Madhya Pradesh High Court
Nokhelal vs The State Of Madhya Pradesh on 1 May, 2017
1 Cr.A No.2116/2006
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.2116/2006
Nokhelal
vs.
State of M.P.
..............................................................................................................
Present:- Hon'ble Shri Justice Rajendra Mahajan.
Hon'ble Shri Justice C.V. Sirpurkar.
...............................................................................................................
Smt. Durgesh Gupta, counsel for the appellant.
Shri Y.D. Yadav, panel lawyer for the respondent/State.
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JUDGMENT
(01-05-2017) Per: C.V. Sirpurkar, J.
1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure is directed against the judgment dated 18.10.2006 passed by the Additional Sessions Judge, Lakhanadaun, District Seoni, in Sessions Trial No.56/2006; whereby the accused/appellant Nokhelal was convicted of the offence punishable under Section 302 of the I.P.C. and was sentenced to life imprisonment and a fine of Rs.1000/-. In default of payment of fine, he was directed to undergo further imprisonment for a period of three months.
2. The prosecution case may briefly be stated as hereunder:
Accused/appellant Nokhelal had married deceased Geeta Bai about 15 years before her death. At about 2:00 p.m. on 31.3.2006, the deceased 2 Cr.A No.2116/2006 was sleeping in the parchhi (veranda) of her house. At that time, appellant Nokhelal was searching his shaving razor in the house. Since, he could not locate the same, he started abusing the deceased, blaming her for lending household items to the neighbours. Whereupon, deceased replied that somebody in the neighbourhood must have taken the razor and it would be returned. Consequently, the appellant started to beat the deceased with hands and fisticuffs. When the deceased cried, the appellant poured kerosene upon her from a can, took out a matchbox from his pocket and set the deceased ablaze. The deceased ran out and raised alarm; whereon, her neighbour Bhadda arrived at the spot and doused the fire by pouring water upon her. Durgesh, 15 years old son of the appellant and the deceased, was also present on the spot. Thereafter, the deceased called her mother Sukko Bai and narrated the incident to her. The First Information Report was lodged by the deceased at about 2:50 p.m. in P.S. Ghansaur. The dying declaration of the deceased was recorded at 6:00 p.m. the same day. The deceased had suffered 70% burns and as a result of the complications thereof, expired on 4.4.2006.
3. After the trial, learned Judge held that prosecution was able to prove beyond reasonable doubt that deceased Geeta Bai was wife of the appellant. She suffered a homicidal of death on 4.4.2006. Trial Court further held that on the basis of the dying declaration recorded by the Executive Magistrate on the date of the incident as well as on the basis of the First Information Report lodged by the deceased, which had acquired the status of a dying declaration after the death of the deceased, it was proved beyond reasonable doubt that pursuant to a very trivial domestic quarrel regarding misplacement of a shaving 3 Cr.A No.2116/2006 razor. The appellant got enraged, poured kerosene upon his wife and set her ablaze, causing 70% burns, which resulted in her death six days later.
4. Learned counsel for the appellant has confined her arguments to the point that the charge of murder was not proved against the appellant beyond reasonable doubt. At worst, only the charge of culpable homicide not amounting to murder was proved. In support of aforesaid contention she submitted that admittedly, the appellant and the deceased had been married for a period of over 15 years. There is no evidence that they had any serious differences. Since, the appellant wanted to shave and the shaving razor was misplaced, he was blaming his wife for the same. As a result, he was incensed and without any premeditation, in a fit of anger, had poured kerosene upon his wife and had set her afire without realizing the consequences thereof. He had no intention of killing his wife; therefore, his act would not fall under the category of murder. As such, the trial Court erred in convicting the appellant under Section 302 of the I.P.C and imposing life sentence upon him.
5. Learned panel lawyer for the respondent/State on the other hand has countered the arguments advanced by contending that the appellant may not have had an intention causing death of the deceased; however, there can be no doubt that he had the intention of causing such bodily injury to his wife as was sufficient in the ordinary course of nature to cause death. Moreover, aforesaid act of setting his wife ablaze was not done under any sort of provocation; therefore, the case would squarely fall under the category "Thirdly" of Section 300 defining murder. As 4 Cr.A No.2116/2006 such, the trial Court was perfectly justified in convicting the appellant under Section 302 of the I.P.C.
