Madhya Pradesh High Court
Vijay Singh vs State Of M.P. on 1 September, 2023
Author: Rohit Arya
Bench: Rohit Arya, Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH,
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL APPEAL NO. 194 of 2001.
BETWEEN :-
1. VIJAY SINGH S/O HAJARILAL BHEEL, AGED
20 YEARS, OCCUPATION : LABOUR, R/O
VILLAGE JHIRANYA, PS JAMNER DISTRICT
GUNA.
2. DHEERAP ALIAS DHIRAJ SINGH S/O
GOPILAL SOUDHYA, AGED 30 YEARS,
OCCUPATION: LABOUR, R/O VILLAGE
BADKHUA, PS CHACHODA DISTRICT GUNA.
3. NARAYAN SINGH S/O RAGHUANTH
SOUDHYA, AGED 32 YEARS, OCCUPATION:
LABOUR, R/O VILLAGE AMANPUR, PS
MUTHALIYA, DISTRICT RAJGARH.
.....APPELLANTS
(BY SHRI DEEPENDRA SINGH RAGHUVANSHI - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION JAMNER DISTRICT
GUNA (MADHYA PRADESH)
....RESPONDENT
(BY SHRI RAJESH SHUKLA - LEARNED ADDITIONAL ADVOCATE
GENERAL)
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Reserved on : 11.07.2023
Pronounced on : 01.09.2023
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2
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, Justice Sanjeev S Kalgaonkar pronounced
the following:
JUDGEMENT
1. This criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 is directed against the judgment dated 20.02.2001 passed by the Court of Additional Sessions Judge and Special Judge, Guna in Sessions Trial No.86/2000, whereby the appellants have been convicted under Section 302 read with section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.1000/- each with default stipulation. They have been also convicted for offence punishable under Section 201 read with section 34 of IPC and sentenced to three years RI with fine of Rs.200/- each with default stipulation.
2. The Prosecution story, in nutshell, may be stated as under-
On 07.12.1999 at 9:00 in the morning, Mehboob Ahmed Khan lodged a report at Police Chowki, Maksudangarh, District Guna to the effect that Kamta Prasad, partner of Nandu Brahmin informed them that yesterday about 6 PM in the evening, Dheerap, his friend, Vijaysingh Bheel and Bhura consumed liquor in a hut (tapri) near well of Nandu and as soon as they came out, Dheerap, his ally, Vijaysingh, and Ramcharan Bheel assaulted Bhura by wooden sticks (lathi) with intention to kill and threw his dead body somewhere. He went to the field of Nandu along with Karim Khan, where they were informed by Nandu that the dead body of Bhura was lying near the culvert (nallah). They went to the culvert and found that the dead body of Bhura was lying by the side of road with injuries on head and other parts of the body. It was further reported that Dheerap was usually seen with Nandu and there was dispute of deceased Bhura with Nandu over fencing the field. It was suspected that Dheerap Soundhya and 3 his friends killed Bhura at the instance of Nandu.
3. Death Intimation No.07 of 1999 was registered under Section 174 of Cr.P.C and later, it was converted into Original Death Case No.30 of 1999. After inquest, FIR in Crime No.49 of 1999 was registered at police outpost, Maksudangarh for offence punishable under Sections 302 and 201 read with section 34 of IPC. The matter was forwarded to Police Station, Jamner for registration of FIR where the same was registered at Crime No.203 of 1999 for offence punishable under Section 302 and 201/34 of IPC. After Panchnama of dead body, the same was forwarded for Postmortem examination vide Ex.P/19. Medical officer Dr. J.V.Singh (PW12), on post mortem examination, opined that the death of Bhura was caused by shock and hemorrhage due to rupture of enlarged spleen.
