Kamlesh vs State of Madhya Pradesh

This criminal appeal under Section 374 (2) of the Cr.P.C . is directed against the judgment dated 12.1.2007 passed by the Sessions Judge, Mandla, District Mandla in Sessions Trial No. 47/2006, whereby accused/appellant Chhotelal was convicted of the offence punishable under Section 302 of the I.P.C. for committing murder of his wife Rampayari Bai and was sentenced to undergo life imprisonment and to pay a fine in the sum of Rs. 500/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of one month.

The prosecution case before the trial Court may be summarized as hereunder: Deceased Rampayari Bai was wife of accused Chhotelal. Prosecution witnesses Kaushalya (PW-2) and Ashish (PW-3) were minor children of the couple, who were in their early teens. Sumrati Bai (PW-5) has a field adjacent to that of accused Chhotelal. At about 11;00 a.m. on 2.2.2006, accused Chhotelal and deceased Rampayari Bai were in their field. Their minor children Kaushalya (PW-2) and Ashish (PW-3), who were 12 and 13 years old respectively, were also present. Sumrati Bai (PW-5) was working in her field along with Tijjo Bai @ Tidko Bai (PW-6) and Suhaga Bai (PW-7). At that time, accused Chhotelal started to beat his wife with wooden handle of a pickaxe. When Sumrati Bai tried to intercede on behalf of deceased Rampayari Bai, the accused Chhotelal told her off by claiming that Rampayari Bai was his wife; therefore, he was entitled to do anything to her and Sumrati Bai had no right to intervene in the matter. He chased Sumrati Bai away. The accused inflicted 11 wounds upon the deceased. As a result, she died on the spot. The accused dumped her body on the embankment between his field and that of Sumrati Bai and left. Thereafter, Ashish, son of the accused, reported the matter to Darniya Bai, who lodged the FIR in Police Station Mandla at about 6:30 p.m. the same day. During investigation, on the disclosure statement made by the accused under Section 27 of the Evidence Act, handle of the pickaxe was recovered from his possession. During serological examination conducted in Forensic Science Laboratory, Sagar, human blood was found on handle of the pickaxe.

The trial Court framed a charge under Section 302 of the I.P.C. against the accused. He abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., he stated that he was innocent and the prosecution witnesses had falsely implicated him for claiming Rs.20,000/- from the Panchayat.

The trial Court held that prosecution had succeeded in proving beyond reasonable doubt that deceased Rampayari Bai had died a homicidal death as a result of shock caused by multiple injuries over her body. Aforesaid injuries were caused by the accused with intent to cause her death; therefore, appellant was convicted and sentenced as herein above stated.

During the course of arguments, no serious challenge has been mounted on behalf of the appellant with regard to the finding that the appellant had caused death of accused Rampayari Bai by inflicting multiple blows with handle of a pickaxe. Learned counsel for the appellant has specifically invited attention of the Court to the cross- examination of Kaushalya (PW-2), the daughter of the couple, who had admitted therein that at the time of the incident, her mother had consumed alcohol and was in an inebriated state. Her father had taken meals to the field for her and was trying to cajole her to take the same. However, she refused; whereon, her father remonstrated with her that she consumes liquor and creates a scene Thereafter, he had struck a blow to her head with handle of the pickaxe. In view of aforesaid admission made by Kaushalya Bai (PW-2) in her cross-examination, it has been contended that no intention by the appellant to cause death of his wife was discernible in the facts and circumstances of the case. Even it is assumed for the sake of arguments that the injuries resulting in the death of the deceased had been inflicted by the appellant, at worst, only knowledge that his act may cause death, could be imputed to the appellant; therefore, his act would fall within the ambit of Section 304 (Part-II) of the I.P.C. and not Section 302 thereof. Consequently, it has been prayed that the conviction of the appellant be converted from the Section 302 of the I.P.C. to Section 304 (Part- II) thereof and the sentence of life imprisonment be reduced to the period undergone by the appellant in custody.

Learned Penal Lawyer for the respondent/State on the other hand has supported the impugned judgment on the ground that

appellant had intentionally caused such injuries to his wife as were sufficient in the ordinary course of nature to cause death.

On perusal of the record and due consideration of rival contentions, we are of the view that this criminal appeal against conviction must fail for the reasons hereinafter stated:

It may be noted at the outset that the case of the prosecution is based upon the solid foundation of as many as 5 eye witnesses. Though minor, two of them are children of the appellant. Third eye witness Sumrati Bai owns the field which is adjacent to that of the appellant. Remaining two witnesses Tijjo Bai (PW-6) and Suhaga Bai (PW-7) had gone to the field of Sumrati Bai as labourers. As such, their presence on the spot was quite natural. None of the aforesaid witnesses can be said to have any axe to grind against the appellant.

