Madhya Pradesh High Court
Purushottam vs The State Of Madhya Pradesh on 22 September, 2017
CRA-1751-2005
(PURUSHOTTAM Vs THE STATE OF MADHYA PRADESH)
22-09-2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
Case No. Cr.A. No.1751/2005
Purushottam and another
Parties Name Vs.
State of M.P. and others
Date of Judgment 22/09/17
Bench Constituted Single
Judgment delivered by Justice Sujoy Paul
Whether approved for
Yes
reporting
Appellants : Shri S.Mukherjee,Adv..
Name of counsels for
Respondents:Shri Ashutosh Tiwari,
parties
GA.
1. If fatal injury caused is sufficient
to cause death in the ordinary course
of nature and even if do not extend to
the intention of causing death, the
offence would be murder.
2. The difference between
âcommon intentionâ and
Law laid down
âsimilar intentionâ may be fine
but is real distinction and if it is over-
looked, it may lead to miscarriage of
justice. The prosecution has not
succeeded in proving that appellant
No.2 shared the âcommon
intentionâ with appellant No.1
Significant paragraph
Para-17, 21 and 22.
numbers
JUDGEMENT
(22.09.2017) Per : Sujoy Paul J :
In this appeal filed under section 374(2) of the Cr.P.C, the appellants have assailed the judgment passed by the learned Sessions Judge, Chhatarpur in S.T.No.145/04. The appellants were found guilty for committing offence under section 302/34 IPC and for this they are sentenced with RI for life with default stipulation. They are also found guilty for offence under section 324/34 IPC for which they are sentenced with RI for six months with default stipulation.
2. The case of the prosecution was that on 26.06.2004 at around 11.30 A.M, the complainant Rajendra Singh lodged a report in P.S. Badamalehra against the appellants stating that at around 10.00 A.M, he went to market to purchase vegetables. He reached back his home at around 11.00 A.M. He found that in front of his house, a quarrel is taking place between his mother and the appellants. Appellant No.1 stabbed his mother Laadkunwar on her stomach and on her neck. Appellant No.2 attacked Laadkunwar by sickle (Hasiya). As per FIR, the blow by sickle caused injury on her hand. During incident, Sunita, Ram Singh and other persons reached to the place. Deceased Laadkunwar was taken to the hospital. She died before reaching to the hospital.
3. During trial, Rajendra Singh, Son of deceased Laadkunwar entered the witness box as P.W.1 and narrated the same story which was reduced in writing in the shape of FIR. He deposed that appellant No.1 stabbed Laadkunwar by knife. She was stabbed on her stomach and neck. He further deposed that appellant No.2 used sickle and assaulted on the left hand of the deceased. In addition, he deposed that appellant No.1 attacked him also when he tried to save her mother. He sustained a knife injury near his left shoulder.
4. In addition, Sunita (P.W.3) daughter-in-law of deceased, Rajendra Sharma (P.W.4), Ram Singh (P.W.5) who reached at the place of incident also entered the witness box. Dr. K.P.Bhamoriya (P.W.8) deposed her statement and proved the postmortem report. On the basis of oral and documentary evidence, the court below opined that there are minor discrepancies in the statement of witnesses which will not have any material bearing on the outcome of the case. The main allegation is satisfactorily established. It is proved beyond doubt that the appellants, with common intention, murdered deceased Laadkunwar.
5. Shri S.Mukherjee, learned amicus curiae contended that the appellants were falsely implicated by the prosecution. He contended that the impugned judgment is based on the evidence of Rajendra Singh (P.W.1). The said witness was son of the deceased and on the basis of such interested witness, the appellants cannot be held guilty. For the same reason, he submits that the statement of Sunita (P.W.3) daughter-in-law of deceased cannot be a reason to hold the appellants guilty. It is submitted that Rajendra Singh (P.W.1) and Sunita (P.W.3) deposed that appellant No.1 stabbed deceased Laadkunwar thrice where as the report shows that there were seven knife injuries. Shri Mukherjee submits that as per spot-map (Nazri Naksha), there is no water tap and, therefore, the story of the prosecution is not trustworthy. Reliance is also placed on the forensic report which shows that on sickle, no blood stains were found. It is urged that on Exhibit `B' and `E', no blood stains were found. On Exhibit `D' (knife), sufficient blood was not found for the purpose of classification. It is also argued that the incident is the outcome of sudden quarrel and the prosecution failed to show any previous enmity and motive on the strength of which appellants could have been convicted under section 302 IPC.
6. Per contra, Shri Ashutosh Tiwari, learned Govt. Advocate supported the judgment. By taking this court to various depositions recorded by the court below, it is urged that the reasons given by the court below are based on credible evidence.
