RAJ KUMAR Vs. STATE OF M.P.

JUDGEMENT

(1.) The Appellant has been convicted under Section 302 IPC to rigorous life imprisonment by order dated 19.02.1999 of the 5th Additional Sessions Judge, Bilaspur in Sessions Trial No. 436 of 1998. The First Information Report (FIR) Exhibit P-1 was lodged by the brother of the deceased P.W. 1, Khorbahra on 22.04.1998 itself at 13.45 hours stating that a person called Santosh came and informed him that the Appellant had assaulted the deceased with a knife in the stomach on the right side. He went and saw his brother in the ward who told him that at 7.00 am the same day he had gone to demand arrears of Rs. 1,000/- from the Appellant in the fields of Chotelal. During discussion on repayment of the loan, the Appellant assaulted him. The Appellant also attempted to assault Chotelal by chasing him. The deceased died during the course of treatment and Section 302 was added subsequently.

(2.) Learned counsel for the Appellant submitted that the FIR talks of a loan of Rs. 1,000/- taken by the Appellant. P.W. 7, Vimla Bai, wife of the deceased mentioned the loan amount as Rs. 1,500/-. P.W. 3, Chotelal, the alleged eye witness deposed having told Shiv Prasad @ Kallu, P.W. 5, about the assault. But P.W. 5 in his deposition did not corroborate it. The conduct of P.W. 3 in having eye witnessed the assault and then not telling anybody but staying home for two days was unnatural which raises doubts about his being an eye witness. There is no other witness to the assault and the benefit of doubt must be given to the Appellant. P.W. 7, states that the deceased told her to call Sauram, Kanak and Santosh. Kanak has not been examined. Any evidence given by P.W. 4 Santosh and P.W. 10 Sauram is therefore hearsay. When P.W. 7 asked the deceased how the assault came to be made the deceased did not disclose any name to her. The clothes and knife recovered on the memorandum of the Appellant in the F.S.L. Report Exhibit P-20 do not confirm presence of any blood. It was lastly submitted that even if the Appellant is held to be guilty, there was no intention to cause death. At best the Appellant may have been irritated because of the persistent demand from the deceased for repayment of the loan, forcing him to go to the fields of P.W. 3 and work to earn money for repayment. The assault was made in irritation only to teach a lesson on the spur of the moment pursuant to verbal duel in the fields. The conviction may at best be under Section 304 Part II IPC attributing knowledge that death was likely to be caused. The Appellant has stayed in custody for the last 6 years and 2/4 months before being released on bail. The period of custody undergone may be held to be sufficient punishment in the nature of the assault. Reliance was placed on Ankush Shivaji Gaikwacl Vs. State of Maharashtra, 2013 6 SCC 770, to submit that the case comes within Exception 4 to Section 300 IPC as having been committed without premeditation in a heat of passion on sudden quarrel without taking undue advantage or acting in a cruel manner. If he had the intention to kill he would not have made a solitary assault but would have made at least one more assault to ensure death.

(3.) Learned counsel for the State has opposed the appeal submitting that the conviction requires no interference. The loan taken by the Appellant from the deceased is not in controversy. That the deceased, the Appellant and P.W. 3 went to the fields of the latter is also not in dispute. The deceased had taken the Appellant to the fields for work to earn money and repay his loan to the deceased. The conduct of P.W. 3 having eye witnessed the murderous assault staying at home for two days cannot be called unusual. It may have had its impaction him mentally as different persons would react differently after being an eye witness to a murderous assault. The evidence of P.W. 3 finds corroboration from that of P.W. 4 the landlord of the deceased. P.W. 7 has stated that the deceased told him to call P.W. 4 and P.W. 10. Even if, Kanak has not been examined, both these witnesses have stated that the deceased told them the name of the Appellant as the assailant. The Appellant was carrying a knife when he went to the fields under compulsion at the insistence of the deceased. There was no occasion for him to go to the fields unwillingly armed with a knife which is sufficient to hold that he went with a premeditated design and intention to assault and kill the deceased.