Madhya Pradesh High Court
Manoj Kumar vs The State Of Madhya Pradesh on 9 July, 2015
Bench: Shantanu Kemkar, Sushil Kumar Gupta
21
HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT
JABALPUR
CRIMINAL APPEAL No.2362/2010
MANOJ KUMAR AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
Present:
Hon'ble Shri Justice Shantanu Kemkar
Hon'ble Shri Justice Sushil Kumar Gupta
Shri Suyash Mohan Guru, learned counsel for the appellants.
Shri Y.D. Yadav, learned Panel Lawyer for the respondent/State.
Whether approved for reporting _________
********
JUDGMENT
( / / 2015) Per: Sushil Kumar Gupta, J.
This appeal has been preferred against the judgment of conviction dated 13.10.2010 passed by the IInd Additional Sessions Judge, Damoh in Sessions Trial No.166/2008, whereby the appellants have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'Code 1860' for short) and sentenced to life imprisonment with fine of Rs.500/- and in default, to suffer R.I. for 3 months to each.
212. The prosecution story, in short, is that on 11/05/2008 about 09:30 P.M., Balkrishna lodged a report to the effect that at 09:00 P.M. when he was returning to his home along with Shobhit Gupta, Nitin Vishwakarma and Bharat Yadav, in front of Municipality on the Station Road, Damoh, he saw Umesh Chamar and Manoj Mehtar were stabbing his Uncle Pradeep Yadav by knife at that time Munna @ Roop Narayan Ahirwar also ran for assaulting him, I caught hold of him but he fled. Sonu Mehtar also stabbed to Pradeep by knife, due to which his uncle (Pradeep) sustained injuries and he fell down. On account of previous enmity and with intention to commit murder of his uncle, all the four accused inflicted knife injuries. On account of this assault his uncle sustained two incised injuries on his stomach and many wounds on the back and thigh. Shobhit Gupta, Nitin Vishwakarma and Bharat Yadav had seen the incident. The uncle was brought to the police station in rickshaw. He was unable to speak properly. After registration of report & completion of investigation challan was filed against appellants under Section 302/34 of Code 1860.
3. The learned trial Judge framed charges punishable under Section 302 read with Section 34 of the Code 1860 against accused Manoj and under Section 302 in alternate 302/34 of the Code 1860 against accused Umesh. Both the accused abjured their guilt and pleaded false implication. In defence, they examined three defence witnesses namely Ayodhya Prasad (D.W.1). Jitendra Kumar Raikwar (D.W.2) and Durgesh Gupta (D.W.3).
214. In order to prove the charges the prosecution examined as many as fifteen witnesses and placed Ex.P/1 to P/24 the documents on record. Though the defence of the accused persons is false implication, but no specific defence has been taken in their statement recorded under Section 313 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Code 1973' for short).
5. The learned trial Court after appreciating and marshalling evidence came to hold that the appellants have committed the offence under Section 302 of the Code, 1860 and eventually convicted them and passed the sentence which is mentioned in the impugned judgment.
6. In this manner, the present appeal has been filed by the appellants assailing the judgment of the conviction and order of sentence.
7. Appellants/accused are challenging the conviction and sentence passed by the learned trial Court on the ground that there is material contradiction and omission in the statements of prosecution witnesses. The findings and conclusion of the trial Court are erroneous and illegal. At the place of incident there was darkness due to night time and visibility was very poor, therefore, it is extremely doubtful that the witnesses examined by the prosecution could identified the accused persons as the assailant of the deceased. The learned trial Court failed to appreciate the fact that Nitin Vishwakarma (P.W.13), who was declared hostile has denied to see the incident while as per prosecution, he was with Balkrishna Yadav (P.W.6) and Bharat Yadav (P.W.8) at the relevant time. The trial Court failed to 21 appreciate the evidence of prosecution witnesses in proper perspective inasmuch as their statements do not tally with the statements recorded by the Police during investigation. The statements of Balkrishna Yadav (P.W.6) and Bharat Yadav (P.W.8) appear to be totally doubtful and unreliable. The trial Court has failed to see that at the time of incident, there were large number of persons in front of Nagar Panchayat who might have witnessed the incident and such persons could be independent persons and could be relied for its conclusion but no such independent witnesses have been examined by the prosecution to support its case. On the aforesaid contention learned counsel for the appellants prays for setting aside the conviction & sentence.