7. No other point is pressed by learned counsel for the parties.
8. We have heard the learned counsel for the parties at length and perused the record.
9. Rajendra Singh (P.W.1) specifically deposed that appellant No.1 stabbed her mother Laadkunwar on her vital parts. In postmortem report Ex.P/18, it was mentioned that there were seven wounds on various parts of the body of the deceased. True it is that there exist little discrepancy in number of blows and wounds as per statement of witnesses and postmortem report. In our view, this discrepancy is immaterial. We say so because the said variation is not sufficient to raise doubt on the stay of the prosecution. The prosecution witnesses categorically deposed the nature of incident and proved that appellant No.1 stabbed Laadkunwar on more than one occasion. The said narration of stabbing is supported by the medical evidence and deposition of the doctor who prepared the postmortem report.
10. It is equally true that Rajendra Singh (P.W.1) and Sunita (P.W.3) are relatives of the deceased but this fact alone is not sufficient to disbelieve their statements. Moreso, when Rajendra Singh (P.W.1) also sustained injury because of assault by appellant No.1. In AIR 1981 SC 1936 Khilaku Singh Vs. State of Rajasthan, the Apex Court opined that on the basis of contradictions between the deposition and medical report about number of wounds, the statement of eye-witnesses cannot be disbelieved. In AIR 1983 SC 680 Rana Pratap Singh Vs. State of Haryana, the Apex Court observed about human behaviour and opined that one single incident may have different reflections on different persons who have witnessed it. One may be spell bound while witnessing the incident whereas the other may shout for help whereas yet another person may run away from the place of incident. Thus there cannot be any straight jacket formula to determine the behaviour of witnesses. Thus, the contention of Shri Mukherjee that statement of Rajendra Singh (P.W.1) and Sunita (P.W.3) cannot be taken into account deserves to be rejected.
11. In spot-map, the place of incident has been shown. Even if, no water tap is described/ mentioned in the said map, it does not mean that the incident had not taken place. Moreso, when other oral and documentary evidence supports the case of the prosecution.
12. The forensic report shows that in Exhibit `D' (knife), blood stains were found. As per report such blood stains were not sufficient for the purpose of classification. However, with regard to sickle Exhibit `E', it is mentioned in the report that brown and rustic spots were found at every place of sickle. There is no clear finding about availability of blood stains on the sickle.
13. Dr. K.P.Bhamoriya (P.W.8) deposed that the cause of death of Laadkunwar was Syncope. She died because of excessive bleeding from her neck. All wounds are ante mortem. The defence could not demolish her statement during cross-examination.
14. In view of aforesaid, it is clearly established that appellant No.1 had stabbed deceased Laadkunwar on her vital parts including stomach and neck. This is trite law that 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. It is equally settled that 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.
15. 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 objective and inferential and has nothing to do with the intention of the offender. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (Virsa Singh (supra)p. 467, para 12) :-
2. "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 of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
The learned Judge explained the third ingredient in the following words : (Virsa Singh (supra) p-468 para-16):-
"16.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."
16. 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.
17. After considering the judgment of Virsa Singh (supra), in Satish Narayan Sawant Vs. State of Goa-(2009) 17 SCC 724, it was poignantly held as under :-
16. â20.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.â (Emphasis supplied) The aforesaid principles have been consistently followed by Courts in several decisions. Reference in this regard may be made to the decision of Apex 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; Shankar Narayan Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71; and Jagriti Devi v. State of H. P., (2009) 14 SCC 771.
18. In view of common string of principle laid down in catena of judgments mentioned hereinabove, we have no scintilla of doubt that appellant No.1 was rightly held guilty under section 302/34 and 324/34 of IPC by the court below.
19. So far appellant No.2 is concerned, as per statement of Rajendra Singh (P.W.1) and Sunita (P.W.3), he was also present at the time of incident and attacked the deceased with a sickle. It is relevant to mention that Rajendra Singh (P.W.1) in his deposition admitted that before the time of incident, on the same day a verbal altercation and exchange of heat had taken place between Laadkunwar and daughter of accused, namely, Gayatri. Gayatri slapped Laadkunwar. Thus in this background, the incident had taken place. Rajendra Singh (P.W.1) deposed that appellant No.2 used sickle and has given a blow to Laadkunwar on her left hand. Sunita (P.W.3) deposed that the said blow was on the right hand of Laadkunwar. A careful reading of statement of Rajendra Singh and Sunita shows that the incident of slapping aforesaid had taken place on the same day. Appellants No.1 and 2 than reached to the place of incident. Appellant No.1 stabbed Laadkunwar which resulted into her death. The court below opined that there was sufficient evidence to establish common intention of both the appellants. Despite giving a clear finding that as per FSL report, no blood stains are found in the seized weapon (sickle), the court below accepted the version of eye-witnesses. In addition, it is held that seizure of sickle was established by the prosecution and, therefore, the court below opined that both the appellants with common intention caused the incident which resulted into death of Laadkunwar.