6. Section 299 of the I.P.C. defines culpable homicide as hereunder:
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.
Thus, if the death is caused by doing an act with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, it is culpable homicide.
7. Section 300 of the I.P.C. defines murder as follows:-
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.
8. At this juncture it is apt to recall the celebrated judgment delivered by a three judge bench of the Supreme Court in the case of Virsa Singh v. State of Punjab AIR 1958 SC 465, wherein Bose J speaking for the bench has observed as hereunder:
8. It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 "thirdly" was quoted :
"If it is done with the intention of causing bodily injury to any person and the bodily injury to any person and the bodily injury intended to be inflicted is suffi- cient in the ordinary course of nature to cause death."
It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
5 Cr.A No.2116/20069. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the "thirdly" would be unnecessary because the act would fall under the first part of the section, namely -
"If the act by which the death is caused is done with the intention of causing death."
In our opinion, the two clauses are disjunctive and separate. The first is sub- jective to the offender :
"If it is done with the intention of causing bodily injury to any person. It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the ques- tion of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.
10. Once that is found, the enquiry shifts to the next clause :-
"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the circum- stances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow land- ed in the region of the heart by accident, then, though an injury to the heart by ac- cident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining -
"and the bodily injury intended to be inflicted"
is merely descriptive. All the means is that it is not enough to prove that the in- jury found to be present is sufficient to cause death in the ordinary course of na- ture; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference of deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflict- ed. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that 6 Cr.A No.2116/2006 there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand.
12. To put it shortly, 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 fur- ther 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.
13. 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. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction be- tween the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily in- jury actually found to be present is proved, the rest of the enquiry is purely objec- tive 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. No one has a li- cence to run around inflicting injuries that are sufficient to cause death in the or- dinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or other- wise unintentional.
9. As such, until the case falls under one or more of the 5 exceptions appended to Section 300 of the I.P.C., culpable homicide would be murder if the Act by which the death is caused, is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death. Exception nos. 1 and 4 to section 300 of IPC are relevant for the purposes of the present case. Shorn of illustrations, those are being reproduced herein below:
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 7 Cr.A No.2116/2006 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 4.--Culpable homicide is not murder if it is committed without premedita- tion in a sudden fight in the heat of passion upon a sudden quarrel and without the of- fender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
10. In the light of the aforesaid legal position, reverting back the facts of the case, we may note that Durgesh, 15 years old son of the couple, Sukkobai, mother of the deceased and Bhadda the neighbour, have turned hostile. This is a classic case where the living seem to be conspiring against the dead. On the face of it, there seems to be no reason as to why the near relatives of the deceased would go out of their way to support the appellant. However, in this case the circumstances are unusual. The deceased and the appellant were spouses. The appellant and the deceased have a growing son. Therefore, reasons for this seemingly unnatural conduct of the relatives are not far to seek. It is obvious that the mother of the deceased has to consider the future of the son of the ill-fated couple. That is what prompted her and her grand-son to turn hostile. The Court, however, cannot allow itself to be swayed by any such consideration. The short point is that the depositions of witnesses who have turned hostile, even if they were near relatives of the deceased, do not dent the credibility of dying declarations of the deceased.
8 Cr.A No.2116/200611. As such, the prosecution case is based entirely upon the dying declaration (Ex. P-1) recorded the same evening at 6:00 p.m. by the Executive Magistrate and the first information report (Ex.P-13) lodged by the deceased herself about 50 minutes after the incident. After the death of the deceased, the First Information Report bearing thumb impression of the deceased, has become admissible as a dying declaration. Various objections were raised before the trial Court as to the reliability of the dying declaration and the First Information Report; however, they were competently dealt with by the trial Court. We also do not find any infirmity in the findings of the trial Court holding those documents to be admissible and reliable. In any case, the finding of the trial Court that the dying declaration (Ex. P-1) and the First Information Report (Ex.P-13) which has acquired the status of a dying declaration were reliable, has not been challenged before us. It is settled position of law that a conviction may be based solely upon a dying declaration provided that the Court is satisfied that it is true and voluntarily. In these circumstances, the Court shall proceed on the assumption that the situation as disclosed in the dying declaration and the First Information Report was prevailing at the time of the incident and on that basis shall examine whether a case of murder or culpable homicide not amounting to murder, has been made out?
