Madhya Pradesh High Court
Ramveer vs State Of M.P. on 1 September, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 82/2006
Ramveer and Kailash 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. 82/2006
1. Ramveer
2. Kailash
Both Sons of Late Jagannath Singh
Residents of village Bani,
Police Station Noorabad, District Morena (MP)
Versus
State of Madhya Pradesh
Through Police Station Noorabad
District Morena (MP).
--------------------------------------------------------------------------------
Shri A.K.Jain, learned counsel for the appellants.
Shri Lokendra Shrivastava, learned Public Prosecutor for the
respondent/ State.
--------------------------------------------------------------------------------
Date of hearing : 10th August, 2021
Date of Judgment : 1st September, 2021
Whether approved for reporting:
--------------------------------------------------------------------------------
JUDGMENT
(01/09/2021)
Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under
Section 374 (2) of CrPC, challenging the judgment of conviction
and sentence dated 23.11.2005 passed by Second Additional
Sessions Judge, District Morena in Sessions Trial No. 79/2001,
whereby appellants have been convicted under Section 302 of IPC
and sentenced to undergo life imprisonment. The appellants have
further been convicted under Section 27(1) of Arms Act and
-( 2 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
sentenced to five years RI. Both the sentences were directed to run
concurrently.
2. Admitted facts in the present case are that accused
persons Balveer, Ramveer, Kailash, Shatrughan and Siyaram are
real brothers and are sons of Jagannath Singh. Jagannath Singh
has already died. All are residents of village Bani. Rajendra Singh
(PW-1) and Balram (PW-2) are also residents of same village and
are cousin brothers. Mahendra Singh (deceased) son of Feliram
Singh was the cousin brother of Rajendra Singh (PW-1) and
Balram (PW-2). Mahendra died on 14.11.2000. On 26.7.1998,
Vasudev real brother of accused persons and Feli Ram @ Feli
Singh father of deceased Mahendra had been murdered in village
Bani. Murder trial in relation to murder of Feli Singh @ Feli Ram
was conducted against co-accused Balveer, Ramveer (Appellant
No.1 herein), Kailash (appellant No.2 herein), co-accused
Shatrughan Singh, co-accused Siyaram and three others. At the
same time, murder trial of brothers of accused persons Vasudev
was conducted against deceased Mahendra, Rajendra Singh
(PW-1), Balram (PW-2) and against brothers of Balram,
Vijayendra, Chandrabhan and Ramdin. In both the aforesaid cases,
parties had arrived at compromise. Ramjilal is brother-in-law of
Rajendra Singh (PW-1). There are two roads in village Bani, one is
raw road and another is tar road. Witness Antram (PW-4) is
resident of village Choukhuti, which is situated one kos far away
from village Bani. Accused persons were having tractor since 8-9
years from the date of incident, i.e., 14.11.2000.
3. The trial Court has convicted appellants Ramveer and
Kailash and acquitted co-accused Balveer, Shatrughan and
Siyaram. Therefore, this appeal is preferred by appellants Ramveer
and Kailash.
-( 3 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
4. The prosecution story in short is that on 14.11.2000
deceased Mahendra, Rajendra Singh (PW-1) and Balram (PW-2)
went to meet their brother-in-law Ramjilal, who was detained in
Morena Jail. When they were waiting for the bus at Noorabad Bus
Station, all of a sudden accused persons Balveer armed with
luhangi, Siyaram armed with lathi, Ramveer armed with licensed
gun and accused Kailash and Shatrughan were armed with katta,
reached on the spot by their tractor. As there was previous enmity,
hence deceased Mahendra, Rajendra Singh (PW-1) and Balram
(PW-2) ran to escape the attack towards Noorabad Police Station.
Ramveer fired his mouser gun on Mahendra. Mahendra fell down.
Thereafter, Kailash fired on Mahendra by katta. Thereafter,
remaining accused also reached there and had beaten the deceased
by lathi. Thereafter, accused persons escaped from the place of
incident. On account of that, FIR was lodged by Rajendra and
Balram, immediately after the incident. T.I. Roniya, Station
Officer, Police Station Noorabad (PW-7) prepared spot map vide
Ex.P/7 and seized two used cartridges and three live cartridges
from the place of incident vide Ex.P/14 and also seized blood-
stained soil and plain soil from the place of incident vide Ex.P/5.
One piece of paper and soil was also seized from the place of
incident vide Ex.P/6.Tractor was seized from the place of incident
vide Ex.P/8. Thereafter, body of deceased Mahendra was sent for
post-mortem. Application for conduction of post-mortem is
Ex.P/12. Post-mortem report is Ex.P/13. Memorandums given by
accused Siyaram, Balveer and Shatrughan are Ex.P/14, P/15 and
P/16. Thereafter, as per memorandum given by the accused
persons, one lathi was recovered from accused Siyaram vide
seizure memo (Ex.P/17), one katta from accused Shatrughan vide
Ex.P/18 and one luhangi from accused Balveer (Ex.P/19). Merg
-( 4 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
was registered as Ex.P/20. After completion of investigation,
charge sheet was filed.
