Madhya Pradesh High Court
Jhabbu vs State Of M.P. on 24 November, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 263/2010
1. Jhabbu S/o Mohan Singh Bhadoria
2. Kamal S/o Mohan Singh Bhadoria
3. Babloo S/o Mohan Singh Bhadoria
All Residents of Purani Basti Bhind, P.S. Bhind
District Bhind (MP)
Versus
State of Madhya Pradesh
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Shri Ashok Kumar Jain, counsel for the appellants.
Shri R.K. Awasthi, Public Prosecutor, for the respondent/ State.
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Reserved on : 17th November, 2021
Whether approved for reporting: Yes
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JUDGEMENT
(24/11/2021)
Per Rajeev Kumar Shrivastava, J.:
1. The instant Criminal Appeal is preferred under
Section 374 of CrPC, against the judgment of conviction and
sentence dated 22.03.2010 passed by Third Additional Sessions
Judge, Bhind, District Bhind in Sessions Trial No.212/2009,
whereby appellant No.1-Jhabbu has been convicted under Section
302 of IPC and sentenced to undergo life imprisonment with fine
of Rs.500/-, in default of payment of fine, to undergo RI for three
months, and under Section 25/27 of Arms Act, to undergo RI for
three years with fine of Rs.500/-, in default of payment of fine, to
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Jhabbu & Ors. vs. State of MP
undergo rigorous imprisonment of three months and appellant
No.2-Kamal and appellant No.3- Babloo have been convicted
under Section 302 read with Section 34 of IPC and sentenced to
undergo life imprisonment with fine of Rs.500/- each, in default of
payment of fine, to undergo RI for three months each respectively.
2. The prosecution case in short is that on 28.08.2008 at
around 12.30 pm in front of hotel of Kallu Batham Jail Road
Bhind when complainant Ajeem Khan his elder brother Chanda
Khan were sitting in the hotel of Kallu Batham, their father Imam
Khan @ Immy Musalman was returning back after meeting with
his son Shahjad Khan, who is the elder brother of complainants.
When their father Imam Khan reached in front of hotel of Kallu
Batham, accused/appellants Ghambheer Singh @ Gambare
Bhadoriya, Jhabbu Singh Bhadoriya, Ballu Bhadoriya and Kamal
Singh Bhadoriya reached there, all were armed with mouser and
confined their father Imam Khan to kill him. When their father
tried to escape from the place, Gambheer Singh fired upon their
father by mouser Katta which resulted injuries over the right side
of waist of Imam Khan. Thereafter, Jhabbu Singh fired over the
head of Imam Khan by means of mouser katta which resulted in
death of Imam Khan. Chanda Khan, Mohd. Wasim etc. were the
eyewitnesses to the incident. The accused/appellants committed
the aforesaid offence considering the previous enmity was due to
murder of elder brother of Gambheer Singh named Lallu
Bhadoriya. FIR was lodged. Investigation was done. After
completion of investigation charge sheet was filed.
3. Appellants were tried for the offences under Sections
302 of IPC and Section 25/27 of Arms Act and 302/34 of IPC. The
trial Court convicted and sentenced the appellants as under :-
-( 3 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
Name of Section Punishment Fine In default,
accused punishment
Jhabbu Singh 302 IPC Life Imprisonment 500/- 3 months
@ Murat Addl. RI
Singh
25/27 Arms Three years RI 500/- 3 months
Act Addl. RI
Babloo Singh 302/34 Life Imprisonment 500/- 3 months
Addl. RI
Kamal Singh 302/34 Life Imprisonment 500/- 3 months
Addl. RI
4. The grounds raised are that the judgment of
conviction and sentence is bad in law and against settled
principles of law. There are various contradictions in prosecution
evidence. The appellants have been falsely implicated in this case
due to previous enmity. On the date of incident eyewitnesses were
not present on the place of incident as they reside at Itawa and the
incident took place at Bhind. Defence has produced the visiting
register of jail wherein no such fact has been mentioned that on
the date of incident deceased Imam Khan met his son Shahjad
Khan in jail. The learned trial Court has erred in disbelieving the
defence evidence. There was no motive of committing murder of
the deceased. There are lots of variations in the statement of the
prosecution witnesses. Hence, prayed for acquittal.
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. In the present case, the following question emerges
-( 4 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
for consideration :
"(i) Whether, on 28.08.2008 at about 12.30 pm the
death of Imam Khan was culpable homicide?
