Madhya Pradesh High Court
Banti vs State Of M.P. on 28 March, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
The High Court Of Madhya Pradesh
Bench Gwalior
*****************
DB:- Hon. Shri Shri Justice G.S.Ahluwalia &
Hon. Shri Justice Rajeev Kumar Shrivastava
CRA 404 of 2010
Annudatt vs. State of MP
CRA 464 of 2010
Banti vs. State of MP
CRA 517 of 2010
Ashok Pal vs. State of MP
CRA 611 of 2010
Satish vs. State of MP
&
CRA 730 of 2010
Hemant Kushwah vs. State of MP
==============================
Shri Ravi Dwivedi, counsel for appellant- Annudatt in CRA 404
of 2010 & for appellant - Banti in CRA 464 of 2010, Shri Atul
Gupta, counsel for appellant- Satish in CRA 611 of 2010, Shri SS
Kushwah, counsel for appellant - Ashok Pal in CRA 517 of 2010
and Shri Mehmood Khan, counsel for appellant- Hemant
Kushwah in CRA 730 of 2010.
Shri CP Singh, counsel for the State in all criminal appeals.
==============================
Reserved on 16/03/2022
Whether approved for reporting ......../........
==============================
JUDGMENT
(Delivered on 28/03/2022) Per Rajeev Kumar Shrivastava, J:-
This common judgment shall also govern disposal of connected CRA 464 of 2010 Banti Vs. State of MP, CRA 517 of 2010 Ashok Pal vs. State of MP, CRA 611 of 2010 Satish Vs. State of MP, & CRA 730 of 2010 Hemant Kushwah Vs. State of MP. Since the matter in all the appeals arises from the common judgment of conviction and order of sentence dated 06/05/2010 2 passed by Second Additional Sessions Judge, Gwalior (MP) in ST No.57 of 2007, convicting all the appellants u/S. 302/149 of IPC and sentencing them to suffer imprisonment of life with fine of Rs. 2,000/- each and u/S. 148/49 of IPC, sentencing them to suffer one year RI with fine of Rs.1,000/ each and further, u/Ss. 25(1-b)(a) & 27 of the Arms Act convicting appellant Satish and sentencing him to suffer one year RI with fine of Rs.1,000/- respectively; with default stipulation and all the sentences have been directed to run concurrently, therefore, we have heard all the criminal appeals simultaneously. However, for ready reference as well as for sake of convenience, it would be condign to take facts and circumstances of Criminal Appeal 404 of 2010 (Annudatt vs. State of MP).
(2) Prosecution case, in short, is that deceased Satendra Yadav aged around 20 years, was a money-lender and complainant Chatur Singh Yadav is his uncle. On 30/09/2006, at about 03:30 pm, deceased Satendra Yadav received a call on his mobile from someone asking him to get the money collected. Thereafter, deceased by informing his mother, went towards Gwalior Fort for grazing his buffaloes. It is alleged that the deceased used to come back home by 06:00 in the evening. On the date of incident i.e. 30/09/2006 till the evening, the deceased did not return home.
Afterwards, the complainant with the help of family members of deceased, searched deceased Satendra Yadav and at last, they came to know from one Jitendra, who is the brother of deceased that accused Satish was talking to one Sonu Yadav at about 04:00 pm. In the night, when an intensive search was made, the deceased was found dead at Gwalior Fort and dead body of the deceased was found lying in the bushes. Complainant Chatur Singh Yadav extended his doubt that the deceased was killed due to money transaction and also extended his suspicion over accused Hemant Kushwah that he had taken Rs.12,000/- as loan 3 amount from the deceased and had also a suspicion over Sonu Yadav with whom the deceased was last seen. On receiving merg intimation Ex.P15A, Dehati Nalishi was recorded on the basis of which, criminal law was triggered and sent in motion. An inquest report was lodged u/S.174 of CrPC vide Ex.P8A and FIR vide Ex.P7 was registered for commission of offence u/S.302 IPC and thereafter, spot map was prepared and the dead body of deceased was recovered from Gwalior fort and panchnama of the dead body of deceased was prepared and sent it for postmortem. At the time of recovery of the dead body of deceased, gunshot injuries were found on the temporal region as well as back and chest of the deceased. Matter was investigated and during investigation, on 02/10/2006, a 315 bore country-made katta was seized from possession of accused Satish Yadav as well as a ''Katta'' from the possession of accused Ashok Pal and a knife was also seized from the possession of other co-accused Annudatt and thereafter, the same were sent to FSL. After completion of investigation and other formalities, police filed charge sheet before the Court of JMFC on 29/12/2006 and thereafter, case was committed to the Sessions Court from where it was received by trial Court, for trial.
