Mahipal @ Pappu vs State of Rajasthan

S.P. Pathak, J.—This is a D.B.Criminal Appeal filed by the accused appellant against the judgment and order dated 22.4.2002 passed by learned Sessions Judge, Jaisalmer in Sessions Case No.39/99 whereby he convicted the accused appellant under Sections 302 & 394 IPC. He sentenced the accused to undergo imprisonment for life and a fine of Rs. 100/- for offence u/s 302, and three years rigorous imprisonment and a fine of Rs. 100/- for offence u/s 394 IPC, in default of payment to further undergo 15 days simple imprisonment. The sentences were ordered to run concurrently.

Briefly stated, the facts giving rising to the present appeal are that in the evening of 14.2.1999 Shri Murli Manohar Singh (hereinafter to be referred as ''deceased'') was sitting at his shop situated near Vyas Circle. Prem Prakash and Koju Singh were also there. At that time, Bhanwardan''s brother Mahipal alias Pappu came there and told that the amount which was outstanding may be discussed at the roadways bus-stand and whereupon Murli Manohar after telling Prem Prakash and Koju Singh to take care of the shop went towards the roadways bus-stand along with Mahipal and when they reached near Dharamshala, 2-3 persons suddenly came there. Mahipal inflicted a lathi blow on the person of deceased, as a result of which he fell down and thereafter knife injuries were inflicted to him by Mahipal. At that time, Savra Shri Natwar Das, Mangi Dan and Inder Singh @ Indrajeet were present there. Accused Mahipal took out a sum of Rs. 14,000/ - from the pocket of the deceased.

It is also the case of the prosecution that somebody intimated about the incident at the house of Murli Manohar deceased that some incident had taken place near the bus stand. Koju Singh and Bhopal Singh went to the place of incident and Murli Manohar was taken to hospital by a taxi. In the hospital, police recorded statement of deceased and subsequently the Tehsildar also recorded his statement. The statement recorded by the police is Exh.D/2.

On the basis of recorded statement Exh.D/2, a case was registered. The Tehsildar, who recorded the statement of Murli Manohar, discloses the name of accused appellant also. Murli Manohar was referred for treatment to Jodhpur and during treatment he died after 28 days.

The police, after completion of usual investigation, submitted a challan in the Court of Judicial Magistrate, who in turn committed the case to the Court of Sessions. The learned Sessions Judge framed charges against the accused-appellant under Sections 302 & 294 IPC. Against other accused Natwar Dan, Mangi Dan and Inder Singh @ Indrajeet, charge under Sections 302/34 & 394/34 of IPC were framed. Accused denied the charges and claimed trial.

The prosecution, in support of its case examined as many as 24 witnesses and in documentary evidence exhibited several documents. The learned trial Judge, after completion of the trial, recorded the statement of accused u/s 313 Cr.P.C. wherein the accused persons stated that they have falsely been implicated in the case. The learned trial Judge, after hearing both sides has convicted the accused appellant as stated hereinabove and acquitted the other accused persons on account of insufficiency of evidence against them.

We have heard learned Counsel for the appellant and learned Public Prosecutor for the State and perused the record carefully.

It has been contended by learned Counsel for the appellant that in this case other accused persons have been acquitted as evidence against them was not relied by the learned trial Court and no appeal has been preferred against their acquittal. According to the learned Counsel, in the circumstances, the conviction of the appellant under Sections 302 & 394 IPC is also not maintainable as the evidence being the same which was not believed in relation to other persons.

It has next been contended that even if it is presumed that the prosecution was able to prove that the injuries inflicted on the person of the deceased were caused by the appellant, then too conviction was not proper u/s 302 IPC and in fact it is liable to be altered to one u/s 304 Part II.

It has further been contended that according to the medical report, the injuries found on the person of deceased except injury No. 1 on the left leg which was grievous and the rest of injuries were simple in nature, therefore, to draw a conclusion that accused had the intention commit murder, cannot be gathered.

Lastly, it has been contended that the postmortem report indicates that the death of deceased Murli Manohar was the result of Peritonitis. According to the learned Counsel, the deceased died because of septic after 28 days of treatment in the hospital and in these circumstances his conviction u/s 302 recorded by the learned trial Court cannot be said to be proper and at the most his case falls u/s 304 Part II of the Indian Penal Code.

On the other hand, it has been contended by learned Public Prosecutor that prosecution has been able to prove its case on the basis of cogent evidence that the accused inflicted several injuries and on account of those injuries the deceased died later on in the hospital, therefore, the conviction recorded by the learned trial Judge is not required to be altered or modified.

We have considered the rival submissions made before us.

Before proceeding further, the medical evidence in the case is required to be examined. It has come in the evidence of Dr.Shantilal Purohit (PW. 11) that he examined the deceased at about 9.20 P.M. on 14.2.1999 at Primary Health Centre, Pokran and prepared Exh.P/7 injury report. He found the following injuries on the person of deceased.

