Madhya Pradesh High Court
Hameer Singh vs State Of M.P. on 11 June, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 505/2011
(1) Hameer Singh S/o Pahalwan Singh Yadav
(2) Brijendra S/o Hameer Singh Yadav
Both residents of Village Parasari, Police
Station Ashok Nagar, District Ashok Nagar
Versus
State of Madhya Pradesh
None for the appellant No.1, though represented.
Shri Ashok Kumar Jain, learned counsel for the appellant No.2.
Shri A.K.Nirankari, learned Public Prosecutor, for the respondent/
State.
--------------------------------------------------------------------------------
JUDGEMENT
(11/06/2021)
Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under
Section 374 of CrPC, challenging the conviction and sentence
dated 3.6.2011 passed by Second Additional Sessions Judge,
Ashoknagar (MP) in Sessions Trial No. 181/2009, whereby
appellant No.1-Hameer Singh and appellant No.2-Brijendra Singh
have been convicted under Section 302/34 and Section 302 of
IPC, respectively, and each of them has been sentenced to undergo
RI for life and fine of Rs.1000/- and in default of payment of fine,
to undergo further RI for one year.
2. The facts necessary to be stated for disposal of the
instant appeal are that as per prosecution version, on 8.3.2009 at
about 12.00 pm (noon) deceased Lallu had objected to thrashing of
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Hameer Singh and another vs. State of MP
the crop by the accused persons which had been sown by the
deceased on the land taken on lease by the deceased from the
appellants. As per prosecution, the deceased had demanded to
refund the amount of Rs.21600/- taken by the appellant as well as
the crop of chana from the appellants. The appellants refused to do
so and on protest, appellant Hameer caught hold both the hands of
the deceased and appellant Brijendra poured petrol on the
deceased and set the deceased at fire. Bhagwat and Gangaram
rushed for rescue and extinguished the fire. In the meantime,
deceased's son Ratibhan came and took the deceased to District
Hospital where the doctor informed the police and Police
registered a case at Crime No. 166/2009 under Section 307 of IPC.
During treatment, injured Lallu died, thereupon charge sheet was
filed under Sections 307, 302/34 of IPC.
3. Appellants Hameer Singh and Brijendra Singh were
tried for the offences under Sections 302/34 and 302 IPC,
respectively, and have been convicted and sentenced as under :-
Name of Section Punishment Fine In default,
accused punishment
Hameer 302 read with Life Imprison- 1000/- on One year
Singh Section 34 ment each count RI
IPC
Brijendra 302 IPC Life Imprison- 1000/- on One year
ment each count RI
4. The grounds raised are that the appellants are
innocent and have been falsely implicated. There is no motive on
the part of the appellants. There are serious contradictions,
omissions and inconsistency in the statements of the prosecution
witnesses. The prosecution story is concocted, fabricated and
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Hameer Singh and another vs. State of MP
afterthought. The impugned judgment of the trial Court is solely
based on dying declaration made to the different witnesses
ignoring the fact of compromise taken place between the parties in
a Panchayat prior to commission of occurrence, which was
admitted by witnesses Udaybhan Singh Yadav (PW-1), Ratibhan
Singh (PW-3) and Nathan Singh (PW-6). The trial Court has
committed mistake in not considering the fact that the deceased
died after 16 days of the incident due to serious complication such
as, toxemia septicemia. The alleged eye-witnesses Bhagwat Singh
(PW-9) and Baba Yadav (PW-10) did not support the prosecution
story. The deceased had suffered 70-80% burn injuries and it was
not possible for him to give statement, in spite of that trial Court
has committed error in treating the statement as dying declaration
and wrongly convicted the appellants. There was no iota of
evidence of common intention. The occurrence took place out of
sudden provocation. No premeditation or motive was there to
commit the murder. Hence, prayed for setting aside the impugned
judgement of conviction and sentence.
5. 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.
6. Heard the learned counsel for the rival parties and
perused the record.
