Khoob Singh vs The State Of Madhya Pradesh Thr
2021 Latest Caselaw 4073 MP

                               1
                               Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

            HIGH COURT OF MADHYA PRADESH
                   GWALIOR BENCH

                         DIVISION BENCH

        G.S.Ahluwalia & Rajeev Kumar Shrivastava J.J.

                         Cr.A.No. 50 of 2003

                 Khoob Singh Vs. State of M.P.

Shri Anoop Nigam, Counsel for the Appellant No.1
Shri C.P. Singh, Counsel for the State

Date of Hearing                : 06-Aug-2021
Date of Judgment               : 09-Aug-2021
Approved for reporting         :

                              Judgment

                            09-Aug-2021

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 18-12-2002 passed by

Special Judge, Vidisha in S.T. No.122/2002, thereby the appellant

no.1, Khoob Singh has been convicted for the following offences :

Under Section            Sentence                   Fine
302/34 I.P.C.            Life Imprisonment          Rs.    5000/-    with
                                                    default sentence of 4
                                                    months Imprisonment
3(2)(v) of Scheduled Life Imprisonment              Rs. 15,000/- with
Castes and Scheduled                                default sentence of 6
Tribes (Prevention of                               months imprisonment
Atrocities) Act, 1989

2. It is not out of place to mention here that Accused No. 2

Devendra, who was convicted under Section 302 of I.P.C. read with

Section 3(2)(v) of Scheduled Castes and Scheduled Tribes

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

(Prevention of Atrocities) Act, 1989, has expired during the pendency

of this appeal, and accordingly, by order dated 6-12-2019, his appeal

has been dismissed as abated.

3. According to the prosecution story, on 5-4-2002 at 8:00 A.M.,

the deceased Ramcharan, lodged a report against the appellant no. 1

and the co-accused Devendra, on the allegations that he was drinking

liquor in Kalari. The appellant and co-accused demanded a glass

from him. Accordingly, he gave a glass after washing it. The co-

accused Devendra thereafter assaulted in his abdominal region by a

hammer whereas the appellant no.1, after throwing him on the

ground, assaulted him by fists and blows. He has suffered injuries in

his stomach and on the thumb of his right leg. His younger brother

Laxman was also there, who has saved him.

4. The police did not take cognizance of the report, and registered

it under Section 155 of Cr.P.C.

5. However, the injured/deceased was sent for medical

examination and the injured/deceased was found in a drunken

condition. The injured informed the Doctor that he was beaten by two

persons. The injured had tense and acute abdomen and Guarding

reflex was present. Since, his condition was serious, therefore, he was

referred to Hamidia Hospital, Bhopal. However, the injured did not

show his willingness to go to Hamidia Hospital, therefore, he was

admitted in Sironj Hospital itself, where he died on 6-4-2002 at about

6 A.M. Accordingly, the offence was registered. The dead body was

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

sent for post-mortem. Hammer was seized from the possession of co-

accused Devendra. After recording the statements of the witnesses,

the police filed charge sheet against the appellant no.1 and co-

accused Devendra for offence under Section 302, 302/34 of I.P.C.

read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes

Act, 1989.

6. The Trial Court by order dated 21-8-2002, framed charges

under Section 302/34 of I.P.C. and under Section 3(2)(v) of

Scheduled Castes and Scheduled Tribes Act, 1989 against the

appellant no.1, whereas charges under Section 302 of I.P.C. read

with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes Act,

1989 were framed against co-accused Devendra.

7. The appellant no.1 and co-accused Devendra abjured their

guilt and pleaded not guilty.

8. The prosecution in order to prove its case examined Samrath

Singh (P.W.1), Laxman Singh (P.W. 2), Mahesh Kumar Vishwakarma

(P.W.3), Dr. Suresh Agrawal (P.W.4), Dr. V.B. Shukla (P.W. 5), Nanni

Bai (P.W.6), D.N. Tiwari (P.W.7), M.P. Niranjan (P.W.8), Mohammad

Safik (P.W.9), R.G. Katiyar (P.W.10), Dr. Bhaskar Dev Sharma

(P.W.11) and Mohan Patel (P.W.12).

