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2012 DIGILAW 1100 (MP)

Santosh v. State of M. P.

2012-11-01

M.C.GARG, P.K.JAISWAL

body2012
JUDGMENT Jaiswal, J. -- 1. The appellant has filed this appeal against the judgment of conviction and order dated 10.9.2004, passed by the 4th Additional Sessions Judge, Nahargarh, District Mandsaur in Sessions Trial No.114/2003, convicting the appellant under sections 302, 324 and 325 of IPC read with section 25 of Arms Act, 1959 and sentenced to undergo life imprisonment with fine of Rs.5,000/- under section 302 of IPC, one year’s RI with fine of Rs.500/- under section 324 of iPC and three years’ RI with fine of Rs.500/- under section 27 of Arms Act; in default of payment of fine he shall undergo RI for one year and two-two months respectively under above sections. 2. Facts and circumstances giving rise to this appeal are as follows : As per case of the prosecution, on 17.7.2003 at about 7 p.m. complainant Dilip (PW1) was in his court-yard, at that relevant point of time, appellant Santosh started removing the angles wherein barbered wire of Laxminarayan Teli was affixed. Laxminarayan (since deceased) asked him not to remove the angles. On this, Santosh, who was at that relevant point of time, armed with Axe, his father Laxminarayan, who was also armed with Axe and his servant Kanhaiyalal armed with lathi, came there and started quarrelling with Laxminarayan Teli. When this dispute was going on, Santosh ran away to his hut, brought sword from there and gave first blow on his left hand of the Laxminarayan, due to which his left jaw was amputated from wrist level. Thereafter, he gave second blow over left side of his neck below mandible, due to which he fell down. On seeing this, injured son Kamal (PW4) came there and tried to save his father. Appellant Santosh inflicted sword blow on his right hand, due to which he sustained injury. At the time of occurrence Suresh, Satyanarayan (PW3), Mohanlal and other persons of that locality were also present and they had witnessed the incident. After causing injuries all the three accused persons namely appellant Santosh, his father Laxminarayan Soni and his servant Kanhaiyalal Teli ran away from the spot. Injured Laxminarayan Teli was taken to Mandsaur Hospital, but his left jaw was lying on the place of occurrence. Injured Kamal was taken to Primary Health Centre, Nahargarh. The report was lodged by Dilip (PW1) to Police Station Nahargarh, on the basis of which the offence was registered. Injured Laxminarayan Teli was taken to Mandsaur Hospital, but his left jaw was lying on the place of occurrence. Injured Kamal was taken to Primary Health Centre, Nahargarh. The report was lodged by Dilip (PW1) to Police Station Nahargarh, on the basis of which the offence was registered. During investigation, the amputated jaw, plain and blood mixed earth and a wrist watch were seized vide seizure memo Ex.P-2 and prepared spot map vide Ex.P-3. In the meantime, Laxminarayan Teli died, therefore, in presence of the witnesses inquest report Ex.P-10 and trace map Ex.P-10 were prepared. Axe was seized from accused Kanhaiyalal and all the three accused persons were arrested and on the basis of memo of accused Santosh sword was seized from him. 3. After completion of the investigation, charge-sheet was filed against the appellant under sections 302, 324 and 323/34 of IPC along with two others before the Judicial Magistrate First Class, Sitamau, from where the case was committed to the Court of Sessions at Mandsaur, who in turn made over the case to the 4th Additional Sessions Judge, Mandsaur for trial. During trial, charge under sections 302, 302/34, 324 of IPC and section 25/27 of the Arms Act was framed against the accused persons. They abjured the guilt and pleaded not guilty. 4. It is not in dispute that at the relevant time civil suit in respect of the boundary dispute was pending between the parties. To prove its case as many as 16 witnesses were examined by the prosecution, whereas DW1 Kailash and DW2 Munna Khan were examined as defence witnesses. After appreciating the material available on record and considering the evidence of four eye-witnesses namely PW1 Dilip Kumar, PW2 Mohanlal, PW3 Satyanarayan and PW4 Kamal, the learned trial Court convicted appellant under sections 302, 324 and 325 of IPC read with section 25 of Arms Act, 1959 and sentenced as stated herein-above, but acquitted the other two accused persons namely Laxminarayan and Kanhaiyalal on the ground that there was no clinching evidence against them. 5. Shri Ashish Vyas, learned counsel for the appellant has submitted that the appellant has been wrongly convicted by the trial Court under section 