Manoj Soni vs State Of Madhya Pradesh

This appeal has been preferred assailing the judgment dated 13/09/2007 passed by the Sessions Judge, Katni, in Sessions Trial No.09/2007 whereby

the appellant has been convicted under section 302 of IPC for committing murder of one Santosh Patel and sentenced him to undergo R.I. for life

imprisonment along with fine of Rs.1000/- in default further imprisonment of 6 months and also punished under section 323 of IPC for committing

simple injury to Prakash Chandra Chourasiya (PW-8) and sentenced him to R.I for 6 months. Both sentences to run concurrently.

In this case there is no dispute that 2-3 years before the incident deceased eloped sister of the appellant and married with her and on account of the

aforesaid incident the relationship between the appellant and the deceased were acrimony.Â

The brief facts giving rising to this appeal are that on22/12/2006 after 8 PM deceased Santosh Patel and his friend Prakash Chandra Chourasiya

(PW-8) were going towards the Gram Panchayat Umariya Pan. After taking dinner from the hotel of one Rinkoo @ Santosh (PW-3) in the way, the

appellant assaulted the deceased with stone and when Prakash Chandra Chourasiya (PW-8) made efforts to save the deceased the appellant also

assaulted him and on account of injury sustained on the head the deceased fell down and died. Prakash Chandra Chourasiya (PW-8) also received

injuries and after the incident he rushed towards the police station and informed the police about the incident, where Marg Intimation Ex.P-1 was

recorded in police station Umariya Pan, District Katni and thereafter FIR Ex.P-12 was registered at Crime No.222/2006 under section 302 of IPC and

dead body of the deceased was sent for postmortem to Community Health Centre, Umariya, where Dr. Neelkamal Suhane (PW-7) conducted

postmortem. According to the Postmortem Report Ex.P-10 the cause of the death was shock due to head injury sustained to the deceased. InjuredÂ

Prakash Chandra Chourasiya (PW-8) was also examined. On 23/12/2006 the appellant/accused was arrested as per arrest memo Ex.P-5 and seized

articles were sent to FSL.

After completion of the investigation, the charge sheet was filed before the Judicial Magistrate First Class, Katni and case was committed to the

Sessions Judge, Katni. The learned Sessions Judge framed charges under sections 302, 323 of the IPC against the appellant. He abjured his guilt and

claimed to be tried. His defence is that he has been falsely implicated in this case and deceased was assaulted by Prakash Chandra Chourasiya (PW-

8), when they were going after consuming alcohol from the hotel and the appellant has been arrayed because there was enmity with the deceased.Â

Learned trial court relied on the statement of sole injured eyewitness Prakash Chandra Chourasiya (PW-8) and came to the conclusion that the

deceased was assaulted by the appellant with a view to kill him and also assaulted Prakash Chandra Chourasiya (PW-8) and convicted the appellant

and sentenced him as mentioned earlier.

In this appeal on behalf of the appellant, the findings of the learned trial court has been assailed on the ground that the case is based on sole injured

eyewitness Prakash Chandra Chourasiya (PW-8), whose testimony is not reliable as his statement is full of material contradiction and omission with

the FIR Ex.P-12 and police statement D-1. Prakash Chandra Chourasiya (PW-8) has not narrated during the investigation that the deceased and he

himself were assaulted by the appellant with the knife and caused injury to them but in the statement given before the court during the trial, he has

disclosed aforesaid facts that the appellant also assaulted with the knife and caused injury to the deceased and to him in order to match his statement

with the finding of medical expert. In such circumstance, his testimony can't be said to be reliable and trustworthy and merely on his statement, the

appellant can't be held guilty of the offence. He is entitle to get benefit of reasonable doubt. On behalf of appellant, it is further submitted that the

appellant can't be convicted under section 302 of IPC as there is no medical evidence to establish the fact that the injuries were sufficient to cause

death in ordinary course of nature. In such circumstance, the appellant can be convicted only under section 304 Part-II of IPC.

Learned G.A has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for the appellant

stating that the findings of the learned trial court are based on the cogent evidence and prayed for rejection of this appeal.

