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Madhya Pradesh High Court · body

2005 DIGILAW 1254 (MP)

Jagganath Singh v. State of M. P.

2005-12-07

S.C.VYAS, S.K.KULSHRESTHA

body2005
JUDGMENT Kulshrestha-, J.-- 1. The two appellants have filed this appeal against their conviction under section 302/34 of the IPC and sentence of imprisonment for life awarded to each of them vide judgment dated 5.7.2001 of the learned Sessions Judge, Rajgarh in Sessions Trial No. 137/2000. 2. According to the prosecution, while Bhanwerlal s/o accused Jagannath was taking his Buffaloes on 1.7.2000 accompanied by his son (PW 9) Ram Kailash and he had reached the field known as Tukdiwale Khet, the two accused armed with Farsi (sharp weapon) and Lathi (stick) started assaulting him with the result he fell down on the ground. The accused caused him several injuries on his hands and legs. (PW 9) Ram Kailash rushed to the house and related the event to (PW 2) Nandubai and Dhapubai. (PW 2) Nandubai, (PW 8) Ramprasad, (PW 6) Amarsingh and (PW 7) Rodilal rushed to the spot where they met (PW 5) Laxminarayan. When Nandubai inquired from Bhanwerlal as to what had happened, he told her that accused Jagannath and Madanlal had caused injuries by assaulting him with Lathi and Farsi. He was taken to the village and then brought to PS Jeerapur. However, he succumbed to toe injuries enroute and Nandubai then lodged the report Ex. P-7 at the Police Station which was recorded by R.D. Katiyar (PW 11) Assistant Sub-Inspector. The Merg was registered and inquest was held. Spot Map Ex. P-18 was prepared and samples of blood stained earth and control earth were obtained vide memo Ex. P- 3. Dead body of Bhanwerlal was sent for post mortem under requisition Ex. P-8. Autopsy was performed by (PW 3) Dr. Y. Shrivastava who gave report Ex. P-8. The two accused were arrested and on the basis of the information given by Madan as recorded in Memo Ex. P-2, a blood stained Farsi was seized vide Ex. P-4 and similarly, on disclosure by Jagannath as recorded in Ex. P-5, a blood stained Lathi (stick) was seized vide Ex. P-6. The seized articles were forwarded to the Forensic Science Laboratory for examination from where report Ex. P-22 was received. After the completion of the investigation, the appellants were prosecuted and notwithstanding that they pleaded that they were innocent, they were convicted and sentenced as hereinabove stated. 3. P-5, a blood stained Lathi (stick) was seized vide Ex. P-6. The seized articles were forwarded to the Forensic Science Laboratory for examination from where report Ex. P-22 was received. After the completion of the investigation, the appellants were prosecuted and notwithstanding that they pleaded that they were innocent, they were convicted and sentenced as hereinabove stated. 3. The learned senior counsel, in view of the inquest report, the post mortem Report and the eye witness account, does not dispute that deceased Bhanwarlal met a homicidal death. He has also not disputed the injuries sustained by the deceased as recorded in the autopsy report Ex. P-8 and deposed to by the (PW 3) Dr. Y. Shrivastava. The precise contention of the learned senior counsel is that since the entire body of the deceased was exposed and the accused persons had the fullest opportunity to strike him on vital parts but still the assault remained confined to only hands and legs, it signifies that accused did not have the intention to cause death; and, therefore, notwithstanding that the deceased died on account of the multiple injuries the case would not fall within the description of an offence under section 300, IPC punishable under section 302 thereof and, therefore, the conviction of the appellants under section 302 is unsustainable. Learned State counsel, per contra, submits that not only that injuries have been inflicted on hands and legs and under each injury there is a serious fracture, there is also an injury on the head of the deceased caused by a sharp weapon. Under these circumstances, it cannot be said that there was absence of intention to cause death. 4. To appreciate the submissions made by the learned counsel it would be advantageous to first refer to the injuries recorded in the Autopsy Report Ex. P-8. The injuries recorded therein read as follows: I. CLW-3"x" over left leg. I" above ankle joint compound fracture on lower shaft of tibia fibula. 2. CLW 3"x2" over upper part of left leg compound fracture of upper part of tibia fibula. 3. CLW 3"x2" over rt. ankle joint and lower part of rt. leg compound fracture of tibia and fibula and dorsal bones. 