Madhya Pradesh High Court
Malkhe @ Malkhan vs The State Of Madhya Pradesh on 11 April, 2019
Author: B.K. Shrivastava
Bench: B.K. Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 33 of 2010
Parties Name Malkhe @ Malkhan and another
Vs.
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice Huluvadi G. Ramesh
Hon'ble Shri Justice B.K. Shrivastava.
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant No.1: Shri A.D. Mishra,
Advocate.
For appellant No.2: Smt. Sushila
Paliwal, Amicus Curiae.
For respondent/State: Shri Vikalp Soni,
Government Advocate.
Law laid down
Significant paragraph
numbers
J U D G M E N T (Oral)
(11.04.2019) Per: Huluvadi G. Ramesh, J.:
1. This appeal is directed against the judgment dated 04.11.2009 passed in Sessions Trial No.264/2002 by the Court of Fifth Additional Sessions Judge (Fast Track Court), Chhindwara.
The trial Court held the appellants guilty for commission of offence punishable under Section 302 read with 34 of Indian Penal Code and sentenced them to undergo life imprisonment
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alongwith fine of Rs.5000/- each, with default stipulation, to undergo rigorous imprisonment for six months each.
2. Prosecution story in brief is that complainant/first informant Memwati Bai (PW-6) was residing alongwith her family at Village Sarra Colony, in the ambit of Police Station Kotwali, District Chhindwara. Deceased-Tukaram was the father of the complainant, who used to do labour work of cutting bamboos in government dairy farm. On 21.07.2002, appellant No.1-Malkhe, who is fufa (uncle) of the complainant, started abusing the deceased filthily for not taking him to work as labourer. When the deceased objected the same, Malkhe, his wife and daughter fisted him. Thereafter, deceased went to police station to file complaint against them. Thereafter, both the accused persons i.e. Malkhe and Suresh were waiting for Tukaram outside his house and they were saying that they would kill the deceased. On coming to know about such planning of the accused persons, deceased's wife took the deceased from another way so as to save him from the accused persons. In the night at about 11 PM, when Tukaram went for urination in the courtyard, where both the accused persons caught hold both the hands of Tukaram and appellant No.1-Malkhe asked appellant No.2-Suresh to kill the deceased and then appellant No.2-Suresh inflicted a gupti (sharp pointed weapon) blow on the chest of the deceased. The complainant and her elder sister witnessed the incident and they rushed to save
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their father and snatched the gupti from the hands of appellant No.2-Suresh. The deceased fell down. Complainant cried. After some time, Ramkali, Dhurki Bai and Sunita came to the spot and they went to Kulbahra and narrated the incident to Bade Dada.
3. In the night, at about 1.25 O'clock (dated 22.07.2002), complainant Memwati Bai got lodged first information report (Ex.P/8) at Police Station Kotwali. The gupti used by Suresh was seized by the police. Dead body was sent for postmortem examination. After investigation, final report was filed before the competent Court. Learned trial Court framed charge against the appellants. The appellants abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellants guilty for commission of offence under Section 302 read with 34 of IPC and awarded punishment, as mentioned above in the judgment.
4. Learned counsel appearing for the appellant No.1 submits that the appellant No.1 is innocent. He has not committed any offence. Allegation of inflicting injury by gupti is against appellant No.2-Suresh. There was no motive or intention to cause death of the deceased. The incident had taken place all of a sudden and there was no premeditation. The appellant No.1 has been implicated falsely. On the date of incident, there was quarrel between the appellant and the deceased and in a heat of passion, in a spur of moment, during scuffle, the deceased sustained injury
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and died. Hence, the offence alleged against the appellant No.1 falls under Section 304 Part 1 of the IPC instead of Section 302 of IPC.
5. Similarly, learned Amicus Curiae appearing for the appellant No.2 submits that Suresh tried to pacify the quarrel between the appellant No.1 and the deceased and in that event he also received injuries. As the appellant No.2 intervened and pacified the quarrel, he has been implicated falsely by the relatives of the deceased. It is further submitted that there was a dispute between the deceased and his wife in connection with marriage of their daughter and thereafter, the deceased was found dead.