Lacerated wound 3 x 1 -1/2 cm x bone deep with compound fracture of left tibia 2. Incise wound 2-1/2xlx lcm right leg below the knee front.

Incise wound 3 x 2 x 2cm just below injury No.2.

Incise wound 3 x I x lcm just injury No.3

Incise wound 3-1/2 x2x lcm on right thigh and lower 1/3rd

Incise wound 2 x 1 x 1 cm on the back of right thigh at middle.

Incise wound 2 x 1 x lcm just near injury No.6 medially

Incise wound 1-1/2 x 1 x 1/2cmjust below injury No.7

Incise wound 1 x 1 x lcm just below injury No.8,

Incise wound 3-1/2 x 1 x2-1/2cm on back on left thigh at mid part

Incise wound 2 x 1 x 2cm just below injury No. 10

Incised wound 2 x 1 x 2cm just below injury No. 11

Incised wound 3-1/2 x 2 x 2-1/2cm on the left gluteal region medically.

Incised wound 3 x 2 x 3cm just near injury No. 14 laterally

Incised wound 2 x 1-1/2 x2-1/2cm just near injury No. 15 laterally

Incised wound 3 x 2 x 3-1/2cm on the right gluteral region medially

Incise wound 3-112 x 2 x 3cm just near injury No. 17 laterally

Incised wound 3-1/2 x 2 x 2-1/2cm just below injury No. 18.

Incised wound 1 x 1x lcm on the serum.

In the opinion of doctor, Injury No. 1 was grievous caused by blunt object and it resulted in compound fracture of left tibia at middle of the bone. The rest injuries were simple in nature.

PW.23 Dr.M.P.Joshi, who, in the capacity of Member of the Medical Board, conducted the postmortem examination of the dead body of deceased, found following injuries:

(1) Stitched surgical wound 22cm, vertically on the abdomen in middle of laprotomy.

(2) Surgical wound 1.8cm x 1 .Ocm x cavity deep on the lower 1/3 part of abdomen in middle, just below above injury with signs of septic (of supra public drain)

(3) Surgical wound 1.5cm x 1.0cm cavity deep on the right side of abdomen lower 1/3 of retro public drain with signs of septic.

(4) Surgical wound 1.5cm x 0.8cm x cavity deep on the right side of abdomen middle 1/3 of abdominal drain.

(5) Surgical wound 1.8cm x 1.0cm x trachea deep on the front side of neck of trachostomy.

(6) Stitched (healed) wound 2.5cm long obliquely on the front of right leg just below knee joint.

(7) Stitched two wounds (healed) each, 3.0 cm long on the right leg below injury No.6 ant. medially.

(8) Four stitched wounds (healed) on the right thigh lower 1/2 part medically varying in size from 1.0cm to 3.5cm in length.

(9) Stitched wound (healed) on the front of right thigh lower 1/3, size.

(10) Lacerated wound 3.2cm x l.Ocmx 1.0cm bone deep, obliquely on the left ant. at middled 1/3 with fracture of leg bone (tibia) with septic.

(11) Four wounds (septic) on the left thigh lower 112 dorso: masculine varying in size from 1.5cm x 0.8cm x skin deep to 3.5cm x 0.8cm x muscle deep.

(12) Two wounds (septic on the left gluteal region lateral each of 2.6 x 1.0cm x muscle deep

(13) Bed sore 13.0x10.0cm x muscle deep on the sec. region.

(14) Bed sore 5.5 x 4cm x skin deep on the left shoulder joint post laterally.

The witness has prepared Exh.P/37, the Postmortem Report. The postmortem of the dead body took place on 12.3.1999 i.e. nearly after 28 days of the incident. In cross-examination, the witness has stated that on account of septic in the stomach, the death took place. This witness had admitted that had there been proper treatment in time, the deceased could have been saved.

The statements of PW. 11 Dr.Shantilal Purohit and PW.23 Dr.M.P.Joshi establish beyond doubt proves two facts that the injuries were ante-mortem in nature and the death was unnatural. Thus, the death of the deceased may be classified as homicidal one.

After having carefully examined the medical evidence, now it is to be seen as to whether the evidence led in this case resulting in conviction of accused u/s 302 is proper? In this case, there is no direct evidence available but by circumstantial evidence of last seen by PW.1 Koju Singh and other witnesses PW.2, 4 & 8 and the evidence of Motbir witnesses PW.6 Ratan Singh and PW.7 BansiJal and also taking into consideration the statements of the deceased recorded by Budhprakash Exh. D/2 and the statement of deceased recorded by Tehsildar PW.24 Manvender Singh while discharging the functions of SDM in his absence. All these statements alongwith the recovery effected in the present matter on the information of the accused after arrest taking together will lead to a conclusion that the deceased died during the course of treatment, when he was referred to Jodhpur and was being treated in Mahatama Gandhi Hospital, Jodhpur, he died due to septic and peritonitis.

