Madhya Pradesh High Court
Sohrab Kha vs The State Of Madhya Pradesh on 6 March, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
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HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
CRIMINAL APPEAL NO.704/2008.
Division Bench: Hon'ble Shri Justice S. K. Gangele &
Hon'ble Smt. Justice Anjuli Palo.
Sohrab Khan
Vs.
State of Madhya Pradesh
For appellant : Ms. Alka Pandya, Advocate.
For Respondent : Shri Vijay Soni, Govt. Advocate.
Whether approved for reporting: Yes/ No.
JUDGMENT
(Delivered on 06.03.2018) As per S.K. Gangele, J:
1. Appellant has filed this appeal against the judgment dated 22.12.2007 passed by Additional Sessions Judge, Maihar District Satna in S. T. No.234/2007. Trial Court convicted the appellant under Section 302 of IPC and awarded sentence of life with fine of Rs.1,000/-.
2. Prosecution story in brief is that the deceased had taken loan of Rs.20/- from appellant. On the date of incident appellant made demand of Rs.20/- from the deceased and abused him. The deceased told the appellant that he had no money at present in that event appellant had taken out knife from his pocket and inflicted a blow at the deceased. He was admitted in the hospital. Thereafter he was referred to Sanjay Gandhi Memorial Hospital, Rewa. After fourteen days from the date of incident i. e. on 17.7.1994 the deceased was died. Police filed charge sheet. Appellant abjured guilt and pleaded innocence. Trial 2 Court held appellant guilty for commission of offence punishable under Section 302 of IPC and awarded sentence of life with fine of Rs.1,000/-.
3. Ms. Alka Pandya, learned counsel for the appellant has submitted that conviction of the appellant is based on report lodged by the deceased himself and statement of the deceased recorded by the police treating aforesaid document as dying declaration of the deceased. Eyewitnesses turned hostile, there is no sufficient evidence to hold appellant guilty for commission of offence of murder. In alternate, learned counsel for the appellant has submitted that offence committed by the appellant would fall under Section 304-I of IPC.
4. Learned counsel for the State has submitted that there is sufficient evidence to hold appellant guilty for commission of offence of murder. Trial court rightly held appellant guilty and awarded proper sentence.
5. Mst. Fatma Bi P.W.1 is the mother of the deceased. She deposed that when deceased taking tea at Paras hotel appellant called him and inflicted blow at the deceased by knife. My husband informed me about the incident. I had taken the deceased to Police Station where we lodged report. The deceased was admitted in the Hospital at Maihar. He was referred to Satna and thereafter Rewa. He was died after fourteen days of the incident.
6. Abdul Nayeem P.W.2, Raju @ Imam Khan P. W.3, Sher 3 Khan, P. W.4 and Kallu @ Rajjav Ali Khan turned hostile. They denied that they had witnessed any incident.
7. Dr. S. K. Pathak P. W.6 performed autopsy of the deceased. He deposed that I noticed one step wound on the person of the deceased. There was 22 stitches, pus was present in the cavity. Deceased received injuries on stomach and chest. He was died due to injuries suffered by him. There was injury in intestine of the deceased.
8. R. N. Pandey P.W.7 is Investigation officer. He deposed that report was lodged at the Police Station, which is Ex. P.7 and I signed the same.
9. Report was lodged by the deceased himself, which was recorded on the information given by the deceased. S. D. O. was requested to record dying declaration of the deceased. Statement of the deceased was also recorded. Dying declaration of the deceased was recorded by the Executive Magistrate. However, Executive Magistrate has not been examined. FIR is Ex. P.7, which was recorded on the instruction of the deceased. In FIR it is mentioned that the deceased had taken Rs.20/- as loan from the appellant, appellant made demand to return the money, deceased told the appellant that he had no money on that ground appellant had taken out knife from his pocket and inflicted a blow of knife on the chest of the deceased. Other persons reached at the spot. There is a statement of the deceased recorded by the SHO, which is Ex.P.11. In the aforesaid 4 statement deceased deposed same facts as mentioned above. FIR was recorded on the instruction of the deceased. There is a thumb impression of the deceased in the FIR. Statement of the deceased was also recorded. Mother of the deceased who had taken the deceased to Police Station deposed that she had taken the deceased to the Police Station where FIR was lodged by the deceased himself. She also deposed that deceased told her that appellant had inflicted blow of knife.
10. In view of the aforesaid evidence, trial Court has rightly held appellant guilty for killing the deceased because dying declaration of the deceased was natural and could be relied.
11. Next question is that what offence appellant had committed. It is a fact that deceased was died after fourteen days of the incident. He was admitted in the hospital.
12. The Hon'ble Apex Court in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under
in regard to difference between intention and motive:
"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh's case, in Jai Prakash v. State (Delhi 5 Administration) (1991) 2 SCC 32, para (12), this Court held as under:-
"12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p.
620, para 7) '7. ... These observations of Vivian Bose, J. have become locus classicus.
The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.' The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of 6 injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place."
13. In the present case appellant had inflicted one blow. Deceased was died after fourteen days of the incident. There was a pus in the cavity. The Apex court has held that intention requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.
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14. In the present case appellant made a demand of Rs.20/- which was taken by the deceased in that even, he had inflicted a blow.
15. Looking to the evidence available on record and the fact that deceased was died after fourteen days of the incident. Offence committed by the appellant would fall under Section 304-I of IPC. Appellant is in jail since 29.3.2006 as per record of the trial Court. He has completed near about 12 years of actual jail sentence. Hence, in our opinion, it would be just and proper, if appellant be awarded jail sentence as already undergone. Hence, appeal filed by the appellant is allowed in part. Conviction and sentence of appellant awarded by the trial Court is hereby set aside. He is convicted under Section 304-I of IPC, he is awarded jail sentence as already undergone. He is in jail. He be released forthwith, if he is not required in any other case.
16. Appeal is allowed in part, as indicated above.
(S.K. Gangele) (Smt. Anjuli Palo)
JUDGE JUDGE
Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2018.03.19 15:39:25 +05'30'
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