Dipak vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment of conviction dated 07.12.2007 passed in Sessions Trial No.97/2007. The trial Court held

the appellant guilty for commission of offence punishable under Section 302 of IPC and awarded sentence of RI life.

Prosecution story in brief is that the deceased had a grocery (kirana) shop. On the date of incident, he was sitting on a small stall of colours on

account of holi festival. At around 11:30 in the morning, when the deceased was sitting on his stall, the appellant came there. He had an axe in his

hands and inflicted blows of axe on the head of the deceased. Deceased''s son came there and he with the help of another person namely Chhunna

Mishra had taken the deceased to the doctor, who declared the deceased dead. Incident was reported to the police. A merg was recorded, which

is Ex.P1 and report was lodged, which is Ex.P2. Thereafter, police conducted investigation and filed charge-sheet. The appellant abjured the guilt

and pleaded innocence. The trial Court held the appellant guilty for commission of offence and awarded punishment as mentioned above in the

judgment.

Learned counsel for the appellant has submitted that there is no sufficient evidence to hold the appellant guilty for commission of offence of

murder. In alternate, learned counsel for the appellant has submitted that the offence committed by the appellant would fall under Section 304 Part

I of IPC. He placed reliance on the following judgments of the Hon''ble Supreme Court:

Arjun and another vs State of Chhattisgarh, (2017) 2 SCC 247 and

Balbir Singh vs State of Punjab, 1995 (3) Crimes 516.

Learned Government Advocate appearing on behalf of the State has submitted that there is ample evidence on record against the appellant. The

trial Court rightly held the appellant guilty and awarded a proper sentence.

PW-1 Deepender Singh is the son of the deceased. He deposed that on 04.03.2007, there was festival of holi. I was sitting at my grocery shop.

My father had put a small stall of colours and he was sitting there. At around 11.30, the appellant came there, he had an axe with him. He had

beaten my father. He inflicted a blow on the head of my father by axe. I came out from the grocery shop. Sanjay Mishra was also there. After

seeing both of us, the appellant ran towards Nehru Park. We had taken the deceased (my father) to a nearby doctor in a police van. Doctor told

us that my father has died. Appellant used to come at my father''s shop. He used to purchase grocery articles from my father on credit. There were

dues against the appellant. I gave intimation of death to the police, which is Ex.P1 and lodged the report, which is Ex.P2 and signed the same.

PW-2 Sudheer Choudhary admitted that I signed safina form Ex.P3 and Ex.P4.

PW-5 Sanjay Mishra deposed that on the day of holi, children were playing holi. I was at a distance of 25-30 steps from the shop of the

deceased. I had witnessed that appellant had been inflicting blows of axe at the deceased. He fell down. Appellant had inflicted a blow on his

head. I and deceased''s son ran towards the deceased. The appellant ran away. Police came there. We had taken the deceased to the hospital,

where the doctor declared that the deceased was died. I signed Ex.P3 safina notice and Ex.P4 panchnama of the dead body. On the

memorandum of the appellant, which is Ex.P12, an axe was seized vide Ex.P13. I signed both the documents. Appellant was arrested. Police

seized red earth from the spot vide seizure memo Ex.P16.

PW-6 S.S. Uikey deposed that a merg Ex.P17 was registered at the police station and thereafter, FIR was lodged, which is Ex.P18. I signed

both the documents.

PW-7 Dr. A.K. Pandey performed postmortem on the body of the deceased. He deposed that I noticed following injuries on the person of the

body of the deceased:

VERNACULAR MATTER OMITTED

The deceased died due to injury suffered by him. I had examined the axe and gave my opinion that the incised injury could be caused by the axe.

The FIR was registered promptly at 12 O''clock. Evidence of PW-1 Deepender Singh and PW-5 Sanjay Mishra is natural and reliable. From

the aforesaid evidence, this fact has been proved that due to the injury caused by the appellant, deceased was died. The appellant was having an

axe and same was seized from his possession, which is a deadly weapon. Hence, this fact has been proved that the appellant caused injuries to the

deceased, due to which the deceased was died.

Now the question is that whether the act of the appellant would fall under Section 304 Part I of the IPC or not? Learned counsel for the

appellant has vehemently argued that the act of the appellant would fall under Section 304 Part I of IPC because there was one incised injury on

the head of the deceased. Other injuries were abrasions and those injuries could not be caused by a sharp edged weapon. The evidence is that the

deceased was sitting at his shop. The appellant came there and he had inflicted blow of axe on the head of the deceased. The appellant was armed

with axe, which is a deadly weapon. There is no evidence that any altercation had taken place at the time of occurrence between the deceased and

the appellant. In our opinion, the appellant had come with an intention to kill the deceased because he was armed with a deadly weapon and he

had inflicted injury by axe.

Now, the next question is that whether there was intention and motive on the part of the appellant to kill the deceased? The deceased was

aged about 60 years at the time of incident. He was died on the spot. Doctor, who performed autopsy, deposed that the injury suffered by the

deceased on his head was sufficient to cause death. Due to the aforesaid injury, occipital bone was broken. There was a damage to brain

membrane and brain matter and there was blood clotting.

The Apex Court in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under in regard to sufficiency of injury :

The emphasis in Section 300 Thirdly 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.

The Apex Court has clearly held that when the sufficiency exists and death follows, causing of such injury is intended and causing of such

offence is murder. In the present case, the appellant used axe, a sharp edged weapon, he inflicted hard blow on the head of the deceased. In such

circumstances, in our opinion, the act of the appellant was murder. The judgments relied on by learned counsel for the appellant are distinguishable

on facts. Hence, the trial Court has rightly held the appellant guilty for commission of murder and awarded a proper sentence.

Consequently, we do not find any merit in this appeal. It is hereby dismissed.