Madhya Pradesh High Court
Ram Singh vs State Of M.P. on 24 August, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 589/2007 & 681/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 589/2007
1. Ram Singh (since dead)
2. Jagdish S/o Shyamlal
3. Santosh S/o Gandarbh Singh
4. Dalel S/o Ram Singh
5. Chhotelal S/o Babu
6. Hakim S/o Kanhaiyalal
All Residents of Village Rahawali, P.S. Lahar
District Bhind (MP)
Versus
State of Madhya Pradesh
--------------------------------------------------------------------------------
Shri Aditya Singh with Shri R.S.Yadav, learned counsel for the
appellants No.2,3,5 and 6.
Shri Pradeep Katare, learned counsel for the appellant No.4.
Shri Pramod Pachauri, learned Public Prosecutor, for the
respondent/ State.
--------------------------------------------------------------------------------
Criminal Appeal No. 681/2007
1. Atar Singh So Dwarika Prasad
2. Bhure S/o Dwarika Prasad
Both Residents of Village Rahawali, P.S. Lahar
District Bhind (MP)
Versus
State of Madhya Pradesh
--------------------------------------------------------------------------------
Shri J.P.Mishra, learned counsel for the appellants.
Shri Pramod Pachauri, learned Public Prosecutor, for the
respondent/ State.
--------------------------------------------------------------------------------
Date of hearing : 5th August, 2021
Date of Judgment : 24th August, 2021
Whether approved for reporting:
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-( 2 )- CRA No. 589/2007 & 681/2007
JUDGMENT
(24/08/2021)
Per Rajeev Kumar Shrivastava, J.:
This judgment shall govern the disposal of Criminal
Appeal No. 589/2007 (Ram Singh (since dead) & others Vs.
State of MP) and Criminal Appeal No. 681/2007 (Atar Singh
and another vs. State of MP), as both the appeals arise out of
Sessions Trial No.162/2001.
2. Both the aforesaid appeals have been preferred under
Section 374 of CrPC, challenging the conviction and sentence
dated 10.7.2007 passed by Additional Sessions Judge, Lahar,
District Bhind in Sessions Trial No. 162/2001, whereby appellants
Jagdish, Santosh, Dalel, Hakim, Atar Singh have been convicted
under Sections 147, 148, 302 and 307 of IPC and sentenced to two
years RI with fine of Rs.2000/- each, in default of payment of fine,
to undergo additional rigorous imprisonment of three months
under Section 148 of IPC; Life Imprisonment with fine of
Rs.20000/- each, in default of payment of fine, to undergo
additional rigorous imprisonment of three years under Section 302
of IPC; Seven years RI with fine of Rs.10000/- each, in default of
payment of fine, to undergo additional rigorous imprisonment of
one year under Section 307 of IPC. Similarly, appellants Chhotelal
and Bhure have been convicted under Sections 147, 148, 302/149
and 307/149 of IPC and sentenced to two years RI with fine of
Rs.2000/- each, in default of payment of fine, to undergo
additional rigorous imprisonment of three months under Section
148 of IPC; Life Imprisonment with fine of Rs.20000/- each, in
default of payment of fine, to undergo additional rigorous
imprisonment of three years under Section 302/149 of IPC; Seven
-( 3 )- CRA No. 589/2007 & 681/2007
years RI with fine of Rs.10000/- each, in default of payment of
fine, to undergo additional rigorous imprisonment of two years
under Section 307/149 of IPC. All the sentences were directed to
run concurrently.
3. It is pertinent to note here that appellant Ram Singh
S/o Shyam Lal (appellant No.1 of Criminal Appeal No. 589/2007)
died during pendency of appeal, therefore, his name has been
deleted from the array of cause title in compliance of order dated
8.5.2013. It is further pertinent to mention here that
appellant/accused Hakim Singh is absconding but since he is
represented through his counsel, therefore, his appeal is
considered.
4. The facts necessary to be stated for disposal of the
instant appeal are that on 14.01.2001 at 1.30 pm complainant
Dhanaram came back to his home after attending Sevadal Meeting
and found that his elder son Arvind was sitting on platform of his
house. Suddenly, appellants/accused Hakim, Santosh, Dalel and
Jagdish armed with No.1-Atar Singh, Hakim, Santosh, Dalel and
Jagdish armed with 12 bore guns, appellants/accused Bhure, Ram
Singh and Chhotelal having lathi and farsa, came there and fired
on Arvind. Arvind fell down. Immediately, Kailashi Bai, wife of
the complainant, came to rescue her son but could not save her
son, rather she also suffered firearm injury on her hand. At the
place of incident Karan Singh and Ashok were present. When
accused ran away, Kailashi Bai saw that Arvind suffered injuries
on various parts of his body and died on the spot. On account of
that First Information Report was lodged.
5. During investigation spot map (Ex.P/14) was
prepared. Medical examination of Kailashi Bai was done and the
body of deceased Arvind was brought for post-mortem. Statement
-( 4 )- CRA No. 589/2007 & 681/2007
of Kailashi Bai was recorded under Section 161 of CrPC.
Statements of other witnesses were also recorded. Accused
persons were arrested and as per their memorandums weapons
were seized. The seized articles were sent for forensic
examination. After completion of investigation charge sheet was
filed.
6. Appellants Atar Singh, Jagdish and Santosh were tried
for the offences under Sections 147, 148, 302 and 307 of IPC.
Appellants Bhure was tried for the offences under Sections 147,
148, 302/149 and 307/149 of IPC. Appellants Dalel, Chhotelal and
Hakim Singh were tried for the offences under Sections 147, 148,
302/149 and 307 of IPC.
7. The appellants abjured their guilt. They took the
defence that due to election rivalry the appellants were wrongly
implicated in the incident. At the time of incident the appellants
were not present at the place of incident. The trial Court after
marshalling the evidence available on record convicted and
sentenced the appellants as under :-
Name of Section Punishment Fine In default,
accused punishme
nt
Jagdish 148 IPC 2 Years RI 2000/- 3 Months
RI
302 IPC Life Imprisonment 20000/- 3 Years RI
307 IPC 7 Years RI 10000/- 1 Year RI
Santosh 148 IPC 2 Years RI 2000/- 3 Months
RI
302 IPC Life Imprisonment 20000/- 3 Years RI
307 IPC 7 Years RI 10000/- 1 Year RI
Dalel 148 IPC 2 Years RI 2000/- 3 Months
RI
302 IPC Life Imprisonment 20000/- 3 Years RI
-( 5 )- CRA No. 589/2007 & 681/2007
307 IPC 7 Years RI 10000/- 1 Year RI
Chhotelal 148 IPC 2 Years RI 2000/- 3 Months
RI
302/149 IPC Life Imprisonment 20000/- 3 Years RI
307/149 IPC 7 Years RI 10000/- 2 Year RI
Hakim 148 IPC 2 Years RI 2000/- 3 Months
Singh RI
302 IPC Life Imprisonment 20000/- 3 Years RI
307 IPC 7 Years RI 10000/- 1 Year RI
Atar 148 IPC 2 Years RI 2000/- 3 Months
Singh RI
302 IPC Life Imprisonment 20000/- 3 Years RI
307 IPC 7 Years RI 10000/- 1 Year RI
Bhure 148 IPC 2 Years RI 2000/- 3 Months
RI
302/149 IPC Life Imprisonment 20000/- 3 Years RI
307/149 IPC 7 Years RI 10000/- 2 Year RI
8. The grounds raised are that the trial Court has erred in
convicting and sentencing the appellants. The judgment passed is
arbitrary and against law, therefore, not sustainable in the eye of
law. The trial Court has committed illegality and jurisdictional
error by convicting the appellants under Sections 148, 302 and
307 of IPC, as there was no evidence against the appellants. In the
FIR (Ex.P/10) no specific act was shown, therefore, in absence of
such allegation the appellants could not be convicted under
Sections 148, 302 and 307 of IPC. It is further submitted that as
per prosecution story there were three eye-witnesses, namely (1)
Karan Singh (PW-5), Ashok (PW-7) and Kailashi Bai (PW-12).
