Sagan vs State Of Madhya Pradesh

S.K. Gangele, J.

Appellant has filed this appeal against the judgment dated 30.01.2008 passed by Session Judge, Chhindwara in Sessions Trial No. 156/2006. Appellant

was prosecuted for commission of offence punishable under Sections 302 and 325 of the I.P.C. Trial court held the appellant guilty for commission of

offence punishable under Sections 302 and 325 of IPC and awarded the sentence of life with fine of Rs. 2,000/- under Section 302 and 3 years under

Section 325. The Court further order the both sentences shall run concurrently.

Prosecution story, in brief, is that Aasamati Bai [since deceased], who was wife of appellant was residing in her house. On 11.01.2006 at 7

O’clock in the evening she was preparing food in the meanwhile, appellant came there and he abused the deceased and told her wife that why she

did not offer water to bull. Thereafter, he had inflicted injuries by axe on the person of the deceased. Complainant tried to save the deceased,

appellant also inflicted injuries on her. Deceased was admitted in District Hospital Chhidwada, she was treated there and discharged on 30.01.2006.

Deceased was died on 04.03.2006 after one and half month from the date of incident. She was buried on 05.03.2006. On 28.04.2006, father of the

deceased informed police, thereafter her dead body was taken out and post mortem was performed. Police arrested the appellant and filed charge

sheet against him for commission of offences punishable under Sections 302 and 326 of the IPC. Appellant pleaded innocence during trial and abjured

his guilt. Trial Court held him guilty for commission of offences punishable under Sections 302 and 325 of the I.P.C. and awarded the sentence as

mentioned in the impugned judgment.

Learned counsel for the appellant has submitted that even if the prosecution case is accepted as it is even then the offences committed by the

appellant would fall under Section 304 part I of IPC. Hence the appeal filed by the appellant be partly allowed.

Learned counsel for the State has submitted that in view of the injuries sustained by the deceased, trial Court has rightly convicted the appellant for

offence punishable under Section 302 of IPC and awarded proper sentence.

Memwati Bai (PW-1) is the mother of deceased. She deposed that appellant was living in my house. Subsequently, after some time I told the

appellant that he would arrange to live separately. Appellant was working as laborar. On the date of incident, deceased was cutting vegetables. I

heard the sound of cry of deceased then I went inside of the room and noticed that appellant had been inflicting blows by axe on the back of the

deceased. I asked from the appellant what he had done, then he had also inflicted blow by axe on my left leg. I became unconscious. I was taken to

Chhidwada Hospital where I became conscious. Deceased was also admitted in Chhidwada Hospital for a period of 18 days. After discharged from

the Hospital, deceased came to our house and after one and half month she was died. I lodged the report at the police, which is Ex. P-1.

Lalmati Bai (P.W.-2) is the sister of deceased, she deposed that I was at my house along with my mother. Appellant had beaten the deceased by

axe. My mother asked from the appellant that why he was beating the deceased, thereafter he had also beaten my mother. Deceased was admitted at

Chhidwada Hospital.

Gangaram (PW-3) is the father of the deceased. He deposed that I received information that there was quarrel at the home, thereafter, I returned

back the house and I came to the room and saw that appellant had beaten my wife and daughter, both were admitted at the Hospital. Deceased was

discharged from the hospital. Subsequently, she was died and She was buried in the village. Thereafter, I informed the police about the death of

deceased, then the dead body of the deceased was taken out by the police and she was medically examined.

Mahawati Bai (P.W.-4) is the neighbor. She deposed that after the incident she went to the house of deceased I noticed that both ladies were

laying unconscious. I called Kotwar, thereafter both the ladies were admitted in the Hospital. Witness of seizure turned hostile.

Investigating Officer Sarif Khan (PW-7) deposed that after the report of the incident, I had taken out dead body from the graveyard, thereafter

dead body was sent to post mortem.

Dr.V.K. Puriya (PW-8) performed postmortem of the deceased. He deposed that I noticed following injuries on the person of body of the

deceased:-

Fracture of right optical bone.

Fracture of right jaw.

Incised wound on the neck.

Depressed fracture of hip.

