Dhannalal Alias Gabbar vs State Of Madhya Pradesh

This Criminal Appeal is arising out of the Judgment dated 19.8.2015 passed by the XVI Additional Sessions Judge, Bhopal in Sessions Trial No.673/2013, whereby the appellant has been convicted for offence punishable under Section 302 of the IPC for commission of murder of deceased Deepak and sentenced to imprisonment for life and fine of Rs.500/-; in default of payment of fine, additional rigorous imprisonment for six months. The appellant has also been convicted for offence punishable under Section 326 of the IPC and sentenced to R.I. for 3 years and fine of Rs.500/-; in default of payment of fine, additional rigorous imprisonment for six months. The appellant has further been convicted under Section 324 of the IPC (on two counts) and sentenced to R.I. for 6 months and fine of Rs.200/- each; in default of payment of fine, additional rigorous imprisonment for two months. All the sentences were ordered to run concurrently. However, the trial Court has acquitted the appellant for the offences under Sections 148, 307/149, 323/149 of the IPC and section 25 (1B)(b) of the Arms Act.

The story of the prosecution, in brief, is that complainant party and the accused party were residents of the same locality. On 3.5.2013 at around 11.00 p.m. in the night, complainant Sonam (P.W.1) was collecting water from the water tank along with her sister Rajkumari (P.W.2) and aunt Shakun Panthi (P.W.3) in Harijan Basti, Teela Jamalpura, Bhopal. At that time, co-accused persons Thakur Prasad, Anil, Dinesh and Shakun came there and quarrelled with the complainant party by pulling hair of Shakun on the issue of collecting water first. Then, appellant Dhannalal alias Gabbar along with co-accused Devi Prasad, Thansingh, Kamal, Prem and Kamla Bai formed unlawful assembly and assaulted the complainant party with common intention to kill them. When deceased Deepak, brother of the complainant, came to save the complainant party, appellant/accused Gabbar alias Dhannalal assaulted him with a knife and caused injuries on his stomach. Co-accused Thakur Prasad assaulted Jagdish with a knife, on account of which, he sustained two injuries on his back. The appellant Dhannalal also caused injuries to Shakun on her stomach and complainant Sonam on her waist with a knife. In this incident, co-accused Thansingh assaulted Rajkumari, sister of complainant by throwing Farsa, another sister of complainant namely Shivani was assaulted by co-accused person Kamla with a small wooden bat and pulling their hair. Co-accused persons Kamla, Kamal, Dinesh, Devi Prasad and Prem also assaulted the complainant party with legs and fists. On the date of incident, Deepak, Shakun and Jagdish were taken to Hamidia Hospital. During treatment, deceased Deepak succumbed to the injuries.

After completing the investigation, charge-sheet was filed before the competent Court of law against in all ten accused persons. The trial Court framed charges under Sections 148, 302/149, 307/149, 324/149, 323/149 of the IPC and also under Section 25(1B)(b) of the Arms Act against the accused persons. In all 25 prosecution witnesses were examined. After trial, the trial Court convicted and sentenced appellant Dhannalal alias Gabbar as stated above. Co-accused Thakur Panthi alias Dharmendra, Devi Prasad alias Bablu and Kamla Bai were convicted under Sections 324, 324/34 and 323 of the IPC and they have already served out the sentenced as imposed by the trial Court. It is noted that other co-accused persons Anil Panthi, Kamal Panthi, Thansingh, Prem Panthi, Dinesh Panthi and Shakun Panthi have been acquitted by the trial Court of the charges levelled against them.

We have heard leaned counsel for the parties.

Learned counsel for the appellant has argued that trial Court has erred in holding appellant Dhannallal alias Gabbar guilty for commission of offence under Section 302 of the IPC. Medical evidence and the overt act as alleged would not attract Section 302 of the IPC. The weapon used was not seized from possession of the appellant. The appellant was falsely implicated due to previous animosity between the parties. He prays for acquittal of the appellant as there was contradiction and omission in the evidence of the prosecution witnesses. Alternatively, it is also argued that on the date of incident, quarrel took place on the issue of collecting water from tank in the night at 11.00 p.m. In that incident, one blow was given to deceased Deepak. He sustained injury and ultimately he succumbed to the injury. There is no motive or intention to commit murder of the deceased. At the most, the offence would fall under Part I or Part II of Section 304 of the IPC and not under Section 302 of the IPC.

On the other hand, learned Government Advocate has submitted that the manner in which the incident had taken place in the group, the accused party tried to assault the deceased with intention to commit his murder. There was scuffle and the intention was gathered on the spot and assaulted the deceased with intention to caused his death. The appellant along with co-accused persons formed unlawful assembly and attacked the complainant party, in which appellant caused stabbed injury to deceased Deepak, who succumbed to injuries. The appellant had also assaulted complainant Sonam, Shakun and Ritik, who also sustained injuries. He prays for dismissal of the appeal.

The point for consideration is whether the prosecution is able to prove that the accused/appellant has committed murder of deceased Deepak or the death of the deceased was homicidal, falling under Section 304-Par-I of the IPC.