Karan Singh (PW-5) has stated in their cross-examination that
Hakim Singh, Jagdish, Chhotelal, Dalel and Ram Singh fired on
deceased Arvind. It is admitted fact that at the time of incident
-( 6 )- CRA No. 589/2007 & 681/2007
accused/appellants Atar Singh, Bhure and Santosh were attending
Sevadal Meeting and were not present at the place of incident.
They had neither fired on the deceased nor caused injuries to
deceased Arvind and injured Kailashi Bai. The eye-witnesses were
not present at the place of incident, rather they are arranged
witnesses. Kailashi Bai is the mother of deceased Arvind and is an
interested witness. There are lots of omissions and contradictions
in the statement of Kailashi Bai. There are various contradictions
and omissions in the statements of prosecution witnesses. The
overt act of each appellant has not been mentioned in the FIR.
Dhanaram (PW-6) has stated in his statement that at the time of
incident he was attending the meeting of Sevadal, therefore, his
evidence cannot support the prosecution case. Dr. S.K.Singh
Niranjan (PW-4), Medical Officer, has not specified the nature of
injuries found on the body of deceased and has not clarified
various angles from where injuries were inflicted. The entire oral
and documentary evidence is unreliable. The trial Court has erred
in considering Karan Singh (PW-5) and Ashok (PW-7) as eye-
witnesses rather Kailashi Bai (PW-12) was also not present at the
time of incident. The case is not covered under Section 149 of
IPC. There was political rivalry. Therefore, the trial Court has
erred in analyzing the evidence produced before it. Hence, prayed
for setting aside the impugned judgement of conviction and
sentence.
9. Per Contra, learned State Counsel opposed the
submissions and submitted that the trial Court has rightly
convicted the appellants and awarded sentence. Hence, no case is
made out for interference.
10. Heard the learned counsel for the rival parties and
perused the record.
-( 7 )- CRA No. 589/2007 & 681/2007
11. From perusal of the record, it is evident that Dr.
S.K.Singh Niranjan (PW-4), has stated in his statement that on
14.01.2001, he was posted as Medical Officer at Primary Health
Centre, Lahar. On that day, Bahurang Singh, Constable No.73 of
Police Chowki Rahawali Ubari, Police Station Lahar, had brought
injured Smt. Kailashi Bai, wife of Dhanaram Kushwaha R/o
Rahawali Ubari for her examination. He medically examined
Kailashi Bai and found following injuries:-
(i) Contusion with swelling tenderness, size
1cm x 1 cm over dorsal aspect of right thumb
of hand, x-ray of right thumb of hand
advised;
(ii) Lacerated wound with irregular margins and
clotted blood. Margins of the wound with
whole musculature of the wound is blackish
in colour, size 7cm x 4cm x bone deep over
palmour aspect of left hand metacarpal bone
and proximal phalanx of left thumb, x-ray of
left hand advised;
This witness has also stated in his statement that on x-
ray of right and left hand of injured Kailashi Bai, her right
metacarpal bone was found broken while left first metacarpal bone
was found broken in pieces. X-ray plates are Ex.P/12-A and
P/12-B.
This witness has further stated that on the same day
Bahurang Singh, Constable No.73, had also brought the body of
deceased Arvind S/o Dhanaram Kachhi. He conducted post-
mortem of the body of deceased Arvind and vide post-mortem
report (Ex.P/13) and found following injuries on the body of
deceased Arvind :-
(i) Wound of Entrance - Oval in shape, size 2.5
cm in diameter x track deep situated over
lateral aspect of right thigh 4'' above the knee
joint, blackening & tattooing present over
and around the wound. Margins of the
-( 8 )- CRA No. 589/2007 & 681/2007
wound burnt and inverted. An abrasion
present over margins of the wound clotted
blood present inside and around the wound.
Track of the wound directed slightly upward
with medially and causing damage to the
skin, subcutaneous tissue and muscles of
anterior aspect of thigh.
(ii) Wound of Exit.-- A lacerated wound 4cm x
3cm x track deep in size situated over medial
aspect of right thigh 6'' above the knee joint
with margins irregular and everted, clotted
blood present inside and around the wound.
Track of the wound directed slightly
downward and laterally causing damage to
the skin, subcutaneous tissue and muscu-
lature of the thigh at its medial aspect
communicating with track of injury No.(i).
(iii) Wound of Entrance - Oval in shape, 2.5 cm
in diameter x track deep in size situated over
medial aspect of left thigh 6'' below mid
inguinal point. Blackening & tattooing
present around the wound and over margins
of the wound. Track of the wound directed
slightly downward and laterally causing
damage to the skin, subcutaneous tissue and
musculature of the thigh with fracture of
shaft of left femur bone into pieces.
(iv) Wound of Exit.-- A lacerated wound with
irregular and everted margins. Size about
5cm x 3.5cm x track deep in size situated
over lateral aspect of left thigh 8'' below
internal side, clotted blood present inside and
around the wound. Track of the wound
directed slightly upward medially and
causing damage to the skin, subcutaneous
tissue and musculature of the thigh at lateral
aspect communicating with track of injury
No.(iii).
(v) Wound of Entrance - Oval in shape, 2.5 cm
in diameter x track deep in size situated over
epigastric region of abdomen 3'' above the
umbilicus in midline. Blackening & tattooing
present around the wound. Margins burnt
and inverted, clotted blood inside and around
the wound. Track of the wound directed
-( 9 )- CRA No. 589/2007 & 681/2007
slightly down and laterally causing damage
to the skin, subcutaneous tissue and muscles
of anterior abdominal wall on left side.
(vi) Wound of Exit.-- A lacerated wound with
irregular margins which are everted. Size
about 5cm x 4cm x track deep in size situated
over left hypochondrium region of abdomen
2'' below the costal margins. Clotted wound
present inside and around the wound. Track
of the wound directed slightly downward
towards epigastric region and causing
damage to the skin, subcutaneous tissue and
musculature of anterior abdominal wall and
communicating with the track of injury No.
(v).
(vii) Wound of Entrance - Oval in shape, 2.5 cm
in diameter x track deep in size with inverted
margins which are burnt situated over front
of right side of neck underneath the middle
of right mandible bone. Blackening &
tattooing present around the wound. Clotted
blood present inside and around the wound.
A collar of abrasion present over edges of the
wound. Track of the wound directed
posteriorly towards upper half of posterior
aspect of neck near mastoid region causing
damage to the skin, subcutaneous tissue and
musculature of the neck over lateral and
anterior aspect with damage to the tissues,
blood vessels with other structures.
