witnesses, it is clearly established that the evidence of Raman Bai (PW1) is clear, cogent, consistent and reliable. It stands corroborated by the First Information Report Ex. P/1 lodged by her immediately after the incident and also by the evidence of other witnesses. Thus, in our opinion there remains no doubt that as a result of assault by the appellant, deceased suffered injuries on his neck and died due to strangulation and consequent asphyxia.
17. Learned counsel for the appellant urged that it has come in the evidence of all the aforesaid witnesses that relations between the appellant and the deceased were cordial. It is also reflected from the evidence of Raman Bai (PW1) that deceased himself had called the appellant to take meals with him and it was some sudden altercation during which quarrel erupted and appellant pressed the throat of deceased. According to her, since she had gone to fetch water from the tap, she could not know as to what transpired between them when both were going to take meals together. Learned counsel, therefore, submitted that it cannot be inferred that appellant intended to commit murder of the deceased and as such conviction of appellant under Section 302 of the Indian Penal Code by the trial Court was not proper. Learned counsel for the appellant placed reliance on Shakti Dan v. State of Rajasthan-2007 Cri. L.J. 3426 (S.C.). It is true that all the prosecution witnesses, who witnessed the incident stated that the relations between appellant and deceased were cordial. It is also apparent from the fact that deceased himself invited appellant to take meals with him at his house, but for some reason there occurred a sudden quarrel in which appellant assaulted deceased and pressed his throat which resulted into his death. Even Raman Bai (PW1), the wife of deceased could not say why the appellant assaulted deceased. She even stated that by way of the village relationship appellant was her brother. She also admitted that on that day her husband was drunk, but he had not consumed much. There appears total lack of evidence to throw light on the genesis of occurrence especially in view of the fact that the relations between the appellant and the deceased were cordial.
18. In case of Shakti Dan (supra) where accused assaulted his wife and mother of accused advised him that he should not quarrel with his wife, he caught hold of his mother and dragged her out from the house and throttled her neck in front of a temple resulting into her death, Apex Court held that the conviction of accused was appropriate in terms of Section 304-I of the Indian Penal Code and sentenced the accused to imprisonment for 10 years.
19. In the aforesaid circumstances and in view of the evidence available on record, we find that the appellant without premeditation on the spur of moment suddenly on some altercation assaulted and throttled the neck of deceased on account of which he died. Therefore, his conviction under Section 302 of the Indian Penal code does not appear to be justified. However, the act by which he caused the death of deceased appears to have been done with the intention of causing such bodily injury as was likely to cause death, he can therefore, be held liable for committing the offence under Section 304-I of the Indian Penal Code. Accordingly, the conviction and sentence of appellant under Section 302 of the Indian Penal code is set aside and instead he is convicted under Section 304-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years.
20. Learned counsel for the appellant submitted that appellant is in custody since 7.12.2001 and including remission he has already served out more than 10 years of his sentence. If that be so, appellant be released forthwith, if not required in any other case.
21. Appeal partly allowed.