Mahavir Patel vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 23. 07.2008 passed in Special Sessions Trial No.42/2007. The appellant was prosecuted

for commission of offence punishable under Sections 294, 302 and 324 (two counts) of Indian Penal Code, 1860 and Sections 3(1)(x) and 3(2)(v) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The trial Court held the appellant guilty for commission of offence

punishable under Sections 302, 324 and 323 of Indian Penal Code and awarded sentence of life imprisonment, RI for one year and RI for six months

respectively alongwith fine of Rs.2000/-.

Prosecution story in brief is that a lady with loose character was living with Mohan at his tapariya (hut). There was a quarrel between them, hence,

she left Mohan and started living with Mahavir (present appellant). On the date of incident, there was a quarrel between the appellant and deceased's

family. The appellant called the complainant Mayabai and her husband (deceased) and told them not to create obstructions. Thereafter, he abused

them. The appellant tried to inflict a blow by knife at the deceased. His wife Mayabai (complainant) catch hold the appellant and she received injury

on her left palm. The appellant had inflicted a blow at the thigh of the deceased, due to which, deceased fell down. It is further alleged that the

appellant had also inflicted a blow at a rickshaw puller-Rakesh. Police registered an offence. Deceased was sent to Victoria Hospital. He was died on

the same date. The appellant was arrested. From his possession, a knife and other articles were seized. Police conducted investigation and filed

charge-sheet against the appellant. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant guilty for

commission of offence punishable under Sections 302, 324 and 323 of IPC and awarded sentence as mentioned above in the judgment.

Learned Amicus Curiae, after arguing on merits, has made alternate submission that the offence alleged to be committed by the appellant would fall

under Section 304 Part I of IPC because as per the evidence of doctor, who performed postmortem of the deceased, there was one injury on the thigh

of the deceased. It is further submitted by learned counsel that the incident had occurred all of sudden without premeditation. In support of his

contentions, learned counsel relied on the following judgments of Hon'ble Apex Court:

A. Ranjit Sarkar vs State of Tripura, reported in (2016) 15 SCC 756.

B. Surain Singh vs State of Punjab, reported in (2017) 5 SCC 796.

C. Nankaunoo vs State of Uttar Pradesh reported in (2016) 3 SCC 317.

Learned Government Advocate has submitted that the appellant intentionally murdered the deceased. He had also caused injury to his wife and

another person, who tried to save the deceased. The deceased was died on the spot. Hence, the trial Court has rightly convicted the appellant for

commission of offence of murder and awarded proper sentence. In support of his contentions, learned counsel relied on the following judgments of

Hon'ble Apex Court:

A. Babubhai Ranchodbhai Patel vs State of Gujarat, reported in (1994) 1 SCC 410.

B. Badru Ram and others vs State of Rajasthan, reported in (2015) 11 SCC 476.

PW-1 Mayabai Rathore is the wife of the deceased. She is an injured eye witness. She deposed that I was at my house. I was cleaning utensils.

My husband (deceased) had gone in a rickshaw to fetch water from a Government tap, which is at some distance of my house. When I was cleaning

utensils, I heard sound of arguments between Rakesh and the appellant. Wife of Rakesh called us and requested to save her husband. At that time,

my husband came out from the house. The appellant tried to inflict a blow of knife on my stomach. I catch hold the knife of the appellant. My husband

told the appellant that why he had beaten me and in that event, the appellant inflicted a blow by spade on the head of the deceased. He had also

inflicted a blow by knife on the thigh of the deceased and other 6-7 blows. I went to Cantt. Police Station and lodged the report, which is Ex.P1. The

deceased was sent to Victoria Hospital. He was died. Police prepared spot map, which is Ex.P2 and I signed the same. The statement that the

appellant had given other 6-7 blows on the thigh of the deceased is an omission in 161 statement of the witness.

Another eye witness PW-2 Kallo Bai deposed that I was cleaning utensils at my house. My husband returned home after pulling rickshaw. The

appellant was abusing my husband. I called the deceased and his wife. Both of them reached there. They tried to pacify the quarrel. Thereafter,

appellant had inflicted a blow at

the thigh of the deceased by knife and also on the back of the deceased by lathi. Other persons also reached on the spot.