9. The appellant no.1 did not examine any witness in his defence.

10. The Trial Court, by the impugned judgment and sentence,

convicted and sentenced the appellant no.1 for the offences

mentioned above.

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

11. Challenging the conviction and sentence awarded by the Trial

Court, it is submitted that the Trial Court has disbelieved the

evidence of Samrath Singh (P.W.1) and Laxman (P.W.2) and the

entire case hinges around the report lodged by the deceased

Ramcharan. It is submitted that even if the allegations made in the

report, Ex. P.16 are taken as true, still it is clear that the incident took

place all of a sudden on the question of a tumbler. The allegations

are that although the co-accused Devendra gave a hammer blow in

the abdominal region of the deceased, but the only allegations against

the appellant no.1 Khoob Singh are that he had assaulted the

deceased by fists and blows. The deceased has died due to laceration

in liver. He was suffering from Liver Cirrhosis. The appellant no.1

was not aware of the disease of the deceased. Therefore, it is clear

that the appellant no.1 is not guilty of murder.

12. Per contra, the Counsel for the State has vehemently opposed

the submissions made by the Counsel for the appellant no.1.

13. Heard the learned Counsel for the parties.

14. Before appreciating the evidence which has come on record,

this Court, thinks it apposite to consider as to whether, the death of

the deceased was homicidal or not?

15. Dr. Bhaskar Dev Sharma (P.W.11) has conducted Medical

Examination of the injured Ramcharan (Deceased) on 5-4-2002 at

11:30 A.M. On medical examination, he found that the injured was

complaining about pain in abdomen more around umbilicus and all

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

over. His abdomen was tense and acute. Guarding reflexes were

present. The injured had consumed liquor and was in a drunken

condition. The injured had informed, that he was beaten by two

persons. The injured was referred to Hamidia Hospital, but since, he

expressed his unwillingness to go to Hamidia Hospital, therefore, he

was admitted in Sironj Hospital. The M.L.C. report is Ex. P.19. His

referral letter is Ex. P.20. On a query by the police, he had examined

the hammer, which was 3½ kg in weight and had found that the

injury sustained by the injured Ramcharan, could have been caused

by the hammer. However, he had also opined that since, the hammer

was a heavy one, therefore, in case of an assault by hammer, there

should have been an external injury. Since, no external injury was

found therefore, his opinion was that the injured was not assaulted by

the hammer. However, he further clarified that if the injured was

assaulted by fists and blows then there was no possibility of

sustaining any external injury. The Court has appended the note that

the hammer has not been produced. The query report is Ex. P.21.

16. In reply to the question asked by the Court, it was replied by

this witness, that he had also read the post-mortem report of the

deceased prior to giving his query report. As per the post-mortem

report, a wound was present in the liver. Since, the liver is protected

by ribs, therefore, in case if any assault is made by a hammer of 3 ½

kg, then there should have been some injury to the ribs, but since, no

injury was found on the ribs, therefore, it is his opinion, that the

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

injury to the liver could not have been caused by a heavy hammer of

3 ½ kg. Further, it was explained by this witness, that if the hammer

is of a small size or if the assault is made by the end of a lathi, then

the injured can sustain injury to his liver. In cross examination, this

witness admitted that he had not mentioned in the M.L.C. report, Ex.

P.19, that the injured had informed him that he was assaulted by two

persons. He further clarified that he has stated so out of his memory.

However, he clarified that the names of the assailants were not

disclosed by the deceased. He further admitted that if someone is

cycling in a drunken condition and fells down, then he can sustain the

injury from the handle of the cycle. He further admitted that if a

person in a drunken condition, fell down on the cot, then also he can

sustain the similar injury.

17. The post-mortem of the dead body of Ramcharan was

conducted by Dr. Suresh Agrawal. As per the post-mortem report,Ex.

