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2018 DIGILAW 11 (MP)

Onkar @ Om Prakash v. State of M. P.

2018-01-03

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Gangele, J. -- 1. Appellant has filed this appeal against the judgment dated 24.8.1994 passed in S.T. No.85/1994. The trial Court held appellant guilty for commission of offence punishable under section 302 of IPC and awarded the sentence of life. 2. Prosecution story in brief is that accused-appellant was living with the wife of his younger brother Laxmi Bai along with her daughter Rinki aged about one year. On 16.2.1994 appellant came in drunken condition, he was quarrelling with Laxmi Bai, in that event he had thrown the girl on the floor. The girl was in the lap of her mother. Due to aforesaid act girl was died. The report of the incident was lodged at police station. Police conducted investigation and filed the charge sheet. Appellant abjured the guilt during trial. The Court held appellant guilty and awarded sentence of life. 3. Shri Anand Nayak and Shri D. D. Bhargava, learned counsel for the appellant have submitted that even if the evidence of prosecution is accepted as it is then the offence alleged to be committed by the appellant will fall under section 304-I of IPC and for that the appellant has already undergone near about ten years jail sentence including remissions and prayed for allowing the appeal up to the above extent. 4. Contrary to this Shri S. D. Khan, learned Government Advocate has submitted that the appellant applied sufficient force to kill the girl. The intention of the appellant was to kill the girl. Hence, the trial Court has awarded proper sentence to the appellant and prayed for dismissal of the appeal. 5. Ramkumar PW2 and Shyamabail PW3 are the eye-witnesses of the case. Ramkumar PW2 deposed that the accused was living in his house on rent along with Laxmi, who was the wife of his younger brother and one daughter Rinki. Rinki was born from the wedlock of Laxmi and younger brother of the appellant. In the month of February I was sitting in the Courtyard of my house and I had seen that quarrel was going on between appellant and his wife Laxmi and thereafter appellant snatched girl Rinki from the lap of Laxmi and thrown her on the floor due to which child was died on the spot. I lodged report of the incident at Police Station (Ex. P-2) and signed the same. I lodged report of the incident at Police Station (Ex. P-2) and signed the same. At that time Shyama Bai and Sushila Bai were also present. The appellant was in a drunken position. Police prepared spot map (Ex.P-5) and I signed the same. In his cross-examination he admitted the fact that when he called brother-in-law of the appellant and came there the appellant was unconscious and he was lying on the floor. 6. Shyama Bai (PW3) is neighbour of the appellant. She deposed that appellant was living on rent in the house of Tikaram. Appellant was quarreling with his wife in between quarrel he had taken Rinki from the lap of her mother and thrown on the ground due to which she died, at that time I was rolling Bidis. I had seen all the incident. 7. Mangal Singh (PW4) investigation officer deposed that Ramkumar lodged the report (Ex.P-2) at the Police Station. Thereafter, I prepared dead body Panchnama (Ex.P-4) and signed the same. I also prepared spot map (Ex.P-5) and signed the same. Appellant was arrested by arrest memo Ex.P-9. 8. PW1 G.C. Dubey is the Doctor. He deposed that I performed autopsy of the deceased on 17.2.1994. I noticed one lacerated wound size 2" x2" on the head and there was a contusion. On internal examination I noticed that there was a hematoma in temporal region and the deceased was died due to aforesaid head injury. 9. The incident was happened on 16.2.1994 at about 3:00 O'clock in the evening. FIR was lodged by Ramkumar (PW2) at around 5:15 O'clock. There is no other evidence produced by the prosecution except this. 10. From the evidence of PW2, PW3, FIR and evidence of Doctor PW1 this fact has been established that the deceased was died due to injury caused by the appellant. Now the question is that what offence has been committed by the appellant. 11. The Hon'ble apex Court in the case of Nankaunoo v. State of Uttar Pradesh [ (2016)3 SCC 317 ], has held as under in regard to difference between intention and motive : "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. 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. 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. 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 '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." 12. 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." 12. In the present case PW2 and PW3 both deposed that quarrel was going on between appellant and his wife and in that moment appellant had taken out the deceased Rinki from lap of Laxmi and thrown her on the ground, due to which she was died. Doctor PW1 deposed that he noticed a hematoma on the head of the deceased and cause of death was hematoma. The apex Court in the aforesaid judgment has held that 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. 13. In the present case if there was intention of the appellant to kill the deceased then straight away he would have kill the deceased, however, there is no such evidence. The evidence is that quarrel was going on between the appellant and Laxmi, who was living with the appellant as his wife and in that event the appellant had thrown the deceased on the floor after taking out the deceased from lap of Laxmi. Hence, in such circumstances in our opinion there was no intention of the appellant to kill the deceased. Therefore, the offence committed by the appellant would fall under section 304-I of IPC. Appellant was arrested on 16.2.1994 and he was granted suspension of sentence vide order dated 16.7.2002. He has already undergone near about ten years jail sentence including remission, it would be just and proper to award the sentence to the appellant as already undergone. 14. Appeal filed by the appellant is partly allowed. Conviction and sentence awarded by the trial Court is hereby set aside. Appellant is convicted for commission of offence punishable under section 304-I of IPC and he is awarded sentence as already undergone. Appellant is on bail. His bail bonds are discharged. Anand Nayak and D.D. Bhargava for appellant; S.D. Khan, Govermnment Advocate for respondent/State.