In the above circumstances, it is to be seen as to whether the accused has been right convicted u/s 302 IPC or his case falls u/s 304 Part 1 or Part II.

In the scheme of the Penal Code, culpable homicide is genus and murder its specie. A murder is culpable homicide but in vise versa. Speaking generally, culpable homicide means special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment proportionate to gravity of this generic offence, the Code practically recognizes three decrees of culpable homicide. The first is what may be called culpable homicide of the first degree. The grievous form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under first part of Section 304. The last type of culpable homicide and the punishment provide for it is also the lowest amongst the punishments provided for three degrees.

For an act to fall under the mischief of Section 304 Part II what is required is that the act is done with the knowledge that it was likely to cause death. For proving this offence, knowledge on the part of the accused that his act was likely to cause death must be there.

Taking into consideration the medical evidence and the postmortem report Exh.P/37 and the nature of injuries caused to the deceased, clearly indicate3s that all injuries were simple in nature except one on the left tibia which resulted in fracture. It is also pertinent to notice here that all the injuries are either on buttocks or thighs. The injuries are not on vital part. The injuries by sharp edged weapon are simple in nature. Though PW. 11 Dr.Shantilal Purohit has stated that the cumulative effect of these injuries would be sufficient in the ordinary course of nature to cause death but at the same time in Exh.P/8, the witness has opined that since proper treatment was given in the hospital, therefore, the injuries mentioned in Exh.P/7 could not have been the cause of death.

It is also pertinent to mention that the death took place after 28 days and on account of secondary complication during treatment. PW.23 Dr.M.P.Joshi found that the cause of death was injury in the stomach. The witness has stated in clear terms that if there had been a proper treatment, the deceased could be saved.

In the above circumstances, an inference can be drawn that the act of the appellant was only likely to cause death within the meaning of Part II of Section 304 of IPC.

The Court in the case of Purkha Ram & Ors. v. State of Rajasthan, 1998 Cr.L.J 918, where the victim was unarmed, as many as 13 injuries were caused to him, out of which 4 were grievous, the accused not only inflicted the injuries but they also taken him away and put him in Nadi, this Court observed that shock was bound to occur because of multiple injuries caused to the deceased and concluded that though the accused might not have intended to cause he death of victim but they certainly had the knowledge-that their act likely to cause the death of victim and convicted them u/s 304 Part II IPC.

The Hon''ble Supreme Court in a case reported in Ranjha & Ann v. State of Punjab, 1996 SCC (Cr.) 1163, at Para 10 of the judgment has observed as under:-

"The next question, which is required to be considered, is whether by causing the death of Khanu, the appellants committed the offence of murder as held by the High Court, or culpable homicide not amounting to murder. From the injuries found on the person of Khanu, as detailed earlier, we get the except one abraded contusion on the back of the lower part of the chest (injury 3), beneath which three ribs were found fractured, all other injuries were simple and most of them were inflicted on non-vital parts of the body. If really that three accused persons intended to cause death of the deceased, it was likely that they would have caused much more grievous injuries on vital parts of the body more so when they were armed with deadly weapons. Considering this aspect of the matter, and the nature of injuries sustained by Khanu, we feel that the offence committed by the two appellants in causing the death of Khanu comes u/s 304(Part II) IPC. We, therefore, set aside the conviction and sentence of the appellants u/s 302/34 IPC; and instead thereof convict them u/s 304 (Part 11/34 IPC and sentence each of them to suffer rigorous imprisonment for seven years.

In view of aforesaid decisions of Hon''ble High Court and the Hon''ble Supreme Court and also talcing into consideration the medical evidence and also the scheme of Penal Code providing punishment in relation to offence which are culpable homicide and where it is found on the basis of material on record that the act of accused was likely to cause death the punishment is required to be one u/s 304 Part II of the IPC.

As regards the conviction u/s 394 IPC is concerned, it is suffice to say that there is no recovery whatsoever and by the evidence led in this case it has not been satisfactorily proved that it was the accused who had taken out the money from the pocket of the deceased. In absence of evidence to prove the offence u/s 394 IPC, the conviction awarded by the trial Court is not liable to be confirmed. The learned trial Court, in fact has neither assigned any reasons nor discussed the evidence in relation to awarding punishment u/s 394 IPC, therefore, the conviction of the appellant u/s 394 IPC is required to be set aside.

In the result, the appeal of appellant Mahipal alias Pappu is partly accepted to the extent that he is acquitted of the charge u/s 394 IPC and his conviction u/s 302 IPC is altered from Section 302 to Section 304 Part II IPC and for the offence u/s 304 Part II he is sentenced to the period already undergone by him. The appellant shall be released forthwith, if not required in any other case.