4. CLW 4"x 1" over 1" above to rt. ankle joint compound fracture upper part of tibia fibula rt with patella fracture (rt). 5. 3. CLW 3"x2" over rt. ankle joint and lower part of rt. leg compound fracture of tibia and fibula and dorsal bones. 4. CLW 4"x 1" over 1" above to rt. ankle joint compound fracture upper part of tibia fibula rt with patella fracture (rt). 5. CLW 2"x2" over it wrist joint compound fracture of lower side of it radius ulna with fractured carpel bones. 6. CLW on 2"x2" on upper part of Lt forearm compound fracture of upper part of rt. radius ulna and lower part of humerus bone. 7. CLW 3"x2" over rt. wrist joint and lower part of It forearm compound fracture of lower part of radius ulna (It) with fracture carpel bone rt. side. 8. CLW over 3"x2" over upper part of Lt forearm compound fracture of upper part of shaft of radius ulna. 5. In the report it is stated that the cause of death was shock due to multiple injuries all over the body. In this connection if the testimony of (PW 3) Dr. Y. Shrivastava is examined, it is noticed that there was a compound fracture of left tibia and fibula, there was also a compound fracture of right tibia and fibula, there was also a compound fracture of right patella, there was a compound fracture of radius and ulna of the right and left hand, there was also a fracture of the lower joint below the radius, though there was an incised wound over the head, there was no bony injury in that region. Doctor, therefore, opined that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Nothing has been brought out in the cross-examination of this witness to demolish the effect of his testimony. 6. The learned Dy. AG, in view 'Of the evidence of (PW 3) Dr. Y. Shrivastava, vehemently argued that there being clear opinion of the doctor that the injuries were sufficient in the ordinary course of nature to cause death, submits that whether intended or not, since under the enabling provisions of section 300 thirdly, the case would fall within the description of an offence under section 300 of the IPC and, therefore, the conviction under section 302 of the IPC is invincible. 7. We have bestowed our consideration to the submissions made by the counsel for the parties. Though Dr. 7. We have bestowed our consideration to the submissions made by the counsel for the parties. Though Dr. Shrivastava has expressed his opinion that cumulatively the injuries were sufficient in the ordinary course of nature to cause death in order to attract the enabling provision contained in clause thirdly of section 300 of the IPC, yet when we examined the location of the injuries, except the injuries over the head, it is manifest that all the injuries have been caused on hands and legs and though the assault has been with great force, the fact remains that it has remained confined to non-vital parts only. Not even the parts such as chest and back have been chosen. It is, therefore, not a case where bodily injury intended by the two accused was intended to be an injury sufficient in the ordinary course of nature to cause death. At the same time, from the number of fractures caused and the number of injuries inflicted, one cannot be oblivious of the fact that the assailants had the knowledge that by the injuries intended by them, they were inflicting injuries which were likely to cause death. Section 304 Part I provides as under:- "304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is cause is done with the intention of causing death, or of causing such bodily injury as is likely to cause death." (emphasis supplied) 8. From the provision made in Part I of section 304 it is clear that if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death the offence of culpable homicide would be punishable under the first Part of section 304 IPC. From the facts of this case and the injuries referred above it can be gathered without any difficulty that the intention 'of causing bodily injury was present and the injuries were likely to cause death was quit known to the assailants. The act of the appellants would apparently fall within first part of section 304 of the IPC. 9. Accordingly, the appeal partly succeeds. The act of the appellants would apparently fall within first part of section 304 of the IPC. 9. Accordingly, the appeal partly succeeds. While the conviction of the appellants under section- 304 of the IPC and the sentence awarded thereunder cannot be sustained and is therefore, set aside, they are found guilty under section 304 Part I of the IPC and each of them is sentenced to RI for 7 years. They shall be entitled to set off under section 428 Criminal Procedure Code. The appeal is, accordingly, partly allowed.