P.8, no external injury was found. On internal examination, it was

found that heart was pale and both left and right chambers were

empty. No blood was oozing on cutting the lungs. The Abdominal

wall was distended. Abdominal cavity was filled with blood and

stain fluids. Semi Solid food matters and Alcoholic smell was coming

from stomach contains. Liver was pale and multiple nodules and

signs of fibrosis were present. There was a laceration of size 3x1 ½

and 1 inch deep on anterior border at junction of lateral 2 ½ and

medial 1/3rd. Liver shows signs of alcoholic cirrhosis. The cause of

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

death was syncope due to internal hemorrhage and effusion caused

by injury to liver.

18. In cross examination, this witness clarified that in case of liver

cirrhosis, a person dies due to stoppage of working of liver and not

due to rupture of the same. He further clarified that nodules donot

rupture on their own. On examination by the Court, it was clarified

by this witness, that in case if an assault is made by a hammer, then

the injury found in the liver of the deceased could have been caused.

In cross-examination by the accused, it was further clarified that in

case of assault by a hammer, the bone would also sustain some injury.

From the post-mortem report, this witness was unable to point out

that from which angle, the assault by hammer was made. Since, the

deceased had an enlarged liver, therefore, even a minor injury was

sufficient to cause damage to his liver. He further admitted that

since, the deceased was in a drunken condition, therefore, in case of

fall also, he could have sustained the injury.

19. Thus, it is clear that the deceased had nodules in his liver and

had died due to laceration in liver . However, laceration can take

place either due to fall or due to an injury caused in his abdominal

region. Dr. Bhaskar Dev Sharma (P.W.11) has stated that the injury

could not have been caused by the hammer which was seized from

the possession of the co-accused Devendra. Therefore, whether, the

death of the deceased was homicidal or accidental shall be decided

after considering the evidence led by the prosecution.

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

20. Samrath Singh (P.W.1) has stated that he was informed by the

deceased that he was assaulted by the appellant no.1 and co-accused

Devendra. However, the Trial Court has disbelieved the evidence of

Samrath Singh.

21. Laxman (P.W.2) had stated that he had seen the actual assault.

But this witness has also been disbelieved by the Trial Court.

22. Mahesh Kumar Vishwakarma (P.W.3) has turned hostile and

did not support the prosecution case. Even on cross examination,

nothing could be elicited from this witness, which may support the

prosecution story.

23. V.B.Shukla (P.W.5) is the investigating officer, who had

recorded the statements of the witnesses, and had also arrested the

appellant no.1 vide arrest memo Ex. P.8. The memorandum of the

co-accused Devendra, Ex. P.4 was recorded. Hammer was seized

from the possession of co-accused Devendra vide seizure memo Ex.

P.5.

24. Nanni bai (P.W.6) is the widow of Ramcharan and has stated

that at about 2 in the night, her younger brother-in-law ( nsoj) and

mother-in-law, brought her husband from Patharia police station. Her

husband was conscious and he informed that the appellant no.1 and

his brother-in-law have assaulted him by a hammer in his abdomen.

However, in cross-examination, it was stated by this witness, that in

her police statement, Ex.D.3, She had informed that her husband was

brought by her younger brother-in-law (nsoj) and mother-in-law, but

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

could not explain as to why that fact is not mentioned. She further

stated that She and her husband were residing separately from her

parents-in-law and her husband was taken by her younger brother-

in-law (nsoj) and mother-in-law to her matrimonial home. She also

went there. However, it was claimed that neither she went to police

station nor to the Hospital. She further claimed that She had never

informed the police that at the time of death of her husband, She was

in the hospital.

25. Thus, this witness is a witness of oral dying declaration.

However, it is also clear that when the deceased was in a serious

condition, even then, this witness did not go to the Hospital. Further,

Samrath Singh (P.W.1) and Laxman (P.W.2) have not stated that

Nanni bai (P.W.6) had also come to her matrimonial house and the

deceased had made any oral dying declaration. Thus, this conduct of

the witness appears to be suspicious. Therefore, it is held that this

witness is not trustworthy and accordingly, it cannot be held that the

deceased had made any oral dying declaration to this witness.