6. The main grounds of appeal are that the trial Court committed error in holding the appellants guilty for commission of offence under Section 302 read with 34 of IPC and imposed a severe punishment. The trial Court also failed to appreciate the evidence of the witnesses and relying upon the version of the interested and related witnesses wrongly convicted and sentenced the appellants. It is stated that the complainant party was the aggressor. Apart from this, as per the evidence of Dr. D.K. Mehra, one cut mark was found on the sweater of the deceased but there was no cut mark on the shirt of the deceased, which he worn at
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the time of incident, which make the case of the prosecution doubtful. The witnesses of the incident are tutored witnesses.
7. Learned counsel appearing for the appellants relied on the following judgments:
A. Basantlal and another vs State of M.P., I.L.R. [2009]M.P. 1431 and B. Surain Singh vs State of Punjab, (2017) 5 SCC 796.
8. On the other hand, learned Government Advocate appearing on behalf of the State submits that the appellant committed murder of the deceased by inflicting injury on the vital part of his body i.e. chest. They were waiting for the deceased to come home and in the night at about 11.00 pm they caught hold the deceased and killed him. Appellant No.2 inflicted gupti blow on the chest of the deceased and the appellant No.1 facilitated the appellant No.2 in causing the injury. The appellant No.2 on the provocation of the appellant No.1, stabbed gupti with great force causing injury on the vital part of the body of the deceased which was sufficient in the ordinary course of nature to cause death of the deceased. Their act is cruel in nature. There is ample evidence on record against the appellants. The trial Court has rightly held the appellant guilty and awarded a proper sentence.
9. The prosecution, in order to prove its case, examined as many as 16 witnesses. Both the accused in their statement under
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Section 313 of Cr.P.C. denied all the allegations and pleaded that they have been implicated falsely.
10. PW-1 Ramkali Bai, PW-2 Sannu and PW-3 Shankar were declared hostile.
11. PW-4 Dr. D.K. Mehra, conducted autopsy of the deceased- Tukaram and noticed following injuries:
1. A cut in the left chest region ½"x ¼".
2. An incised wound obliquely (horizontal) in 4th intercostal space 1.2 cm x 0.6 cm.
3. At lower end (tip), a clean cut 0.5 cm x 4 cm and on anterior wall another cut of 1.2 cm.
He opined that the cause of death is due to shock as a result of internal hemorrhage due to direct injury to heart and time passed since death is within 24 hours. There was through and through penetrated wound to heart.
12. PW-5 Ashwani Kumar Prayasi was posted as Head Constable on 21.07.2002, at Police Station Kotwali and he recorded the incident of assault in rojnamchasanha, which is Ex.P/6. On the same day, he also recorded the complaint of Smt. Atarwati (wife of the appellant No.1) at rojnamchasanha No.2155, which is Ex.P/7. In his cross-examination, this witness admitted the fact that on the same day, deceased-Tukaram got registered a complaint against Malkhe, Suresh and Vipatu Dheemar. He further admitted that on 22.07.2002, on the basis of
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the report of Memwati, merg was registered and subsequently offence was also registered.
