Puthua @ Puthu @ Surendra vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 28.03.2009 passed in Sessions Trial No.187/2004. The appellant alongwith two other

accused persons were prosecuted for commission of offence punishable under Sections 294, 506-B, 302 read with 34 and 323 of Indian Penal Code,

1860 (hereinafter referred as 'IPC'). The trial Court convicted the appellant for commission of offence punishable under Sections 302 and 323 of

IPC and awarded sentence of life imprisonment and RI for six months alongwith fine of Rs.500/- and Rs.200/- with default stipulation RI for one

year and SI for one month respectively.

Prosecution story in brief is that on the date of incident i.e. on 26.11.2003, son of the complainant (PW-6) namely Deshraj Choudhary was

grazing cattle in a field. Adjacent to that field, there was field of accused Dulare Kotwar. Accused persons came there. They abused Deshraj

Choudhary and slapped him. Seeing this, complainant Smt. Kalli (PW-6) came there and asked the accused persons that why they had beaten her

son. Thereafter, they inflicted injuries to Smt. Kalli by lathies. Deceased, who is the father of complainant-Kalli, came there and the accused

persons had also beaten him by lathies. Report of the incident was lodged at the police station. The deceased was referred to District Hospital,

Satna. He was admitted in the hospital. Subsequently, on 01.12.2003, in the night, he died. Police conducted investigation and filed charge-sheet

against the appellant and other accused persons. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant

guilty for commission of offence punishable under Sections 302 and 323 of IPC and awarded sentence as mentioned above in the judgment.

Learned Amicus Curiae for the appellant has submitted that alleged eye witnesses are interested witnesses. There are major contradictions in the

evidence of the aforesaid witnesses. Hence, there is no sufficient evidence on record to hold the appellant guilty for commission of offence of

murder. In alternate, learned counsel has submitted that there was one injury on the head of the deceased, even if the statement of the deceased,

which was treated as dying declaration, be accepted, then the offence committed by the appellant would fall under Section 304 Part I of IPC.

Hence, the sentence awarded to the appellant be modified as already undergone because he has already undergone jail sentence of more than 10

years.

Learned Government Advocate for the State has submitted that the appellant was present on the spot. He had inflicted injury on the head of the

deceased. The injury was fatal in nature. Hence, the trial Court has rightly convicted the appellant for commission of offence punishable under

Section 302 of IPC.

There are three eye witnesses i.e. PW-4 Ranjeet Das, PW-5 Deshraj Choudhary and PW-6 Kalli Bai. PW-6 Kalli Bai is the injured eye witness.

She is the daughter of the deceased. PW-5 Deshraj Choudhary is the son of PW-6 and grandson of the deceased. PW-4 Ranjeet Das is the

husband of PW-6 and son-inlaw of the deceased.

PW-4 Ranjeet Das deposed that my son was grazing cattle.The appellant and other accused persons came there. They had been abusing my son

and beating him. Thereafter, my wife objected about the aforesaid act of the appellant and other accused persons. They had also beaten my wife.

They were armed with laties (sticks) and tangi (axe). Thereafter, my father-in-law (deceased) came to save my wife, they had beaten him also. I

went to the police station to lodge the report. Deceased was admitted in the hospital. He was died after 3-4 days of the incident.

PW-5 Deshraj Choudhary is the grandson of the deceased. He deposed that I was grazing cattle and the appellant and other accused persons

came there. Jhalla slapped me 3-4 times. My mother came there. She objected about the aforesaid act. They had also beaten her by lathies.

Thereafter, deceased (my grandfather) came there. They had beaten him also. Accused Dulare inflicted a blow by tangi and other accused persons

by lathies to the deceased.

PW-6 Kalli Bai is the daughter of the deceased. She is an injured eye witness. She deposed that my son was grazing cattle. Thereafter, the

appellant and other accused persons came there, they had been beating my son. I tried to save my son. Accused Jhalla and Babulal abused me.

They had beaten me by lathies. Jhalla, Babulal and other accused persons inflicted injuries to me by lathies. My father came there to save me.

Thereafter, Babulal inflicted a blow by lathi on my father and Jhalla inflicted another blow on my father by lathi. Appellant Putua inflicted a blow by

axe on the head of my father. He fell down. Then my husband came there. Accused persons ran away from the place. I lodged the report at the

police station, which is Ex.P9A. Deceased was admitted in the hospital at Satna where he died after five days.

PW-4 Ranjeet Das, PW-5 Deshraj Choudhary and PW-6 Kalli Bai are interested witnesses. PW-6 Kalli Bai is injured eye witness. The Apex

Court in the case of Jodhan vs State of Madhya Pradesh, (2015) 11 SCC 52 has held as under in regard to appreciation of evidence of related

witnesses:

 “26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it

is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it

ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek

corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives

and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has

been elicited in the crossexamination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in

their evidence warranting to treat the same as improbable or untrustworthy.â€​

PW-17 Dr. A. Siddiqui performed postmortem of the deceased. He deposed that there was one injury on the person of the deceased on the

middle of the head. There was fracture of left parietal temporal bone and there was blood clotting. The deceased was died due to aforesaid injury.

