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2017 DIGILAW 1017 (MP)

Rajesh Kumar v. State of M. P.

2017-09-21

J.K.MAHESHWARI, J.P.GUPTA

body2017
JUDGMENT Gupta, J. -- 1. The appellant has preferred the present appeal being aggrieved by the impugned judgment dated 8.6.2006 passed by the Sessions Judge, Hoshangabad in S.T. No. 363/05 whereby he has been convicted under section 302 of IPC and sentenced to undergo life imprisonment and fine of Rs.1,000/-; in default of payment of fine, further six months additional imprisonment. 2. In brief, the relevant facts of the case are that on 19.7.2005 at about 2 O’clock in the night, Ashok Kumar (PW9), brother of the deceased Rambharos, informed the police that on 18.7.2005 he was at home situated at village Pawarkheda and his brother Rambharos (deceased) went to his field and did not come back till 9 O’clock in the night. At that time, his nephew (Bhanja) Mukesh came and told that there was a fight between the appellant and the deceased Rambharos and the appellant was having spade in his hand and Rambharos was beaten by the appellant with spade. Thereafter, Ashok Kumar and his father rushed towards the place of incident and took the appellant and the deceased at some distance and left them. When they were returning, the appellant again beaten the deceased Rambharos with spade. Narmada Prasad was also witnessing the incident but due to fear, they came at Tappar. After sometime, appellant came breathing to them and told that he has killed the deceased Rambharos and they go and give him water. Then, Ashok Kumar and his father went to see the deceased and found him lying down. Rambharos sustained injuries near eyes and legs and blood was oozing out. The appellant killed the deceased. On the basis of the information, a merg intimation bearing No. 29/05, Ex.P-11 was registered at the Police Station Babai, District Hoshangabad and FIR Ex.P-12 dated 19.7.2005 was registered at crime no. 234/05 for the offence under section 302 of the IPC against the appellant. Thereafter, the police summoned the witnesses and prepared Panchnama of the dead body of the deceased and the same was sent for post-mortem examination. During investigation, statements of the witnesses were recorded. Spot map was prepared. On the basis of memorandum of the appellant/ accused, a spade used in commission of the offence was seized. Thereafter, the police summoned the witnesses and prepared Panchnama of the dead body of the deceased and the same was sent for post-mortem examination. During investigation, statements of the witnesses were recorded. Spot map was prepared. On the basis of memorandum of the appellant/ accused, a spade used in commission of the offence was seized. After completing all due formalities, the police filed a charge sheet of the aforesaid offence adding section 302 of the IPC against the appellant/accused before the Court of CJM, Hoshangabad who on its turn, committed the case to the Court of Sessions for trial. 3. The learned trial Court framed charge for the offence under section 302 of the IPC against the appellant. The appellant/accused abjured his guilt and stated that he is innocent and pleaded for trial. 4. Learned trial Court after trial of the case and on the basis of the evidence and material came on record found the appellant/accused guilty of the offence under section 302 of IPC and sentenced him as per the impugned judgment. 5. Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellant has preferred this appeal. However, Shri Ankit Saxena, learned counsel has been appointed as Amicus Curiae to assist the Court on behalf of the appellant and it has been submitted that the finding of the learned trial Court is contrary to law. There is no eye witness of the incident. The case of the prosecution is based merely on the circumstantial evidence with regard to last seen of the appellant in the company of the deceased Rambharos and extra judicial confession of the accused/appellant. But, the aforesaid circumstances have not been proved beyond reasonable doubts by the prosecution. The testimony of the relevant witnesses are full of material discrepancies and the circumstances are not sufficient to prove the fact that no one other than the appellant/accused can cause the death of the deceased. Therefore, the benefit of doubt must be given to the accused. Apart from it, the incident had taken place in the circumstances categorically shows that the appellant had no intention to cause death of the deceased. The incident had taken place in the heat of passion suddenly without premeditation and without taking undue advantage and unusual manner. The appellant himself rushed to take water so that the deceased may recover consciousness. Apart from it, the incident had taken place in the circumstances categorically shows that the appellant had no intention to cause death of the deceased. The incident had taken place in the heat of passion suddenly without premeditation and without taking undue advantage and unusual manner. The appellant himself rushed to take water so that the deceased may recover consciousness. Therefore, at the most, the appellant may be convicted for the offence under section 304 Part-II of the IPC. Hence, it has been submitted that the appeal be allowed and the appellant be acquitted of the charge leveled against him. 6. Learned Panel Lawyer appearing for the respondent/State has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial Court is in accordance with law. Hence, the appeal be dismissed. 