Madhya Pradesh High Court
Udham Singh vs State Of M.P. on 31 January, 2018
THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
Division Bench:
(Rajendra Mahajan and Ashok Kumar Joshi, J.J.)
CRIMINAL APPEAL No.526 of 2010
Udham Singh S/o Leem Singh, aged
about 27 years, R/o Bahukhedi under
Police Station Kumbhraj district Guna
(M.P.). Appellant
Versus
State of M.P. through Police Station
Kumbhraj district Guna (M.P.).
Respondent
For appellant :- Shri A.K. Jain, learned counsel.
For respondent :- Shri Devendra Choubey, learned Public
/State. Prosecutor.
JUDGEMENT
(Pronounced on the 31st day of January, 2018) Per: RAJENDRA MAHAJAN, J.
Appellant Udham Singh has, in this appeal, called in question the legality and correctness of the judgment and order dated 21.04.2009 passed by the Additional Sessions Judge Chachoda district Guna in Sessions Trial No.278/2008, 2 Cr.A. No.526/2010 whereby and whereunder he has been convicted under Section 302 of the IPC and sentenced thereunder to suffer rigorous imprisonment (for short RI) for life and to pay a fine of Rs.1,000/-(one thousand) in default thereof to further undergo RI for one year.
2. The prosecution case as unfolded in the course of trial, in brief, is given below:-
(2.1) On 22.05.2008 at about 1:00 am complainant Bharosi Bai (PW-1) brought her husband Randhir Singh in a coma on a tractor owned by Jagdish (PW-4) with Mishrilal (PW-3), Padam Singh (PW-5) and Shrilal (PW-2) to the Police Station Kumbhraj district Guna and she made an oral FIR to K.S. Bhadoriya (PW-
6), the SHO of Police Station, to the effect that she is a resident of village Bahukhedi. In the night of 21.05.2008 at about 11:00 pm, her husband Randhir Singh had gone to answer the call of nature in the open field.
Her husband did not return after a long while. Thereafter, she went out of her house in search of him. During the search, she saw her husband and appellant Udham Singh 3 Cr.A. No.526/2010 sitting on the Chabutara (platform) of the house of one Ramsingh Kushwah (not examined) of her village. There, she also saw and heard that the appellant forcing her husband to give him money for consumption of liquor. Upon his refusal, the appellant told him angrily that today he would not leave him alive. Thereafter, he lifted a big stone lying there and struck it with force 2 to 3 times on his head. As a result, he fell down and blood started oozing out of the injuries on his head. Moments later, he went into a coma. Upon his loud shrieks, Padam Singh, Shivnaraya (not examined) and other persons of the village came to the place of occurrence. Noticing the arrival of many persons, the appellant fled away from the scene of crime. K.S. Bhadoriya reduced the oral FIR of the complainant into writing being Ex.P-1, and he registered a case at Crime No.1430/2008 against the appellant for the offences punishable under Section 307 IPC.
(2.2) Thereafter, K.S. Bhadoriya sent Randhir 4 Cr.A. No.526/2010 Singh for medico-legal-examination and treatment to the Primary Health Centre Kumbhraj with an application Ex.P-8. The only doctor posted there was on leave. The Compounder present there gave a primary treatment to Randhir Singh and referred him for further treatment to the District Hospital Guna. Thereupon, Randhir Singh was taken in an ambulance from Kumbhraj to the District Hospital Guna in a state of unconsciousness. (2.3) On 22.05.2008 at about 3:35 am, the duty doctor P.M. Dhakad (PW-8) medico legally examined Randhir Singh and gave MLC report Ex.P-12. Later, he admitted Randhir Singh for treatment.
(2.4) On 22.05.2008 at about 4:10 am, Randhir Singh succumbed to his injuries.
