Madhya Pradesh High Court
Ballu @ Virendra vs State Of M.P. on 5 October, 2021
Author: Rajeev Kumar Shrivastava
Bench: G.S. Ahluwalia, Rajeev Kumar Shrivastava
1
CRA No. 16/2010
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
BEFORE: G.S. AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
CRIMINAL APPEAL NO. 16/2010
Bablu @ Virendra
S/o Gopal Singh Thakur
R/o Near Mohangiri Police Chowki, Vidisha
Distt. Vidisha (M.P.)
Vs.
The State of Madhya Pradesh
Through Police Kotwali Vidisha
Distt. Vidisha (M.P.)
Shri Vinay Kumar, learned counsel for the appellant.
Shri A.K. Nirankari, learned Public Prosecutor for the
respondent/State.
Reserved on : 30th September, 2021.
Whether approved for reporting : No
JUDGMENT
(Passed on 05/10/2021) Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under Section 374 of CrPC, challenging the judgment of conviction and sentence dated 31/03/2009 passed by Additional Sessions Judge/ Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, District Vidisha (M.P.) in Special Sessions Trial 2 CRA No. 16/2010 No.121/2007, whereby appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment and fine of Rs.5,000/-, for committing murder of Pooran Ahirwar, and in default of payment of fine, to undergo additional RI for one year.
2. The accused-appellant has admitted that he belongs to Thakur caste and he is not a member of Scheduled Caste / Scheduled Tribe community.
3. The prosecution story in short is that the deceased Pooran Ahirwar was residing at Mohangiri Mohalla of district Vidisha along with his family and he was a member of Scheduled Caste community. On the date of incident, i.e. 01/10/2007, when Pooran was sleeping in his house along with his wife and his brother-in- law, Mahesh Ahirwar, who was also sleeping in the house of the deceased, then at around 10:00 PM, one neighbour Pannalal Ahirwar reached to the house of the Pooran (deceased) and called Pooran. On which, wife of the deceased came out and asked Pannalal Ahirwar that why he is calling Pooran. Pannalal Ahirawar told her that he has some work with Pooran. Thereafter, Pannalal Ahirwar and Pooran went together and Pooran did not return back. On account of that Mahesh and Meerabai went to search Pooran. They saw that the accused-appellant Bablu @ Virendra was holding Pooran and stabbing him by knife. Accused-appellant was also using abusive language. Pooran was seriously injured, 3 CRA No. 16/2010 therefore they took Pooran to the hospital by Auto of Rambabu, where Doctor declared Pooran Singh dead.
4. Mahesh Ahirwar, who is brother-in-law of the deceased, lodged Dehati Nalishi (Ex-P/1). Thereafter, FIR (Ex-P/2) got registered against the accused-appellant at Police Station Kotwali, Vidisha (M.P.). Merg intimation is Ex-P/6. Lash Panchanama is Ex-P/3. Post-mortem of dead body of deceased was conducted by Dr. S.C. Bansal (PW-5) and post-mortem report is Ex-P/8, wherein Doctor has opined that the deceased died due to shock and hemorrhage, which was result of injuries caused to him. Spot map (Ex-P/9) was prepared and Viscera of deceased was seized as Ex- P/7. Statements under Section 161 of Cr.P.C. were recorded. Accused was arrested by Ex-P/13 and his memorandum was recorded. On the basis of his memorandum, Ex-P/14, clothes and knife were recovered from the house of the accused-appellant. Thereafter, seized articles were sent for FSL examination. The query report (Ex-P/19) was submitted by Doctor, wherein Doctor has opined that the injuries found on the body of the deceased were caused by knife.
5. After completion of investigation, charge-sheet was filed. The trial Court framed the charges against the accused-appellant under Section 302 of IPC and under Section 3(2)(V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 4 CRA No. 16/2010 Appellant abjured his guilt and has stated that he has not committed murder, rather at around 03:00 AM, Police arrested him from his house.
6. Appellant was tried for the offences under Section 302 of IPC and Section 3(2)(V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, for committing murder of Pooran Ahirwar, as the deceased belongs to Scheduled Caste community. The Trial Court after appreciation of evidence available on record convicted and sentenced the appellant as under:-
Name of Section Punishment Fine In default, accused punishment Bablu @ 302 IPC Life Rs.5,000/- 1 Year RI Virendra Imprisonment
7. The grounds raised in this appeal are that the trial Court has wrongly convicted the appellant. The judgment of conviction and sentence passed by the trial Court is against settled principles of law. The trial Court has erred in analyzing the evidence produced before it. Prosecution has fabricated the case and falsely implicated the present accused-appellant. Prosecution witness - Raju Ahirwar, is a planted witness. Mahesh Ahirwar in his statement has specifically stated that there was no enmity between the deceased Pooran Singh and accused- Bablu @ Virendra Singh. The trial Court has not considered the contradictions and 5 CRA No. 16/2010 omissions on record which are fatal to the case. No eye-witness is produced and only on the basis of doubt, Dehati Nalishi was lodged. The ocular evidence is not supported by medical evidence. The incident is the result of sudden and grave provocation. The prosecution witnesses, Meera Bai and Mahesh Ahirwar, are interested witnesses and they are not eye-witnesses. Hence, prayed for setting aside the impugned judgment of conviction and sentence.
