NARAYAN DAS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) ACCUSED Narayan Das challenges his conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life inflicted there under.

(2.) ON the prosecution story, appellant Narayan Das, along with his father, Nathuram, on 25 -7 -1978, at about 5.00 p.m., was digging in an open land in front of his house in order to extend a platform (Chabutra). The deceased Ratan, living in a house close by, remonstrated with the appellant and his father, saying that their act would abridge his right of passage over the common land. It is the prosecution story that, at that time, appellant dealt a spade on the head of the deceased and the appellant's father exhorted the appellant to finish the deceased. The deceased got injured and met with instantaneous death at the spot. Learned Sessions Judge, Datia, by the impugned judgment convicted the appellant of the offence under Section 302, Indian Penal Code and the appellant's father Nathu under Section 302/34, Indian Penal Code. Both the accused filed the present appeal but the appellant's father died during the pendency of this appeal, leaving the appellant as the sole appellant.

(3.) SHRI J. P. Gupta, learned counsel for the appellant, did not seek to controvert the guilt of the appellant, which was even otherwise satisfactorily brought home to the appellant on the basis of prosecution evidence adduced in the case. The only point taken by Shri Gupta was that the offence brought home to the appellant was not the offence of murder but was, at the most, the offence of culpable homicide not amounting to murder, punishable under Section 304 (Part II), Indian Penal Code. He tried to underline the fact that a single blow by a spade was dealt by the appellant and in the facts and circumstances, the intention of the appellant could never be to kill the deceased. We were taken through the evidence of both the eye -witnesses, viz., deceased's widow Parwati (P.W.2) and deceased's daughter Kishori (P.W.3). We agree with him that it is not possible to hold on their evidence that the appellant dealt more than one blow on the head of the deceased with the spade being used by him for digging. True enough, deceased's widow Parwati (P.W.2) of all places in her cross -examination (apparently because of unwarranted questioning) for the first time stated that the appellant had dealt two blows on the head of the deceased, the first one, striking on the head of the deceased, whereafter, on exhortation by appellant's father Nathuram, a second blow was also dealt by the appellant, which struck at the back of the head of the deceased. It is difficult to accept this version about the second blow for two reasons. In the first place, it is belied by medical evidence, since no injury on the back of the head of the deceased was found; and, secondly, the version about two blows was contradicted by the police -statement of the witness, in which there was no mention about the second blow. The other witness Kishori (P.W.3) also came out with the story of two blows right from her examination -in -chief, but it is not possible to accept her version of two blows for the simple reason that contradiction was brought out from her police statement, wherein she had failed to mention about the second blow.