Prakash Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 5654 MP

                                     1
                                                              Cr.A.No.1476-2010




      HIGH COURT OF MADHYA PRADESH AT JABALPUR


                  CRIMINAL APPEAL NO.1476/2010


                              Prakash Yadav

                                  Versus

                        The State of Madhya Pradesh


Counsel for the appellant       : Shri Sandeep Dubey , Ld. Advocate/
                                   Amicus Curiae.
Counsel for the respondent/State : Shri Piyush Bhatnagar, Ld. Panel Lawyer


                                  ******

     Present: HON'BLE MR. JUSTICE ATUL SREEDHARAN
              HON'BLE MRS. JUSTICE SUNITA YADAV

                                  ******
                            JUDGMENT

(21-09-2021)

Per : Atul Shreedharan, J.

The present appeal has been filed by the appellant

against the order dated 16.11.2009 passed by the learned Sessions

Judge, Panna in Sessions Trial No.09/2010, whereby the appellant

was convicted for an offence punishable under Section 302 of IPC

and sentenced to rigorous imprisonment for life and fine of

Rs.200/- and simple imprisonment of one month in default thereof.

2. The prosecution's case is that on 16.11.2009, the appellant

herein assaulted the deceased Archana, with a stick which resulted

in her death.

3. Learned Amicus Curiae appearing on behalf of the appellant

has submitted that on 16.11.2009, the deceased Archana along

with her husband and two children went to the house of her

mother-in-law Kusumbai, who stays separately along with the

appellant. At the time of incident, the deceased was warming

milk for her children, when the appellant suddenly picked up a

stick and questioned the deceased as to why she was warming the

milk and repeatedly assaulted her on the head with the stick

resulting in her death. The incident was witnessed by Kusumbai,

the mother of the appellant and Ashok, husband of the deceased

and also the brother of the appellant herein. The FIR has been

registered by PW-2 Shri Narayan, who was one of the witnesses

to the subsequent events. After the assault, when PW-4 Ashok

shouted that the appellant was assaulting the deceased, the

neighbors arrived at the scene of occurrence, and all those

witnesses are witnesses to the subsequent events. The prime

witnesses in this case are (PW-3) Kusumbai and (PW-4) Ashok.

PW-3 in her testimony before the Court says that the appellant is

her younger son and PW-4 is her elder son. Around 11:00

O'clock in the morning, PW-4 along with the deceased and his

two children came to the house of PW-3. She says that the

deceased was warming milk and she was serving food to her

grand children and the appellant was sitting there. She further

says that the appellant suffers from bouts of drowsiness and

suffers from bouts of eccentricity. She says that he picked up a

stick and started assaulting the deceased. Both the children went

and took refuge with PW-3 and she went outside the house with

her two grand children. She continued by saying that the

appellant continued to assault the deceased with the stick and the

deceased came near the door and fell down there. Thereafter, she

says that other villagers who were Shiv Datt Pathak, Babbu and

one or two others came there but, none of them could apprehend

the appellant. Thereafter, PW-4 got into the house. She further

says that her brother Vinod, Babbu and Shiv Narayan went to the

police station to lodge the report. Nothing material has been

brought out by way of a contradiction in her cross-examination

but, the fact that she had not stated in her 161 statement to the

police that the appellant was prone to bouts of eccentricity.

4. PW-4 Ashok, brother of the appellant and husband of the

deceased, substantially reiterates what was stated by PW-3. The

variations between the statements of both PW-3 and PW-4 are

extremely minor for us to take note of. Even otherwise, the said

discrepancy does not go to the root of the prosecution's case and

both these witnesses come out strongly as credible eye-witnesses

to the incident. It is also relevant to mention here that PW-3, the

mother of the appellant has not been declared hostile and she has

supported the case of the prosecution in its entirety. Likewise

PW-4, who is the brother of the appellant has also supported the

case of the prosecution and has not turned hostile. His cross-

examination is also produced precious little by way of

contradiction, which could come to the aid of the accused.

5. Learned counsel for the appellant has also submitted that

the case against the appellant is trumped up as the inquest report

which ought to have preceded the FIR, was prepared at 2:10 PM

whereas the FIR was registered on 16/11/2009 at 2:00 PM. In

other words, learned counsel for the appellant submits that the

FIR has been registered even before the inquest intimation.

6. The said contention putforth by the learned counsel for the

appellant may have relevance in a case where the cause of death

of the victim and the perpetrator of the offence are unknown. In

such a situation, if the FIR precedes the inquest proceedings and

the accused is named in the FIR, in such a situation, doubt would

be raised on the prosecution's case. However, in the present case

the inquest proceedings are of very little consequences as there

are two eye witness testimonies of sterling quality and due to

their proximate relation to the appellant, there is no reason for

this Court to disbelieve their testimonies.

7. Learned Panel Lawyer for the State has also drawn the

attention of this Court to the post-mortem report which is

(Ex.P/9) where the aforesaid injuries are noted by the doctor. One

is a lacerated wound on the orbital bone left side 4 cms X 1.3

cms which is bone deep with fracture of the orbital bone. Second,

third and fourth injuries are contusions one on the right frontal

bone, other on the right cheek below the right eye and the third, a

contusion on the left parietal temporal bone which is 5 cms X 4

cms. All these injuries were inflicted ante-mortem. Cause of

death is given by the doctor as shock and coma due to head

injury and duration within 24 hours from the incident.

8. Learned Panel Lawyer for the State has also submitted that

the statements of PW-3 and PW-4 being of such sterling quality

and their proximity in relationship to the appellant and the fact

that they have supported the case of the prosecution, there is no

reason to doubt their testimonies. Besides that, the defence has

not been able to make out a case of insanity. He was further

stated that momentary eccentricity or temporary loss of self

control will not come within the definition of the insanity under

the Mc'Naghten rules. There has been no attempt by the defence

to show that the appellant was so mentally unstable at the time of

the incident that he was unable to understand the nature and the

consequences of his actions. Under the circumstances, learned

Panel lawyer for the State submits the prosecution has succeeded

including the case against the appellant and there is no need for

this Court to interfere with the findings of learned trial Court.

9. We are in agreement with the proposition put forth by the

learned counsel for the State. The evidence of PW-3 and PW-4 as

already stated herein above, do not leave any scope for doubt.

P.W.3 and P.W.4 are the mother and brother of the appellant and

they have not turned hostile and has given a graphic account of

what happened on 16.11.2009, which led to the death of the

deceased Archana. Besides, the post-mortem report corroborates

the testimony of the eye-witnesses and it clearly reveals four

injuries on the head and the facial area of the deceased and that

she has died due to shock in coma due to the injury in the head.

Under the circumstances, we do not find any merit in the present

appeal and dismiss the appeal and uphold the order passed by the

learned trial Court.

10. However, we make it clear that the order should not come in

the way of the State if they intend to give the benefit of

remission to the appellant who was already completed more than

12 years.

11. Before parting this case, we record our appreciation for the

efforts of Shri Sandeep Kumar Dubey, Advocate, who has

appeared as amicus curiae in the case and assisted this Court.

With the above, the appeal is finally disposed of.

           (Atul Sreedharan)                             (Sunita Yadav)
               Judge                                        Judge
Shubh



Digitally signed by SHUBHAM
THAKKER
Date: 2021.09.27 15:51:51 +05'30'