(ii) Whether, the culpable homicide of deceased
Imam Khan comes within the purview of
murder?
(iii) Whether the accused persons caused
firearm injuries to the deceased Imam
Khan?
(iv) Whether the accused/appellants possessed
firearm without valid licence?
8. Before considering the merits of the case, it would be
appropriate to throw light on relevant provisions of Sections 299
and 300 of Indian Penal Code.
9. 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."
-( 5 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
10. 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.
11. 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
-( 6 )- CRA No. 263/2010
Jhabbu & Ors. 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
question is whether, as a matter of purely
-( 7 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
objective inference, the injury is sufficient in
the ordinary course of nature to cause death."
12. 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
-( 8 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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.
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
-( 9 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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
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."
13. 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."
14. Section 299 of IPC says, whoever causes death by
-( 10 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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 :
(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.
15. 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--
-( 11 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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."
16. '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.
17. 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).
18. 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
-( 12 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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.
19. 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.
20. The fact that the death of a human being is caused is
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.
21. 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.
22. 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
-( 13 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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."
23. 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."
24. In Dhirajbhai Gorakhbhai Nayak vs. State of
-( 14 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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
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
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Jhabbu & Ors. vs. State of MP
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
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'.
25. 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
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Jhabbu & Ors. vs. State of MP
is for the courts to ensure that the cases of murder
punishable under section 302, are not converted
into offences punishable under section 304 Part
I/II, or cases of culpable homicide not amounting
to murder, are treated as murder punishable under
section 302. The intention to cause death can be
gathered generally from a combination of a few
or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused
or was picked up from the spot; (iii) whether the
blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v)
whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any 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."
26. 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
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Jhabbu & Ors. vs. State of MP
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."
27. 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
-( 18 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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)
"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."
28. 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
-( 19 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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.
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
-( 20 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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,
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
-( 21 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
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."
29. 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."
30. Section 34 of the Indian Penal Code recognises the
principle of vacarious 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
-( 22 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
having done that act by each person individually would arise. The
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.
31. 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
-( 23 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
inflict a blow. The co-accused, who could have alerted the victim
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.
32. 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."
-( 24 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
33. In Shyamal Ghosh vs. State of West Bengal [AIR
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."
34. 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."
35. 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."
36. 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].
37. 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].
-( 25 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
38. 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."
39. In Rajagopalswamy Konar vs. State of Tamil Nadu
[1994 CrLJ 2195 (SC)], there was land dispute between the
members of a family, as a result of which deceased persons were
attacked by the accused persons, in which one accused stabbed
both the deceased persons and other caused simple injuries with a
stick. It was held that the conviction of both the accused under
Section 34 read with Section 302 IPC was not proper. Other
accused was convicted under Section 324 of IPC. Kindly see, .
40. In Sheikh Nabab v. State of Maharashtra [1993
CrLJ 43(SC)], it is observed that "the overtact on the part of
accused could not be proved and it was held that the order of the
conviction was not proper."
41. On a perusal of the evidence on record, 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."
42. In the present case, the bodily injury is caused by
gunshot and was sufficient in the ordinary course of nature to
cause death. It is in two parts, first part is subjective one which
indicates that the injury must be intentional and not accidental and,
second part is objective, in that, looking to the injury caused the
Court must be satisfied that it was sufficient in the ordinary course
of nature to cause death.
-( 26 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
43. Prosecution has examined (PW/1) Dr. Ajeet Mishra,
Medical Officer who conducted the postmortem of deceased Imam
Khan, Yogendra Singh Kushwah, Arms Clerk (PW/2), Akhlesh
(PW/3) and Vipendra (PW/4) who are the witnesses of the arrest
memo Ex-P/3, seizure memo Ex-P/4, Ajeem Khan (PW/5) and
Chanda Khan (PW/6) who are the sons of deceased Imam Khan
and Baseem Khan (PW/7) were the eyewitnesses to the incident,
Hukum Singh Yadav, Inspector (PW/8) who conducted
investigation, D.S. Bhadauriya, Station Incharge Kotwali Bhind
(PW/9) who arrested the accused persons and recovered firearm
from the possession of Jhabbu and accused persons have examined
defence witnesses Boby Chouhan (DW/1), Om Singh Tomar (jail
prahari) (DW/2) and Kallu Batham (DW/3).
