Smt. Kamal Dixit vs Dharmendra

This appeal has been filed by the

appellants, being aggrieved by the judgment dated

14.07.1994, passed by Third Additional Sessions Judge,

Sehore in S.T. No.35/1994, whereby the appellants

have been found guilty for the offence under Sections

302 / 34 and 342 of the Indian Penal Code and have

been sentenced to life imprisonment and fine of

Rs.3,000/- under Section 302 / 34 of the I.P.C. with a

stipulation for 2 years rigorous imprisonment in case of

default and rigorous imprisonment for six months

under Section 342 of the I.P.C.

Another co-accused Hari Prasad was

juvenile on the date of incident, therefore his case was

referred to the Juvenile Court on 03.03.1994.

The prosecution case, in a nutshell is that

on 28.09.1993, at around 8 A.M. in the morning, the

appellants with common intention and armed with

lathi, assaulted Mangilal, who later-on succumbed to

the injuries.

According to prosecution, Gulab Singh (P.W.-

1), lodged a report at 2.45 P.M. on 28.09.1993 to the

effect that his son Mangilal had gone to see the field,

where he was assaulted and beaten up by the

appellants with lathi. Thereafter the appellants took

his son Mangilal and locked him inside the house of

appellant No.1 Narbada Prasad.

As per prosecution, the incident was

witnessed by Rajkuamr (P.W.-2), who came and

informed P.W.-1 Gulab Singh, who informed Karan

Singh ((P.W.-3), Patel of the village and they alongwith

Chowkidar and other villagers went to the house of

appellant No.1 Narbada and asked him to open the

lock, which the appellant No.1 refused to do and went

away. Deendayal (P.W.-4), thereafter broke the lock

and found the injured Mangilal mouning with agony.

According to P.W.-1 Gulab Singh, Mangilal, on being

asked about the incident, disclosed that on account of

taking corn kernel from the field, the appellants had

abused him and thereafter with an intention to kill him,

assaulted him with lathi. He has further stated that

hearing his cry for help, Rajkumar (P.W.-2), came to the

place of occurrence. Mangilal was taken to hospital by

Chowkidar Gangaram, Munnalal and Deendayal, when

enroute he succumbed to the injuries. According to

P.W.-1 Gulab Singh, due to old enmity with regard to

the land dispute with the appellants, they had

murdered his son, the deceased.

On the basis of Dehati Nalishi, FIR was

recorded and the criminal law was set into motion.

Spot map was prepared. The appellants were arrested

and on the basis of their disclosure statements, the

lathies were seized. The body of deceased was sent for

postmortem.

The postmortem examination of the body of

the deceased was performed by Dr. L.N. Namdeo (P.W.-

5 at 9.30 P.M. on 29.09.1993. The postmortem report

was submitted vide Ex. P-7, which noticed the

following injuries on the body of the deceased :-

(1) Large linear bluish contusion on the back size 13" x 1 1/4" oblique in direction from left to right

(2) Large bluish contusion 12" x 1 1/4" below injury No.1.

(3) Large bluish contusion passing from right to left crossing injuries 1 and 2, 11" x 1 1/4", there are other 6 to 7 contusions linear varying in size from 11" to 5" in length, but same width 1 1/4", these contusions have nearly filled the whole of area of back of chest and back of abdomen.

(4) There are similar contusions, multiple in number over the thighs, both sides on posterior aspect and whole of both hips back side, they are cutting each other.

(5) There is linear bluish contusion on right forearm 7" x 1 1/4" with fracture of both bones.

(6) Contusion over head right temporal region 6"x 1 1/2", contusion over head right temporal region, swelling

present, bluish 6"x1 1/2".

The cause of death has been recorded as Neurogenic shock and it is homicidal in nature.

In order to establish its case, the

prosecution mainly relied on the evidence of P.W.-1

Gulab Singh, P.W.-2 Rajkumar, P.W.-3 Karan Singh, P.W.-

4 Deendayal, and the evidence of Dr. L.N. Namdeo.

The appellants abjured the guilt and pleaded false

implication.