Having considered the contention of learned counsel for the parties and on perusal of the record, it is found that there is no controversy that the

death of deceased was taken place on 22/12/2006 near about 8-10 PM on account of injuries sustained to the deceased and nature of his death was

homicidal. In this regard statement of Dr. Neelkamal Suhane (PW-7) is relevant as he has stated that on 23/12/2006 in Community Health Centre,

Umariya Pan at 10 AM he conducted autopsy on the body of the deceased. According to the Postmortem Report Ex.P-10 following injuries were

found on the body of the deceased:-

(i) Laceration above right eye 6cmX1 cm X ½ cm deep beneath the skin of that area showing big heatoma 8 cm X 3 cm;

(ii) Lacerated wound size 10 cmX6 cmX 1 cm over back of skull with fracture occipital bone which lead to massive bleeding grossly damaged to brain

material. Brain material coming out from fracture side;

(iii) Sharp wound two in number one lower lateral back second in left lower lateral back are antemortem and size 3cm X ½ cm, both perforated;

(iv) Lacerated wound at right elbow area at bonsac surface size 6 cm X 2 cm;Â

            He opined the cause of death was shock caused due to head injury within 12-14 hours before the examination and

injuries were antemortem in nature and incised wound may be caused by any sharp object and rest of the injuries may be caused by hard and blunt

object and report Ex.P-10 was prepared. The aforesaid statement has not been challenged during the cross examination and it has remained

unimpeachable. Hence it is held that the nature of the death of deceased was homicidal.

It is also not disputed that Prakash Chandra Chourasiya (PW-8)Â was also injured at the time of the incident. He was examined by Dr. Neelkamal

Suhane (PW-7) and he has stated that on 22/12/2006 he examined him and as per report Ex.P-9 found following injuries on his person:-

(i) Lacerated wound on skull and size 1 cm X ½ cm by hard and blunt object-simple;

(ii) Swelling of nose by hard and blunt object- simple;

             He stated that the aforesaid injuries were caused by hard and blunt object and the injuries were fresh as caused

within 2 hours before examination. In view of the statement of Dr. Neelkamal Suhane (PW-7) it is held that on 22/12/2006 at the time of incident,

Prakash Chandra Chourasiya (PW-8) also received aforesaid injuries.

Prakash Chandra Chourasiya (PW-8) has categorically stated in his statement that before the incident they went to hotel for dinner and after taking

dinner near about 8 PM while they were going towards Gram Panchayat Umariya Pan suddenly the appellant assaulted the deceased with knife and

stone and deceased Santosh received incised wound on his stomach and also received injury on his head caused by stone. When he tried to save the

deceased the appellant also assaulted him with the knife on his head and caused injury. Thereafter he left the deceased and went to the police station

and informed the incident and Marg Intimation Ex.P-1 and FIR Ex.P-12 were recorded.

On behalf of the appellant it is contended that FIR Ex.P-12 and police statement Ex.D-1 has been recorded by Sub Inspector, Bharat Jhariya

(PW-10), who has stated that during the investigation Prakash Chandra Chourasiya (PW-8) did not disclose him that appellant assaulted him and the

deceased with knife and during preparation of Inquest report he did not found any injury except head injury to the deceased. Thus the statement ofÂ

Prakash Chandra Chourasiya (PW-8) is contradictory with the FIR Ex.P-12 and Police Statement Ex.D-1 and he is lying about assault with the knife

by the appellant just to match his statement with the finding of medical expert. Such witness can't be relied simply on the ground that he is injured

witness.

Undoubtedly the aforesaid contention is attractive and there is no rule that if witness has been injured in the incident, therefore he should be

relied even his statement is doubtful. In present case undoubtedly there is contradiction and omission in the statement of sole eye witness Prakash

