Gubra @ Ram Singh vs State of M.P.

Appellant has filed this appeal against the judgment dated 21.08.2006 passed by Additional Sessions Judge, Khurai, District Sagar in Sessions

Trial No.184/2006 whereby the trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code

and awarded sentence of life imprisonment with fine of Rs.1000/-.

Prosecution case in brief is that in the night intervening 15th and 16th of February, 2006, the appellant had beaten his wife Kusum Bai due to

which she died. The dead body of Kusum Bai was recovered in the morning. Thereafter, a report of the incident was lodged. On the memorandum

of appellant weapon of offence i.e. axe was seized from his possession. Police conducted investigation and filed charge-sheet. The appellant

abjured his guilt during trial. However, the trial Court found the appellant guilt and awarded sentence as mentioned above.

Learned counsel appearing on behalf of the appellant has submitted that even if the evidence of prosecution is accepted in its entirety, the

offence committed by the appellant would fall under Section 304 Part-I of the I.P.C. in view of the evidence of medical expert. The appellant has

already undergone the jail sentence for the said offence awarded to him.

There are three eye witnesses of the incident. Ruppa (PW-1) deposed that ""at round 11 in the night, I was singing Bhajan at the residence of

Deshraj, the appellant has been beating his wife. We were 15-20 persons including Preetam, Gulab, Lakhan and Mahendra. We prevented the

appellant from being beaten his wife. Appellant had taken his wife to his house. In the morning, I noticed that the house of the appellant was

locked. I informed the Chaukidar. Thereafter, Chaukidar came and he had broken the lock of the house wherein the deceased was found. At that

time the appellant was not present.

Another eyewitness to the incident namely Preetam (PW-2) deposed that ""I was singing Bhajan at the house of my elder brother at round 11.00

in the night. I had seen that the appellant had been beating his wife by Danda. I request the appellant not to beat his wife. Thereafter, I came to

know that the wife of the appellant was dead.

Gulab (PW-6) is an other eyewitness to the incident. He deposed that ""the appellant had been beating his wife with the handle of axe. I

prevented the appellant not beat to his wife. Thereafter, the appellant had taken his wife to his house in the next morning. When the lock was

broken, I noticed that the dead body of the deceased was laying in the house. I lodged a report Ex. P/4 and signed the same. Police prepared the

spot map Ex.P/5 and I signed the same.

Kusum Bai (PW-3) deposed that I was sleeping at my house and I heard the cry and seen that the appellant has been beating his wife from the

blunt side of the axe. There were other persons who prevented the appellant from beating. Thereafter, the appellant had gone to his house along

with his wife.

Lakhan (PW-4) is the witness of seizure, he verified that before him the police had seized bangles and sabbal on the instructions of appellant

vide seizure memo P/2. Asharam, the Kotwar (PW-5) stated that at around 12 O''clock, the Villagers Gulab, Preetam and other persons came to

my house and told me that the appellant had beaten his wife. I went to the house of the appellant. Thereafter, in the next morning lock of the house

was opened, the dead body of the deceased was found. The appellant was not there.

Dr. Ajay Singh Parihar (PW-7) performed autopsy of the deceased. He deposed that on 16.02.2006, he was posted as Medical Officer at

Government Hospital, Bina and on the aforesaid day, he performed postmortem of the deceased. He specifically deposed that he did not notice

any injury on the person of the body of the deceased. However, after internal examination, spleen of deceased was ruptured and the deceased had

died due to rupture of here spleen.

Prashant Kumar Mishra (PW-8), the Investigating Officer, investigated the matter. He deposed that he prepared the spot map Ex.P/5 and

seized bangles and sabbal vide seizure memo Ex.P/2 and signed the same. On the memorandum of the appellant (Ex.P/7), an axe was seized from

his house vide seizure memo Exh.P/8. The appellant was arrested on the same date. The dead body was sent for medical examination.

S.L. Aaroliya (PW-9) was posted as Assistant Sub Inspector. He deposed that FIR was lodged which is Exh.P/4 and the same was lodged

on 16.02.2006 at around 9.55. In the FIR, it is mentioned that the appellant had beaten the deceased and in the next morning when the lock was

opened, dead body of the deceased was found.

The deceased was the wife of the appellant. PW-1, PW-2, PW-3 and PW-6 deposed that they had seen the appellant beating his wife.

Thereafter, the incident was narrated to the village Kotwar. PW-5 Dilip Kotwar verified the fact that Gulab, Preetam and other 5-6 villagers came

to his house in the night and they had informed him that the appellant had beaten his wife and on the next date, in the morning when he went to the

house of the appellant, it was locked from outside. Thereafter, the lock was broken and the dead body of the deceased was found at that time.

The appellant was not present in the house.

Dr. Ajay Singh Parihar (PW-7) who conducted the autopsy of the deceased opined that the spleen of the deceased was ruptured due to which

she died. From the aforesaid evidence, in our opinion, this fact has been proved that the appellant had killed his wife.

Now, the next question is what offence the appellant has committed. The Apex Court (2016) Vol. 3 SCC page 317 has held as under in

regard to intention and motive :-

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:-

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.

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.

The Apex Court has specifically held that the intention and knowledge to commit the offence are quite different. However, from the facts and

circumstances of the case, we are of the view that the appellant had no intention to commit the murder of his wife.

In the present case, Dr. Ajay Singh Parihar (PW-7) deposed that he did not notice any injury on the person of the body to the deceased. The

spleen of the deceased was ruptured due to which she died. It cannot be held that there was an intention of the appellant to cause murder of the

deceased. Hence, the offence committed by the appellant would fall under Section 304 Part-I of the I.P.C.

Consequently, the appeal filed by the appellant is partly allowed. His conviction under Section 302 IPC and the consequent sentences

awarded by the trial Court are hereby set aside. The appellant is convicted for commission of the offence punishable under Section 304 Part-I of

the IPC. He has already undergone the jail sentence of more than 11 years. Hence, the appellant is awarded the jail sentence as already

undergone.

The appellant is in jail. He be released forthwith if not required in any other case.