(2.5) In the morning of 22.05.2008, K.S. Bhadoriya reached the hospital and issued safina form Ex.P-2, thereby inviting the witnesses for preparing Lash Panchnama of Randhir Singh. Thereafter, he prepared Lash Panchnama Ex.P-3 of him in the presence of Shrilal, 5 Cr.A. No.526/2010 Mishrilal, Jagdish and two others namely Purushottam and Roop Singh (who are not examined). Upon his application Ex.P-10, a team of two doctors namely Dr. P.K. Sharma (PW-7) and Dr. Manish Jain (not examined) conducted the post-mortem examination on the dead body of Randhir Singh on 22.05.2008. They jointly gave post-mortem report Ex.P-11. According to them, deceased Randhir Singh succumbs to injuries because of multiple fractures in his skull.
(2.6) K.S. Bhadoriya carried out the investigation in the case. On 22.05.2008 at about 3:00 pm he prepared spot map Ex.P-4 at the instance of Padam Singh and seized articles from the place occurrence as mentioned in seizure memo Ex.P-7 in the presence of Padam Singh and Shivnarayan (not examined). On 28.05.2008, he arrested the appellant. On various dates, he recorded the case diary statements of witnesses. He also sent the articles collected in the course of investigation for forensic examinations to the Regional 6 Cr.A. No.526/2010 Forensic Laboratory Gwalior. The laboratory sent its report which is not exhibited in the course of trial of the case.
(2.7) On completion of investigation, a report under Section 173(2) Cr.P.C. was presented by the police concerned before the Court of Jurisdictional Magistrate who, in turn, committed the case to the Court of Session vide the committal order dated 26.07.2008. Later, the case was entrusted to the Court of Additional Sessions Judge Chachoda for trial.
3. The learned ASJ framed the charge against the appellant for an offence punishable under Section 302 IPC. The appellant pleaded not guilty and opted to contest the trial. With this trial began, and the prosecution examined nine witnesses. On the conclusion of the prosecution evidence, incriminating circumstances and evidence appearing in the prosecution evidence were put to the appellant for eliciting explanation thereto as per the procedure mandated under Section 313 Cr.P.C. He flatly denied them and took a defence of false implication on account of old enmity. However, he did not adduce any evidence either documentary or oral in support of his 7 Cr.A. No.526/2010 defence.
4. Having analyzed and appreciated the evidence on record critically and meticulously in the impugned judgment, the learned ASJ has held the appellant guilty for having murdered the deceased and convicted him under Section 302 IPC and sentenced him thereunder as noted in para 1 of this judgment. Feeling aggrieved by the impugned verdict, the appellant approached this Court by way of this appeal under Section 374(2) Cr.P.C.
5. We heard arguments for learned counsel for the parties at length.
6. At the outset of the arguments, learned counsel for the appellant submitted that in view of the overwhelming ocular and medical evidence on record, he does not want to challenge the finding as recorded by learned ASJ that the appellant had caused injuries to the deceased by hitting him with a stone resulting into his death. However, he submitted that as per the FIR and evidence of the eye- witnesses the genesis of the offence was that the deceased refused to give the appellant money for consumption of liquor upon his demand. Feeling aggrieved thereby, he hit the deceased in his head with a stone lying at the place of occurrence. In this fact 8 Cr.A. No.526/2010 situation, the appellant had no intention to murder the deceased but he had certainly knowledge that the hitting of the stone in the head of the deceased might be caused his death. Consequently, the offence committed by the appellant falls under Section 304 (Part-II) IPC. Therefore, the learned ASJ has grossly erred in convicting the appellant under Section 302 IPC. He submitted that the appellant has been in prison in the case since 28.05.2008. As such, the appellant has so far suffered custodial jail sentence of 11 years and near about 5 months till the date of final arguments, and the appellant is ready to deposit the fine amount. He submitted that the appellant has no criminal record. He submitted that the ends of justice would be met if the appellant is sentenced under Section 304 (Part-II) IPC for the custodial period of sentence which he had already suffered. In support of the submissions, he placed reliance upon the decisions reported in Pappu Vs. State of M.P., (2006) 7 SCC 391, Thankachan and another Vs. State of Kerla, 2007 AIR SCW 7153, Kulesh Mondel Vs. State of West Bengal, 2007 AIR SCW 5880, Veeran and others Vs. State of M.P., AIR 2011 SCC 1655, Sarman and others Vs. State of M.P., AIR 1993 SC 400 and a few 9 Cr.A. No.526/2010 unreported decisions of this High Court.
