Krishna vs State Of M.P.
2021 Latest Caselaw 7397 MP

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       THE HIGH COURT OF MADHYA PRADESH
                  BENCH AT INDORE
          [D.B.:Hon'ble Shri Justice Vivek Rusia
          Hon'ble Shri Justice Shailendra Shukla, JJ.]
                    Criminal Appeal No.830/2008
Appellant:          Krishna S/o Sabal
(In-jail)           Age- 42 years, Occupation-Labour
                    R/o-Village, Nimbola, Thana Dharampuri,
                    District- Dhar (M.P.)
                                   Versus
Respondent:         State of M.P.
                    through P.S.- Dharampuri
                    District-Dhar (M.P.)
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     For Appellant (s)             :Ms. Seema Sharma through L.A.
     For Respondent (s)            :Ms. Vinita Phaye, G.A.
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                           JUDGMENT

(Heard on 11/11/2021) (Delivered on ..../11/2021) PER VIVEK RUSIA, J:-

The appellant has filed this present appeal against the judgment dated 28.06.2008 passed by Sessions Judge, Dhar in S.T. No.84/2008 whereby he has been convicted under section 302 of the IPC and sentenced to undergo Life Imprisonment for murdering his wife Kadwibai on 09.12.2007.

2. (i). The prosecution story, on 09.12.2007 near about 8 p.m. appellant was residing with his wife Kadwibai, daughter Sheela (P.W.-1) and son Durgesh (P.W.-2) in gram Nimbola. His brother Ramesh was also residing in the neighbouring house. Near about 8 p.m. Sheela (P.W.-1) and Durgesh (P.W.-2) went to the house of Ramesh to watch the T.V. as there was a power failure in the house. At 8:30 p.m. Sheela and Durgesh heard the shout of her mother Kadwibai. They immediately rushed to their house and found the door was locked from inside. Sheela requested her father to open the door but he did not. Then Sheela removed the

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bricks near the window and entered inside the house and saw that father was hitting from the blunt side of the axe to mother Kadwibai. After seeing Sheela and Durgesh he ran away from the spot. Sheela shouted and called the wife of Ramesh, Leelabai. Kadwibai was bleeding from the nose, head and mouth and died. At the time of the incident, Ramesh was not there in the house as he went to Dhamnod, when he came back Sheela (P.W.-1) narrated the incident to him and accordingly report was lodged in a police station at 1 a.m. in the night. The police registered the case under section 302 of the IPC and B.K. Chhari, (P.W.-5) started the investigation. He reached the spot on 10.12.2007 at 7:30 a.m. and prepared a spot map Exhibit-P/2. He collected the plain soil, blood-soaked soil, axe and prepared a seizure memo Exhibit/P-4. He sent the dead body for postmortem to Dharampuri Hospital, where Dr. Mohan Gupta conducted the autopsy at 11:00 a.m. and found two incised wounds of 10 x 3 cms. one on the right side of petrous temporal and another incise wound of 4 x 2 cms. on the frontal side of the head. He also examined the internal parts of the body and found a depressed fracture of the temporal bone and opined that Kadwibai died due to the excessive bleeding from the injuries within 24 hrs. Postmortem report has been exhibited as Exhibit-P/8. After completing the investigation, a charge sheet was filed and the appellant denied the charges and pleaded innocent.

(ii). The prosecution has examined six witnesses namely, Sheela (P.W.-1), Durgesh (P.W.-2), Kalyan Singh, (P.W.-3), Lila Bai (P.W.-4), B.K. Chhari (P.W.-5) and Dr. Mohan Gupta (P.W.-6) and exhibited the following documents namely, First Information Report (Exhibit-P/1), Naksha Panchayatnama (Exhibit-P/2), Crime Details Form (Exhibit-P/3), Application for postmortem (Exhibit-P/5), Postmortem Report (Exhibit-P/8) and Application

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of Articles for F.S.L. Inspection (Examination) (Exhibit-P/7). In defense the appellant did not examine any witness but pleaded that at the time of the incident he was not in the house and one Veedu S/o Rameshwar used to visit his house and he used to harass his wife. He wanted to examine the witness but despite one opportunity, he did not examine any witness. After appreciating the evidence came on record the learned Sessions Judge has convicted him and sentenced as stated above hence, this appeal before this Court.