8. On the other hand, learned P.L. for the respondent/State has submitted that conviction and sentence directed by the trial Court appears to be correct and no interference is required in the appeal and prays for dismissal of appeal.
9. We have heard learned counsel for the parties at length. Perused the impugned judgment as well as evidence and material available on record.
10. Appellants/accused have admitted in their examination of accused, recorded under Section 313 of Code of 1973, that they took away the deceased Pradeep on Bike at 7.00 P.M. in the evening.
11. Dr. Rajeev Sthapak (P.W.1) examined deceased Pradeep Yadav on 11.5.2008 in District Hospital, Damoh and found following injuries and given his report (Ex.P/1).
21pksV dza- 1% dVk gqvk ?kko isV ds fupys Hkkx esa ftlls gkfuZ;k vkSj vkars ckgj fudy vk;h FkhA ftldh xgjkbZ yEckbZ pkSM+kbZ ugha ukih x;h Fkh] vkSj vkgr O;fDr dks bl pksV ds bykt ds fy;s esMhdy dkWyst tcyiqj fjQj fd;k x;k FkkA pksV dza- 2& cgqr ls dVs gq;s ?kko tks la[;k esa vf/kd Fks] mlesa ls lcls cM+k ?kko ikap bap x vk/kk bap dk FkkA ;g pksV Hkh isV ij mnj esa FkhA pksV dza-3& dVk gqvk ?kko tka?k ds fiNys fgLls esa Fkk ftldh vkdkj 4x1/2x1/2 bap FkkA ftlesa rktk [kwu cg jgk FkkA pksV dza-4& dVk gqvk ?kko ftldk vkdkj 2x1/2x1/4 bap/ ck;h vxz Hkqtk ij FkkA pksV dza-5& dVk gqvk pksV nkfguh rjQ Fkh] ftlds LFkku dk mYys[k Hkwyo'kZ ugha fd;k gSA mDr lHkh pksVs /kkj nkj o l[r gfFk;kj ls 6 ?kaVs ds Hkhrj iagqpk;h x;h FkhA blds laca/k esa esjh fjiksVZ iz-iz-ih&1 ih-&1 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gSA pksVsa xaHkhj izd`fr dh Fkh blhfy;s esMhdy dkWyst tcyiqj fjQj fd;k x;k FkkA
12. Dr. Chandrashekar Waghmare (P.W.2) who conducted the examination of the dead body of the deceased Pradeep Yadav on 12.5.2008 at 11:15 A.M. also found the following injuries on the dead body of the deceased Pradeep Yadav: -
pksV dza-1& isV ds cka;s Hkkx esa pkdw dk ?kko Fkk] ftlesa ls vkars ckgj vk jgh FkhA pksV dza-2& pkdw dk flyk gqvk ?kko ukHkh ds 1 baap nka;s Hkkx esa ekStwn Fkk] ftldh xgjkbZ 41@2 bap FkhA pksV dza-3& cka;s tka?k ij lkeus okys Hkkx esa nks dVs gq;s ?kko] tks fd flys gq;s Fks] ekStwn FksA pksV dza-4& nka;h tka?k ij pkdw dk ?kko ekStwn Fkk] tks fd vkj&ikj FkkA pksV dza-5& rhu dVs gq;s ?kko tks fd vkMs FksA nka;h tka?k ij ekStwn FksA pksV dza-6& nks dVs gq;s ?kko cka;h tka?k ij ekStwn FksA pksV dza-7& nka;h gFksyh ij ,d dVk gqvk ?kko ekStwn FkkA pksV dza-8& nka;s gkFk ij nks dVs gq;s ?kko ekStwn FksA pksVksa ds vklikl yky jax dk tek gqvk [kwu ekStwn FkkA mijksDr lHkh pksVsa ,d /kkjh okys /kkjnkj pkdw tSls gfFk;kj ls vkuk laHko gSA ftudh yackbZ 1 bap gSA 21 He opined that death was caused within 24 hours. He again opined that the cause of death is haemorrhagic shock due to cutting of internal mesentery by sharp weapon. He again opined that the injuries are ante-mortem and mode of death is homicidal. The post-mortem examination report (Ex.P/2) was signed by him. By the evidence of both the witnesses, in our opinion, it is clear evident that deceased Pradeep Yadav died because of the injuries sustained by the sharp weapon.