(viii) Wound of Exit.-- A lacerated wound with
irregular and everted margins size about
10cm x 7cm x track deep in size situated
over upper half portion of back of neck near
right mastoid region, clotted blood present
inside and around the wound. Track of the
wound directed forward anteriorly towards
right mandible bone and causing damage to
the skin, subcutaneous tissue and muscles of
back side of neck with fracture of right
mastoid bone at lower portion and
communicating with the track of injury No.
(vii).
(ix) Wound of Entrance - Oval in shape, 2.5 cm
in diameter x track deep in size situated over
-( 10 )- CRA No. 589/2007 & 681/2007
right shoulder region on back side of root of
neck. Margins of the wound are burnt and
inverted. Blackening & tattooing present
around the wound. A collar of abrasion
present over edges of the wound. Clotted
blood present inside and around the wound.
Track of the wound directed downward
towards right of the thorax and causing
damage to the skin, subcutaneous tissue and
musculature at the side of the injury a metalic
pallet found lodged in the track of this injury
which is taken out and sealed.
This witness has stated that all the aforesaid injuries
are anti-mortem in nature and caused by firearm weapon.
12. Before considering the merits of the case, it would be
appropriate to throw light on the relevant provisions of law.
13. Section 149 of Indian Penal Code runs as under :-
"149. Every member of unlawful assembly
guilty of offence committed in prosecution of
common object.-- If an offence is committed by
any member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be committed in
prosecution of that object, every person who, at
the time of the committing of that offence, is a
member of the same assembly, is guilty of that
offence."
14. There are two essential elements covering the act
under Section 149 of Indian Penal Code, which are as under:-
(i) The assembly should consist of at least
five persons; and
(ii) They should have a common object to
commit an offence or achieve any one of
the objects enumerated therein.
15. For recording a conclusion that a person is guilty of
any offence under Section 149 of IPC, it must be proved that such
-( 11 )- CRA No. 589/2007 & 681/2007
person is a member of an "unlawful assembly" consisting of not
less than five persons irrespective of the fact whether the identity
of each one of the five persons is proved or not. If that fact is
proved, the next step of inquiry is whether the common object of
the unlawful assembly is one of the five enumerated objects
specified under Section 141 of IPC.
16. The common object of assembly is normally to be
gathered from the circumstances of each case such as the time and
place of the gathering of the assembly, the conduct of the
gathering as distinguished from the conduct of the individual
members are indicative of the common object of the gathering.
Assessing the common object of an assembly only on the basis of
overt acts committed by such individual members of the assembly
is not permissible.
17. In Dani Singh v. State of Bihar [(2004) 13 SCC
203], the Hon'ble Apex Court has observed as under :-
"The emphasis in Section 149 IPC is on the
common object and not on common
intention. Mere presence in an unlawful
assembly cannot render a person liable
unless there was a common object and he
was actuated by that common object and
that object is one of those set out in Section
141. Where common object of an unlawful
assembly is not proved, the accused
persons cannot be convicted with the help
of Section 149. The crucial question to
determine is whether the assembly
consisted of five or more persons and
whether the said persons entertained one or
more of the common objects, as specified
in Section 141. It cannot be laid down as a
general proposition of law that unless an
overt act is proved against a person, who is
alleged to be a member of unlawful
assembly, it cannot be said that he is a
member of an assembly. The only thing
-( 12 )- CRA No. 589/2007 & 681/2007
required is that he should have understood
that the assembly was unlawful and was
likely to commit any of the acts which fall
within the purview of Section 141. The
word 'object' means the purpose or design
and, in order to make it 'common', it must
be shared by all. In other words, the object
should be common to the persons, who
compose the assembly, that is to say, they
should all be aware of it and concur in it. A
common object may be formed by express
agreement after mutual consultation, but
that is by no means necessary. It may be
formed at any stage by all or a few
members of the assembly and the other
members may just join and adopt it. Once
formed, it need not continue to be the same.
It may be modified or altered or abandoned
at any stage. The expression 'in prosecution
of common object' as appearing in Section
149 has to be strictly construed as
equivalent to 'in order to attain the common
object'. It must be immediately connected
with the common object by virtue of the
nature of the object. There must be
community of object and the object may
exist only up to a particular stage, and not
thereafter. Members of an unlawful
assembly may have community of object up
to certain point beyond which they may
differ in their objects and the knowledge,
possessed by each member of what is likely
to be committed in prosecution of their
common object may vary not only
according to the information at his
command, but also according to the extent
to which he shares the community of
object, and as a consequence of this the
effect of Section 149, IPC may be different
on different members of the same
assembly."
18. In Mahadev Sharma v. State of Bihar [(1966) 1
SCR 18], the Hon'ble Apex Court has discussed about
-( 13 )- CRA No. 589/2007 & 681/2007
applicability of Section 149 of IPC and observed as under :-
"The fallacy in the cases which hold that a
charge under Section 147 is compulsory
arises because they overlook that the
ingredients of Section 143 are implied in
Section 147 and the ingredients of Section
147 are implied when a charge under
Section 149 is included. An examination of
Section 141 shows that the common object
which renders an assembly unlawful may
involve the use of criminal force or show of
criminal force, the commission of mischief
or criminal trespass or other offence, or
resistance to the execution of any law or of
any legal process. Offenses under Sections
143 and 147 must always he present when
the charge is laid for an offence like murder
with the aid of Section 149, but the other
two charges need not be framed -separately
unless it is sought to secure a conviction
under them. It is thus that Section 143 is
not used when the charge is under Section
147 or Section 148, and Section 147 is not
used when the charge is under Section 148.
Section 147 may be dispensed with when
the charge is under Section 149 read with
an offence under the Indian Penal Code."
19. It is relevant to mention here that if all the necessary
ingredients are present in a case when charges were framed under
Section 149 of IPC, each member of unlawful assembly shall be
held liable. The condition precedent is that the prosecution proves
the existence of unlawful assembly with a common object, which
is the offence.
20. In Kuldip Yadav vs. State of Bihar [(2011) 5 SCC
324], it is held that a clear finding regarding nature of the common
object of the assembly must be given and the evidence discussed
must show not only the common object, but also that the object
was unlawful, before recording a conviction under Section 149 of
IPC. Foremost essential ingredient of Section 141 of IPC must be
-( 14 )- CRA No. 589/2007 & 681/2007
established.
21. Now, we come to the provisions of Sections 299 and
300 of Indian Penal Code.
22. The Law Commission of United Kingdom in its 11th
Report proposed the following test :
"The standard test of knowledge is Did the
person whose conduct is in issue either knows
of the relevant circumstances or has no
substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)]
"Therefore, having regard to the meaning assigned in criminal law
the word "knowledge" occurring in clause Secondly of Section
300 IPC imports some kind of certainty and not merely a
probability. Consequently, it cannot be held that the appellant
caused the injury with the intention of causing such bodily injury
as the appellant knew to be likely to cause the death of Shri
Ahirwar. So, clause Secondly of Section 300 IPC will also not
apply."
23. The enquiry is then limited to the question whether
the offence is covered by clause Thirdly of Section 300 IPC. This
clause, namely, clause Thirdly of Section 300 IPC reads as under: -
"Culpable homicide is murder, if the act by
which the death is caused 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."
