Marbin George vs State of M.P.

This criminal appeal under Section 374 (2) of the

Cr.P.C . filed on behalf of the appellant/accused Pooranlal is

directed against the judgment dated 17.8.2005 passed by the

Court of Sessions Judge, District Balghat in Sessions Trial

No. 28/2005, whereby the accused/appellant Pooranlal was

convicted of the offence punishable under Section 302 of the

I.P.C. for having committed murder of deceased Saligram and

was sentenced to imprisonment for life and to pay a fine in

the sum of Rs.1000/-. In default of payment of fine, he was

directed to undergo further rigorous imprisonment for a

period of 6 months.

The prosecution case before the trial Court may be

summarized as hereunder: Accused Pooranlal had inimical

relations with deceased Saligram on account of partition of

agricultural land. At about 4:00 p.m. on 30.10.2004, deceased

Saligram was sitting on the embankment of his field grazing

his cattle. At that time, accused Pooranlal arrived on the spot

armed with an axe. He assaulted the deceased with the axe on

the neck. As a result, deceased Saligram died on the spot. At

that time, witnesses Samal Singh (PW-3), his wife Kaushalya

and Shobhelal (PW-2) were present in the adjacent fields.

They witnessed the incident. Samal Singh asked the accused

as to why he had killed deceased Saligram; however, accused

Pooranlal ran away. Thereafter, Samal Singh returned to the

village and informed the villagers including Saligram''s son-

in-law Mohan Lal, who lodged the FIR (Ex.P-2) at about 8:00

p.m. the same evening in Police Station Malajkhand, District

Balaghat. During the investigation, accused was arrested and

the axe allegedly used in commission of the offence was

seized from his possession on the basis of the disclosure

statement (Ex.P-10) made by him under Section 27 of the

Evidence Act. In serological examination conducted in

Forensic Science Laboratory, Sagar, human blood was found

on the axe and the clothes seized from the possession of

accused Pooranlal.

The trial Court framed a charge under Section 302 of

the I.P.C. against the accused Pooranlal. However, he abjured

the guilt and claimed to be tried. In his examination under

Section 313 of the Cr.P.C., he stated that eye witnesses Samal

Singh @ Guhdad, Shobhelal and Budh Singh are companions

and on account of previous enmity, they have conspired and

ganged up against him and falsely implicated him in the case.

After the trial, the trial Court held that prosecution has

succeeded in proving beyond reasonable doubt that deceased

Saligram had died a homicidal death on account of an incised

wounds sustained by him in the neck and cause of his death

was shock due to hemorrhage caused by cutting of vital

vessels of neck. It was further held that aforesaid fatal wound

in the neck of the deceased was inflicted by the accused

Pooranal with intent to cause death of the deceased.

Consequently, accused Pooranlal was convicted and

sentenced as herein above stated:

The conviction of the accused Pooranlal has been

challenged before this Court by learned counsel for the

appellant mainly on the ground that even if it is assumed for

the sake of argument that appellant Pooranlal had assaulted

deceased Saligram, resulting in his death, it may be noted that

he is said to have inflicted a solitary blow. Unfortunately,

that blow landed on the neck of the deceased resulting in his

death. In these circumstances, it cannot be said that the

appellant had intention of causing death of the deceased or

had intention of causing such bodily injury as was sufficient

in ordinary course of nature to cause death. Therefore,

inviting attention to numerous judicial precedents, it has been

contended that the act of the appellant, at worst, would fall

within the ambit of Section 304 (Part-II) of the I.P.C.

On perusal of the record and due consideration of rival

contentions, we are of the view that this criminal appeal

against conviction must fail for the reasons hereinafter stated:

