Rajasthan High Court - Jodhpur
Munna Lal @ Munna vs State on 18 January, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 701 / 2006
Munna Lal @ Munna S/o Bhanwar Lal, by caste Balai, resident of
near Gate No.100, Baipura, Merta Road, District Nagaur
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Mridul Jain
For Respondent(s) : Mr. Vishnu Kachhawa, LEARNED PUBLIC
PROSECUTOR
For complainant (s) : Mr.Vishal Sharma and Mr. Gaurav Singh
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 18/01/2017 The instant cr. appeal has been filed by the accused appellant Munna Lal @ Munna under Section 374(2) Cr.P.C. against the judgment dated 12.6.2006 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases - cum - Addl. Sessions Judge, Merta in Sessions Case No.54/2005 whereby the accused appellant was convicted for offence under Section 302 IPC and for offence under Section 4/25 of the Arms Act and following sentence was passed against him:
Under Section 302 IPC Life imprisonment with fine of Rs.10,000/- and in default of payment of fine to further (2 of 13) [CRLA-701/2006] undergo six months SI.
Under Section 4/25 of the Arms Act. One year RI with fine of Rs.500/- and in default of payment of fine to further undergo two months SI.
As per brief facts of the case on 22.4.2004 the complainant PW--9 Dharm Singh, the then Station Master, Merta Road submitted a written report (Ex.P/1) at Police Station Merta Road alleging therein that Sumer Singh Gujar Senior Clerk was on duty on 22.4.2004 from 20 hours to 8 hours. In the night at about 1.00 am Sumer Singh while taking two water bottles from running room coming back, at that time, the complainant heard cry of Sumer Singh ―eqUuk yky us ekj fn;kA‖. The complainant Dharm Singh went out and saw that Sumer Singh coming towards office of station master and blood was coming out from his chest. The injured Sumer Singh told that Munna Lal inflicted knife blow upon his chest. After saying so, Sumer Singh fell down and became unconscious. The complainant called other railway employees and gave information of inclined to the police so also, took Sumer Singh, injured to the hospital, but he was declared dead in the hospital.
Upon aforesaid written complaint (Ex.P/1), the SHO Police Station GRP, Merta registered the FIR no.24/2004 (Ex.P/13) and commenced investigation. It emerges from the fact that after incident, accused appellant absconded, therefore, not arrested for more than one year and was arrested on 4.6.2005 at 5.00 pm in presence of two witnesses Basant Sharma and Rajendra Prasad.
(3 of 13) [CRLA-701/2006] After arrest, during investigation, as per his information given under Section 27 of the Evidence Act by the accused appellant, one knife was recovered vide Ex.P/23 on 9.6.2005 at 1.00 pm in presence of two witnesses Chena Ram and Basant Kumar. The recovered knife was sealed on spot and mark ‗A1' was given upon sealed article, two other articles were also recovered from the place of occurrence and on completion of investigation, charge sheet was filed against the accused appellant in the court of Addl. Chief Judicial Magistrate, Railway, Jodhpur from where case was committed to the court of Sessions Judge, Merta for trial.
The trial court framed charge under Section 302 IPC and under Section 4/25 of the Arms Act against the accused appellant after providing an opportunity of hearing, but accused appellant denied the charge levelled against him and prayed for trial.
In the trial, statements of 22 prosecution witnesses were recorded and 35 documents were exhibited from prosecution side. Thereafter, the statement of the accused appellant were recorded under Section 313 Cr.P.C. in which accused appellant denied all the allegations levelled by the prosecution witnesses and said that on the date of occurrence went out of town to attend marriage of daughters of Hema Ram and Satyanarayan and denied the allegation for committed offence of murder. In defence, statements of four defence witnesses namely DW-1 Joga Ram, DW-2 Rambali, DW-3 Prakash Chandra and DW-4 Raju Ram were recorded and 9 documents were exhibited from defence side.
