Kemta vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s Section 374 of the Code of Criminal Procedure 1973 has been preferred by accused/appellant against his impugned conviction and sentence recorded in Sessions Trial No. 381/1998 vide judgment dated 30/7/99 by the Second Additional Sessions Judge Guna convicting the accused/appellant for commission of murder of Dhan Singh, which is an offence punishable u/s 302 of I.P.C. and sentencing him to suffer imprisonment for life with a fine of Rs. 2500/-, in default of payment of which to serve four months'' additional rigorous imprisonment. Briefly narrated the prosecution case is that on 18th October 1998 at about 4 p.m., in front of the house of complainant Ram Singh, a quarrel took place between accused appellant Kemta and deceased Dhan Singh, who happened to be father-in-law of the complainant. So, complainant''s mother-in-law Bhagdibai and his wife came out of the house and tried to pacify the matter but accused being enraged assaulted at Dhan Singh with a knife, resultantly he died on the spot, due to injury received on his neck. FIR (Ex.D/1) and Marg Report (Ex.P/4) was written on an oral report of the complainant Ram Singh. Marg report was inquired into and on FIR, the investigation was set in motion. Postmortem was conducted on the body of Dhan Singh. Case diary statements of the witnesses were recorded. Accused was arrested and on his information the knife weapon of crime was seized. The seized knife and other articles were sent for chemical examination to the State Forensic Science Laboratory, Gwalior. Report of Chemical Examiner was received. After inquiry and investigation, the charge-sheet was filed against the present accused. On committal to the court of sessions, trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence u/s 302 of I.P.C., hence this appeal.

It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the learned trial Judge is against the peculiar facts, evidence of the case and the law, hence, same is liable to be set aside. It is submitted that there is a material difference and contradiction in between the court statements of the cited eye-witnesses. Apparently there was a grave land dispute between deceased, his son-in-law on one side and accused on other side. Therefore, there was more possibility of falsely implication of the accused in commission of the crime. All eye-witnesses are the family members and had inimical relations, therefore, the eye-witnesses'' account as per learned counsel is not reliable. On the basis of the above arguments, it is prayed that by allowing the appeal, the accused be acquitted of the charge.

The learned Panel Lawyer appearing for the respondent/State, on the other hand, supported the impugned judgment and contended that there is no illegality or perversity in the findings arrived at by the learned trial court. Hence, it is prayed that the appeal be dismissed.

Heard the learned counsel for the parties and also perused the impugned judgment and the evidence on record.

The question to be considered is whether the accused-appellant has done an act by doing which he has caused the death of the deceased ?

To prove the guilt against the accused, the prosecution examined complainant Ram Singh (PW-1), son-in-law of the deceased Dhan Singh, Bhagdibai (PW-2) wife of deceased, Reshambai (PW-3) wife of complainant, Khetya (PW-4), Kishan (PW-5), Kunwar Singh (PW-6), Bheeku (PW-7), Maheshchandra (PW-9), Investigating Officer and Dr. P.K. Gupta (PW-10), who conducted postmortem on the body of Dhan Singh.

Ram Singh (PW-1), son-in-law of the deceased Dhan Singh deposed that near-about 5-6 months ago, in noon, he returned back to his home from agricultural field and was taking meal. He heard the voice of quarrel, so he came out of his residence and saw that his father-in-law Dhan Singh and uncle-in-law accused Kemta both were quarelling with each other. Then accused Kemta inflicted a knife know and caused injury on the neck of his father-in-law Dhan Singh, who died on the spot. At that time, Kishan, Bhikhu, Kunwar Singh and other neighbours reached the spot. He went to police station and lodged FIR. Police reached the spot and issued the marg notices, thereafter prepared spot map and seizure memo of the articles from the spot. The memo of dead body was prepared and thereafter dead-body was sent for postmortem. In cross examination, he deposed that the accused had possession over the government land in village and he used to cultivate the said land. The complainant also sowed the maizes on the land belonging to the accused. Bhangdibai (PW-2) in her deposition well supported the statement of Ram Singh (PW-1), the complainant that accused Kemta after quarrel with her husband, inflicted a knife blow and caused injury on his neck/clavicle region. Resham Bai (PW-3) daughter of deceased and wife of complainant Ram Singh (PW-1) supported the version of complainant Ram Singh, however, in cross examination she specifically stated that when she came out of the residence, she saw that Dhan Singh after being injured was lying on the earth and flying away accused Kemta from the spot. She admitted the suggestion of defence that her husband Ram Singh came thereafter. She also stated that her mother informed that accused Kemta inflicted injury to her father. Other witnesses Khetya (PW-4), Kishan (PW-5), Kunwar Singh (PW-6) and Bheekhu (PW-7) deposed that they reached on the spot after incident and complainant Ram Singh and others informed them that accused Kemta killed Dhan Singh.

Dr. P.K. Gupta (PW-10) deposed that on 19th October 1998 in the District Hospital Guna he and Dr. P.K. Pathak, Medical Officer both conducted autopsy on the body of Dhan Singh, resident of Ganesh Kheda, which was brought by Constable No. 625, namely, Deewan Singh of Police Station Sirsee. He during examination found:-

Penetrating injury on left supraclavicular region 5 cm x 2 cm., near upper border of clavicle going downwards, oblique into thoracic inlet. No other injury seen. On opening body, one incised wound on left apex of left lung with 3 cm. x 2 cm. with collapse of upper lobe. Pleura adherent to parietal wall and lung shows promoting appearance.

He opined that cause of death was injury to vital organ leading to shock and death. Mode of death is cardio-respiratory failure. Time since death was within 24 hours. Postmortem report Ex.P/15 written and signed by both the doctors.