It may be noted that the prosecution case is based

mainly upon eye witnesses accounts of Shobhelal (PW-2) and

Samal Singh (PW-3). First informant Mohan Lal (PW-1) is

son-in-law of deceased Saligram. He had lodged first

information report (Ex. P-1) about 4 hours after the incident,

after having been informed about the same by Samal Singh

(PW-3). Shobhelal (PW-2) has stated that appellant Pooranlal

and deceased Saligram were cousins. Mohan Lal (PW-1) has

provided motive for the crime. He has stated that there was a

dispute between Pooranlal and Saligram with regard to

agricultural land. They were not on talking terms. Appellant

Pooranlal used to warn deceased Saligram that water from

Saligram''s field must not enter the field of Pooranlal. 8. The

gist of testimony of eye witnesses Shobhelal (PW-2) and

Samal Singh (PW-3) is that at about 4:30-5:00 p.m. on

29.10.2004 they were in their respective fields. Shobhe Lal

(PW-2) has stated that his wife Paran Bai, daughter Leela Bai

and granddaughter were also present along with him. They

witnessed the incident from a distance of about 35 feet. As

per Samal Singh (PW-3) his wife Kaushalya was also present

with him. Aforesaid two witnesses have also stated that

Saligram was sitting in his field and grazing his cattle. At that

time, appellant Pooranlal came from behind carrying an axe

and first he assaulted the deceased twice or thrice with blunt

side of the axe on the back. As a result, the deceased fell

down. Thereafter, he struck a blow upon the neck of the

deceased, cutting the same. Consequently, the deceased died

on the spot. When Samal Singh asked the appellant as to why

he had killed Saligram, the appellant replied that he would

also kill Samal Singh. Appellant Pooranlal escaped from the

spot. Thereafter, Samal Singh returned to the village and

informed villagers including Mohan Lal, about the incident.

Dr. Anil Shukla (PW-6) who had conducted post-

mortem examination upon the dead body of the deceased

Saligram has stated that he had found only one wound on the

body. It was a chopped wound admeasuring 2"x1"x2" upon

the left side of neck, 1.5" below the chin and 2" above the

collarbone. The muscles of the neck were visible and thyroid

cartilage was broken. The blood vessels were cut. Aforesaid

injury were caused by a hard and sharp object. The deceased

had died as a result of hemorrhage due to cutting of main

blood vessels. The hemorrhage had resulted in shock and

death of the deceased. Aforesaid injury was sufficient in the

ordinary course of nature to cause death. The witness has

further stated that aforesaid wounds could have been caused

by the axe seized pursuant to the disclosure statement made

by the appellant. However, during his cross-examination Dr.

Anil Shukla (PW-6) has categorically stated that he did not

find any contusion or swelling in the back of the deceased. He

has further stated that if a blow is delivered the blunt side of

an axe to the back of a person, it would result in contusion.

It is true that both eye witnesses namely Shobhelal

(PW-2) and Samal Singh (PW-3) have clearly stated that

before delivering the fatal blow upon the neck of the

deceased, the appellant had struck two or three blows to the

back of the deceased by blunt side of the axe. However, in the

post-mortem examination Dr. Anil Shukla (PW-6) had found

no injury upon the back of the deceased. On the basis of

aforesaid discrepancy, it was contended before the trial Court

that medical evidence does not corroborate the eye witness

account. In these circumstances the testimony of eye

witnesses was unreliable; therefore, the appellant deserves

the benefit of doubt.

We may note in this regard that the fact that the

appellant had struck 2-3 blows from the blunt side of the axe

upon the back of the deceased may not have been

corroborated by the medical evidence; however, there is no

discrepancy between the statement of eye witnesses and the

medical evidence with regard to the fatal injury caused by the

appellant upon the neck of the deceased with sharp side of the

axe. Thus, learned trial Court had rightly ignored aforesaid

discrepancy. Apart from aforesaid discrepancy, there are no

material contradictions and omissions between the statements

of the eye witnesses inter se or between their Court

statements and police statements. There is nothing on record

to suggest that Shobhe Lal (PW-2) and Samal Singh (PW-3)

were partisan witnesses, interested witnesses or even related

witnesses. Thus, there is no reason to discard their testimony

in respect of the fatal blow delivered by the appellant. Thus,

the trial Court committed no error in placing reliance upon

the testimony of the eye witnesses. We may also take note of

the fact that this part of the judgment has not been seriously

challenged on behalf of the appellant during the course of

arguments.

Learned counsel for the appellant have mainly laid

emphasis upon the fact that this is the case of a solitary blow;

therefore, inviting attention to various authorities it has been

contended that the intention to cause death of the deceased is

not discernible in the facts and circumstances of the case.

Therefore, the act of the appellant would come under the

purview of Section 304 (Part-II) of the I.P.C. Since the

appellant has already undergone 13 years of rigorous

imprisonment, the conviction should be converted into one

under Section 304(Part-II) and the sentence should be

reduced to the period already undergone. In support of

aforesaid contention, learned counsel for the appellant has

placed reliance upon the judgments rendered by the Supreme

Court in the case of Abdul Mazid Vs. State of Assam, AIR

1994 S.C. 1487, Maharaja Vs. State of Tamil Nadu, 2009

CRI.L.J. 315, Ranjit Singh Chandrasingh Atodaria Vs.

State of Gujarat, AIR 1994 SC 1060 and Surinder Kumar

Vs. Union Territory, Chandigarh, AIR 1989 SC 1094.

