Mohan and others vs State of Madhya Pradesh

S.K.Awasthi, J

The instant Criminal Appeal is preferred to challenge the judgment dated 15.6.2005 passed by Additional Sessions Judge, Ujjain in S.T.No.281/2004

whereby the trial court convicted the appellants for commission of offence punishable under section 302 read with section 34 of the IPC and

sentenced to undergo Life Imprisonment and fine of Rs.5,000/- each with default stipulation.

The facts necessary to be stated for disposal of the instant appeal are that on 29.4.2004, Shankarba-father of the complainant was grazing his goats

near the Chambal river at village Sanawada. Devisingh (PW-1) was also grazing his goats there. Kashiram(PW-4) went to give tiffin to Shankarba at

noon and he saw that smoke was rising on the bank of river. Appellant Mohan along with his brother-in-laws were preparing wine. After giving tiffin

to Shankarba, Kashiram returned back. Thereafter Mohan came to Shankarba and asked him to give male goat to eat but he refused to give. On that

count, appellants assaulted Shankarba, due to which he sustained injuries on his neck and head, resultantly he died on the spot. Devisingh (PW-1)

witnessed the incident and he informed about the incident to Satish Pandya. Satish Pandya intimated about the incident to his brother Praveen Pandya.

Praveen Pandya informed the incident to complainant Nathulal who had gone to Badnagar for marketing. He immediately came to the spot and found

that his father was lying dead. Nathulal went to the police station, Badnagar and informed the police regarding the incident. Sub-Inspector, R.Gaud

along with Head Constable Kailash came to the spot where he recorded Dehati Nalishi (Ex.P/15) at the instance of Nathulal. The Dehati Nalishi was

sent to P.S.Badnagar and on that basis, Head Constable registered the FIR (Ex.P/20) at crime No.115/2004 and also recorded Marg intimation under

section 174 of the Cr.P.C..

Sub-Inspector, R.Gaud inspected the spot and prepared spot map (Ex.P/16). He also prepared deadbody Panchnama (Ex.P/17) of the deceased

Shankarba. His deadbody was sent to Civil Hospital, Badnagar for postmortem. Dr. Devesh Kumar (PW-7) conducted the postmortem of the

deceased on 30. 4.2004 and gave report (Ex.P/14). R.Gaud seized the simple and blood stained soil from the spot, recorded the statement of the

witnesses and arrested the accused persons. On the basis of their disclosure statement under section 27 of the Evidence Act, wooden sticks were

recovered. The seized properties were sent to the FSL for chemical analysis. After completion of the investigation chargesheet was filed before the

JMFC, Badnagar, who committed the case to the Court of Sessions and ultimately it was transferred to I ASJ, Ujjain.

Appellants abjured their guilt. They took a plea that they are unnecessarily falsely implicated in the matter due to the previous enmity, however no

evidence was produced by the appellants in defense.

Trial court after considering the evidence adduced by the parties came to the conclusion that appellants in furtherance to the common intention

committed murder of Shankarba and held all the three accused guilty of the charge of the offence punishable under section 302 r/w section 34 of the

IPC.

According to the report received from Central Jail, Ujjain, during the pendency of appeal, appellant No.2-Suresingh has expired. Hence, the present

Appeal stands abated against appellant No.2-Suresingh and it is preferred at the instance of appellant No.1-Mohan and appellant No.3-Ganesh.

The Prosecution examined as many as 11 witnesses to establish its story.

Learned counsel for appellants argued that impugned judgment suffers from several infirmities which are sufficient to set aside the same. He

further submits that trial court has not appreciated the prosecution evidence in proper manner as there are material contradictions and discrepancies in

the statement of the prosecution witnesses. Lastly it has been argued that appellants were not having the intention to commit murder of deceased

Shankarba. The incident has taken place all of a sudden without any premeditation. In these circumstances, the conviction made by the trial court

under section 302 of the IPC be converted into section 304(II) of the IPC.

On the other hand, learned counsel for State supported reasoning of the learned trial court and submitted that there is overwhelming evidence

available against the present appellants, which is sufficient to uphold the conviction by the trial court.

We have duly examined the record and have considered the rival contention canvassed by both the parties.

