Komal Prasad & Anr. vs The State Of M.P. on 14 December, 2017

[Cites 6, Cited by 1]

Madhya Pradesh High Court

Komal Prasad & Anr. vs The State Of M.P. on 14 December, 2017

This appeal has been filed by the appellants, being aggrieved by the judgment dated 17.08.1994, passed by Second Additional Sessions Judge, Mandla in S.T. No.116/1993, whereby the appellant No.1 has been found guilty for the offence under Section 323 of the Indian Penal Code and has 2 Cr.A. No.1088/1994 been sentenced to Rigorous imprisonment for one year with fine of Rs.500/- with a stipulation for two months simple imprisonment in case of default and appellant No.2 has been found guilty of the offence under Section 302 of the I.P.C. and has been sentenced to life imprisonment.

2. The prosecution case, in brief, is that on 21.05.1993, at about 6.30 P.M., while Munnalal (P.W.-

1), Sunil Kumar (P.W.-3) and Khemkaran (deceased) were returning home from the work. A verbal altercation ensued between appellant No.1 Komal Prasad and Munnanlal (P.W.-1), on account of crossing the barrier. It is alleged that appellant No.1 struck Munnalal (P.W.-1) on his head with a stick, causing simple injury to him. Khemkaran when tried to intervene and save Munnalal, appellant No.2 also came to the spot and grappled with deceased Khemkaran and took out a knife and stabbed him on the abdominal region, as a result of which, Khemkaran sustained grievous injuries and became unconscious.

The appellants then ran away. Khemkaran was admitted in District Hospital, Mandla on 21.05.1993, where after sometime, he succumbed to his injuries. 3 Cr.A. No.1088/1994

3. Report to this effect was lodged by injured Munnalal (P.W.-1) at 9.00 P.M. on 21.05.1993, which was registered at Crime No.244/93 and marked as Exhibit P-1. On the basis of FIR (Ex.P-1) the criminal law was set into motion. The appellants were arrested and on the basis of their disclosure statement, offending weapon 'knife' was seized.

4. Dr. Anoop Pradhan (P.W.-10), who initially examined Khemkaran has sated that his condition was serious. There was a 2" x 1" x 1" stab incised wound 5 cm below the naval region and the injury was grievous in nature. The postmortem examination of the body of the deceased was performed by Dr. P.K. Mitra (P.W.-11) at 12.15 P.M. on 22.05.1993

5. The postmortem report was submitted vide Ex.P-17, which noticed the following injuries on the body of the deceased:-

"Stab wound 1 x 2 cm present 3 inches below umbilicus oblique from above downward. Abdominal cavity is full of blood. Part of mesentery alongwith blood vessels cut."

6. The cause of death has been recorded as 4 Cr.A. No.1088/1994 haemorrhage stock due to huge internal bleeding as a result of injury. Dr. Anoop Pradhan (P.W.10) and Dr. P.K. Mitra (P.W.-11) have opined that the death is possible with such injury.

7. In order to establish its case, the prosecution mainly relied on the evidence of injured eye witness P.W.-1 Munnalal and the medical evidence including the deposition of P.W.-10 Dr. Anoop Pradhan and P.W.-11 Dr. P.K. Mitra. The appellants abjured the guilt. It was pleaded that during the course of grappling, the deceased sustained injuries with his own knife.

8. The trial Court placing reliance on the evidence of P.W.-1 Munnalal and evidence of P.W.-10 Dr. Anoop Pradhan and P.W.-11 Dr. P.K. Mitra and the postmortem report, found the accused persons guilty as charged and convicted and sentenced them aforesaid.

9. Shri Surendra Singh, learned Sr. Counsel in support of the appeal has urged that the occurrence took place on a sudden provocation on account of oral altercation. There was no intention or premeditation to 5 Cr.A. No.1088/1994 harm the deceased, hence the conviction as done is not correct. It is further submitted that in the facts and circumstances of the present case, Section 302 of the I.P.C. has no application and the appellant No.2 at the most would be charged under Section 304 Part-II of the I.P.C.

10. Shri Anubhav Jain, learned Govt. Advocate appearing for the respondent/State has submits that the trial Court has analysed the evidence in detail and has correctly held that the appellant No.2 guilty for the offences under Section 302 of the I.P.C. and the appellant No.1 under Section 323 of the I.P.C.