Chandra Chourasiya (PW-8) but he is not only injured witness as well as independent witness and have no grudge with the appellant. Similarly he

have no relationship with the deceased. There is no motive/reason to cause death of deceased by him. The defence that he and the deceased before

the incident consumed alcohol has not been established as hotel owner Rinkoo @ Santosh (PW-3) has not stated that on relevant date the deceased

and witness Prakash Chandra Chourasiya (PW-8) consumed alcohol in his hotel. In defence Shiv Kumar Burman (DW-2) has been examined who

has stated that on the relevant date the deceased and Prakash Chandra Chourasiya (PW-8) consumed alcohol in the hotel, where he worked as a

cook but the statement of this witness is not corroborated by Autopsy Surgeon, Dr. Neelkamal Suhane (PW-7) as he has not confirmed presence of

alcohol in the stomach of the deceased. There is no circumstance to consider the possibility of taking quarrel between the deceased and Prakash

Chandra Chourasiya (PW-8). In the circumstance, the statement of Prakash Chandra Chourasiya (PW-8) with regard to assailant of the appellant can

be considered reliable despite of aforesaid contradiction in his statement. The statement of Prakash Chandra Chourasiya (PW-8) also gets support

from the presence of blood stain on the clothes of the appellant, which was seized by Sub Inspector Bharat Jhariya (PW-10) as per seizure memo

Ex.P-5 and sent to FSL and as per FSL report Ex.P17, there was human blood found on the clothes of the appellant/accused and there is no

explanation of the aforesaid circumstance.

Having considered the facts and circumstance of the case, we are of the opinion that the learned trial court has not committed any error to come

to the conclusion that the appellant was assailant and caused aforesaid injury to the deceased.

However in view of the aforesaid circumstance, it can'tbe said that aforesaid injury was caused by the appellant with an intention to kill the

deceased or with an intention to cause such injury which was sufficient to cause death of the deceased. Autopsy Surgeon Dr. Neelkamal Suhane

(PW-8) has not opined that head injury was sufficient to cause death in ordinary course of nature and there is also no opinion that the injury caused by

sharp object was sufficient to cause death in ordinary course of nature. In such circumstance, the appellant can't be held guilty for offence punishable

under section 302 of IPC but it is clear that he assaulted in the manner that he knew that by his act he may likely to cause such injury which may

likely to cause death of the deceased. Hence the finding of learned trial court with regard to conviction of the appellant under section 302 of IPC is not

sustainable in place of it, the appellant can be convicted for commission of offence punishable under section 304 Part-II of IPC.

In this regard reliance can be placed on the judgment passed by the Apex Court in the case of Surjit Sarkar vs. State of West Bengal (2013) 2

SCC 146 in which it has been observed in para 64 which reads as under :-

“Given the nature of injuries, it is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the

injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would, therefore, be ruled

out. Nevertheless, the injuries were quite serious and inflicted by Surajit Sarkar on Gour Chandra Sarkar’s head with an iron rod, as stated by

PW-8 Achintya Sarkar. We can surely credit Surajit Sarkar with the knowledge that if a person is hit with an iron rod on the head, then the act is

likely to cause the death of the victim. That being so, in our opinion, it would be more appropriate to hold Surajit Sarkar guilty of an offence of culpable

homicide not amounting to murder. Since we attribute to him the knowledge of his actions, he should be punished under the second part of Section 304

of the IPC.

Further reliance can be placed on a judgment of the Apex court in the case of Nankaunoo vs. State of Uttar Pradesh (2016) 3 SCC 317 in which it

has been observed in paragraphs 11 and 12 which reads as under :-

“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.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 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 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.â€​

Considering the aforesaid legal position and the facts of the present case, in our opinion the appellant can't be convicted for commission of murder

of the deceased, he is required to be convicted for commission of culpable homicide not amounting to murder punishable under section 304 Part-II of

IPC. So far the appellant's conviction under section 323 of IPC is concerned, it is established by the medical evidence as well as statement of

complainant Prakash Chandra Chourasiya (PW-8). Therefore, the finding of learned trial court with regard to conviction and sentence of appellant

under section 323 of IPC is confirmed.

In view of the aforesaid discussion, we partly allow the appeal and set aside the conviction and sentence of the appellant under section 302 of IPC

and convict him for the commission of the offence under section 304 Part II of IPC and sentence him to already undergone maximum period of R.I

for 10 years as from the record it appears that the appellant is in custody since 23/12/2006. He is directed to be released forth with, if not required to

be detained in any other case.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.

A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.

Certified copy as per rules.