Kodu Singh vs The State of Madhya Pradesh

Appeal is of the year 1995. Since no one is appeared on behalf of the appellant, Shri Abhishek Tiwari, Advocate, is appointed as amicus-curie

to assist the Court. With the assistance of Shri Abhishek Tiwari, Advocate appeal is heard finally.

Appellant has filed this appeal against the judgment dated 28/12/1994 passed in Sessions Trial No. 128/92. The trial court held appellant guilty

for commission of offence punishable under Sections 302 of IPC and awarded sentence for life.

Prosecution story in brief is that land of Khasra No. 119, 120 and 4 is registered as Government land. Accused persons were in possession on

some parts of the land. On the date of incident, accused persons have been digging soil from the land and they were making boundaries. Bisahu

objected about the aforesaid act. There was quarrel on the aforesaid act between the parties and accused persons had inflicted injuries to the

deceased and other persons. The allegation against the present appellant is that he had inflicted a blow by Sabari on the head of the deceased due

to which the deceased was died. Other persons have also received injuries. Defence witness was also examined before the trial court, she deposed

that present appellant Kodu also received injuries. The police conducted investigation and filed charge-sheet. Accused persons abjured their guilt

during trial and pleaded innocence. Total four persons were tried. Present appellant has been convicted by the trial court for commission of offence

punishable under Section 302 of IPC and awarded sentence of life.

Learned counsel for the appellant has submitted that the trial court has committed an error in convicting the appellant for commission of offence

punishable under Section 302 of IPC. If the evidence on record be accepted as it is then the alleged offence committed by the appellant would fall

under Section 304 Part I of IPC. The trial judge in paras 19 and 30 of the judgment recorded finding that the incident occurred all of a sudden and

there was no intention of the appellant to kill the deceased. After recording this finding the trial court has committed an error of law in convicting

the appellant for commission of offence under Section 302 of IPC, hence, conviction of the appellant is liable to be set-aside.

Contrary to this learned Government Advocate for the State has submitted that the appellant had given a blow by Sabri on the head of the

deceased due to which parietal bone of head of the deceased was fractured. He was died on the spot, hence, the trial court has rightly held

appellant guilty for commission of offence punishable under Section 302 of IPC.

There are eye witnesses PW/1, PW/2 PW/5 and PW/6.

PW/1 Hanumanta deposed that deceased was my cousin . I was at my home, father and mother of the deceased came and told me that

accused persons were inflicting injuries to the deceased. I went at the spot and I noticed that present appellant had inflicted a blow by Sabri on the

head of the deceased. Other persons had also caused injuries, it is not necessary to make discussion about other persons because other accused

persons have not filed appeal. Mole had inflicted a blow by lathi at my hand thereafter, they ran away from the spot deceased was died on the

spot. Quarrel had taken place in regard to land which is of government land and nala is there. I lodged report at the police station and I put thumb

impression. On the report police came and prepared spot map I affixed my thumb impression on the spot map. I was sent for medical examination.

In para 15 of cross-examination, he admitted the fact that accused persons also came to the police station to lodge report and report was also

lodged at the police station, thereafter they were arrested.

PW/2 Chetram deposed that the present appellant had inflicted a blow on the head of the deceased by Sabri. Other persons caused injuries to

the complainant party. He admitted the fact that both the party were digging the earth at the time of incident.

PW/3 Pooranlal, deposed that he did not see the incident. He denied the fact that he signed seizure memo Ex. P/4.

PW/4 Rajendra Prasad Mishra Patwari deposed that the land on which quarrel had taken place is a government land. Devkaran was in illegal

possession on the land and half portion of the land was in possession of Bisahu. There was a dispute between both the parties. The reason for

quarrel was possession on the land.

PW/5 Teedu, who is father of the deceased deposed that the present appellant had inflicted a blow of Sabri on the head and thereafter other

accused persons had inflicted injuries on other family members. I lodged report. He denied the fact that Devkaran and Kodu received injuries on

their head. He further denied the fact that he had caused injuries to appellant Kodu.

PW/6 Chhoti Bai, deposed that Kodu had inflicted injuries on her right hand.

PW/7 Ramnath deposed that police prepared spot map Ex. P/19 I signed the same. Chetram, Hanumanta and Chhotibai also received injuries.

He admitted his signature in seizure memo Ex. P/7 to P/14.

PW/8 Rambai who is mother of the deceased deposed that present appellant had inflicted a blow by Sabbal on the head of the deceased. In

para 15 of her cross-examination she admitted the fact that present appellant also lodged report at police station Shahdol.

PW/9 Dr. D.K. Singh, who performed postmortem of the deceased deposed that I noticed following injuries on the person of the body of the

deceased.

Lacerated wound upon right parietal region of head 4cmx3cm deep upto bone.

Both parietal bone of the head were broken.

Membrane of the brain was also ruptured.

There was blood clotting in the brain.

He further deposed that the injuries were antemortem in nature and the deceased was died due to the aforesaid injuries.

Investigating officer has not been examined in the case. From the evidence of injured eye witnesses as discussed above in the judgment this fact

has been proved that the present appellant had caused injuries on the head of the deceased by Sabri. This fact has also been proved from the

evidence of witnesses that both the parties were in possession on some portion of government land. They were digging earth and when boundary

was made, there was an objection and in that event there was a quarrel between the parties. The trial court has also recorded findings in paras 19

and 30 of the judgment that all of a sudden quarrel had taken place and in that quarrel, present appellant had inflicted a blow on the head of the

deceased. PW/1 in para 15 and PW/8 in para 15 of their cross examination admitted the fact that the present appellant also lodged report at the

police station

The Apex Court in the case of Nankaunoo Vs. State of Uttar Pradesh (2006) 3 SCC 317 has held as under in regard to difference between

motive and intention.

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)

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 in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 has further held as under that

whether the offence is murder or it would fall under exception 4 of Section 300 of IPC.

The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed

earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of

words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred

due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.

To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs.

Union Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii)

the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause

of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused

during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated

and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a

cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries,

one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly..............

Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of

the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been

explained as under:-

.......""18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without

the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person

killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring

in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that

there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the

verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not

possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a

quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not

sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not

taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair

advantage''.

The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the

sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden

fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken

undue advantage"" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The

incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.

In the present case the incident had occurred all of a sudden and in the heat of passion. There is no allegation that the appellant had caused any

other injury on the person of the deceased. Hence, in our opinion, there was no motive of the appellant to cause death of the deceased.

Consequently the offence committed by the appellant would fall under Section 304 part I of the IPC. Sentence of the appellant was suspended

vide order dated 11/02/2000, the appellant was in jail since 1992. He has completed more than 10 years of sentence including remission, hence in

our opinion, it would be just and proper to award the sentence to the appellant as already undergone.

Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court is hereby set-aside.

The appellant is convicted for commission of offence punishable under Section 304 Part I of IPC and he is awarded sentence as already

undergone. He is on bail his bail bonds are hereby discharged.