Madhya Pradesh High Court
Hakim Khan vs State Of M.P. on 20 May, 2006
JUDGMENT
1. Being aggrieved by the judgment of conviction under Section 302, IPC and sentence of imprisonment for life with fine of Rs. 5,000/- passed on 31-7-1992 by Shri R.P. Gupta III Additional Sessions Judge, Sehore in Sessions Trial No. 201/91, appellant has filed this appeal.
2. Counsel for the appellant argued vehemently and submitted that conviction is based upon the sole testimony of eye-witness P.W. 1 Parvin Bi, widow of the deceased. He submitted that the testimony of P.W. 1 Parvin Bi is not reliable and she has not seen the incident. He submitted that the manner in which graphic description of the incident is given by her before the Court clearly demonstrates that she is a tutored witness who has not seen the incident. Counsel for the appellant, then, in alternative, argued that even if the prosecution case is accepted as it is, then also, this case will not amount to murder but at the most, it is a case of culpable homicide not amounting to murder. Counsel for the appellant submitted that the manner in which offence is committed and injury is received by the deceased, offence will be covered by illustration (c) of Section 299 of IPC. He submitted that it is not a case of murder but it is a case of culpable homicide not amounting to murder.
3. Counsel for the State supported the judgment and submitted that the prosecution has established its case. He submitted that the prosecution has established that the appellant intended to cause the injury and that the injury has caused death of deceased Aziz Khan. He submitted that in the post-mortem report (Ex. P-13), it is mentioned that the incised injury has cut the carotid vessels on the right side of neck. He submitted that considering the injury described in the post-mortem report, it can safely be inferred that the injury was sufficient in the normal course of nature to cause death. Counsel for the State submitted that offence is covered by Clause 3rdly of Section 300, IPC. He further submitted that testimony of P.W. 1 Parvin Bi is wholly reliable and natural and her statement before the Court and statement before the police under Section 161, Cr.PC corroborate each other. He submitted that the defence could not point out any omission or contradiction between her two statements. He submitted that FIR is not a substantive piece of evidence and if details are not mentioned in the FIR, then it will not make the prosecution case weak. He submitted that the appeal has no merit and it be dismissed.
4. According to the prosecution, incident took place on 23-2-91. On that day, Aziz Khan (deceased) was returning home. He was stopped by the appellant on the road in a lane going towards the house of deceased. After stopping the deceased, appellant asked him that why his wife has abused appellant's daughter while she was taking water from the tap. Deceased replied that he has no knowledge about the complaint. Then appellant suddenly caught the hand of deceased. Deceased freed his hand and ran towards his house. Appellant chased him and caught him and told him that he will finish him today and gave one knife blow on his neck. Deceased suffered injury on his neck and fell on the ground. Then, appellant ran away. P.W. 1 Parvin Bi went to lodge report and she lodged the report at Police Station Mandi, Bhopal at 10.30 AM. Incident took place at about 9 AM and the report was lodged at 10.30 AM. Police station was about 8 kilometers away from the spot. Merg intimation was also recorded. During this period, message was also received by Station House Officer who was on VIP duty. Station House Officer, R.K. Mishra, received a wireless message that somebody is injured at Village Mugaspur by knife. On this information, he went to Village Mugaspur at about 11 in the morning and registered the crime under crime number 45/91 for offence punishable under Sections 341 and 307 of IPC and sent the injured Aziz Khan to hospital, where he was declared dead. Dead body of the deceased was sent for post-mortem on the same day and post-mortem was performed at about 3 PM on the same day. Doctor found only one injury. On the statement under Section 161, Cr.PC of the complainant and other villagers, appellant was arrested and produced before Judicial Magistrate. After filing of challan, case was committed to the Court of Sessions and learned Sessions Judge recorded the evidence and convicted the appellant.
5. Prosecution has examined two eye-witnesses namely P.W. 1 Parvin Bi and P.W. 2 Ku. Nasreen Bi. Trial Court has held that Ku. Nasreen Bi (P.W. 2) had reached the spot after the incident and she was not an eye-witness whereas relying upon the testimony of Parvin Bi (P.W. 1) corroborated by medical evidence, Trial Court convicted the appellant.
6. Since the conviction of the appellant rests upon the sole testimony of P.W. 1 Parvin Bi, we have considered her evidence minutely.
7. Parvin Bi (P.W. 1) has deposed that when her husband Aziz Khan was returning home from the Well in the morning, he was stopped by the appellant who came from behind the bullock-cart. Appellant asked him why his wife has abused his daughter while filling water from the tap. Deceased replied that he has no information about the allegation. On his reply, appellant caught his hand. Deceased got his hand freed from the appellant and ran towards his house. Appellant chased the deceased and stabbed him on his neck. Deceased fell on the spot. This witness ran towards the injured. Then appellant threatened her and has shown knife to her and other viewers of the incident. This witness has deposed that then she went to lodge the report. This witness was subjected to long cross-examination. She was asked that the manner in which she has described the incident is not mentioned in FIR (Ex. P-1) and in her statement before police (Ex. D-1). This witness has deposed that in her statement she had given full particulars and if the police has not recorded those particulars, she is unable to explain the reason. Ex. P-1 is the FIR lodged by P.W. 1 Parvin Bi. In the FIR it is mentioned that Aziz Khan who was returning from his agricultural field was stopped on the road by the appellant and the appellant started beating him. When deceased resisted, appellant stabbed knife on right side of his neck and thereafter he left the deceased. Thereafter, this witness went to lodge report.