13. The prosecution case rests mainly on the ocular evidence of Balkrishnan Yadav (P.W.-6) and Bharat Yadav (P.W. 8). Both are the eye-witnesses and were present on the spot at the time of incident.
14. Umesh Yadav (P.W. 3) is the witness of spot map (Ex-P-3 and P-4), dead body Panchnama (Ex.P-6), seizure memo of blood stained cloths of the deceased Pradeep Yadav (Ex-P-7), seizure memo of blooded soil (Ex-P-8), seizure memo of knife recovered from the house of the appellant Umesh Kumar.
15. Rahul (P.W. 4) son and Santoshi Yadav (P.W. 9) wife of deceased Pradeep Yadav were the witness of the fact that appellants Manoj and Umesh took away the deceased Pradeep Yadav on bike at 7-8 p.m. in the evening immediately before the incident.
16. Sub-Inspector Shri J.P. Garg (P.W. 7) is the Investigating Officer, who conducted the investigation, prepared the spot map (Ex-P-3) seized the blood stained clothes of the deceased by memo (Ex-P-7), prepared the memorandum under Section 27 of The Evidence Act 1872 (for short the 'Act 1872') of appellant 21 Manoj (Ex-P-14) and on the basis of the memorandum seized the knife from appellant Manoj by memo (Ex-P-15) also prepared memorandum under Section 27 of the Act 1872 of appellant Umesh Kumar (Ex-P-16) and on the basis of the memorandum seized knife from appellant Umesh Kumar (Ex-P-
9) arrested the appellants, recorded the statements of witnesses under Section 161 of the Code of 1973.
17. Rakesh Jatav (P.W. 10) is the witness of the memorandum of appellants Umesh and Manoh but did not support the prosecution and declared hostile. Nitin Vishwakarma (P.W. 13), who is said to be eye-witness, did not support the prosecution and declared hostile. Ramesh Prasad (P.W. 15) is the Head Constable Moharir and stated that scriber of the FIR (Ex-P-10) Shri R.S. Rai, who was the Sub-inspector, has died and he knows his signature because he worked with him.
18. Defence witness, Ayodhya Prasad (D.W.-1), in his statement, stated that he saw deceased lying in front of Dharamshala and he asked Rahul son of Pradeep Yadav that your father lying in an injured condition but he did not saw accused on the spot. Defence witness, Jitendra Raikwar (D.W.-2) also stated that he saw deceased Pradeep Yadav from the side of the Dilabar Hotel in an injured condition by knife and blood was oozing. Defence witness, Durgesh Gupta (D.W.-3) also stated in his statement that he saw Pradeep Yadav running in injured condition and than fell down. However, these witnesses examined in defence by the appellants but they proves the part of prosecution story that at the place of incident deceased Pradeep was lying in injured condition by knife.
2119. Now, we are coming to the factual aspect of the case and appreciation of the evidence. From the statement of Rahul ((PW-
4), the son and Santoshi Yadav (PW-9), the wife of the deceased Pradeep Yadav, it is proved that appellants Manoj and Umesh took away deceased Pradeep Yadav on the bike in the fate evening of the incident at 7-8 P.M. immediately before the incident which is also supported by the admission of the appellants in their examination of accused, recorded under Section 313 of Code of 1973.