8. Per Contra, learned State Counsel opposed the submissions and submitted that the trial Court has rightly convicted the appellant and awarded sentence. Hence, no case is made out for interference.
9. Heard the learned counsel for the rival parties and perused the record.
10. In the present case, the following question emerges for consideration :
"(i) Whether, on 01.10.2007 at about 10.00PM the death of Pooran Ahirwar was culpable homicide ?
(ii) Whether, the culpable homicide of deceased Pooran Ahirwar comes within the purview of 'murder' ?
(iii) Whether, the aforesaid act was done by 6 CRA No. 16/2010 the appellant/accused Bablu @ Virendra?
(iv) Whether, the deceased was a member of Scheduled Caste and on account of that the accused-appellant caused grievous hurt with intention to cause death of Pooran Ahirwar?
11. Before considering the merits of the case, it would be appropriate to throw light on the relevant provisions of Sections 299 and 300 of Indian Penal Code.
12. The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply." 7 CRA No. 16/2010
13. The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under:-
"Culpable homicide is murder, if the act by which the death is caused 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."
14. The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death in the ordinary course of nature. This is also borne out from illustration
(c) to Section 300 IPC which is being reproduced below: -
"(c) A intentionally gives Z a sword-cut or club-
wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
15. Therefore, the contention advanced in the present case and which is frequently advanced that the accused had no intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC. 8 CRA No. 16/2010
16. The scope and ambit of clause Thirdly of Section 300 IPC was considered in the decision in Virsa Singh vs. State of Punjab, [AIR 1958 SC 465], and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was "a punctured wound 2" x ="
transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that 9 CRA No. 16/2010 there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
17. In Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it 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 300IPC, 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 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 10 CRA No. 16/2010
(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 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 11 CRA No. 16/2010 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 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."
18. Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Whoever causes 12 CRA No. 16/2010 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."
19. Section 299 of IPC says, whoever causes death by doing an act with the 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. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(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.
20. 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, 13 CRA No. 16/2010 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.
21. Section 300 of Indian Penal Code 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--
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."
22. 'Culpable Homicide' is the first kind of unlawful homicide. It is the causing of death by doing ; (i) an act with the intention to cause 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 was likely to cause death. 14 CRA No. 16/2010
23. Indian Penal Code recognizes two kinds of homicides : (1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. 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).
24. A bare perusal of the section makes it crystal clear that the first and the second clauses of the section refer 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 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.
25. 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.
26. The fact that the death of a human being is caused is not enough unless one of the mental states mentioned in ingredient of the Section is present. An act is said to cause death results either 15 CRA No. 16/2010 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 by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury 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. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
27. In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
28. In Anda vs. State of Rajasthan [1966 CrLJ 171], while considering "third" clause of Section 300 of IPC, it has been observed as follows :-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and 16 CRA No. 16/2010 sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
29. In Mahesh Balmiki vs. State of M.P. [(2000) 1 SCC 319], while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
30. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322], it has been observed as under :-
"The Fourth Exception of Section 300, IPC 17 CRA No. 16/2010 covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion 18 CRA No. 16/2010 requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
31. In Pulicherla Nagaraju @ Nagaraja vs. State of AP [(2006) 11 SCC 444, while deciding whether a 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 19 CRA No. 16/2010 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 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."
32. In Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple 20 CRA No. 16/2010 fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
33. In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC 639, this it has been held as follows:
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such 21 CRA No. 16/2010 injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
34. In the case of Bavisetti Kameswara Rao v. State of A.P. (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 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 22 CRA No. 16/2010 be very 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. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] 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 a 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 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 (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two 23 CRA No. 16/2010 matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. 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.
17. ... It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident 24 CRA No. 16/2010 his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
35. In the light of above annunciation of law laid down by Hon'ble Apex Court, the evidence available on record in the present case is considered.
36. Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, runs as under:-
"3. Punishments for offences of atrocities.-
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
37. It is admitted fact that the accused-appellant is not a member of Scheduled Caste or Scheduled Tribe community. It is 25 CRA No. 16/2010 also undisputed that the deceased Pooran Ahirwar was the member of Scheduled Caste.