Depressed fracture of back (skepala) Cause of death of the deceased was septicemia.

Deceased was died due to aforesaid injuries.

Churaman Singh Baghel (PW-9) conducted investigation of the case.

Dr. L. N. Sahu (PW-11) examined injured Memwati bai, mother of the deceased. He deposed that I noticed following injuries.

Lacerated wound 3x1x2 cm. on the neck.

one lacerated wound 1x1/4 cm. left eye and there were some incised injuries.

There is also dying declaration of the deceased Ex. P-13 which was recorded by Tehsildar-D.K. Sharma (PW-13). He deposed that I recorded

the dying declaration of the deceased, in which the deceased stated that appellant had beaten her.

Ex. P-16 is the F.I.R., which was lodged, which is proved by PW-9.

Mother of the deceased PW-1 is the injured eye witness, she was present in the house. She deposed that the appellant had inflicted blow by axe

on the person of the deceased. She is a natural witness. Lalmati Bai (PW-2) is the sister of the deceased she also deposed that she was at home and

appellant inflicted blow on the person of deceased and injured her mother.

The Hon’ble Apex Court in the case of Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259 in regard to evidence of

injured witness has held as under:-

“The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been

extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is

generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is

unlikely to spare his actual assailant(s) in order to falsely implicate someone. ""Convincing evidence is required to discredit an injured witness"". (Vide

Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881, Malkhan Singh v. State of Uttar Pradesh, (1975) 3 SCC 311, Machhi Singh v. State of Punjab,

(1983) 3 SCC 470, Appabhai v. State of Gujarat, 1988 Supp SCC 241, Bonkya v. State of Maharashtra, (1995) 6 SCC 447, Bhag Singh v. State of

Punjab, (1997) 7 SCC 712, Mohar v. State of Uttar Pradesh, (2002) 7 SCC 606, (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC

270, Vishnu v. State of Rajasthan, (2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of Andhra Pradesh, (2009) 12 SCC 546, and Balraje v.

State of Maharashtra, (2010) 6 SCC 673).â€​

The Hon’ble Apex Court in the case of Jodhan Vs. State of Madhya Pradesh reported in (2015) 11 SCC 52 has held as under in regard to

evidence of interest witness :-

“The 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 noting has been elicited in the cross-examination 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€​

Memwati Bai (PW-1) is the interested witness and she is injured eyewitness. Lalmati Bai (PW-2) is another eyewitness. In our opinion, there

evidence is natural and reliable. Apart from this, there is a dying declaration of the deceased, which was recorded by Tehsildar, hence in our opinion

the trial Court has rightly held that the appellant had killed the deceased.

Now, next question is what offences the appellant has committed. Hon’ble Supreme Court in the case of Nankaunoo Vs. State of Uttar

Pradesh reported in (2016) 3 SCC 317 has held as under in regard to intention and motive :-

“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 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 case v. State of Punjab, 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 v. State of Haryana, (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 v. State of Punjab, 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 v. State of Punjab 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 under 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€​

The principle of law is that 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 and the injury was sufficient in the ordinary course of nature to cause death.

In the present case, deceased was in the hospital for a period of 18 days, she was discharged and after one and half month, she was died.

In view of the aforesaid facts of the case, in our opinion, the act of the appellant would fall under Section 304 part I of the IPC. There is sufficient

evidence against the appellant that he had caused injuries to PW-1, hence in our opinion, the trial Court has rightly convicted the appellant for

commission of offence punishable under Section 325 of the IPC and awarded proper sentence.

Appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial Court for commission offence under Section 302

of the IPC is hereby set aside. Conviction and sentence of the appellant under Section 325 of the IPC is hereby upheld. Appellant is convicted for

commission of offence punishable under Section 304 part I of IPC and is awarded sentence of R.I. 10 years and fine of Rs. 2,000/- in default, R.I. 6

months. The sentence shall run concurrently. Appellant is in jail since 24.03.2006. He has completed near about 11 years of the jail sentence. Hence,

the appellant has completed the jail sentence as awarded to him. Consequently, the appellant be released forthwith, if he is not required in any other

case.