(3) In order to bring home charges, the prosecution examined as many as eighteen witnesses and documents on record. In support of their defence, the appellants examined only one witness, namely, Kalyan Singh as DW1 so as to prove that they have false been implicated. All the accused persons abjured their guilty and pleaded complete innocence.
(4) The Trial Court, after appreciating and marshalling oral and documentary evidence as well as medical evidence placed on record, passed impugned judgment of conviction and sentence against the appellants as mentioned herein-above in paragraph 1 of this judgment. In this manner, these appeals have been filed by 4 appellants assailing the impugned judgment of conviction and order of sentence.
(5) It is the say of earned counsel for the appellants that there is no eye-witness to the incident and the case is based upon circumstantial evidence and case is lacking complete chain of circumstances and there is no direct evidence of connectivity of appellants in the alleged crime. It is further contended that Dehati Nalishi as well as FIR was lodged against unknown persons. Complainant Chatur Singh Yadav who lodged FIR was examined before the trial Court, has been declared hostile. From the evidence of prosecution witness Mohar Singh Baghel (PW7), it is clear that he had last seen the deceased alive in the company of appellants but he did not inform the family members of deceased for two-three days of the incident and after near around 17 days of the incident, he deposed about the incident in his statement recorded u/S.161 of CrPC, therefore, his evidence is not reliable. It is further contended that evidence of this witness is corroborated version of PW11 Sonu Yadav. It is contended that prosecution has examined Dinesh Yadav (PW12), who in his evidence, stated that he saw all accused persons coming from Gwalior Fort in the evening on the date of alleged incident and he had not seen the appellants of causing any injury to the deceased. It is further contended that there are material contractions and omissions in the statements of witnesses and out of five accused persons only Banti was identified before the Court. The Trial Court has not properly appreciated evidence brought before it. The statements of police witnesses were recorded with delay and no proper explanation has been given in that regard. It is further contended that there was no previous enmity between deceased and appellants. Since some of prosecution witnesses are close relatives of the deceased and despite that their evidence has not been scrutinized minutely, therefore, prosecution story reflects a 5 cooked-up story in order to falsely implicate the appellants for commission of said offence. Therefore, the entire case of prosecution rests upon heavy doubt and it is well-settled in law that suspicion, however, grave it may be, it cannot take place of strict proof. The Trial Curt has utterly failed to appreciate the evidence on record and has not applied its judicial discretion in accordance with law while passing the impugned judgment of conviction and sentence. Hence, it has been prayed that by allowing appeals, the impugned judgment of conviction and order of sentence be set aside and the appellants be acquitted from all charges.
(6) On the other hand, learned counsel for the State argued in support of the impugned judgment and submitted that evidence of prosecution witnesses is fully corroborated by medical and other evidence and, therefore, Trial Court did not err in convicting and sentencing the appellants for offences as mentioned above. Hence, prayed for dismissal of these appeals. (7) Having heard learned counsel for the parties and perused record.
(8) It would be necessary to dilate on the first question mentioned hereunder for determination of appeals is as to whether deceased Satendra died a homicidal death or not ? (9) Dr.J.N.Soni(PW3), in his statement deposed that on 01/10/2006 he was posted as Medical Officer in G.A. Group of Hospital Gwalior and at about 11-20 am dead, the body of deceased was brought to hospital by Constable Dayashankar, No.62 of Police Station Bahodapur and the dead body of deceased was identified by Constable and uncle of deceased, Hari Singh. On examination, it was found that injuries were ante- mortem in nature. Gunshot blast wound was present on left side face and forehead size 15 cm x 4 cm vertical at anterior aspect of ear. Rigor mortis were present all over the body of deceased.
6Maxilla bone of skull and right frontal region of brain were fractured and lacerated. There was an exist wound of 3 cm anterior and just above the right ear. One gunshot entry wound was found on the back of right side near mid-line of level of lumber one vertebra. One stab wound was present over the left side of chest near shoulder. One abrasion was present on the right elbow size 5x5 cm. Another abrasion of right angle of mandible size 4x3 cm was also present. As per opinion of the doctor, death of deceased was due to shock and hemorrhage as a result of head and thoracic-abdominal injuries and all injuries were caused by firearm from connect and close range and sharp penetrating object respectively. The injuries were sufficient to cause death of deceased individually and cumulatively in the ordinary course of nature. Death of deceased was homicidal in nature. Duration of death of deceased was within 6 to 24 hours since postmortem examination. The PM report is Ex.P9.
