Madhya Pradesh High Court
Naresh Sharma vs The State Of Madhya Pradesh on 14 September, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.1247 of 2014
Between:-
NARESH SHARMA, S/O MAITHILI
SHARAN SHARMA, AGED 28 YEARS,
R/O VILLAGE PADRI P.S.
INDERGARH, DISTRICT DATIA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI A.K. JAIN - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
INDERGARH, DISTRICT DATIA
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS. ANJALI GYANANI- GOVERNMENT
2
ADVOCATE )
--------------------------------------------------------------------------------
Reserved on 22.08.2022
Delivered on 14.09.2022
--------------------------------------------------------------------------------
This appeal coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
(1) The present appeal had been directed against the judgment of conviction and order of sentence dated 04/12/2014 passed in Sessions Trial No.127/2010 by Additional Sessions Judge, Seondha, District Datia, whereby the appellant had been convicted under section 302 IPC and had been sentenced to undergo life imprisonment with a fine of Rs.1, 000/- and in the event of default in depositing the fine amount had to undergo a further period of 1 year.
(2) The case of the prosecution in nutshell is that on 29/05/2010 complainant Ramsakhi lodged a report with Police Station Indergarh that in between 7:00- 8:00 a.m., when she was preparing food and her husband, deceased Sanman, along with one Naresh and Munna were sitting in front of the house, she heard a shout that someone had shot her husband Sanman. Hearing it she ran outside and found her husband being picked up 3 and shifted to tractor trolly of Naresh. She also sat in the trolly, where she was told by her husband Sanman that he had been shot by Shishupal Yadav on his right thigh, but before they could reach the Police Station, Sanman became unconcious. On the behest of Ramsakhi, at Police Station Indergarh, F.I.R. was recorded at Crime No.81/2010.
(3) During Investigation statements of complainant Ramsakhi were recorded under section 161 Cr.P.C. on 30/05/2010. In her statement she narrated the a different story that at 7:00- 8:00 a.m. on 29/05/2010 when she was preparing the food that she heard someone shouting that Sanman, her husband had been shot. She ran out and saw that in the backyard of Naresh Pandit, her husband was lying down with his leg injured and Naresh was standing with a gun in his hand. Blood was oozing out of the wound. She heard her brother-in-law Preetam, who was also present on the spot, accusing Naresh as he had not done the right thing and asking as to why did he shot Sanman? She heard Naresh replying that due to Sanman he had a fight with Shishupal and Pratipal and just to involve Shishupal and Praitpal in a crime he had shot Sanman, there is nothing to worry, Sanman will recover soon, he is with them. Naresh then brought his tractor trolly and with the help of his father Maitheli and one Munna shifted Sanman into the trolly and asked Ramsakhi to accompany them in the trolly. In the midst of the way Ramsakhi was told to report to the Police naming Shishupal as the assailant, else she would also 4 be shot. Frightened she lodged the F.I.R. in the name of Shishupal. (4) After investigation charge sheet was filed against the present appellant under section 307 and 302 IPC and after committal the matter was placed before the Sessions Court. Vide separate order dated 20/10/2010 charge under section 302 IPC were framed against the appellant and the Session was put to trial. In all 14 witnesses were examined, PW/1 Ramsakhi Bai W/o deceased Sanman, PW/2 Preetam s/o Badri, PW/3 Munnalal s/o Jawaharlal, PW/4 Rahul s/o Ramgopal, PW/5 Devendra s/o Rajjan Singh, PW/6 Mansingh Kousar s/o Sumer Singh, PW/7 Dr. Govind Singh s/o Nathu Singh, PW/8 Ajmer Singh s/o Harprasad, PW/9 Munni Bai w/o Sitaram, PW/10 Albel Singh s/o Sanman, PW/11 Santosh s/o Bhagirath, PW/12 Shankar s/o Shriram, PW/13 Lakhan Singh s/o Sullu and PW/14 D.S. Parihar s/o Late Shri L.S. Parihar respectively.
(5) After detailed scrutiny learned Trial Court, the appellant herein was convicted under section 302 of IPC for the aforementioned period as mentioned above. Aggrieved this appeal had been preferred.
