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2010 DIGILAW 584 (MP)

KEL SINGH s/o DHAN SINGH v. STATE OF M. P.

2010-05-19

BRIJ KISHORE DUBE, S.L.KOCHAR

body2010
JUDGMENT : S. L. KOCHAR, J. 1. The appellant has preferred this appeal under section 374 of the Code of Criminal Procedure against the judgment dated 19-10-2005 of the learned Second Additional Sessions Judge, Kukshi in Sessions Trial No. 280/04 thereby convicting the appellant for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer further additional rigorous imprisonment for four months. 2. According to the prosecution case, appellant and his father Dhan Singh were residing separate and their houses were situated in front of the house of each other. On 23-7-2004, in the noon at 2.30 PM appellant was quarreling with his wife Rajubai. At that moment, his father Dhan Singh intervened and admonished the appellant not to quarrel. At that juncture appellant objected to the intervention by his father and all of a sudden, he picked up an axe and dealt blow which fell on right side of head of Dhan Singh resulting into fall on the ground and he died. The incident was witnessed by Setubai and on her cry, complainant Nar Singh came out of the house and saw that the appellant was running away with axe from the spot. Appellant was seen running by villagers Mangatiya and Sur Singh. On the same day in the evening at 6.15 PM, PW-1 Nar Singh-brother of the appellant went to the Police Station along with village Chowkidar Vesta and lodged the report ExP/1, recorded by the then Station House Officer Shri Shyamlal Singh Chauhan (PW-9). During the course of investigation, PW-9 Shri Chauhan prepared the spot map Ex.P/ 12 and also effected seizure of blood stained and controlled earth through seizure memo Ex.P/13 from the spot. On completion of inquest inquiry Ex.P/15 dead body was sent for post-mortem examination and the same was conducted by PW-7 Dr. Pankaj Verma who also issued post-mortem report Ex.P/9. Appellant was arrested by PW-9 Shyamlal Singh Chauhan and on his interrogation, one axe and a shirt were seized. Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the case and on completion of investigation, filed charge-sheet against the appellant for commission of offence punishable under section 302 of the Indian Penal Code. 3. Appellant denied the charges and claimed for trial. Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the case and on completion of investigation, filed charge-sheet against the appellant for commission of offence punishable under section 302 of the Indian Penal Code. 3. Appellant denied the charges and claimed for trial. He has not examined any witness in defence. Learned trial Court, after examining the prosecution witnesses and hearing both the parties, found the prosecution case proved, convicted and sentenced the appellant as indicated hereinabove. 4. Learned counsel for the appellant has argued only one point viz. the offence at the most would fall under section 304 (Part-I) of the Indian Penal Code, because the incident was not premeditated and the deceased was assault when he intervened into the dispute/quarrel going on between the appellant and his wife in their own house. It is true that the deceased was the father of appellant and on his intervention in the quarrel going on between the appellant and his wife, the appellant lost his mental balance and dealt a solitary blow without aiming at any particular part of the body. It was unfortunate that the same fell on vulnerable part of the body and the deceased died because of the same injury as proved by PW-7 Dr. Pankaj Verma. There is no dispute that the deceased sustained only one incised wound on jaw and right ear because of which major blood vessels of jaw and respiratory system were cut as well as there was fracture of mandible bone. In the opinion of Dr. Verma, deceased died because of heart and respiratory failure due to excessive bleeding and causing damage to the vital organ of the body. Dr. Verma found only one injury on the person of the deceased, It is also argued that the appellant had no motive to commit murder of his father and the incident occurred all of sudden. 5. On the other hand, learned counsel appearing for the State has supported the impugned judgment and order of sentence and the finding arrived at by the learned trial Court. 6. 5. On the other hand, learned counsel appearing for the State has supported the impugned judgment and order of sentence and the finding arrived at by the learned trial Court. 6. We have given our anxious consideration to the evidence available on record and the Supreme Court judgment passed in the case of Ezhilan Alias Eshim Arasan vs. Inspector of Police, (2006)10 SCC 614 in which the Apex Court has held that though the appellant had no intention of causing death, but he knew that the injuries caused by him were likely to cause death and the case is covered under section 300 (thirdly). In this case, the Supreme Court has convicted the appellant under section 304 (Part-I) of the Indian Penal Code and sentenced him to R.I. for ten years. In this case, the appellant was under the influence of liquor. Same is the situation in the instant case. 7. Wife of brother of the appellant (sister-in-law) Setubai (PW-2) has specifically deposed in para 5 that the appellant was under the influence of liquor and was not able to understand the difference in wrong or right. 8. Looking to the nature of evidence about causing of solitary injury by the appellant that too without any premeditation and pre-plan to his father when he intervened after reaching at his house at that juncture verbal altercation took place and all of a sudden appellant inflicted axe blow without aiming at any particular part of the body, but unfortunately same fell on the vital part i.e. face of the deceased, it cannot be said that the appellant had intentionally dealt axe blow for committing murder of his father. Supreme Court has taken into consideration the fact that the appellant was under the influence of liquor and without pre-meditation caused injuries, therefore, he had not caused any injury with any intention to commit murder, but he knew that the injuries caused by him were likely to cause death. 9. In the case at hand, there is no evidence of premeditation and appellant all of a sudden picked up an axe and on intervention by his father, he dealt an axe blow which resulted into his death. PW-2 Setubai, in para 5 last line, has specifically stated that the appellant was severely under the influence of liquor. 9. In the case at hand, there is no evidence of premeditation and appellant all of a sudden picked up an axe and on intervention by his father, he dealt an axe blow which resulted into his death. PW-2 Setubai, in para 5 last line, has specifically stated that the appellant was severely under the influence of liquor. In the case of Ezhilan (supra), the accused was under the influence of liquor and Supreme Court has considered this circumstance in favour of the accused and convicted him under section 304 (Part-I) of the Indian Penal Code. In para 6, the Supreme Court has observed as under :- "However, in our opinion the said provision has no application in this case as there is no finding that the offence was committed in the heat of passion. Furthermore, in our opinion, clause "Thirdly" to section 300, Indian Penal Code is squarely attracted in the instant case inasmuch as bodily injuries inflicted upon the deceased were such so as to lead to a conclusion that he knew that the injuries inflicted by him were likely to cause death. The number of injuries are two. They were on the vital parts of the body of the deceased and thus it cannot be said that the aforementioned injuries were not likely to cause death. But at the same time the appellant had no intention to cause death." 10. In the present case at hand also, appellant was in intoxicated condition and gave solitary blow without aiming at any particular part of the body, therefore, in the considered opinion of this Court clause "Thirdly" to section 300 of the Indian Penal Code would be attracted that the appellant knew that the injuries caused by him were likely to cause death, therefore, his act is squarely covered under section 300 (clause "Thirdly") and would be liable for commission of homicidal death not amounting to murder punishable under section 304 (Part-I) of the Indian Penal Code. 11. For the foregoing reasons, we allow this appeal in part. Conviction and sentence of the appellant as passed by the learned trial Court are hereby set aside. Instead thereof, he is held guilty of the offence punishable under section 304 Part-I) of the Indian Penal Code and is sentenced to undergo R.I. for 10 (TEN) years and fine of Rs. For the foregoing reasons, we allow this appeal in part. Conviction and sentence of the appellant as passed by the learned trial Court are hereby set aside. Instead thereof, he is held guilty of the offence punishable under section 304 Part-I) of the Indian Penal Code and is sentenced to undergo R.I. for 10 (TEN) years and fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for four months. 12. Office is directed to send a copy of this judgment to the trial Court together with its record for compliance in due course.