The learned trial court after recording evidence, finally heard the arguments and passed the impugned judgment dated (4 of 13) [CRLA-701/2006] 12.6.2006 whereby accused appellant was convicted for offence under Section 302 IPC and under Section 4/25 of the Arms Act and the sentence aforesaid was inflicted upon him.
At the threshold, learned counsel for the appellant submits that the appellant is not challenging the incident, but assailing the finding of conviction recorded against him for the offence under Section 302 IPC on the ground that even if the entire prosecution evidence is accepted then also, the offence cannot travel beyond offence under Section 304 Part I IPC because as per whole prosecution case only one injury was caused by the accused appellant by knife and run away from the place of occurrence. It is also submitted that there is no evidence of motive or intention on record, more so, as per statement of Dharm Singh, author of the FIR, before incident some noise was heard by him, therefore, obviously, occurrence took place all of sudden in spur of moment without pre-meditation. According to appellant learned trial court has committed an error to held him guilty for offence under Section 302 IPC instead of for offence under Section 304 Part I IPC.
Learned counsel for the appellant argued that accused neither arrested after one year from the date of occurrence, disputing recovery of knife nor recovery of other articles but challenging finding of guilt recorded against him by learned trial court for offence under Section 302 IPC because as per prosecution evidence only one injury was inflicted by the accused appellant and no blood was found upon the knife recovered from the accused appellant, therefore, facts of evidence of prosecution (5 of 13) [CRLA-701/2006] loudly speaks that offence cannot traveled beyond offence under Section 304 Part I IPC. The learned trial court has committed grave error to held accused appellant guilty for offence under Section 302 IPC.
While inviting attention towards the post mortem report and statements of PW--6 Dr. Mohd. Afjal who had conducted post mortem of the deceased Sumer Singh , the learned counsel for the appellant submits that in the post mortem report (Ex.P/7) it is nowhere stated by the doctor that injury caused to the deceased was sufficient to cause death and this fact is admitted by the doctor in his cross-examination, more so as per statement of the doctor only one injury was found upon right side of lung and no other injury was caused. It is admitted fact that no injury was caused by the accused appellant upon chest, which is vital part of the body. Therefore, the finding of conviction recorded by the learned trial court for the offence under Section 302 IPC deserves to be altered to Section 304 Part I IPC. In support of his arguments, the learned counsel for the appellant invited our attention towards following judgments of the Hon'ble Supreme Court and this court, viz. (i) Suresh Sitaram Surve Vs. State of Maharashtra reported in 2003(1) WLC (SC) Criminal, 280, (ii) Kalegura Padma Raod & Anr. Vs. The State of A.P. reported in 2007(1) WLC (SC) Criminal 555, (iii) State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165, and (iv) Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 and judgment of Division Bench of this Court in the case of Shiv Kumar @ Pappu Vs. The State of Rajasthan reported in 2010(2) CJ (Cr.) (Raj.) (6 of 13) [CRLA-701/2006]
796. In view of above submission it is prayed that judgment impugned may kindly be quashed to the extent of finding recorded for offence under Section 302 IPC against the accused appellant and it may be altered to Section 304 Part I IPC.
Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently argued that it is a case in which although there is no evidence of motive or intention on record but seriousness of offence can be ascertained from the injury caused to the deceased by the accused appellant. While inviting attention towards the post mortem report it is submitted that although only one injury was inflicted by knife by the accused appellant but that injury was so serious which resulted into death on spot.
Learned Public Prosecutor submits that in every case it is not necessary that there must be evidence of motive but other circumstances and evidence is required to be seen so as to ascertain the intention of the accused, therefore, in this case, the learned trial court while considering entire evidence in right perspective held accused appellant guilty for offence under Section 302 IPC and therefore, no interference is called for so as to alter the conviction from offence under Section 302 IPC to Section 304 Part I IPC.