The trial Court placing reliance on the

evidence of eye witnesses and the oral dying

declaration of deceased and the postmortem report,

found the accused persons guilty of the charges under

Sections 302 / 34 and 342 of the I.P.C. and convicted

and sentenced them as aforesaid.

Shri Surendra Singh, learned Sr. Counsel in

support of the appeal has urged that the occurrence

took place on a sudden provocation on account of

taking corn kernel from the field of appellants. There

was no intention or premeditation to harm the

deceased, hence the conviction as done is not correct.

It is further submitted that in the facts and

circumstances of the present case, Section 302 of the

I.P.C. has no application and the appellants at the most

could be charged under Section 304 Part-II of the I.P.C.

Reliance has been placed on AIR 2004 SC 5064, AIR

2007 SC 432, AIR 1994 SC 1130 and (2006) 10

SCC 639, in support of his contentions.

Shri A.P. Singh, learned Govt. Advocate

appearing for the respondent/State has submits that

the trial Court has analysed the evidence in detail and

has correctly held that the appellants guilty for the

offences under Section 302 / 34 and 342 of the I.P.C.

Having heard the learned counsel for the

parties and having perused the record, it is observed

that Gulab Singh (P.W.-1), Rajkumar (P.W.-2), Karan

Singh (P.W.-3), Deendayal (P.W.-4), Batanlal (P.W.-6)

and Makhan (P.W.-7) had clearly stated that the

deceased was found locked inside the house of

appellant No.1. His whole body was bluish black in

colour and he was grievously injured and moaning with

pain. There is yet another evidence in the form of oral

dying declaration, which implicates the assailants, i.e,

the oral dying declaration made by the deceased

before the aforesaid witnesses, who have clearly

stated that deceased on being asked as to who has

caused the injuries, has clearly named Narbada

Prasad, Laxmi Narayan and Hari Prasad as assailants.

In Laxman Vs. State of M.P (2006) 11

SCC 316, the Supreme Court while interpreting and

analyzing the various clauses of Sections of 299 and

300 of the I.P.C . has referred to the observation made

by Vivian Bose, J in the case of Virsa Singh Vs. State

of Punjab AIR 1958 SC 465, hence:

These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh''s case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Sec. 300 of the Indian Penal Code, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be

present the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh''s case, even if the intention of 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 Sec. 300 of the Indian Penal Code clearly brings out this point.

In view of the medical evidence and the

deposition of Dr. L.N. Namdeo (P.W.-5), who found

multiple overlapping injuries on the whole area of

back, chest, abdomen, thighs and hips. There was

fracture of both forearms and contusion and swelling

over right temporal region. The death in the opinion of

the doctor was due to Neurogenic shock on account of

multiple injuries sustained by the deceased. The

number, severity and the manner in which the injuries

were inflicted on the person of the deceased and the

fact that thereafter the deceased was locked in the

house of appellant No.1, clearly establishes the

intention of the accused persons and they must be

treated to be fully in know of the consequences of their

acts including possible death.

Having considered all the relevant material

and having noticed the fact that there existed previous

enmity between the parties and the number and

severity of injuries, we are of the view that the case

laws relied on by the learned Senior Counsel for the

appellants are not applicable to the present set of

facts. We are also of the view that Section 304 Part-II

of the I.P.C. will not be applicable in the present case

and that the trial Court has rightly held the appellants

guilty of offence under Sections 302 / 34 and 342 of the

I.P.C.

In view of the aforesaid, we do not find any

illegality or perversity in the appreciation of the

evidence made or finding of conviction recorded by the

trial Court .

In view of the above, the appeal filed by the

appellants being meritless is accordingly dismissed.

The conviction of the appellants under Sections 302 / 34

and 342 of the I.P.C. is accordingly upheld and

affirmed.

Appellants are on bail. Their bail bonds shall

stand cancelled and they are directed to be taken into

custody forthwith to undergo the remaining part of jail

sentence.