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Madhya Pradesh High Court · body

2012 DIGILAW 576 (MP)

PURAN v. STATE OF M. P.

2012-06-20

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
Judgement S.K. Gangele, J [1] This appeal under Section 374 of Cr.P.C. has been filed by the appellants being aggrieved by judgment dated 27 th April, 2012 passed by Second Additional Sessions Judge (Fast Track), Mungawali, Distt. Ashoknagar, in Sessions Trial No.38/2011, whereby they have been convicted & sentenced under Sections 302/34 and 323/34 of IPC. [2] The prosecution story in brief is that on 12.11.2010 in village Khutiya Bamori at Hanuman temple deceased and the appellants were gambling. After some time, Vijay Pal Singh also joined them. They gambled there upto 10 O' Clock in the night. Thereafter, they went to the field of Padam Singh Patel and started gambling there. At that place, they gambled upto 12 O'Clock in the night. During the aforesaid gambling, there was a quarrel between the appellants and the deceased and in that quarrel, appellant Puran inflicted a blow of lathi over the head of deceased Uttam. He became unconscious. Thereafter, he was brought to his house and some local treatment was given to him. Subsequently, he was taken to the hospital and on the way to the hospital, he died. During incident, appellants also scuffled with Vijay Pal Singh, due to which, he received some injuries over shoulder and back. The report of the incident was lodged at police Station, Mungawali, on 13.11.2010. The police registered the offence under Sections 302, 323, 34 of IPC and investigated the matter. The appellants were arrested on the same day on 13.11.2010 and they were tried for the offences under Sections 302/34 and 323/34 of IPC (for causing injuries to Vijay Pal Singh). The trial Court after recording of evidence, found that offences under Sections 302/34 and 323/34 of IPC are proved against the appellants and awarded life imprisonment besides fine of Rs.5,000/- with default stipulation for the offence under Section 302/34 of IPC and three months R.I. for the offence under Section 323/34 of IPC. [3] The learned counsel for the appellants has submitted that trial Court has committed an error of law in holding that offence under Section 302/34 of IPC has been made out against the appellants. He further submits that there is no evidence to prove the offence under Section 323/34 of IPC. Hence, the sentence awarded to the appellants is contrary to law. He further submits that there is no evidence to prove the offence under Section 323/34 of IPC. Hence, the sentence awarded to the appellants is contrary to law. In alternative, the learned counsel for the appellants has submitted that an offence under Section 335 of IPC can only be said to be made out against appellant-Puran. It is further submitted by learned counsel that fine amount has already been deposited by the appellants. [4] Contrary to submissions of learned counsel for the appellants, learned Public Prosecutor for the State has submitted that there is enough evidence against the appellants to convict them under Sections 302/34 and 323/34 of IPC and the trial Court has properly considered all the evidence and awarded proper sentence. Hence, the judgment of the trial Court is in accordance with law. [5] Vijay Pal Singh (PW-1), who is an eye-witness and was also accompanying the appellants and the deceased during incident, in his evidence deposed that at around 7 O'Clock in the evening the appellants and deceased Uttam had been gambling. He also joined them. All these persons had been gambling upto 10 O'Clock in the night and thereafter they went to the field of Padam Singh Patel where they gambled upto 12 O'Clock in the night. The appellants had won substantial amount in the gambling, hence, thereafter some fight was started between the appellants and the deceased and in the aforesaid fight, the appellants had beaten the deceased by lathi. He further deposed that he had also received some injuries because he had fallen over the stones. Thereafter, he called Pendar and Virendra Singh and when they reached there, the appellants fled from the spot. [6] Pendar (PW-2), who is the brother of the deceased, also deposed that the appellants were present on the spot and they were fleeing from the spot after seeing him. At that time, the deceased was unconscious and thereafter he took the deceased to Mungawali hospital where the doctor told him that the deceased had died. Rani Bai (PW-3), who is the wife of the deceased, told that Vijay Pal Singh (PW-1) had told her that appellants had beaten the deceased. The same facts have been deposed by Jayabai (PW-4) and Virendra (PW-5). [7] The Dr. Rani Bai (PW-3), who is the wife of the deceased, told that Vijay Pal Singh (PW-1) had told her that appellants had beaten the deceased. The same facts have been deposed by Jayabai (PW-4) and Virendra (PW-5). [7] The Dr. Himanshu Sharma (PW-10) in his deposition deposed that he had conducted the postmortem of the deceased and there was one contusion over the head of the deceased and there was fracture of bones of head over right and left ears of the body of the deceased. The brain was also damaged. He also deposed that he had examined Vijay Pal Singh (PW-1) and found two contusions over his body. [8] From the evidence of the doctor, it is clear that the deceased had received only one injury over his body and due to the fracture of skull, the deceased had died. Vijay Pal Singh (PW-1), who is an eyewitness and who was a party of gambling, clearly states that the appellants and the deceased had been gambling and at the end there was some quarrel took place and in the aforesaid quarrel, the appellants had inflicted injuries by lathi to the deceased. There is only one injury of lathi over the head of the deceased. A lathi was seized from appellant-Puran vide seizure memo Ex.P/9. Seizure was made on the basis of memorandum Ex.P/8. There is no seizure of lathi from another appellant-Kallu. Kishan Singh (PW-9) has admitted his signature over Ex.P/8 and Ex.P/9. From the aforesaid evidence, it can be held that appellant-Puran had a lathi and he inflicted lathi blow over the head of the deceased which caused his death. There is no evidence against appellant-Kallu. [9] The Hon'ble Supreme Court in Laxmichand alias Balbutya v. State of Maharashtra, 2011 2 SCC 128 