38. From perusal of the record, it is evident that on 02/10/2007, Dr. S.C. Bansal (PW-5), has conducted the post-mortem of dead body of deceased - Pooran, who was identified by Chandan Singh S/o Chhotelal R/o Mohangiri, Vidisha and Mahesh S/o Fundilal R/o Hajipur Sironj. Dr. S.C. Bansal has stated in his statement that on 02/10/2007, he was posted as Medical Officer in District Hospital, Vidisha. On that day, Sunil Kumar, Constable No.554 of Police Station Kotwali Vidisha, had brought dead body of deceased Pooran Ahirwar. He conducted post-mortem and found that rigor mortis was present over the body of the deceased and he was wearing blood stained clothes.
39. Following injuries were found on the body of deceased Pooran vide postmortem report (Ex.P/8) :-
(1) Multiple abrasions ½ to 1½ x ¼ to ½ cm present over left elbow where blood was clotted.
(2) Multiple contusions and abrasions (3 in Nos.) 1½ to 3 x ½ to 2cm present over right side of forehead and right T.M. Joint.
(3) One contusion 2 x ½ cm present on left clavicle region.
(4) Multiple abrasions ½ to 8 x ¼ to 1 cm present over 26 CRA No. 16/2010 lower Chest and upper Abdomen.
(5) Stab wound 1½ x 1 cm present over left iliac kosa deep upto peritoneum cavity that was 5cm above of mid-inguinal point along with stab wound 2 x 1½ cm on sigmoid colon and blood was found.
(6) Stab wound 2½ x 1 cm on left iliac kosa present over 3cm above mid-inguinal point to retroperitoneum cavity where cut wound ½ x ½ cm was found on terminal ilium. Cut was found on right Femoral Vessels. Omentum was coming out of wound. Blood was present on peritoneum and retroperitoneum cavity.
(7) Incised wound 1½ x ½ cm x deep to muscle was found over the left thigh of the deceased where blood was clotted.
(8) Incised wound 3 x ½ cm x deep to muscle present over lower 1/3rd part of left thigh, where blood was clotted.
(9) Incised wound 2 x ¼ x ¼ cm present over lower 1/3rd part of left thigh, where blood was clotted.
40. This witness has also stated in his statement that injuries No. (1) to (4) were caused by hard and blunt object, whereas, injuries No. (5) to (9) were caused by sharp cutting object. The 27 CRA No. 16/2010 aforesaid injuries were caused ante-mortem. Various cut marks were found on the clothes on correspondent side of injury Nos. (5) to (9).
41. Dr. S.C. Bansal has also stated that he collected the Viscera and handed over the same to Constable for further scientific examination. This witness has opined that the cause of death of deceased Pooran was shock & hemorrhage and deceased was died within 24 hours of post-mortem. The post-mortem report is Ex- P/8. This witness has denied the suggestions made by the defence and has specifically stated that injuries (5) to (9) could not be caused due to fall down over broken sharp pieces of glass lying on the ground.
42. Dr. S.C. Bansal has also stated in his statement by examining articles such as knife that the injuries found on the body of the deceased could be caused with the help of knife. Therefore, it is clear from aforesaid that the trial Court has rightly held that the death of the deceased was homicidal.
43. The prosecution witnesses - Meerabai (PW-2), who is wife of the deceased Pooran, and Mahesh (PW-3), who is brother-in- law of the deceased, have specifically stated in their statements that they saw that the accused-appellant was stabbing the deceased
- Pooran with knife. Thereafter, they took Pooran by Auto- rickshaw of Rambabu to the hospital where doctor had declared 28 CRA No. 16/2010 the Pooran dead.
44. Meerabai (PW-2), wife of the deceased, has also stated that deceased was asked to go with one Pannalal and thereafter deceased did not return back. She along with her brother, Mahesh (PW-3) had searched and found that the accused-appellant was holding & stabbing the deceased and also using abusive language.
45. Mahesh (PW-3), who is brother-in-law of the deceased, had executed Dehati Nalishi (Ex-P/1), Spot Map (Ex-P/3) and Lash Supurdaginama (Ex-P/4).
46. Vinod Sharma (PW-7), the then Station House Officer of Police Station Kotwali Vidisha, has proved the lodging of FIR.
47. Learned counsel for the accused-appellant has argued that the aforesaid prosecution witnesses are relatives to the deceased, therefore they are interested witnesses and theory of last seen evidence has been fabricated by the prosecution.
48. It is settled law that merely because the witnesses may be related to the victim or the complainant, their testimonies may not be rejected. There is no legal canon that only unrelated witnesses shall be considered credible. On the contrary, we are of the view that it is not natural for the related witness to implicate a person falsely leaving aside the actual culprit. It is pertinent to note that only interested witnesses want to see the real culprit is brought to book. In this regard, Hon'ble Supreme Court in the case of 29 CRA No. 16/2010 Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, has held in the following manner:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
49. In another Judgment by Hon'ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the 30 CRA No. 16/2010 prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
50. In another Judgment by Hon'ble Supreme Court in the case of Jodhan v. State of M.P., (2015) 11 SCC 52, it has been observed that: -
"28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262], it has been observed that: (SCC p. 271, para 28) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and 31 CRA No. 16/2010 is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri) 563, Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302, Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211 and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107.
