Madhya Pradesh High Court
Tinku Tomar @ Jitendra Singh vs State Of M.P. on 5 October, 2021
Author: Rajeev Kumar Shrivastava
Bench: G.S.Ahluwalia, Rajeev Kumar Shrivastava
-( 1 )- CRA No. 295/2007
Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 295/2007
1. Tinku Tomar @ Jitendra Singh S/o Hira Singh Tomar
2. Rinku @ Yatendra Tomar S/o Hira Singh Tomar
Both Residents of Birla Nagar Gwalior Police Station Padav
District Gwalior (MP)
Versus
State of Madhya Pradesh
---------------------------------------------------------------------------------
Shri Sanjay Gupta along-with Shri A.R. Shivhare, counsel for the
appellants.
Shri C.P. Singh, Panel Lawyer for the respondent/State.
---------------------------------------------------------------------------------
Reserved on : 15th September, 2021
Whether approved for reporting:
---------------------------------------------------------------------------------
JUDGMENT
(Passed on 05/10/2021) Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under Section 374 of CrPC, against the judgment of conviction and sentence dated 28.02.2007 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No. 34/2005, whereby accused/appellants have been convicted under Sections 302 read with Section 34 of IPC, and Section 307 read with Section 34 of IPC, and Section 27 of Arms Act and sentenced to undergo life imprisonment with fine of Rs.20,000/- each for the offence under Section 302 read with -( 2 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP Section 34 of IPC, in default of payment of fine, to undergo additional RI for 3-3 years, and for the offence under Section 307 read with 34 of IPC, to undergo 7-7 years RI with fine of Rs.5000/-
each, in default of payment of fine, to undergo 3-3 months rigorous imprisonment, and under Section 27 of Arms Act, to undergo 3-3 years RI with fine of Rs.1000/- each, in default of payment of fine, to undergo rigorous imprisonment of 1-1 month. All the sentences were directed to run concurrently.
2. Prosecution story, in short, is that on 08.04.2004 at around 2.00 PM complainant Vinod Tomar had lodged oral report at Hazira Chowki. He had stated in the FIR that he was going by his motorcycle No.M.P.0-7-KD0-2867 to Lashkar. Teetu @ Rajeev (PW/4) was sitting on the back seat of his motorcycle. By another motorcycle Vinod Rana and Pintu were coming behind them from Tansen Road. Ahead of them his brother Sanjay Tomar, Balli @ Manoj Rana were going by their Splendor motorcycle. When Balli Rana and Sanjay Tomar reached near Life Insurance Corporation office, all of a sudden, Monu Chouhan and Tinku Tomar reached there by their motorcycle. Monu Chouhan was driving the motorcycle and Tinku Tomar was sitting behind and by another motorcycle Hira Singh and Rinku Tomar reached there. Tinku Tomar fired upon his brother Sanjay Tomar and he got injuries on neck and back and Rinku Tomar fired upon Manoj @ Balli Rana who got firearm injuries on his chest and hand. Sanjay and Manoj fell down on the spot. They were shifted to J.A. Hospital.
3. On the basis of the aforesaid report, FIR was registered at Crime No.187/2004 i.e. Ex-P/8. Investigation was assigned to S.I. D.S. Kushwaha (PW/24). Shri Kushwaha reached at the place of incident and prepared the spot map Ex-P/2. He also seized from the -( 3 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP place of incident blood stained 'Damar' and three used cartridges and had prepared seizure memo Ex-P/4. On 8.4.2004 Dr. S.S. Jadon (PW/5) examined the injured Sanjay Tomar and Manoj Rana. The MLC is Ex-P-5 and Ex.P-6. Dr. Atul Kalwaiya has proved the x-ray report Ex-P/22. Balli @ Manoj Rana was died in the incident and Laash Panchayatnama Ex-P/3 and Marg Ex-P/9 were prepared and Section 302 of IPC was enhanced. Dr. Yogendra Pradhan (PW/13) had conducted the postmortem of the deceased. Postmortem report is Ex-P/15. Bisra of deceased seized by Ex-P/10. The clothes of the deceased Manoj Rana were seized by Ex-P/12 and thereafter the aforesaid clothes were brought to the Police Station Thana Padav. Accused persons were arrested and firearm along with used and unused cartridges were seized. The statements of prosecution witnesses were recorded under Section 161 of Cr.P.C. Seized articles were sent for scientific examination and after completion of investigation charge sheet was filed.