The argument that the accused had no intention to cause
death is wholly fallacious for judging the scope of clause Thirdly
of Section 300 IPC as the words "intention of causing death" occur
in clause Firstly and not in clause Thirdly. An offence would still
fall within clause Thirdly even though the offender did not intend
-( 15 )- CRA No. 589/2007 & 681/2007
to cause death so long as the death ensues from the intentional
bodily injury and the injuries are sufficient to cause death in the
ordinary course of nature. This is also borne out from illustration
(c) to Section 300 IPC which is being reproduced below: -
"(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."
Therefore, the contention advanced in the present case and
which is frequently advanced that the accused had no intention of
causing death is wholly irrelevant for deciding whether the case
falls in clause Thirdly of Section 300 IPC.
24. The scope and ambit of clause Thirdly of Section 300
IPC was considered in the decision in Virsa Singh vs. State of
Punjab, [AIR 1958 SC 465], and the principle enunciated therein
explains the legal position succinctly. The accused Virsa Singh
was alleged to have given a single spear blow and the injury
sustained by the deceased was "a punctured wound 2" x ="
transverse in direction on the left side of the abdominal wall in the
lower part of the iliac region just above the inguinal canal. Three
coils of intestines were coming out of the wound." After analysis
of the clause Thirdly, it was held: -
"The prosecution must prove the following
facts before it can bring a case under S. 300
"Thirdly"; First, it must establish, quite
objectively, that a bodily injury is present;
Secondly, the nature of the injury must be
proved. These are purely objective
investigations. Thirdly, it must be proved that
there was an intention to inflict that particular
bodily injury, that is to say, that it was not
accidental or unintentional, or that some other
kind of injury was intended.
-( 16 )- CRA No. 589/2007 & 681/2007
Once these three elements are proved to be
present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of
the type, just described, made up of the three
elements set out above, is sufficient to cause
death in the ordinary course of nature. This
part of the enquiry is purely objective and
inferential and has nothing to do with the
intention of the offender. Once these four
elements are established by the prosecution
(and, of course, the burden is on the
prosecution throughout), the offence is murder
under S. 300 "Thirdly". It does not matter that
there was no intention to cause death, or that
there was no intention even to cause an injury
of a kind that is sufficient to cause death in the
ordinary course of nature (there is no real
distinction between the two), or even that
there is no knowledge that an act of that kind
will be likely to cause death. Once the
intention to cause the bodily injury actually
found to be present is proved, the rest of the
enquiry is purely objective and the only
question is whether, as a matter of purely
objective inference, the injury is sufficient in
the ordinary course of nature to cause death."
25. In Arun Nivalaji More vs. State of Maharashtra
(Case No. Appeal (Cri.) 1078-1079 of 2005), it has been
observed as under :-
"11. First it has to be seen whether the offence
falls within the ambit of Section 299 IPC. If
the offence falls under Section 299 IPC, a
further enquiry has to be made whether it falls
in any of the clauses, namely, clauses 'Firstly'
to 'Fourthly' of Section 300 IPC. If the offence
falls in any one of these clauses, it will be
murder as defined in Section 300IPC, which
will be punishable under Section 302 IPC. The
offence may fall in any one of the four clauses
of Section 300 IPC yet if it is covered by any
one of the five exceptions mentioned therein,
the culpable homicide committed by the
offender would not be murder and the offender
-( 17 )- CRA No. 589/2007 & 681/2007
would not be liable for conviction under
Section 302 IPC. A plain reading of Section
299 IPC will show that it contains three
clauses, in two clauses it is the intention of the
offender which is relevant and is the dominant
factor and in the third clause the knowledge of
the offender which is relevant and is the
dominant factor. Analyzing Section 299 as
aforesaid, it becomes clear that a person
commits culpable homicide if the act by which
the death is caused is done
(i) with the intention of causing death;
or
(ii) with the intention of causing such
bodily injury as is likely to cause
death; or
(iii) with the knowledge that the act is
likely to cause death."
If the offence is such which is covered by any
one of the clauses enumerated above, but does
not fall within the ambit of clauses Firstly to
Fourthly of Section 300 IPC, it will not be
murder and the offender would not be liable to
be convicted under Section 302 IPC. In such a
case if the offence is such which is covered by
clauses (i) or (ii) mentioned above, the
offender would be liable to be convicted under
Section 304 Part I IPC as it uses the expression
"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" where intention is the dominant factor.
However, if the offence is such which is
covered by clause (iii) mentioned above, the
offender would be liable to be convicted under
Section 304 Part II IPC because of the use of
the expression "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" where knowledge is the dominant
factor.
-( 18 )- CRA No. 589/2007 & 681/2007
12. What is required to be considered here is
whether the offence committed by the
appellant falls within any of the clauses of
Section 300 IPC.
13. Having regard to the facts of the case it can
legitimately be urged that clauses Firstly and
Fourthly of Section 300 IPC were not attracted.
The expression "the offender knows to be
likely to cause death" occurring in clause
Secondly of Section 300 IPC lays emphasis on
knowledge. The dictionary meaning of the
word 'knowledge' is the fact or condition of
being cognizant, conscious or aware of
something; to be assured or being acquainted
with. In the context of criminal law the
meaning of the word in Black's Law
Dictionary is as under: -
"An awareness or understanding of a
fact or circumstances; a state of mind in
which a person has no substantial doubt
about the existence of a fact. It is
necessary ... to distinguish between
producing a result intentionally and
producing it knowingly. Intention and
knowledge commonly go together, for
he who intends a result usually knows
that it will follow, and he who knows the
consequences of his act usually intends
them. But there may be intention
without knowledge, the consequence
being desired but not foreknown as
certain or even probable. Conversely,
there may be knowledge without
intention, the consequence being
foreknown as the inevitable concomitant
of that which is desired, but being itself
an object of repugnance rather than
desire, and therefore not intended."
In Blackstone's Criminal Practice the import of
the word 'knowledge' has been described as
under: -
"'Knowledge' can be seen in many ways
as playing the same role in relation to
-( 19 )- CRA No. 589/2007 & 681/2007
circumstances as intention plays in
relation to consequences. One knows
something if one is absolutely sure that it
is so although, unlike intention, it is of
no relevance whether one wants or
desires the thing to be so. Since it is
difficult ever to be absolutely certain of
anything, it has to be accepted that a
person who feels 'virtually certain' about
something can equally be regarded as
knowing it."
26. Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes
death by doing an act with the intention of
causing death, or with the intention of causing
such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act
to cause death, commits the offence of culpable
homicide."
Section 300 of Indian Penal Code runs 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--
Secondly.-- If it is 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 the harm is caused, or--
Thirdly.-- 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--
Fourthly.-- 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."
27. Now, the question for consideration is, whether
having regard to the body part involved, nature, location of
-( 20 )- CRA No. 589/2007 & 681/2007
injuries and nature of weapon used, the Court below was justified
in convicting the appellant under Section 302 of IPC read with
Section 34 of IPC.
28. 'Culpable Homicide' is the first kind of unlawful
homicide. It is the causding of death by doing ; (i) an act with the
intention to cause death; (ii) an act with the intention of causing
such bodily injury as is likely to cause death; or, (iii) an act with
the knowledge that it was likely to cause death.
