Suma S/O Mahgaliya Bheel vs State Of Madhya Pradesh

S.C. Sharma, Justice:

The present Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure (hereinafter referred as Cr.P.C.) and is arising out of the

judgment of conviction and sentence dated 25.01.2007 passed by the learned II Additional Sessions Judge, Fast Track, Jobat in Sessions Trial

No.36/2006, wherein the present appellant has been convicted under Section 302 of the IPC and has been sentenced to undergo R.I. for Life along

with fine or Rs.250/-and further three months rigorous imprisonment in default of payment of fine. The present appellant has also been convicted

under Section 323 of the IPC and has been sentenced to undergo three months rigorous imprisonment along with fine of Rs.100/-and further one

month rigorous imprisonment in default of payment of fine.

As per the prosecution case, on 22.11.2005 at about 10:00 am, complainant Jhangu was at the house of deceased Vesaliya and Vesaliya told him

that he has to pay some money to one Nahar Singh and to pay the money, they went to village-Girdha. While they were returning back from village-

Girdha, they met Suma and Loola near the Pipal tree situated in the field of Gajariya at Badi Mirya Bat, where Suma started demanding money from

Vesaliya to buy liquor and when the money was not given by Vesaliya, Suma (accused) started assaulting Vesaliya on his head and when Jhangu tried

to intervene, Suma gave one blow to Jhangu, and thereafter, Suma lifted stone and caused injuries with the stone to Vesaliya. Thereafter, Suma ran

away with the wooden stick (dinga). The incident was also witnessed by one Shav Singh, who was grazing his cattle nearby field and Jhangu

(complainant) has told about the incident immediately to Ratu, Mohali (mother of the deceased) and to Kalu Jahariya and they immediately went to the

police station and lodged a report at Crime No.205/2005 for offences under Sections 302 and 323 of the IPC.

The undisputed facts reveal that the Dr. Fate Singh (P.W-8) in his examination-in-chief has stated that on 23.11.2005, he was posted at Primary

Health Center, Bhabhra and dead body of Vesaliya was brought at about 10:15 am for postmortem. He has stated that there was lacerated wound

over the left parietal region measuring 5 x 3 inches and parietal bone was in two small pieces. There was rupture of brain material and on the same

side, there was another injury measuring 4 x 2 inches at the lower jaw and all the aforesaid injuries was caused by hard and blunt object. As per the

doctor, death of the deceased has occurred on account of the injury caused on parietal organ i.e. brain. Postmortem report is Exhibit-P/2, which was

duly proved during the trial. The doctor has also categorically stated that the injuries have been caused by wooden stick and by the stone, which was

shown to him and which was solid piece of wood.

Dr. Suresh Pardesi (P.W-11), who has initially examined the deceased, has also reported the injuries measuring ½ x ½ inch, which was caused

by hard and blunt object.

In the present case, there is an eye-witness Jhangu/complainant (P.W-1) and he has categorically stated that while they were returning from

village-Girdha, they were stopped by Suma and Suma assaulted the deceased by dinga (wooden stick). He has stated that Suma has also assaulted

him on account of which, he has received some injury and he was the person, who has lodged the F.I.R. He has categorically stated that the report

was lodged by him. In defence, the same witness was asked a question in respect of the loan given by Suma to Lula and he has categorically stated

that he was not aware of any such transaction.

Lula (P.W-2) was also examined before the trial Court and he has also stated that Suma assaulted Vesaliya first by dinga (wooden stick) and then

by stone.

Shav Singh (P.W-10), who was also examined before the trial Court and he has been declared hostile, as he has stated before the trial that he

doesn’t know as to how Vesaliya received injuries.

Mohali (P.W-3), who is the mother of the deceased Vesaliya, has categorically stated before the trial Court that the deceased Vesaliya and Jhangu

went to village-Jhangu and she was informed by Lula (P.W-2) that Vesaliya has been assaulted by Suma first by dinga (wooden stick) then by stone

and his dead body of lying near the field.

Kalu (P.W-4) and Johariya (P.W-6) have also stated before the trial Court that Lula (P.W-2) has informed them about the incident and assault

resulting in death of the deceased Vesaliya.

Nahar Singh (P.W-12) has not supported the case of the prosecution.

Kali Bai (P.W-7), who the wife of the deceased, has also supported the prosecution case.

R.P. Rana Sub-Inspector (P.W-9), who has lodged the F.I.R., has also supported the prosecution case and he has categorically stated that he has

lodged a report at Crime No.205/2005 and has recorded the statement of witnesses under Section 161 of the Cr.P.C. He has seized soil from the spot,

lungi of the deceased, stone, which was used in the crime etc. etc. He has also stated that he has arrested the accused and prepared Giraftari

Panchnama (Exhibit-P/7) and memorandum (Exhibit-P/8) on the basis of which, recovery of the wooden stick has also been proved. Exhibit-P/9 is the

siezure memo in respect of the stick. He has stated that statement of witnesses were recorded by him.

In the present case, following injuries were sustained by the deceased Vesaliya, as reflected from the postmortem report:-

“Cold dead body eye closed, mouth partially opened rigar mortis present both upper & lower extremity Injury Externally â€" Lacerated wound over

the parietal region of skull size 5 x 3 inches Left Side.