4. The trial Court framed the charges against the accused appellants and they have abjured their guilt and stated under Section 313 of Cr.P.C. that they have not committed any offence They have falsely been implicated in this case and accused/appellant Jitendra Singh has taken plea of alibi and has stated that on the date and time of incident he was appearing in examination at MLB college.
5. The Trial Court vide impugned judgment convicted and sentenced the appellants/accused as under :-
Name of accused Section Punishment Fine In default, punishment Tinku @ Jitendra 302 read with Life Imprisonment 20,000/- 3 years Singh Tomar Section 34 of (for causing the additional IPC death of the RI deceased Manoj @ Balli Rana) 307 read 7 years RI 5000/- 3 months -( 4 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP with Section (for attempt to RI 34 of IPC murder to injured Sanjay Tomar) 27 of Arms 3 years RI 1000/- 1 month RI Act Rinku @ 302 read with Life Imprisonment 20,000/- 3 years Yatendra Tomar Section 34 of (for causing the additional IPC death of the RI deceased Manoj @ Balli Rana) 307 read 7 years RI 5000/- 3 months with Section (for attempt to RI 34 of IPC murder to injured Sanjay Tomar) 27 of Arms 3 years RI 1000/- 1 month RI Act However, all the sentences were ordered to run concurrently.
6. The grounds raised are that the trial Court has wrongly convicted the appellants. The judgment of conviction and sentence passed by the trial Court is against settled principles of law. There are lots of contradictions and omissions in the prosecution case. It is further submitted that there was previous enmity between the deceased and accused/appellants. The statements given by the prosecution witnesses are self contradictory. The ocular evidence is not supported by medical evidence. The contradictions and omissions are fatal to the prosecution case. FIR is anti dated and anti timed. The trial Court has erred in considering P-15 as substantive piece of evidence. The seized articles were not sealed properly from the spot of incident. Three cartridges were seized that fact has not been affirmed by the prosecution witnesses and on the date of incident the accused/appellants were not present on the spot of incident. There are various contradictions and omissions in the statement given by the eyewitnesses. Therefore, the trial Court has -( 5 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP erred in passing the judgment of conviction against the present appellants. Hence, prayed for setting aside the impugned judgment of conviction and sentence.
7. Per Contra, learned State Counsel opposed the submissions and submitted that the trial Court has rightly convicted the appellants and awarded sentence. Hence, no case is made out for interference.
8. Heard the learned counsel for the rival parties and perused the record.
9. In the present case, the following question emerges for consideration :
"(i) Whether, on 8-4-2004 at about 2.00 pm the death of Balli @ Manoj Rana was culpable homicide ?
(ii) Whether, the accused persons committed attempt to murder of Sanjay Tomar by causing firearm injury to him?
(iii) Whether on the date time and place of incident accused/appellants were not having valid firearm license?
10. Before considering the merits of the case, it would be appropriate to throw light on relevant provisions of Sections 299 and 300 of Indian Penal Code.
11. 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?"-( 6 )- CRA No. 295/2007
Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP [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 Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply."
12. The 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 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."
-( 7 )- CRA No. 295/2007Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP Therefore, the contention advanced in the present case and which is frequently advanced that the accused had no intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
13. The scope and ambit of clause Thirdly of Section 300 IPC was considered 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 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), -( 8 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
14. In Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it 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 -( 9 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP
(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. However, 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, -( 10 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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 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."
15. Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by doing an act with the intention of causing -( 11 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
16. 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 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.
17. Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter -( 12 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
18. 'Culpable Homicide' is the first kind of unlawful homicide. It is the causding of death by doing ; (i) an act with the intention to cause 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 was likely to cause death.
19. Indian Penal Code reconizes two kinds of homicides :
(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).
20. 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., -( 13 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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.
21. 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.
22. The fact that the death of a human being is caused is not enough unless one of the mental staes 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 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.
23. 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.
