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Madhya Pradesh High Court

Ramniwas Lodhi vs State Of M.P. on 24 May, 2018

                                   1
                                                Cr.A. No.391/2009

           HIGH COURT OF MADHYA PRADESH
                  BENCH AT GWALIOR
          (DB : SHEEL NAGU & Vivek Agarwal, JJ.)
                        Cr.A. No. 391/2009
                         Ramnivas Lodhi
                                  Vs.
                            State of M.P.
 ___________________________________________________
For appellant
Shri B.K. Saxena, Advocate for the appellant.
For Respondent
Shri Rajesh Pathak, Public Prosecutor for the respondent/State.
___________________________ ________________
                           JUDGMENT

(24 .05 .2018) Per : Sheel Nagu, J.

CONTENT & CONTEXT

1. The present appeal preferred u/S. 374 Cr.P.C. assails the judgment dated 22.05.2009 passed in S.T. No. 197/2008 whereby the trial Court has convicted the appellant for the charge of murder of Ankit u/S. 302 of IPC and sentenced to suffer life imprisonment with fine of Rs. 1000/- with default stipulation.

2. Learned counsel for the rival parties are heard.

3. Brief facts giving rise to present case are that on 12.07.2008 at 11:30 A.M. Prakash Singh Lodhi complainant orally informed the police station that on the same day at 8:30 A.M. deceased Ankit (son of the brother of the complainant) and Girdhari (PW-5) then aged 11 years had gone to school. At 10 AM on the same day Girdhari (PW-5) and Badri (PW-3) came running and disclosed that the appellant has thrown the deceased in the well. The complainant Prakash Singh Lodhi (PW-2) and Mahesh rushed to the well and 2 Cr.A. No.391/2009 found that Badri (PW-3), Samrath (PW-4), Babulal Master and other had pumped out water from the well and took out the body of deceased. FIR (Ex. P-2) bearing crime No. 257/2008 was lodged and the dead body was sent for postmortem. The postmortem report (EX.P-1) was prepared by the autopsy surgeon Dr. Pradeep Sharma (PW-1). Statements of witnesses were recorded u/S. 161 Cr.P.C., whereafter appellant was arrested and requisite formalities of investigation were completed. Charge-sheet was filed before the committal court whereafter the case was committed to the court of sessions. Charge u/S. 302 IPC was framed against the sole accused/appellant who pleaded innocence and sought trial. The trial court after marshalling the evidence returned the finding of guilt and convicted the appellant for the charge of murder u/S. 302 IPC and sentenced him to life imprisonment alongwith fine of Rs. 1000/- with default clause.

4. Learned counsel for the appellant submits that there was no motive behind the offence as there was no animosity between the appellant and the deceased and his family members. It is further submitted that the appellant was admittedly indulging in regular consumption of Ganja (Narcotic Drugs) and therefore, the act of throwing the deceased in the well in the absence of any motive may ascribe knowledge to the appellant but no intention to terminate the life of the deceased. It is thus submitted that in the absence of all important element of mens rea, the conviction of the appellant u/S. 302 IPC is uncalled for.

5. Learned senior counsel also submits that he would be satisfied if the conviction of the appellant is converted from one u/S. 302 IPC to that u/S. 304 Part II IPC, and since appellant has suffered nearly 10 years of imprisonment, the appellant may be let off by converting the sentence to that of one undergone. In support of this contention, learned senior counsel for the appellant relies 3 Cr.A. No.391/2009 upon the decision of Apex Court in the case of Rajendra Vs. State of M.P. reported in (2008) 3 MPWN 45 and Atul Thakur Vs. State of Himachal Pradesh and others reported in (2018) 2 SCC 496.

