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2010 DIGILAW 172 (MP)

Subu S/O Annasingh v. State Of M. P.

2010-02-09

PIYUSH MATHUR, S.L.KOCHAR

body2010
JUDGMENT : PIYUSH MATHUR, J. The appellant has preferred this Appeal on being aggrieved by the judgment passed by the First Additional Sessions Judge, Alirajpur, District Jhabua in Sessions Trial No. 456/1999 on Date 14-11-2000, whereby the appellant has been convicted under section 302, Indian Penal Code, for undergoing Life Imprisonment with a fine amount of Rs. 2,000/-. 2. The Prosecution has demonstrated that on Date 24-8-1999 at about 5 p.m. in the evening deceased Sukla, her mother Gendli Bai and sister Kali Bai were making preparations for celebrating the festival of 'Nawai' when accused Subu came into the house along with a large size Falia. The Prosecution story further demonstrate that accused appellant Subu invited Sukla for dinner but he refused on the ground that he had invited her sister for celebrating the festival, therefore he would not have dinner at his place, but the accused forcibly caught hold of his hand and dragged him out of the house. The family members of the deceased (Gendly Bai and Kali Bai) asked the appellant not to take Sukla but he took him out of the house and caused one fatal injury on the neck of the deceased Sukla, on account of which he fell down on the earth and died. 3. The First Information Report was lodged by PW-1 Kali Bai where she had narrated the entire story of causing injury by accused appellant on the neck of her brother Sukla. After completion of the investigation, the Challan was filed against the appellant and upon committal of the case to the Court of Sessions, the trial was conducted and upon the conclusion of the trial, the trial Court has found the appellant guilty of committing an offence of Murder and has sentenced him to undergo Life Imprisonment along with an amount of fine. 4. We have heard Shri Gopal Learned Counsel for the appellant and Shri Girish Desai Learned Deputy Advocate General for the respondent/State and have perused the record of the case. 5. 4. We have heard Shri Gopal Learned Counsel for the appellant and Shri Girish Desai Learned Deputy Advocate General for the respondent/State and have perused the record of the case. 5. A perusal of the statement of PW-1 Kali Bai demonstrate that she had gone to her brother's house for celebrating the festival of "Nawai" when the accused came into the house asked her brother to accompany him for having dinner at his place but her brother refused to go along with him on the ground that he had invited her sister Kali Bai for celebrating the festival. Kali Bai has further averred in her statements that in spite of a clear refusal to go along with the accused, he forcibly caught hold of his hand and dragged him out and the moment he took out Sukla from the house, he caused a severe blow on the neck of her brother with Falia, which caused a grievous injury on his neck, due to which he fell down on the earth and died. The Counsel for the defence had thoroughly cross-examined the witness, but except for bringing on record a story about the incorrect description of the recovery of Rs. 400 or Rs. 200, nothing could be proved except for this variation in the amount, but this variation no where dilutes the entire testimony of the witness, in relation to the main incident of causing injury to the deceased. 6. The other witness PW-3 Gendli Bai, who is the mother of the deceased has also narrated that the accused came to the house of the deceased along with a large sized Falia and asked him to go to his house and when he refused to accompany him the accused dragged him out, when her daughter Kali Bai also came out of the house and soon thereafter, she heard a loud voice (Shrieking sound) of Kali Bai when she came to know through her that accused appellant Subu had caused grievous hurt to Sukla by inflicting a blow of the reverse edge of Falia and has killed him. The testimony of this witness also remained unaffected during her cross-examination. 7. Dr. The testimony of this witness also remained unaffected during her cross-examination. 7. Dr. H. S. Kushwaha (PW-8) is a Medical Expert who had conducted the post-mortem examination of the deceased on Date 25-8-1999, where he found two abrasions and one Lacerated wound on the occipital region of the skull and opined that all the injuries found on the body of the deceased were caused by hard and blunt object. This witness has further opined that the lacerated wound caused to the deceased could have been caused due to the infliction of the reverse edge of Falia and injury No. 3 (lacerated wound) was sufficient enough to cause death of a human being in the ordinary course of nature. 