However, in the case of Thangaiya Vs. State of

Tamil Nadu, 2005 SCC (Cri) 1284 it has been held that there

is no fixed rule that whenever a single blow is inflicted,

Section 302 of the I.P.C. would not be attracted. Referring to

the leading case of Virsa Singh Vs. State of Punjab, AIR

1958 SC 465, the Supreme Court held that even if intention of

the accused was limited to the infliction of a bodily injury

sufficient to cause death in the ordinary course of nature, and

did not extend to the intention of causing death, the offence

would be murder. Illustration (C) appended to Section 300

clearly brings out this point. In para 22 of the judgment,

Supreme Court further observes that:

It cannot be said as a rule of universal application that whenever one blow is given, Section 302 of the I.P.C. is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered.

On the same point the principles laid down by the Supreme

Court in the cases of Pappu Vs State of M.P., (2006) 7 SCC

391 and Dhupa Chamar v. State of Bihar, AIR 2002

SUPREME COURT 2834 may also be profitably referred to.

When we examine the facts of the present case in the

backdrop of aforesaid legal position, we may note that in the

instant case, there was previous enmity between the appellant

and the deceased. At the time of the incident, the deceased

was sitting quietly on the embankment of his field, grazing

his cattle. The appellant suddenly arrived armed with an axe.

He inflicted a solitary chopped wound upon the neck of the

deceased breaking thyroid cartilage and cutting muscles and

main blood vessels. As a result, the deceased died

instantaneously. There was no exchange of words before the

assault between the appellant on one hand and the deceased

on the other. There was no provocation, much less grave and

sudden provocation, offered on the spot by the deceased.

There was no quarrel or fight. The appellant came determined

to kill the deceased and without uttering a word, struck a

blow with a dangerous weapon like axe, from the sharp side

upon a vital part of the body like neck. The blow was

delivered with sufficient force so as to cut the main blood

vessels of the neck. Thus, the offence was not committed

following a sudden fight or quarrel and in the heat of passion.

In these circumstances the appellant cannot be attributed

merely with the knowledge that his act may cause death. The

circumstances in which the blow was delivered clearly

betrayed the intention to cause death on the part of the

appellant. It was a cold blooded, premeditated murder. As

such, the act of the appellant would not fall under the ambit

of Section 304 (Part-II) simply because a solitary blow was

delivered.

It may be noted here that all of aforesaid authorities

cited on behalf of the appellant are distinguishable on facts.

In the case of Surinder Kumar (supra), Maharaja (supra) and

Ranjit Singh (supra) there was a sudden quarrel. In the case

of Abdul Majit (supra) the murder was not premeditated and

the appellant was given dagger by co-accused during quarrel.

The injury was also not sufficient in ordinary course of death;

whereas, in the case at hand, there is no evidence of any

quarrel or fight much less sudden quarrel or fight between the

appellant on one hand and the deceased on the other. As such,

the appellant derives no benefit from aforesaid authorities.

Learned counsel for the appellant has also placed

reliance upon the two authorities of our own High Court. The

first one is Siya Ram Vs. State of M.P. (Judgment dated

18.7.2003) passed in Criminal Appeal No. 55/1994 and

second one is Kadhori and another Vs. State of M.P.

(judgment dated 6.12.2005) passed in Criminal Appeal

No.929/1995. The facts and circumstances of the aforesaid

two cases are also different from the present one. In the case

of Siya Ram (supra) the conviction was altered from one

Section 302 of the I.P.C. to Section 304 (Part-II) because

there was a quarrel on account of use of ox by appellant

which belonged to the deceased. The intention to cause death

was also not discernible. In the case of Kadhori (supra) there

was a sudden quarrel and there was no intention to cause a

particular injury which could be sufficient in ordinary course

of nature to cause death. As such, these authorities also do not

come to the aid of the appellant either.

In these circumstances, it is absolutely clear that the

appellant could not be attributed merely with the knowledge

that his act was likely to cause death but it is obvious that he

had intention of causing death of the deceased. In these

circumstances, the trial Court has rightly held that the offence

would be punishable under Section 302 of the I.P.C. and not

under Section 304 (Part-I or Part-II) thereof, notwithstanding

the fact that a solitary blow was delivered.

In aforesaid circumstances, the Court is of the view

that no interference is warranted in the impugned judgment.

This appeal has no substance and deserves to be dismissed.

Consequently, this criminal appeal is dismissed. The

conviction of the appellant Pooranlal under Section 302 of the

I.P.C. and sentence of life imprisonment and fine in the sum

of Rs.1000/- imposed upon the him by the trial Court is

affirmed.