Moti lal Singh vs State of Madhya Pradesh

This appeal has been preferred assailing the judgment dated 29/08/2005 passed by the Ist Additional Sessions Judge, Rewa, in Sessions Trial

No.10/2007 whereby the appellant has been convicted under section 302 of IPC for committing murder of one Balmik Prasad Mishra and

sentenced him to undergo R.I. for life imprisonment along with fine of Rs.200/- and in default further imprisonment of 1 month.

The brief facts giving rising to this appeal are that in Rewa Collectorate there is Hanuman Temple where deceased Balmik Prasad Mishra was

worshiping on 19/10/2006, the appellant being a saint and having ""Trishul"" came to the temple and with the permission of the deceased taken

shelter in the temple in the night and on the next day (20/10/2006) when the appellant was not intended to go back the deceased asked him to go

and leave the temple and suddenly altercation took place between them. The appellant started abusing the deceased and also said that he would

kill him and thereafter the appellant assaulted the deceased with ""Trishul"" and caused injury on his chest. At that time Anjani Kumar Pandey (PW-

3), Dinesh Kumar Goswami (PW- 10) and Anil Kumar Mishra (PW-11) were present. The deceased fell down and became unconscious. Anjani

Kumar Pandey (PW-3) lodged Dehati Nalishi Ex.P-7 to police station Civil Lines, Rewa and the deceased was shifted to the hospital where after

few minutes he died. In police station Civil Lines Rewa initially Crime No. 621/2006 under section 307 of IPC was registered against the

appellant. During the investigation autopsy on the body of the deceased was conducted by Dr. S.K Pathak (PW-6). According to the Postmortem

Report Ex.P-13 the cause of the death was homicidal and the injury was sufficient to cause death in ordinary course of nature. On 20/10/2006 the

appellant was arrested as per arrest memo Ex.P-11 and from his possession ""Trishul"" was seized as per seizure memo Ex.P-10, which was sent to

the FSL and as per FSL Report Ex.P-20 on the ""Trishul"" presence of human blood was confirmed.

After completion of the investigation, the charge sheet was filed under section 302 of IPC before the Chief Judicial Magistrate, Rewa, who

committed the case to the Session Judge, Rewa and after receiving the case on transfer, the 1st Additional Session Judge, Rewa tried the case.

During trial against the appellant charge for the offence punishable under sections 302 of IPC was framed. He abjured his guilt and claimed to

be tried. His defence is that he has been falsely implicated in this case only on suspicion and in his defence no evidence has been adduced. Learned

trial court after the trial convicted the appellant for commission of the offence punishable under section 302 of the IPC and sentenced him as

mentioned earlier.

In this case the finding of the trial court with regard to nature of the death has not been challenged. Dr. S.K Pathak (PW-6) has categorically

stated that on 20/10/2006 he conducted autopsy on the person of the deceased and he prepared Postmortem report Ex.P-13 and there was one

stab wound on the left side of the chest and on dissection left lung were found punctured and also damaged heart and the injuries were antemortem

and injuries were caused by sharp and pointed object and was sufficient to cause death in ordinary course of the nature. The aforesaid statement of

the medical expert has remained unimpeachable. Hence there is no hesitation to hold that the nature of death of the deceased was homicidal and

the deceased died on account of injuries sustained to his right chest caused by sharp and pointed object on 20/10/2006.

So far finding of conviction of the appellant is concerned, the trial court has placed reliance on the statement of eyewitness Anjani Kumar

Pandey (PW-3) and recovery of ""Trishul"" from the possession of the appellant on which presence of human blood was confirmed. So far other

eyewitness Dinesh Kumar Goswami (PW-10) and Anil Kumar Mishra (PW-11) are concerned they have not claimed to be eyewitness of the

incident and prosecution has declared them hostile.

The aforesaid findings of the learned trial court has been assailed on the ground that Anjani Kumar Pandey (PW-3) is also not an eyewitness

and his statement is not creditable and there is no other corroboratory evidence to support the testimony of Anjani Kumar Pandey (PW-3) and the

appellant is entitled to get benefit of doubt. On behalf of appellant further submission is made that the facts and circumstances of the case suggest

that incident has taken place suddenly on account of altercation between the deceased and appellant without any premeditation in the heat of

passion and only one blow was dealt with. If the appellant had an intention to kill the deceased then he would have dealt with further blow.

