Madhya Pradesh High Court
Nandu @ Nandkishore Dheemar vs State Of M.P. on 11 April, 2019
Author: Sheel Nagu
Bench: Sheel Nagu
CRIMINAL APEAL 664/2010
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Criminal Appeal No.664/2010)
Nand Kishore
Vs.
State of Madhya Pradesh
Shri Vinay Kumar Mishra, Advocate for the appellant.
Shri Manoj Dwivedi, Public Prosecutor for the respondent-
State.
JUDGMENT
(Delivered on 11 th Day of April, 2019) Sheel Nagu, J.
1. This appeal is directed against the judgment of conviction and the order of sentence dated 30/7/2010 passed by Additional Sessions Judge, Karera, District Shivpuri (M.P.) convicting the appellant Nandu @ Nand Kishore for the offence punishable u/S. 304 Part-II and sentencing him to suffer 10 years R.I.
2. In nut-shell, the case set up by the prosecution in the course of trial was that at about 6 p.m on 4/11/2009 argument and altercation took place near the under bridge at village Dinara between deceased Bharat and the appellant Nandu alias Nand Kishore on the issue of borrowing/returning of Rs. 250/-. During this argument/altercation, appellant gave 2 fist blows which landed on the nose and head of the deceased who fell down, went CRIMINAL APEAL 664/2010 2 into coma and thereafter succumbed to the injury. Inquest was registered u/S. 174 Cr.P.C. and after death of deceased, offence punishable u/S. 304 IPC came to be registered.
3. After investigation, charge-sheet was submitted. The matter was committed to the Court of Sessions where charge was framed against the appellant for the offence punishable u/S 302 IPC. 3.1 The appellant abjured guilt and sought trial. 3.2 The prosecution examined as many as 8 prosecution witnesses, namely, PW-1 Meerabai, PW-2 Phoolabai, PW-3 Ashok, PW-4 Rajendra Kumar, PW-5 Sunil @ Chhuni, PW-6 Kavindra Singh Chauhan, PW-7 Aman and PW-8 Dr. Ram Kishore Katiyar. 3.3 On the other hand, the appellant examined DW-1 Rajkumar in defence.
3.4 After hearing the learned counsel for the rival parties and on going through the evidence on record, the trial Court, convicted and sentenced the appellant for the offence punishable u/S. 304 Part-II IPC, as mentioned above.
3.5 Feeling aggrieved by the judgment of conviction and the order of sentence, the instant appeal is filed by the present appellant.
3.6 Learned counsel for the rival parties are head and record of the trial court is perused.
CRIMINAL APEAL 664/20103
4. As per the report submitted by Supdt. Central Jail Shivpuri, the appellant has already suffered the entire jail sentence of 10 years awarded to him by the trial court.
5. Learned counsel for the appellant primarily submits that even if the allegations made by the prosecution are treated to be true which are supported by the testimony of sole eye-witness PW- 5 Sunil @ Chhuni there is total absence of knowledge and as well as intention to commit murder of the deceased and therefore the provision of Section 304 IPC is not attracted. 5.1 Bare perusal of testimony of PW-5 Sunil @ Chunni reveals that he is an eye-witness who saw the appellant giving fist blows on the nose of deceased during argument/altercation. On sustaining the said fist blows, the deceased fell down on the ground and became unconscious and later died. 5.2 The deceased was 17-18 years able bodied young healthy man. The said eye-witness does not state that there was any attempt on the part of appellant to repeat the blow. Pertinently, there was no injury on any other part of the body of deceased. 5.3 Dr. Ram Kishore Katiyar PW-8 who conducted postmortem report found 2 contusions, one on the nose where mucous of right nostril was found ruptured with blood oozing out while other contusion was found 5 cm. above right eyebrow. The said PW-8 CRIMINAL APEAL 664/2010 4 found that there was no injury on the body except the said two injuries and the internal organs of the body were normal. The two injuries found on the head as aforesaid were categorized as simple in nature by PW-8. The doctor expressed his ignorance as regards the cause of coma and testified that it is difficult to say as to whether deceased would have survived in case proper medical assistance was extended to him. However, the doctor has stated that the death was caused due to second head injury situated 5 cms above the right eyebrow. Pertinently, the doctor PW-8 also testified that the injury No.2 situated 5 cms above the right eyebrow was in all probability caused due to head of deceased hitting the ground on his falling down after sustaining injury No.1. This aspect gets corroborated by the absence of any evidence to support the allegation that injury No.2 was inflicted by the appellant.
5.4 From the above it is evident that the present is a case of homicide but whether section 304 IPC would be attracted or not is a question to be examined.
5.5 Section 304 IPC provides for punishment for culpable homicide not amounting to murder. Culpable homicide is defined u/S. 299 IPC which is reproduced below for ready reference and convenience.
CRIMINAL APEAL 664/20105
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
5.6 A plain reading of Sec. 299 IPC will show that it contemplates three contingencies, satisfaction of any one of the three would constitute the offence of culpable homicide. These three contingencies are as follows:-
Causing death by act :-
"(i) with intention of causing death: or
(ii) with intention of causing such bodily injury as is likely to cause death; or
(iii) with knowledge that the act is likely to cause death".