(10) It would be appropriate to throw light on the relevant provisions of Sections 299 and 300 of Indian Penal Code.
The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shivprasad. So, clause Secondly of Section 300 IPC will also not apply."
7The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under:-
''Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death"
occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death of the deceased in the ordinary course of nature. This is also borne out from illustration (c) to Section 300 IPC which is being reproduced below:-
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of deceased is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
(11) The scope and ambit of clause Thirdly of Section 300 IPC was considered by the Supreme Court in the decision in Virsa Singh Vs. State of Punjab AIR 1958 SC 465 and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear 8 blow and the injury sustained by the deceased was "a punctured wound 2"x =" transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 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. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
(12) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No.Appeal (Cri.) 1078-1079 of 2005), it 9 has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done
(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 the act is likely to cause death."
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor.
10However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not 11 intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
(13) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(14) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the 12 ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence.The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
(15) Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
(16) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;(i) an act with the intention to cause death; (ii) an act with the intention of causing 13 such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death. (17) Indian Penal Code recognizes two kinds of homicide :(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC).
(18) A bare perusal 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 the 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.
(19) There are three species of mens rea in culpable homicide(1) An intention to cause death; (2) An intention to cause a dangerous injury; (3) Knowledge that death is likely to happen.
(20) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical 14 evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
(21) In the scheme of Indian Penal Code, "Culpable homicide"
is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder. (22) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering "third" clause of Section 300 of IPC, it has been observed as under:-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
(23) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances 15 of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
(24) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat reported in (2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could 16 the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.'' (25) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with 17 care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section
302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."18
(26) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
(27) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits 19 intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under:
(SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled.
They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and
(iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
(28) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of 20 weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 :
1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires.
The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the 21 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. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question....
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
On perusal of the postmortem report Ex.P9, it is clear that the death of deceased was homicidal in nature.
22(29) The next question for determination is as to whether the appellants can be convicted for commission of murder of deceased Satendra with the aid of Section 149 of IPC or not ? (30) Section 149 of Indian Penal Code runs as under :-
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
(31) There are two essential elements covering the act under Section 149 of Indian Penal Code, which are as under:- (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.
(32) For recording a conclusion that a person is guilty of any offence under Section 149 of IPC, it must be proved that such person is a member of an "unlawful assembly" consisting of not less than five persons irrespective of the fact whether the identity of each one of the five persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the five enumerated objects specified under Section 141 of IPC.
(33) The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of overt acts committed by such individual members of the assembly is not permissible.
23(34) In the matter of Dani Singh v. State of Bihar [(2004) 13 SCC 203], the Hon'ble Apex Court has observed as under :-
"The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not 24 only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly."
(35) In the case of Mahadev Sharma v. State of Bihar [(1966) 1 SCR 18], the Hon'ble Apex Court has discussed about applicability of Section 149 of IPC and observed as under :-
"The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offenses under Sections 143 and 147 must always he present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed -separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code."
(36) It is relevant to mention here that if all the necessary ingredients are present in a case when charges were framed under Section 149 of IPC, each member of unlawful assembly shall be held liable. The condition precedent is that the prosecution proves the existence of unlawful assembly with a common object, which is the offence.
(37) In Kuldip Yadav vs. State of Bihar [(2011) 5 SCC 324], it is held that a clear finding regarding nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object 25 was unlawful, before recording a conviction under Section 149 of IPC. Foremost essential ingredient of Section 141 of IPC must be established.
(38) On perusal of evidence of Investigating Officer PW16 JP Bhatt, who had recorded statements of witnesses, PW12 Dinesh Yadav, PW13 Smt. Girja Devi (mother of deceased), PW8 Naresh Yadav and other witnesses, found that on the date of incident, appellants called the deceased on mobile phone to the place of occurrence and committed his murder over the dispute of money- lending.
(39) U/s.149 IPC, it is not at all necessary that every individual member of unlawful assembly could have himself participated in commission of offence. The result is that u/S. 149 a person might be liable for offence even though he himself did not actually join in perpetrating it nor was offence committed in his immediate presence. Thus, u/S. 149 a person may be liable for offence not only in the case where he himself does not participate in commission of offence but even in the case where offence is committed without his knowledge. If it is shown that person concerned was a member of unlawful assembly when offence was committed and offence in question was committed or was likely to be committed in prosecution of common object, the result or position is clear that it may be case in which a person might be guilty of offence u/S.149 though he himself had no intention to commit it or even unaware of its commission. The reason is that criminal liability u/S. 149 of IPC is determined not only by intention of various individual members constituting it but by common object of assembly as a whole. In the light of above law laid down by Hon'ble Apex Court, it is clear that appellants can be convicted u/S. 302 with the aid of Section 149. Therefore, the trial Court has rightly convicted and sentenced appellants under Section 302/149 IPC and the acts of appellants are also covered 26 by Sec.142 of IPC.
