Tulsiram alias Kalli vs State of Madhya Pradesh

Dharmadhikari, J.

These appeals are inter-linked having arisen out of a common judgment dated 21/4/2011 passed by Additional Sessions Judge, Senvdha, District Datia

in S.T. No. 21/2010, whereby appellant Tulsiram has been convicted under section 302 of the IPC and sentenced to undergo imprisonment for life

with a fine of Rs.2000/-, in default to suffer R.I. for 3 months and for the offence under section 30 of the Arms Act, he has been sentenced to

undergo R.I. for 6 months with fine of Rs.500/- in default to suffer R.I. for 1 month, with the direction that his custodial sentences shall run

concurrently. Appellant Narayan has been convicted under section 25(1B)(a) of the Arms Act and sentenced to undergo R.I. for 1 year with fine of

Rs.1000/-, in default to suffer R.I. for 3 months.

By that judgment only, the trial court has acquitted appellants Tulsiram, Narayan and co-accused Pappu alias Mahendra of the offences punishable

u/Ss. 302 read with 34, 323 read with 34 (on two counts) and 294 of the IPC.

Prosecution story, in brief, is that on 16/11/09, at about 8.30 p.m., complainant Virendra Singh (since deceased) had gone to the house of Bhaiyalal

Baghel (PW4) at Village Kheri Chachu to attend the thirteenth day ceremony of his mother where Sobran Singh (PW2), Rajendra Singh (PW1),

Arvind (PW3), Raghuvir Singh (PW5), deceased's brother Rajendra Singh (PW8) and deceased's nephew Ranbir Singh (PW6) were also present.

After having meals, an altercation ensued between Sobran Singh and the accused persons in front of the house of Sobran Singh. When Virendra Singh

tried to intervene, appellant Tulsiram fired at him through his 12 bore gun, causing injury on left side of abdomen. When Arvind tried to save Virendra,

appellant Narayan fired at him through his 12 bore country made pistol but the bullet missed the target and whizzed passed the head of Arvind. Co-

accused Pappu, while abusing, exhorted and assaulted Arvind by Luhangi, causing injuries on his head, left leg and right knee. When Arvind's brother

Rajendra Singh came forward to his rescue, he also received Luhangi injury on middle finger of right hand. Hearing commotion, the miscreants fled

towards Village Senthri. Injured Virendra was taken to Police Station, where he lodged FIR (Ex.P/21). MLC of Virendra was conducted vide

Ex.P/29.

During investigation, spot map (Ex.P/23) was prepared. Plain and blood stained earth was seized vide Ex.P/24. Accused persons were arrested.

Luhangi was seized from accused Pappu alias Mahendra vide seizure memo (Ex.P/10). A 12 bore country made pistol, its empty and a bullet were

seized from appellant Narayan vide seizure memo (Ex.P/11). A 12 bore double barrel gun, an empty and four live cartridges were seized at the

instance of appellant Tulsiram vide seizure memo (Ex.P/12). Blood stained shirt was seized from Arvind vide seizure memo (Ex.P/17). Seized articles

were sent to FSL, Sagar vide Ex.P/25 for chemical examination. During treatment Virendra Singh succumbed to the injuries at J.A. Hospital, Gwalior.

Upon receipt of morgue intimation (Ex.P/35), morgue case under section 174, Cr.P.C. was registered and the dead body was sent for post mortem

examination.

After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Seondha, who committed the case to the

Court of Session for trial, where charges for alleged offences were framed against the appellant and co-accused by the trial Court, to which they

pleaded not guilty and claimed trial.

