Appeal was preferred by the appellant Gulab Yadav against the judgment and order dated 22.08.2012, passed by Sessions Judge, Mahoba, under Section 302, 506 IPC, whereby the appellant was convicted and sentenced for life imprisonment and fine of Rs.20,000/- under Section 302 IPC. The appellant was further convicted and sentenced for two years R.I. under Section 506 IPC.
FIR was lodged by complainant Ram Babu stating that on 26.02.2011,Gulab Yadav came and started demanding Rs.200/- for labour charges from the wife of complainant Ram devi. She told that she was going to her house for lunch and would pay rupees after that. As soon as she started walking towards her house, Gulab Yadav hit the wife of the complainant at her neck with the axe in his hand. She sustained injury due to which after some time she died. Case Crime No.200 of 2011 was registered under Section 302 and 506 IPC. I.O. prepared site-plan on the pointing out of the Kumari Shilu, daughter of the complainant. During the course of investigation, the Axe used for commission of crime was recovered on the pointing out of the appellant. Charges were framed by learned trial court against the accused under Sections 302 and 506 IPC.
It was submitted by the learned counsel for the appellant that if Court reaches to the conclusion that appellant had committed the offence, then in that case also the offence does not travel beyond the scope of Section 304 IPC because as per prosecution case, a single blow of axe was inflicted by the appellant. He did not try to repeat the blows. It clearly shows that accused had no intention to kill the deceased. Hence, no case under Section 302 IPC is made out.
Per contra, learned AGA submitted that appellant hit the deceased on her neck with the deadly cutting instrument like Axe. The neck is vital and sensitive part of the human body.
Perusal of record showed that, the prosecution had produced three witnesses of fact, namely, Ram Babu, Kumari Shilu and Harendra. All the three witnesses supported the prosecution case and there are no such contradictions in the statements of the eye-witnesses. Post mortem report also shows that there is single injury on the neck of the deceased. No other injury was found on the person of the deceased.
Considering the evidence of these witnesses and the medical evidence including postmortem report, there was no doubt about the guilt of the present appellant. However, the question whether on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 IPC should be upheld or the conviction deserves to be converted under Section 304 (Part-I) or (Part-II) of the Indian Penal Code.
According to Postmortem report, antemortem injuries found on the body of the deceased was an incised wound of size 10 cm x 4 cm over right side of the neck. It was along with the line of right side of jaw. There was no other injury.
Considering the principle laid down by the Hon’ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], court was of the opinion that the offence would be punishable under Section 304 (Part-I) IPC. It appeared that the death caused by the accused was not intended and the injuries were though sufficient in the ordinary course of nature to have caused death, the accused had no intention to cause death.
The appeal was liable to be allowed in part. Appellant was held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC along with other offence punishable under Section 506 IPC. The conviction and sentence awarded to the appellant for the offence under Section 302 IPC was converted into the offence under Section 304 (Part-I) IPC and appellant was sentenced under Section 304 (Part-I) IPC for 10 years rigorous imprisonment and fine of Rs.5,000/-. Sentence awarded under Section 506 IPC will remain intact. Accordingly, the appeal was partly allowed.
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