29. Indian Penal Code reconizes two kinds of homicides :
(1) Culpable homicide, dealt with between Sections 299 and 304
of IPC (2) Not-culpable homicide, dealt with by Section 304-A of
IPC. There are two kinds of culpable homicide; (i) Culpable
homicide amounting to murder (Section 300 read with Section 302
of IPC), and (ii) Culpable homicide not amounting to murder
(Section 304 of IPC).
30. A bare perusal of the section makes it crystal clear
that the first and the second clauses of the section refer to intention
apart from the knowledge and the third clause refers to knowledge
alone and not the intention. Both the expression "intent" and
"knowledge" postulate the existence of a positive mental attitude
which is of different degrees. The mental element in culpable
homicide i.e., mental attitude towards the consequences of conduct
is one of intention and knowledge. If that is caused in any of the
aforesaid three circumstances, the offence of culpable homicide is
said to have been committed.
31. There are three species of mens rea in culpable
homicide. (1) An intention to cause death; (2) An intention to
cause a dangerous injury; (3) Knowledge that death is likely to
happen.
32. The fact that the death of a human being is caused is
-( 21 )- CRA No. 589/2007 & 681/2007
not enough unless one of the mental staes mentioned in ingredient
of the Section is present. An act is said to cause death results either
from the act directly or results from some consequences
necessarily or naturally flowing from such act and reasonably
contemplated as its result. Nature of offence does not only depend
upon the location of injury by the accused, this intention is to be
gathered from all facts and circumstances of the case. If injury is
on the vital part, i.e., chest or head, according to medical evidence
this injury proved fatal. It is relevant to mention here that intention
is question of fact which is to be gathered from the act of the party.
Along with the aforesaid, ingredient of Section 300 of IPC are also
required to be fulfilled for commission of offence of murder.
33. In the scheme of Indian Penal Code, "Culpable
homicide" is genus and "murder" is its specie. All "Murder" is
"culpable homicide" but not vice versa. Speaking generally
'culpable homicide sans special characteristics of murder' if
culpable homicide is not amounting to murder.
34. In Anda vs. State of Rajasthan [1966 CrLJ 171),
while considering "third" clause of Section 300 of IPC, it has been
observed as follows :-
"It speaks of an intention to cause bodily
injury which is sufficient in the ordinary
course of nature to cause death. The emphasis
here is on sufficiency of injury in the ordinary
course of nature to cause death. The
sufficiency is the high probability of death in
the ordinary way of nature and when this
exists and death ensues and causing of such
injury was intended, the offence is murder.
Sometimes the nature of the weapon used,
sometimes the part of the body on which the
injury is caused, and sometimes both are
relevant. The determinant factor is the
intentional injury which must be sufficient to
cause death in the ordinary course of nature."
-( 22 )- CRA No. 589/2007 & 681/2007
35. In Mahesh Balmiki vs. State of M.P. [(2000) 1 SCC
319, while deciding whether a single blow with a knife on the
chest of the deceased would attract Section 302 of IPC, it has been
held thus :-
"There is no principle that in all cases of single
blow Section 302 I.P.C. is not attracted. Single
blow may, in some cases, entail conviction under
Section 302 I.P.C., in some cases under Section
304 I.P.C and in some other cases under Section
326 I.P.C. The question with regard to the nature
of offence has to be determined on the facts and
in the circumstances of each case. The nature of
the injury, whether it is on the vital or non-vital
part of the body, the weapon used, the
circumstances in which the injury is caused and
the manner in which the injury is inflicted are all
relevant factors which may go to determine the
required intention or knowledge of the offender
and the offence committed by him. In the instant
case, the deceased was disabled from saving
himself because he was held by the associates of
the appellant who inflicted though a single yet a
fatal blow of the description noted above. These
facts clearly establish that the appellant had
intention to kill the deceased. In any event, he
can safely be attributed knowledge that the knife
blow given by him is so imminently dangerous
that it must in all probability cause death or such
bodily injury as is likely to cause death."
36. In Dhirajbhai Gorakhbhai Nayak vs. State of
Gujarat [(2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC
covers acts done in a sudden fight. The said
exception deals with a case of prosecution not
covered by the first exception, after which its
place would have been more appropriate. The
exception is founded upon the same principle,
for in both there is absence of premeditation.
But, while in the case of Exception 1 there is
total deprivation of self-control, in case of
Exception 4, there is only that heat of passion
which clouds men's sober reason and urges them
-( 23 )- CRA No. 589/2007 & 681/2007
to deeds which they would not otherwise do.
There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct
consequence of that provocation. In fact
Exception 4 deals with cases in which
notwithstanding that a blow may have been
struck, or some provocation given in the origin
of the dispute or in whatever way the quarrel
may have originated, yet the subsequent conduct
of both parties puts them in respect of guilt upon
equal footing. A 'sudden fight' implies mutual
provocation and blows on each side. The
homicide committed is then clearly not traceable
to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it
were so, the Exception more appropriately
applicable would be Exception 1. There is no
previous deliberation or determination to fight. A
fight suddenly takes place, for which both parties
are more or less to be blamed. It may be that one
of them starts it, but if the other had not
aggravated it by his own conduct it would not
have taken the serious turn it did. There is then
mutual provocation and aggravation, and it is
difficult to apportion the share of blame which
attaches to each fighter. The help of Exception 4
can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without
the offender's having taken undue advantage or
acted in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To
bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to
be noted that the 'fight' occurring in Exception 4
to Section 300, IPC is not defined in the IPC. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case, the
parties have worked themselves into a fury on
account of the verbal altercation in the
beginning. A fight is a combat between two and
more persons whether with or without weapons.
It is not possible to enunciate any general rule as
to what shall be deemed to be a sudden quarrel.
It is a question of fact and whether a quarrel is
-( 24 )- CRA No. 589/2007 & 681/2007
sudden or not must necessarily depend upon the
proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there
was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted
in cruel or unusual manner. The expression
'undue advantage' as used in the provision means
'unfair advantage'.
37. In Pulicherla Nagaraju @ Nagaraja vs. State of AP
[(2006) 11 SCC 444, while deciding whether a case falls under
Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"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 Part I or 304 Part II.
Many petty or insignificant matters plucking of a
fruit, straying of a 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 pre-meditation. 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
-( 25 )- CRA No. 589/2007 & 681/2007
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any pre- meditation; (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."
38. In Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC
799, Hon'ble Apex Court while deciding the question whether a
blow on the skull of the deceased with a crowbar would attract
Section 302 IPC, held thus:
"16. In our opinion, as nobody can enter into the
mind of the accused, his intention has to be
gathered from the weapon used, the part of the
body chosen for the assault and the nature of the
injuries caused. Here, the appellant had chosen a
crowbar as the weapon of offence. He has further
chosen a vital part of the body i.e. the head for
causing the injury which had caused multiple
fractures of skull. This clearly shows the force
with which the appellant had used the weapon.
The cumulative effect of all these factors
irresistibly leads to one and the only conclusion
that the appellant intended to cause death of the
deceased."
39. In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC
639, this it has been held as follows:
"7.3 In Arun Raj [Arun Raj v.
