AKTIRAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Appellant stands convicted under Section 302 IPC to life imprisonment along with fine of Rs. 1,000/ -. In the event of failure to pay the fine he was required to undergo six months further rigorous imprisonment as ordered by the 1st Additional Sessions Judge, Balod Bazar in Sessions Trial No. 18 of 1994 on 29.02.2000. F.I.R. was registered on 3.7.1993 at about 11.00 a month settlement of PW 2 Rambai wife of the deceased, marked Exhibit P9 with regard to an occurrence the same morning at 7.00 am. Talking of a land dispute she specifically named the Appellant as having assaulted her husband who succumbed to his injuries. The witness was also injured in the assault by the Appellant and her MLC Exhibit P22 was proved by PW 11, Dr. Chandrasekhar Patel The post -mortem of the deceased Exhibit P21 was also conducted by PW 11 who found one sharp cutting injury on the deceased commencing from the left cheek passing the collar bone transverse of size 3 x 3/4 x 1/2 cm x 3 1/2 cm and swelling on the rear portion of the right hand. Death was opined to have occurred due to deep injury travelling down to the chest area cutting vital arteries.

(2.) LEARNED Counsel for the appellant submitted that there was a land dispute between the parties. PW 2, Rambai, in the FIR mentioned the presence of independent witnesses including one Chadrika who has not been examined while PW 1, Antram and PW 9, Ram Pratap have turned hostile. In view of the statement of PW2 that her thumb impression was taken at five places when she reached the Police Station to lodge an FIR and at ten places when the Police came to where the body was found, on blank paper, the possibility of a false FIR having been drawn up to implicate the Appellant in view of the land dispute cannot be ruled out. It will not be safe in the facts to convict on the singular testimony of a related and interested eye -witness. The alleged weapon seized was never sent for Forensic report and the seizure list of witnesses, PW 5. Manharan Das and PW 7, Narsingh have also tuned hostile. In the alternative, it was submitted that the assault was without any premediation. Tangi is a common agricultural instrument kept by any villager and cannot be specifically described as a weapon of offence with which the Appellant may have come armed intending to assault. It was a case of single blow and if intention to cause death had been there nothing prevented the Appellant from repeating the Tangi blows to ensure that the deceased had absolutely no chances of survival. In view of the land dispute and finding the deceased on his agricultural fields the Appellant acted on the grave and sudden provocation. At best the conviction may be sustained under Section 304 Part II IPC attributing knowledge to him. Reliance was placed on Ankusb Shivaji Gaikwad Vs. State of Maharashtra : (2013) 6 SCC 770.

(3.) WE have considered the submissions on behalf of the parties and perused the evidence on record also. PW 2, wife of the deceased is the sole eye -witness to the occurrence. The Appellant was her own brother. She deposed of a land dispute and litigation between them with regard to the same. While she was in the fields with her husband and labour Chandrika along with her sister, DW 1, Jeevan Bai, the Appellant came with his wife and pushed Chandrika. He then assaulted the witness with Tangi. When her husband came to her rescue fisticuffs followed between them. The deceased then stated that he would go to the village for a Panchayat. No sooner that he reached the boundary line of the adjacent plot, the Appellant assaulted him in his neck area. The witness went to the Police Station and recorded the FIR. The entire lands of seven acres was in dispute. In cross examination, she acknowledged that the lands were in possession of the Appellant but that they had won the Court case and had therefore gone for cultivating the lands. No questions have been asked from her in this regard during cross examination. She specifically named the Appellant as the assailant and also having made this statement to the Police. Her husband was not possessed of any weapons capable of assault. She also stated that Ram Pratap, PW 9 and Antram, PW 1 had accompanied her to the Police Station. Once the witness deposed that the FIR was a correct rendition of the statement given by her to the Police, the contention that false implication cannot be ruled out because her thumb impressions were taken on blank paper stands ruled out and cannot give any benefit of doubt to the Appellant.