MADHVI SHAKYA vs STATE OF MADHYA PRADESH THR

Appellant has filed this appeal against the

judgment dated 12 t h May, 1995 passed in Sessions Trial No.139/93. The trial Court held the

appellant guilty for commission offence

punishable under Section 302 of IPC and

awarded sentence for life imprisonment

alongwith fine amount Rs.500/-.

Prosecution case in brief is that on 06.06.1993, at

around 10:30 in the morning, deceased-Munnalal

had been going to a river. When he reached in

front of the house of the appellant-Pappoo, the

appellant, who was standing beside his house,

had an air gun with him. He told the deceased

that he would not go to the river and, thereafter,

he fired a shot from the air gun and one pallet hit

at the neck of the deceased. He fell down.

Thereafter, his family members reached on the

spot. They had taken the deceased to police station, where deceased himself lodged a report.

Thereafter, he was sent to the hospital and after

a period of 13 days, he died. Police conducted

investigation and filed the charge-sheet. During

trial, the appellant abjured his guilt and pleaded innocent. The trial Court held the appellant guilty

for commission of offence punishable under

Section 302 of IPC and awarded sentence as

mentioned above in the judgment.

Learned counsel for the appellant has submitted

that there is no sufficient evidence to prove the

guilt of the appellant beyond reasonable doubt.

In alternate, he has submitted that the offence

committed by the appellant could be under

Section 304 Part II of IPC and sentence of the

appellant may be reduced to already undergone.

Contrary to this, learned Government Advocate

has submitted that the prosecution has

established the guilt of the appellant beyond

reasonable doubt. The trial Court has rightly

convicted the appellant and awarded a proper

sentence.

Prosecution examined total 16 witnesses to prove

the guilt of the appellant. D0efence has not

examined any witness.

PW-1 Jhiriya Bai is the mother of the deceased.

She deposed that her son was going to nullah to

wash clothes. He was in the job of washing

cloths. Sundar and Rajendra came to her and told

her that Pappoo had inflicted injury by air gun to

the deceased. Thereafter, she rushed to the place

of incident and asked the deceased that what had

happened. Then he told her that Pappoo had

inflicted gun shot injury at his neck. Thereafter,

she alongwith other family members had taken

the deceased to Lakhnadaun Police Station,

where deceased himself lodged the report and

signed the report. From the police station, the

deceased was sent to Seoni Hospital. Thereafter,

he was referred to Jabalpur Hospital. After 13

days, he was died. Same facts have been deposed

by PW-2 Bhoori Bai, who is the sister of the

deceased. PW-3 Jugru is the brother of the

deceased. He also deposed the same facts.

PW-9 Sundar is the eye witness. He deposed

that at around 10:30 in the morning, he alonwith Rajesh and the deceased, who was his uncle

(mama), were going to nullah to wash the cloths.

When he alongwith deceased and Rajesh were

passing in front of the house of the appellant, he

stopped the deceased and asked him where he

was going and then the appellant told the

deceased not to go to nullah and fired a shot

from his air gun, which had hit on the neck of the

deceased. Blood was coming from the neck of the

deceased. Thereafter, he told the fact to his

mausi, nani and mami. They came at the spot.

They had taken the deceased to police station,

where he lodged the report. Thereafter, he was

admitted in the hospital.

PW-10 Jagdish deposed that the brother of the

accused-appellant had taken his air gun and

there were two pallets alongwith the air gun.

After 4-6 days of giving the air gun, he came to

know that air gun was seized.

PW-5 Guddu Kumar Rajak deposed that before

him accused appellant had given a memorandum, which is Ex.P1 and he signed the same and at the

instance of the appellant, from a nullah, the air

gun was seized vide seizure memo Ex.P2 and he

signed the same. PW-4 Mahesh Kumar Rajak

also proved the fact of memorandum and seizure

memo. He also admitted that he had signed the

memorandum and the seizure memo.

P W - 1 2 Dr .A.K. Jainde posed that on

06.06.1993, he was posted at Community Health

Center, Lakhnadaun and he had examined the

deceased and noticed one punctured wound at

the neck near thyroid cartilage. He advised X-

Ray. The injury was caused by the pallet.

PW-15 Dr. D.K. Sakalya deposed that he was

posted Lecturer on 17.06.1993 at Medical

College, Jabalpur. On the aforesaid date, he

performed postmortem of the deceased and

noticed following injury.

"VERNACULAR MATTER OMITTED"

He also noticed one pallet in the injury and the

pallet was seized and sealed. In his cross-

examination, he deposed that normally due to

pallet injury caused by an air gun death cannot

occur. However, it is a rare case. Death had

taken place because of complications.