7. In reply, learned counsel for the respondent/State after referring to the ocular and medical evidence on record extensively, he submitted that only fault of the deceased was that he refused to give the appellant money for consumption of the liquor. But, the said refusal does not amount to provocation on the part of the deceased. The appellant hit a stone with force on the head of the deceased, a vital part of the body, not once but 2 to 3 times, thereby causing multiple fractures in his skull. He submitted that if these factors are considered cumulatively, then it is crystal clear that the appellant hit the deceased with an intention to murder him. Resultantly, the acts of the appellant fall under Clause 3 of Section 300 IPC. Therefore, the learned ASJ has rightly convicted the appellant under Section 302 IPC. In that view of the matter, no interference with the impugned judgment is warranted by this Court. Consequently, this appeal being devoid of merits and substance is liable to be dismissed upholding the impugned judgment.
8. We have given our full anxious consideration on the rival submissions made by the learned counsel for the parties at the Bar and perused the entire material on 10 Cr.A. No.526/2010 record and the impugned judgment.
9. Although, the learned counsel for the appellant had not challenged in the course of arguments before us the findings of the learned ASJ as set out in para 6 of this judgment, we have carefully and meticulously read the evidence of main eye-witnesses namely complainant Bharosi Bai (PW-1) and Shrilal (PW-2) and Mishrilal (PW-
3) who saw the appellant fleeing away from the place of occurrence, and the medical evidence in the form of Dr. P.M. Dhakad (PW-8) and P.K. Sharma (PW-7). We find that the learned ASJ has given the correct findings that the appellant hit the deceased with a stone on his head. As a result of the cumulative effect of all the injuries on the head, he succumbed to death. Thus, he died of homicidal death.
10. The moot question for our consideration is whether the appellant committed murder or culpable homicide not amounting to murder of the deceased as defined under Section 299 and 300 IPC respectively. In Jagrati Devi Vs. State of H.P., (2010) 2 SCC (Cri) 245 = (2009) 14 SCC 771, the Supreme Court has elaborately and meticulously explained the distinction between culpable homicide and murder in paras 26 to 31 which are reproduced below for 11 Cr.A. No.526/2010 determining the aforestated question. (26) Section 299 and Section 300 IPC deal with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death;
(i) with the intention of causing death, or
(ii) with the intention of causing such bodily injury as is likely to cause death, or
(iii) with the knowledge that such act is likely to cause death.
A bare reading of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. (27) Section 300 IPC, however, deals with murder, although there is no clear definition of murder provided in 12 Cr.A. No.526/2010 Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa.
(28) Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of the Supreme Court.
(29) In the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Supreme Court observed as follows:
"12. In the scheme of the Penal Code, 'culpable homicides' is genus and 'murder' its species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable 13 Cr.A. No.526/2010 homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest 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."
(30) Placing strong reliance on the aforesaid decision, the Supreme Court in the case of Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175, observed as follows:
"13. 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 14 Cr.A. No.526/2010 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.
14. 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 15 Cr.A. No.526/2010 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' 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 degree 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 probable 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.16 Cr.A. No.526/2010
15. 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. Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
16. In Virsa Singh v. State of Punjab, AIR 1958 SC 465, 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'. 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 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 17 Cr.A. No.526/2010 objective and inferential and has nothing to do with the intention of the offender.
17. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows in the case of Virsa Singh (supra).
"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
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.
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 18 Cr.A. No.526/2010 of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
18. The learned Judge explained the third ingredient in the following words in para 16 in the case of Virsa Singh (supra):
'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 19 Cr.A. No.526/2010 circumstances warrant an opposite conclusion.'
19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case (supra) 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.
20. Thus, according to the rule laid down in Virsa Singh case (supra) 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 20 Cr.A. No.526/2010 300 clearly brings out this point.