PW-12 Dr. D.P. Prajapati examined PW-6 (injured witness) Kalli Bai. He deposed that I noticed following injuries on the person of Kalli Bai:

Bruise mark on right shoulder and right scapula 4x1x1/2 inches.

Abrasion above right ankle bone 1/2â€​x1/2â€​.

Abrasion mark on right wrist 1/2â€​x1/2â€​.

Lacerated wound on right tibia 1/2â€​x1/2â€​x1/4â€​.

Bruise mark on left thigh 1½â€​x1½â€​

All the injuries were caused by hard and blunt object.

 He further deposed that on 26.11.2003, I examined Bhura son of Shri Vaishali Charmakar and noticed following injuries on his person:

Lacerated wound on the scalp 1â€​x1/2â€​x1/2â€​.

Bruise mark and swelling over left thigh 1½â€​x1½â€​. The injuries were caused by hard and blunt object.

PW-16 Rajendra Mishra is the Investigating Officer. He deposed that a lathi was seized from appellant Kutua (Putua) vide seizure memo Ex.P7

on his memorandum Ex.P5. He further deposed that I recorded statement of the deceased on 28.11.2003.

Ex.P24 is the statement of the deceased himself recorded by PW-16 Rajendra Mishra under Section 161 of Cr.P.C. It is mentioned in the

aforesaid statement that the accused persons had been beating my daughter Kalli and grandson Deshraj. I went there with the help of lathi and

asked from the accused persons that why they were beating them. At that stage, accused Kutua (present appellant) had taken my lathi and inflicted

a blow on my head. I fell down. Other persons had also beaten me.

From the statement of the deceased, which was recorded under Section 161 of Cr.P.C., this fact has been proved that appellant Putua had

snatched the lathi of the deceased and inflicted a blow on the head of the deceased. PW-4 Ranjeet Das did not mention the weapon from which the

appellant had caused injury to the deceased. PW-5 Deshraj Choudhary deposed that present appellant caused injury by axe to the deceased. From

the possession of the appellant, a lathi was seized. As per the evidence of doctor, who examined the deceased initially, there was lacerated wound

on the head of the deceased. Although the witnesses are interested witnesses, however, PW-6 is the injured eye witness, and from her evidence,

this fact has been proved that the appellant was present on the place of occurrence and he had caused injury to the deceased and he had also

beaten PW-6 Kalli Bai. From the statement of deceased Ex.P24, it is proved that the present appellant had snatched the lathi of the deceased and

he had caused one head injury to the deceased, due to which the deceased was died.

The Hon'ble Apex Court in the case of Mahavir Singh vs State of Madhya Pradesh, reported in (2016) 10 SCC 220 has held as under in regard

to reliability of evidence if there is contradiction between medical evidence and ocular evidence:

“22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect

that though the ocular testimony of a witness has greater evidentiary value vis-Ã -vis medical evidence, when medical evidence makes the ocular

testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far

that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See : Abdul Sayeed v . State of

M.P., (2010) 10 SCC 259]â€​

The Hon'ble Apex Court has held that where the medical evidence goes so far that it completely rules out all possibility of the ocular being true,

the ocular evidence may be disbelieved. From the aforesaid evidence, in our opinion, the trial Court has rightly held that the appellant had killed the

deceased.

Now, next question is this, what offence the appellant has committed?

As per the evidence, the grandson of the deceased was grazing cattle. Thereafter, the appellant and other accused persons abused him. They

had beaten the grandson (PW-5) and the daughter (PW-6) of the deceased and when the deceased went there, the appellant snatched his lathi and

inflicted a blow on the head of the deceased. The deceased was died on 01.12.2003 and the incident is dated 26.11.2003. Hence, in our opinion

there was no intention of the appellant to kill the deceased.

The Hon'ble Apex Court in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under in regard to exception 3 of

Section 300 of IPC:

 “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.'

 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 Codedesignedly 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€​

 12. 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€​

In view of aforesaid, in our opinion, the offence committed by the appellant would fall under Section 304 Part I of IPC. There is evidence

against the appellant that he had inflicted injuries to PW-6 Kalli Bai. Hence, the trail Court has rightly convicted the appellant for commission of

offence punishable under Section 323 of IPC.

Consequently, the appeal filed by the appellant is partly allowed. The conviction and sentence of appellant under Section 302 of IPC vide

impugned judgment is hereby set aside. The appellant is convicted for commission of offence punishable under Section 304 Part I of IPC. He is

awarded jail sentence of RI 10 years alongwith fine amount of Rs.2000/-, in default of payment of fine, he shall undergo further RI for six months.

His conviction and sentence under Section 323 of IPC vide impugned judgment is hereby affirmed. Both the sentences shall run concurrently.

The appellant was in jail during trial from 24.03.2004 to 04.11.2004 i.e. for a period of near about eight months. He is in jail from the date of

judgment i.e. 28.03.2009 upto now. He has completed near 10 years' actual jail sentence and more than 12 years' jail sentence including remission.

Hence, the appellant has completed the jail sentence as awarded by this Court. He be released forthwith, if he is not required in any other case.