7. From perusal of the record, it is evident that Dr.
D.K.Jain (PW-14) has stated that Dr. Vivek Singh, who was
working with him and had died, had conducted post-mortem of the
body of Lallu. Post-mortem report is Ex.P/5. According to the
post-mortem report, the deceased died of complications due to
burn injuries and shock.
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Hameer Singh and another vs. State of MP
8. Now, in the light of following legal position the present case
has to be analyzed.
9. India has adopted adversarial system used in the common
law countries where two advocates advance their rival contentions
or represent their position before a Judge, who analyzes it to
determine the truth of the case and passes judgment accordingly. It
is in contrast to the inquisitorial system, where a Judge
investigates the case. It is well settled that no one can compel the
accused to give evidence against him in a criminal adversarial
proceeding, even he may not be questioned by the prosecutor or
Judge unless he opts to do so.
10. Judges in an adversarial system are impartial in ensuring the
fair play of due process or fundamental justice. In such system, the
Judges decide, often when called upon by counsel rather than of
their own motion, what evidence is to be admitted where there is a
dispute. In an adversarial system if a dispute arises with regard to
admission of evidence, it is always decided by the Judges. That
means, the Judges play more of a role in deciding what evidence is
to admit into the record or reject. It is true that improper
application of judicial discretion may pave the way to a biased
decision, rendering obsolete the judicial process in question. The
rules of evidence are also developed based upon the system of
objections of adversaries but the Presiding Officer/Judge of the
Court is having powers to ask questions whether relevant or
irrelevant under Section 165 of the Indian Evidence Act, 1872,
which is reproduced below:-
"165. Judge's power to put questions or
order production. - The Judge may, in order to
discover or to obtain proper proof of relevant
facts, ask any question he pleases, in any form, at
any time, of any witness, or of the parties, about
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Hameer Singh and another vs. State of MP
any fact relevant or irrelevant, and may order
the production of any document or thing; and
neither the parties nor their agents shall be
entitled to make any objection to any such
question or order, nor, without the leave of the
Court, to cross-examine any witness upon any
answer given in reply to any such question.
Provided that the Judgment must be based
upon facts declared by this Act to be relevant, and
duly proved;
Provided also that this section shall not
authorize any Judge to compel any witness to
answer any question, or to produce any document
which such witness would be entitled to refuse to
answer or produce under sections 121 to 131, both
inclusive, if the questions were asked or the
documents were called for by the adverse party;
nor shall the Judge ask any question which it
would be improper for any other person to ask
under section 148 or 149; nor shall he dispense
with primary evidence of any document, except in
the cases hereinbefore excepted.
11. In Rameshwar vs. State of Rajasthan [AIR 1952 SC 54],
the Apex Court held as under:
"The rule, which according to cases has
hardened into one of law, is not that
corroboration is essential before there can be a
conviction, but that the necessity of
corroboration, as a matter of prudence, except
where the circumstances make it safe to
dispense with it, must be present to the mind
of the judge... The only rule of law is that this
rule of prudence must be present to the mind
of the judge or the jury as the case may be and
be understood and appreciated by him or
them. There is no rule of practice that there
must, in every case, be corroboration before a
conviction can be allowed to stand."
12. The Hon'ble Apex Court in State of U.P. Versus Krishna
Master reported in [(2010) 12 SCC 324] in paras 15 and 17 has
observed as under:-
-( 6 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
"15. Before appreciating evidence of the
witnesses examined in the case, it would be
instructive to refer to the criteria for appreciation
of oral evidence. While appreciating the evidence
of a witness, the approach must be whether the
evidence of the witness read as a whole appears
to have a ring of truth. Once that impression is
found, it is undoubtedly necessary for the court to
scrutinise the evidence more particularly keeping
in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole
and evaluate them to find out whether it is against
the general tenor of the evidence and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief. Minor discrepancies
on trivial matters not touching the core of the
case, hypertechnical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some technical
error committed by the investigating officer not
going to the root of the matter would not
ordinarily permit rejection of the evidence as a
whole.