(40) So far as the next contention of appellants that the case is based on circumstantial evidence and there is no direct evidence to connect appellants in the crime and the chain of circumstances is also not complete is concerned, it would be in the interest of justice to consider law-governing case based on circumstantial evidence.
(41) In the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Hon'ble Apex Court has laid down five golden principles as under which constitute the "panchsheel" in respect of a case based on circumstantial evidence.
"(1) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused''. (42) The Hon'ble Apex Court in the matter of Padala Veera Reddy Vs. State of A.P. 1989 Supp (2) SCC 706 has held as under:-
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;27
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." (43) Tthe Hon'ble Apex Court in the matter of Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 has held as under :-
''26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. '' (44) The Supreme Court in the case of Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 has held as under:-
"4. ... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
(45) The Hon'ble Apex Court in the matter of Sunil Clifford 28 Daniel Vs. State of Punjab reported in (2012) 11 SCC 205 has held as under: -
''29. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] it was held by this Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (SCC p. 185, para 153) "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
... the circumstances concerned 'must' or 'should' and not 'may be' established. ...(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.'' (46) Circumstantial evidence of following character needs to be fully established as laid down by the Hon'ble Supreme Court in the case of Satish Nirankari Vs. State of Rajasthan (2017) 8 29 SCC 497 under:-
(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.'' (47) In the light of above law laid down by the Hon'ble Apex Court, it is needless to emphasize that what is required, is not the quantitative but qualitative, reliable and probable circumstances to complete chain connecting accused with alleged crime. In the case at hand as the prosecution has established appellants guilty beyond reasonable doubt on the basis of clear and cogent evidence, therefore, they are not entitled as of right to be acquitted.
(48) The next contention of the appellants that they cannot be convicted only on the basis of ''last seen theory'' because it is a weak piece of evidence and on the basis of this theory alone, the conviction cannot be affirmed. It is settled principle of law that ''last seen together'' itself would not be sufficient and prosecution has to complete chain of circumstances to bring home the guilt of accused.
(49) The Hon'ble Apex Court in the case of State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, has held as under:-
''23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon 30 him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.
24.There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.'' (50) In the present matter, when the appellants were lastly seen with the deceased just before his death or within a reasonable period of his death and no other person could intervene between them, then presumption can be taken that the persons like accused who were lastly seen with the deceased are the authors of crime. PW7 Mohar Singh Baghel, in his evidence, deposed that on 30/09/2006 while he was grazing goats near Dodapur Gate of Fort, at around 4:00- 05:00 pm, deceased was last seen in the company of all accused persons and all of them were talking each other. This witness deposed that all five accused persons along with deceased were going towards the Fort. After sometime, he heard some sound and all five accused persons came out of Fort except the deceased. This witness further deposed that on the next day, he came to know that dead body of deceased was 31 recovered by police from the Fort. This witness further deposed that he gave information to the family members of deceased regarding seeing the deceased lastly with the accused. Therefore, conviction of the appellants is not only based on ''last seen theory'' but also there is something more establishing connectivity between the accused and the crime.
(51) So far as next contention of counsel for the appellants that there is a delay in recording statements of witnesses is concerned, it is apparent from Dehati Nalishi as well as FIR that police authorities after completion of necessary formalities recorded the statements of witnesses. Therefore, the delay of near about 17 days in recording statements of prosecution witnesses is not fatal to prosecution case. The Hon'ble Apex Court in the case of State of Himachaal Paradesh vs. Gian Chand AIR 2001 SC 2075 and Tara Chand and Others vs. State of Punjab AIR 1991 SC 63 has held that delay in lodging the FIR or recording the statements of the witnesses cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging FIR or recording the evidence of witnesses. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to prosecution case. However, if the delay is explained to the satisfaction of the Court, delay cannot by itself be a ground for disbelieving and discarding entire prosecution case.
(52) So far as the next contention of counsel for the appellants that the witnesses are related to the deceased and there are some contradictions and omissions in their statements is concerned, it is true that there are minor contradictions and omissions in the 32 evidence of witnesses, but in the opinion of this Court, they are not so grave or of any significant nature, rather they are trivial in nature and, therefore, on the basis of such contradictions and omissions, whole evidence of the witnesses, who are chance witnesses by seeing the deceased in the company of accused persons prior to recovery of dead body of deceased from the Fort, does not become unreliable.