The prosecution, in all, examined 18 witnesses namely Rajendra Singh (PW1), Sobaran Singh (PW2), Arvind (PW3), Bhaiyalal (PW4), Raghuveer

Singh (PW5), Ranveer Singh (PW6), Indar Singh (PW7), Rajendra Singh (PW8), Nitu alias Jitendra Singh (PW9), Mahendra (PW10), Narendra Singh

(PW11), Dr. J.N.Soni (PW12), Hotam Singh (PW13), Rakesh (PW14), Sher Singh (PW15), Dr. N.R.Jatav (PW16), Raghuveer (PW17) and

Rajendra Prasad (PW18), amongst whom Rajendra Singh (PW1), Sobran Singh (PW2), Arvind Singh (PW3), Ranvir Singh (PW6) and Rajendra

Singh (PW8) are the eye-witnesses.

The defence of the appellants in their statements recorded under section 313, Cr.P.C. was that of complete denial and false implication. However,

no evidence was adduced by them in support of their defence.

The learned trial Court after mashalling the evidence on record especially ocular and medical found the death of the deceased to be homicidal. So

far as the charge under section 294, IPC is concerned, the same was not found proved in absence of cogent evidence and hence, the trial Court

acquitted the accused persons of the offence under section 294, IPC. However, the appellants were found guilty and were convicted and sentenced

as indicated above, being aggrieved whereof, the instant appeal has been preferred.

Heard, learned counsel for the parties and perused the evidence on record.

The sole question for consideration in this case is as to whether the ingredients of offence of murder and that under the Arms Act, as alleged, are

proved against the appellants by the testimony of eye-witnesses, medical evidence and recovery of weapon used in the crime including the motive

behind the incident and/or whether the learned trial Judge has committed an illegality in placing reliance on the materials before recording the finding

of guilt.

On going through the evidence on record, it transpires that eye-witnesses Rajendra Singh (PW1), Sobran Singh  (PW2), Arvind (PW3) have

turned hostile. However, eye-witnesses Ranveer Singh (PW6) and Rajendra Singh (PW8), who happen to be nephew and brother of deceased

Virendra, have corroborated the prosecution version and categorically deposed that while they were returning after having meal at the thirteenth day

ceremony, Sobran Singh and accused persons had an altercation. As Virendra Singh tried to intervene, appellant Tulsiram fired causing injury on left

side of his abdomen. Thereafter, when Arvind Singh tried to save Virendra, appellant Narayan fired from his 12 bore country made pistol, but the fire

missed the target and whizzed passed Arvind. Thereafter, accused Pappu exhorted and gave Luhangi blows on Arvind's head, left calf and leg. As

Rajendra Singh came forward to intervene, he was also assaulted by Pappu by Luhangi causing injury on middle finger of right hand. Thus, the

prosecution version has been corroborated by these two eye-witnesses and no material inconsistency could be elicited by the defence in their cross-

examinations. It is also noteworthy that the FIR (Ex.P/21) has been lodged by deceased himself when he had been taken to the Police Station in an

injured condition. As such, the same is relevant as dying declaration under section 32 of the Evidence Act. It also draws substantial corroboration from

the deposition of above two eye-witnesses. It is well settled that evidence of an eye-witness cannot be discarded merely on the ground that he is an

interested witness. The learned trial Court in paragraph 30 of its judgment has rightly held that in view Rajendra Singh (PW1) and Arvind Singh

(PW3), who were also the injured witnesses, having turned hostile, no primacy could be attached to the evidence of other eye-witnesses with regard

to the injuries received by them allegedly at the hands of co-accused Pappu. However, the factum of Virendra Singh having received fire-arm injury in

the incident is corroborated by the evidence of Rajendra Singh (PW1), Sobran Singh (PW2) and Arvind Singh (PW3) as well. Neetu (PW9) has

corroborated the factum of FIR having been lodged by the deceased himself.

Dr. J.M.Soni (PW12) conducted post mortem examination of the deceased. Vide post mortem report (Ex.P/18) and noticed the following injuries

on the body of the deceased :-

Ante mortem injuries present over the body

Gun shot entry wound present onleft side of back laterally 8 cm above the iliac crest, 4 x 4 cm vertical, wound extend downwards medially and

slight anteriorily. Fracture of left hip bone present and whole of the area ecchymosed. Blood present in abdominal cavity with damage to loops of

intestine & esentry. Three pieces of bullet recovered from the wound. Margins of wound everted.

