Manik vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 04/02/2009 passed in Sessions Trial No. 30/2008. Appellant was prosecuted for commission

of offence punishable under Section 302 of IPC. Trial court held appellant guilty for the aforesaid offence and awarded sentence of life and fine of

Rs. 500/- in default another one month RI.

Prosecution story in brief is that on the date of incident at around 7 O’clock in the morning, complainant Kawadu Patale was washing his face

and his wife at back side of the house was collecting some pieces of roof tiles. At that time, appellant came there, he had a spade with him and he told

the deceased that why she is throwing tiles at the boundary of his house and inflicted a blow of spade on the head of the deceased. Report of the

incident was lodged at the police station on the same day, thereafter police registered offence. Deceased was sent to government hospital Waraseoni

where she was died on 16/07/2007 during treatment. Police registered offence and conducted investigation. After investigation charge-sheet was filed

against the appellant. Appellant abjured his guilt during trial and pleaded innocence. The trial court held the appellant guilty and awarded the sentence

as mentioned above.

Learned counsel appearing on behalf of the appellant has submitted that evidence of eye witnesses is unreliable. In alternate learned counsel for the

appellant has submitted that the offence committed by the appellant would fall under Section 304 Part-II of IPC because there was no intention ofÂ

appellant to cause death of deceased. Incident had occurred when the deceased was quarreling with wife of the appellant.

Learned counsel for the State has submitted that appellant came from his house. He had spade with him. He had inflicted sufficient blow on vital

part of the body of deceased, due to which deceased was died on the next day, hence the trial court has rightly convicted the appellant for

commission offence of murder and awarded proper sentence.

PW/1 Kawadu Patale is the husband of the deceased. He deposed that at around 7 O’clock in the morning I was washing my face and

my wife deceased was collecting pieces of roof tiles and she was throwing it at some place. There is a boundary between the house, the appellant

came there he was abusing my wife and he had inflicted a blow on the head of my wife and ran away from the spot. I had taken the deceased in a

bullock cart to police station where report Ex. P/1 was lodged. He further deposed that there is common passage between his house and house of the

appellant and there was quarrel between wife of the appellant and my wife. On this count the appellant had inflicted a blow of spade on the head of

my wife. He admitted that he had signed Ex. P/4. In his cross-examination he admitted that it is true that a quarrel was going on between my wife

deceased and wife of the appellant.

PW/2, is another eye witness. She deposed that I was washing my face and at that time appellant had inflicted a blow by spade on the head of the

deceased and appellant ran away from the spot.

PW/3 Kishore Kumar Patwari who prepared spot map Ex. P/5.

PW/4 , is the daughter of the deceased. She deposed that at around 6 to 7 O’clock in the morning my mother deceased was collecting pieces of

roof tiles. I was cleaning in front of my house. At that time appellant came there, he asked from my mother why are you collecting roof tiles. He had

inflicted a blow on the head of my mother. In her cross examination she deposed that it is true that quarrel was going on between my mother and wife

of the appellant and both were quarreling with each other.

PW/6 independent witness. He deposed that quarrel was going on between the wife of the appellant and the deceased. He specifically used word

“Tu-tu Mai Maiâ€​.

PW/7 deposed that appellant had inflicted a blow by spade on the head of the deceased. Same facts have been deposed by PW/8 and PW/9 who

are child witnesses.

PW/18 Doctor who inspected the deceased at the initial stage. He deposed that I noticed one lacerated wound on the head of the deceased which

was 10x1/2x1/2 cm. Deceased was unconscious.

PW/ 19 Dr. Ashok Lilhare, performed postmortem of the deceased. He deposed that I noticed one injury on the head of the deceased. There

were fractures of head bones. Cause of death was fracture of head bones.

I.O. who conducted investigation, seized plain earth and read earth and articles.

From the evidence of eye witnesses this fact has been proved that the appellant had inflicted a blow by spade on the head of the deceased due to

which she was died. This fact has further been proved from the evidence of doctor who performed postmortem of the deceased.

Now the next question is this what offence the appellant has committed.

The Hon’ble Supreme court in the case of Nankaunoo Vs. State of Uttar Pradesh (2016) 3 SCC 317 has held as under in regard to motive

and intention.

“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 300IPC 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.â€​

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 300speaks 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€​

Principle of law laid down by the Hon’ble Supreme Court is 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.

In the present case the prosecution witnesses established the fact that quarrel was going on between wife of the appellant and the deceased wife.

In that quarrel appellant came from his house and he had inflicted a blow of spade on the head of the deceased. In such circumstances, in our opinion,

there was no intention of the appellant to cause death of the deceased. In our opinion, the offence committed by the appellant would fall under Section

304 Part I of IPC. We are not in agreement with the arguments advanced by learned counsel for the appellant that the offence would fall under

Section 304 Part II of IPC because appellant had inflicted a blow on the vital part of the body of the deceased and deceased was died on the next

day.

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 of RI ten years and fine of

Rs. 1,000/-Â in default another six months RI. Appellant is in jail from the date of his arrest, he has already completed actual jail sentence more than

ten years as awarded by this Court, hence, he be released forthwith if he is not required in any other case.