Anil Dubey vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 1.05.2012 passed in Sessions Trial No.218/1998. The appellant was prosecuted for

commission of offence punishable under Sections 147, 148, 302, in alternate 302/149, 324 in alternate 324/149, 323/149 of Indian Penal Code. The trial

Court held the appellant guilty for commission of offence punishable under Sections 302, 148, 324/149 and 323/149 of Indian Penal Code and awarded

sentence of life imprisonment, RI for one year, RI for one year and RI for three months alongwith fine of Rs.1000/-.

Prosecution story in brief is that injured Brijesh Tiwari, who lodged the report, was coming from Raghurajgarh. At around 6 O'clock, his father,

brothers Virendra and Dharmendra and other persons met him on the way. His brother Virendra Prasad told him that Anil Dubey had inflicted 2-4

punches to Dharmendra on an old enmity. He further informed that when his brother would come from Raghurajgarh he would commit 'marpeet' with

him also. When they reached in front of Manja Hotel, Anil, Pramod and Bablu Singh abused them. Anil had a knife with him. He had inflicted a blow

of knife on the chest of the deceased, due to which he fell down. Pramod inflicted a blow of knife at right hip and Bablu Singh inflicted a blow of knife

at left shoulder of injured Brijesh Tiwari. Vinod and Jitendra inflicted injuries by lathies. Dharmendra had taken the deceased to Mangawan Hospital.

Report Ex.P/11 was lodged at the police station. Police conducted investigation and filed charge-sheet against the appellants. The appellants abjured

the guilt and pleaded innocence. The trial Court, after trial, did not find prove the charges under Sections 302, 147, 148 and 149 of IPC. However, the

trail Court held the appellants guilty for commission of offence punishable under Sections 324/34 and 323/34 of IPC and awarded sentence as

mentioned above in the judgment.

Police filed charge-sheet against five accused persons. Four accused persons were tried in a separate trial. At that time, appellant was absconding.

He was prosecuted subsequently. Other four accused persons were held guilty for commission of offence punishable under Section 324/34 and 323/34

of IPC and awarded sentence of RI six months and RI three months alongwith fine amount of Rs.1000/- and Rs.500/- respectively. Present appellant

has been convicted for commission of offence punishable under Sections 302, 148, 324/149 and 323/149 of IPC.

Learned Senior Counsel appearing on behalf of the appellant has submitted that in a separate trial, the trial Court did not find the offence proved

against other four accused persons under Sections 148 and 149 of Cr.P.C, hence, there was no unlawful assembly. In view of the earlier trial, the trial

Judge in the present case committed an error in convicting the appellant for commission of offence punishable under Sections 148, 324/149 and

323/149 of IPC. It is further submitted by the learned Senior Counsel that even if the prosecution story be accepted, then the allegation against the

appellant is that he had given one blow at the chest of the deceased. Hence, there was no motive of the appellant to kill the deceased. The offence of

the appellant would fall under Section 304 Part I of IPC.

Learned counsel for the State has submitted that the appellant was armed with a deadly weapon i.e. knife and he had inflicted blow at the chest of

the deceased, due to which he was died. The trial Court has rightly convicted the appellant for commission of offence of murder and awarded proper

sentence.

PW-1 Dr. C.M. Mishra performed postmortem of the deceased. He deposed that he noticed one stab wound on the chest of the deceased

measuring 1.5x1/2x2 inches. The injury was serious in nature. He further deposed that on the same date he examined Brijesh Tiwari and noticed

following injuries on his person:

(I) One stab wound measuring 1x1/2x1 inch at right hip.

(II) One incised injury measuring 1x1/4x1/4 inch at left shoulder. (III) One abrasion measuring 3x1 inch at right ankle.

Injuries No. (I) and (II) were caused by hard and sharp edged weapon and injury No. (III) was caused by hard and blunt object. Injuries were simple

in nature.

He further deposed that on the same date I examined Virendra Prasad Tiwari and noticed one injury measuring 3x2 inch, bluish in colour, on the

middle of the skull, which was caused by hard and blunt object. The injury was simple in nature.

PW-7 Brijesh Tiwari is the injured eye witness. He deposed that I had gone to Mangawan. At Mangawan bus stand my father, brothers Virendra

Tiwari and Dharmendra Tiwari and Baiyalal Tiwari met with me. I asked them that whey they had come at Mangawan. My brother Dharmendra

Tiwari told me that at the school, Anil Dwivedi and Jitendra Dwivedi had beaten him. He further informed that when I would come from

Raghurajgarh they would kill me. When we reached at Manja Hotel, at that place, Ashok Dwivedi, Anil Dwivedi, Pramod Dwivedi, Vinod Dwivedi,

Jitendra and Bablu Singh were sitting inside of the hotel. After seeing us, they came out from the hotel and at that time present appellant had inflicted

a blow of knife at the chest of my father and Pramod had inflicted two blows at my hip. They had beaten us. We had taken my father to the hospital

of Dr. Mishra. Thereafter, my father was referred to Rewa. He died on the way. My brother Virendra Tiwari lodged the report at the police station.

Another injured eye witness Virendra Tiwari has not been examined in the case. However, PW-12 Dharmendra Tiwari is another eye witness. He

deposed the same facts as deposed by PW7 Brijesh Tiwari. He specifically deposed that the present appellant had inflicted a blow of knife at the

chest of the deceased. There is a dying declaration of the deceased. Report was lodged promptly at the police station. Dr. Mishra (PW-1), who

performed postmortem of the deceased, deposed that there was one stab injury. There is no seizure of knife because appellant

was absconding for a considerable period of time. From the aforesaid evidence, in our opinion, it has been established that deceased was died due to

stab injury caused by the present appellant.

Now, next question is that what offence the appellant had committed? The Hon'ble Apex Court in the case of Nankaunoo vs State of Uttar

Pradesh, (2016) 3 SCC 317 has held as under in regard to exception 3 of Section 300 of IPC:

“11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the

offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there

was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of

nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v.

State (Delhi Administration) (1991) 2 SCC 32, para (12), this Court held as under:-

“12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7)

'7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the

applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.'

The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding

principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient

in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or

unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an

intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of

nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that

particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction

from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be

established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and

invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of

injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is

accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences

should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences

would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared

to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing

to achieve a particular end.â€​

The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency

is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and

causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the

body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases,

the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact,

taken place.â€​

The Hon'ble Supreme Court has specifically held that as compared to ‘knowledge’, ‘intention’ requires something more than the mere

foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end. In the present case, the allegation against the

appellant is that he had caused a blow by knife at the deceased. There is no evidence that the appellant had inflicted any other injury or he had

inflicted injury to other persons. In our opinion, there was no intention of the appellant to cause death of the deceased. Hence, the offence committed

by the appellant would fall under Section 304 Part I of IPC.

Next question is that whether the appellant was a member of unlawful assembly and whether he could be convicted for commission of offence

punishable under Sections 323 and 324 of IPC with the aid of Section 149 of IPC. In a separate trial of four co-accused persons, who were tried

earlier in S.T. No.218/1998, the trial Judge has held that there was no unlawful assembly. The trial Judge has given the benefit of doubt to other co-

accused persons. The trial Court has committed an error in holding the appellant guilty for commission of unlawful assembly and convicting the

appellant under Section 324/149 and 323/149 of IPC.

Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial Court is hereby set aside. The

appellant is convicted for commission of offence punishable under Section 304 Part I of IPC. He is awarded sentence of RI 10 years and fine of

Rs.2000/- and in default of payment of fine further RI for six months. He shall undergo the aforesaid sentence.