13. PW-6 Memwati Bai is the complainant/ first informant. She deposed that the deceased was her father. On the date of incident, at about 9 O'clock, a dispute had taken place between her father and appellant No.1-Malkhe. In those days, her father used to go to dairy farm for cutting bamboos. Appellant No.1- Malkhe used to abuse and say why deceased was not taking him for cutting bamboos and on this issue, a quarrel had taken place between them. After the incident, her father went to Chhindwara to lodge report. When her father had gone to lodge the report, Malkhe was abusing her father. Her mother was waiting for his father on the road so as to take him home through some other way. Her father returned home at 11 O'clock in the night. At that time, Malkhe @ Malkhan and Suresh were sitting near the fencing and they were saying let him (deceased) come, they will not leave him. Her father went behind the house for releasing urine, at that time, Malkhe and Suresh came there. Accused Malkhe caught hold the hands of her father and accused Suresh inflicted gupti blow on the chest of her father. At that time, Sukku, Sunita, Sunnu, Sadan, Ramkali and Dhurkibai were present there. They took her father in the house. Thereafter, she went to Kulbehra to call other elder persons, who came there and told that her father had died. She had snatched the gupti from the
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hands of the accused persons. She went to Police Station Chhindwara and lodged the report, which is Ex.P/8 and admitted her signature on the same. She got seized the gupti, which was seized vide seizure memo Ex.P/9. Police came to the place of incident and prepared spot map Ex.P/10.
14. PW-7 Meena Bai is the daughter of the deceased. She deposed the same facts as deposed by PW-6 Memwati Bai.
15. PW-8 Ghurkibai deposed that 12 months back, a dispute had taken place between deceased Tukaram and accused-Malkhe in connection with cutting of bamboos. Malkhe abused the deceased. Malkhe and his children were intended to beat Tukaram. Thereafter, Tukaram went to Chhindwara Police Station to lodge report of the incident. Accused Malkhe and Suresh were hiding behind the fencing of Tukaram. Thereafter, Memwati Bai (PW-6) shouted that Malkhe and Suresh were beating his father. She witnessed that Malkhe had caught hold the hand of Tukaram and asked Suresh to kill the deceased. Suresh inflicted gupti blow on the chest of Tukaram. Ramkali, Sannu, Sukku and Sunita also reached the spot.
16. PW-9 Constable Suresh Kumar took the body for postmortem examination. He handed over the cloths given of the deceased, which was given the doctor to Mr. R.D. Badgainya at Police Station Chhindwara. PW-10 Constable Krishna Kumar
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submitted copy of the FIR in the Court of J.M.F.C. concerned, for which, a receipt was issued to him, which is Ex.P/13.
17. PW-11 Arjun is a child witness. He deposed that his father used to go to Government Dairy Farm for cutting bamboos. Malkhe told the deceased to accompany him for cutting bamboos, on which, deceased told him how would he cut the trees as he was a drunkard. Thereafter, Malkhe came to his house and abused the deceased and also assaulted the deceased. Deceased went to police station to lodge report of the incident. Thereafter, both the accused persons were hiding behind the house of the witness so that they may kill him. When his father (deceased) went for urine, Malkhe catch hold the hand of his father and Suresh inflicted gupti blow to the deceased and ran away.
18. PW-12 Sukku deposed that Tukaram used to go to dairy farm for cutting bamboos. Accused Malkhe asked the deceased why he was not taking him for the said work and abused the deceased. Malle (Malkhe) told the deceased that he would go on bamboo cot (bans ki thathari). He gave a stick blow to Sushila Bai, who became unconscious. Thereafter, Tukaram went to police station to lodge report and when he returned, he was assaulted by Malle and Suresh and also caused gupti blow on the chest of Tukaram.
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19. PW-13 Premchandra Prajapati admitted his signature on Ex.P/4, which is panchnama of the body of the deceased.
20. PW-14 Assistant Sub Inspector R.D. Badgaiyan deposed that on 23.07.2002, he recorded statement of the witnesses namely Ramkali Bai, Sunnu, Arjun, Sukku, Bheem, Sadan @ Sajan, Sunita Bai and Dhurki Bai. He seized cloths of the deceased vide Ex.P/11 and signed the same.
21. PW-15 Dr. C.M. Gedam deposed that on 21.07.2002, he examined injured Suresh S/o Vipatu and found following injuries on his person:
a. Lacerated wound 1½"x 1/8" x 1/8" on left zygomatic region. b. Contusion 1" x 1" below right eye.
c. Lacerated wound 1½"x 1/8" x 1/8"on left forearm.
He opined that all the injuries were simple in nature caused by hard and blunt object.