ARGUMENTS (6) Learned counsel for the appellant with vehemence argued that in the F.I.R name of one Shishupal Yadav was mentioned as the assailant upon whom there was allegation of causing gunshot injury to the deceased and the name of the appellant was not mentioned therein, therefore, the F.I.R does not corroborate the 5 prosecution version. It was further argued that there were major contradictions in the statement of the complainant Ramsakhi recorded under section 161 Cr.P.C. and section 164 Cr.P.C., wherein also there was no specific allegation against the appellant to have caused the injuries to the deceased and since she had turned hostile in her court statement, no reliance could be placed upon her statements under section 161 & 164 Cr.P.C, thus, these statements of the complainant could not be relied. In furtherance of his arguments it was contended that PW/2 Preetam, who is Jeth of the complainant, who had stated in his statements under section 161 and 164 Cr.P.C. that it was appellant who had caused the gun shot injury to the deceased, also turned hostile in his court statement and had not supported the prosecution story, thus, his statements under section 161 & 164 Cr.P.C, has no relevance and could not be relied.
(7) Learned counsel for the appellant also contended that challan was filed by the Police on 31/07/2010 and the statements of PW/4 Rahul and PW/5 Devendra, under section 161 Cr.P.C. were recorded on 30/08/2010, thus, delay in recording their statements is fatal to the case of the prosecution. Both PW/4 Rahul & PW/5 Devendra were relatives of deceased thus, were not reliable and trustworthy witnesses. With regard to the seizure of the weapon made by the Police vide Ex. P/17 on 22/05/2010 since appears to be made prior to the date of the incident i.e. 29/05/2010, is not credible, therefore, seizure of the gun from the 6 appellant cannot be said to be proved and in absence thereof the appellant could be held to have committed the crime. (8) With regard to injuries sustained by the deceased statement of PW/7 Dr. Govind Singh was relied and contended that even if it is assumed that the appellant had caused injury to the deceased, there was no intention to kill the deceased, as there was only one gunshot injury that too on right thigh above knee, which according to the doctor was not a vital part of the body and was not sufficient in the ordinary course of nature to have cause death. The doctor even said that the death occurred due to excessive blood loss, due to which deceased went in syncope and if he would have got immediate treatment, he could have been saved. (9) In defense DW/1 Maithili Sharan and DW/2 Sandeep were examined and both of them had specifically deposed that appellant had not caused any fire arm injury and the appellant was not even present on the spot. A quarrel took place on some dispute between Shishupal and deceased Sanman and Shishupal in furtherance thereof had fired the gunshot and caused the injury, thus, it was contended that there is no evidence against the appellant to have killed the deceased and single gun shot injury caused to the deceased was by Shishupal Yadav and not by the appellant, thus, on the strength of the above arguments prayed for acquittal of the appellant.
(10) To bolster his submissions he placed reliance in the matter of Sital Singh Vs. State of Punjab, AIR 1983 SC 652, Sardar 7 Singh Rawat Vs. State of Madhya Pradesh, 2006 (3) M.P.H.T. 320, Udayveer Vs. State of M.P., 2007 (3) M.P.H.T. 556, Badri Singh and others Vs. State of Madhya Pradesh (Criminal Appeal No.486/2004 decided 1.2.2022), Dayanand Vs. State of Haryana, AIR 2008 SCW 2515, Arun Nivalaji More vs. State of Maharashtra, reported in (2006) 12 SCC 613, Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444 and Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725.
(11) In alternate it was argued by the learned counsel for the appellant, that even if the prosecution story is taken to be true as it is and is assumed that the appellant had fired the gunshot on the deceased and as per the prosecution version it was with an intention to implicate Shishupal and Pratipal in some criminal incident, the very element of intention to cause death or such injury which could result is death is missing, though knowledge may be attributed to the appellant that the injury may cause death, thus "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death", would lead to an inference that it is a culpable homicide not amounting to murder. It was further contended that even PW/7 Dr. Govind Singh had stated in his court statement that there was only one injury on the right thigh above knee, it was on the non-vital part of the body and the death had occurred due to rupture of major blood vessels 8 of the leg, as there was excessive blood loss, due to which he developed syncope and in the event deceased would had got immediate treatment, he could have been saved, indicates that there was no intention of the appellant to have killed the deceased, thus, challenge was made to the conviction of the appellant under section 302 and was submitted that at best conviction under section 304 Part-II IPC is made out.