21. 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.
22. 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 intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
(31) The aforesaid principles have been consistently 21 Cr.A. No.526/2010 applied by the Supreme Court in several decisions. Reference in this regard may be made to the decision of the Supreme Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472; State of U. P. v. Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kerala, (2004) 12 SCC 269; and Shankar Narayan Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71.
11. The Supreme Court in following two decisions has laid down the broad guidelines to draw the intention of an accused in killing a person.
(1) Chahat Khan Vs. State of Haryana, (1972) 3 SCC 408.
"When an accused is causing an injury on a vital part, the intention to kill can certainly be attributed to him."
(2) Singapagy Anjajah Vs State of A.P., (2010) 9 SCC 799.
"Nobody can be entered into the mind of the accused, his intention has to be gathered, from weapon used, part of the body chosen for assault and nature of injury caused."
12. Now, we proceed to test on the aforestated legal 22 Cr.A. No.526/2010 principles the facts of the present case.
13. As per the contents of the FIR and the statement of complainant Bharosi Bai (PW-1), the wife of the deceased, the deceased had gone in the night of incident to answer the call of nature. While returning after the defecation, the appellant demanded money from the deceased for consumption of liquor. Upon his refusal, the appellant hit him 2 to 3 times with a big stone on his head. In this fact situation, we hold that the deceased had not given even a slightest provocation to the appellant to commit the alleged offence.
14. Dr. P.M. Dhakad (PW-8) has deposed that upon the medico-legal-examination of the deceased, when he was alive, he found following injuries on his person.
(i) A lacerated wound over left forehead of size 8cmX2cm bone deep.
(ii) A lacerated wound just over right eye of size 3X3 cm bone deep and the fracture of the bone is clearly visible.
(ii) A lacerated wound on the right temporal region of size 5cm.
This witness has deposed that the aforestated injuries were caused by a hard and blunt object within six 23 Cr.A. No.526/2010 hours before the beginning of medico-legal-examination by him and all the injuries were extremely dangerous to the life of the deceased. He flatly denied a suggestion given by the defence had the deceased been treated properly in Primary Health Centre Kumbhraj, his life would have been saved. He has proved in his evidence MLC report Ex.P-12.
15. Dr. P.K. Sharma (PW-7), who conducted the post- mortem examination with Dr. Manish Jain, on the dead body of the deceased, has corroborated the evidence of Dr. P.M. Dhakad. He has also stated that in the internal examination of the deceased dead body, he found multiple fractures in the frontal parital and temporal bones of the deceased skull, which are ante-mortem in nature and which sent him in a coma within moments and thereafter causing his death. He has proved in his evidence deceased post-mortem report Ex.P-10.
16. Upon the perusal of the evidence appearing in the cross-examination of both the doctors, we find that there is nothing to discredit their evidence and opinion.
17. From the aforesaid critical analysis of evidence, we hold that it is proved beyond the reasonable doubt that the appellant hit the deceased without any provocation on 24 Cr.A. No.526/2010 his head with a stone not once but 2-3 times and caused multiple fractures in his skull with an intention to murder him. Thus, the act of the appellant squarely falls under Clause (3) of Section 300 IPC and does not fall under Section 304 (Part-II) IPC as argued by learned counsel for the appellant. Consequently, we hold that the learned ASJ has rightly convicted and sentenced the appellant under Section 302 IPC.
18. The learned ASJ has imposed a fine of Rs.1,000/- (one thousand) upon the appellant and in default thereof RI for one year. In our considered opinion, the default jail sentence is highly excessive, therefore, we reduce the default jail sentence to RI for a period of one month from a period of one year.
19. For the forgoing reasons and discussions, we uphold the impugned judgment to the extent whereby the learned ASJ has awarded the appellant RI for life under Section 302 IPC while reducing the default jail sentence to RI for a period of one month from a period of one year. In the aforestated terms, this appeal is finally disposed of.
(Rajendra Mahajan) (Ashok Kumar Joshi)
Judge Judge
SS