8. The statements of PW-1 Kali Bai and PW-3 Gendli Bai clearly establish the guilt of the accused Subu so far it relates to the fact of causing fatal blow on the back side of the head (Occipital Region) and while Martialling the Prosecution evidence, this Court find that the appellant is guilty of committing the offence, although the entire evidence brought on record conclusively demonstrate that the accused has inflicted single blow on the neck of the deceased with no intention to kill him. 9. A comparative analysis of the statement of prosecution witnesses shows that all the witnesses have stated about the story of a loan of Rs. 400 or Rs. 200, being advanced by the accused to the deceased, but none of them have deposed that the accused and the deceased were having some inimical relationship and since the accused had advanced him certain amount of money, it demonstrate by itself that they were having cordial relationship in the past, otherwise the appellant would have not advanced him any money. The evidence further demonstrate that it was only on account of refusal of returning the money that the appellant might have felt aggrieved at that point of time and in that spur of moment, he inflicted single blow on the neck of the deceased, which was also not found to be inflicted by the sharper edge of Falia, but was caused by the blunt side of the weapon, which clearly establish that there was no intention of appellant to kill Sukla. 10. 10. When a plain reading of section 299, Indian Penal Code is made it demonstrate that the intention and knowledge of an accused person has to be gathered from the facts of each case while evaluating his action, by which the death of a person is caused, for ascertaining the intention of causing fatal injury, which was likely to cause death or was inflicted with the knowledge that the act is likely to cause death. The Supreme Court while dealing with an identical facts situation has analyzed the scope of the application of three components of section 299 in a case reported as (2006) 12 SCC 213, Arun Nivalaji More vs. State of Maharashtra where the Court observed as follows in para 14 of the judgment. "(14) If the offence is such which is covered by any one of the clause enumerated above but does not fall within the ambit of clause firstly to fourthly to section 300, Indian Penal Code it will not be Murder and the offender would not be liable to be convicted under section 302, Indian Penal Code. In such a case if the offence is such which is covered by clause (i) and (ii) mentioned above the offender would be liable to be convicted under section 302 (Part-2) Indian Penal Code as it uses the expression "if the act by which the death is caused is done with the intention of causing death or of causing such fatal injury as is likely to cause death where intention is the dominant factor. Further, if the offence is such which is covered by 'clause (iii)' mentioned above the offender would be liable to be convicted under section 304 (Part-2) Indian Penal Code because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is dominant factor." 11. The Supreme Court in its other judgment reported as (2006) 9 SCC 678 , Raj Pal vs. State of Haryana has examined the scope of sections 299 and 300 and while observing the distinct feature of the "mens rea" with the element of intention and knowledge had observed that the knowledge on the part of the offender must be of the highest degree of probability and the act having been committed by the offender should be without any excuse for incurring the risk of causing death or such injury, because some times the facts are so intertwined that it may not be convenient to give a separate and clear treatment to the matters involved in the subsequent clauses and/or exceptions of section 300. 12. In a recent judgment of the Supreme Court reported as (2010) 1 SCC 123 , Naimuddin vs. State of West Bengal, the Supreme Court has observed that a conviction under section 302/149, Indian Penal Code cannot be sustained because no intention to commit Murder can be attributed to the assailant, because he was having no intention to cause Murder of the deceased, but he was certainly having the knowledge to commit the Murder and in this view of the matter the Supreme Court has altered the conviction from section 302/149, Indian Penal Code to section 304 (Part-2)/149, Indian Penal Code. 13. Therefore this Court is of the considered view that the offence would fall into the category of the offence described in section 304 (Part-2) Indian Penal Code and not under section 302, Indian Penal Code, because the appellant was not having an intention of causing death of deceased, although he was certainly aware of the consequence of using a deadly weapon (Falia) for causing injury on the vital part of the body of the deceased. 14. Therefore this Criminal Appeal preferred on behalf of the appellant is partly allowed. The judgment of conviction passed against the accused appellant under section 302 Indian Penal Code is altered and modified from section 302 Indian Penal Code to section 304 (Part-2) and he is sentenced to undergo an imprisonment of 10 years without any modification in the amount of fine, as imposed by the trial Court. 15. The judgment of conviction passed against the accused appellant under section 302 Indian Penal Code is altered and modified from section 302 Indian Penal Code to section 304 (Part-2) and he is sentenced to undergo an imprisonment of 10 years without any modification in the amount of fine, as imposed by the trial Court. 15. The Counsel for the appellant and the respondent submits that the appellant was arrested on Date 17-9-1999 and he is confined in the prison since that day, till today and as such the appellant has almost undergone a sentence of 10 years. Since this Court has imposed a sentence of 10 Years while altering the conviction from section 302, Indian Penal Code to section 304 (Part-2) Indian Penal Code, therefore the appellant shall be immediately released, in case he is not required for being detained in custody, in connection with some other Criminal Case. 16. With the aforesaid modifications this Appeal is partly allowed.