8. It may be mentioned that FIR is an information given to the police. In the FIR it is not necessary to mention the complete details of the incident and the manner in which incident has occurred. Only information of commission of offence is given to the police so that complaint can be investigated into. On the same day, statement (Ex. D-1) of P.W. 1 Parvin Bi was recorded. Her statement Ex. D-1 given to the police and her statement before the Court do not suffer from material contradictions. In her statement before the police and before the Court, she has deposed that appellant had stabbed the deceased while he was going to her house. She has mentioned in her statement that appellant has stabbed the deceased on right side of his neck and after injuring him, appellant ran away from the spot and she had gone to lodge the report. We do not find any contradiction between her statement (Ex. D-1) and that deposed before the Court. She is a natural witness. Minor contradictions in her statement before the police and statement before the Court are immaterial. It must be kept in mind that her husband was stabbed and at that stage, her statement was recorded. Thus, minor omissions or contradictions will not weaken the case of prosecution. We have read entire evidence of this witness and we are of the opinion that this witness is a natural and most reliable witness and she cannot be disbelieved. Trial Court has rightly relied upon her evidence. It may be mentioned that her evidence refers to one injury on the neck of the deceased. This statement is further corroborated by deposition of Doctor N.K. Sahu (P.W. 7). Doctor had found one stab wound of size 1.25" x 1/2" x tissue deep on the middle of neck on right side cutting the muscles of neck and carotid vessels on the right side. Bleeding was found present from the wound. Doctor has opined that cause of death was shock and haemorrhage and mode of death was homicidal. He has deposed that injury is caused by sharp cutting object and the injury caused was the cause of death. In the post-mortem report he has mentioned that injury on neck is extensive in nature caused by sharp and pointed object, ante mortem, cutting them carotid vessels of right side. Death has taken place within 24 hours of post-mortem examination. He has deposed that death was due to extensive bleeding which resulted into heart failure.
9. Considering the above evidence, it is clear that prosecution has proved that appellant has caused injury on the neck of the deceased.
10. Now the next question is whether the offence committed by the appellant will fall under illustration (c) of Section 299 of IPC or will fall within Clause 3rdly of Section 300 of IPC. Counsel for the appellant submitted that the manner in which the offence is committed, the offence will fall under illustration (c) of Section 299, IPC. In support of his contention, learned Counsel for the appellant has relied upon the judgment of the Apex Court in the case of Shankar Narayan Bhadolkar v. State of Maharashtra . He submitted that the Apex Court after examining and explaining the intention of Sections 299 and 300, IPC has held that the offence alleged in the said case is covered by Section 304, Part I of IPC. He drew the attention of this Court to Paragraph 33 of the judgment which is reproduced below:
33. Clause (c) of Section 299 and Clause (4) of the Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
Counsel for the appellant therefore submitted that unless knowledge on the part of the offender is of the highest degree of probability and the act has been committed by the offender without any excuse for incurring the risk of causing death or such injury, then the offence may amount to murder. The knowledge that the injury may cause death must be of highest degree of probability. He submitted that unless highest degree of probability is not proved, the conviction of the appellant under Section 302, IPC is liable to be set aside.
11. On the other hand, Counsel for the State submitted that the manner in which the offence is committed, the act of the appellant is covered by Clause 3rdly of Section 300 of IPC which amounts to murder. He submitted that when the appellant has intended to inflict a serious injury and the said injury is proved to be fatal, then as laid down in the case of Virsa Singh v. State of Punjab , the prosecution is required to prove the following three elements to bring the offence under Clause 3rdly of Section 300 of IPC:
Firstly, it must establish quite objectively that a bodily injury is present;
Secondly, the nature of injury must be proved; and 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.
Counsel for the State submitted that if these three elements are proved then there is no need to prove the intention of the offender. He submitted that prosecution has proved all the three elements required to be proved. Prosecution has proved that the appellant intended to inflict bodily injury. The knife injury is caused on the neck which has cut the carotid vessels. There is no material on record to show that the injury was accidental or unintentional. P.W. 1 Parvin Bi has categorically deposed that after getting his hand released, when the deceased ran towards his house, he was chased by the appellant and stabbed on the neck. Thus, prosecution has proved that the injury on the neck was not unintentional. Once inflicting the injury by the appellant is proved and the post-mortem report suggests that the said injury was sufficient in the ordinary course of nature to cause death, then the prosecution is not required to prove the intention of the offender.