7. Having considered the rival contentions of both the parties and on perusal of the record, it is found that in this case it is not disputed that the death of the deceased was homicidal and the prosecution has proved the facts by the evidence of Autopsy Surgeon, Dr. Anand Choudhary (PW11) who has stated that on 19.7.2005 at 5 pm he conducted autopsy on the body of the deceased Rambharos and found following injuries : (i) Laceration on right cheek, size 10×4 cm, through and through (ii) Abrasions on left elbow having three in number size 5×1 cm. (iii) Laceration with fracture in occipital bone of skull size 10×1 cm. (iv) Fracture in left femur middle 1/2 . Further, he has opined that the cause of death was shock due to head injury excessive haemorrhage and damage to the vital organ. Duration of the death was 12 to 24 hours before autopsy. The testimony of the aforesaid Autopsy Surgeon is unchallenged and sufficient to establish that the death of the deceased was caused on account of the injuries sustained to him. Hence, the nature of the death was homicidal. 8. Now the crucial question is that whether the appellant had caused the aforesaid injuries to the deceased. The finding of the learned trial Court with regard to holding the appellant/accused guilty is based on the circumstantial evidence. Hence, the nature of the death was homicidal. 8. Now the crucial question is that whether the appellant had caused the aforesaid injuries to the deceased. The finding of the learned trial Court with regard to holding the appellant/accused guilty is based on the circumstantial evidence. With regard to appreciation of circumstantial evidence, the apex Court has laid down certain principles in the case of Sharad Birdhichand Sarda v. State of Maharashtra, [ (1984)4 SCC 116 ], which are reproduced here as under : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the light of the aforesaid principles, the evidence of this case is to be appreciated. 9. In the present case, the finding of the learned trial Court is based on the statement of Narmada Prasad (PW1) who at the time of incident was working in his agricultural field situated near the place of incident. Morsingh (PW5), his wife Shashi Bai (PW6) and his son Mukesh (PW7) who were residing in their agricultural field situated at some distance from the place of incident, have disclosed the fact in their statements that on the fateful night of the incident i.e. on 18.7.2005 near about 8 to 8:30 O’clock, the appellant and the deceased Rambharos were passing through the road situated near their field and they were quarrelling with regard to right on the land. On that moment, Morsingh (PW5) and his wife Shashi (PW6) made efforts to pacify them and asked them instead of doing quarrel, they should go to the father of Rambharos who would resolve the matter. Then, they proceeded towards home. On that moment, Morsingh (PW5) and his wife Shashi (PW6) made efforts to pacify them and asked them instead of doing quarrel, they should go to the father of Rambharos who would resolve the matter. Then, they proceeded towards home. Thereafter, after near about half an hour, the appellant came to the house of Morsingh and told that the deceased was unconscious and he needed water. Narmada Prasad (PW1) and Shashi (PW6) have stated in their statements that the appellant also disclosed that in the quarrel he had beaten the deceased and the deceased was asking for water. Thereafter, Mukesh (PW7) went towards the spot where the deceased was lying in unconscious condition. Soon thereafter, Mukesh (PW7) came back to his father Morsingh (PW5) and told that the deceased was lying in unconscious condition. Thereafter, Mukesh informed brother of the deceased namely Ashok Kumar (PW9). On getting information of the incident, Ashok Kumar (PW9) reached on the spot and found his brother Rambharos died and then Ashok Kumar (PW9) went to the police station Babai, District Hoshangabad and informed the police about the incident, on which, merg intimation vide Ex.P-11 and thereafter, FIR vide Ex.P-12 were recorded as stated by Ashok Kumar (PW9). This witness has further stated that thereafter the police came on spot and prepared spot map Ex.P-13. ASI M.P. Choukikar (PW4) has stated that on 19.7.2005 he recorded merg intimation Ex.P-11 and FIR Ex.P-12 on the basis of the information given by Ashok Kumar (PW9). 10. Sub Inspector L.D. Vaishnav (PW12) has stated that on 19.7.2005 in the process of investigation he went to the spot and prepared inquest report Ex.P-18 and prepared spot map Ex.P-13 and collected blood stained soil and simple soil from the spot and prepared seizure memo Ex.P-5. On the same day, the appellant/accused was arrested and prepared arrest memo Ex.P-8 and on interrogation the appellant/accused had disclosed that he hid the spade underneath lemon tree situated in front of the house of Morsingh and thereafter, on the instance of the appellant/accused, a blood stained spade was recovered on 20.7.2005 and memorandum of the appellant/ accused is Ex.P-2 and a blood stained spade was seized and prepared seizure memo Ex.P-5. Blood stained cloths wearing by the appellant were seized and prepared seizure memo Ex.P-4. A sealed packet, containing cloths of the deceased, was received from the Hospital and prepared seizure memo Ex.P-20. Blood stained cloths wearing by the appellant were seized and prepared seizure memo Ex.P-4. A sealed packet, containing cloths of the deceased, was received from the Hospital and prepared seizure memo Ex.P-20. All seized articles were sent to the FSL, Gwalior, for chemical examination through S. P. Hoshangabad vide letter dated 17.4.2006 and the copy whereof is Ex.P-22. During trial, the prosecution had also submitted FSL report which has been exhibited as Ex.P-23 and it only discloses that on the spade and cloths seized from the accused were having blood stained but origin of the blood has not been ascertained on account of “Disintegrated.” 