On the same day, he also examined Atarwati w/o Malkhan and found abrasion measuring ¼"x ¼" each, on the four fingers of the left hand of the inured.
On the same day, he also examined Tukaram S/o Jhadu (deceased) and found following injuries on his body:
(a) Contusion 1" x 1" on occipital region
(b) Complaint of pain on right shoulder.
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Both the injuries are simple in nature caused by hard and blunt object.
22. PW-16 Anil Vaidya deposed that on on 21.07.2002, he was posted as Station House Officer Incharge, Police Station Chhindwara and at about 1.25 O'clock, on the basis of information of Memwati, he recorded merg intimation Ex.P/18 and signed the same. He also recorded FIR against the appellants Malkhe @ Malkhan Dheemar and Suresh Dheemar and signed the same. He prepared spot map Ex.P/10 and signed the same. He also seized blood stained gupti from the complainant at the police station vide seizure memo Ex.P/9 and signed the same. During investigation, he recorded statement of Memwati and Km. Meena Bai.
23. Both the appellants in their statement under Section 313 Cr.P.C. stated that they have been falsely implicated in the case.
24. Two witnesses were examined in defence of the accused persons. DW-1 Heerawati is the wife of appellant No.2-Suresh and DW-2 Atarwati is the wife of appellant No.1-Malkhe @ Malkhan. Their version appears to be after thought evidence and the same is self contradictory as well.
25. Learned trial Court came to the conclusion that in pursuance of the incident taken place on 21.07.2002 at about 9 O'clock, both the accused persons developed common intention
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and when the deceased returned from the police station after lodging report, appellant No.1-Malkhe catch hold the hand of the deceased and appellant No.2-Suresh inflicted gupti blow on the chest of the deceased, as a result of which, deceased died, and, hence, convicted and sentenced the appellants as mentioned above in the judgment.
26. PW-4 Dr. D.K. Mehra, who conducted autopsy of the body of the deceased, opined that the cause of death was shock as a result of the internal hemorrhage due to direct injury to the heart. He opined that the injuries were sufficient to cause death in the ordinary course of nature. He examined the deceased on 22.07.2002 at about 1 PM and opined that death occurred within 24 hours of her examination.
27. As per prosecution story, on 21.07.2002, a dispute arose between appellant No.1-Malkhe and the deceased Tukaram on the question of cutting of bamboos. Appellant No.1-Malkhe abused the deceased and also assaulted him. Deceased went to police station to lodge report. He was examined by the doctor and when he returned, both the appellants, who were hiding behind the house of the deceased, caught hold the deceased and inflicted gupti blow on the chest of the deceased, as a result of which, deceased sustained injuries and died.
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28. Learned counsel for the appellant No.1 relying upon the judgment of the Division Bench of this Court passed in Basantlal and another vs State of M.P., I.L.R. [2009] M.P. 1431 has submitted that there is no overt act of the appellant No.1 and he has not inflicted any injury to the deceased. The injury which is said to be the cause of death of the deceased was inflicted by co- accused Suresh. In our opinion, the said judgment is distinguishable on the facts from the case in hand. In the present case, the appellant No.1 had abused and beaten the deceased for not taking him to cut the bamboos. When the deceased went to police station to lodge report, the appellant No.1 came to the house of the deceased and told the family members that he would kill the deceased. Both the appellants were hiding near the house of the deceased and when he came out of the house, appellant No.1 caught hold his hands and provoked the appellant No.2 to kill the deceased, as a result of which, appellant No.2 gave gupti blow on the chest of the deceased, due to which he died.