Learned Public Prosecutor and learned counsel for the complainant submits that before registration of this case, seven other cases were pending against the accused appellant, therefore, obviously the accused appellant is habitual offence, hence, his prayer deserves rejection because prosecution has proved its case beyond reasonable doubt and accused appellant (7 of 13) [CRLA-701/2006] himself is not disputing the incident.
After hearing learned counsel for the parties, first of all, we have considered the statement of PW--6 Dr. Mohd. Afjal who has conducted post mortem of the deceased. In examination-in-chief, it is stated by the doctor that only one stab injury was found upon the right side of lung of the deceased and as per allegation against the accused appellant the said injury was caused by knife which is said to be recovered at the instance of the accused appellant after one year. Upon information of the accused under Section 27 of the Evidence Act but no blood was found.
Admittedly, the learned counsel for the appellant is not challenging the incident, his limited prayer is to alter the conviction from offence under Section 302 to offence under Section 304 part I IPC because as per the whole prosecution case, only one injury was caused by the accused appellant to the deceased, that too, was upon right side of lung of the deceased Sumer Singh and he died due to loss of blood. The PW--6 Dr. Mohd. Afjal gave following statement in examination-in-chief with regard to the injury caused to the deceased, which reads as under:-
―e`rd ds lhuk ij nkfguh vksj fuIiy ds FkksMk Åij vkSj vUnj dh rjQ LVsc oqaM FkkA e`rd ds nkfgus QsQMs ij Hkh LVsc oqaM FkkA blds vfrfjDr 'kjhj ij dksbZ pksV dk fu'kku ugha FkkA esjh jk; esa e`rd dh e`R;q nkfgus QsQMs ij yxs LVscoqaM ds QyLo:i gq, vR;f/kd jDrLrzko ls igqWps vk?kkr ds dkj.k gqbZ FkhA e`R;q dh vof/k ijh{k.k ds le; ls 6 ls 8 ?kaVs ds Hkhrj dh FkhA‖ In the cross-examination, the doctor accepted that in the post mortem report (Ex.P/7) it is nowhere recorded by him that injury caused to the deceased was sufficient to cause death, this (8 of 13) [CRLA-701/2006] fact is recorded in his statement, which reads as under:
―;g lgh gS fd iksLVekVZe fjiksVZ izn"kZ ih-7 esa eSus ;g ugha fy[kk gS fd e`Rd ds vk;h pksV izdf` r ds lkekU; vuqdze esa dkfjr djus ds fy;s i;kZIr FkhA vt[kqn dgk ;g iksLVekVZe fjiksVZ esa ugha fy[kk tkrk gSA nks ilfy;ksa ds chp dh txg dks bUVjdksLVy Lisl dgk tkrk gSA ;g Lisl yxHkx ,d bat gksrk gS tks nks ilfy;ksa ds chp dk Lisl gksrk gSA eq>s jsyos foHkkx dh vksj ls dksbZ rgjhj tkjh ugha gqbZ FkhA‖ In view of above evidence it is not undisputed that only one injury was caused by the accused appellant and there is no evidence on record to prove the motive or intention of the accused appellant for committing offence, therefore, obviously, it is a case of culpable homicide not amounting to murder and falls under clause III of Section 300 of the IPC.
In case of Virsa Singh Vs. State of Punjab, reported in 1958 SCR 1495, Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 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 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 was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely (9 of 13) [CRLA-701/2006] objective and inferential and has nothing to do with the intention of the offender.
The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows :
"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 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."
The learned Judge explained the third ingredient in the following words (at page 468):
"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."
(10 of 13) [CRLA-701/2006] These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case (supra) for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.
Thus, according to the rule laid down in Virsa Singh case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a (11 of 13) [CRLA-701/2006] particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate and clear cut treatment to the matters involved in the second and third stages.
The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya 1977(1) SCR 601 and Abdul Waheed Khan alias Waheed and ors. v. State of A.P. (2002 (2) WLC (SC) Cri. 445 : JT 2002 (6) SCC 274.