In aforesaid backdrop, when we examined the statements of eye witnesses, we find that all five of them have supported the prosecution case. Sum and substance of their testimony is that Kaushalya Bai (PW-2) and Ashish (PW-3) were present at their parent''s field along with deceased Rampayari Bai and appellant Chhotelal. Sumrati (PW-5), Tijjo Bai (PW-6) and Suhaga Bai (PW-7) were also present in the field of Sumrati Bai. At that time, the appellant assaulted the deceased with wooden handle of a pickaxe and caused numerous injuries to her on head, face, chest, stomach and thigh. Kaushalya Bai and Ashish tried to protect their mother but the appellant chased them away. Sumrati Bai (PW-5), Tijjo Bai (PW-6) and Suhaga Bai (PW-7) tried to intercede on behalf of the deceased but the appellant did not pay any heed to them. He threatened to beat Sumrati Bai. Unable to watch this merciless thrashing, Sumrati Bai and her companions went away.

During cross-examination and arguments before the trial Court, learned counsel for the appellant had tried to contrive discrepancy by contending that some of the witnesses have stated that the injuries were caused by the handle of a ''gaiti'' and some others

have stated that injuries was caused by the handle of a ''kudali''; however, it has rightly been held by the trial Court that there is no basic difference between the handle of ''gaiti'' on one hand and handle of a ''kudali'' on the other. The thickness of the handle depends upon the central hole of the iron piece of the implement. Thus, even if it is assumed for the sake of arguments that ''gaiti'' and ''kudali'' are different implements, there is no fundamental difference between their handles. The length of the handle in the instant case was 2 fit and 5 inches, the circumference of the grip was about 5 inches and circumference of the end which fixes in the metallic part of the pickaxe was 7 inches. Thus, whether it was handle of a gaiti or that of a kudali, it was a dangerous weapon because when used as a weapon of offence, it could cause death. Thus, aforesaid discrepancy has no significance.

The second contradiction which was sought to be highlighted by the learned defence counsel for the accused before trial Court was that Kaushalya Bai (PW-2) has stated in her examination-in-chief that her mother and her father had gone to their field together at about 7:00 a.m. on the date of the incident; however, in the cross-examination she had admitted that her mother had gone to the field alone at 7:00 a.m. Her father had gone elsewhere at about 8:00 a.m.. Thereafter, at 11:00 a.m. she had accompanied her father to the field with cooked meals. It is true that aforesaid contradiction exits in the statement of Kaushalya Bai; however, the core of the prosecution story is that it was the appellant, who had assaulted the deceased resulting in her death. Whether Chhotelal had accompanied the deceased to the field at 7:00 a.m. or had gone there later at 11:00 a.m. with his daughter, is immaterial. Moreover, Kaushalya Bai was a 12 years old rustic child. It is possible that due to her limited capacity to express herself in the language of the Court, she might have failed to clearly state during the examination-in-chief that her mother had preceded her father to the field; however, she clarified the situation in her cross-examination

upon detailed questioning. In these circumstances, aforesaid contradiction is also not material.

As such, there is no reason to disbelieve the testimony of 5 eye witnesses, who have all supported the prosecution case, as none of them springs from a tainted source. Thus, the trial Court was perfectly justified in placing reliance upon the aforesaid 5 eye witnesses and holding that it was appellant Chhotelal, who had inflicted 11 injuries that were found on the person of the deceased. It may also be noted that aforesaid finding has not been seriously challenged by the learned counsel for the appellant during the course of the arguments; therefore, there is no ground to interfere with aforesaid finding.

The main thrust of the argument of learned counsel for the appellant is that the deceased was the wife of the appellant. The appellant was provoked into assaulting her by her conduct as she had consumed alcohol in the morning and had refused to partake of the meals. As stated above, for aforesaid arguments, learned counsel for the appellant has invited attention of the Court to the admissions made by Kaushalya Bai (PW-2) in paragraph number 11 of her cross- examination. Ashish (PW-3) has also admitted in his cross- examination that in the morning of the incident her mother had consumed one bottle of liquor and was refusing to take meals. In these circumstances, it may safely be assumed that at the time of the incident, the deceased was under influence of alcohol and was refusing to take meals, in spite of persuasion by her husband. In such a situation, it would be natural for any husband to get annoyed; however, the moot question is whether every annoyance caused by a wife amounts to provocation to her husband giving him license to beat her mercilessly with a dangerous weapon? The answer to this question would be an emphatic and resounding no.