17. In the deposition of witnesses, there
are always normal discrepancies, howsoever
honest and truthful they may be. These
discrepancies are due to normal errors of
observation, normal errors of memory due to
lapse of time, due to mental disposition, shock
and horror at the time of occurrence and threat to
the life. It is not unoften that improvements in
earlier version are made at the trial in order to
give a boost to the prosecution case, albeit
foolishly. Therefore, it is the duty of the court to
separate falsehood from the truth. In sifting the
evidence, the court has to attempt to separate the
chaff from the grains in every case and this
attempt cannot be abandoned on the ground that
the case is baffling unless the evidence is really
so confusing or conflicting that the process
cannot reasonably be carried out. In the light of
these principles, this Court will have to determine
whether the evidence of eyewitnesses examined
in this case proves the prosecution case."
-( 7 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
13. In Gentela Vijayavardhan Rao v. State of AP [(1996) 6
SCC 241], the Apex Court in para 15 held as under:-
"15. The principle of law embodied in Section 6 of
the Evidence Act is usually known as the rule of
res gestae recognised in English law. The essence
of the doctrine is that a fact which, though not in
issue, is so connected with the fact in issue "as to
form part of the same transaction" becomes
relevant by itself. This rule is, roughly speaking,
an exception to the general rule that hearsay
evidence is not admissible. The rationale in
making certain statement or fact admissible under
Section 6 of the Evidence Act is on account of the
spontaneity and immediacy of such statement or
fact in relation to the fact in issue. But it is
necessary that such fact or statement must be a
part of the same transaction. In other words, such
statement must have been made contemporaneous
with the acts which constitute the offence or at
least immediately thereafter. But if there was an
interval, however slight it may be, which was
sufficient enough for fabrication then the
statement is not part of res gestae. In R. v.
Lillyman [(1896) 2 QB 167 : (1895-99) All ER
Rep 586] a statement made by a raped woman
after the ravishment was held to be not part of the
res gestae on account of some interval of time
lapsing between the act of rape and the making of
the statement. Privy Council while considering the
extent up to which this rule of res gestae can be
allowed as an exemption to the inhibition against
hearsay evidence, has observed in Teper v. R.
[(1952) 2 All ER 447] thus:
"The rule that in a criminal trial hearsay
evidence is admissible if it forms part of the
res gestae is based on the propositions that the
human utterance is both a fact and a means of
communication and that human action may be
so interwoven with words that the significance
of the action cannot be understood without the
correlative words and the dissociation of the
words from the action would impede the
discovery of the truth. It is essential that the
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Hameer Singh and another vs. State of MP
words sought to be proved by hearsay should
be, if not absolutely contemporaneous with the
action or event, at least so clearly associated
with it that they are part of the thing being
done, and so an item or part of the real
evidence and not merely a reported statement."
14. In Sukhar v. State of U.P. [(1999) 9 SCC 507], the Apex
Court in paras 6 and 10 held as under:
"6. Section 6 of the Evidence Act is an exception to
the general rule whereunder the hearsay evidence
becomes admissible. But for bringing such hearsay
evidence within the provisions of Section 6, what
is required to be established is that it must be
almost contemporaneous with the acts and there
should not be an interval which would allow
fabrication. The statements sought to be admitted,
therefore, as forming part of res gestae, must have
been made contemporaneously with the acts or
immediately thereafter. The aforesaid rule as it is
stated in Wigmore's Evidence Act reads thus:
"Under the present exception [to hearsay] and
utterance is by hypothesis, offered as an
assertion to evidence the fact asserted (for
example that a car brake was set or not set),
and the only condition is that it shall have
been made spontaneously, i.e. as the natural
effusion of a state of excitement. Now this
state of excitement may well continue to exist
after the exciting fact has ended. The
declaration, therefore, may be admissible even
though subsequent to the occurrence, provided
it is near enough in time to allow the
assumption that the exciting influence
continued."
15. Section 299 of IPC says, whoever causes death by doing an
act with the 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. Culpable homicide is the first kind
of unlawful homicide. It is the causing of death by doing :
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Hameer Singh and another vs. State of MP
(i) an act with the intention of causing 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 is was likely to
cause death.