The above principle was reiterated in subsequent judgments in the case of (i) Suresh Sitaram Surve Vs. State of Maharashtra reported in 2003(1) WLC (SC) Criminal, 280, (ii) Kalegura Padma Raod & Anr. Vs. The State of A.P. reported in 2007(1) WLC (SC) Criminal 555, (iii) State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165, and (iv) Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 In the case of Shiv Kumar @ Pappu Vs. State of Rajasthan (supra) in almost identical facts, the carbonate bench of this Court while relying upon the aforesaid principles converted the conviction from offence under Section 302 IPC to Section 304 Part (12 of 13) [CRLA-701/2006] I IPC and following adjudication is made by this court in paras nos.33, 34 and 35, which reads as under:
"33. Common object is to be inferred from the acts, behaviour and other surrounding elements, including conduct and reaction prior and after. In certain circumstances, different may be object at different intermittent stages, in determining common object, the conduct of each member of the unlawful assembly before or at the time of incident and even after is relevant. Here no else other than Shiv Kumar carried any article for causing injury and nothing to suggest that knife with Shiv Kumar was in knowledge of any other member of unlawful assembly. No injury even of hard object is only Shiv Kumar ran away and others though disbursed soon but not so much hurriedly, therefore, in the opinion of the Court, only common object of causing but could have been and so stands proved. Therefore, members, other than Shiv Kumar common object only was of causing simple injuries. Hon'ble the Apex Court has also observed in
(i) 2009 (10) SCC 773 Pandurang Chandrakant v.
State of Maharashtra and (ii) 2009 (7) SCC 415 Akbar Shekh v. State of West Bengal, that when many who participated in the commission of crime, are to be convicted with the aid of S.149, needed is consideration of particular fact situation, including overt act proved. Here, it was only Shiv Kumar who stabbed and became away runningly fast.
34. Accordingly, appellants other than Shiv Kumar (Satiya @ Satyanarain, Balia, Purshottam Lal & Omprakash @ Kalu) are held guilty of offences punishable under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act.
35. For the aforesaid reasons, appellant Shiv Kumar is to held guilty of S.304 Part I IPC and also of S.147 IPC and S.145 Railways Act. Appellants Satiya, Balia, Purshottam and Omprakash are guilty of offences under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act. All are to be acquitted if the offences of S.302 or 302 read with S.149 IPC.
36. Appellant Shiv Kumar is in custody since March, 3, 2000 and by now, has suffered imprisonment little more than ten years. All other circumstances remaining normal, he should have also earned remission so now, therefore, in the opinion of the Court, sentence for the period already undergone with fine of Rs.10,000/- shall be just and appropriate. Other appellants, broadly remained in custody for about four months so for them also for the offences they have been guilty, sentence of period already undergone shall meet ends of justice."
(13 of 13) [CRLA-701/2006] In view of the above discussion, we are of the opinion that finding of guilt recorded by the learned trial court for offence under Section 302 IPC deserves to be altered to offence under Section 304 Part I IPC. The accused appellant Munna Lal @ Munna is arrested on 4.5.2006, since then he is in behind the bars, therefore sentence deserves to be reduced from life imprisonment to already undergone.
In view of above discussion, the instant appeal is partly allowed. The conviction of the accused appellant for offence under Section 302 IPC imposed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases - cum- Addl. Sessions Judge, Merta in Sessions Case No.54/2005 vide judgment dated 12.6.2006 is hereby altered to Section 304 Part I of IPC and the sentence of life imprisonment is hereby reduced to already undergone while maintaining the order of fine. The conviction and sentence as imposed by the learned trial court for the offence under Section 4/25 of the Arms Act is hereby maintained. (GOVERDHAN BARDHAR)J. (GOPAL KRISHAN VYAS)J. cpgoyal/-ps