Before venturing into the rival contentions, it is to be considered as to whether the death of the deceased was homicidal or not and whether the

injuries caused to Shankarba are sufficient in ordinary course of nature to cause death. In this regard the evidence given by Dr. Devesh Kumar (PW-

7) is pertinent, who performed the postmortem of the body of the deceased and gave the report (Ex.P/14). He found the following injuries on the body

of the deceased :-

face of the deceased was swelled and puffy. He had lacerated wound of 3x2 inch at left posterior skull. His nose bleeded. Blood mixed secretion

from nose to jaw and on table. His neck had a black swelling of 3x 5 cm. around neck and spread upto upper part of chest. His skin had multiple

blister all over body. On dissection, trachea and bones were ruptured and bones were fractured also.

According to the opinion of Dr. Devesh Kumar, the cause of the death of the deceased was cardio-respiratory arrest due the fracture and

separation of trachea with crush, Cervical vessels. Since crush injuries and fractures were found in the skull and neck of the deceased and such

injuries can neither be caused by the deceased himself nor they be caused in any manner, it is proved that death of the deceased was homicidal in

nature.

In the examination-in-chief of eye witness, Devisingh (PW-1) he has categorically stated that 11 months ago, at about 12.00-1.00 pm he was

grazing cattle of his employer in the forest of village Sanavadia. At that time appellants were preparing wine in the bank of the river. Appellant Mohan

asked Shankarba for a male goat to eat. On his refusal, appellants dragged him and beat him. They also tied knob on his neck and caused injuries by

wooden stick. He ran away from the spot and intimated the incident to his employer, Satish. The test identification parade of the accused persons was

arranged in which he identified the appellant Suresingh.

Satish Chandra Pandya (PW-2) deposed that Devisingh was grazing his cattle. About 5-6 months ago, Devisingh came to him and informed that

Mohan and other persons killed Shankarba by throttling. Then he went to the spot where he saw that Shankarba sustained injuries on his neck and

blood was oozing from his head.

Then he returned back to his brother, Rajendra.

Kashiram (PW-4) stated that Shankarba was his father-in-law. Seven months ago he came to his maternal house to know about the health of his

mother-in-law. He remained stayed there for one and half hours. Then at the request of his wife, he went to the forest to give tiffin to his father-in-

law Shankarba. At that time Shankarba was sitting under the tree and goats were grazing. At that time Devisingh was also present there. After

handing over him tiffin, he saw that smoke was arising on the bank of the river. Then he went there and found that Mohan along with his brother-in-

law and co-brothers were preparing wine and they were also consuming liquor. After that he came back to the house. At about 2.00 p.m. Satish

Pandya informed him that Shankarba has been killed. When he reached to the spot, he found that deadbody of his father-in-law was lying.

Nathuram (PW-9) testified that 7 months ago at 9. 00 am, his father-Shankarba went for grazing goats. On that day he went to Badnagar for

marketing, where Rajendra and Praveen Pandya came and told him that accused persons murdered his father. Then he came to the police station,

Badnagar and lodged the report (Ex.P/15). When he reached to the spot along with police personnel, he saw that deadbody of his father was lying. He

sustained injuries on his head and neck and blood was also oozing. Devisingh, who witnessed the incident informed him that Mohan, Suresingh and

Ganesh killed his father because he refused to give them male goat without paying money. Police prepared the spot map (Ex.P/16) and also made

Lash Panchnama (Ex.P/17) of Shankarba.

As per statement of the witnesses, the incident took place at about 1.00-2.00 p.m.. The incident was reported to the police at about 15.50 pm

whereas the police station was situated 14 kms. away from the spot. The incident had taken place in a forest and after receiving information regarding

murder of his father, Nathulal who was at Badnagar, reached to the police station and reported the matter to the police. Looking to these

circumstances, it is clear that FIR was lodged without causing any delay.

Devisingh, the sole eye witness of the incident narrated in his examination-in-chief how the incident had happened. Although, Devisingh-child

witness was 13 years at the time of incident, however nothing has come in his cross-examination to suggest that he is a tuted witness and he has given

his statement against the appellants at the instance of his employer, Satish Pandya.

