Madhya Pradesh High Court
Maharaj Singh vs State Of M.P. on 21 December, 2017
Author: G. S. Ahluwalia
Bench: G. S. Ahluwalia
1 CrA. 884/2009
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon'ble Shri Justice Anand Pathak &
Hon'ble Shri Justice G. S. Ahluwalia, J.J.
Cr.A.884/2009
Maharaj Singh
Vs.
State of MP
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Shri Ashok Kumar Jain, counsel for the appellant.
Shri BPS Chauhan, Public Prosecutor for the respondent/
State.
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JUDGMENT
(Delivered on 21/12/2017) Per G.S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 27-10- 2009 passed by 2nd A.S.J. (Fast Track Court), Pichhore, Distt. Shivpuri in S.T. No.151/2007, by which the appellant has been convicted under Section 302 of I.P.C. and has been sentenced to undergo the Life Imprisonment and a fine of Rs.500/- with default imprisonment.
2. The necessary facts for the disposal of the present appeal in short are that the complainant Lalaram gave an information that his uncle Barelal and his father Baghraj had jointly purchased 10 biswa of land from Kishori. On 5-5- 2007, at about 8:00 am in the morning, the appellant was cultivating the land without the consent of the complainant and his father, therefore, the complainant and his father objected to it. The appellant got annoyed and out of anger and in heat of passion, ran his tractor over the body of the deceased by driving the tractor in rash manner, as a result of which his father, Baghraj has expired. The incident has been witnessed by Harbhajan and Panni. On this report, the police registered the F.I.R., prepared the spot map, sent the body for postmortem, recorded the statements of the witnesses, 2 CrA. 884/2009 the tractor was seized and after completing the investigation, filed the charge sheet for offence under Section 302 of I.P.C.
3. The Trial Court framed charge under Section 302 of I.P.C.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution in order to prove its case, examined Lalaram (P.W.1), Harbhajan (P.W.2), Pannilal (P.W.3), Dr. S.K. Shandilya (P.W.4), Hajrat (P.W.5), A.K. Kulshreshtra (P.W.6), Ramniwas (P.W.8), Jagroop Singh (P.W.9), Shaheed Khan (P.W.10), Brajbhan (P.W.11), Brajbhan S/o Kishori (P.W.12), and Sanjay Chaturvedi (P.W.13). The appellant examined Jiyalal Mehtar (D.W.1) and Harvaan Singh Lodhi (D.W.2) in his defence.
6. The Trial Court after appreciating the evidence, and hearing both the parties, convicted the appellant under Section 302 of I.P.C. by judgment and sentence dated 27- 10-2009 in S.T. No.151/2007 and sentenced him to undergo the Life Imprisonment and a fine of Rs. 500/- with default imprisonment.
7. Challenging the correctness and veracity of the judgment and sentence passed by the trial Court, the Counsel for the appellant, did not challenge the truthfulness of the witnesses, however, submitted that even if the entire prosecution case is accepted, then it would be clear that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and therefore, his conviction under Section 302 of I.P.C. may be altered to Section 304 Part I of I.P.C. It is submitted by the Counsel for the appellant, that it has come on record, that there was no enmity between the parties. On the contrary, the appellant had always treated the deceased like his father. Some hot talk might have taken place on the question of cultivation of field and on that issue, the appellant under the moment of anger, ran his tractor over the deceased. It is submitted that although knowledge may be attributed to the appellant, but from the facts and 3 CrA. 884/2009 circumstances of the case, it cannot be inferred that the appellant had intention to cause such bodily injuries, which were sufficient in their ordinary course of nature to cause death of the deceased.
8. Per contra, it is submitted by the Counsel for the State that Lalaram (P.W.1) has specifically stated that the appellant had run over the tractor thrice, thus, it cannot be said that the appellant did not have intention to kill the deceased.
9. Heard the learned Counsel for the parties.
10. Since, the appellant has not challenged the incident, therefore, the facts of the case would be considered, in order to ascertain the nature of offence.
11. Dr.S.K. Shandilya (P.W.4) has conducted the postmortem of the dead body of Baghraj. He had found the following injuries :
''(i). Contusion over forehead, between eyebrow.
(ii) Compound fracture of right lower leg tibia and fibula 6"above ankle. Tyre mark seen over skin 3 cm length.
(iii) Lacerated wound - Left lower arm 4x4x2 cm. 4"below elbow joint. Skin is crushed. Wound show dust particles and tyre mark.
On internal Examination, the following injuries were found :
(i) Compound fracture of left orbit of eye, Nasopharyx and Nasal AIR sinus and extra-dural Haematoma and laceration of brain.
(ii) Compound fracture of right tibia and fibula lower leg.
(iii) Lacerated wound left lower arm.'' The cause of death was due to COMA resulted due to fracture of left orbit of eye and Nasoparynx.
The Postmortem report is Ex. P.1.
Thus, from the Postmortem report, it is clear that tyre marks were found on the body of the deceased.