(12) Per contra learned Public Prosecutor appearing for the respondent/State submitted that the F.I.R. lodged by PW/1 Ramsakhi, wife of deceased Sanman, was recorded under coercion as in her statement under section 161 Cr.P.C. as well as under section 164 Cr.P.C. which were recorded on the very next day of the incident i.e. on 30/05/2010 and on 14/06/2010 respectively she had specifically stated that when she reached the spot she saw her husband lying injured and appellant with a gun in his hand. She further stated that she heard her Jeth Preetan saying to appellant that he had not done the right thing & why he shot his brother Sanman? To which the appellant replied that just to implicate Shishupal & Pratipal in a cross case that he had shot Sanman.
(13) It was further contended that PW/2 Preetam also in his statements under section 161 and 164 Cr.P.C. had deposed the same. Further placing reliance on the statements of PW/4 Rahul and PW/5 Devendra, who were the eye witnesses to the incident, it was argued that it was the appellant who had caused gun shot 9 injury to the deceased and both had specifically stated that firstly Naresh had fired on Shishupal and another Devendra fired at Pratipal and later with an intention to involve Shishupal in a cross case, caused a gunshot injury to the deceased and tried to portray a picture that in scuffle Shishupal, had caused injury to the deceased, thus, it was not Shishupal rather it was the appellant with knowledge and intention had caused injury on thigh of the deceased, due to which his major blood vessels got ruptured and caused major blood loss, which caused his death due to shock syncope, thus, is covered under the definition of section 300 IPC i.e. culpable homicide amounting to murder and therefore, the Appellant had rightly been convicted under section 302 IPC (14) He further took this Court through the statement of PW/9 Munni Bai, who was an independent witness and her statement under section 161 Cr.P.C. was recorded immediately on the next day of the incident i.e. 30/05/2010 and had stated that it was Naresh who had earlier fired at Shishupal and caused injury to his person and one Devendra caused injury to Pratipal by firing gun shot and afterwards when those two injured were taken to Indergarh that appellant dragged deceased behind his house and fired at his right leg. In her court statement she stuck to her version given before the Police and narrated the same facts, thus, there was a direct eyewitness of the incident to implicate the appellant with the incident. Further reliance was placed on the ocular statements of PW/4 Rahul and PW/5 Devendra, who were 10 the other eyewitnesses to the incident and was argued that they had also seen the appellant causing gunshot injury to the incident. (15) He further contended that the ocular version is duly supported by the medical evidence. He referred the statement of PW/7 Dr. Govind Singh, who had done the autopsy and contended that as per the ocular version of eyewitnesses the injury was caused on the right leg of the deceased, which was duly supported by the doctor, as he had found an entry and exit wound on the right tight above knee, thus, the ocular version is duly supported by the medical evidence.
(16) It was further contended that recovery of the gun from the appellant vide Ex. P/17 was send for FSL examination and the report Ex.P/23 confirmed that it was the same gun which was used for causing injuries to the deceased, thus, on the strength of the said submissions prayed for dismissal of the appeal. (17) Heard the counsel for the parties in extenso and perused the evidence on record.
DISCUSSION Non-mentioning of assailant in the FIR (18) With regard to the argument that the name of appellant since not mentioned in the F.I.R., renders the prosecution story doubtful. Firstly, the question which required to be answered is as to whether non-mentioning of the name of the accused/appellant in the F.I.R. is fatal to the prosecution case?
(19) In this regard it has to be kept in mind that it is settled law 11 that FIR is not an encyclopedia of facts and it is not expected from the person lodging the F.I.R. to give details of the incident either in the FIR or in the brief history given to the doctors. The FIR is not which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance, but if any name is missed out and comes in picture in the earliest possible opportunity, it may not be a ground to doubt the contents of the FIR, in case the statement of the witnesses are found to be trustworthy. In this context, reference to certain authorities would be fruitful.
(20) In State of Uttar Pradesh v. Naresh and others reported in 2011(4) SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR, may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration.
12Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan reported in (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. reported in (2011)4 SCC 336.
(21) In Rotash case (supra) this Court while dealing with the omission of naming an accused in the FIR opined that:
"14. .... We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that PW 1 did not name him in the first information report, we do not find any reason to disbelieve the statement of Mooli Devi, PW 6. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case. PW 6 received as many as four injuries."
(22) In view of the aforesaid settled position of law, we are not disposed to accept the contention that omission in the first statement of the informant is fatal to the case. We are inclined to think so, for the omission has to be considered in the backdrop of the entire factual scenario, the material brought on record and objective weighing of the circumstances. The impact of the 13 omission, as is discernible from the authorities, has to be adjudged in the totality of the circumstances and the veracity of the evidence. The involvement of the accused cannot be determined solely on the basis of what has been mentioned in the FIR. (23) Thus, apart from other aspects what is required to be scrutinized is that there is no attempt for false implication, application of principle of caution and evaluation of the testimonies of the witnesses as regards their trustworthiness. (24) In this regard the testimony of PW/9 Munni Bai before the Police under section 161 Cr.P.C. recorded on 30/05/2010 is required to be seen as it was the statement, which at the first instance was instrumental in triggering the investigation against the appellant. Here it is apt to mention that though statements of PW/1 Ramsakhi and PW/2 Preetam under section 161 and 164 Cr.P.C. were also to the same effect, but they could not be relied here as both the witnesses had completely turned hostile and had not supported the case of the prosecution thus, their statements under section 161 and 164 Cr.P.C. cannot be used for any purpose as they are not corroborated in their court statement and therefore, were not substantive piece of evidence.
(25) In her statement under section 161 Cr.P.C. PW/9 Munni Bai had clearly deposed that she had seen the appellant Naresh causing gunshot injury to the deceased. She remained steady as a rock in her court statement and in Para 1 named the appellant as the person who firstly shot Shishupal and then took the deceased 14 behind his house and shot him, which caused injury in his leg. (26) The same statements under section 161 Cr.P.C. were also given by PW/4 Rahul s/o Ramgopal and PW/5 Devendra s/o Rajjan Singh, but as argued by the learned counsel for the appellant, since their statements were recorded on 30/08/2010 i.e. after a period of 3 months from the date of incident i.e. 29/05/2010 and there is no explanation put forth of the said delay in their court statement, either by the witnesses or the Investigation officer, the Trial Court was not right in relying on their statements, as the delay in recording their statements by the Police at the very first instance, though they were available, creates a serious doubt as to their version. The arguments on behalf of the appellant also finds support from para 1 of the statement of PW/5 Devendra, as he had stated therein that he was very much present on the spot and was the signatory to the seizure memo Ex.P/7 and had also admitted that PW/4 Rahul was also present on the scene of occurrence.
(27) Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of 15 Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68] (28) Thus, the evidence of these two eye-witnesses as to the fact of the alleged murder of the deceased, does not inspire confidence, as there is unexplained delay in recording their evidence as eyewitnesses and therefore cannot be relied. (29) Be that as it may, the clinching evidence is that of PW/9 Munni Bai, who withstood the wrath of cross examination and supported the prosecution story, specifically naming the appellant to have caused gunshot injury to the deceased. Apart from the said ocular statement, the case of the prosecution finds support from the medical evidence. In that regard statement of PW/7 Dr. Govind Singh is relevant, who had conducted the autopsy and in Para 4 of his court statement had stated that there was following injuries to the person of the deceased:
"(i) Gun shot wound:- Wound of entrance is present on the medial side of right thigh above to knee (2 cm x 1.5 cm) x Directed towards Laterally, upto the Lateral side of Right thigh, (upto wound of Exit).
The Skin Fascia, Large Blood Vessels, Muscles, femer bone distal end (lower third) is fracture and blood coming out from the wound of exit, all structures are ruptured. Excessive blood loss present.
(ii) Wound of Exit :- situated on the lateral side of right thigh with irregular margins.
Piece of bone, Muscles, Fascia, Blood 16 Vessels are coming out from the wound (20 cm x 12 cm)."
(30) The injuries so caused to the deceased which is established by the ocular evidence is duly supported by the medical evidence, which leaves no iota of doubt about the involvement of the appellant in the incident.