20. Balkrishan Yadav (PW-6) in his examination-in-chief in para No.1 has stated that last year, on 11th of May, at 9 P.M. in the evening when he was returning from the temple along with Nitin Vishwakarma, Bharat Yadav and Shobhit Gupta, they saw the crowd in front of Nagar Palika, then they saw that appellants Manoj, Umesh, Munna and Sonu all were surrounding Pradeep Yadav and stabbing him with the knives. He again stated that appellants Manoj and Umesh assaulted the deceased Pradeep Yadav by means of knife. They inflicted two injuries by means of knife on the abdomen and also on thigh and hips of the deceased. He further stated that Sonu inflicted, by means of knife, on the hip of deceased Pradeep Yadav then he fell down. As soon as Munna ran to beat Pradeep, he caught hold him. Then they took Pradeep Yadav to Police Station-Kotwali on rickshaw where he lodged the report (Ex.P.10) from where the deceased was taken to District Hospital, Damoh for treatment but from where he was referred to Jabalpur Medical College Hospital but on the way he died.
21. Bharat Yadav (P.W.-8) has stated in his examination-in-
21chief that on 11th of May, 2008 at 9-9:30 PM in the night when he was returning from temple along with Balkrishna, Shobhit Gupta and Nitin Vishwakarma, he saw that appellants Manoj, Umesh, Munna and Sonu all were surrounding Pradeep Yadav and stabbing him with the knives. He further stated that when Balkrishna cries than Munna caught hold him. Sonu gave knife blow to his uncle Pradeep resulting Pradeep fell down. It is further stated that Pradeep sustained two knife injuries in the abdomen and two knife injuries on the hips. After beating all the accused persons ran away from the spot. Then they took Pradeep to Police Station-Kotwali where Balkrishna has lodged the FIR, then Pradeep was taken to District Hospital, Damoh from where he was referred to Jabalpur Medical College Hospital, but on the way he died.
22. Aforesaid both the eye-witness has been elaborated cross- examined but nothing has been brought in their cross- examination to discredit or disbelieve their statement.
23. Shri J.P. Garg (PW-7) Investigation Officer recorded the memorandum (Ex.P-16) of appellant Umesh Kumar under Section 27 of Act, 1872 and on the basis of the memorandum recovered knife from his house by preparing seizure memo (Ex.P-9). He also recorded the memorandum (Ex.14) of appellant Manoj Kumar under Section 27 of Act, 1872 and recovered knife by preparing seizure memo (Ex.P-15) and the statement of this witness has also been corroborated by independent witness Gajju @ Gajendra Ahirwar (PW-14).
24. Learned counsel for the appellants pointed out some contradictions and omissions in the cross-examination of the 21 aforesaid eye-witnesses Balkrishna Yadav (PW-6), Bharat Yadav (PW-8), but such type of minor contradictions and omissions does not affect the testimony of aforesaid eye-witnesses.
25. Learned counsel for the appellants pointed out the contradiction and omission in para 12 of the eye-witness Balkrishna Yadav (PW-6) that in report (Ex.P/10), this witness stated that when he saw the incident at that time, only appellants Manoj and Umesh were stabbing the deceased by means of knives but in the Court statement he has stated against all the accused persons including appellants as well as Sonu and Munna therefore so far as the allegation against appellants Manoj and Umesh, the testimony of this witness is not trustworthy and cannot be believed. But such development in the Court statement is not with regard to appellant and does not affect the testimony of the witness.
26. On perusal of the FIR, it appears that the report was lodged within half hour after the incident. The place of incident is stated to be at a distance of 1km. from the Police Station- Kotwali. The deceased was taken to the hospital by arranging the riskshaw, therefore it cannot be said that the report was delayed. It is pertinent to mention here that in the present case the testimony of the eye-witnesses Balkrishna Yadav (PW-6) and Bharat Yadav(PW-8) corroborated by the medical evidence, therefore from the aforesaid discussion and appreciation of the evidence the prosecution story is found fully established and proved.