11. On perusal of the record it is found that none of the prosecution witnesses have personal grudge with the appellant/accused. There is no iota of material to consider that any of the witnesses may lie with a view to falsely implicate the appellant and during cross-examination of the aforesaid witnesses and examination of the appellant under section 313 of CrPC,. no suggestion has been given that any of them was interested to falsely implicate him in the case. Narmada Prasad (PW1) is an independent witness have no relationship with the deceased and he has categorically supported the version of the other witnesses namely Morsingh (PW5), Shashi (PW6) and Mukesh (PW7) and their names also find place in the merg intimation Ex.P-11 and FIR Ex.P-12 which were lodged without any delay on the same night. From the evidence of the aforesaid witnesses it has been established beyond all reasonable doubts that on 18.7.2005 near about 8 O’clock the appellant and the deceased were seen together quarreling each other and thereafter, the deceased was found died within a hour and the appellant himself gave information about the scuffle took place with the deceased and beating the deceased and lying down of him in unconscious condition near field and asking for water. Thereafter, the deceased was seen lying down at the spot in injured condition and blood stained spade was recovered on the instance of the appellant and the appellant was also found wearing blood stained cloths but about them there is no explanation. 12. The circumstance of last seen of the appellant establishes the fact that time of seeing the appellant with the deceased lastly alive and the incident took place is close then the burden shifts to the appellant to explain it. 12. The circumstance of last seen of the appellant establishes the fact that time of seeing the appellant with the deceased lastly alive and the incident took place is close then the burden shifts to the appellant to explain it. But no explanation has been given. In such circumstances, the circumstance of last seen of the appellant in the company of the deceased is sufficient to hold the appellant guilty. Apart from it, in this case, the appellant’s conviction with regard to causing incident has been also proved. This is also sufficient to hold the appellant guilty for causing deadly injury to the deceased. 13. So far as the recovery of blood stained spoil, spade and cloths in absence of finding of human blood and group of blood matched with the deceased’s blood are not much significant but the recovery of blood stained cloths and spade strengthens the correctness of the prosecution story as they enhanced dignity of probability and truthfulness of the prosecution story. 14. In view of the aforesaid discussion, this Court has no hesitation to hold that the prosecution has succeeded to establish circumstantial evidence with regard to last seen and extra-judicial confession beyond reasonable doubt and both the circumstances are consistent only with hypothesis of the guilt of the accused. It cannot be explained on any other hypothesis except that the accused is guilty. In other words, the aforesaid circumstances do not leave any other reasonable ground to reach to a conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. 15. Learned counsel for the appellant with regard to appreciation of the evidence based on circumstantial evidence has placed reliance on judgments; Tarseem Kumar v. Delhi Administration, [1994 Supp (3) SCC 367]; State of M.P. v. Nisar, [ (2007)5 SCC 658 ] and Sangili alias Sanganathan v. State of Tamil Nadu, [ (2014)10 SCC 264 ], and submitted that the principles laid down in the case of Sharad Birdhichand Sarda (supra), have also been emphasized in these judgments and the same has been considered and in the light of the principles laid down for appreciation of the circumstantial evidence, the circumstances were not found sufficient to convict the accused persons in the cases. But, in view of the aforesaid discussion, the facts and circumstances of the present case are different from the facts and circumstances of the aforesaid judgments cited by learned counsel for the appellant. Hence, the conclusion of the aforesaid judgments cannot be followed and it is held that the appellant has caused deadly injuries to the deceased. 16. Now the question is whether the appellant should be held guilty of the offence under section 302 of the IPC or under section 304 of the IPC. In view of the facts and circumstances of the case, learned counsel for the appellant has contended that in this case the prosecution has failed to establish that the appellant assaulted the deceased with intention to cause his death or with intention to cause such injury which was sufficient to cause death in the ordinary course of nature. Hence, the appellant cannot be held guilty for commission of offence of murder. 17. In this regard, learned counsel for the appellant has placed reliance on a judgment of the apex Court in the case of State of Rajasthan v. Santosh Savita, [ (2013)12 SCC 663 ], in which it has been observed in paragraphs 20 and 21 which reads as under : “20. The only other question which remains to be decided in this case is whether the respondent should be held guilty of the offence under section 302, Indian Penal Code, or section 304 Indian Penal Code. A person could be held to be guilty of offence under section 302, Indian Penal Code, if he commits murder. The relevant portion of section 300, Indian Penal Code, which defines “murder” is extracted hereunder : 300. A person could be held to be guilty of offence under section 302, Indian Penal Code, if he commits murder. The relevant portion of section 300, Indian Penal Code, which defines “murder” is extracted hereunder : 300. Murder.