44. Dr. Ajeet Mishra (PW/1) has stated in his statement
that on 28.08.2008 he was Medical Officer in District Hospital
Bhind. On that date Constable Ashish Tiwari No.81 brought the
dead body of Imam Khan S/o Abdulla Khan aged 65 years for
postmortem. He conducted postmortem of dead body of deceased
Immy Khan and he found following injuries on the body of
deceased:-
"(i) Entrance wound 2 cm x 1/2x cavity deep up to L.5
vertibra over right side of back surrounded by
blackening.
(ii) One exit wound 3½ cm x 4 cm x cavity deep over
the left side of stomach from where intestine were
coming out.
(iii) Entrance wound 2½ cm x 2 cm x cavity deep
above the right scapula bone over the head.
(iv) One exit wound 7x5 inch over occipital bone and
parietal bone. The brain matter and blood was
coming out. Half portion of occipital bone was
missing.
On Internal Examination, he found that half portion of
-( 27 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
occipital bone was missing and brain material was coming out
from the exit wound. Both lungs were yellowish. Both chambers
of heart were empty. Blood was found inside of stomach.
Membranes of intestine were lacerated. Gas as well undigested
food was found in the intestines and right kidney was filled with
blood and left was ruptured. He sealed the clothing of the
deceased and handed over it to the constable. He further opined
that the death was homicidal in nature which was the result of
injury caused by firearm over the vital organ. Death was caused
within six hours of postmortem. Postmortem report is Ex-P/1. The
aforesaid statement remain unchanged in his cross-examination.
The injuries caused were sufficient to cause death and were caused
by gunshot, therefore, the death of deceased was culpable
homicide.
45. Now it has to be seen whether the aforesaid act was
done by the accused/appellants in furtherance of common
intention.
46. Ajeem Khan (PW/5) who is the son of deceased Imam
Khan has stated in his statement that on 28.08.2008 at around
12.30 pm his father deceased Imam Khan was coming back after
meeting to his son Shahjad Khan(elder brother of Ajeem Khan) in
jail, when he reached in front of the hotel of Kallu, accused
persons Gambheer Singh, Jhabbu Singh, Kamal Singh and Babloo
Singh reached there and stopped his father Imam Khan and told to
kill him and thereafter they fired upon Imam Khan by means of
katta mouser and caused injuries on the right side of hip and over
the head which resulted into death of Imam Khan. He further
stated that the aforesaid act was done due to previous enmity. He
has further stated that all the accused/appellants are brothers and
criminal trial was conducted against his father for commission of
-( 28 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
murder of Lallu Singh brother of accused/appellants. Chanda
Khan (PW/6), Baseem Khan (PW/7) have supported the evidence
given by Ajeem Khan (PW/5) and their statements remain
unchanged in their cross-examination.
47. Hukum Singh Yadav (PW/8) has proved the
investigation as well as arrest and seizure memo. The prosecution
witnesses relating to arrest memo and seizure memo have not
corroborated the story of prosecution, but is not fatal to the
prosecution case.
48. D.S. Bhadauriya (PW/9) has stated in his statement
that he arrested Jhabbu Singh by Ex-P/3 and one desi katta of 315
bore with one live round of 315 bore were recovered from the
possession of the accused. He has also proved the arrest of other
accused/appellants. Defence has produced defence witness Boby
Chauhan who alleged to be a chance witness to the incident but
his statement is not trustworthy and the fact from where the
eyewitnesses were coming on the spot of incident is not relevant.
49. 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 accused/appellants. Hence, the appeal filed by
the appellants appear to be devoid of any substance.
50. Consequently, Criminal Appeal No. 263/2010 filed
by appellants Jhabbu, Kamal, and Babloo is hereby dismissed and
their conviction and sentence are hereby affirmed. Since, appellant
No. 2 Kamal and appellant No.3 Babloo are on bail after
suspending their jail sentence by this Court, therefore, their bail
bonds are cancelled and they are directed to immediately surrender
before the trial Court to serve out their remaining jail sentence.
51. As per report dated 26.8.2021 received from
Superintendent, Central Jail, Gwalior, Appellant No.1 Jhabbu is in
-( 29 )- CRA No. 263/2010
Jhabbu & Ors. vs. State of MP
jail but he has been released on parole. Trial Court is directed to
take steps to ensure the custody of the appellant No.1 Jhabbu to
serve out his remaining sentence.
With a copy of this judgment record of the trial Court
be sent back immediately.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
van Judge Judge
VANDANA
VERMA
2021.11.24
17:34:14 -08'00'