11. We have heard the learned counsel for the parties at length and perused the record. Learned Senior counsel has placed reliance on the testimony of injured eye witness Munnalal (P.W.-1) to show that the incident happened on spur of the moment and there was sudden altercation and grappling between appellant No.2 and deceased Khemkaran and there was no intention to cause death. In this grappling, the deceased got struck by the knife in the abdominal region and became unconscious. As per learned Senior Counsel, as there was no intention to cause 6 Cr.A. No.1088/1994 death and only a single injury was inflicted, the case would fall under Section 304-Part-II I.P.C. and not under Section 302 of the I.P.C.

12. In Laxman Vs. State of M.P (2006) 11 SCC 316, the Supreme Court while interpreting and analyzing the various clauses of Sections of 299 and 300 of the I.P.C. has referred to the observation made by Vivian Bose, J in the case of Virsa Singh Vs. State of Punjab AIR 1958 SC 465, hence:

15. These observations of Vivian Bose, J.

have become locus classicus. The test laid down by Virsa Singh's 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 Sec. 300 of the Indian Penal Code, 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 the injury that was intended to be inflicted.

16. Thus, according to the rule laid down in 7 Cr.A. No.1088/1994 Virsa Singh's case, even if the intention of 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 Sec. 300 of the Indian Penal Code clearly brings out this point.

13. On close scrutiny of the deposition of P.W.-1 Munnalal, it is revealed that verbal altercation ensued on account of going over the barrier. Appellant No.1 inflicted injury on the head of P.W.-1 Munnalal, who fell down. When deceased Khemkaran came to intervene and save P.W-1 Munnalal, appellants stopped and pushed him, as a result of which, he fell down in the culvert. Thereafter, though the deceased, who was unarmed, did not again grapple with or attack appellant No.2, he, on his own, took out a big knife which he was carrying with him and stabbed the deceased in the abdomen and ran away. The injured was taken to the hospital, where as per P.W.-8 Ramkumar, he succumbed to the injuries after two hours.

14. In view of the clear statement of P.W.-1 Munnalal that the fatal injury was inflicted, when the deceased fell down in the culvert and the severity and 8 Cr.A. No.1088/1994 intensity and the manner in which the stab injury was inflicted which resulting in cutting the mesentery and blood vessels, clearly establishes the intention of the appellant No.2 and that he must be treated to be fully in know of the consequences of his act including possible death and the medical evidence including the statement of Dr. Anoop Pradhan (P.W.-10) and Dr. P.K. Mitra (P.W.-11), who have clearly opined that the death is possible with such injury, Section 304-Part-II of the IPC has no application to the present set of facts.

15. Having considered all the relevant material and having noticed the fact that the intensity and severity of the injuries and the manner in which it was inflicted and in view of the seizure of the blood stained knife from appellant No.2, we are of the view that the trial Court has rightly held the appellant No.2 guilty of offence under Section 302 of the I.P.C. for committing the murder of Khemkaran and appellant No.1 under Section 323 of the I.P.C. for causing simple injury to Munnalal P.W.-1.

16. In view of the aforesaid, we do not find any illegality or perversity in the appreciation of the evidence made or finding of conviction recorded by the 9 Cr.A. No.1088/1994 trial Court.

17. However, looking to the fact that appellant No.1 is now 73 years of age and he has already served out about three months imprisonment, therefore it would not be proper to send him back to jail again. Appellant No.1 has been convicted under Section 323 of the I.P.C. and sentenced to rigorous imprisonment for one year and fine of Rs.500/-. Fine amount has already been deposited. His conviction under Section 323 of the I.P.C. is hereby maintained, but his sentence is reduced to the period already undergone by him.

18. The appeal, so far as it relates to appellant No.2 Dilip Kumar being meritless is accordingly dismissed and that of appellant No.1 Komal Prasad stands partly allowed.

19. Appellant No.2 is on bail. His bail bonds shall stand cancelled and he is directed to be taken into custody forthwith to undergo the remaining part of jail sentence.

             (R.S.Jha)                           (Nandita Dubey)
               JUDGE                                  JUDGE
            14/12/2017                            14/12/2017
gn

     Digitally signed by GEETHA NAIR
     Date: 2017.12.14 15:39:26 +05'30'

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Madhya Pradesh High Court