24. In Anda vs. State of Rajasthan [1966 CrLJ 171), while considering "third" clause of Section 300 of IPC, it has been observed as follows :-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature -( 14 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
25. In Mahesh Balmiki vs. State of M.P. [(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 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."
26. In Dhirajbhai Gorakhbhai Nayak vs. State of -( 15 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP Gujarat [(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 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 -( 16 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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'.
27. In Pulicherla Nagaraju @ Nagaraja vs. State of AP [(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 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 -( 17 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
28. In 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 -( 18 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
29. In State of Rajasthan v. Kanhaiyalal (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 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.-( 19 )- CRA No. 295/2007
Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
30. In the case of Bavisetti Kameswara Rao v. State of A.P. (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 weapon used; (iii) the nature of assault -( 20 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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 v. 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."-( 21 )- CRA No. 295/2007
Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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 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 -( 22 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 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."
31. In the light of above annunciation of law laid down by Hon'ble Apex Court, the evidence available on record in the present case is considered.
32. The prosecution produced 27 witnesses, namely Vinod Tomar (PW/1), Bhupendra Singh Rathore @ Pintu (PW/2), Sanjay Tomar (PW/3), Rajeev Singh Kushwah @ Teetu (PW/4), Dr. S.S. Jadon (PW/5), Ramveer Singh (PW/6), Babu Singh (PW/7), Hari Shankar (PW/8), Aniruddh Singh (PW/9), Salirgram Barua (PW/10), Chuttan Khan (PW/11), Sanjay Singh Bhadoriya (PW/12), Dr. Yogendra Singh (PW/13), Mukesh Singh (PW/14), Lal Singh (PW/15), Dr. R.K. Jain (PW/16), Harcharan (PW/17), Rajendra Pathak (PW/18), Dr. Atul Kalraiya (PW/19), J.R. Jumnani (PW/20), Ramprakash (PW/21), Dinesh Jatav (PW/22) Shivpratap Singh (PW/23), Dashrath Singh Kushwah (PW/24), D.S. Tomar (PW/25), Choudhary Narendra Singh (PW/26) and Dr. Vinay Mishra (PW/27) and also produced documents Ex-P/1 to Ex-P/30 in support of its case. Defence has produced Bheemsen Parihar (DW/1), Shailendra Jain (DW/2), and Dr. S.K. Mathur (DW/3) and also produced documentary evidence Ex-P D/1 to D/6.
33. Dashrath Kushwah (PW-24) is a retired Sub-Inspector, who prepared the Panchayatnama Laash Ex.P-3. Dr. Yogendra Singh (P/13) had conducted the postmortem of the deceased. Marg -( 23 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP intimation is Ex-P/9. Bisra of the deceased Manoj Rana was collected and sent for forensic test. Manoj Rana died during the treatment in the hospital on 9.4.2004 at 13.05 pm. Dr. Yogendra Singh (PW/13) has specifically opined that the deceased Manoj Rana died due to gunshot injury found on his chest and was caused within 12 hours of postmortem. Dr. Yogendra Singh (PW/13) has specifically opined that injury was caused by using firearm. The entrance wound was inverted and internal parts of the deceased were ruptured. The nature of injury was homicidal and was sufficient to cause death. On the basis of above it is very well proved that the death of deceased Manoj Rana @ Balli is homicidal and due to injuries caused by firearm.
34. Whether the accused person has caused gunshot injury to the injured Sanjay Tomar with such intention or knowledge and under such circumstances that, if they by that act caused death, they would be guilty of murder.
35. Section 307 of IPC runs as under:-
"Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."
36. In Bakshish Singh vs. State, AIR 1952 Pepsul 38, it is observed that if a man commits an act with such intention and knowledge and under such circumstances that if death had been caused the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual -( 24 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP course of the events but for something beyond his control which prevented that result his act would be punishable as an attempt to murder.
37. In Hari Singh vs. Sukhbir Singh & Others, (1988) 4 SCC 551, the Supreme Court held that while examining whether a case of commission of offence under Section 307 IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner, in which, it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307 IPC. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim, Maikulal with an intention to cause death.
38. The essential ingredients required to be proved in the case of an offence under Section 307 of IPC are :-
-( 25 )- CRA No. 295/2007Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause an injury and thereafter hurt, it is punishable with imprisonment for life".