12. It is not in dispute that more than 15 years had elapsed since the marriage of the appellant and the deceased. There is no evidence that there were any serious differences between them. At the time of the incident, the deceased was sleeping and the appellant was searching for shaving razor, since it could not be located, he got infuriated and started blaming his wife that she keeps lending household articles to 9 Cr.A No.2116/2006 others. The deceased assured him that someone in the neighbourhood must have taken the razor and the same would be returned. Thus, it is clear that the appellant was put to minor inconvenience and nothing more. No provocation much less grave and sudden provocation, was offered by the deceased. Yet the appellant got so enraged that he lost control of his senses. He poured kerosene upon his unsuspecting wife and before she could react, set her ablaze by means of a matchstick causing 70% burns.
13. True it is that the act of the appellant was not premeditated and he lost self control; however, this extreme reaction on the part of the appellant was not result of any provocation offered by the deceased. It was result of an innocuous reply that someone must have borrowed the razor and would return the same. These words do not constitute any kind of provocation. This was just an attempt on the part of a wife to pacify her husband. These words do not fall in the category of grave and sudden provocation, which is required to bring the act of the appellant within the ambit of exception no.1 to Section 300 of the I.P.C.
14. It may further be noted that exception no.4 can also not be pressed into service for bringing the act of the appellant outside the purview of Section 300 of the I.P.C.
15. It is true that the act of the appellant was not premeditated and it was committed in the heat of passion; however, it was not result of a sudden fight or upon a sudden quarrel. The role of the deceased in the incident was absolutely passive. She did not seek or do anything which may be termed as indulging in a fight or a quarrel. The rage of the appellant was purely unilateral, triggered by such inane reason as 10 Cr.A No.2116/2006 misplacement of a shaving razor. The deceased can, in no manner, be held responsible for the same.
16. It is not a case where due to sudden rage the appellant had assaulted the deceased with a stick or a similar object resulting in her death. It is a case where the appellant had opened a can, poured kerosene upon his docile wife and set her afire. The fire was not caused accidently. Even a person of ordinary intelligence would know that by pouring kerosene upon someone and setting him or her afire, he would cause such injury as would be sufficient in the ordinary course of nature to cause death of such person. Thus, even if it is assumed for the sake of arguments that the act was not done with the intention of causing death of the deceased, it was certainly done with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. Thus, the act of the appellant falls squarely within the ambit of clause "Thirdly" of Section 300 of the I.P.C.
17. In the similar circumstances in the case of Rajendra Kumar Vs. State of U.P. A.I.R. 1998 S.C. 2896, the Supreme Court had held that the case falls within the ambit of Section 302 of the I.P.C.
18. For the reasons aforestated, the arguments of learned counsel for the appellant that the act of the appellant falls under the purview of either exception 2 or exception 4 to Section 300 of the I.P.C. are not acceptable and it cannot be said that the appellant is merely guilty of Section 304 (Part-1) of the I.P.C.
19. The nature of the act namely pouring kerosene upon ones wife and setting her afire is such that the Court may presume that the appellant had intention of causing such bodily injury as was sufficient in ordinary course of nature to cause death and not merely knowledge 11 Cr.A No.2116/2006 that it may result in death. Thus, the act would not come under the purview of Section 304 (Part-2) either.
20. In conclusion, the Court is of the view that learned Additional Sessions Judge has rightly held that the act of the appellant constitutes culpable homicide amounting to murder; therefore, he is liable to be convicted under Section 302 of the I.P.C. Thus, no ground has been made out for interfering with the aforesaid findings.
21. Consequently, this appeal deserves to be and is accordingly dismissed.
22. As such, conviction of appellant Nokhelal under Section 302 of the I.P.C. for committing murder of his wife Geeta Bai is affirmed. The sentence of life imprisonment imposed for aforesaid offence upon the appellant is also affirmed.
(Rajendra Mahajan) (C.V. Sirpurkar)
Judge Judge
ahd
Cr.A No.2116/2006
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.2116/2006
Nokhelal
vs.
State of M.P.
JUDGMENT
For consideration.
(C.V.Sirpurkar)
Judge
Hon'ble Shri Justice Rajendra Mahajan:
(Rajendra Mahajan)
Judge
Post for : 1/05/2017
(C.V.Sirpurkar)
Judge