In the FIR lodged by Nathulal, the entire incident is chronologically narrated which also finds place in the examination-in-chief of Nathulal and

corroborated by the statement of the eye witnesses Devisingh (PW-1) and medical evidence given by Dr. Devesh Kumar (PW-7). In these

circumstances the presence of Devisingh at the scene of crime cannot be disbelieved. Although in the cross-examination of Satish Chandra Pandya,

the counsel for the appellants gave a suggestion that there was dispute of this witness with the appellants regarding extraction of sand from the river

but he denied the aforesaid suggestion. The appellants have not adduced any evidence to prove the enmity with Satish Chandra Pandya, therefore the

defence taken by the accused persons is devoid of any base, thus trial court has rightly rejected the same.

Learned counsel for appellants submitted that trial court has failed to appreciate the evidence properly. There are discrepancies in the statement of

the witnesses. The contention raised by the counsel in our opinion has no substance as the discrepancies pointed out by the learned counsel are not so

material which affect the credibility of the evidence of the witnesses and on the basis of which the judgment of conviction can be reversed.

The Hon. Apex Court in the case of Baijnath and another Vs. State of M.P., ILR (2009) MP 3041 has held :-

“5. We have given very careful consideration to the matter, more particularly, as we are dealing with a judgment of reversal. It is true that the trial

court has given certain findings with respect to the evidence which had led to the acquittal, but we are of the opinion that some of the findings

recorded by the trial Court were unjustified and unrealistic. The broad principles dealing with appreciation of evidence in a criminal matter have been

laid down in Bhoginbhai Hirjibhai vs. State of Gujarat [AIR 1983 SC 753], and we respectfully produce the same:-

“...........Over much importance cannot be attached to minor discrepancies.

The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is

replayed on the mental screen.

(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image

on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall

the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the

moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends

on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.

A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of

nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious

mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and

honest account of the occurrence witnessed by him- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue

importance. More so when the all important ""probabilities-factor"" echoes in favour of the version narrated by the witnesses.â€​

The next contention advanced by learned counsel for the appellants is that trial court ought to have convicted the appellants under section 304(I) or

304(II) of the IPC, in view of the fact that there was no premeditation and incident occurred due to sudden quarrel, but we do not agree with the

submission made by learned counsel for appellants for the reason firstly it is not a case of single blow but the deceased Shankarba sustained injuries

on his vital part of the body ie.. head, face and neck, due to which he succumbed on the spot. and in that event the intention of murder can definitely

be attributed to the appellants. In this context, learned counsel for appellants has placed reliance upon the judgment of Hon.Apex Court in the matter

of Tularam Vs. State of M.P., 2018(5) Supreme 140 and Bivash Chandra Debnath Vs. State of M.P., (2015) 11 SCC 283 wherein it was held that

there was sudden fight between the rival parties and no premeditation was on part of accused persons to commit murder, the conviction was

converted from sec.302 r/w 149 to that under sec.304 Part I r/w Sec.34 IPC.

In case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465, the Hon. Apex Court has held as under :-

“(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 “thirdly"" ;

First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or

that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder

under S.300 , “thirdly"". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause

an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not

even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found

to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury

is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in

the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and

they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.â€​

The Hon'ble Apex Court in Mahesh Balmiki vs. State of MP, 2000 (1) Vidhi Bhasvar 1, has held as under:-

“9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow Section 302 I.P.C. is

not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other

cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each

case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused

and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender

and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the

appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to

kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all

probability cause death or such bodily injury as is likely to cause death.â€​

Taking this view of the matter, we are of the considered opinion that trial court has not committed any error in convicting the appellants for the

offence under section 302 r/w sec. 34 of the IPC, therefore this Appeal is hereby dismissed by affirming the conviction and sentence passed by the

trial court.

Appellants Mohan and Ganesh are on bail. Their bail bonds are cancelled. They are directed to appear before the trial court on or before

24.09.2018 so as to undergo the sentence awarded to them. If they fail to do so, the trial court shall take necessary steps including issuance of warrant

of arrest for their production before the Court so as to undergo the sentence awarded to them.

Copy of the judgment be sent to the trial court along with record for information.