20. We are not impressed with the aforesaid reasons given by the court below. This is trite law that mere recovery of weapon or preparation of a memorandum of seizure under section 27 of the Evidence Act does not mean that the said weapon was used in the incident. So far deposition of the prosecution witnesses are concerned, as per those statements also, it is clear that the subsequent incident had a previous background to the extent of incident of slapping narrated above.
21. The ancillary question which goes to the root of the matter in the aforesaid factual backdrop is whether it can be said that there was a common intention between both the appellants for causing aforesaid incident. The distinction between âcommon intentionâ and âsimilar intentionâ, which is real and substantial, is also not to be lost sight of. The common intention implies a prearranged plan but in a given case it may develop on the spur of the moment in the course of the commission of the offence. Such common intention which developed on the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between âcommon intentionâ and âsimilar intentionâ may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. {See:Suresh and another Vs. State of U.P-(2001) 3 SCC 673}.
This ratio decidendi is consistently followed by the Supreme Court in Balu Vs. State (UT of Pondicherry)-(2016) 15 SCC-471, State of Haryana Vs. Satender-(2014) 7 SCC-291, Raghbir Chand Vs. State of Punjab-(2013) 12 SCC 294, Shyamal Ghosh Vs. State of W.B.- (2012) 7 SCC 646, Satyavir Singh Rathi, ACP Vs. State- (2011) 6 SCC-1, Abdul Sayeed Vs. State of M.P-(2010) 10 SCC 259, Virendra Singh Vs. State of M.P- (2010) 8 SCC-407, Hanuman Prasad Vs. State of Rajasthan-(2009) 1 SCC-507, Jodhraj Singh Vs. State of Rajasthan-(2007) 15 SCC-294, Priya Patel Vs. State of M.P-(2006) 6 SCC-263, Bishna Vs. State of W.B.-(2005) 12 SCC-657, Dani Singh Vs. State of Bihar-(2004) 13 SCC-203, Parasa Raja Manikyala Rao Vs. State of A.P-(2003) 12 SCC-306, Babu Ram Vs. State of U.P-(2002) 6 SCC-518, Mithu Singh Vs. State of Punjab- (2001) 4 SCC-193.
22. If the facts of the present case are tested on the anvil of the said principle, in our view, the prosecution has not succeeded in proving that appellant No.2 shared the common intention with other accused/ appellant No.1. Appellant No.1 may be her husband and even if for the sake of argument, it is accepted that she used a sickle and caused an injury to the deceased, unless factum of availability of common intention is established, appellant No.2 cannot be held guilty for the offence under section 302/34 of the IPC. The reasons mentioned by the court below discussed hereinabove, in our considered view, do not establish the basis for arriving at a conclusion of existence of common intention. At best, it was a case of similar intention for appellant No.2.
23. In Hiralal Mallick Vs. State of Bihar- (1977) 4 SCC 44, the Apex Court opined as under :-
â6. When a crime is committed by the concerted action of a plurality of persons constructive liability implicates each participant, but the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances present, making a personalized approach with reference to each. Merely be- cause of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot, by hindsight reading, be meant to have had a murderous or kindred mens rea.â In Harjit Singh Vs. State of Punjab-(2002) 6 SCC-739, the Apex Court held as under :-
â38.Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test....â (Emphasis supplied)
24. At the cost of repetition, in our view, the act of appellant No.2 needs to be tested as per part played by her on the basis of circumstances present. No decision mechanically can be arrived at on the basis of fatal/ drastic outcome. In absence of establishing common intention, appellant No.2 cannot be held guilty under section 302/34 IPC.
25. In view of foregoing analysis, we are of the considered opinion that appellant No.2 was wrongly held guilty under section 302/34 IPC. She, at best, may be held guilty under section 324/34 IPC.
26. Consequently, the conviction and sentence inflicted by the learned trial Court on appellant No.1 Purushottam under Section 302 of IPC is hereby affirmed and confirmed. The conviction and sentence passed against him under section 324 read with section 34 of IPC, is set aside.
So far as appellant No.2 Smt. Bhumani is concerned, her appeal is partly allowed. She is acquitted for the charge of offence punishable under section 302 read with section 34 of IPC. Her conviction under section 324 of IPC is hereby maintained. She has already remained in custody or a period of more than seven months, therefore, she is convicted for offence punishable under section 324 of IPC and sentenced to undergo R.I for six months. As she had already undergone the period of sentence, so by giving the benefit under section 428 of Cr.P.C, she be released. Her bail bond shall stand discharged.
(SUJOY PAUL) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
MKL