VISHNU YADAV Vs. STATE OF MP.

JUDGEMENT

(1.) THIS appeal is filed against the judgment dated 20.7.1996 passed in Sessions Trial No. 33/96 by Sessions Judge, Shivpuri of conviction of the appellant under section 302 IPC and sentence of life imprisonment. Prosecution story in brief is that on 28.12.1995 at about 12 in the noon, appellant had gone to reap the mustard crop on a field which was jointly owned by the complainant and appellant. Deceased stopped the appellant from cutting her crop. In the meantime, mother-in-law of the deceased also reached on spot. There was some exchange of hot words between the parties on the us-age of well and appellant fell in the well alongwith the deceased. Complainant Sitaram, husband of the deceased, also came on spot and after knowing the facts from his mother, went to lodge the report. The report of the incident (Ex. P/1) was lodged at about 7 p.m. in the evening. Dead body of the deceased was taken out from the well next day and it was referred for post mortem examination. Crime was registered, matter was investigated and chargesheet was filed. Trial Court convicted and sentenced the appellant as aforesaid against which appellant has filed this appeal.

(2.) SHRI Padam Singh, learned counsel for the appellant submitted that it is a case of accidental death as the deceased died due to Asphyxia by drowning. He further argued that sole eye-witness in the case is Smt. Vijabai (PW 2), mother-in-law of the deceased and her statement is not at all reliable. She was on spot but she has not stated the correct version of the incident. There are material contradictions and omissions in the FIR and her statement and looking to the conduct of PW 2 Vijabai and PW 1 Sitaram, prosecution story is not natural as they have not tried to save the deceased. Admittedly, the deceased was carrying seven months child in her womb. He further submitted that this is not a case of murder but it is a case of culpable homicide not amounting to murder and at the most appellant can be convicted only under section 304 Part II IPC and since the appellant has suffered sufficient jails sentence of more than nine years, he be released on undergone jail sentence.

(3.) PW 1 Sitaram is the husband of the deceased who lodged the FIR. He was not present on spot at the time of commission of crime, but he has deposed that their relations with the appellant were not cordial and and some quarrel is going on between them on the question of partition of land and well. He immediately reached on spot after the incident, but till the next day he has not tried to take out the body of the deceased from the well. In the FIR (Ex. P/1) he has narrated the incident that there was some hot talk and quarrel between the appellant and the deceased and appellant fell down in the well alongwith his wife. In the FIR he has not mentioned that when the deceased came on the surface of water the appellant again pushed her into the water. PW 2 Vijabai who is the mother-in-law of the deceased has deposed that she was present at the time of incident on the well. There was quarrel between the appellant and her daughter-in-law and the appellant threw her in the well and thereafter he himself jumped into the well and when her daughter-in-law came on the surface of the water in the well, he again pushed her in the water and thereafter the appellant came out from the well. In the cross-examination she has deposed that there was altercation before the incident between the appellant and her daughter-in-law at "Cheda" which is known as "Aapchak" (common place between the two houses) and nobody was present at that place and appellant had also beaten her daughter-in-law in the morning. In the cross-examination, she has stated that the appellant had also pressed the neck of her daughter-in-law in the well and her tongue had come out and she has stated that in the evening she had come back to her house and she has not narrated the story to anyone else in the village either to Patel or Sarpanch. She has denied this suggestion that deceased was not thrown in the well by the appellant. Appellant has taken a specific defence in his statement recorded under section 313 CrPC that there was altercation between Sitaram (husband of the deceased) and Roopwati (deceased) and due to that the deceased herself fell in the well and committed suicide. PW 3 Dr. R.S. Rajpoot has performed the post mortem examination of the dead body of the deceased and has deposed that he had not seen any scars in the neck of pressing the neck and when neck would be pressed eyes will come out. He has admitted that she was carrying a seven months child in the womb which was a boy and it was also found dead in the womb.