Therefore appellant''s conviction under section 302 of IPC is required to be modified to conviction under section 304 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 despite of non-supporting of the

prosecution case by Dinesh Kumar Goswami (PW-10) and Anil Kumar Mishra (PW-11) the prosecution case has been proved by the statement

of Anjani Kumar Pandey (PW-3), who is an independent witness have no relationship with the deceased and grudge with the appellant and he

categorically stated that on 19/10/2006 when he was in temple, the appellant came to the temple and asked for permission to stay in the temple

and the deceased allowed the appellant. On the next day near about 10 o''clock when deceased asked the appellant to leave the temple, the

appellant started abusing the deceased and the deceased was pacifying the appellant and the appellant refused to come out from the temple and

suddenly attacked on the deceased with the ""Trishul"" on his chest and from the injuries blood was flowing and deceased became unconscious and

thereafter he informed to the police authorities and lodged Dehati Nalishi Ex.P-7 which has been proved by S.K Mehra, Sub Inspector (PW-4).

S.K Mehra, Sub Inspector (PW-4) has also stated that on the same day he arrested the appellant and prepared arrest memo Ex.P-11 and

also seized one trishul from the possession of the appellant and prepared seizure memo Ex.P-10 and seized articles were sent to the FSL vide

Ex.P-12. According to the FSL report on the ""Trishul"" human blood was found confirmed and about this circumstance there is no explanation of

the appellant. As mentioned earlier Anjani Kumar Pandey (PW-3) is an independent witness and there is nothing in his cross examination to

suspect on his testimony. His statement has got corroboration from the Dehati Nalishi Ex.P-7 and also got corroboration with the medical evidence

and recovery of human blood stained ""Trishul"" from the possession of the appellant. In such circumstance, the testimony of Anjani Kumar Pandey

(PW- 3) is sufficient to prove the fact that the appellant assaulted the deceased and caused aforesaid deadly injury.

The objection of the learned counsel for the appellant is that other eyewitness Dinesh Kumar Goswami (PW-10) and Anil Kumar Mishra

(PW-11) have not supported the statement of Anjani Kumar Pandey (PW-3). Therefore statement of Anjani Kumar Pandey (PW-3) can''t be

relied. This contention have no substance as there is no law that if other eyewitnesses have became hostile then the eyewitness supporting the

prosecution case can''t be relied. In this case Anil Kumar Mishra (PW-11) has supported the prosecution version stating that after the incident he

rushed to the spot where there was crowd and people were saying that the appellant had assaulted the deceased with the trishul and this statement

has not been challenged during the cross examination. The aforesaid statement of the witness is admissible. Hence strengthen the creditability of the

testimony of Anjani Kumar Pandey (PW-3).

In view of the aforesaid discussion, we are of the view that learned trial court has not committed any error in coming to the conclusion that the

appellant assaulted the deceased with the trishul and caused the aforesaid injury which lead to his death. Hence we also confirm the aforesaid

finding.

Now the crucial question is that whether the act of the appellant come into purview of the murder or causing culpable homicide not amounting

to murder.

Learned counsel for the appellant has contended that the incident was taken place suddenly without pre-meditation when altercation took

place on account of dispute to leave the temple immediately. Being a saint the appellant having trishul in ordinary course of custom and he dealt

with only one blow and not made second attempt having opportunity of doing it. This conduct shows that he had no intention to kill the decease

and in the circumstance it can''t also be said that he acted unusually or in cruel manner or otherwise took undue advantage. There was no previous

enmity between the deceased and the appellant. The cause of the dispute was very trivial. In such circumstance, the appellant''s case come in

purview of exception 4 of Section 300 of IPC. Hence hardly he can be convicted under section 304 Part I of the IPC. The learned counsel for the

appellant has placed reliance on the judgment of the Apex Court in the case of Keshavlal Vs. State of Madhya Pradesh (AIR 2002 SC 1221), in