4. Accused Vijay Singh, Ramcharan, Dheerap alias Dhiraj Singh and Narayan Singh were arrested on 17.12.1999, 24.12.1999 and 06.01.2000 respectively and at their instance, woodan sticks lathis used in commission of offence were recovered. Blood stained soil, natural soil, clothes of deceased Bhura i.e. Pajama and Towel recovered from the spot, were sent for examination to FSL, Gwalior. Test identification parade was conducted wherein Kamta and Krishna identified accused Narayan Singh. According to the FSL report, blood was found on Blood stained soil Ex.A, Pajama C-1 and Towel C-2. The Police Station, Jamner, Distt. Guna submitted charge- sheet against accused Ramcharan, Vijay Singh, Dheerap alias Dhiraj Singh and Narayan Singh.
5. The charges under Sections 302/34 and 201/34 of IPC were framed against accused. Learned Sessions Judge, after Trial, passed the impugned judgment concluding that:-
1. The prosecution has been able to prove beyond reasonable doubt that appellant/accused Dheerap, Narayan and Vijay assaulted deceased Bhura with wooden sticks (lathi) and intentionally caused 4 his death by inflicting grievous injuries, therefore, they are guilty for the offence of murder; (para- 172 of the Judgment)
2. Prosecution has succeeded in proving the offence punishable under Section 302/34 of IPC against Dheerap, Narayan and Vijay beyond reasonable doubt but failed to prove the charges of offence punishable under Section 302/34 of IPC against co-accused Ramcharan as eye witnesses Kamta (PW14) and Krishna Bai (PW15) did not support the prosecution on his involvement in alleged offence. (para- 173 of the Judgment)
3. The prosecution has also succeeded in proving the offence punishable under Section 201/34 of IPC against accused Dheerap, Narayan and Vijay beyond reasonable doubt that they shifted the dead body of deceased near the Barwali Puliya by the side of road in a Nallah from the scene of occurrence to create an impression that the murder was committed by unknown persons; (Paras -174 of the Judgment)
4. The prosecution has failed to prove offence punishable under Section 201 of IPC against Ramcharan as the material prosecution witnesses have not deposed that he has helped in shifting the dead body from the scene of occurrence to a different place;
6. The conviction and sentence of appellants Dheerap alias Dhiraj, Vijay and Narayan is assailed mainly on following grounds:-
1. The judgment and sentence given by the Trial Court is against the facts of the case and the principles for appreciation of evidence.
2. The trial Court has failed to consider contradictions in the statements of eye witnesses Kamta (PW-14) and Krishna Bai (PW-
15) recorded under Sections 161 and 164 of Cr.P.C and committed error in relying on the testimony of these witnesses;
3. Kamta (PW-14) and Krishna Bai (PW-15) have alleged 5 involvement of Ramcharan in their police statement, but they resiled from their earlier statement in Court. Learned Trial Court acquitted Ramcharan but committed error in convicting the appellants on same set of evidence.
4. Dr. J.V.Singh (PW-12) in his cross-examination states that all the injuries were simple in nature and the spleen may rupture due to high fever, therefore, the offence under Section 302 of IPC is not made out.
5. Learned trial Court failed to appreciate that no motive for the offence is proved by the prosecution. The story narrated by Kamta and Krishna Bai imputing motive was not available in their previous statements.
6. Identification of Narayan Singh was doubtful. Learned Trial Court committed error in convicting accused Narayan Singh in absence of proper identification.
7. Per contra, learned counsel for the State submitted that Learned Trial Court has given reasoned finding on the basis of evidence on record. The evidence on record clearly established involvement of all the accused in alleged offence, therefore, the appeal deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. Kamta Prasad (PW-14) and his sister Krishna Bai (PW-15) stated that they were residing at Village Nainwash in a temporary shed setup in the agricultural field of Nandu. Around 7'o clock in the evening. Nandu came at the well in agricultural field and told Dheerap to call Bhura. Dheerap and Vijay Singh went to market and returned along with Bhura. They had brought liquor. Accused Dheerap, Vijay Singh and ally of Dheerap (later on identified as Narayan Singh) and Bhura consumed liquor. Thereafter, Dheerap said, let us have dinner, as Bhura stood up and came out of temporary shed (taparia). Vijay Singh gave him two blows of wooden stick 6 (lathi), thereafter, Dheerap, Vijay Singh and ally of Dheerap (Narayan Singh) started beating Bhura with wooden sticks (lathi). Bhura fell down. Dheerap asked Kamta to provide him water. Kamta fed Bhura some water, thereafter, Bhura collapsed. All the three accused took Bhura behind the house and fled away.