39. For holding guilty under Section 307 of IPC it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court has to see that whether the act, irrespective of its result, -( 26 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP was done with the intention or knowledge and under circumstances mentioned in the section. It is sufficient in law, if there is intention coupled with some overt act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. In order to amount to an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim.
40. In Uttam Ghosh vs. State, 1995 Cr.L.J. 4079 (Cal), wherein it is held that similarly the accused was arrested for shooting of a professor in Amritsar and a pistol made in USA was recovered from his possession and on the basis of evidence on records he was convicted by the designated Court under Section 307 but on appeal High Court set aside his conviction on the ground that the accused was arrested on 25 November whereas his arrest was shown to have taken place on 6 December. Supreme Court also confirmed the verdict of the High Court and held that since appellant had been arrested prior to 6 December, his conviction was not sustainable. Where from the injuries caused intention or knowledge to cause death could not be inferred, it was held that conviction of the accused shall be altered from Section 307 to one under Section 324 and others would be held liable under Section
323. Here even benefits of probation were not given to the accused as he had assaulted the victim indiscriminately at a lonely place. The accused in a case before Supreme Court had due to political rivalry aimed the dagger blow at the head of the victim whose hand -( 27 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP was severed from the wrist when he tried to ward off blow by raising his hands. It was held that conviction under Section 307 was proper as severity of blow was sufficient to spell out the murderous intent of the accused. Similarly where accused had fired a single shot injuring the victim due to previous enmity between them, it was held that the accused was guilty under Section 307 and was not entitled to the benefits of doubts on the ground that the other accused were already acquitted.
41. In Mohindar Singh vs. State of Punjab, AIR 1960 Punj 135, it is observed that the offence of attempt to commit murder punishable under Section 307 I.P.C. is constituted by the concurrence of mens rea followed by an actus reus. An intent per- se is not an attempt. It implies purpose and attempt is an actual effort made in execution of the purpose. From the steps directed towards the objective sought, the criminal intent must be logically inferable. The attempt for purposes of Section 307 IPC should stem from a specific intention to commit murder, and this blameworthy condition of mind may be gathered from direct or circumstantial evidence, including the conduct of the accused. Apart from the necessary mens rea, the actus reus must be more than a preliminary preparation. The means must be apparently, though not really suitable, so that they can be adapted to the designed purpose.
42. In Kanbi Nagji Kala vs. State, 1956 Cr.L.J. 1439 (Sau), it is held that when the mens rea, which is essential to the offence of murder, was absent and where the weapons used by the accused were ordinary agricultural implements and did not necessarily indicate a deliberate intention to cause death or fatal injuries, conviction under Section 307 was held not sustainable. In that case four boys took their cattle for grazing; but the cattle -( 28 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP strayed into the adjoining field of the accused and were committing mischief. The accused attempted to take them to pound but was obstructed by the boys resulting in a scuffle and some of the boys were seriously injured by sharp cutting weapons. The High Court ruled out the plea of self defence on the part of the accused but at the same time acquitted the accused of the charge under Section 307 IPC for absence of mens rea, the accused using only sharp cutting agricultural implements used ordinarily by cultivators.
43. In Abdul Wahid vs. State of U.P., 1980 CrLJ (NOC) 77 (All), it was held as follows:-
"Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307 IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. To constitute an offence under Section 307 IPC the intention or knowledge must be such as is necessary to constitute murder. The intention is to be gathered from the nature of the weapon used and the parts of the body where the injuries are inflicted and no conviction is legally permissible unless -( 29 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP the prosecution proves the ingredients of Section 300 IPC of which intention or knowledge play a vital role.
44. Intent which is a state of mind can never be precisely proved by direct evidence as a fact: it can only be deduced or inferred from other facts. Some relevant considerations are :(1) the nature of weapon used; (2) the place where injuries were inflicted; (3) the nature of the injury caused; (4) the opportunity available which the accused gets. The Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that Section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Therefore, the intention is to be gathered from all the circumstances, and not merely from the consequences that ensue.
The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.