PW-13 L.N. Bhadoriya is the Investigating

Officer. He deposed that on 06.06.1993, he was

posted as Sub Inspector at Lakhnadaun Police

Station. Deceased Munnalal lodged the report

Ex.P13. Thereafter, he conducted investigation

and prepared spot map, which is Ex.P14 and

signed the same. Same was signed by the

witnesses also. On 06.06.1993, he recorded

statements of the witnesses namely Munnalal,

Sundarlal, and Rajendra. On 19.06.1993, he

recorded statements of other witnesses namely

Jhiriya Bai, Mahawati, Jugru, Para Bai, Jagdish Prasad, Rajesh and Bhuri Bai. Accused-appellant

was arrested on 06.06.1993. His memorandum is

Ex.P1 and he signed the same. On the basis of his

memorandum, an air gun was seized vide seizure

memo Ex.P2 and he as well as other witnesses

signed the same.

From the evidence of eye witness PW-9, this fact

has been proved that the appellant caused an

injury at the neck of the deceased by air gun. The

deceased himself lodged the report at the police

station immediately after happening of incident,

which is Ex.P13. This fact has been mentioned in

the FIR that the present appellant had caused

the injury by the air gun. PW-1 Jhiriya Bai, PW-2

Bhuri Bai and PW-3 Jugru also deposed that PW-9

Sundar told them immediately after the incident that the appellant had caused gun shot injury to

the deceased. Thereafter, they reached on the

spot and they had taken the deceased to the

police station. Thereafter, the deceased was

admitted in the hospital. On the memorandum of the appellant, a gun was seized. Witnesses of

seizure memo have verified the fact of seizure of

gun. Hence, this fact is very well established that

the appellant had caused injury at the neck of the

deceased by the air gun.

Now the question is "what offence could be made

out against the appellant?"

There is no evidence that the appellant had

intention to kill the deceased. As per the

evidence of PW-9 Sundar, when the deceased

alongwith two persons reached near the house of

the appellant, the appellant told the deceased not

to go to nullah and thereafter, he fired a shot by

the air gun. The doctor PW-15, who conducted

postmortem of the deceased, deposed that

normally death will not occur from the injury

caused by the air gun. A pallet was found in the

wound. The deceased died after 13 days from the

date of incident.

The Hon''ble Apex Court further in the case of Nankaunoo vs State of Uttar Pradesh, (2016)

3 SCC 317 has held as under in regard to

difference between intention and motive:

"11. 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:-

"12. 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 Hon''ble Apex Court in the aforesaid judgment

has quoted a judgment passed in the case of Virsa

Singh vs State of Punjab, AIR 1958 SC 465, in

which the Apex Court has held that the prosecution

has to prove the case, that the body injury is

present, that the injury is sufficient in the ordinary course of nature to cause death, that the accused

intended to inflict that particular injury that is to say

it was accidental or unintentional. In the present

case, prosecution has failed to prove the fact that

the injury is sufficient in the ordinary course of

nature to cause death. Contrary to this, the doctor,

who performed postmortem of the deceased,

deposed that due to pallet injury normally death may

not occur and it was a rare case. The deceased died

due to complications. There was no intention of the

appellant to kill the deceased. It was an accidental

case. Deceased died after 13 days of the incident.

The Apex Court in the case of Sivakumar vs State

By Inspector of Police, (2006) 1 SCC 714 has

held that where the injury is caused by an air gun,

the offence committed by the accused would be under Section 304 part II of IPC .

The Hon''ble Apex Court in the case of Willie

(William) Slaney vs State of M.P ., AIR 1956 SC

116 has held as under in regard to the fact that

whether the offence would fall under Section 304 Part II of IPC or 302 of IPC :

"Where the accused causing the death of another had no intention to kill, then the offence would be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death.

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There was a heated exchange of words. The accused slapped the deceased on the cheek. The accused lifted his fist. The accused snatched a hockey stick from his younger brother and gave one blow on his head with a hockey stick with the result that his skull was fractured. The deceased died in the hospital then days later. In the opinion of the doctor the injury was likely to cause death.

Held (i) that on the facts and circumstances of the case the offence fell under Section 304 Part II and not under Section 302 . Admittedly there was no premeditation and there was a sudden fight. The nature of the injury was such that the accused could not be attributed with the special knowledge required by Section 300, nor was the injury sufficient in the ordinary course of nature to cause death."

On the basis of principle of law laid down by the

Hon''ble Apex Court and the evidence on record as

discussed above, in our opinion, the appellant is guilty for commission of offence punishable under

Section 304 Part II of IPC. The appellant has

suffered actual jail sentence for more than four

years. Hence, appellant could be awarded a

sentence of already undergone for commission of

offence punishable under Section 304 part II of IPC .

Consequently, the appeal filed by the appellant is

partly allowed. His conviction for commission of

offence punishable under Section 302 of IPC and the

sentence awarded by the trial Court is hereby set

aside. The appellant is convicted for commission of

offence punishable under Section 304 part II of IPC .

His sentence is modified as already undergone. The

appellant is on bail. His bail bonds are discharged.