PW-3 Rakesh Choudhary is the husband of PW-2. He is also an injured eye witness. He deposed that the deceased was living in our mohalla. His

brother-in-law (Mohan) was also living in the same mohalla. A lady with loose character was living in the house of Mohan. There was quarrel

between Mohan and that lady, hence, she left the house of Mohan and started living with the appellant. When deceased came back after fetching

water, appellant was abusing me and Kamal. My wife and Kamal cried. Mayabai also came there. He objected the appellant. Thereafter, the

appellant had inflicted a blow at the deceased, which was stopped by Mayabai. She received injury on her palm. The appellant also inflicted injury on

my left rib by knife. Thereafter, he had inflicted a blow of knife at the deceased. Report of the incident was lodged. Police seized a knife from the

appellant.

PW-4 Omprakash and PW-5 Mohan turned hostile. PW-7 Smt. Savitri Bai is the mother of the deceased. She was declared hostile.

PW-13 Dr. Arun Jain performed postmortem of the deceased. He deposed that I noticed one stab injury on the person of the deceased measuring

1â€x1/2â€x5†on left inguinal region (upper part of thigh). Due to the aforesaid injury, femoral bone and veins were cut. The deceased was died due

to excessive bleeding of cutting of ischial artery and vein. He further deposed that except this injury, he did not notice any other injury.

PW-8 Dr. S.K. Pande examined wife of the deceased namely Mayabai. He deposed that I noticed one incised injury measuring 1â€x1/4†near

the thumb of left palm of the injured. The prosecution did not produce the doctor who examined another injured witness (PW-3).

PW-11 D.K. Dixit is the Investigating Officer. He deposed that I conducted investigation and prepared spot map Ex.P2. I seized plain earth and

red earth vide seizure memo Ex.P4. Cloths of the deceased were also seized vide seizure memo Ex.P3. Statements of the witnesses were recorded.

The appellant was arrested on 07.05.2007. On his memorandum Ex.P5, one full pant and one T-shirt were seized and there were signs of blood on the

cloths. One knife was also seized vide seizure memo Ex.P6. He admitted his signatures on the aforesaid documents.

Evidence of PW-1, PW-2 and PW-3 is reliable because their presence on the spot is natural. PW-1 and PW-3 are injured eye witnesses. The

doctor, who performed MLC of PW-3, was not produced before the Court by the prosecution. However, MLC of PW-3 is on record. The doctor

(PW-13), who performed postmortem of the deceased, deposed that deceased was died due to the stab injury. FIR was lodged promptly. The name of

the appellant was mentioned in the FIR. From the possession of the appellant, knife and cloths were also seized. In view of aforesaid evidence, in our

opinion, the trial Court has rightly held that the appellant had killed the deceased.

Now, the question is this, what offence the appellant has committed? As per the evidence of PW-1, who is the wife of the deceased, there were

arguments between Rakesh and the appellant. The deceased came subsequently at the spot. Rakesh also deposed that initially deceased abused him,

thereafter, he inflicted blow. There were minor injuries on PW-1 and PW-3. There was only one stab wound on the upper side of the thigh of the

deceased.

The Hon'ble Apex Court in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under in regard to knowledge and

intention and exception 3 of Section 300 of IPC:

“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.â€​

The Hon'ble Supreme Court has specifically held that 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 Hon'ble Apex Court further in the case of Surain Singh vs State of Punjab, (2017) 5 SCC 796 has again considered exception of Section 300

of IPC and held as under :

Now, we have to consider the facts of this case on the touchstone of Section 300 Exception 4 in order to find out whether the case falls under the

same or not. During the course of hearing, learned counsel for the appellant-accused strenuously contended before this Court that the High Court

recorded a categorical finding that “an inescapable conclusion that can be drawn is that it was a case of sudden fight where the attack was without

pre-meditation.†He further contended that despite holding so, the High Court erroneously convicted the appellant-accused under Section 302 of the

IPC instead of Section 304 Part II on the ground that the appellant-accused had acted in cruel manner and had caused injuries to six persons and a

death.