27. So far as the minor contradictions, omissions and small variation in the testimony of the aforesaid witnesses, the same 21 cannot be said to have adverse effect in the present case.
28. The Hon'ble Supreme Court has also observed in Bharwade Bhoginbhai Hirjibhai Vs. State of Gujurat (AIR 1983 SC 753=1983 Cr.LJ 1096), as regarding appreciation of evidence in criminal trial. Which reads as under:-
"Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation, it is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident or the time duration of an occurrence usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates is such matters. Again it depends on the time sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to be get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from 21 imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
(8) Discrepancies which do not go to the roof of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
29. The learned counsel for the appellants submitted that eye- witness Nitin Vishwakarma (PW-13) has not supported the prosecution story and where eye-witness does not support the prosecution story, the story becomes doubtful. It is true that Nitin Vishwakarma (PW-13) did not support the prosecution story and was declared hostile but it is not necessary that every eye- witnesses should support the prosecution story. Even if one or two eye-witnesses support the prosecution story and their evidence inspire confidence, it is sufficient to convict the accused. Number of eye-witnesses not material for conviction of accused. And only one true witness is sufficient to warrant the conviction.
30. Learned counsel for the appellants further submitted that the trial Court has failed to see that at the time of incident there were a large number of independents persons were present on the spot but none of them has been examined during the investigation and on the basis of the statements of partisan and intereseted witnesses Balkrishna Yadav (PW-6) and Bharat Yadav (PW-8) trial Court convicted the appellants and therefore such conviction cannot be sustained. But we find no substance 21 on the submission advanced by the learned counsel for the appellant because the testimony of such witnesses cannot be thrown out only on the basis of their relation with the deceased.
31. The Hon'ble Supreme Court has held in the case of Mahesh S/o Janardhan Gonnade Vs. State of Maharashtra reported in (2008) 13 SCC 271 :-
54. This Court in Salim Sahab Vs. State of M.P. 13 held that: (SCC pp. 710 & 703, paras 11 & 14-15) "11....[mere relationship] is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
14... in Masalti Vs. State of U.P. 14 this Court observed: (AIR pp.209-10, para 14) 'But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'
15. To the same effect are the decisions in State of Punjab Vs. Jagir Singh15, Lehna Vs. State of Haryana16 and Gangadhar Behera Vs. State of Orissa17."
55. As regards non-examination of the independent witnesses who probably witnessed the occurrence of the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police 21 about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.
32. Learned counsel for the appellants submitted that Dr. Rajeev Sthapak (PW-1) & Dr. Chandrashekar Waghmare (PW-2) admitted in their cross examination that in case deceased had got the immediate & proper treatment, he could have been saved and in such a way, the present case is covered under the culpable homicide, not amounting to murder. He further submitted that if the prosecution story is admitted entirely even then the present case does not fall under Section 300 of Code 1860 and falls under Section 304 of the Code 1860. However, such plea and ground was not taken in the appeal memo but at the stage of argument learned counsel for the appellants vehemently advanced the submission on this point.
33. Before dealing with the factual aspect on this point, we would like to reiterate the relevant Provisions of Code, 1860.
"Section 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.
Explanation 1:- A person who causes bodily injury to another who is labouring under a disorder, disease or 21 bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2:- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3:- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
Section 300. Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly:- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. When culpable homicide is not murder:-
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:- First:- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly:- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly:- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation:- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2:- Culpable homicide is not murder if the 21 offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right to defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3:- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 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 having taken undue advantage or acted in a cruel or unusual manner.