302 of IPC. 5. Shri Ashish Vyas, learned counsel for the appellant has submitted that the appellant has been wrongly convicted by the trial Court under section 302 of IPC. His contention was that it is a case of sudden provocation and the incident took place at the spur of moment upon exchange of heated words between the parties, as the deceased was removing the angles of the barbered wire, on which dispute was going on between them from quite long time and at the relevant point of time, a civil suit was also pending. Looking to the conduct of the accused it clearly shows that he did not intend to kill the deceased and submitted that appellant-accused Santosh is liable to be convicted only under section 304(I) of IPC. 6. On the other hand, Shri R.S. Parmar, learned Panel Lawyer drew our attention to the statement of injured Kamal (PW4), son of the deceased and submitted that when the incident started at that time the appellant was having Axe in his hand. He immediately rushed to his hut and came back along with sword and started inflicting injuries to the deceased; first injury inflicted by him on his left hand and when his jaw was amputated from the wrist level, he gave 2nd blow to the deceased on his neck and when his son Kamal (PW4) came at the spot to save his father, he gave two sword blows to Kamal on his hand and thumb and, therefore, it cannot be said that the incident was not premeditated. He also drew our attention to paragraph 11 of the statement of PW3 Satyanarayan and submitted that 8 to 10 days prior to the date of incident similar incident had taken place between them in respect of barbered wire dispute and, therefore, it cannot be said that the incident was premeditated. He submitted that all the four eye-witnesses, including the injured witness, have very categorically deposed in their statement that the accused was armed with sword and inflicted two injuries to the deceased, which have been medically corroborated by the statement of Dr. S.K. Jain (PW8); the reason assigned by the trial Court is based on proper appreciation of evidence on record, no case for acquittal of the accused nor the accused appellant is liable to be convicted under section 304(I) of IPC. 7. S.K. Jain (PW8); the reason assigned by the trial Court is based on proper appreciation of evidence on record, no case for acquittal of the accused nor the accused appellant is liable to be convicted under section 304(I) of IPC. 7. We have heard the learned counsel for the parties and perused the record. 8. At the time of autopsy the following injuries were found on the body of deceased Laxminarayan : “1. Incised wound 14 cm x 8 cm over left side on neck below mandible going posteriorly upto below and posterior to ear slightly oblique higher posterior it has clean cut averted margin and has cut skin fascia muscle fibers and vessels and other structures are cut at this levels blood stains. 2. Cut incised wound over left wrist having amputated hand at wrist level injury size 9 cm x 6 cm wide over amputating carpel back and all structures cut here with skin retracted clean cut margin separated amputated hand present with body matches in injury also is six shape and is semi flexed blood stain.” So far as these injuries are concerned Dr. S.K. Jain (PW8) has clarified in his cross-examination that the deceased died due to external haemorrhage from injuries and time between death and post-mortem is within 12 to 24 hours. 9. Injured witness Kamal (PW4) deposed that the appellant was armed with sword and when the dispute regarding removal of angles was started with the deceased, at that time, he was having Axe and later on he ran away to his hut and came back with sword and started inflicting injuries to the deceased and, thereafter, to him. Upon the advice the deceased was taken to the hospital, where he was declared dead. He also admitted in his cross-examination that the place of occurrence was about 30-35 kms. away from the Civil Hospital, Mandsaur. Another witnesses namely Dilip Kumar (PW1), Mohanlal (PW2) and Satyanarayan (PW3) supported the statement of injured PW4. PW3 in paragraph 11 of his statement has very categorically stated that 10 to 12 days prior to the date of incident a dispute arose between the parties in respect of barbered wire boundary. 10. away from the Civil Hospital, Mandsaur. Another witnesses namely Dilip Kumar (PW1), Mohanlal (PW2) and Satyanarayan (PW3) supported the statement of injured PW4. PW3 in paragraph 11 of his statement has very categorically stated that 10 to 12 days prior to the date of incident a dispute arose between the parties in respect of barbered wire boundary. 