29. Learned counsel appearing on behalf of appellant No.1- contended that the incident took place all of a sudden and there was no premeditation. He relied on the judgment of the Hon'ble Apex Court passed in the case of Surain Singh vs State of Punjab, (2017) 5 SCC 796 and contended that during scuffle in heat of passion without any intention to cause death of deceased, co-accused inflicted gupti blow, therefore, the conviction of the
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appellants be converted from Section 302 to Section 302 Part 1 of IPC. In our opinion, this authority is also distinguishable on the facts, as after the quarrel at about 9 O'clock, both the appellants were waiting for the deceased near his house for about 2-3 hours and as soon as he went for urine, they captured him. The appellant No.1 caught hold the hands of the deceased and asked the appellant No.2 to kill the deceased, who, on his provocation inflicted gupti blow on the chest of the deceased, which is a vital part of the body and the same was the cause of death of the deceased, as per the evidence of the doctor, who conducted atopsy of the deceased. Appellant No.2 was armed with deadly weapon i.e. gupti and was waiting for the deceased with the appellant No.1 and as soon as the deceased came out of the house, they caught hold him and killed him.
30. The Apex Court in the decision of Pulicheral Nagaraju @ Nagaraja Reddy vs State of A.P., (2006) 11 SCC 444 has considered the applicability of Exception 4 to Section 300 of IPC and has held as under:
"27. In Virsa Singh vs State of Punjab, AIR 1958 SC 465, this Court held that a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements (i) the presence of a bodily injury, (ii) nature of such bodily injury, (iii) intention on the part of the accused 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; and (iv) the injury was sufficient to cause death in the ordinary
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course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated :
"In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted .......
The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some 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."
* * * *
29. Therefore, the court should proceed to decide the pivotal question of intention, with 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
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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.
30. In this case, as noticed above, the appellant was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an earlier incident, about half an hour earlier when the father and brother of the deceased had been attacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for an apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force, causing an injury on a vital part of body,
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sufficient in the ordinary course of nature to cause death. The description of the injury and cause for death given by PW-11, who conducted the post mortem is telling :
"An incised injury 5 cm x 3 cm x 12 cm deep over right supra clavicular fossa above the medial end of right clavicle.. sub-clavian artery is severed An incised injury 4cm x 1cm x 2cm deep over the apex of right lung deceased would appear to have died due to haemorrhage and shock due to injuries to right sub-clavian artery and upper lobe of right lung."
The intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death was made out. The circumstances to bring the case under Exception (4) to Section 300 do not exist."
30. In this case, appellant No.2-Suresh was carrying a gupti, a dangerous weapon. There was an earlier quarrel, about 2-3 hours earlier when the deceased had been attacked by the appellant No.1 and other family members. The deceased was unarmed. He returned home from another way just to save himself from the appellants, who were waiting for him. There was no provocation on behalf of the deceased, he had gone behind his house for urine, where he was caught hold and killed. There was no indication of any cause for an apprehension on the part of the appellants that the deceased may attack them. The appellant No.1 caught hold the hands of the deceased and asked the appellant No.2 to kill the deceased. The stabbing was with great force, causing an injury on a vital part of body, due to which, there was a direct injury to the heart of the deceased, which was sufficient in the ordinary course of nature to cause death. There was premeditation and planning of both the
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appellants. Hence, it is a case of murder punishable under Section 302 of IPC, not amounting to culpable homicide punishable under Section 304 part 1 of IPC.
31. Looking to overall facts and circumstances of the case and the evidence of the witnesses, in our opinion, the trial Court has rightly convicted the appellants and awarded a proper sentence. Therefore, we do not find any merit in this appeal, it is hereby dismissed. The judgment of the trial Court is affirmed.
32. The appellant No.1 is on bail. His bail bond stands canceled. He is directed to surrender before the trial Court within one month, if he fails to do so, the trial Court to take appropriate steps to take him into custody and send him to jail for serving out remaining part of the sentence. The appellant No.2 is in custody, he shall undergo the sentence as awarded by the trail Court.
33. However, both the appellants shall entitle the benefit of set off under the provision of Section 428 of the Cr.P.C.
34. Fee of learned Amicus Curiae is fixed Rs.4000/-.
(Huluvadi G. Ramesh) (B.K. Shrivastava)
Judge Judge
vkt
Digitally signed by VINOD
KUMAR TIWARI
Date: 2019.04.26 16:40:16
+05'30'