Gopal vs State of M.P.

Uma Nath Singh, J.

This appeal impugns the judgment and findings recorded by the learned Additional Sessions Judge Burhanpur (Khandwa) in Sessions Trial No 15/90 dated 7.9.1990 whereby the accused was convicted u/s 302 IPC and sentenced to life imprisonment.

Succinctly narrated the facts of the prosecution case are that on 28.12.89 at about 7 P.M. in the evening, accused caused death of deceased, his father, by giving him repeated stick blows. He struck one blow from back side and another from the front which landed near his nose when he had fallen down on the ground. The appellant was said to be aggrieved by the deceased who had declined to give him money for going to market in the morning of that day. Seeing his father being assaulted, complainant Narayan (PW 1) forbade the accused, his brother, to do so who in the fits-of anger also dealt him a stick blow on his head which landed on his turban and he escaped injuries. PW 1 cried for help which attracted Kumarsingh (PW 3) who rushed to the place of occurrence and saw the appellant causing blows to deceased Makanya. On arrival of Kumarsingh (PW 3), the appellant left the spot and dropped the blood stained stick there itself. Though his condition had deteriorated, nevertheless, the deceased talked to PW 3 about the incident and while being carried away from the scene of occurrence, he breathed his last. The report of the incident (Ex/P1) was lodged on 29.12.89 at about 7-8 A.M. by eye-witness PW 1 himself at Police Station Nimbola, situated at a distance about 28 K.M. from Jalandhra village, place of occurrence. On the said report, Shri S.L. Rajoria (PW 17) the Investigating Officer reached the spot and prepared the spot map (Ex. P/2) as described about, by PW 1 and other witnesses. He also prepared the inquest and seized the stick, Article A-l. The stick on examination by the doctor was found to have been used in the offence. Vide Ex. P/15, even in the requisition for postmortem of the dead body, the appellant was said to be the assailant. Vide, Ex.P/16, the postmortem report, Dr. B.M. Malviya, Assistant Surgeon (PW 18) found : (i) a lacerated wound of the size 5 x 1.5 x 0.5 cm over occipital region of scalp extending to left parietal region; and (ii) a lacerated wound 3 x 1 x l/2 cm. over forehead in mid line.

On internal examination PW/18 found injuries as under :

Extensive haematoma 7x4 and 5x3 cm. Under the injury No. 1 and 2.

Depression of occipital and parietal bone, 5 x 1. 5 cm.

Fracture of frontal bone under injury No. 2.

Extradural haemotoma beneath injury No. 1, size 7 x 5 cm. and beneath injury No. 2 size 6 x 4 cm.

Extensive laceration of left parietal lobe of brain beneath injury No. 1.

As per opinion of the doctor, the cause of death was coma and shock due to brain injury.

After investigation a challan was laid and a charge u/s 302, drawn up. The trial Court mainly relying on the evidence of eye-witnesses PW 1 and PW 3 believed in the prosecution case. That apart, Article A-l, the stick, the medical report and the FIR were found to lend substantial corroboration to the prosecution case.

Heard Shri Prabhakar Singh, with Shri Kamlakar Mishra, learned counsel for a appellant and Shri R.K. Verma, learned P.L. for the State and perused the case record. Looking into a profile of his submissions the main thrust of the arguments of Shri Singh appears to be addressed to the nature of offence. Elliptically noting, interalia, Shri Singh contended : that the appellant had no intention to cause death of the deceased; that stick blows were given out of frustration and emotional out-bursts as the appellant had not even taken food in the morning after the deceased had refused to give him money for going to market; that the weapon of offence, only being a stick, was not such that the accused could be imputed intention to commit murder and that the motive alleged by the prosecution was not so strong as to obsess the appellant to have struck fatal blows on the deceased. The counsel has placed reliance on two judgments of the Apex Court as also one of this Court, namely : (1) State of U.P. Vs. Indrajeet @ Sukhatha, ; (2) Camilo Vaz Vs. State of Goa, ; and (3) Hakim Singh Vs. State of M.P. ( 1994 MPLJ 307). He pleaded that as the appellant is in jail for nearly 12 years, he may be released on the sentence already undergone as the evidence on record does not countenance the conclusion of trial Court that it constitutes offence u/s 302 IPC.

On the other hand Shri R.K. Verma'' appearing for the State strongly countered the contentions of Shri Singh and defended the impugned judgment on the ground that in the facts and circumstances of the case and particularly, looking to the nature of the injury, there could be one and only one conclusion that it is a case of murder and nothing else.