5. It is further admitted that as per Dr. A. K. Gupta
(PW-5), who conducted post-mortem of deceased Mahendra,
found two entrance wounds and two exit wounds on the body of
deceased and one entrance wound was found near left pelvic
girdle. The bone of pelvic girdle was found fractured. There is no
exit wound relating to the injury caused on pelvic girdle.
6. Appellants Ramveer and Kailash were tried for the
offences under Sections 148, 302 of IPC, in alternate under
Section 302/149 of IPC, Section 307 of IPC each for attempt to
commit murder of Balram and Rajendra Singh, in alternate, under
Section 307 read with Section 149 of IPC and Section 27(1) read
with Section 5 of Arms Act. Appellants abjured their guilt. The
trial Court after appreciation of evidence available on record
convicted and sentenced the appellants as under :-
Name of Section Punishment Fine In default,
accused punishment
Ramveer 302 IPC Life Imprisonment
27(1) of 5 Years RI
Arms Act
Kailash 302 IPC Life Imprisonment
27(1) of 5 Years RI
Arms Act
7. The grounds raised are that the trial Court has erred in
convicting and sentencing the appellants by considering the same
set of evidence by which other co-accused persons of this case
have been acquitted, therefore, the judgment passed by the trial
Court is against law. The complainant, who lodged the FIR
-( 5 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
(Ex.P/1) has stated in his statement during recording of his
evidence in trial that the facts mentioned in FIR from 'B' to 'B'
were not as per his dictation. The trial Court has observed in para
34 of its judgment that Ex. P/1 is slightly suspicious, despite
passing of judgment of conviction against the present appellants is
incorrect. There are various contradictions between the evidence
of prosecution witnesses and Investigating Officer. In FIR, engine
number of tractor was mentioned on the information given by the
complainant and at the time of lodging FIR tractor was seized but
as per record it is apparent that tractor was seized in the evening at
around 5.00 pm. In para 34 of judgment the trial Court has given
finding that tractor was brought to the police station after lodging
of FIR. The FIR was lodged at 3.30 pm and tractor was brought at
around 5.00 pm. All the accused persons are relative and previous
enmity was there, despite finding of conviction by the trial Court
is incorrect.
8. It is also submitted by learned counsel for the
appellants that as per FIR (Ex.P/1), the FIR was lodged at 13-30
hours. There are certain contradictions between the aforesaid fact
and evidence given by the complainant in the Court, despite the
trial Court has erred in believing the evidence of prosecution
witnesses. The Investigating Officer has fabricated the FIR,
despite the trial Court has erred in believing the FIR. As per
prosecution witnesses, after first fire on Mahendra, Mahendra fell
down and remaining gun shot injuries were caused when he was in
lying state but as per evidence given by Dr. A.K.Gupta (PW-5), it
is apparent that the doctor has opined that all the gun shot injuries
were caused to the deceased while he was standing. As there was
previous enmity between the parties and that the case was
manipulated by the witnesses coupled with the fact that the
-( 6 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
witnesses are relatives and interested witnesses, the trial Court has
erred in arriving at finding of conviction against the appellants.
There are various contradictions and omissions in the statement
given by the prosecution witnesses. Therefore, the trial Court has
erred in passing the judgment of conviction against the present
appellants. Hence, prayed for setting aside the impugned judgment
of conviction and sentence.
9. Per Contra, learned State Counsel opposed the
submissions and submitted that the trial Court has rightly
convicted the appellants and awarded sentence. Hence, no case is
made out for interference.
10. Heard the learned counsel for the rival parties and
perused the record.
11. In the present case, the following question emerges
for consideration :
"(i) Whether, on 14.11.2000 at about 1.00 pm
the death of Mahendra Singh was culpable
homicide ?
(ii) Whether, the culpable homicide of deceased
Mahendra Singh comes within the purview
of 'murder' ?
(iii) Whether, the accused persons have
committed the murder of deceased
Mahendra Singh ?
(iv) Whether, the accused persons were
knowing that the act done by them was
sufficient in the ordinary course of nature to
commit culpable homicide of the
deceased ?
(v) Whether, the accused persons were having
-( 7 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
firearms without lawful authority as by
means of aforesaid firearms they committed
the offence ?"
12. 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.
13. 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."
14. 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."
-( 8 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
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.
15. The scope and ambit of clause Thirdly of Section 300
IPC was considered in the decision in Virsa Singh vs. State of
Punjab, [AIR 1958 SC 465], and the principle enunciated therein
explains the legal position succinctly. The accused Virsa Singh
was alleged to have given a single spear blow and the injury
sustained by the deceased was "a punctured wound 2" x ="
transverse in direction on the left side of the abdominal wall in the
lower part of the iliac region just above the inguinal canal. Three
coils of intestines were coming out of the wound." After analysis
of the clause Thirdly, it was held: -
-( 9 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
"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
objective inference, the injury is sufficient in
the ordinary course of nature to cause death."