Union of India, (2010) 6 SCC 457 : (2010) 3
SCC (Cri) 155] this Court observed and held that
-( 26 )- CRA No. 589/2007 & 681/2007
there is no fixed rule that whenever a single blow
is inflicted, Section 302 would not be attracted. It
is observed and held by this Court in the
aforesaid decision that nature of weapon used
and vital part of the body where blow was struck,
prove beyond reasonable doubt the intention of
the accused to cause death of the deceased. It is
further observed and held by this Court that once
these ingredients are proved, it is irrelevant
whether there was a single blow struck or
multiple blows.
7.4 In Ashokkumar Magabhai
Vankar [Ashokkumar Magabhai Vankar v. State
of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC
(Cri) 397] , the death was caused by single blow
on head of the deceased with a wooden pestle. It
was found that the accused used pestle with such
force that head of the deceased was broken into
pieces. This Court considered whether the case
would fall under Section 302 or Exception 4 to
Section 300 IPC. It is held by this Court that the
injury sustained by the deceased, not only
exhibits intention of the accused in causing death
of victim, but also knowledge of the accused in
that regard. It is further observed by this Court
that such attack could be none other than for
causing death of victim. It is observed that any
reasonable person, with any stretch of
imagination can come to conclusion that such
injury on such a vital part of the body, with such
a weapon, would cause death.
7.5 A similar view is taken by this
Court in the recent decision in Leela Ram (supra)
and after considering catena of decisions of this
Court on the issue on hand i.e. in case of a single
blow, whether case falls under Section 302 or
Section 304 Part I or Section 304 Part II, this
Court reversed the judgment and convicted the
accused for the offence under Section 302 IPC.
In the same decision, this Court also considered
Exception 4 of Section 300 IPC and observed in
para 21 as under: (SCC para 21)
-( 27 )- CRA No. 589/2007 & 681/2007
"21. Under Exception 4, culpable
homicide is not murder if the
stipulations contained in that
provision are fulfilled. They are: (i)
that the act was committed without
premeditation; (ii) that there was a
sudden fight; (iii) the act must be in
the heat of passion upon a sudden
quarrel; and (iv) the offender should
not have taken undue advantage or
acted in a cruel or unusual manner."
40. In the case of Bavisetti Kameswara Rao v. State of
A.P. (2008) 15 SCC 725 , it is observed in paragraphs 13 and 14
as under:
"13. It is seen that where in the murder case
there is only a single injury, there is always a
tendency to advance an argument that the offence
would invariably be covered under Section 304
Part II IPC. The nature of offence where there is
a single injury could not be decided merely on
the basis of the single injury and thus in a
mechanical fashion. The nature of the offence
would certainly depend upon the other attendant
circumstances which would help the court to find
out definitely about the intention on the part of
the accused. Such attendant circumstances could
be very many, they being (i) whether the act was
premeditated; (ii) the nature of weapon used; (iii)
the nature of assault on the accused. This is
certainly not an exhaustive list and every case
has to necessarily depend upon the evidence
available. As regards the user of screwdriver, the
learned counsel urged that it was only an
accidental use on the spur of the moment and,
therefore, there could be no intention to either
cause death or cause such bodily injury as would
be sufficient to cause death. Merely because the
screwdriver was a usual tool used by the accused
in his business, it could not be as if its user
would be innocuous.
-( 28 )- CRA No. 589/2007 & 681/2007
14. In State of Karnataka v. Vedanayagam
[(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this
Court considered the usual argument of a single
injury not being sufficient to invite a conviction
under Section 302 IPC. In that case the injury
was caused by a knife. The medical evidence
supported the version of the prosecution that the
injury was sufficient, in the ordinary course of
nature to cause death. The High Court had
convicted the accused for the offence under
Section 304 Part II IPC relying on the fact that
there is only a single injury. However, after a
detailed discussion regarding the nature of injury,
the part of the body chosen by the accused to
inflict the same and other attendant
circumstances and after discussing clause Thirdly
of Section 300 IPC and further relying on the
decision in Virsa Singh vs. State of Punjab [AIR
1958 SC 465] , the Court set aside the acquittal
under Section 302 IPC and convicted the accused
for that offence. The Court (in Vedanayagam case
[(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC
p. 330, para 4) relied on the observation by Bose,
J. in Virsa Singh case [AIR 1958 SC 465] to
suggest that: (Virsa Singh case [AIR 1958 SC
465], AIR p. 468, para 16)
"16. With due respect to the learned
Judge he has linked up the intent
required with the seriousness of the
injury, and that, as we have shown, is
not what the section requires. The two
matters are quite separate and distinct,
though the evidence about them may
sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p.
468, paras 16 & 17)
"16. The question is not whether the
prisoner intended to inflict a serious
injury or a trivial one but whether he
intended to inflict the injury that is
proved to be present. If he can show that
he did not, or if the totality of the
circumstances justify such an inference,
-( 29 )- CRA No. 589/2007 & 681/2007
then, of course, the intent that the
section requires is not proved. But if
there is nothing beyond the injury and
the fact that the appellant inflicted it, the
only possible inference is that he
intended to inflict it. Whether he knew
of its seriousness, or intended serious
consequences, is neither here nor there.
The question, so far as the intention is
concerned, is not whether he intended to
kill, or to inflict an injury of a particular
degree of seriousness, but whether he
intended to inflict the injury in question;
and once the existence of the injury is
proved the intention to cause it will be
presumed unless the evidence or the
circumstances warrant an opposite
conclusion. But whether the intention is
there or not is one of fact and not one of
law. Whether the wound is serious or
otherwise, and if serious, how serious, is
a totally separate and distinct question
and has nothing to do with the question
whether the prisoner intended to inflict
the injury in question.
17. ... It is true that in a given case the
enquiry may be linked up with the
seriousness of the injury. For example,
if it can be proved, or if the totality of
the circumstances justify an inference,
that the prisoner only intended a
superficial scratch and that by accident
his victim stumbled and fell on the
sword or spear that was used, then of
course the offence is not murder. But
that is not because the prisoner did not
intend the injury that he intended to
inflict to be as serious as it turned out to
be but because he did not intend to
inflict the injury in question at all. His
intention in such a case would be to
inflict a totally different injury. The
difference is not one of law but one of
fact."
-( 30 )- CRA No. 589/2007 & 681/2007
41. While considering the provisions of Sections 299 and
300 of IPC, one should be very clear with regard to distinction
between 'culpable homicide' and 'murder'.
Difference between culpable homicide and murder :
42. The thin line is the intention behind the act. All
murders are culpable homicide but the vice-versa is not true. Ever
since the IPC was enacted, this distinction as to which case will
fall under which category is a perennial question with which
courts are often confronted. On a plain reading of the relevant
provisions of the Code, it appears that the given cases can be
conveniently classified into two categories but when it comes to
actual application, the courts are often confronted with this
dilemma. This confusion often emerges when it is difficult to
interpret from the evidence whether the intention was to cause
merely bodily injury which would not make out an offence of
murder or there was a clear intention to kill the victim making out
a clear case of an offence of murder. The most confusing aspect is
'intention' as in both the provisions the intention is to cause death.
Hence, you have to consider the degree of intention of offenders.