12. Clause 3rdly of Section 300 of IPC is explained in the case of Virsa Singh v. State of Punjab (supra). Counsel for the appellant submitted that after Virsa Singh's case (supra), Clause 3rdly of Section 300 of IPC was considered in the case of Anda v. State of Rajasthan . In the said case, the Apex Court has considered the illustration (c) appended to Clause 3rdly of Section 300 of IPC and held that the sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Thus, material part is that the injury to cause death in the ordinary course of nature is the gist of this clause. Intention to cause death is immaterial. Once causing of intentional injury is proved and nature of injury is sufficient in the ordinary way of nature to cause death, then offence is covered by Clause 3rdly of Section 300 of IPC.
13. In the case of Abdul Waheed Khan v. State of A.P. the intention of accused prevailing at the time of assault was considered. It is held by the Apex Court that the intention of accused prevailing at the time of assault determines the applicability of the relevant provisions of IPC. While considering Section 299 and Section 300 of IPC, culpable homicide and murder and its distinction, it is held in this case that Clause (b) of Section 299 corresponds to Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by illustration (b) appended to Section 300. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person. The Apex Court after placing reliance on Rajwant Singh v. State of Kerala AIR 1966 SC 1874 reiterated that for the cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. The Apex Court again reiterated the principles laid down in the case of Virsa Singh v. State of Punjab (supra). While considering the scope of Clause (c) of Section 299 and Clause (4) of Section 300, it is held that both require knowledge of the probability of the act causing death. It is held that Clause (4) of Section 300 will be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed b.y the offender without any excuse for incurring the risk for causing death or such injury as aforesaid.
14. In the case of State of Rajasthan v. Dhool Singh question of intention to cause injury likely to cause death was considered. In this case injured had suffered incised injury used by sword. Injury was caused on the left side of the neck cutting thyroid cartilage transversally on left side sternoclinoid muscle. External jugular vein, internal jugular vein and common carotid artery were cut completely. Doctor opined in this case that cause of death was due to cut on the neck and the excess bleeding and heart failure. It is held in Paragraph 12 of the judgment that it is clear that the opinion of the doctor as to cause of death was the incised cut wound on the neck which led to excessive bleeding and heart failure. It is further observed by the Apex Court that the High Court's observation that there is no opinion of the doctor in regard to the cause of death is contrary to medical evidence. While considering the scope of Section 300 of IPC, it is held that culpable homicide becomes murder if the attacker causes the injury which he knows is likely to cause death of the victim or in consequence to such injury victim dies. Once these ingredients are established by the prosecution beyond reasonable doubt, then conviction under Section 302, IPC should be maintained. If medical evidence is silent about nature of injury caused by the appellant and where there is no material to assess the nature of injury, then the Court has drawn a conclusion that the case would fall under Section 326, IPC, but where the Court has come to a definite conclusion about the nature of injury, which could be seen from the record, the intention and knowledge of the accused becomes clear. It is further held in this case that the Trial Court has rightly convicted the accused under Section 302, IPC and the High Court on erroneous appreciation of evidence has converted the offence into one under Section 304, Part II of IPC. It is further observed in this case that the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is a need for the Courts to apply its mind while imposing sentence. In the instant case, the Court while convicting the respondent for an offence punishable under Section 304, Part 11 of 1PC which has maximum sentence up to 10 years thought it fit to impose the sentence already undergone without even applying its mind as to why it should be less than 10 years or for that matter what is the sentence already undergone.
15. Keeping the aforesaid judgments in mind and the manner in which offence is committed, we find that the prosecution has proved that there was intention on the part of the appellant to cause the injury. Injury was caused on neck which has cut the carotid vessels. The injury so received is sufficient in the ordinary course of nature to cause death. Now we come to the deposition of doctor and the question that if the doctor has not expressly opined that the injury was sufficient to cause death in the ordinary course of nature, then whether on mere omission on the part of the doctor, the Court should shut its eyes and without considering the nature of injury hold that the injury is not sufficient to cause death in the ordinary course of nature. In our opinion, it is not the intention of law. Intention of law is that the Courts must objectively examine the case and examine the injury. The manner in which the injury is caused determines the nature. Applying three principles laid down in the case of Virsa Singh (supra), prosecution has established that injury was caused on the neck by the appellant. Injury was dangerous in nature as it cut the carotid vessels which resulted into death of the deceased. The effect of the injury was death. P.W. 1 Parvin Bi is firm on the point that appellant has chased the deceased and caught him after some distance and stabbed him. Stabbing on the neck is intentional and on applying the principles laid down in the case of Virsa Singh (supra), it is clear that this is a case where the prosecution has proved its case within Clause 3rdly of Section 300 of IPC.
16. As discussed above, we are of the opinion that the Trial Court has not committed any error in convicting the appellant for offence under Section 302 of IPC and in imposing sentence of imprisonment for life.
17. In the result, appeal has no merits and is dismissed. Appellant is on bail. He shall surrender before Chief Judicial Magistrate, Sehore within one month from today to undergo the sentence. In case appellant fails to surrender, Chief Judicial Magistrate, Sehore shall issue warrant of arrest against the appellant for sending the appellant to jail for undergoing the sentence.
18. Copy of the judgment be sent to Chief Judicial Magistrate, Sehore for compliance.