45. Now it has to be seen whether the appellants had committed the alleged offences.
46. In the present case Vinod Tomar (PW/1), Bhupendra Singh Rathore @ Pintu (PW/2) and Sanjay Singh Tomar (PW/3), Rajveer Singh Kushwah @ Teetu (PW/4) are eyewitnesses in the present case.
47. Learned counsel for the appellants have submitted that the prosecution has based its case on the statement of interested witness and there are lots of contradictions and omissions in the prosecution case with regard to injuries inflicted to the deceased as well the injured and the injuries reflected in MLC were not found during postmortem, therefore, the prosecution case is not proved -( 30 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP beyond reasonable doubt.
48. Learned counsel for the State has submitted that despite given various opportunities for cross-examination, the appellants had not cross-examined the prosecution witnesses intentionally. Therefore, the evidence of such witnesses recorded may be taken into consideration as per the provisions of Section 33 of Evidence Act as well as Section 299 of Cr.P.C.
49. The trial Court in para 19 of its judgment has specifically observed that as Bhupendra Singh Rathore was murdered and in para 21 of its judgment has specifically observed that there is no bar in such condition where the witness is no more under Section 33 of Evidence Act and its evidence recorded in absence of accused shall be read against the appellant. It is also reflected from the evidence of Bhupendra Singh @ Pintu Rathore who had repeatedly said before the Court that he was continuously terrorized and thereafter he was murdered.
50. Vinod Tomar (PW/1) is the brother of injured Sanjay Tomar and deceased Balli Rana @ Manoj was the friend of his brother Sanjay Tomar. It is settled law that the evidence of interested witnesses could not be discarded outrightly rather it should be scrutinized with full caution.
Interested witness
51. It is settled law that merely because the witnesses may be related to the victim or the complainant, their testimonies 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 the related witness to implicate a person falsely leaving aside the actual culprit. It is pertinent to note that only interested witnesses want to see the real culprit is brought -( 31 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP to book. In this regard, Hon'ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, has held in the following manner:
"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."
52. In another Judgment by Hon'ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of -( 32 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
53. In another Judgment by Hon'ble Supreme Court in the case of Jodhan v. State of M.P., (2015) 11 SCC 52, it has been observed that: -
"28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , it has been observed that: (SCC p. 271, para 28) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in -( 33 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP order to falsely implicate someone."
It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] .
29. From the aforesaid summarisation of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
54. Vinod Tomar (PW/1) has specifically stated in his evidence that incident took place on 8.4.04 when he was going by his motorcycle to Lashkar. Teetu @ Rajeev (PW/4) was sitting on the back seat of his motorcycle. By another motorcycle Vinod Rana and Pintu Rathore were coming behind them from Tansen Road. Ahead of them his brother Sanjay Tomar, Balli @ Manoj Rana were -( 34 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP going by their Splendor motorcycle. When Balli Rana and Sanjay Tomar reached near Life Insurance Corporation office, all of a sudden, Monu Chouhan and Tinku Tomar reached there by their motorcycle. Monu Chouhan was driving the motorcycle and Tinku Tomar was sitting behind and by another motorcycle Hira Singh and Rinku Tomar reached there. Tinku Tomar fired upon his brother Sanjay Tomar and he got injuries on neck and back and Rinku Tomar fired upon Manoj @ Balli Rana who got firearm injuries on his chest and hand. Sanjay and Manoj fell down on the spot. They were shifted to J.A. Hospital. The aforesaid statement of Vinod Tomar (PW/1) has been affirmed by Bhupendra Singh @ Pintu Rathore (PW/2), Sanjay Tomar (PW/3) who also got firearm injuries in the incident.
55. Learned counsel for the appellants have also submitted that the incident took place within the territorial jurisdiction of Police Station Padav despite the injured lodged FIR at Police Chowki Hazira which creates doubt over the prosecution story.
56. But in the present case on perusal of spot map it is apparent that the place of incident was in between Police Station Padav and Police Chowki Hazira. It is undisputed that the residence of the victims was at Hazira, therefore, while such incident takes place the normal phenomena is to reach home first and to intimate the family members. If on way to home if FIR was lodged at Police Chowki Hazira does not create any suspicion over the prosecution case.