10. The statement of above four eye-witnesses in respect of causing injuries by accused Laxminarayan on the neck of the deceased was disbelieved by the trial Court, because there was omission in their police statements (D-1 to D-4), the statements of eye-witnesses are reliable and they fully support the case of the prosecution. The decisions cited by the learned counsel for the appellant in the cases of (1) Bhimanna v. State of Karnataka [ AIR 2012 SC 3026 ]; (2) Nawaj v. State of West Bengal [ AIR 2012 SC 1951 ]; (3) Veeran and others v. State of M.P. [ AIR 2011 SC 1655 ]; (4) Gurdilal Singh and others v. State of Punjab [ AIR 2011 SC 840 ]; (5) Buddhud Singh v. State of Bihar [Cr.LR 2011 SC 519]; (6) Yomeshbhai P. Bhatt v. State of Gujarat [Cr.LR 2011 SC 551]; (7) Mithailal v. State of M.P. [1978 MPWN 301] and (8) Shyamprasad and others v. State of M.P., of this Court passed in Criminal Appeal No.388/04 are distinguishable; however, looking to the facts and circumstances of the case they are not applicable. 11. From the aforesaid facts and circumstances of the case it cannot be said that the appellant had no intention to cause fatal injuries to the deceased nor it can be said that there was no intention to cause the particular injuries which were sufficient in the ordinary course of nature to cause death of the deceased. From collective analysis and examination of the evidence on record it is clear that the appellant had motive to kill the deceased. Under these circumstances, we find it difficult to hold that the appellant is liable to be convicted only under section 304(I) of IPC. 12. A close look at the evidence of the said main witness makes it clear that when the dispute started Santosh was having Axe and, thereafter, he came with lethal weapon like sword to cause death of deceased Laxminarayan Teli. 12. A close look at the evidence of the said main witness makes it clear that when the dispute started Santosh was having Axe and, thereafter, he came with lethal weapon like sword to cause death of deceased Laxminarayan Teli. From the above evidence it cannot be said that the quarrel between them was not premeditated, as the incident took place due to heated arguments and altercations between them and could be termed as a result of the sudden grave provocation. The intention of the appellant was clear to cause death of the deceased, otherwise he could not have left the place of incident and brought the sword. The death of the deceased was homicidal in nature. 13. Having given our earnest consideration we think that it is a case where section 302 of IPC is attracted. The evidence of all the four eye-witnesses appears to be convincing and natural as they were present when the incident had taken place. Recovery of sword was also made from the possession of appellant Santosh. Thus, the analysis of the aforesaid evidence revels that it was Santosh, who had caused the fatal blow on the person of the deceased. 14. Also, fine distinction between section 299 and section 300 of IPC has been eloquently and beautifully carved out by Hon’ble Dr. Justice Arijit Pasayat in a recent judgment, after considering all the previous judgments of this Court. We may quote profitably the following paragraphs of the judgment reported in (2005)9 SCC 650 titled as Thangaiya v. State of Tamil Nadu : “17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh v. State of Punjab [AIR 1959 SC 465: 1958 SCR 1495 ], for the applicability of clause “thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause “thirdly” of section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied, i.e., (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to section 300 clearly brings out this point. 19. Clause (c) of section 299 and clause (4) of section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 20. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so interwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stage.” 15. From the evidence of doctors examined by the prosecution it is clear that PW4 had also sustained injury, which was caused by the appellant. Thus, the appellant is held guilty for commission of offence under sections 302 and 324 of IPC, together with section 25/27 of the Arms Act. Looking to the conduct of the appellant and the role played by him the instant case does not fall under any of exception of section 300 of IPC. 16. Thus, the appellant is held guilty for commission of offence under sections 302 and 324 of IPC, together with section 25/27 of the Arms Act. Looking to the conduct of the appellant and the role played by him the instant case does not fall under any of exception of section 300 of IPC. 16. In the result, the appeal filed by the appellant has no merit and is, accordingly, dismissed.