10. Kamta Prasad (PW-14) and his sister Krishna Bai (PW-15) further stated that they went to Kalikhadan where they met Daulat Ram, Amar Singh and other persons and informed them about the incident. Daulat Ram, Amar Singh and other persons came to well with them, thereafter, all of them returned to Kalikhadan. Kamta Prasad (PW-14) and his sister Krishna Bai (PW-15) stated that they stayed at taparia of Amar Singh for night. In the morning, they went to house of Nandu, but they could not meet him, thereafter, they went to house of Kareem Khan (nephew of Bhura). They informed Kareem Khan that the accused had killed Bhura.
11. The aforementioned testimony of Kamta Prasad (PW-14) and his sister Krishna Bai (PW-15) remained unrebutted in cross-examination. No contradiction, inconsistency or improbability is available in their detailed cross-examination. There are minor inconsistencies caused due to rigours of cross-examination which do not deserve much importance.
12. Learned counsel for the defence attempted to create doubt on testimony of Kamta Prasad (PW-14) and Krishna Bai (PW-15) with regard to identification of the accused. Kamta Prasad (PW-14) and Krishna Bai (PW-15) were well acquainted with Dheerap and Vijay Singh because both of them were also working as labour in nearby agriculture fields. Kamta Prasad (PW-14) and Krishna Bai (PW-15) have duly identified accused Narayan Singh in TIP (Test Identification Parade) conducted by Executive Magistrate, Naib Tehsildar, Guna, Sanjeev Saxena (PW-17). Learned Trial Court, in paras 133 to 143 and 171 of the judgment, has extensively dealt with the exceptions taken by the defence with regard to conduct of TIP and 7 identification of the accused. The findings of learned Trial Court are well reasoned. Further, both the witnesses have properly identified accused Narayan Singh in doc identification at the trial. No interference in the findings of Trial Court with regard to identity of all the three accused is called for.
13. The sequence of events narrated by Kamta Prasad (PW-14) and Krishna Bai (PW-15) is corroborated by the evidence of Amar Singh (PW-
1), Daulat Singh (PW-2), Dhan Singh (PW-3), Mehboob Khan (PW-5), Kareem Khan (PW-6). All of these witnesses have stated that Kamta Prasad (PW-14) and Krishna Bai (PW-15) had come to tapariya of Amar Singh in kalikhadan around 10'o clock in the night and informed about killing of Bhura by the accused. Both of them were frightened, so they stayed at kalikhadan for the night and in the morning, they went to Maksudangarh to report the matter. Kamta Prasad and Krishna Bai had informed Kareem Khan in the morning around 7'o clock that his uncle Bhura is killed by the accused Dheerap, Vijay Singh and Narayan Singh.
14. Learned counsel for the appellants attempted in the despair to cull out inconsistencies in the statements of theses witnesses. There seems to be no inconsistency or contradiction in material particulars of the sequence of events. Minor inconsistency of the evidence, attributable to fragility of human memory, cannot be given much importance.
15. In case of Bhagwan JagannathMarkad v. State of Maharashtra, (2016) 10 SCC 537, it was held that-
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of 8 the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [GangadharBehera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93, para15 : 2003 SCC (Cri) 32]. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness".