The prosecution has examined P.W.1-Sonam Panthi, P.W.2 Rajkumari, P.W.3-Shakun Panthi, P.W.4-Laxmi Panthi, P.W.5-Shivani, P.W.6 Jagdish Panthi and P.W.7-Ritik Panthi as eye witnesses to the incident. All of them have consistently spoken that the appellant had caused injures to deceased Deepak on his stomach resulting his death and other persons to whom he attacked. Sonam (P.W.1) who is the complainant and also an eye witness to the incident. She has stated that on 3.5.2013 in the night at 11.00 pm, she was filling water from the water tank nearer to her house along with her sister Rajkumari and aunt Shakun. At that time, appellant and co-accused persons came there and started quarrelling with the complainant party on the issue of collecting water first. Brother of the complainant namely Deepak came to save them, co-accused Kamal caught hold of him and appellant Dhannalal assaulted Deepak with a knife on his stomach. His intestines protruded out and blood was oozing. She also stated that co-accused caught hold of her and appellant caused injuries with a knife on her stomach and back and blood started oozing out. The appellant also assaulted her brother Ritik and aunt Shakun with knife. Thereafter, she also stated that she lodged the FIR (Ex.P.1). They were medically examined and his brother Deepak had died. On being cross-examination, she has stated the same.

P.W.2 Rajkumari is also an eye witness to the incident. She has stated that deceased Deepak is her brother. She has deposed that when her brother deceased Deepak came to save them, appellant Dhannalal assaulted him with a knife. She further stated that the appellant also caused injury to his sister Sonam and his brother deceased Deepak died on the date of incident.

P.W.3 Shakun Panthi is also an eye witness to the incident. She has also deposed that the appellant and the co-accused persons had quarrelled with us on collecting of water from the water tank. She further deposed that appellant Dhannalal alias Gabbar caused injuries to her nephew Deepak on his stomach, due to which intestines came out. She has also deposed that appellant Dhannalal caused injuries to her on her stomach, complainant Sonam and Ritik with knife. In para 16 in cross-examination, this witness has specifically stated that it was the appellant Dhannalal who caused injuries with a knife.

P.W.4 Laxmibai is also an eye witness to the incident. She is mother of the deceased. She has deposed that on the date of incident in the night at 11.00 p.m., she was at home and her daughters Rajkumari and Sonam were collecting water. On hearing shouts, she came out and saw that there was scuffle between the appellant and other co-accused with the complainant party. She further stated that appellant Dhannalal caused injuriy to her son Deepak with a knife and appellant also caused injuries to Sonam and Ritik with knife. She was also injured in the incident.

P.W.5 Shivani who is sister of the deceased has stated that quarrel took place due to collecting water and when deceased Deepak, Ritik and her aunt Shakun came to save them, appellant Gabbar assaulted the deceased with knife on his stomach and he also caused injuries to Sonam and Ritik. Jagdish (P.W.6) is also eye witness to the incident. He deposed that the accused party was the residents of the same locality. He was also injured in the incident. He also deposed about fatal injury caused to deceased Deepak by the appellant. Same is the evidence of eye witness P.W.7 Ritik, who was also injured by the appellant.

Dr. Murli Lalwani (P.W.17) has conducted the autopsy on the body of deceased Deepak. He has opined that the death was due to shock and haemorrhage as a result of stab injury to the abdomen. Injury has been caused by hard, sharp and penetrating object. Injury was homicidal and sufficient to cause death in ordinary course of nature. As per post-mortem report (Ex.P.23), the injury sustained by deceased Deepak is as under:-

"Incised stab wound on left side flank anteriorly, over and above left iliac crest, situated 8.1. cm left and 0.6 cm below umbilicus, size 5 x 1 cm oblique with medial upward and broad and lateral end downward and narrow. It is dissected lateral to medial (left to right), below upwards and anterior to posterior 12.6 cm deep. It is a penetrated wound which has entered into abdominal cavity through pelvic cavity. It has perforated. The small intestine left side through and through, it has further perforated the mesentry of small intestine situated supero-medial to previous perforating wound, then folds of of mesentry and small intestine are punctured and perforated. Margins of all wounds mentioned are sharply cut, with wounds tapering from external to internal. Lower abdominal and pelvic cavity is full of partly clotted blood. At the entering point the left iliac bone superior border showing sharp cut at the junction of medial 1/3rd lateral 2/3rd oblique, with lower end lateral."

P.W.13 Dr. Naveen Kumar medically examined injured Shakun (P.W.3) and as per MLC (Ex.P.16), she sustained stab wound on subcostal region of abdomen, which he found grievous in nature. Dr. Pawan Singh (P.W.16) had examined injured complainant Sonam (P.W.1). As per his MLC (Ex.P.22), complainant Sonam sustained two incised wounds in her hand. He also examined injured Ritik (P.W.7) and as per MLC (Ex.P.21), Ritik (P.W.7) sustained incised wounds on the side of his stomach.