If the person is killed in cold-blood or with planning then it is
murder because the intention to kill is in high degree and not out
of sudden rage or provocation. On other hand, if the victim is
killed without pre-planning, in sudden fight or in sudden anger
because of somebody's provocation or instigation, then such a
death is called culpable homicide. Hence, whether the act done is
culpable homicide or murder is a question of fact.
43. In State of A.P. vs. R. Punnayya [(1976) 4 SCC
382], it is observed as under :-
"In the scheme of the Penal Code, 'culpable
homicide' is genus and 'murder' its specie. All
'murder' is 'culpable homicide' but not vice
-( 31 )- CRA No. 589/2007 & 681/2007
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 this generic offence, the IPC
practically recognises three degrees of culpable
homicide. The first is what may be called,
culpable homicide of 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 the 1st
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,
punishable under Part II of Section 304."
44. In K.M. Nanavati vs. State of Maharashtra [AIR
1962 SC 605], "the Hon'ble Apex Court has extensively explained
the law relating to provocation in India and has observed as
under :-
•The test of "sudden and grave
provocation" is whether a reasonable man,
who belongs to the same society as the
accused, is placed in the situation in which
the accused was placed would have been
so provoked as to lose his self-control.
•Under certain circumstances, words and
gestures may also lead to sudden and
grave provocation to an accused, so as to
bring his act under an exception.
•The mental background of the victim can
be taken into consideration, taking
account of his previous act to ascertain
whether the subsequent act leads to
sudden and grave provocation for
committing the offence.
•The fatal blow clearly should trace the
influence of passion that arises from the
sudden and grave provocation. It should
-( 32 )- CRA No. 589/2007 & 681/2007
not be after the provocation has cooled
down due to lapse of time, otherwise, it
will give room and scope to the accused
for altering the evidence.
Relating to Plea of Alibi :
45. 'Alibi' is a Latin word, which means elsewhere. It is
used when the accused takes a plea that at the time of occurrence
he was elsewhere. The burden to prove the plea of alibi is on the
accused. It is a rule of evidence recognized under Section 11 of the
Evidence Act. Section 11 of Indian Evidence Act runs as under:-
"11. When facts not otherwise relevant, are
relevant.-- Facts not otherwise relevant are
relevant--
(1) if they are inconsistent with any fact in
issue or relevant fact;
(2) if by themselves or in connection with
other facts they make the existence or
non-existence of any fact in issue or
relevant fact highly probable or
improbable."
46. When the accused takes the plea of alibi, the burden
of proof lies on him under section 103 of Indian Evidence Act and
this defence has to be taken at the earliest opportunity and it has to
be proved to the satisfaction of the Court. Unless the accused
succeeds in establishing plea of alibi, he will not be entitled to an
acquittal. In order to prove plea of alibi it is always required that
the aforesaid defence was taken at the earliest. This stage must be
initial stage of case as it could be at the stage of framing of
charges or preliminary hearing.
47. In Lakhan Singh @ Pappu vs. The State of NCT of
Delhi (Criminal Appeal No.166/1999), it is held as under :-
"The plea of alibi cannot be equated with a
plea of self-defence and ought to be taken at
the first instance and not belatedly at the
-( 33 )- CRA No. 589/2007 & 681/2007
stage of defence evidence. In any case, the
appellant/accused gives no reason or
explanations for not taking this plea of alibi
at the earliest opportunity."
48. In Binay Kumar Singh vs. The State of Bihar [(1997)
1 SCC 283], it is held as under :-
"We must bear in mind that alibi, not an
exception (special or general) envisaged in the
Indian Penal Code or any other law. It is only a
rule of evidence recognized in Section 11 of the
Evidence Act that facts which are inconsistent
with the fact in issue are relevant.
(a) When the defence of alibi fails-Failure on the
part of accused to establish plea of alibi does not
help the prosecution and it cannot be held that the
accused was present at the scene of occurrence,
the prosecution must prove it by positive
evidence. Thus the mere failure on the part of the
accused to establish the plea of alibi, shall not
lead to an inference that the accused was present
at the scene of occurrence.
(b) Non access of husband to show illegitimacy
of the child:
Since legitimacy of the child implies a
cohabitation between husband and wife. For
disproving the legitimacy the husband has to
prove that he had no cohabitation with his wife
during the probable time of begetting as he was in
abroad."
49. In the light of above annunciation of law, now we
examine the present case.
50. The prosecution examined 20 witnesses in support of
prosecution story as Babloo (PW-1), Bhurelal (PW-2), Constable
Satish Chandra (PW-3), Dr. S.K.Singh Niranjan (PW-4), Karan
Singh (PW-5), complainant Dhanaram (PW-6), Ashok (PW-7),
Umakant Patwari (PW-8), Har Govind Singh, Head Constable
(PW-9), Vinod Kumar (PW-10), Chhotelal (PW-11), Kailashi Bai
(PW-12), Lal Singh (PW-13), Raj Kishore (PW-14), R.S.Ghuraiya
-( 34 )- CRA No. 589/2007 & 681/2007
(PW-15), Yogendra Singh, A.S.I. (Investigating Officer) (PW-16),
Shatrughan Singh (PW-17), Chandrapal Singh (PW-18), Amar
Singh, ASI, (PW-19) and Dashrath Singh (Investigating Officer)
(PW-20).
51. In the present case, the trial Court has convicted the
appellants considering the evidence given by Kailashi Bai (PW-
12), Karan Singh (PW-5) and Ashok (PW-7). Kailashi Bai has also
suffered injuries in the said incident. She has stated that five
injuries were found on the body of the deceased.
52. Dr. S.K.Singh Niranjan (PW-4) has also stated in his
statement that cause of death was syncope due to excessive
hemorrhage on account of injuries caused by firearm weapons and
death was within 24 hours of post-mortem. The injuries found
were anti-mortem and nature of death seems to be homicidal.
Considering the aforesaid the trial Court has rightly observed that
the death of deceased Arvind was homicidal.
53. Injured Kailashi, who is the wife of Dhanaram, has
stated that she is the mother of deceased Arvind and she very well
identified all the accused persons present in the Court. The
incident took place 4-5 years back and time was around 1.00 pm.
She went to her well, where her son Arvind was sitting on a
platform of Kalyan. Suddenly, appellants Hakim Singh, Delel,
Jagdish, Ramsingh, Atar Singh, Santosh, Chhotelal and Bhure
reached there, who were equipped with weapons. Accused Hakim
Singh, Dalel, Jagdish, Atar Singh and Santosh were armed with
firearm; accused Ramsingh and Bhure were having lathi and
Chhotelal was having farsa. Hakim Singh fired five times on
Arvind which caused injuries on the body of deceased. Kailashi
(PW-12) went for rescue of his son and she also got firearm
injuries over her hand. Arvind died on the spot and she became
-( 35 )- CRA No. 589/2007 & 681/2007
unconscious.
54. Kailashi (PW-12) has also stated in her statement that
at the time of incident no person was seen by her. She has further
stated that there was no any previous enmity. The only reason
behind incident was that her husband became surety of one Kok
Singh. On account of that, accused persons were keeping enmity
with them and they committed murder of her son. The statement
given by witness Kailashi (PW-12) is supported by medical
evidence and her statement remained unrebutted in her cross-
examination.
