SAMARU BAIGA Vs. STATE OF M P

JUDGEMENT

(1.) THE appellant has preferred this Jail Appeal against the impugned judgment and order dated 25-2-97 passed by the learned Additional Sessions Judge, Dindori (Mandla) in the Session Trial No. 129/95 whereby he has been held guilty of offence under Section 302, IPC and sentenced to life imprisonment for committing murder of his wife Jithiya Bai.

(2.) SUCCINCTLY narrated the facts of the prosecution case are that on 13-5-95 in the morning, Village Kotwar Aaitu Ram Baiga (P. W. 1) was informed at his residence by Mitthu Baiga (P. W. 3-A) and Dasaru (not examined) that accused Samaru Baiga came and informed them by way of extra judicial confession that he had seen his wife Jithiya Bai (deceased) and Basora Gond (not examined) in a compromising position in a rivulent known as 'mohgaontola Nala' therefore, he killed heron 12-5-95 at 15 hours. On receipt of this information, Aaitu Ram Baiga along with Mitthu went to the place and saw Jithiya Bai lying dead in supine position and bleeding from her head. Accordingly, he lodged an FIR of the incident at Police Station, Shahpur, on 13-5-95 whereupon an offence under Section 302, IPC was registered against the accused/appellant, and taken for investigation. The Investigating Officer recorded the Marg (Ex. P-2) and prepared the spot map (Ex. P-3) on 13-5-95 itself. Inquest Panchayatnama (Ex. P-4), also prepared on the same day, attributed the injuries present on the body of the deceased Jithiya Bai, only to accused Samaru. Memorandum (Ex. P-5) of the accused under Section 27 of the Evidence Act, led to discovery of weapons of offence namely, a piece of wooden baton and three stone pieces lying on the spot of incident which were seized as per Ex. P-6. Other incriminating articles i. e. , plain and washed off earth, 50 gms each and 4 pieces of red bangles were also seized from the spot of the incident as per Ex. P-7. Vide Ex. P-8 a blood-stained stone-piece, plain and blood-stained earth, were seized from near the dead-body. Clothes of the accused, which he was wearing on the date of incident, namely, a white half baniyan and a lungi, sporadically stained with blood were seized vide Ex. P-9. Further, hair of the deceased allegedly pulled out of her head were seized vide Ex. P-10, from the spot of incident. The decomposed body of the deceased with maggots were sent for Forensic opinion vide Ex. P-11. Viscera of the dead-body were seized vide Ex. P-12. The Autopsy Surgeon (P. W. 8) gave the post-mortem report vide Ex. P-16. He opined that the death had taken place between a period of 3-5 days. He found the body highly decomposed with maggots eaten cavities. Injuries were anti-mortem in nature and could be caused by some hard and blunt object. Looking to the nature of calp wound, the doctor opined that the death resulted from the injury to brains caused by fracture of the scalp. The said injury was found to be sufficient to cause death. After a complete investigation, a challan was laid, and charge, drawn up for offence under Section 302, IPC. The learned Additional Sessions Judge, Dindori, on a proper appreciation of evidence on record and in particular, relying on the evidence of independent witnesses, namely, Aaitu Ram (P. W. 1), Phool Chand (P. W. 2), Mitthu (P. W. 3-A) and Daduram (P. W. 4) found the prosecution story duly proved beyond reasonable doubt and therefore, recorded the aforcsaid conviction and sentence against the accused.

(3.) KU. Jyoti Agnihotri, learned Counsel appearing for the appellant apart from assailing the impugned judgment on other grounds submitted that on totality of circumstances, it is appears to be a case of sudden and grave provocation, and therefore, the accused ought not to have been held guilty of offence under Section 302, IPC. On the other hand, Shri S. K. Rai, learned Panel Lawyer for the State submitted that the accused had a strong motive to commit murder of his wife. He countered the defence pleas and contended that looking at the time of assaults after seeing the deceased in compromising position with some other man, the accused had time to think over and cool down. Thus, it does not come under the exception of grave and sudden provocation. Mr. Rai defended the impugned judgment of conviction under Section 302, IPC by placing heavy reliance on the testimony of independence witness Phool Chand (P. W. 2) is the sole eye-witness of actual assaults, apart from extra-judicial confession leading to discovery of incriminating articles.