Without one of these elements, an act, though it may be by
its nature criminal and may occasion death, will not amount to the
offence of culpable homicide. 'Intent and knowledge' as the
ingredients of Section 299 postulate, the existence of a positive
mental attitude and the mental condition is the special mens rea
necessary for the offence. The knowledge of third condition
contemplates knowledge of the likelihood of the death of the
person. Culpable homicide is of two kinds : one, culpable
homicide amounting to murder, and another, culpable homicide
not amounting to murder. In the scheme of the Indian Penal Code,
culpable homicide is genus and murder is species. All murders are
culpable homicide, but not vice versa. Generally speaking,
culpable homicide sans the special characteristics of murder is
culpable homicide not amounting to murder. In this section, both
the expressions 'intent' and 'knowledge' postulate the existence of
a positive mental attitude which is of different degrees.
16. 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."
17. '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
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Hameer Singh and another vs. State of MP
such bodily injury as is likely to cause death; or, (iii) an act with
the knowledge that it was likely to cause death.
18. 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).
19. 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.
20. 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.
21. There are three species of mens rea in culpable homicide.
First, an intention to cause death; second, an intention to cause a
dangerous injury; third, knowledge that death is likely to happen.
The act is said to cause death when death results either from the
act directly or results from some consequence necessarily or
naturally flowing from such act and reasonably contemplated as its
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Hameer Singh and another vs. State of MP
result. The offence is complete as soon as any person is killed.
22. Now, while determining whether it is culpable homicide or
murder, the Court has to keep in focus key words used in Sections
299 and 300 of the I.P.C. It is degree of probability of death which
determines whether a culpable homicide is of the gravest, medium
or the lowest degree. The word 'likely' in Section 299 conveys the
sense of probable as distinguished from a mere possibility. Words
used in Section 299 'that bodily injury sufficient in the ordinary
course of nature to cause death' indicates that death is most
probable result of the injury. Where bodily injury sufficient to
cause death, is actually caused, it is immaterial to go into the
question as to whether the accused had intention to cause death or
knowledge that the act will cause death.
23. 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."
-( 12 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
24. 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
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.
25. 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
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Hameer Singh and another vs. State of MP
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.
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
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Hameer Singh and another vs. State of MP
question is whether, as a matter of purely
objective inference, the injury is sufficient in
the ordinary course of nature to cause death."
26. 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
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
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Hameer Singh and another vs. State of MP
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.
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
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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
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."
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
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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. The fact that the death of a human being is caused is
not enough unless one of the mental states 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.
28. 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
-( 18 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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."
29. 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."
30. 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
-( 19 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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
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
-( 20 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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
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'.
31. 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
-( 21 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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 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."
32. 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
-( 22 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
that the appellant intended to cause death of the
deceased."
33. 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
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.
-( 23 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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)
"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."
34. 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
-( 24 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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.
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,
-( 25 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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,
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
-( 26 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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."
35. Section 34 of Indian Penal Code runs as under :-
"34.-- Acts done by several persons in
furtherance of common intention.-- When a
criminal act is done by several persons in
furtherance of the common intention of all,
each of such persons is liable for that act in the
same manner as if it were done by him alone."
36. Section 34 of the Indian Penal Code recognises the
principle of vicarious liability in criminal jurisprudence. A bare
reading of this Section shows that the Section could be dissected
as follows :
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the
common intention of all; and
(c) Each of such persons is liable for that act
in the same manner as if it were done by him
alone.
In other words, these three ingredients would guide the
court in determining whether an accused is liable to be convicted
with the aid of Section 34. While first two are the acts which are
attributable and have to be proved as actions of the accused, the
third is the consequence. Once the criminal act and common
intention are proved then by fiction of law, criminal liability of
having done that act by each person individually would arise. The
-( 27 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
criminal act, according to Section 34 I.P.C. Must be done by
several persons. The emphasis in this part of the Section is on the
word 'done'. It only flows from this that before a person can be
convicted by following the provisions of Section 34, that person
must have done something along with other persons. Some
individual participation in the commission of the criminal act
would be the requirement. Every individual member of the entire
group charged with the aid of Section 34 must, therefore, be a
participant in the joint act which is the result of their combined
activity. The Section does not envisage a separate act by all of the
accused persons for becoming responsible for the ultimate
criminal act. If such an interpretation is accepted, the purpose of
Section 34 shall be rendered infructuous.