(31) With regard to the argument that the seizure memo Ex. P/17, whereby the gun used in the incident i.e. .315 rifle was seized, is a concocted document and cannot be relied, as it was prepared on 22/05/2010, whereas the incident is of 29/05/2010 and a gun which is alleged to have been recovered prior to the date of incident cannot be said to have been used in the incident, which falsify the very story of the prosecution and shreds clouds over the involvement of the appellant in the incident, appears to be hypothetical and is made out of sheer frustration, as from Ex. P/16, which is the memo of accused/appellant under section 27 of the Evidence Act, it is evident that it was taken on 22/07/2010 at 14.30 hrs, but it seems that inadvertently in the seizure memo instead of mentioning 22/07/2010, 22/05/2010 was mentioned, as the time of seizure i.e. 15.05 hrs commensurate with the time of recording of memo Ex.P/16 and even the Investigation Officer PW/14 D.S. Parihar appears to have not noticed this discrepancy and deposed looking to the date mentioned therein. But this Court finds it difficult to accept and holds it to be a typographical mistake committed at the time of its preparation. The above 17 finding further finds support from the forensic experts report Ex. P/23, wherein it has been opined that the empty cartridges recovered from the spot vide Ex.P/7 was found to be shot from the gun which was recovered from the appellant. Thus, from the said report it is very well established that the injury caused to the deceased was shot from the gun which was recovered at the instance of the appellant. This fact had been recorded by the Trial Court in para 26 of its judgment and this Court is in agreement with it.
(32) With regard to the arguments that the appellant since had been acquitted from the charges of causing gunshot injuries to Shishupal and Pratipal vide Sessions Trial No. 29/2011, benefit of doubt should be given to him in this matter, is concerned, it is misplaced as that the said trial was based on different facts and different set of evidences and cannot have any bearing on the present matter and in the present matter evaluation is to be done on the basis of evidence adduced therein. It is apt to mention here that even in a case of non-recovery of the weapon used in the incident, the prosecution case gets wrecked. In Lakshmi Vs. State reported in (2002) 7 SCC 198, it was held that it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed. In State of Rajasthan Vs. Arjun Singh and Ors. AIR 2011 SC 3380/(2011) 18 9 SCC 115, the Hon'ble Supreme Court had held that "Recovery evidence - Absence of recovery of pellets from scene of occurrence or from body of injured persons cannot be taken or construed as no occurrence of firing as suggested by prosecution has taken place - Mere non-recovery of pistol or cartridge does not detract case of prosecution where clinching and direct evidence is acceptable - Moreso, when gunshot injuries tallied with medical evidence."
(33) So far as statements of defense witnesses DW/1 Maithilisharn and DW/2 Sandeeep, are concerned, they do not stir any confidence, as firstly DW/1 Maithilisharan was not an eyewitness rather was a hearsay witness and secondly DW/2 Sandeep, who had stated that even deceased Sanman was also carrying a gun, who shot at Shishupal and Shishupal had caused injury to the deceased, cannot be believed, as from the other ocular evidence coupled with medical evidence it is well established that it was appellant who was the assailant. (34) This brings us to the second primary issue in alternative argued by the learned counsel for the appellant, i.e., the challenge to conviction of the appellant under section 302 IPC the submission that at best conviction under section 304 Part-II IPC is made out. In that context the arguments advanced by the learned counsel for the appellant that even if the story of the prosecution is taken to be true as it is and it is assumed that appellant had caused injury to the deceased with an intention to implicate 19 Shishupal and Pratipal in a cross case, said intention cannot be said to be akin to the intention to kill the deceased, as the injury is caused on a non-vital part of the body i.e. leg and there was only one gunshot injury, thus it could safely be said that though the act is done with the knowledge that it is likely to cause death, but there was no intention to cause death, or to cause such bodily injury as is likely to cause death and therefore the conviction should have been under section 304 Part II, instead of section 320 IPC, appears to have some force in it.
(35) But before adverting to the above proposition it would be appropriate to throw light on the interpretation of relevant provisions of Sections 299 and 300 of IPC, in the light of judgments of Hon'ble Supreme Court.