26. D.N. Tiwari (P.W. 7) has stated that he had received the Marg

intimation of death of Ramcharan, Ex. P.11. Accordingly, he went to

Hospital and prepared Lash Panchnama Ex. P. 2 and notices given to

the witnesses is Ex.P.1. Requisition for post-mortem is Ex. P.13.

27. M.P. Niranjan (P.W. 8) has stated that on the basis of Ex. P.12,

he had registered Marg intimation, Ex. P.14.

28. Mohd. Shafiq (P.W.9) has seized the cloths of the deceased

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

vide seizure memo Ex. P.15.

29. R.G.Katiyar (P.W.10) had recorded the report of the

deceased,Ex. P.16. He found that no cognizable offence was

disclosed. However, he sent the injured for medical examination by

requisition, Ex. P.18. In cross examination, this witness specifically

claimed that no one had come in the night to lodge report. However,

no questions were put to this witness with regard to the information

given by the injured/deceased which was written as non-cognizable

offence.

30. Mohan Patel (P.W.12) had registered the F.I.R., Ex. P.22 on the

basis of Ex. P.17,18 and 19. He had also sent the accused for medical

examination, by requisition Ex. P.23.

31. Thus, it is clear that since, the evidence of Samrath Singh

(P.W.1) and Laxman Singh (P.W.2) has been disbelieved by the Trial

Court and the evidence of Nanni bai (P.W. 6) has been disbelieved by

this Court, therefore, the only evidence which is left in the matter is

the report lodged by the deceased himself, Ex. P.16.

32. The report, Ex. P.16 lodged by injured/deceased reads as

under :

Qfj;knh us gkftj Fkkuk gksdj e; gejkgh viuh eka izse ckbZ o firk lejFk flag o HkkbZ y{eu flag ds tokuh fjiksZV fd;k fd eS dykjh ij cSBk Fkk fd eSa 'kjkc ih jgk FkkA [kwck o [kwck dk cguksbZ vk;k fd eq>ls cksyk fd fxykl eq>s nks rks eSus fxykl /kksdj ns fn;k rks [kwck ds cguksbZ us gFkksMh jkf= ds djhc 8 cts dykjh ij esjs isV es gFkksMh nqdku ls ykdj ekj nh o [kwck us eq>s iVd dj ykr /kwl a ks ls ekjk esjs isV es nkfgus iSj dh vaxwBs es pksV vkbZ gSA dy jkf= gksus ls fjiksZV dks ugh vk;k vkt fjiksZV dks vk;k gwa dk;Zokgh dh tkosA fjiksZV i<dj lquh tks cksyk ogh

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

fy[kk gSA gkFk ls gLrk- fd;kA gLrk fjiksZVdrkZ etewu fjiksZV ls ekeyk ekjihV dk Ikk;k tkrk gSA Qfj dks esfMdy ijh{k.k gsrq PHC fljksat jokuk fd;k tkrk gS ckn vkus urhtk tks Hkh lwjr gksxh dk;Zokgh dh tkosxhA

33. As already pointed out, no question with regard to the

information disclosed by the injured/deceased has been put to R.G.

Katiyar (P.W.10). No question with regard to mental condition of the

injured was asked in cross-examination. Thus, the information given

by the injured to R.G. Katiyar (P.W.10) in his report, Ex. P.16 has

remained unchallenged.

34. Thus, the prosecution has succeeded in establishing beyond

reasonable doubt that the co-accused Devendra and appellant no.1

Khoob Singh had a quarrel with the deceased in the Kalari. The

appellant no.1 Khoob Singh, after throwing the injured on the

ground, assaulted him by fists and blows.

35. Thus, after considering the report, Ex. P.16, it is held that the

deceased died because of laceration of his liver, due to beating given

by the appellant no.1 and co-accused Devendra.

36. Now the only question for consideration is as to whether the

appellant is guilty of committing murder or he is guilty of some

lessor offence.

37. Section 300 of I.P.C. reads as under :

300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

death of the person to whom the harm is caused, or-- 3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A, is guilty of murder, although he may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-- First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.--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 having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

38. In the light of Illustration (b) of Section 300 of I.P.C., it is

clear that knowledge on the part of the assailant that the deceased is

labouring some disease is important.