29. From the aforesaid summarisation of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
51. In the case of Ramreddy Rajeshkhanna Reddy {(2006) 10 SCC 172}, placing reliance on the judgment in the case of Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603, Hon'ble Supreme Court has also considered the last seen theory and held that-
32CRA No. 16/2010
"The last seen theory, furthermore, comes into play, where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. [Held in the case of State of U.P. v. Satish (2005) 3 SCC 1141.]"
52. Hon'ble Apex Court in case of Hatti Singh vs. State of Haryana, reported in 2007(2) CCSC 802 (SC), relying on the earlier decision of Ramreddy Rajesh Khanna Reddy vs. State of A.P., reported in {(2006) 10 SCC 172}, held here as under:-
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last-seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration."
53. Similarly, in another decision of State of U.P. v. Satish, reported in {(2005) 3 SCC 114}, again held as under :-
"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that 33 CRA No. 16/2010 possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together. It would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws. 3 and 5."
54. In the present case, the trial Court has convicted the accused-appellant by considering the evidence of Meerabai and Mahesh. Though it is true that they are the relatives of the deceased, but only as the witnesses are the relatives of the deceased, their evidence could not be discarded, rather evidence is required to be scrutinized minutely. There is no reflection of false implication of the accused in the present case, rather their evidence is natural and they have supported the prosecution case. The last seen theory is also established by the evidence of these aforesaid witnesses as when they reached on the spot, they saw that the accused-appellant was holding & stabbing the deceased.
55. Learned counsel for the accused-appellant has also submitted that Mahesh (PW-3) has stated in his statement that 34 CRA No. 16/2010 there was no previous enmity between the deceased and accused- appellant, therefore there was no motive to commit murder.
56. Motive has to be gathered from the act done. In the present case, stabbing was done on the vital parts of body of the deceased and the cause of death has been reflected that the deceased was a member of Scheduled Caste community and during aforesaid incident, the accused-appellant was using abusive language. Therefore, it cannot be said that there was no motive to commit murder. Hence, trial Court has rightly held that there was motive to commit murder.
57. Learned counsel for the accused-appellant has also submitted that no independent eye-witness was produced despite the place of incident is public place and many houses are situated there, wherein Chandresh Painter, Ramprasad, Shyamlal, Rajupal, Kashiram, Brajesh, Goverdhan, Gyarsi, Babu Singh etc. reside, were not produced. But this argument has no force as in the case of State of Rajasthan Vs. Teja Singh [2001 (2) MPWN 64], Awadhesh & others Vs. State of M.P. [1988 JLJ 358 SC], Dhannu Singh Vs. State of M.P. [1997 (2) JLJ 31], it has been held that it is the normal phenomena that no one wanted to be a witness to a case.
58. The contradictions & omissions are not fatal to the prosecution case. The story brought by the defense that the 35 CRA No. 16/2010 appellant was falsely implicated on account of one Parshad- Asha, who remained present at the time of lodging of Dehati Nalishi (Ex-P/1) and Parshad- Asha was having enmity with the accused- appellant. This argument has also no force as it is undisputed that Asha was a Parshad and the person who is holding such designation is duty bound to maintain peace in the Society and if such person takes any initiative, then that initiative of such person cannot said to be because of any previous enmity, as defence has failed to prove the previous enmity between the Asha and accused- appellant.
59. Learned counsel for the accused-appellant has also argued that the auto-rickshaw driver, Rambabu, was not examined who was the material witness, but again there is no force in the aforesaid arguments advanced by learned counsel for the accused- appellant, as Rambabu was not the eye-witness to the incident, rather he transported the deceased up to the hospital.
60. The investigating officer, B.P. Samadhiya (PW-6), has stated that all the seized articles were sent for FSL examination and FSL report (Ex-P/12) proved that on the seized articles, same blood group was found.
61. In the light of the foregoing discussion, we are of the considered opinion that the trial Court did not err in passing the judgment of conviction and sentenced the appellant. The appeal 36 CRA No. 16/2010 filed by the appellant is devoid of merits and is hereby dismissed. The judgment of conviction and sentence dated 31/03/2009 passed by the trial Court is hereby confirmed.
62. As per report dated 04/08/2021 received from Jail Superintendent, Central Jail Bhopal (M.P.), appellant Bablu @ Virendra is in Central Jail Bhopal. He be intimated with the result of this appeal through relating Jail Superintendent.
63. Let a copy of this judgment along with record of the trial Court be sent back immediately.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
Shubhankar*
Digitally signed by
SHUBHANKAR MISHRA
Date: 2021.10.05
18:19:24 +05'30'