has held as under in regard to conviction of the accused if there is only one blow and which was caused during quarrel :- "17. There is no evidence against appellant-Kallu. [9] The Hon'ble Supreme Court in Laxmichand alias Balbutya v. State of Maharashtra, 2011 2 SCC 128 has held as under in regard to conviction of the accused if there is only one blow and which was caused during quarrel :- "17. Coming to the argument that instead of convicting the accused for culpable homicide amounting to murder, his case would fall in the category of culpable homicide not amounting to murder as even according to the prosecution one blow alone was caused by the accused that too in a quarrel, we have already pointed out and it is clear from the evidence of PWs 3 and 4 eyewitnesses that prior to the incident, there was a quarrel between the accused and the deceased inside the house of the accused and the deceased consumed liquor and was adamant not to leave the house of the accused which necessitated the accused to drag him out of his house and inasmuch as the deceased still refused to accede to the request of the accused, he inflicted a blow on the head with the spade. As pointed out by the appellant-accused, he had no pre-plan or intention to kill the deceased and his main worry was to get the deceased out of his house, who had consumed excessive liquor. 18. Considering all these aspects, particularly, the conduct of the deceased in not leaving the house of the accused, he dragged him out of his house, put him on the road and assaulted him with a spade, we are of the view that the accused has no intention to kill the deceased. It is true that the blow given by the accused on the deceased was at the vital part because of which he was unconscious for seven days and ultimately succumbed to his injuries. However, as discussed earlier, the accused had no intention to commit the offence. 19. Considering all the materials and reasons, we feel that the commission of offence attributed to the appellantaccused would come under Section 304 Part II of the Penal Code. However, as discussed earlier, the accused had no intention to commit the offence. 19. Considering all the materials and reasons, we feel that the commission of offence attributed to the appellantaccused would come under Section 304 Part II of the Penal Code. Taking note of the fact that the incident had occurred in the year 1986 and the accused had no intention to kill the deceased but due to the reasons and circumstances stated above, we feel that the ends of justice would be met by awarding sentence of rigorous imprisonment for five years. The accused is entitled to have the benefit of deduction of the period already undergone." [10] The Hon'ble Supreme Court has further held as under in regard to murder and culpable homicide not amounting to murder in Rajinder v. State of Haryana, 2006 5 SCC 425 :- "15. The crucial question is as to which was the appropriate provision to be applied. In the scheme of IPC, culpable homicide is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 16. The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done Intention (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 17. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. 18. Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. 18. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words "bodily injury sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 19. The word "likely" in clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words "bodily injury sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 19. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Kalarimadathil Unni v. State of Kerala is an apt illustration of this point. 20. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly". Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 21. The ingredients of clause "Thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 3rdly'. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 22. The learned Judge explained the third ingredient in the following words (at AIR p. 468): "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion." 23. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case 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. 24. 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. 25. 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. 26. The above are only broad guidelines and not castiron imperatives. In most cases, their observance will facilitate the task of the court. 26. The above are only broad guidelines and not castiron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined 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 stages. 27. The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya, Abdul Waheed Khan v. State of A.P., Augustine Saldanha v. State of Karnataka and in Thangaiya v. State of T.N." [11] After applying the above-said principles of law laid down by the Hon'ble Supreme Court and the facts and circumstances of the present case, it is clear that only one blow was inflicted by appellant-Puran over the body of the deceased and that was during quarrel. There was no pre-intention or premeditation. The appellants and the deceased had been gambling and during that, the quarrel took place. In such circumstances, in our opinion, appellant-Puran can be held liable for committing an offence under Section 304 Part II of IPC. Appellant-Kallu cannot be held liable for committing the offence under Section 304 Part II of IPC, neither he can be held liable for committing the offence under Section 302 with the aid of Section 34 of IPC. The injured Vijay Pal Singh (PW-1) also received injuries and he deposed that he received those injuries because he had fallen over the stones. Hence, the conviction of the appellants under Section 323/34 of IPC is also not proper. [12] Consequently, the appeal of appellant No.2-Kallu is allowed. He is acquitted from the offences under Sections 302/34 and 323/34 of IPC. He is in jail, hence, it is directed that he be released forthwith if not required in any other case. Fine amount deposited by him be refunded to him. The appeal of appellant No.1-Puran is partly allowed. His conviction under Sections 302/34 and 323/34 of IPC is set aside and he is convicted under Section 304 Part II of IPC and awarded sentence of five years rigorous imprisonment with a fine of Rs.5,000/-.