-- Except in the case hereinafter expected, Culpable Homicide is Murder, if the act by which the death is caused is done with the intention of causing the death of the person, or Secondly - If it is done with the intention of causing such type of bodily injury as the offender knows to be likely to cause the death of the person to whom the harm of such injury is caused, or Thirdly- If it is done 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 Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause the death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 21. “Under first clause, if the act by which the death is caused is done with the intention of causing death, the act amounts to murder. Under the second clause, if the act is done 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, the act amounts to murder. Under the third clause, if the act is done 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, the act amounts to murder. In each of the three clauses, intention of cause death or to cause the bodily injury is an essential ingredient of the offence of murder. Under the fourth clause, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, he is said to have committed murder. Hence, under the fourth clause, knowledge of the act committed by the accused that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, is a necessary ingredient for the offence of murder.” 18. Learned counsel has also placed reliance on a judgment of the apex Court in the case of Surjit Sarkar v. State of West Bengal,[ (2013)2 SCC 146 ], in which it has been observed in para 64 which reads as under : 64. “Given the nature of injuries, it is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would, therefore, be ruled out. Nevertheless, the injuries were quite serious and inflicted by Surajit Sarkar on Gour Chandra Sarkar’s head with an iron rod, as stated by (PW8) Achintya Sarkar. We can surely credit Surajit Sarkar with the knowledge that if a person is hit with an iron rod on the head, then the act is likely to cause the death of the victim. That being so, in our opinion, it would be more appropriate to hold Surajit Sarkar guilty of an offence of culpable homicide not amounting to murder. Since we attribute to him the knowledge of his actions, he should be punished under the second part of section 304 of the IPC. 19. Learned counsel has further placed reliance on a judgment of the apex Court in the case of Nankaunoo v. State of Uttar Pradesh,[ (2016)3 SCC 317 ], in which it has been observed in paragraphs 11 and 12 which reads as under : 11. “Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The third clause of section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32 , para (12), this Court held as under : “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7). “7. “These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.” “The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The language of Clause Thirdly of section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.” 12. “The emphasis in clause three of section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.” 20. From the facts and circumstances of the present case it appears that at the time of incident the appellant did not assault the deceased with intention to kill him as after beating the deceased, the appellant himself came to the residence of Morsingh (PW5) and asked for giving water to the deceased so that he may recover consciousness. Dr. From the facts and circumstances of the present case it appears that at the time of incident the appellant did not assault the deceased with intention to kill him as after beating the deceased, the appellant himself came to the residence of Morsingh (PW5) and asked for giving water to the deceased so that he may recover consciousness. Dr. Anand Choudhary (PW11) Autopsy Surgeon, has not opined that the head injury was sufficient to cause death in ordinary course of nature and only one injury on head was on vital part which also indicates that intention of the appellant was not to kill the deceased. Apart from it, the incident had taken place on the spur of moment without any premeditation and without taking undue advantage or acting in any cruel manner or unusual manner. 21. Thus, in the aforesaid circumstances, in this case it does not appear that the appellant / accused had intention to cause death or such bodily injury to the deceased which was likely to cause his death. It can also not be inferred from the evidence and material on record that intention of the accused was causing such bodily injury to the deceased which would be sufficient in ordinary course of nature to cause death. However, at the same time it can be held that certainly while causing injury to the deceased, the appellant knew that by his act he is likely to cause death or by such bodily injury death is likely to be caused. In these circumstances, we are of the definite opinion that the act committed by the appellant/accused would come within the category of offence punishable under section 304 Part-II instead of 302 of the IPC. 22. In view of the foregoing discussion, we allow this appeal in part and set aside the judgment of conviction and order of sentence awarded by the trial Court to the appellant/accused for the offence under section 302 of the IPC and instead thereof, the appellant is convicted for the offence punishable under section 304 Part-II of the IPC and sentenced to undergo RI for 7 years. 23. On perusal of the record it appears that during trial the appellant has remained in jail from 20.7.2005 till 8.6.2006 and after passing of the impugned judgment from 8.6.2006 till 4.10.2006 and thereafter from 9.9.2015 till today. 23. On perusal of the record it appears that during trial the appellant has remained in jail from 20.7.2005 till 8.6.2006 and after passing of the impugned judgment from 8.6.2006 till 4.10.2006 and thereafter from 9.9.2015 till today. The period already undergone by the appellant in jail shall be set off in the sentence awarded by this Court. 24. A copy of this order be sent to the trial Court concerned for information and its compliance and also to the jail authority. 25. We also express our words of gratitude for the assistance rendered by Amicus Curiae.