which relevant paragraphs are 5 and 6, which are as under:-

In the facts and circumstances of the case we find that a usual brawl between the persons living as husband and wife resulted in the death of the

deceased. There is nothing on record to show that the accused had pre-planned the execution of the offence. It is admitted even by the

prosecution witnesses that the appellant had come unarmed at the residence of the parents of the deceased and after altercation he picked up a

kitchen knife from that house by which he inflicted one injury on the person of the deceased. It appears that the appellant committed the offence

without pre-meditation in a sudden fight, in the heat of passion upon a sudden quarrel which was not provoked by him. It has also come on record

that the appellant was not taking any undue advantage during the occurrence. The offence cannot be said to have been committed in a cruel or

unusual manner. The appellant accused was, therefore, entitled to the benefit of Exception 4 of Section 300 of the Indian Penal Code. The High

Court, in its judgment, did not consider this aspect of the matter and despite finding that the occurrence had taken place without pre-meditation

and in the heat of passion opted not to advert to any of the exceptions of Section 300 IPC. The High Court only dealt with Clauses 2, 3 and 4 of

Section 300 to hold that the appellant was guilty of murder without noticing that culpable homicide would be murder only if the action of the

accused does not fall within the ambit of any of the exceptions attached to the section. Even though the appellant was found to be guilty of culpable

homicide, yet because he was entitled to the benefit of Exception 4, the crime committed by him would be culpable homicide not amounting to

murder, which is punishable under Section 304 IPC and not Section 302 IPC. The judgment of the High Court is, therefore, required to be

modified to that extent.

Under the circumstances, the appeal is partly allowed by upholding the order of the High Court in so far as it has set aside the order of acquittal

passed in favour of the appellant but the impugned judgment is modified to the extent that instead of Section 302 IPC, the appellant is convicted

for the commission of offence under Section 304 (Part I). Upon his conviction for the aforesaid offence, the appellant is sentenced to undergo

imprisonment for 10 years and to pay a fine of Rs. 1,000/-. In default of payment of fine, he shall undergo a further rigorous imprisonment of one

year.

Learned counsel for the appellant has also placed reliance on the judgment of the Apex Court in the case of Hari Ram Vs. State of Haryana

(AIR 1983 SC 185) and relevant paragraph is 3 which is as under:-

The only contention of learned counsel for the appellant before us is that the facts do not make out an offence under section 302 against the

appellant and that a conviction under the second part of S. 304 is called for instead. We agree with learned counsel. It does seem that in the heat

of altercation between Ran Singh on the one hand and the appellant and his comrades on the other, the appellant seized a jelli and thrust it into the

chest of Ran Singh. It will be noted that this was preceded by his remark that Ran Singh must be beaten to make him behave. Only one blow was

struck by the appellant at Ran Singh. On the evidence it does not appear that there was any intention to kill Ran Singh. We are, therefore, satisfied

that the conviction under S. 302 cannot be sustained and that, on the contrary, the facts make out an offence under the second part of Section

304.

Learned counsel for the appellant has also placed reliance on the judgment of the Apex Court in the case of Pulicherla Nagaraju Vs. State of

A.P (2006) 11 SCC 444, in which the Apex Court has examined the issue as to what relevant factors should be kept in consideration while

deciding the question as to whether the case in hand falls under section 302 or section 304 Part I or Part II of IPC. The relevant para is 29, which

is as under:-

Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls

under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children,

utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like

revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact,

there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty

for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder

punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting

to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a

few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or

was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v)

whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there

was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and

sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury

has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above

list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which

may throw light on the question of intention. Be that as it may.

Having considered the facts and circumstance of the case and law discussed above, if we apply the aforesaid principle of law on the proved

facts in this case, we find that in this case the appellant should have been convicted for the offence punishable under section 304 Part I of IPC

instead of section 302 of IPC. Hence, 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 I of IPC and sentence him to already undergone period of R.I for

10 years as from the record it appears that the appellant is in custody since 20/10/2006. He is directed to be released forth with, if not required to

be detained in any other case. 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.