Injury Internally â€" Fracture of parietal bone in multiple pieces at the same same size 2 side.

Rupture of parietal lobe of brain at the same side (left) Fracture of lower Jaw in left side 4 x 2 inches All injury caused by the hard and blunt object.

Anti motem is mature.â€​

So far as the external injury is concerned, there was lacerated wound over the parietal region of skull measuring 5 x 3 inches in left side. So far as

the internal injury is concerned, there was fracture of parietal bone in multiple pieces, rupture of brain and fracture of jaw. All the injuries were caused

by hard and blunt object and they were sufficient to cause death.

In the present case, most important aspect is that the present appellant is in jail since 25.01.2007, there was no animosity between the present

appellant and the deceased and the incident took place all of a sudden, as revealed from the statement of eye-witnesses that Vesaliya was first

assaulted by dinga (wooden stick) and later on by stone. The complainant Jhangu was also assaulted by dinga (wooden stick). The eye-witness

Jhangu (P.W-1) has categorically stated that the present appellant has started demanding money for liquor and as the money was not given to him, he

assaulted the deceased. In the present case, the present appellant is a tribal and the incident has taken place between the tribal, which has resulted in

death of the deceased.

Section 304 of the IPC reads as under:-

“304. Punishment for culpable homicide not amounting to murder.â€"Whoever commits culpable homicide not amounting to murder shall be

punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,

if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with

imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is

likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.â€​

In the present case, there was no intention on part of the present appellant to cause death of the deceased, as reflected from the evidence. In the

case of Nankaunoo v/s State of Uttar Pradesh (2016) 3 SCC 317, the apex Court in paragraphs 11, 12 and 13 has held as under:-

“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’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)

“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.â€​ 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 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.

Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1-1/2†x

1-1/2†on the back and inner part of left thigh, six gunshot wounds of exit each 1/3†x 1/3†in size in front and middle left thigh. Due to the

occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand

and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly

establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would

be murder, if it is sufficient in the ordinary course of nature to cause the death. We find substance in the contention of the learned counsel for the

appellant the injury was on the inner part of left thigh, which is the non-vital organ. Having regard to the facts and circumstances of the case that the

gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact

that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of

any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury

and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of

the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part 1 IPC.â€​

In light of the aforesaid judgment, as there was no intention on part of the present appellant to cause death of the deceased, the conviction of the

present appellant under Section 302 of the IPC is certainly unsustainable.

The apex Court in the Case of Prabhakar Vithal Gholve v/s State of Maharashtra (2016) 12 SCC 490 has again dealt with Sections 302 and 304 of

the IPC. In the aforesaid case, the deceased fell down on account of stick blow resulting into injuries on head and fracture of skull and it was a case

of sudden fight without premeditation.

In the case of Jagdish v/s State of Haryana (2016) 13 SCC 148, which was a case of free fight between two sets of relatives in street and death

has occurred due to the lathi blow. The apex Court after taking into account the injuries, has uphled the conviction of the appellant under Section 304-

II and 323 of the IPC. Paragraphs 15 to 17 of the aforesaid judgment reads as under:-

“15) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.

16) It is a settled principle of law that this Court cannot appreciate the entire evidence de novo in a routine manner while hearing the criminal appeal

and that too when the conviction is based on concurrent findings of two courts. It is only when this Court comes to a conclusion that the impugned

finding though concurrent in nature is wholly arbitrary, unreasonable or/and perverse to the extent that no judicial mind of average capacity can ever

record such conclusion, the Court may in appropriate case undertake the exercise of appreciating the evidence to the extent necessary to find out the

error.

17) In this case, we have not been able to notice any arbitrariness or/and unreasonableness in the concurrent finding of the two courts below inasmuch

as the learned counsel for the appellant was not able to point out any kind of illegality in the finding, which would persuade us to re-appreciate the

entire evidence.â€​

In light of the aforesaid judgment, keeping in view the totality of the facts and circumstances of the case and also keeping in view that there were two

injuries, one caused by dinga (wooden stick) and one caused by the stone over the body of the deceased and one injury was caused to the

complainant, the present criminal appeal stands partly allowed. As there was no intention nor any motive and the fight took place all of a sudden and

the appellant assaulted the deceased first by dinga (wooden stick) then by stone when the deceased refused to give money, which the accused was

demanding to buy liquor and as the fight took place all of a sudden, the conviction of the present appellant under Section 302 of the IPC deserves to be

set aside and is accordingly, set aside, however, he is convicted under Section 304-II of the IPC. His conviction under Section 323 of IPC is hereby

upheld. His sentence of life imprisonment imposed under Section 302 of IPC is set aside and instead, he is convicted for 10 years rigorous

imprisonment under Section 304-II of the IPC. As the appellant has already completed 12 years of rigorous imprisonment, he be released from jail

forthwith. This Court is not imposing any fine upon the appellant, as he is a tribal and he doesn’t have any source of income, as informed by

learned counsel for the appellant, who has appeared through Legal Aid Services Authority.

With the aforesaid, the present Criminal Appeal stands disposed of.

Certified copy as per rules.