Independent witnesses P.W.8 Akeel and P.W.9 Lakhan Singh are neighbours. They have not supported the prosecution version. They have been declared hostile. However, it appears from the evidence available on record that in the process of quarrel, other co-accused also caused injuries to some of the complainant party, who are eye witnesses of the incident. However, some injured witnesses and other witnesses are related to the complainant. They have supported the version of the prosecution and the overt act of the other co-accused persons. So far as this appellant is concerned, all the eye witnesses have consistently stated that he has stabbed in the stomach of deceased Deepak, resulting in his death, which finds support with the evidence of Dr.Murli Lalwani (P.W.17) who has conducted the autopsy on the body of the deceased and submitted his post-mortemt report (Ex.P.23), As per his opinion, the injury on the stomach of the deceased is the fatal injury.

Even the trial Court has noted in its judgment that there is recovery of knife from the house of the appellant and the size of recovered knife was 6 Inches in length and 2 inches in width and based on the evidence of the doctor, injuries sustained on the body of the deceased Deepak and consistent evidence of the eye witnesses, the trial Court has held that the prosecution is able to prove its case against the appellant for commission of murder of deceased Deepak. Some of the accused persons are also held guilty for offence under Sections 324/34 and 323/34 of the IPC but they have already served out the sentence as awarded by the trial Court. However, some of the accused persons have been acquitted by the trial Court for the charges as levelled against them.

The eye witness account shows that the appellant assaulted the deceased Deepak on his stomach who subsequently died in the hospital during treatment. The question is whether the appellant with intention to commit the murder of the deceased stabbed the deceased and thereby has committed murder of deceased Deepak. Even though it was stated that there appears some animosity between the parties, due to which scuffle took place. At the time of commission of offence, it is noticed that in order to collect water from the Tank in the night at around 11.00 p.m., the complainant party was standing first in the queue. Thereafter, the appellant and co-accused came all of sudden and committed riot. In that scuffle, injuries have been caused to the complainant party. As per evidence of the eye witnesses, appellant Dhannalal caused stabbed injury to deceased Deepak and he also assaulted complainant Sonam, Shakun and Ritik. The very fact is that the appellant tried to assault deceased Deepak and gave one blow on his stomach causing fatal injury and also caused injuries to other persons, which depicts that he had knowledge that injury so inflicted would cause the death of the deceased, but without ill-intention or mens rea to commit the murder. Ultimately the deceased died in the hospital during treatment. This fortifies the fact that the offence wound amount to culpable homicide not amounting to murder and the appellant acted in a heat of the moment and gave one fatal blow. At the most, this case would fall under Part I of Section 304 of the IPC and not under Section 302 of the IPC. On reading of overall evidence of the eye witnesses coupled with medical evidence, it is proved that Deepak died homicidal death due to stabbed injury caused by the appellant. We are of the view that the incident has taken place on a sudden fight in the heat of passion, but without motive or premeditation. As such at the most the offence would fall under Exception part of Section 300 of the IPC.

The Apex Court in the case of Atul Thakur Vs. State of Himachal Pradesh reported as AIR 2018 SC 570 has held that on appreciation evidence, the accused allegedly assaulted deceased with knife causing severe bodily injuries resulting in death. The knife used in assault was recovered from the custody of accused and injuries were attributable to assault by same knife by the accused. The evidence of eye witnesses is revealing commission of crime by accused. Homicidal death is proved by medical examination. The incident happened on account of sudden quarrel and without premeditation. The Apex Court held that the case is culpable homicide not amounting to murder and modified the conviction of the accused to section 304 Part I from that under Section 302 of the IPC and sentenced to R.I. for 10 years with fine of Rs.10,000/-

In the judgment rendered in the case of Arjun and another Vs. State of Chhattisgarh reported as (2017) 3 SCC 247, the Apex Court has held that when and if there is intent and knowledge, then the same would be a case of Section 304 Part I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II of the IPC for commission of culpable homicide not amounting to murder.

In view of the judgments of the Apex Court rendered in the cases of Atul Thakur (supra) and Arjun and another (supra), considering the evidence on record including the medical evidence, we are of the view that this is a case of homicidal death not amounting to murder and this case would fall under Section 304-I and not under Section 302 of the IPC.

For the reasons stated hereinabove, the conviction of the appellant under Section 302 of IPC is altered to that of conviction under Section 304 Part I of the IPC.

Consequently, the appeal filed by the appellant Dhannalal alias Gabbar is partly allowed. Modifying the conviction and sentence as awarded by the trial Court, we convict appellant Dhannalal alias Gabbar under Section 304 Part I of the IPC instead of Section 302 of IPC and he is sentenced to suffer R.I. for 10 years and fine of Rs.1000/-, in default of payment of fine, he is sentenced to suffer S.I. for two months. However, the conviction and sentence as awarded to the appellant under Sections 326 and 324 (on two counts) of the IPC are hereby upheld. All the sentences are ordered to run concurrently. The appellant is reported to be in jail. The period of detention already undergone by the appellant during inquiry, trial or post-conviction be set off in view of Section 428 of the Cr.P.C.