On a re appreciation of evidence on record as also the rival submissions, we are of the considered view that the submissions of the counsel for the appellant on the nature of offence merit consideration. Narayan (PW 1), is an eye-witness of the incident. He stated that the accused dealt a lathi blow on the head of the deceased from back side. He further stated that when the deceased feel down, the accused dealt another lathi blow hitting him near his nose. He testified that on forbidding the accused, he was also struck a lathi blow on head but he escaped the injury as the blow landed on the turban of his head. According to him in the morning, just after sun-rise, the appellant had demanded money from the deceased, which had been declined for some reason, and thereafter, the appellant had been roaming about and had not eaten anything in the morning and, perhaps, he had taken food only during the noon time. Though he stated that the time when the incident had occurred was evening and it was dark all around, nevertheless, he asserted that he had seen the appellant dealing stick blows on his deceased father. He categorically gave a crucially important answer enumerating that the appellant had caused two stick blows to the deceased. He made it quite distinct that the stick (Article A-1) wherewith the blows had been caused was stained with blood. This witness has denied any motive for falsely implicating the appellant. According to Kumarsing (PW 3), on hearing a cry for help, he rushed to the scene of occurrence and saw that accused Gopal was causing stick blows on the deceased. Narayan (PW 1) and the accused, both were present on the spot. Narayan was sitting near the deceased and accused Gopal was standing there. Further, according to him, the deceased talked to him in injured condition and described the cause, the nature of weapon and the manner of assault by the appellant. Further, according to him, on his arrival, the appellant left the scene of occurrence dropping the stick there itself He stated that the condition of the deceased had started deteriorating and he was breathing slowly. He described about the presence of injuries over nose and head. He further described that when he reached the spot of incident it was dark. He denied a defence suggestion that deceased Makanya did not talk to him. He asserted that he had identified the accused even in darkness. He denied the defence suggestion that on the spot of incident he had not seen the accused, nor had the deceased talked to him before death. He also denied that he was giving a statement as tutored by the Police. Other witnesses, namely, Jalu (PW 2), Akbar Khan (PW 3), Bheekla (PW 5) and Dhakhal Singh (PW 6) also corroborated the statement of Narayan (PW 1) and stated that accused assaulted the deceased with stick. Dakhlibai @ Dhakhnibai (PW 12), wife of accused Gopal also corroborated that her husband, the accused, had asked for money from the deceased, her father-in-law, to purchase clothes which had been declined and on the contrary the deceased had asked him to get money from his employer for making clothes. She also stated that on that account the accused had beaten the deceased resulting in his death. Thus, from the evidence as above, it appears that the accused alone was the author of the injuries of the deceased. Though, there is ample discernible evidence to prove the actus reus but the amount of mens rea required u/s 302 IPC does not seem likely. Moreover, looking to the totality of the circumstances, namely, number of blows, background of the incident, and the relation of the accused with the deceased, it is difficult to conclude that the accused had intention to kill his father.

Under the circumstances, the offence in question appears to be less than murder and at the most, it amounts to culpable homicide not amounting to murder u/s 304-11 IPC. As far as the judgments under reference (supra) are concerned, in the matter of State of U.P. Vs. Indrajeet @ Sukhatha, , the Apex Court took into consideration that the weapon used for the offence was not a deadly weapon and that out of two injuries noticed on the body of the victim, only one was found to be a serious one, which was sufficient to cause death in the ordinary course of nature. Moreover and importantly, in such a case, the Apex Court has noted absence of intention to cause death and the offence has been found to be covered only u/s 304-11 IPC. In the instant case also, the accused had inflicted only two injuries with ''Kharara'' a type of stick. In another case namely, Camilo Vaz Vs. State of Goa, , the accused came armed with dandas, bottles and cycle chains. There was no enmity between the accused and the complainant. The accused hit the deceased on the head, a vital part of the body, with such a force with danda that the deceased fell unconscious and later succumbed to his injury. The Apex Court held that there was no intention to kill the deceased. At the most it was found to be a case where the accused could be attributed with knowledge that by such act they were likely to cause death. It was also held that when a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, only knowledge has to be attributed and in such a situation the offence falls in Part-II of Section 304 IPC. In the instant case, as noted hereinabove, the accused being son of the deceased had no prior ill will. He used a type of stick and inflicted only two blows leading to the death of the deceased after sometime.

In the judgment of this Court in the matter of Hakim Singh Vs. State of Madhya Pradesh, , it was held that in a case where the incident took place on a spur of moment and without pre-meditation. the accused was held guilty u/s 304-11 IPC for committing patricide and was sentenced to an imprisonment already undergone and a fine of Rs. 30,000.00.

In the premises discussed hereinabove, we hold that the impugned judgment of conviction and sentence is not sustainable in law as well as on facts and the same is set aside. Instead, the accused is held guilty of offence u/s 304-11 IPC and sentenced to a period of ten years R.I. As the accused is stated to be in jail for the last 12 years serving out the sentence, he is directed to be released forthwith, if not wanted in connection with any other case.

Accordingly, the Criminal Appeal succeeds in pan.