Injuries are extensive and sufficient to cause death in the ordinary course of nature.

In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of abdominal injury.

As such, the prosecution version with regard to homicidal death of deceased Virendra is substantially corroborated by medical, as well as, ocular

evidence.

Investigating Officer Sher Singh (PW15) has proved recovery of a 12 bore country made pistol from appellant Tulsrim vide seizure memo

(Ex.P/12) and a 12 bore country made pistol, empty and a bullet from appellant Narayan vide seizue memo (Ex.P/11). Ranvir Singh (PW6) and

Rajendra Singh (PW8) also corroborated recovery of firearm from appellant Narayan. Hotam Singh (PW13), Arms Moharrir proved receipt of seized

and sealed country made pistol and cartridge for examination and found the same to be in workable condition vide Ex.P/19. There evidence was found

to be reliable by the trial Court in absence of any reason to disbelieve their testimony. Thus, in view of the aforesaid clinching evidence, the trial Court

in paragraphs 38, 49 and 44 rightly found appellants Tulsiram and Narayan guilty of the offences under the Arms Act.

Learned counsel for the appellants confined his arguments to the point that even if prosecution story is found to be proved as held by the trial

court, the instant is a case of single fire arm injury caused in heat of passion. As such, the same does not fall within the four corners of the charge of

murder and therefore it is argued that the case of appellant Tulsiram is covered within the ambit of culpable homicide not amounting to murder, which

facet has not been aptly dealt with by the trial Court.

At this juncture, it is imperative to embark upon the exercise of finding out whether the offence found to be proved against appellant Tulsiram

would fall within any of the five Exceptions enumerated in section 300 IPC or not. Although we are aware of the ingredients of Sec. 300 defining

culpable homicide amounting to murder, it would be worthwhile to recollect the exception therein especially Exception 4 to Section 300 of I.P.C. which

lays down when culpable homicide does not amount to murder and may be

quoted for facility of reference :

“Exception 4 to Section 300.- ""Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon

a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner

The distinction between murder and culpable homicide not amounting to murder is subtle but a palpable one which is evident from some of the

erudite verdicts of the Apex court, relevant extracts of which are reproduced below:-

In the case of Rajwant Singh Vs. State of Kerala reported in AIR 1966 SC 1874, the Apex court has observed as under:-

“(8) The argument requires close examination. Two offences involve the killing of a person. They are the offence of culpable homicide and the

more heinous offence of murder. What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes

in the presence of any of which the lesser offfence becomes greater. These four mental attitudes are stated in S. 300 I.P.C., as distinguishing murder

from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of

the appellants in relation to each of the clauses of S. 300.

(9) The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention

to kill a person brings the matter so clearly within the general principle of means rea as to cause no difficulty. Once the intention to kill is proved, the

offence is murder unless one of the exceptions applies, in which case the offence is reduced to culpable homicide not amounting to murder. As there

is no question of any of the exceptions they need not be mentioned. But it is plain that the appellants did not contemplate killing the Lt. Commander.

No part of their preparations shows an intention to kill. Had they so desired, they had ample time and opportunity to effectuate that purpose without

going to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only to hold his nose closed for a few minutes. The confession

to which we have referred also shows that the news of the death of the Lt. Commander came to them with as much surprise as shock. In these

circumstances, the first clause of S. 300 cannot apply.

The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the

person to whom harm is caused. The mental attitude here is two-fold. There is first the intention to cause bodily harm and next there is the subjective

knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and

recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements. (a) causing an intentional

injury and (b) which injury the offender has the foresight to know would cause death. Here the injury or harm was intended. The appellants intended

tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform. They intended that the

Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this. Can it be said that they had the

subjective knowledge of the fatal consequences of the bodily harm they were causing ?. We think that on the facts the answer cannot be in the

affirmative. To say that the act satisfied the test of subjective knowledge would be really tantamount to saying that the appellants intended to commit

the murder of the Lt. Commander which, as said already, was not the case.