Explanation:- It is immaterial is such cases which party offers the provocation or commits the first assault. Exception 5:- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
34. Learned counsel for the appellants placed reliance on the following judgment of the Hon´ble Supreme Court as given below:-
(1) Shankar Narayan Bhadolkar Vs. State of Maharashtra, (2005) 9 SCC 71.
(2) Ghapoo Yadav and ors. Vs. State of M.P., (2003) 3 SCC
528.
(3) State of Karnataka Vs. Siddappa Bansanagouda Patil and another, 1990 Supp (1) SCC 257.
(4) Vijay Ramkrishan Gaikwad Vs. State of Maharashtra and Anr., (2012) 11 SCC 592.
35. Now, we will see whether the present case is covered within any exceptions as enumerated in Section 300 of the Code 1860, if not, then it is murder.
2136. So far as the contention raised by the learned counsel for the appellants as mentioned above in para No.31. Explanation-2 of Section 299 Code 1860 clearly establishes that "Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented". Merely because the life of the deceased could have been saved if the skilful treatment would have been provided to him well in time will not brush aside the act of the appellant and where appellant after giving blow on the abdomen region of the deceased cutting internal mesentery they have committed the offence of culpable homicide amounting to murder. Therefore the submissions advanced by the learned counsel for the appellants having no substance.
37. In the present case appellant took away deceased on bike immediately before the incident and within one hour they kill deceased by means of knives by inflicting on the vital part of deceased that proves clear cut intention of appellant to commit murder of deceased.
38. So far as the case law Shankar Narayan Bhadolkar (Supra) Hon'ble the Supreme Court has observed in para 36 "looked at the scenario as described by PW-2 and PW-3 and evidence of ballistic report, in our considered view the offence committed by accused is covered by Section 304 part IInd" . But in the case in hand clear cut intention to commit the murder of deceased has been proved.
39. So far as the case law Ghapoo Yadav and Ors. (Supra) Hon'ble the Supreme Court has observed in para No.11 that "it is 21 not the case of the prosecution that the accused appellants has come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons has caused injuries on the deceased, but had not acted in cruel or unusual manner". But in the present case clear cut intention to commit murder of deceased has been proved.
40. So far as the case law Vijay Ramkrishan Gaikwad (Supra) Hon'ble the Supreme Court has observed in para No.6 that "the first and foremost of the circumstances is that the incident in question was not premeditated. The evidence and record establishes that the appellant was provoked by certain accusations made against him be the deceased".
41. As far as the case law Siddappa Bansanagouda (Supra) Hon'ble the Supreme Court has observed that "deceased himself has invited the trouble and himself had gone upto the house of the accused and picked up quarrel".
42. Therefore, the case law cited by the learned counsel for the appellants are distinguishable and does not attract in the facts of the present case.
43. So far as the intention of the appellant is concerned. In this case the same can be proved by the circumstances and action of the appellants. Hon'ble the Supreme Court has observed in the judgment of Mangesh V/s State of Maharashtra reported in [AIR 2011 SC 637] which reads as below:-
"The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, 21 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 which may throw light on the question of intention".
44. Keeping in view of aforesaid observation made by Hon'ble the Supreme Court in the aforesaid case, the same is applicable in the present case also.
45. On the aforesaid discussion and in the facts and circumstances this case does not cover within any exceptions as enumerated in Section 300 of the Code 1860, therefore it is clear cut culpable homicide amounting to murder of deceased Pradeep Yadav.
46. On the aforesaid discussion and after appreciation of the evidence, we are of the considered opinion that learned trial Court did not commit any error in relying upon the evidence adduced by the prosecution and holding appellants guilty of intentionally causing death of deceased Pradeep Yadav by means of knives, therefore the appeal filed by the appellants against their conviction and sentence fails and is hereby dismissed. Their 21 conviction under Section 302 read with Section 34 of the Code 1860 are hereby affirmed and their sentences as described in para No.1 are also hereby affirmed.
(Shantanu Kemkar) (Sushil Kumar Gupta)
Judge Judge
Ajay/-