The appellant-accused, at the relevant time, was wearing Kirpan and he took out the same and gave 3 or 4 blows on the left side of the chest of

Bhajan Singh. When the other side came to his rescue, the appellant- accused gave a blow on the back side of the waist of Mander Singh. The

appellant-accused was further found to have given a blow on the backside of the left shoulder of Amrik Singh-the complainant and also two blows

each using Kirpan on the right flank of Sukhchain Singh and Harbans Singh.

In view of the above, it is relevant to quote the statement of Dr. Sarabjit Singh Sandhu (PW-4), who conducted the autopsy on the body of

Harbans Singh, which is as under:-

“On the same day, at 4.50 p.m. I also conducted the post mortem examination on the dead body of Harbans Singh S/o Mandir Singh R/o Pakhi

Khurd 27 years age, male brought by ASI Sukhdev Singh and HC Parson Singh No. 1432 of P.S. City Faridkot. Body was identified by Bohar Singh

S/o Ajmer Singh and Tej Singh S/o Kartar Singh. Length of the body was 5’9â€. It was dead body of moderately built and moderately nourished

young man wearing Sweater, Shirt, Jarsi, Paint, Kachha, Turban, Short Kirpan with black thread, White metallic kara in right forearm. P.M. staining

as present series of marked patches at the back of trunk and lower limbs. Rigor mortis was present in the neck muscles and upper limbs. Absent in

lower limbs (developing stage) clothes were blood stained and corresponding holes were present with clothes. I found the following injuries on his

person:-

An onlique stab wound 3 x 0.5 cm was present on the lateral side of right side of chest in mid Axiliary line 22 cm below the Axillary apax. C.B.P. it

was bone deep.

A transverse stab wound 2.0 x 5 cm was presentation the right side back of abdomen, 8 cms below and lateral of injury no. 1 on exploring, it was

going medially and in words cutting subcutaneous tissue, muscles, right kidney. Peritoneum and large intestine. Peritoneum cavity contained above

1000 C.C. of fluid and clotted blood. Stomach contained about 150 C.C. of semi digested food. All other organs were healthy.

All the injuries were ante mortem in nature. The cause of death in this case in my opinion was due to right kidney (hemorrhage and shock) and large

intestine, as a result of injury no. 2 which was sufficient to cause death in ordinary course of nature.â€​

Same principle has been reiterated by the Hon'ble Apex Court in the case of Ranjit Sarkar vs State of Tripura, (2016) 15 SCC 756.

Learned Government Advocate for the State has relied on the judgment of Apex Court passed in the case of Badru Ram and others vs State of

Rajasthan, reported in (2015) 11 SCC 476. The Apex Court, in the aforesaid case, analyzed the evidence of two injured eye witnesses and the nature

of injuries. In the said case principle of law has not been considered. Same is the fact of another judgment cited by the counsel for the State passed in

the case of Babubhai Ranchodbhai Patel vs State of Gujarat, reported in (1994) 1 SCC 410. Hence, the cases are distinguishable on facts.

In our opinion, the offence committed by the appellant would fall under Section 304 Part I of IPC.

There is evidence that the appellant had caused single injury to PW-1 Mayabai and another injury to PW-3 Rakesh Choudhary. The doctor, who

examined Mayabai, verified the fact that Mayabai received incised injury on her palm and the injury was simple in nature. MLC of PW-3 is on record.

Hence, in our opinion, the trial Court has rightly convicted the appellant for commission of offence punishable under Sections 323, 324 of IPC and

awarded proper sentence.

Consequently, the appeal of the appellant is partly allowed.

His conviction under Section 302 of IPC is altered in Section 304 Part I of IPC and the sentence of life imprisonment is modified to RI 10 years

alongwith fine of Rs.2000/-, failing which he shall suffer further RI for six months.

The conviction and sentence of the appellant awarded by the trial Court under Sections 323 and 324 of IPC is upheld. The appellant is in jail since

07.05.2007. He has completed more than 12 years of actual jail sentence. The appellant has already completed the jail sentence as awarded by this

Court. Consequently, the appellant be released forthwith, if he is not required in any other case.