5.7 Therefore to attract an offence u/S. 299 IPC, an accused should have caused death by doing an act either with the intention of causing death or with the intention of causing such bodily injury which is likely to cause death or by doing an act with the knowledge that he is likely by such act to cause death. CRIMINAL APEAL 664/2010 6 5.8 If act by which death is caused is done with intention of causing death, Sec. 299 IPC gets attracted. Similarly if the bodily injury is inflicted with intention to cause death then too the offence comes U/S. 299 IPC. Therefore in both the said contingencies, "intention" is the all important element present. However, in the third and last contingency u/S. 299 IPC the element of "knowledge" replaces "intention". 5.9 More so, even assuming that the present case is that of culpable homicide, the above discussion makes it clear that the overt act on the part of appellant does not fall within any of the contingencies which attracts the definition of culpable homicide and therefore question of concept of culpable homicide not amounting to murder coming into play does not arise. Thus, there is no necessity of going into exceptions laid down in Sec. 300 IPC. On application of any one or more of them relegates murder to culpable homicide not amounting to murder.
5.10(a) If the factual matrix which is proved by testimony of eye- witness PW-5 and medical evidence PW-8, is tested on the anvil of the aforesaid definition of culpable homicide then it is vivid that overt act ascribed to the appellant was that he had given one fist blow on the nose of deceased. The said injury was inflicted during the course of heated arguments between the deceased and CRIMINAL APEAL 664/2010 7 appellant. The factum of intention to cause death in the attending facts and circumstances is totally missing or else, if the appellant intended to cause death would have either used a weapon or repeated the fist blow to ensure death. There is no allegation of repeated blows on any part of the body of deceased or even use of weapon by the appellant. Thus, the element of intention to cause death is conspicuously missing.
5.10 (b) As regards contingency of intention of causing such bodily injury as is likely to cause death is also not attracted herein as giving of one first blow by no stretch of imagination can lead to the inference that the assailant intended causing of such bodily injury which is likely to cause death. Fist blow are means of assault used ordinarily to inflict minor injury. Thus, the appellant while giving single fist blow had no intention of causing any such bodily injury to deceased which was likely to cause death. If that was his intention then he would have continued the assault by repeating fist blows or picked up a weapon to cause grievous injury, which is not the case herein.
5.10 (c) As regards, the third contingency u/S. 299 IPC, i.e., "act done with knowledge that it is likely to cause death", it is seen that the element knowledge can also not be attributed to the appellant as no man of ordinary prudence can attribute such CRIMINAL APEAL 664/2010 8 knowledge upon a person who has merely caused single fist blow on the nose unless it can be shown that the appellant knew of deceased suffering from such physical infirmity which could render a single fist blow fatal. Thus, the knowledge of causing such injury which is likely to cause death also cannot be attributed to the appellant in the given facts and circumstances. 5.11 Therefore the facts and evidence in this case do not satisfy the basic ingredients of Sec. 299 IPC and thus conviction of appellant u/S. 304 Part-II IPC for having committed culpable homicide is unsustainable in law.
6. The next question which falls for consideration is as to what is the offence under IPC which is attracted in the given facts and circumstances, and the appropriate punishment ? 6.1 The testimony of Dr. Ram Kishore Katiyar PW-8 reveals that both injuries sustained on the head are simple in nature. 6.2 At this juncture, it is relevant to mention that the trial court rendered finding in para 29 of impugned judgment that injury sustained on the nose of deceased is though attributed to the appellant but there is no evidence to attribute the second injury on the head situated 5 cms above right eyebrow, to the appellant which impelled the trial court to conclude that possibility of the second injury having been sustained by hitting a stone lying on the CRIMINAL APEAL 664/2010 9 road while the deceased fell down on the ground after sustaining the fist blow cannot be ruled out. Thus, on the anvil of proof beyond reasonable doubt the only injury attributed to appellant is that on the nose.
7. Though, para 29 of the impugned judgment finds that there was fracture of nasal bone but the said finding appears to be perverse as the same is not supported by any opinion rendered in the postmortem report or the testimony of the doctor who conducted autopsy.
8. Since it is evident from the record that injury No.1 which was simple in nature is attributed to the appellant and not injury No.2, which is found to be the cause of death, the appellant at best can be found guilty of offence punishable u/S. 323 IPC.
9. Accordingly in the backdrop of the facts and evidence available on record, the impugned conviction of appellant u/S. 304 Part-II IPC is unsustainable. The appropriate offence found proved is u/s. 323 IPC.
10. In the result, the appeal preferred by the appellant is partly allowed. The conviction of the appellant is altered from one u/S. 304 Part-II IPC to that Sec. 323 IPC by reducing the sentence from 10 years R.I. to 1 year R.I. CRIMINAL APEAL 664/2010 10
11. There is no need to pass any order for release of the appellant as he has already been released after suffering the impugned sentence of 10 years R.I. awarded by the trial court.
12. A copy of this judgment be sent to the trial court concerned alongwith the record of this case for information.
(Sheel Nagu)
Judge
(Bu)
Digitally signed by DHANANJAYA
BUCHAKE
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JAYA
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Date: 2019.04.15 15:13:16 +05'30'