6. Learned counsel for the State on the other hand opposing the submission of the appellant supports the findings rendered by the learned trial Judge and submits that in absence of the appellant having proved that he was overpowered by rage, insanity, heat of passion to the extent of compelling this court to hold absence of intention at the time of incident, no such interference is called for in the impugned verdict. It is submitted that the sole eye-witness Girdhari (PW-5) has supported the prosecution story by stating that appellant picked up the deceased who was 9 years old boy and threw him in the well which clearly demonstrates intention on the part of the appellant to commit the offence of murder. ANALYSIS

7. Since learned counsel for the appellant has merely sought conversion of the conviction u/S. 302 IPC to that u/S. 304 Part II IPC, this court refrains from going into detailed marshelling of evidence and restricts its judicial scrutiny to the evidence available on record to ascertain whether the all important element of intention to kill was present or not ?

7.1 Prakash Singh Lodhi (PW-2), Badri (PW-3) and Samrath (PW-4) are all hearsay evidence while Girdhari (PW-5) is eye- witness. Girdhari (PW-5) who is a 12 year old child witness who was accompanying the deceased at the time of incident has deposed that he knew the appellant and the deceased. PW-5 testifies that the incident took place around 8 a.m. when he was going to the school alongwith deceased (brother of the PW-5) when they reached the well situated on the way to the school the appellant met them, picked up the deceased and threw him in the nearby well. PW-5 then screamed which led to Badri (PW-3) and 4 Cr.A. No.391/2009 Samrath (PW-4) rushing to the spot to find that deceased had drowned in the well. PW-5 denied that the deceased fell in the well due to voluntary act loosing control and slipping down and thereafter again reiterated his earlier stand that appellant threw the deceased in the well. PW-5 further denied that appellant is insane. PW-5 also denied not having seen the incident. Thus PW-5 who is the sole eye-witness has supported the story of prosecution. 7.2 The FIR lodged by Prakash Singh Lodhi PW-2 alleged that appellant consumes Ganja and in a state of intoxication threw the deceased in the well. The said revelation in the FIR made by the complainant is of no evidentiary value as the complainant Prakash was not an eye-witness. In the absence of any such statement made by the sole eye-witness Girdhari (PW-5) of appellant being intoxicated at the time of incident, the said disclosure in the FIR made by Prakash (PW-2) is of no avail to the defense. Thus the contention of appellant that he was overpowered by intoxication while picking up and throwing the deceased in the well and therefore, the benefit of absence of intention ought to be presumed in favour of the appellant, is of no avail.

8. It is now well settled that culpable homicide is the genus and "murder" its species. For a "murder" to be legitimately converted into culpable homicide it has to squarely fall within one or more of the five exceptions prescribed in section 300 of IPC. 8.1 The first exception contemplates that when the act of causing death is done by offender who is deprived of power of self control by grave and sudden provocation with the rider that such provocation ought not to be voluntarily provoked by the offender or done in obedience to the law by public servant in exercise of powers of such public servant and further that the provocation is not given by anything done in the lawful exercise of right of private defence.

When the facts of the case are tested on the anvil of the above said first exception, it is obvious that there was no provocation at all for the appellant to be deprived of power of self control. The appellant at the time when deceased was going to school met him on the way, picked the deceased up a nine (9) year old boy and threw him in the well. The entire action of meeting the deceased on the way to the school, picking him up and throwing him in the well were purely voluntarily acts of the appellant, with total absence of any provocation from the deceased. 8.2 The second exception to section 300 IPC is that the offender in exercise of good faith of the right of private defense exceeds the said power and causes the death. The facts attending the instant case do not attract this exception and thus it is of no avail to appellant.

8.3 Exception 3 to Section 300 IPC relates to the offender being a public servant and acting in excess of the power given to him by law and causing death. This exception too has no application to the facts attending the present case.

8.4 Exception 4 to Section 300 IPC relates to the offender causing death without premeditation in a sudden fight in the heat of passion, sudden quarrel and without taking undue advantage of the situation or acting in a cruel or unusual manner.

Learned senior counsel for the petitioner has pressed this exception No.4 in support of his arguments. This court is afraid that the said contention of the learned senior counsel deserves to be rejected at the very outset as the said exception gets attracted when there is a sudden fight and in the heat of passion and without any premeditation, the offender causes death of the deceased. In the instant case, there was no quarrel or fight between the deceased and the appellant and therefore, the question of the appellant being engulfed by heat of passion did not arise.

Consequently the said exception 4 to Section 300 IPC is not available for the appellant to avail.