37. Section 34 is intended to meet a situation wherein all
the co-accused have also done something to constitute the
commission of a criminal act. Even the concept of presence of the
co-accused at the scene is not a necessary requirement to attract
Section 34 e.g., the co-accused can remain a little away and supply
weapons to the participating accused can inflict injuries on the
targeted person. Another illustration, with advancement of
electronic equipment can be etched like this; One of such persons
in furtherance of the common intention, overseeing the actions
from a distance through binoculars can give instructions to the
other accused through mobile phones as to how effectively the
common intention can be implemented. The act mentioned in
Section 34 I.P.C., need not be an overt act, even an illegal
omission to do a certain act in a certain situation can amount to an
act e.g., a co-accused, standing near the victim face to face saw an
armed assailant nearing the victim from behind with a weapon to
inflict a blow. The co-accused, who could have alerted the victim
-( 28 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
to move away to escape from the onslaught deliberately refrained
from doing so with the idea that the blow should fall on the victim.
Such omission can also be termed as an act in a given situation.
Hence an act, whether overt or covert, is indispensable to be done
by a co-accused to be fastened with the liability under the Section.
But if no such act is done by a person, even if he has common
intention with the others for the accomplishment of the crime,
Section 34 I.P.C., cannot be invoked for convicting that person.
This Section deals with the doing of separate acts, similar or
diverse, by several persons; if all are done in furtherance of a
common intention, each person is liable for the result of them all,
as if he had done them himself, for 'that act' and 'the act' in the
latter part of the Section must include the whole action covered by
'a criminal act' in the first part, because they refer to it. This
Section refers to cases in which several persons both intend to do
and do an act. It does not refer to cases where several persons
intended to an act and some one or more of them do an entirely
different act. In the latter class of cases, Section 149 may be
applicable if the number of the persons be five or more and the
other act was done in prosecution of the common object of all.
38. In Suresh Sankharam Nangare vs. State of
Maharashtra [2012 (9) SCALE 345], it has been held that "if
common intention is proved but no overt act is attributed to the
individual accused, section 34 of the Code will be attracted as
essentially it involves vicarious liability but if participation of the
accused in the crime is proved and common intention is absent,
section 34 cannot be involved. In other words, it requires a pre-
arranged plan and pre-supposes prior concert, therefore, there
must be prior meeting of minds."
39. In Shyamal Ghosh vs. State of West Bengal [AIR
-( 29 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
2012 SC 3539], it is observed that " Common intention means a
pre-oriented plan and acting in pursuance to the plan, thus
common intention must exist prior to the commission of the act in
a point of time."
40. In Mrinal Das vs. State of Tripura [AIR 2011 SC
3753], it is held that "the burden lies on prosecution to prove that
actual participation of more than one person for commission of
criminal act was done in furtherance of common intention at a
prior concert."
41. In Ramashish Yadav v. State of Bihar [AIR 1999
SC 1083], it is observed that "it requires a pre-arranged plan and
pre-supposes prior concert therefore there must be prior meeting
of mind. It can also be developed at the spur of moment but there
must be pre-arrangement or premeditated concert."
42. Mainly two elements are necessary to fulfill the
requirements of Section 34 of IPC. One is that the person must be
present on the scene of occurrence and second is that there must
be a prior concert or a pre-arranged plan. Unless these two
conditions are fulfilled, a person cannot be held guilty of an
offence by the operation of Section 34 of IPC. Kindly see, Bijay
Singh v. State of M.B. [1956 CrLJ 897].
43. In a murder case a few accused persons were sought
to be roped by Section 34 I.P.C. It was found that one of the
accused persons alone inflicted injuries on the deceased and the
participation of the other accused persons was disbelieved. The
person who alone inflicted injuries was held liable for murder and
others were acquitted. Kindly see, Hem Raj vs. Delhi
(Administration) [AIR 1990 SC 2252].