16. Learned counsel for the appellants referring to Para No.8 of the statement of Krishna Bai (PW-15) and Para No.28 of the statement of Kamta Prasad (PW-14) contends that Hari Singh was present at the spot of incident. Further, Amar Singh (PW-1), Daulat Singh (PW-2), Dhan Singh (PW-3) have stated that Kamta Prasad and Krishna Bai were frightened and requesting to save them as they are trapped. Hari Singh (PW-4) has stated that he was returning to agricultural field of Nand Kishore after dinner. Lala Ji (Kamta) met him and requested to save him as he has killed someone. In cross-examination, Hari Singh states that Kamta Prasad and Krishna Bai were weeping and requesting to save Kamta as he has killed Bhura.
17. Learned counsel for the appellants contended that statement of Hari Singh whose presence on the spot of incident is admitted by Kamta and Krishna Bai, destroys the case of prosecution and establishes, the defence that Kamta had killed Bhura and thereafter, falsely implicated the accused.
18. Although, Kamta Prasad (PW-14) and Krishna Bai (PW-15) have 9 admitted presence of Hari Singh, but specifically denied that they had told to Hari Singh that Kamta had killed Bhura.
19. Hari Singh (PW-4) resiled from his previous statement. The prosecution, with the permission of the Court under Section 154 of the Evidence Act, confronted him with his previous statement i.e. statement recorded under Section 161 of Cr.P.C (Exhibit P-1). Hari Singh (PW-4) on being confronted with the contents of his previous statement (Exhibit P-1) denied that Dheerap, Vijay Singh, Ramcharan and Narayan met him on way, when he was going along with Daulat Ram and Dhan Singh to verify death of Bhura as informed by Kamta and Krishna Bai. The credibility of testimony of Bhura stands impeached under Section 155 of the Evidence Act, therefore, Hari Singh is not worthy of credence. It is apparent that he was won over by the accused, therefore, in order to safeguard the accused, he is making allegation against Kamta. Further, Hari Singh has never informed to police or any other witness that Kamta has admitted killing of Bhura. Therefore, his statement on extra-judicial confession of Kamta is unbelievable. On the basis of such evidence, no benefit inures to the defence of accused.
20. Kamta Prasad (PW-14) and Krishna Bai (PW-15) were frightened after witnessing killing of Bhura, therefore, they fled from the spot and reached nearby village of Kalikhadan and requested resident of Kalikhadan to save them. By no stretch of imagination, it can be considered, extra- judicial confession of Kamta. Both the witnesses have seen the incident of killing of Bhura near their house. Considering their socio-economic condition, their fear of getting implicated in the offence of murder may not be ruled out. In such a scenario, request of Kamta and Krishna Bai need to be understood in correct prospective, therefore, contention of learned counsel in this regard is devoid of merit. The finding in Para 163 of the judgment of Trial Court in this regard is well reasoned, therefore, no 10 interference is called for.
21. Dr. J.V.Singh (PW-12) Medical Officer of PHC, Jamner conducted autopsy of the dead body of Bhura on 07.12.1999. On post-mortem examination, Dr. Singh found following injuries on the body of Bhura:-
1. Contusion on right side of forehead measuring 4"X 1".
2. Contusion on inner aspect of left wrist measuring 3"X 1".
3. Contusion on front of right thigh in vertical position measuring 5"X 1".
4. Contusion on front of right thigh which is two inch below injury no.-3 measuring 3"X 1".
5. Lacerated wound in right leg in vertical position measuring 1"X 1/2" X 1/4".
6. Contusion on left side of back in vertical position measuring 5"X 1".
7. Contusion on left side of back measuring 3"X 1" which is two inch below of injury No.6.
8. Contusion on left side of abdomen measuring 5"X 1".
22. Dr. J.V. Singh (PW-12) stated that spleen of deceased was enlarged. He found a lacerated wound near the surface of spleen and blood clots on the spleen. Dr. Singh opined that Bhura Khan had died within 24 hours of the post-mortem examination due to shock caused by hemorrhage from ruptured spleen. Rest of the injuries were simple in nature.