The third clause discards the test of subjective knowledge. It deals with the acts done with the intention of causing bodily injury to a person and the

bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused

injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of

nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the

consequences or not. As was laid down in Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 for the application of this clause it must be first

established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury

is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some

other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.â€​

Following the same principles the Apex Court in Gurmukh Singh Vs. State of Haryana (2009 AIR SCW 6710) while dealing with factual matrix

involving single firearm injury held thus:-

On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be

sustained under section 302 IPC, but the appropriate section under which the appellant ought to be convicted is section 304 Part II IPC.

Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused

cannot be convicted under section 302 IPC. In cases of single injury, the facts and circumstances of each case has to be taken into consideration

before arriving at the conclusion whether the accused should be appropriately convicted under section 302 IPC or under section 304 Part II IPC.

These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are

only illustrative in character and not exhaustive. Each case has to be seen from its special perspective.

The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately

to ensure that he/she gets proper medical treatment ?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances

enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded

obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words,

sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while

convicting and sentencing the accused.

When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under section

302 I.P.C. cannot be sustained. In our considered view, the accused appellant ought to have been convicted under section 304 Part II I.P.C. instead

of under section 302 I.P.C.â€​

Testing the factual matrix on the anvil of the law laid down by the Apex Court (supra) it is seen from perusal of the record that there was no past

enmity between the deceased and the appellant. It is noteworthy that the genesis of incident was not any dispute between the appellants and deceased

Virendra, but a brawl between Sobran Singh and the appellants. Deceased Virendra intervened and in heat of arguments the incident is said to have

occurred. As such, there was no premeditation to cause the fatal injury. In that view of the matter, it cannot be conclusively held that there was any

mens rea on the part of appellant Tulsiram to end the life of deceased. Though, the appellant may be ascribed with the knowledge of inflicting injury

which in the ordinary course of nature was found sufficient to cause death but in the absence of any intention in that regard, the act of the appellant

cannot fall within the four corners of murder as defined in Sec. 300 I.P.C., punishable u/S. 302 I.P.C. Thus, in the considered opinion of this court, this

is a fit case where the conviction of appellant Tulsiram u/S. 302 I.P.C. deserves to be converted into that of Sec. 304 Part-II I.P.C.

In view of foregoing discussions, the conviction and sentence of appellant Tulsiram for commission of offence under Section 302 of I.P.C. is set

aside. However, he is held guilty for commission of an offence punishable under Section 304 part-II of I.P.C. and sentenced to undergo rigorous

imprisonment for a period of ten years with enhanced fine of Rs.20,000/- (Rs. Twenty thousand Only). His conviction and sentences under section 30

of the Arms Act, as awarded by the trial court, are affirmed, with the direction that the custodial sentences shall run concurrently.

For the reasons stated hereinabove, conviction of appellant Narayan for the offence punishable under section 25(1B)(a) of the Arms Act is hereby

affirmed. However, in view of the fact that a considerable period of more than 9 years has already elapsed after the incident in question and

meanwhile, the appellant has already suffered imprisonment for about 5 months, no useful purpose would be served by sending him back to jail for

undergoing remaining part of sentence. Hence, the custodial sentence of 1 year R.I., as awarded to him by the trial Court is reduced to the period

already undergone, but the fine amount is enhanced to Rs.10,000/- (Rupees ten thousand only).

The amounts of fine imposed above shall be deposited in the trial court within a period of two months from the date of this judgment after making

adjustment against the fine amount which was deposited by the appellants in terms of the impugned judgment, failing which the same shall be

recovered through process of law and the appellants shall have to suffer default imprisonment as directed by the trial court. The fine amounts shall be

paid as compensation to the legal heirs of the deceased under the provisions of Section 357 of Cr.P.C.

Subject to above modification, the instant appeals stand allowed in part.

Let the lower Court's Record be sent back alongwith copy of this judgment for information.