(53) It is settled principle of law that merely because witnesses may be related to victim or deceased, their testimony may not be rejected. There is no legal canon that only unrelated witnesses shall be considered credible. On the contrary, we are of the view that it is not natural for related witnesses to implicate a person falsely leaving aside the actual culprit. It is pertinent to mention here that only interested or chance witnesses want to see the real culprit is brought to book. In this regard, Hon'ble Supreme Court in the matter of Jayabalan vs. UT of Pondicherry (2010) 1 SCC 199 has held as under:-
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
(54) So far as recovery of country-made pistol as well as katta from possession of accused in concerned, the Investigating Officer PW16- JP Bhatt in his deposition stated that on 02/10/2006 he had recorded memorandum of accused Satish Jatav in presence of witnesses vide Ex.P20 and seized a country- made pistol from the possession of accused Satish Jatav vide 33 seizure memo Ex.P21 and also recovered a Katta from the possession of accused Ashok Pal and thereafter, other articles were also seized by him and accused were arrested. During investigation, he had obtained a permission from the Magistrate concerned for registering offence under the Arms Act against accused. Therefore, it appears that murder of deceased was committed by using the said country-made pistol as well as Katta and learned trial Court, on the basis of material collected by police and on production of evidence before it, has rightly convicted and sentenced appellant accused Satish u/Ss. 25(1-b)(a) & 27 of the Arms Act.
(55) In the present matter, although complainant Chatur Singh Yadav (PW14A) did not support the prosecution case but, the prosecution has examined as many as eighteen witnesses out of which, the evidence of PW7 Mohar Singh Baghel and PW11 Sonu Yadav, who are alleged to be the witnesses of ''last seen theory' including PW8 Naresh Yadav, PW12 Dinesh Yadav and PW13 Smt. Girja Devi (mother of the deceased), it appears that they have fully supported the prosecution version and evidence of police witnesses and medical evidence is also corroborated the evidence of these witnesses. From the evidence of these witnesses, it is crystal clear that deceased Satendra Yadav aged around 20 years, was a money-lender and complainant Chatur Singh Yadav is his uncle. On 30/09/2006, at about 03:30 pm, deceased Satendra Yadav received a call on his mobile from someone asking him to get the money collected. Thereafter, the deceased by informing his mother, went towards Gwalior Fort for grazing his buffaloes. Deceased used to come back home by 06:00 in the evening. On the date of incident i.e. 30/09/2006 till the evening, the deceased did not return home. Afterwards, the complainant with the help of family members of deceased, searched deceased Satendra Yadav and at last, they came to know 34 from one Jitendra, who is the brother of deceased that accused Satish was talking to one Sonu Yadav at about 04:00 pm. In the night when an intensive search was made, deceased was found dead at Gwalior Fort and the dead body of deceased was found lying in the bushes. From the medical evidence, it is apparent that the deceased died due to shock and hemorrhage as a result of head and thoracic-abdominal injuries and all injuries were caused by firearm from connect and close range and sharp penetrating object respectively. All the injuries were sufficient to cause death of deceased individually and cumulatively in the ordinary course of nature and the death of deceased was homicidal in nature. The appellants in support of their defence has examined DW1 Kalyan Singh but his evidence is not reliable and trustworthy as his presence on the place of occurrence is not established. This is the case of circumstantial evidence and the chain is complete. Thus, the trial Court has not committed any error in bringing the home the charges levelled against the appellants beyond reasonable doubt and thereby, convicting and sentencing the accused appellants in the aforesaid manner.
(56) We have gone through the reasonings assigned by learned trial Court convicting the appellants under the aforesaid offences and we find that the same have been arrived at after marshalling and appreciating the evidence correctly, which is given a stamp of approval by us. We hereby uphold the findings recorded by the learned Trial Court that the appellants have committed offence under Section 302/149 of IPC. Thus, their conviction and sentence is hereby affirmed. All accused persons five in number, in furtherance of common object, have assembled unlawfully by involving themselves in committing murder of the deceased on the alleged date of incident.
(57) As a result, the impugned judgment of conviction and order of sentence dated 06/05/2010 passed by Second Additional 35 Sessions Judge, Gwalior (MP) in ST No.57 of 2007 is hereby affirmed. All the appeals fail and are hereby dismissed. The appellants who are on bail, their bail bonds shall stand cancelled and they are directed to surrender immediately before the trial Court concerned for serving out the remaining jail sentence.
Let a copy of this judgment along with record be sent to the trial Court concerned for necessary information and compliance.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA BARIK
Date: 2022.03.28 17:58:15 +05'30'