-( 30 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
44. In Dashrathlal v. State of Gujarat [1979 CrLJ 1078
(SC)], it has been observed that "by merely accompanying the
accused one does not become liable for the crime committed by
the accused within the meaning of Section 34 I.P.C."
45. In the case at hand, prosecution examined Udaibhan
Singh (PW-1), Gajram (PW-2), Rathibhan Singh (PW-3),
Bhagwati (PW-4), Ratiram (PW-5), Nathan Singh (PW-6), Dr.
Natvar Singh (PW-7), Dr. Pradeep Kayal (PW-8), Bhagwati Singh
(PW-9), Baba Yadav (PW-10), Baijnath Singh (PW-11), Ramesh
Singh Raghuvanshi (PW-12), O.P. Arya (PW-13), Dr. D.K.Jain
(PW-14), Komal Prasad (PW-15), Sunit Baghel (PW-16), and S.K.
Chaturvedi (PW-17), Station Incharge Police Station Kanha,
Mandla (MP).
46. The defence examined Ram Ratan (DW-1), Natthu
Bediya (DW-2), Kundanlal (DW-3), Sultan Singh (DW-4),
Ramkali Bai (DW-5), Rinku (DW-6), Khalak Singh (DW-7),
Chandrabhan Singh (DW-8), Gajendra Singh (DW9), Hameer
Singh (DW-10), and Brijendra Singh (DW-11), in defence.
47. Udaibhan Singh (PW-1), Gajram (PW-2), Ratibhan
Singh (PW-3), Bhagwati (PW-4), Ratiram (PW-5) and Nathan
Singh (PW-6) are direct witnesses to the incident. They have
supported the prosecution case and have specifically stated that on
the date of incident deceased Lallu objected the accused persons
from thrashing of the crop, which was sown by the deceased on
the land taken on lease (Batai) from the accused persons.
Deceased Lallu demanded to refund back the amount of
Rs.21,600/- and chana crop from the accused persons. The
appellants refused to do so and on protest by the deceased,
appellant Hameer caught hold both the hands of the deceased and
Brijendra poured petrol on the deceased and set him at fire. The
-( 31 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
statements of the aforesaid witnesses remained unrebutted in their
cross-examination.
48. Dr. Natvar Singh (PW-7) did the MLC and has given
the certificate (Ex. P/12) with regard to physical and mental status
of the deceased Lallu during recording of dying declaration. Dr.
Pradeep Kayal (PW-8) admitted the deceased in Surgical Home for
his treatment of burn injuries. Dr. D.K.Jain (PW-14) conducted
post-mortem of the deceased and has supported the prosecution
story as well as the statements given by aforesaid witnesses. Sunit
Baghel (PW-16), Sub-Inspector, wrote Dehati Nalishi (Ex.P/19)
and sent letter to Naib Tahsildar, Ashok Nagar (Ex.P/20) asking
him to record dying declaration of the deceased Lallu.