3. Ms. Seema Sharma, learned counsel for the appellant engaged through legal aid has argued that this appellant has wrongly been convicted on the basis of the testimony of his own daughter and son out of which one is minor. No independent witness has been examined. No one has seen the appellant hitting his wife by means of an axe. The police have not examined the role and involvement of Veedu S/o Rameshwar. The appellant has committed the offence in a heat of passion, due to sudden provocation by the deceased hence, the offence does not fall under the scope of section 300 of the IPC but it will fall within section 304 (Part-II) of the IPC and for which he has already been undergone more than 10 years of incarnation. Ms. Sharma placed reliance on the judgment passed by the Apex Court in the case of Manoj Kumar V/s State of Himachal Pradesh reported in the year 2018 (7) SCC 327.

4. Ms. Vinita Phaye, learned Govt. Advocate for the respondent/State opposed the prayer by submitting that there was no reason to disbelieve the testimony of Sheela P.W.-1 and Durgesh P.W.-2 who deposed against their father. Sheela P.W.-1 has witnessed the appellant hitting his wife by means of the blunt side of the axe. The appellant has not established that he was provoked by Kadwibai. There was no previous dispute between

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them. After sending the son and daughter to the brother's house he locked the house from inside and assaulted his wife. He refused to open the door in order to get any help to his wife hence no leniency is liable to be seen. His children have been cared for by Ramesh as admitted by Sheela (P.W.-1) hence, the appellant is not entitled to any mercy and the appeal is liable to be dismissed.

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

5. The prosecution has examined Sheela (P.W.-1) daughter of the deceased and the present appellant. According to her she along with her brother Durgesh (P.W.-2) went to the house of her uncle Ramesh to watch the T.V. and in the house mother and father were there. She heard the shout of her mother and she and Durgesh rushed to the house and found the door locked from inside. She called the appellant to open the door but he did not open it there- after, she removed the bricks near the window and entered the house. She saw that mother was lying on the floor and after com- ing inside her father opened the door and fled away. The mother sustained the injuries on her head mouth and nose and bleeding from the injuries. She shouted then aunt Mangatibai and aunt Lee- labai came to the house. She was not aware of why her father killed her mother. When she entered into the house the accused

said "अब आतत हह जब ममैंनन तनरत ममम कक ममर ददियम हह "(Now comes when I have killed your mother") . Learned counsel for the appellant submitted that the appellant has repented after hitting the wife that is why she made the aforesaid statement said to his daughter, therefore, the dispute arose in a sudden provocation without any pre-plan- ning hence, it will fall under 304(Part-II) of the IPC. She further submits that the deceased, appellant and two children had dinner inside the house and thereafter, Sheela (P.W.-1) and Durgesh

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(P.W.-2) went to the house of the Ramesh, therefore nothing was in the mind of the accused to plan for the murder of his wife. Af- ter leaving the children from the house a dispute had arisen be- tween the appellant and wife and the axe which is normally avail- able in the house in the village. The appellant has assaulted from the blunt side of the axe. Had he intended to kill the wife he would have used the sharp side of the axe. In the case of Manoj Kumar (supra) the Apex Court has carved out the four conditions to be satisfied for bringing the case under exception 4 to Section 300 of the IPC which are namely:-

(i) that the incident happened without premeditation;

(ii) in a sudden fight;

(iii) in the heat of passion

(iv) upon a sudden quarrel and

(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.

6. In this case the deceased, appellant and his family took the dinner and thereafter, children went to the house of Ramesh and at that time there was no dispute between the appellant and the deceased. Within half an hour, Sheela (P.W.-1) heard the shout of her mother and rushed to the house. Therefore, there was a sudden quarrel started between the husband and wife which converted into a fight and in a heat of passion he used the blunt side of the axe to hit his wife. When the daughter reached inside the house then the appellant repented and said that now you are coming when your mother is dead. The appellant is not a hardcore criminal. He is a family man and in a heat of passion, he has committed this offence. There is no evidence that he was a habitual drinker and used to fight with his wife. Therefore, having taken into consideration the statement of Sheela (P.W.-1) and circumstances under which the crime has been committed and in view of the judgment passed by the Apex Court in the case of Manoj Kumar (Supra) we are of the considered opinion that the

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appellant is guilty of an offence punishable under section 304 (Part-II) of the IPC and not for the offence punishable under Section 302 of the IPC.

7. In view of the above, we pass the following order:

(I) Appeal is partly allowed.

(II) The judgment and conviction dated 28.06.2008 is modified and converted into section 304 (Part-II) of the IPC in place of Section 302 of I.P.C. Resultantly, the sentence is reduced from Life Imprisonment to the period already undergone by the appellant.

(III). The appellant be released from jail if he is not required in any other case.

Record be sent back with a copy of this judgment.

         (VIVEK RUSIA)                                        (SHAILENDRA SHUKLA)
             JUDGE                                                  JUDGE
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