We may note that the appellant was wielding a dangerous weapon. He inflicted as many as 11 injuries upon different parts of the body of the deceased. At least 4 of those injuries were above neck

resulting in fracture in parietal region of the head. There were three other injuries in the chest and stomach region. As a result, the liver had been ruptured. The rupture admeasured 3 c.ms" x 2 c.ms.". Doctor S.P. Dubey (PW-9), who had conducted post-mortem examination upon the dead body, has opined that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death.

It is true that the fact that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death, has not been mentioned in the post-mortem examination report (Ex.P-12); however, the witness has explained that due to inadvertence, he failed to mention the same in the report. It may be noted in this regard that the opinion that particular injury or injuries were sufficient in the ordinary course of nature to cause death can be given later on the basis of description of the injuries recorded in the post-mortem examination report. In the case of Brij Bhukhan Vs. State of U.P. AIR 1957 SC 474 the supreme Court has gone so far as to observe that where medical evidence does not say that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it is open to the Court to look into the nature of injuries found on the body of the deceased and infer from them that assailant intended to cause death of the deceased.

In the instant case, the appellant had inflicted at least four injuries above the neck and two injuries on the stomach. As a result, a bone in the parietal region was broken and liver was ruptured. It may safely be inferred that at least these two injuries were sufficient in the ordinary course of nature to cause death notwithstanding the fact that such observation was not recorded in the post-mortem examination report. In the case of Virsa Singh Vs State of Punjab AIR 1958 SC 465 the Supreme Court has held as follows:

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 "thirdly" was quoted :

"If it is done with the intention of causing bodily injury to any person and the bodily injury to any person and the bodily injury intended to be inflicted is suffi- cient in the ordinary course of nature to cause death."

It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intend- ed to be inflicted is sufficient in the ordinary course of nature to cause death."

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the "thirdly" would be unnecessary because the act would fall under the first part of the section, namely -

"If the act by which the death is caused is done with the intention of causing death."

In our opinion, the two clauses are disjunctive and separate. The first is sub- jective to the offender :

"If it is done with the intention of causing bodily injury to any person. It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the ques- tion of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.

Once that is found, the enquiry shifts to the next clause :- "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."

The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the cir- cumstances justify an inference that a man''s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart by accident, then, though an injury to the heart is shown to be present, the inten- tion to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining -

"and the bodily injury intended to be inflicted"

is merely descriptive. All the means is that it is not enough to prove that the in- jury found to be present is sufficient to cause death in the ordinary course of na- ture; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference of deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflict- ed. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no

knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly";

First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds fur- ther and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction be- tween the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily in- jury actually found to be present is proved, the rest of the enquiry is purely objec- tive and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they in- flict injuries of that kind, they must face the consequences; and they can only es- cape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

In view of the authoritative pronouncement of the Supreme Court as reproduced above, there is no scope for doubt that where the intention of the appellant was to cause such bodily injury or injuries as is or are sufficient in the ordinary course of nature to cause death, the act would fall within the purview of ''thirdly'' of Section 300 of the I.P.C., defining murder, regardless of the fact as to whether or not he intended to cause death of the deceased.

In the case at hand, the deceased was wife of the appellant. It was his social and moral duty to protect her; however, he beat her mercilessly with handle of a pickaxe till she was dead. In the process

he caused as many as 11 injures at least two of which were sufficient in the ordinary courses of nature to cause death. The provocation for aforesaid conduct on the part of the appellant was that his wife had consumed alcohol and was refusing to take her lunch. The children of the couple have stated that their mother used to consume alcohol off and on. Thus, it cannot be said that consumption of alcohol by the wife was a grave shock to the appellant. Apparently, he was used to his wife consuming alcohol. In this background, there was absolutely no reason for him to get provoke to such an extent that he would lose all senses and would beat his wife to pulp. The appellant clearly acted in a cruel and unusual manner; therefore, his act would not fall under the purview of Exception No. 4 to Section 300 of the I.P.C.; therefore section 304 (part I) would not come into play.

Since, it is clear that the appellant had intentionally caused at least 2 injuries to the deceased, which were sufficient in ordinary course of nature to cause death, his act would not fall under Section 300 (thirdly) of the I.P.C . and not Section 304 (Part-II) of the I.P.C. thereof, either. We are also of the view that Section 304 (Part-II) cannot be used by the Courts as a built-in device to pardon the murderers after they have spent a certain number of years in jail. It is also not legally permissible in view of the principles categorically laid down by a five Judge bench of Supreme Court in the case of Virsa Singh (supra).

In aforesaid view of the matter, in our opinion, the trial Court committed no error in holding the appellant guilty under Section 302 of the I.P.C. There is no ground for interfering with the impugned judgment.

Consequently, this criminal appeal against conviction fails and conviction and sentence of the appellant is hereby affirmed.