23. Kamta Prasad (PW-14) and Krishna Bai (PW-15) attempted to involve Nandu in the offence by stating that Nandu had come to well in the agricultural field around evening and told Dheerap to call Bhura Khan and do whatever they wish to do. They have attempted to allege that accused Dheerap, Vijay Singh and Narayan had killed Bhura Khan on instigation of Nandu. But, such allegation is not available in their previous statement recorded under Section 161 of Cr.P.C. Therefore, allegation against Nandu appears to be an afterthought that deserves to be ignored. Consequently, no inference can be drawn that the accused intentionally caused death of Bhura 11 on instigation or direction of Nandu.
24. Kamta PW-14 and Krishna Bai PW-15 have resiled from previous statements with regard to involvement of Ramcharan in alleged offence. The learned Trial Court in Paras 151 to 158 extensively dealt with the evidence on record and concluded that prosecution has failed to prove involvement of Ramcharan in the alleged offence could not prove beyond doubt. Learned Trial Court in Paras 160 to 169 of the judgment dealt with the effect of acquittal of Ramcharan on the prosecution case and held that the case against Ramcharan is separable from other accused on the basis of evidence produced before the Court. Therefore, entire prosecution case cannot be discarded. The finding is well reasoned and based on the evidence on record.
25. It is trite law that doctrine "falsus in uno, falsus in omnibus" is not applicable for appreciation of evidence of rustic villagers. Therefore, evidence of Kamta Prasad (PW-14) and Krishna Bai (PW-15) which is otherwise trustworthy may not be disbelieved due to their failed attempt to involve Nandu in the alleged incident and also for the reason that they resiled from their earlier statements with regard to involvement of Ramcharan in alleged offence. In case of Narain v. State of M.P., (2004) 2 SCC 455, it was held that-
"8. As a rule of universal application, it cannot be said that when a portion of the prosecution evidence is discarded as unworthy of cre- dence, there cannot be any conviction. It is always open to the court to differentiate between an accused who has been convicted and those who have been acquitted. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri LJ 827] and Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697 : (2003) 5 Supreme 445] .) The maxim "falsus in uno, falsus in omnibus" is merely a rule of caution. As has been indicated by this Court in Sucha Singh case [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697 : (2003) 5 Supreme 445] in terms of felicitous metaphor, an attempt has to be made to separate the grain from the chaff, truth from falsehood. When the prosecution is able to establish its case by acceptable evidence, though in part, the accused can be convict- ed even if the co-accused have been acquitted on the ground that the 12 evidence led was not sufficient to fasten guilt on them. But where the position is such that the evidence is totally unreliable, and it will be impossible to separate the truth from falsehood to an extent that they are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made, conviction cannot be made".
26. Learned counsel for the appellants contends that prosecution has failed to prove motive for the offence, therefore, the prosecution story is doubtful. In case of Palani v. State of T.N. (2020) 16 SCC 401, it was observed that where the case of the prosecution is based on the evidence of eyewitnesses, the existence or non-existence or sufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case. When other evidence against the accused is clear and cogent, absence of motive or insufficiency of motive is of no importance.
27. Evidence of eye witness Kamta PW-14) and Krishna Bai PW-15 was found to be trustworthy. Their evidence stands corroborated in material particulars by evidence of Amar Singh (PW-1), Daulat Singh (PW-2), Dhan Singh PW-3, Mehboob Khan PW-3, Karim Khan (PW-6), therefore, lack of other corroborative evidence of motive or connectivity of weapons of the offence would not be sufficient to discard the prosecution case.
28. Learned trial Court has committed no mistake in holding (judgment para 150) that accused Dheerap, Vijay Singh and Narayan Singh assaulted Bhura with wooden sticks (lathis). The injuries caused to Bhura ultimately resulted in his death.
29. In case of Virsa Singh Vs. State of Punjab AIR 1958 SC 465, ingredients of Clause third of Section 300 have been succinctly explained 13 by Hon'ble Vivian Bose, J. as follows:-
"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."
30. The illustration (b) to Section 300 IPC reads as under-
"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death".