57. It is also submitted by the learned counsel for the appellants that there are various contradictions in the statements given by the eyewitnesses and medical evidence in relation to firearm injuries. But the trial Court has rightly observed in para No. -( 35 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP 50-53 of its judgment that incident took place all of a sudden while traveling on motorcycle. Therefore, variations in ocular evidence and medical evidence is not fatal to the prosecution case. But as discussed above the doctor who conducted MLC and postmortem have specifically stated that the death of deceased was homicidal and injuries found on the body of injured were gunshot injuries. Therefore, no benefit could be given to the defence. The contradictions and omissions in the case are natural and are not fatal to the prosecution case. It is also submitted by the learned counsel for the appellants that in the present case no prosecution witness was examined. But this argument has again no force as during the course of recording of evidence one witness Bhupendra Singh was murdered. In such type of cases it is very tough to give evidence against such type of elements and it is also natural that no independent person wants to involve himself in such type of cases by being witness to the case.
58. Firearms were recovered as per the memorandum given by the accused/appellants and no valid licence was found. The prosecution witness R.K. Jain (PW/16) has proved the prosecution sanction Ex-P/18. Shivpratap Singh (PW/23) has stated that the seized firearms were sent to FSL Sagar by Ex-P/27 and the relevant report is Ex-P/28 wherein the forensic report has also supported the prosecution case by stating that the gunshot holes found on the Articles C1, C2 and C4 are caused by the seized firearms. Similarly, same used cartridges were recovered from the place of incident. D.S. Tomar (PW/25) has proved the investigation.
59. The doctor who conducted the autopsy has specifically opined that the cause of death was gunshot and also the doctor who conducted the MLC of the injured Sanjay Tomar has proved that the -( 36 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP injuries caused to the injured Sanjay were gunshot injuries. As discussed above, prosecution witnesses have supported the prosecution case and their evidence is corroborated by the scientific evidence. The contradictions and omissions in this case are not fatal to the prosecution case. The witness Bhupendra Singh Rathore who died during the course of trial, his statement recorded earlier to his death shall be considered as observed above. Variations in gunshots found on the body of deceased/injured and in the statements given by the prosecution witnesses are not material in the present case as the incident took place while traveling on motorcycles. Apart this, any gunshot caused with the intention to commit death is sufficient to prove the case. First information report is not an encyclopedia it is only an information of commission of cognizable offence and it is the starting point for any investigation of a cognizable offence. In the present case, witnesses have specifically said about their psychological condition that they were terrorized and during the course of trial one witness was murdered. Therefore, it would be more appropriate to consider the prosecution evidence as a whole. Considering the aforesaid facts of the case whenever any cognizable offence has been committed it is not required to lodge FIR only in the police station which is having territorial jurisdiction. It may be lodged at any police station and the territorial jurisdiction of a case shall be the place of incident and accordingly the relevant Court will try the case. Therefore, there is no force in the arguments advanced about FIR was not lodged to the Police Station Padav. Considering the psychological status of witnesses, if no independent witness had been examined has not caused any adverse effect to the prosecution case.
60. In the light of the foregoing discussion, we are of the -( 37 )- CRA No. 295/2007 Tinku Tomar @ Jitendra Singh & Anr. vs. State of MP considered opinion that the trial Court did not err in convicting and sentencing the present appellants. Hence, the appeal filed by the appellants is devoid of merits and is hereby dismissed.
61. Consequently, the appeal filed by appellants Tinku Tomar @ Jitendra Singh and Rinku @ Yatendra Tomar is hereby dismissed and their conviction and sentence passed by the trial Court is hereby confirmed. The appellant No.1 Tinku Tomar @ Jitendra Singh is in jail. He be intimated with the result of this appeal through relating Jail Superintendent.
62. As per report dated 12.8.2021 received from Superintendent, Central Jail, Gwalior Appellant No.2 Rinku @ Yatendra Tomar is in jail but he has been released on parole. Trial Court is directed to take steps to ensure the custody of the appellant No.2 Rinku @ Yatendra Tomar to serve out his remaining sentence.
Let a copy of this judgment along with record of the trial Court be sent back immediately.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
van
SMT VANDANA
VERMA
2021.10.05 19:18:04
-07'00'