39. In the report, Ex. P.16, it is not mentioned by the deceased that

the appellant no.1 or co-accused Devendra were having knowledge

that he is either suffering from liver cirrhosis or was having nodules

in his liver. Further, there is nothing in the report, Ex. P.16 that there

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

was any intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death. The allegations against the

appellant no.1 in the report, Ex. P.16 lodged by injured/deceased

were that, the appellant no.1 after throwing him on the ground had

assaulted him by fists and blows. There is no allegation that the

appellant no.1 had deliberately assaulted in the abdominal region of

the deceased.

40. The incident took place in a kalari on the question of

consumption of liquor. Thus, it is clear that there was no

premeditation on the part of the appellant no.1 and the co-accused

Devendra. It appears that a small incident turned into an incident of

assault by fists and blows by the appellant no.1. It is the case of the

prosecution that the hammer seized from the possession of co-

accused Devendra was used in the offence, but Dr. Bhaskar Dev

Sharma (P.W.11) has specifically ruled out the possibility of assault

by the hammer seized from the possession of co-accused Devendra.

Whether the injury was caused by co-accused Devendra by any

hammer or not is not required to be considered, as co-accused

Devendra is already dead and his appeal has already been dismissed

as abated.

41. The Supreme Court in the case of Pulicherla Nagaraju v.

State of A.P., reported in (2006) 11 SCC 444 has held as under :

29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.

42. The Supreme Court in the case of Shankar Narayan

Bhadolkar v. State of Maharashtra, reported in (2005) 9 SCC 71

has held as under :

26. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver,

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

(Underline supplied)

43. The Supreme Court in the case of Thangaiya v. State of T.N.,

reported in (2005) 9 SCC 650 has held as under :

9. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

* * * *

11. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

44. Thus, whether the accused was having knowledge about the

disease with which the deceased was suffering or not is the key

question. If the answer is in affirmative, then the intention of an

accused of causing bodily injury with knowledge of likelihood of

such injury causing death of the ailing victim would be sufficient to

hold that the accused is guilty of committing murder.

45. As already pointed out, the only evidence which remains on

the record is that the deceased was assaulted by fists and blows on

account of some dispute which arose between the deceased and the

accused persons, on the question of tumbler. There is nothing on

record, that the appellant no.1 or the co-accused Devendra were

having any enmity with the deceased. The prosecution has also failed

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

to establish that the deceased was known to appellant no.1 and the

co-accused Devendra. As already held, there is nothing on record to

suggest that the appellant no.1 was having knowledge that the

deceased is having enlarged liver or liver cirrhosis with nodules.

There is nothing on record to show that the appellant no.1 had

deliberately given any fist or blow on the abdominal region of the

deceased. There is nothing on record to show that the appellant no.1

had caused any injury or was having any intention to cause death or

bodily injury sufficient in the ordinary course of nature to cause

death. The appellant no.1 and co-accused Devendra as well as the

deceased were consuming liquor in a Kalari and all of a sudden, a

dispute arose between them on the question of tumbler.

46. Under these circumstances, this Court is of the considered

view that this case falls within the meaning of culpable homicide of

third degree, and thus punishable under Section 304-Part II of IPC.

47. Accordingly, the conviction of the appellant for offence under

Section 302/34 of I.P.C. is set aside, and he is convicted for offence

under Section 304 Part II of I.P.C.

48. So far as offence under Section 3 (2)(v) of Scheduled Castes

and Scheduled Tribes, Act, 1989 is concerned, the prosecution has

not produced and proved the caste certificate of the deceased. Thus, it

has not been proved that the deceased was a member of Scheduled

Caste or Scheduled Tribe. Further, there is nothing on record to

suggest that the deceased was assaulted because of the fact that he

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

was a member of Scheduled Caste or Scheduled Tribe. The Supreme

Court in the case of Dinesh v. State of Rajasthan, reported in

(2006) 3 SCC 771 has held as under :

15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

49. The Supreme Court in the case of Patan Jaman Vali Vs. State

of Andhra Pradesh by Judgment dated 27-4-2021 passed in Cr.A.