9. From the above, it is evident that the instant case does not fall within any of the four exceptions to section 300 IPC and therefore, now it has to be seen whether the facts and circumstances attending the case at hand satisfy the prerequisites of the offence of murder as enshrined in Section 300 IPC which is reproduced below without the exceptions:-

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

(Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

(Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

(Fourthly)--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

10. A plain reading of section 300 IPC reveals "intention of causing death" to be the heart and sole behind an crime of murder. If an act of causing death is done with intention to cause death, then the act can safely be categorized as murder provided it does not fall within any of the five exceptions to section 300 IPC. The element of intention can inter alia be gathered from the surrounding circumstances and the act of the offender immediately before, during and immediately after the incident. In the instant case, there was no animosity between the rival parties. The deceased and the offender did not indulge in any quarrel or fight. The appellant all of a sudden picked up the deceased a 9 year old boy who was going to school and threw him in the nearby well without any provocation from the deceased or from any other person. This overt act of the appellant in the absence of motive and past animosity appears to be a bit odd which ostensibly reflects abnormal behavior rendering 7 Cr.A. No.391/2009 the argument of learned senior counsel of the appellant that appellant was in a state of intoxication a wee bit attractive. Howsoever, attractive this argument may be but the same needs to be rejected outrightly in the absence of any evidence establishing intoxication or insanity to the extent the same is legitimately recognized under section 84 of IPC and chapter XXV of Cr.P.C.. Neither the police in the present case has recorded any such habits/traits of the appellant which may reflect insanity and nor the trial court which had the advantage of watching the demeanor of the appellant, directed for medical examination of the appellant for ascertaining the presence/absence of the element of insanity. Moreso, the appellant failed to make any request before the trial court in this regard and therefore, this court cannot presume that appellant was in a state of intoxication or was in any manner insane to enable him to seek protection u/S. 84 of IPC after passing the test laid down in the procedural provision under chapter XXV of Cr.P.C.. Accordingly the element of intention clearly reflects from the action of the appellant and therefore, it can safely be held that appellant intended putting the deceased to death by throwing him in the well.

10.1 The second and third clause of Section 300 IPC are inapplicable since no injury was inflicted to the deceased by direct assault made by appellant.

10.2 The fourth and last ingredient of section 300 IPC relates to an act which is so imminently dangerous that in all probability it may lead to causing of death or such bodily injury as is likely to cause death. Throwing of a 9 year old boy in a well is an imminently dangerous act which in all probability can cause instantaneous death of the child or can at least cause such bodily injury which is likely to cause death either by drowning or by smashing against the walls or dry bed of the well.

10.3. The above discussion reveals that the evidence found proved on record, satisfy the first and fourth clause to Section 300 IPC, thereby proving the offence of murder against the appellant.

11. The decision relied upon by the appellant in Atul Thakur (supra) is of no avail since the said case involved factual matrix where there was sudden fight creating heat of passion which compelled the Apex Court to conclude that the act was without premeditation thereby attracting exception 4 to section 300 IPC. Moreso the other case cited by the learned senior counsel for the appellant in Rrajendra (supra) also relates to factual matrix where altercation and quarrel took place between the appellant and the deceased which impelled the appellant to push the deceased into the well. In both these cases before the Apex Court and the Division Bench of this court, the act of assault was preceded by argument and altercation thereby bringing in the element of heat of passion to attract exception 4 of section 300 IPC. This all important factor of heat of passion is conspicuously missing in the case at hand.

12. As already explained above, none of the five exceptions to section 300 IPC come to the rescue of the appellant and therefore, this court is of the considered view that in the attending facts and circumstances and the evidence available on record, the conviction of the appellant u/S. 302 IPC alongwith consequential sentence as imposed by the learned trial judge, does not warrant any interference.

13. Accordingly, the present appeal deserves to be and is therefore dismissed.

                   (Sheel Nagu)                      (Vivek Agarwal)
                       Judge                             Judge
                     24/05/2018                        24/05/2018
       ojha




YOGENDRA OJHA
2018.05.24
16:36:13 -07'00'