55. Learned counsel for the appellants have submitted
that Kailashi (PW-12) is the mother of the deceased and there are
various contradictions and omissions in her statement. As she is
the mother of the deceased and is an interested witness, therefore,
only considering the evidence of Kailashi (PW-12) the trial Court
has erred in holding the appellants guilty.
56. It is settled law that merely because the witnesses may
be related to the victim or the complainant, their testimonies may
not be rejected. There is no legal canon that only unrelated
witnesses shall be considered credible. On the contrary, we are of
the view that it is not natural for the related witness to implicate a
person falsely leaving aside the actual culprit. It is pertinent to
note that only interested witnesses want to see the real culprit is
brought to book. In this regard, Hon'ble Supreme Court in the case
of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, has held
in the following manner:
"23. We are of the considered view that in
cases where the court is called upon to deal
with the evidence of the interested witnesses,
the approach of the court, while appreciating
the evidence of such witnesses must not be
pedantic. The court must be cautious in
-( 36 )- CRA No. 589/2007 & 681/2007
appreciating and accepting the evidence given
by the interested witnesses but the court must
not be suspicious of such evidence. The
primary endeavour of the court must be to
look for consistency. The evidence of a
witness cannot be ignored or thrown out solely
because it comes from the mouth of a person
who is closely related to the victim."
57. In another Judgment by Hon'ble Supreme Court in the
case of Seeman v. State, (2005) 11 SCC 142, following has been
observed:
"4. It is now well settled that the
evidence of witness cannot be discarded merely
on the ground that he is a related witness or the
sole witness, or both, if otherwise the same is
found credible. The witness could be a relative
but that does not mean to reject his statement in
totality. In such a case, it is the paramount duty
of the court to be more careful in the matter of
scrutiny of evidence of the interested witness,
and if, on such scrutiny it is found that the
evidence on record of such interested sole
witness is worth credence, the same would not
be discarded merely on the ground that the
witness is an interested witness. Caution is to
be applied by the court while scrutinising the
evidence of the interested sole witness. The
prosecution's non-production of one
independent witness who has been named in the
FIR by itself cannot be taken to be a
circumstance to discredit the evidence of the
interested witness and disbelieve the
prosecution case. It is well settled that it is the
quality of the evidence and not the quantity of
the evidence which is required to be judged by
the court to place credence on the statement."
58. In another Judgment by Hon'ble Supreme Court in the
case of Jodhan v. State of M.P., (2015) 11 SCC 52, it has been
observed that: -
"28. Tested on the backdrop of the
-( 37 )- CRA No. 589/2007 & 681/2007
aforesaid enunciation of law, we are unable to
accept the submission of the learned counsel for
the appellant that the High Court has fallen into
error by placing reliance on the evidence of the
said prosecution witnesses. The submission that
when other witnesses have turned hostile, the
version of these witnesses also should have
been discredited does not commend acceptance,
for there is no rule of evidence that the
testimony of the interested witnesses is to be
rejected solely because other independent
witnesses who have been cited by the
prosecution have turned hostile. Additionally,
we may note with profit that these witnesses
had sustained injuries and their evidence as we
find is cogent and reliable. A testimony of an
injured witness stands on a higher pedestal than
other witnesses. In Abdul Sayeed v. State of
M.P. [Abdul Sayeed v. State of M.P., (2010) 10
SCC 259 : (2010) 3 SCC (Cri) 1262] , it has
been observed that: (SCC p. 271, para 28)
"28. The question of the weight to be
attached to the evidence of a witness
that was himself injured in the course
of the occurrence has been extensively
discussed by this Court. Where a
witness to the occurrence has himself
been injured in the incident, the
testimony of such a witness is generally
considered to be very reliable, as he is a
witness that comes with a built-in
guarantee of his presence at the scene
of the crime and is unlikely to spare his
actual assailant(s) in order to falsely
implicate someone."
It has been also reiterated that convincing
evidence is required to discredit an injured
witness. Be it stated, the opinion was expressed
by placing reliance upon Ramlagan Singh v.
State of Bihar [Ramlagan Singh v. State of
Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri)
563] , Malkhan Singh v. State of U.P. [Malkhan
Singh v. State of U.P., (1975) 3 SCC 311 : 1974
SCC (Cri) 919] , Vishnu v. State of Rajasthan
[Vishnu v. State of Rajasthan, (2009) 10 SCC
-( 38 )- CRA No. 589/2007 & 681/2007
477 : (2010) 1 SCC (Cri) 302] , Balraje v. State
of Maharashtra [Balraje v. State of Maharashtra,
(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]
and Jarnail Singh v. State of Punjab [Jarnail
Singh v. State of Punjab, (2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107] .
29. From the aforesaid summarisation of
the legal principles, it is beyond doubt that the
testimony of the injured witness has its own
significance and it has to be placed reliance
upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and inconsistencies. As has been
stated, the injured witness has been conferred
special status in law and the injury sustained by
him is an inbuilt guarantee of his presence at the
place of occurrence. Thus perceived, we really
do not find any substance in the submission of
the learned counsel for the appellant that the
evidence of the injured witnesses have been
appositely discarded being treated as
untrustworthy by the learned trial Judge."
59. The incident took place all of a sudden. Kailashi
(PW-12) is an illiterate villager and her son died in front of her,
therefore, considering the aforesaid situation the contradictions
and omissions crept in her statements are not material and are not
fatal to the prosecution case.
60. Now it has to be seen whether the act done by accused
Hakim Singh was in furtherance of common object of unlawful
assembly ?
61. Kailashi (PW-12) has specifically stated that all the
appellants/accused reached on the spot and were armed with
weapons, which reflects that the object of unlawful assembly was
to commit murder of deceased Arvind. As discussed above, an act
done by any member of unlawful assembly shall be considered as
the act done by each member of unlawful assembly. The evidence
of Kailashi (PW-12) is trustworthy and trial Court has not
-( 39 )- CRA No. 589/2007 & 681/2007
committed any error in convicting all the accused/appellants only
depending upon the evidence given by mother of the deceased.
The prosecution has very well proved that firearms were seized
from the possession of the accused persons and memorandums and
seizure memos of respective appellants have been proved.
62. Learned counsel for the appellants have also
submitted that other witnesses have not supported the prosecution
case but said argument has no force as number of witnesses in a
case is immaterial. Dashrat Singh, Investigating Officer (PW-20)
has proved investigation. As per FSL reports (Ex.P/27 & P/28),
seized articles were found functioning.
63. In the light of the foregoing discussion, we are of the
considered opinion that the trial Court did not err in convicting
and sentencing the appellants. Hence, both the appeals
(Cri.Appeals No. 589/2007 & 681/2007) are devoid of merits and
are hereby dismissed. The judgment of conviction and sentence
dated 10.7.2007 passed by the trial Court is hereby confirmed.
Appellants Jagdish, Santosh, Dalel, Chhotelal, Atar Singh and
Bhure are on bail after suspending their sentence by this Court.
Their bail bonds are cancelled They are directed to immediately
surrender before the trial Court to serve out their remaining jail
sentence.
64. As appellant Hakim Singh is absconding, therefore,
trial Court is hereby directed to issue arrest warrant for securing
his presence to serve out his sentence.
Let the record of the trial Court be sent back
immediately to the trial Court along with copy of this judgment.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2021.08.24
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
16:27:50 +05'30'