Dr. S.K. Shandilya (P.W.4) has admitted in his cross examination that the injury on the head could have been caused due to fall on the ground.
4 CrA. 884/2009Thus, it is clear that the deceased Baghraj had sustained injuries, because of running over of vehicle, thus, his death is either accidental or homicidal. Now, the circumstances of the case would determine, that whether the death of Baghraj was homicidal or accidental.
12. Lalaram (P.W.1) is the First Informant. However, surprisingly, the police did not record its statement under Section 161 of Cr.P.C. This fact has also been admitted by Investigating Officer, Sanjay Chaturvedi (P.W.13). In the merg information, Ex. P.2, and F.I.R., Ex.P.3, it was alleged by this witness, that the appellant was forcibly cultivating the land and when it was objected by the complainant and his father, then the appellant with an intention to kill the deceased, ran the tractor over the deceased as a result of which he expired and the incident has been witnessed by Panni and Harbhajan. In Court evidence, this witness has stated in his examination in chief, that the appellant had run the tractor thrice over the deceased. However, he was confronted with this omission in the F.I.R. and in para 6 of his cross examination, he could not explain as to why the running of tractor over the deceased, thrice, has not been mentioned in the F.I.R. As already mentioned the case diary statement of this witness under Section 161 of Cr.P.C. was not recorded.
13. Harbhajan (P.W.2) and Panni (P.W.3) have not stated that the tractor was run by the appellant thrice over the body of the deceased. Harbhajan (P.W.2) and Panni (P.W.3) have stated that when the deceased tried to stop the appellant from cultivating the land, then the appellant tried to run the vehicle and the deceased tried to run away in order to save his life, but even then, the appellant ran his tractor over the deceased. There is no mention that the appellant ran the tractor, thrice over the deceased. Thus, it is clear that when the deceased tried to run away from the spot, the appellant in a moment of anger, ran his tractor over 5 CrA. 884/2009 the deceased as a result of which, he sustained injuries on his head and leg and hand. Although, Dr. S.K. Shandilya (P.W.4) has admitted in his cross examination that in case of fall on a hard surface like stone, the head injury could have been caused, but there is nothing on record to suggest that any stone was lying in the agricultural field where the incident has taken place. However, it is possible that the head of the deceased might have dashed against any iron part of the tractor as a result of which he might have sustained head injury, as the Dr. S.K. Shandilya (P.W.4) did not find any tyre mark on the head of the deceased. Even otherwise, no crush injury was found on the head of the deceased. The deceased went in COMA due to internal head injury sustained by the deceased. In absence of any crush injury on the head of the deceased as well as in absence of any tyre mark on the head of the deceased, coupled with the fact, that only contusion was found over forehead in between eyebrows, it is possible, that the deceased might have sustained head injury while falling on the ground. The remaining two injuries are on leg and hand. Although compound fracture of tibia and fibula bones of right leg were found but only lacerated wound was found on left lower arm below elbow joint. Thus, the injuries sustained by the deceased also do not suggest that the tractor was run over for multiple times.
14. Thus, this Court is of the considered opinion that the death of the deceased was homicidal in nature. The deceased was cultivating the land without the permission and consent of the complainant and the deceased and when, it was objected by them, the appellant got annoyed and under a moment of anger and in a heat of passion, run the tractor over the body of the deceased. There is nothing on record to suggest that the appellant had taken undue advantage of the situation. it cannot be said that the appellant had an intention to cause death of the deceased.
6 CrA. 884/2009The incident was not premeditated and the hot talk between the parties led to the causing of injuries to the deceased by running the tractor over him.
15. The Supreme Court in the case of Bivash Chandra Debnath Vs. State of W.B., reported in (2015) 11 SCC 283 has held as under :-
''19......... if the prosecution story is taken to be true, the act allegedly committed by the appellants only constitutes culpable homicide not amounting to murder, punishable under Section 304 Part II IPC. In this connection, attention of this Court is drawn to Exception 4 to Section 300 IPC, which reads as under:
'' E 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.-- It is immaterial in such cases which party offers the provocation or commits the first assault."
20. On appreciation of evidence on record of the present case, we agree with the contention of the learned Senior Counsel for the appellants that since it is a case of sudden fight and there was no premeditation on the part of the appellants and the offenders have not acted in "unusual manner", their acts are covered under Exception 4 to Section 300 IPC. In the similar case in Pulicherla Nagaraju v.
State of A.P., in para 29, this Court has discussed the issue as to when the conviction can be converted from an offence punishable under Section 302 IPC to Section 304 Part I or Section 304 Part II IPC and the same is reproduced hereunder:
(SCC pp. 457-58, para 29) "29. 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 7 CrA. 884/2009 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 premeditation. 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 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 premeditation;
(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 8 CrA. 884/2009 which may throw light on the question of intention. Be that as it may."