(36) In the case of Arun Nivalaji More vs. State of Maharashtra, reported in (2006) 12 SCC 613, the Hon'ble Supreme Court has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300 IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is 20 covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge that the act is likely to cause death." If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned 21 above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death"
where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the 22 consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended." In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
(37) In the above context lets now see to Section 299 of Indian Penal Code which runs as under:-
"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.'' (38) Thus section 299 of IPC lays down culpable homicide as the first kind of unlawful homicide. It is the causing of death by doing :23
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence. The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds: one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees. (39) Section 300 of Indian Penal Code is also relevant in the present context, which runs as under :-
"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--24
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."
(40) Indian Penal Code recognizes two kinds of homicide : (1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. Likewise, there are two kinds of culpable homicide; (i) culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) culpable homicide not amounting to murder (Section 304 of IPC).
(41) A bare perusal of the said Section makes it clear like a day light that the first and the second clauses of the section 299 IPC refers to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the 25 consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. (42) Apart from that there are three species of mens rea in culpable homicide (1) An intention to cause death; (2) An intention to cause a dangerous injury; (3) Knowledge that death is likely to happen. The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section 299 IPC is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury caused on the person of the deceased by the accused, the intention is to be gathered from all facts and circumstances of the case, like if injury is on the vital part, i.e., chest or head etc. and as per the medical evidence that injury had proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party.
(43) Along with the aforesaid, ingredients of Section 300 IPC are also required to be fulfilled for commission of offence of murder and in absence there of it cannot be said that homicidal death is murder.
(44) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444, while deciding whether a 26 case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus:-
"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 a 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 pre-meditation. 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 27 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 pre- meditation; (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 which may throw light on the question of intention. Be that as it may."
(45) Similar view had been expressed by the Hon'ble Supreme Court in the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the 28 other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available.
14. In State of Karnataka Vs. Vedanayagam [(1995) 1 SCC 326] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after the detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the reported decision in Virsa Singh Vs. State of Punjab [AIR 1958 SC 465], the court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court relied on the observation by Justice Bose in Virsa Singhs case to suggest that:
The question is not whether the prisoner 29 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. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."
(46) Now in the above context if the entire evidence is scrutinized, it would be evident that PW/9 Munni Bai, who is the eyewitness to the incident, apart from minor discrepancies in her court statement and without her credibility being shaken, had specifically established presence of the appellant on the spot of 30 incident and causing gunshot injury on the right thigh above knee of deceased Sanman, in the morning hours on 29/05/2010. PW/7 Dr. Govind Singh who had conducted the autopsy, had proved the factum of injury on the right thigh above knee, which corroborates the ocular evidence.
(47) Thus, though the prosecution was able to prove the incident beyond reasonable doubt and as per the medical evidence, the death of the deceased was homicidal in nature and was caused by means of a gun and the ocular evidence is corroborated by medical evidence, but it utterly failed to prove the element of intention in committing the crime. The entire prosecution story hinge around the intention of the appellant to implicate Shishupal and his brother Pratipal in a criminal case, though this Court in preceding paras had held this fact was not proved, but the prosecution even could not prove that the appellant intended to commit murder of deceased Sanman, thus, the conviction of the appellant could not be sustained under section 302 IPC and in our considered view it is a fit case to modify the sentence of appellant/accused to that of under section 304 Part II IPC. We accordingly convert the conviction of appellant Naresh from section 302 IPC to one under section 304 Part II IPC (48) Therefore, the impugned judgment of conviction and sentence dated 04/12/2014 passed by Additional Sessions Judge, Seondha, District Datia, in S.T. No. 127/2010 is hereby modified to the above extent. On the point of quantum since the detention 31 period of the appellant as per the record is 7 years 11 months approx. this Court deems fit to sentence appellant to the period already undergone. He is on bail, his bail bonds are discharged. (49) Consequently, the appeal is hereby partly allowed and on aforesaid terms disposed of.
(50) A copy of the judgment be also sent to the Trial Court along with its record for information and compliance.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
14/09/2022 14/09/2022
Pawar/-
ASHISH PAWAR
2022.09.14
18:28:37 +05'30'