49. O.P. Arya (PW-13), Naib Tahsildar has stated in his
statement that he recorded dying declaration of deceased Lallu as
given by the deceased. This witness has stated in para 2 of his
examination-in-chief that the doctor had given the certificate
(Ex.P/12) by certifying that at the time of recording of dying
declaration the deceased was fully conscious. In paras 3 and 4 of
his statement, this witness has stated as follows :
"3- yYyw us ;g c;ku fn;k Fkk fd fnukad
8-3-09 dh lqcg izkr% 12%00 cts xzke ijkljh
fLFkr [ksr ij ihjk ckx esa Qly puk dh
fudky jgk Fkk gehj o fotsUnz puk dh Qly
fudky jgs Fks] jkedyh iRuh gehj fudyok jgs
Fks eSa igqpk rks dgk fd puk er fudkyks esjs
iSls 31][email protected]& ns nks cfV;k ls puk eSaus cks;s
FksA oks cfV;k ugh nsus pkgrsA fy[kk i<h ugh
FkhA mu nksuks us isVz~ksy esjs Åij Mky fn;k vkSj
ekfpl dh lhd ls tyk fn;k] fpYyk;k cpkvksA
Hkxor flag] jkedyh vk x;s vkSj esjs Åij ikuh
MkykA esjk Hkrhtk cyjke ysdj 'kkldh;
fpfdRlky; v'kksd uxj vk;k FkkA
4- eSus yYyw ls iwNk Fkk fd D;k gks x;k gS
rks mlus dgk fd esa vkx ls ty x;k gwWA eSus
iwNk fd fdlus tyk;k gS rks yYyw us dgk fd
-( 32 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
fotsUnz vkSj gehj ;kno us isVz~ksy Mkydj
tyk;k gSA eSus yYyw ls ;g Hkh iwNk fd D;k
dksbZ nq'euh Fkh rks yYyw us crk;k Fkk fd esjh
iwjkuh nq'euh FkhA eSus yYyw ls iwNk fd vHkh
D;ksa tyk;k gS rks yYyw us dgk fd pus dh
Qly cfV;k ij ugh nsus ls esjs Åij isVz~ksy
Mkydj tyk;k gSA"
The statement given by O.P. Arya (PW-13) has remained
unrebutted in cross-examination.
50. The seizure memos (Ex.P/4 and P/8), map of the
incident (Ex.P/18), registration of Dehati Nalishi (Ex.P/19),
registration of FIR (Ex.P/21) and recording of statements of
various prosecution witnesses under Section 161 of CrPC, have
been proved by their respective witnesses.
51. The defence witnesses have mainly tried to establish
the civil dispute between the parties and also tried to establish that
due to depression the deceased committed suicide by means of
pouring kerosene oil and by setting him at fire, but from the
evidence available on record it is evident that this defence was not
established during cross-examination of the prosecution witnesses,
therefore, such kind of defence put forth by the defence witnesses
is of no help to the appellants. Moreover, on perusal of evidence it
is apparent that the appellants with premeditation brought with
them petrol on the place of occurrence and poured it on the body
of the deceased and set him on fire. Such act of the appellants was
itself sufficient to cause death of the deceased and reflects the
intention of the appellants to commit murder of the deceased.
There is no iota of evidence available on record to gather that the
act was done in consequence to sudden and grave provocation
caused by the deceased.
-( 33 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
52. The contention of learned counsel for the appellant
that the statements of the prosecution witnesses being relatives of
the deceased are not reliable, has no force. It is true that the
testimony of such witnesses should be scrutinized minutely and it
should be supported with other corroborative evidence.
53. 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 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."
54. 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
-( 34 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
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."
55. In the context of the above reproduced portion of the
judgment, if the contention of the learned counsel for the
appellants is examined, then we have no hesitation to conclude
that the prosecution witnesses have very well proved the
prosecution case and dying declaration of the deceased, which was
recorded by following due procedure. The witnesses have also
proved overtact and commission of the offence by the present
appellants which resulted in murder of deceased Lallu. The
defence that the deceased got further injuries due to accident and
he died after 16 days of the date of incident, has no force. Rather,
it is very well proved by the prosecution that the death has
-( 35 )- CRA No. 505/2011
Hameer Singh and another vs. State of MP
occurred only due to overtact, which was done in furtherance of
common intention by the appellants/accused persons.
56. As discussed above, by marshalling the aforesaid
evidence along with the settled principles of law, we are of the
view that the offence committed by the appellant is clearly one of
murder and squarely comes within clause "thirdly" of Section 300
of IPC, which runs as under :-
"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."
57. In the light of the foregoing discussion, we are of the
considered opinion that the trial Court has properly and legally
analyzed and appreciated the entire evidence available on record
and did not err in convicting and sentencing the present appellants.
The appeal filed by the appellant appears to be devoid of any
substance.
58. Consequently, the appeal filed by appellants Hameer Singh
and Brijendra is hereby dismissed and their conviction and
sentence are affirmed. Both the appellants are in jail. They be
intimated with the result of this appeal through relating Jail
Superintendent.
With a copy of this judgment record of the trial Court
be sent back immediately.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2021.06.15
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
14:02:02 +05'30'