The Supreme Court in the case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465, has held as under:
''21. 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 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 Supreme Court in the case of State of Rajasthan Vs. Santosh Savita, reported in (2013) 12 SCC 663, has held as under :
''22. The only other question which remains to be decided in this case is whether the respondent should be held guilty of the offence under Section 302 IPC, or Section 304 IPC. A person could be held to be guilty of the offence under Section 302 IPC, if he commits murder. The relevant portion of Section 300 IPC, which defines "murder" is extracted hereunder:
"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 9 CrA. 884/2009 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."
Under the first clause, if the act by which the death is caused is done with the intention of causing death, the act amounts to murder. Under the second clause, if the act 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, the act amounts to murder. Under the third clause, if the act 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 act amounts to murder. In each of the three clauses, intention to cause death or to cause the bodily injury is an essential ingredient of the offence of murder. Under the fourth clause, 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, he is said to have committed murder.
Hence, under the fourth clause, knowledge of the act committed by the accused that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, is a necessary ingredient for the offence of murder.
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24. As found by the High Court, there was some delicate relationship between the respondent and the deceased and it is difficult to believe that the respondent had any intent to cause death or bodily injury to the deceased. Rather, it appears to us that the death of the deceased has been caused by a reckless act of the respondent with the knowledge that it is likely to cause 10 CrA. 884/2009 death and for this act the respondent is guilty of culpable homicide not amounting to murder under Section 304 Part II IPC.
The respondent has undergone imprisonment of approximately six years and the incident is of the year 1997. In the peculiar facts and circumstances of the case, the period of imprisonment undergone by the respondent-accused and a fine of Rs 2000 are sufficient punishments under Section 304 Part II IPC.
The Supreme Court in the case of Dilip Kumar Mondal Vs. State of West Bengal, reported in 2015 AIR SCW 616 has held as under :-
''23. Considering the totality of the facts and circumstances of the case, we are unable to agree with the view taken by the courts below that the incident was a premeditated one. As discussed earlier, the accused had been objecting to the ingress and egress of the bullock cart in their field and no sooner did the deceased try to enter their field, than a free fight ensued between the parties. Insofar as the contention of the prosecution, that the accused were already armed with deadly weapons to pounce upon the deceased-complainant party, it appears to be not acceptable as the accused party were proceeding to their fields for carrying out their agricultural work and, therefore, it is quite normal for them to possess such agricultural instruments which are used as weapons in this case. Upon consideration of the entire evidence and the facts and circumstances of the case, in our view, there was no premeditation on the part of the appellants and the incident was a sudden fight.
24. In order to invoke Exception 4 to Section 300 IPC, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-
mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged 11 CrA. 884/2009 injuries caused to them. As far as PW-10-Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall under Section 300IPC Exception 4 and the conviction of the appellants is to be modified and altered under Section 304 Part I IPC.''
16. Thus, if the facts of the case are considered, then it is clear that the appellant was cultivating the field without the consent and permission of the complainant and the deceased, therefore, it was objected by the complainant and the deceased. The appellant got annoyed and in the moment of anger and in heat of passion, ran his tractor over the deceased. The injuries on the hand and leg were having tyre mark whereas the head injury was neither the crush injury nor was having any tyre mark. The deceased went in COMA due to Internal Head Injuries, and he died on the spot. There is nothing on record to suggest that the appellant ever tried to run over the tractor repeatedly. Harbhajan (P.W.2) has also stated that the appellant used to treat the deceased like his father. Thus, it is clear that the incident took place because of some altercation between the appellant and complainant party, and there was no premeditation. There was no enmity between the parties. The appellant in a moment of anger, ran the vehicle over the deceased causing injuries to him, however, didnot try to run over the vehicle again, thus, it is clear that he didnot try to take undue advantage of the situation. Thus, in the considered opinion of this Court, the case would not fall within the category of murder and the offence can be converted into under Section 304 Part I of I.P.C. Accordingly, the appellant is acquitted for charge under Section 302 of I.P.C. and is convicted under 12 CrA. 884/2009 Section 304 Part I of I.P.C.
17. The judgment dated 27-10-2009 passed by 2 nd A.S.J. (Fast Track Court), Pichhore, Distt. Shivpuri in S.T. No.151/2007 is modified and the conviction of the appellant under Section 302 of I.P.C. is hereby set aside and is converted from 302 of I.P.C. to 304 Part I of I.P.C.
18. The Counsel for the appellant is heard on the question of sentence.
19. The appellant is in jail from the date of his arrest i.e., 16-5-2007 i.e., he has completed more than 10 years of actual imprisonment. Under the facts and circumstances of the case, the period of sentence already undergone by the appellant would be sufficient to meet the ends of justice.
20. Accordingly, the jail sentence awarded by the Trial Court is modified to the extent mentioned above.
21. The appellant is in jail. He be immediately released from jail, if not required in any other case.
22. The appeal succeeds and is Partly Allowed.
(Anand Pathak ) (G.S. Ahluwalia)
Judge Judge
*MKB*
MAHENDRA KUMAR BARIK
2017.12.22 14:03:12 +05'30'