31. In this regard, observations of the Supreme Court in case of Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472 are also relied upon-
"11. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea 14 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 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.
12. 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 the 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 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 ...15
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". (Emphasis added)
32. It appears from the evidence of Kamta Prasad (PW-14) and Krishna Bai (PW-15) and other witnesses that accused Dheerap, Vijay Singh and Narayan had no previous enmity with the deceased Bhura. They were enjoying their evening. They consumed liquor together and about to start for the dinner. It goes to show that due to sudden altercation, Vijay Singh assaulted Bhura with wooden stick and other accused joined him. This fight appears to be sudden and without any pre-meditation. Dheerap had asked Kamta to feed water to injured Bhura. All the injuries, except one near the surface of spleen, were on non-vital part of the body and simple in nature. There is nothing on record to suggest that any of the accused was aware of enlargement of spleen of Bhura, therefore, intention to cause rupture of spleen cannot be attributed to the accused. No medical opinion was produced to the effect that the injuries were sufficient to cause death in the ordinary course of nature. The weapon wooden sticks (lathi) are commonly available near the agricultural field. The accused have not used any deadly weapons. Bhura died due to hemorrhage caused by rupture of enlarged spleen. Thus, all the ingredients of Exception 4 to Section 300 of IPC are made out. In view of aforementioned discussion, we are of considered opinion that culpable homicide of Bhura would not amount to murder. In these circumstances, only knowledge that the injuries inflicted were likely to cause death of Bhura, may be attributed to the accused, therefore, the conviction under Section 302 of IPC deserves to be altered to conviction under second part of Section 304 of IPC. The finding of learned Trial Court is amended with regard to holding the appellants/accused guilty for offence of murder into holding the appellants/accused guilty of culpable homicide not amounting to murder for causing death of Bhura by causing such bodily 16 injury as is likely to cause death.
33. Accordingly, the appeal is partly allowed on the point of finding of conviction under Section 302 of IPC and appellants are acquitted of the charge of offence of murder punishable under Section 302 of IPC. In exercise of power under Section 386 (b) of CrPC, Appellants/accused Vijay, Dheerap and Narayan Singh are convicted for offence punishable under second part of Section 304 IPC.
34. The appellants/accused had taken the dead body of Bhura from the place of incident which was later recovered from the distant place as per panchnama (Exhibit P/18). Further, they have concealed wooden sticks (weapons) after the incident, which were recovered at their instance. Learned Trial Court committed no error in holding the appellants/accused guilty of offence punishable under Section 201 of IPC. No exception is taken by the appellants in this regard. Therefore, the finding of conviction and sentence in this regard is affirmed.
35. The appellants Dheerap, Vijay Singh and Narayan Singh have suffered the jail incarceration (custody) as under:-
Name of appellant Custody during Trial Custody post conviction (sentence) Dheerap- 411 days 797 days Vijay Singh- 431 days 514 days Narayan Singh 411 days 281 days
36. The Appellants have suffered the rigor of Trial and appeal process. With the passage of time, bad memories of incident might have faded. Considering the overall circumstances of the case, socio-economic conditions of the parties, in our opinion, the ends of justice would be served by reducing their sentence to the period of custody already undergone. Thus, the sentences of imprisonment for the offence punishable under second part of section 304 IPC and offence punishable under Section 17 201/34 of IPC are reduced to the periods of custody already undergone which are to run concurrently. Accordingly, the sentences of imprisonment are amended.
37. No interference is required in the amount of fine imposed by the learned Trial Court. The appellants shall be released on deposit of fine if not deposited earlier.
(ROHIT ARYA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
Rks/Vijay/Avi.
AVINAS Digitally signed by AVINASH BHARGAV
DN: c=IN, o=HIGH COURT OF MADHYA
H
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
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BHARG
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Pradesh,
serialNumber=A6F9A14FA84FE88453F9
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A9E9022EF9E1, cn=AVINASH BHARGAV
AV
Date: 2023.09.01 14:27:01 +05'30'