Maheshchandra (PW-9) Sub Inspector of Police Station Sirsee conducted the investigation in this case. He lodged FIR thereafter forwarded the copy of the same to concerning Magistrate having jurisdiction. On the spot he prepared the spot map, seizure memo and memo of dead body. Then he sent the dead body for postmortem. The case diary statements of all material witness were then recorded. On 3rd October 1998, he arrested accused Kemta and in custody on his information regarding discovery of weapon of crime, he prepared the memorandum and recovered knife from the accused. He sent weapon of crime ''knife'' and other articles seized through S.P. Guna to State Forensic Science Laboratory for chemical examination and received the report from Assistant Chemical Examiner. The said report Ex.P/14 confirms the presence of blood on the knife (weapon of crime).

On coming to the factual aspect of the present case, the statements of complainant Ram Singh (PW-1) and Bhagdibai (PW-2) wife of deceased Dhan Singh are found well supported by the medical evidence as well as evidence of other independent witnesses though they had not seen the incident but reached immediately on the spot. The weapon was recovered from the possession of accused from public place but in a hidden state, so this in itself is reliable evidence against him. The motive of the incident as delineated by prosecution was that the complainant Ram Singh and his father-in-law i.e., deceased Dhan Singh were cultivating illegally over the land possessed by the accused. Thus, the prosecution successfully brought home the guilt of accused.

Now, we have to consider whether the act of accused/appellant comes within the purview of culpable homicide not amounting to murder because as per his learned counsel the accused/appellant had caused the death of the deceased in a sudden and heat of passion and therefore, the case would fall within the ambit of exception IV to Section 300 of I.P.C. and the appellant shall be liable for the offence u/s 304 Part-I of I.P.C.

Although we are aware of the ingredients of Section 300 defining culpable homicide amounting to murder, it would be worthwhile to recollect the exception therein specially Exception 4 to Section 300 of I.P.C. which lays down when culpable homicide does not amount to murder and may be quoted for facility of reference:

Exception 4 to Section 300-"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner

In Smruti Pahariya Vs. Sanjay Pahariya, , Hon. Apex court held:-

To answer the question as to whether the offence, on the facts of the case, is "murder" or "culpable homicide not amounting to murder", we must see whether the case is squarely covered within Clause Thirdly of Section 300, IPC or the accused is entitled to the benefit of Exception 4 of Section 300, IPC.

It would be preposterous to assume any proposition in law that in a case of solitary blow on a vital part of the body that results the death, the offence must necessarily be reduced to culpable homicide not amounting to murder. Legal position has been most appropriately summed up, which has now become a classic statement with regard to exposition of Section 300 "Thirdly", by Vivian Bose, J., in Virsa Singh Vs. The State of Punjab, Vivian Bose, J., analysed Section 300 "Thirdly" by laying down that the prosecution must prove the following facts before it can bring a case u/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 further 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." Learned Judge further went on to observe

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder u/s 300 "thirdly". 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 between 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 injury actually found to be present is proved, the rest of the enquiry is purely objective 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. 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 inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

The tests laid down by this Court in Virsa Singh have been consistently followed by the Courts as providing the guidelines when an issue regarding the nature of offence whether murder or culpable homicide not amounting to murder is raised before the Court.

The determinative factor in Section 300 ''Thirdly'' is the intentional injury which must be sufficient to cause death in the ordinary way of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender''s subjective knowledge of the consequences is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death, the diverse factors need to be kept in mind such as: the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attendant upon the death. Jagrup Singh Vs. State of Haryana, ; and Ramashraya and Another Vs. State of Madhya Pradesh, .

For the invocation of Exception 4 to Section 300, IPC, it has to be probabilised by the defence that the death is occurred: (i) in a sudden fight;(2) without pre-meditation; (3) the act was committed in a heat of passion; and (4) the offender had not taken any undue advantage or acted in a cruel manner. The existence of all the four requisites must be probabilised. In absence of existence of any of the four requisites, Exception 4 has no application. By means of judicial decisions, the expression "sudden fight" occurring in Exception 4 of Section 300, though not defined, has been explained. "Sudden fight" implies mutual provocation; a bilateral transaction in which blows are exchange-the fight is not per se palliating circumstance, only an unpremeditated fight is such. The expression "heat of passion" has been explained by the Courts to mean that there is no time for passion to cool down. The act must have been committed in a fit of anger. Unfortunately, in the present case none of the four requisites of Exception 4 exists much less all the four requisites. The instant case is not a case of sudden fight nor the act can be said to have been committed in a heat of passion. As a matter of fact, the appellant had a pre-existing malice against the deceased. The appellant is not at all entitled to the benefit of Exception 4.

As discussed on the evidence, during quarrel the accused being enraged inflicted a blow and caused injury on the vital organ resulting death of Dhan Singh on the spot, but there is nothing on record to show that the appellant again assaulted the deceased taking undue advantage of the circumstance in a cruel or unusual manner. The occurrence took place without premeditation in a heat of passion upon a sudden quarrel. It seems that the appellant with the intention of causing such bodily injury as likely to cause death, inflicted a blow aiming at the neck of the deceased which hit the target. So in our considered view the appellant shall be liable for the offence u/s 304 Part-1 and not u/s 302 of I.P.C. It would meet the ends of justice if he is sentenced to undergo rigorous imprisonment for ten years.

In the result, the judgment of conviction of appellant u/s 302 of I.P.C. and sentence of imprisonment for life in Sessions Trial No. 381/98 of the Court of Second Additional Sessions Judge, Guna is modified to conviction u/s 304 Part-I of I.P.C. and appellant is sentenced to undergo rigorous imprisonment for ten years. It is stated at the Bar that the appellant has already served that sentence. If that be so, the appellant be set at liberty forthwith, if his detention is not required in jail in connection with any other case. Accordingly the criminal appeal is allowed in part.