No.452 of 2021 has held as under :

58. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence

- whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

wrongful act arises from a single ground or what we refer to as the single axis model.

59. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has PART C 39 decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:

"8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]

60. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of PART C 40 gendered violence against women from SC & ST communities. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression.

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.

61. However, since Section 3(2) (v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.

50. In the present case also, the offence was committed on 4-4-

2002, therefore, in absence of any evidence to show that the offence

was committed because the deceased was the member of the

Scheduled Castes or Scheduled Tribes, therefore, the conviction of

the appellant no.1 for offence under Section 3(2)(v) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is

hereby set aside.

51. It is submitted by the Counsel for the appellant no.1, that the

appellant is a labourer and he may be sentenced to the period already

undergone by him.

52. Heard on the question of sentence.

53. As already pointed out, the dispute arose all of a sudden on the

question of tumbler, and the deceased was beaten by fists and blows

and he died on account of laceration in his liver. The deceased was

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

already suffering from liver cirrhosis. Even at the time of medical

examination i.e., on 5-4-2002, the deceased was in a drunken

condition. Even in the Post-mortem report, Alcoholic smell in the

stomach was found. The appellant no.1 had no knowledge about the

enlarged liver or that the deceased was suffering from liver cirrhosis.

From the record, it is clear that the appellant no.1 Khoob Singh had

remained in jail from 7-4-2002 to 18-12-2002. Thus he had remained

in jail for a period of 257 days as an undertrial prisoner.

54. It appears that the appellant no.1 and the co-accused Devendra

filed this Criminal Appeal on 20-1-2003. Similarly, another Criminal

Appeal No. 54 of 2003 was filed on 21-1-2003. The appellant no.1

was granted bail by order dated 12-3-2003 passed in Criminal Appeal

No. 54 of 2003. Thereafter, it came to the knowledge of the Court,

that since, the present criminal appeal filed by the appellant no.1 and

the co-accused Devendra is already pending, therefore, Cr.A. No. 54

of 2003 was dismissed as not maintainable by order dated 23-9-2003.

However, it appears that no separate order for grant of bail was

passed in the present appeal. It is also clear that no warrants of arrest

were issued after the dismissal of Cr.A.No.54 of 2003. Accordingly,

this Court by order dated 28-10-2017 issued bailable warrants of

arrest and subsequently, in execution of perpetual warrant of arrest,

the appellant no.1 Khoob Singh was arrested on 16-11-2018, and he

is in jail from thereafter. Accordingly, it is clear that the appellant

no.1 Khoob Singh is in jail for approximately 3 years and 4 months.

Khoob Singh Vs. State of M.P. (Cr.A. No. 50 of 2003)

55. In the case of Kuldeep Singh Vs. State of Haryana reported

in AIR 1996 SC 2988, the accused had remained in jail for a period

of two years and the sentence of 4 years awarded under Section 304-

Part II of IPC was reduced to the period already undergone by the

accused. The Supreme Court in the case of Raj Singh Vs. State of

Haryana reported in (2000) 10 SCC 151 has awarded the sentence

already undergone by the accused.

56. In the present case, the offence was committed on 4-4-2002,

i.e., more than 19 years back. The appellant was an adolescent boy

aged about 20 years at the time of incident. Under these

circumstances, this Court is of the considered opinion, that the jail

sentence already undergone by the appellant would serve the justice.

Accordingly, the appellant no.1 Khoob Singh is awarded jail sentence

which has already been undergone by him.

57. With aforesaid modifications, the judgment dated 18-12-2002

passed by Special Judge, Vidisha in Sessions Trial No. 122/2002 is

hereby Affirmed.

58. The appellant is in jail. He be released immediately, if not

required in any other case.

59. Appeal succeeds and is Allowed in part.

60. A copy of this judgment be provided to the appellant no.1

Khoob Singh, free of cost.

(G.S.Ahluwalia)                              (Rajeev Kumar Shrivastava)
         Judge                                                   Judge



                               ARUN KUMAR MISHRA
                               2021.08.09 15:23:46 +05'30'