16. 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
-( 10 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
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
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
-( 11 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
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
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,
-( 12 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
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."
17. 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."
18. 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 :
(i) an act with the intention of causing
death;
-( 13 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
(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.
19. 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
-( 14 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
death, or--
Secondly.-- If it is done with the intention
of causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death,
or--
Fourthly.-- If the person committing the
act knows that it is so imminently dangerous that
it must, in all probability, cause death or such
bodily injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such injury
as aforesaid."
20. '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.
21. 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).
22. 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
-( 15 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
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.
23. 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.
24. 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.
25. 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.
26. 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
-( 16 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
which is sufficient in the ordinary course of nature
to cause death. The emphasis here is on sufficiency
of injury in the ordinary course of nature to cause
death. The sufficiency is the high probability of
death in the ordinary way of nature and when this
exists and death ensues and causing of such injury
was intended, the offence is murder. Sometimes the
nature of the weapon used, sometimes the part of
the body on which the injury is caused, and
sometimes both are relevant. The determinant
factor is the intentional injury which must be
sufficient to cause death in the ordinary course of
nature."
27. 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."
-( 17 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
28. In Dhirajbhai Gorakhbhai Nayak vs. State of
Gujarat [(2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC
covers acts done in a sudden fight. The said
exception deals with a case of prosecution not
covered by the first exception, after which its
place would have been more appropriate. The
exception is founded upon the same principle,
for in both there is absence of premeditation.
But, while in the case of Exception 1 there is
total deprivation of self-control, in case of
Exception 4, there is only that heat of passion
which clouds men's sober reason and urges them
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
-( 18 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
fight must have been with the person killed. To
bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to
be noted that the 'fight' occurring in Exception 4
to Section 300, IPC is not defined in the IPC. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case, the
parties have worked themselves into a fury on
account of the verbal altercation in the
beginning. A fight is a combat between two and
more persons whether with or without weapons.
It is not possible to enunciate any general rule as
to what shall be deemed to be a sudden quarrel.
It is a question of fact and whether a quarrel is
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'.
29. 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
-( 19 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
penalty for murder by attempting to put forth a
case that there was no intention to cause death. It
is for the courts to ensure that the cases of murder
punishable under section 302, are not converted
into offences punishable under section 304 Part
I/II, or cases of culpable homicide not amounting
to murder, are treated as murder punishable under
section 302. The intention to cause death can be
gathered generally from a combination of a few
or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused
or was picked up from the spot; (iii) whether the
blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v)
whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any 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."
30. 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
-( 20 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
chosen a vital part of the body i.e. the head for
causing the injury which had caused multiple
fractures of skull. This clearly shows the force
with which the appellant had used the weapon.
The cumulative effect of all these factors
irresistibly leads to one and the only conclusion
that the appellant intended to cause death of the
deceased."
31. 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
-( 21 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
reasonable person, with any stretch of
imagination can come to conclusion that such
injury on such a vital part of the body, with such
a weapon, would cause death.
7.5 A similar view is taken by this
Court in the recent decision in Leela Ram (supra)
and after considering catena of decisions of this
Court on the issue on hand i.e. in case of a single
blow, whether case falls under Section 302 or
Section 304 Part I or Section 304 Part II, this
Court reversed the judgment and convicted the
accused for the offence under Section 302 IPC.
In the same decision, this Court also considered
Exception 4 of Section 300 IPC and observed in
para 21 as under: (SCC para 21)
"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."
32. 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
-( 22 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
out definitely about the intention on the part of
the accused. Such attendant circumstances could
be very many, they being (i) whether the act was
premeditated; (ii) the nature of weapon used; (iii)
the nature of assault on the accused. This is
certainly not an exhaustive list and every case
has to necessarily depend upon the evidence
available. As regards the user of screwdriver, the
learned counsel urged that it was only an
accidental use on the spur of the moment and,
therefore, there could be no intention to either
cause death or cause such bodily injury as would
be sufficient to cause death. Merely because the
screwdriver was a usual tool used by the accused
in his business, it could not be as if its user
would be innocuous.
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)
-( 23 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
"16. With due respect to the learned
Judge he has linked up the intent
required with the seriousness of the
injury, and that, as we have shown, is
not what the section requires. The two
matters are quite separate and distinct,
though the evidence about them may
sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p.
468, paras 16 & 17)
"16. The question is not whether the
prisoner intended to inflict a serious
injury or a trivial one but whether he
intended to inflict the injury that is
proved to be present. If he can show that
he did not, or if the totality of the
circumstances justify such an inference,
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.
-( 24 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
17. ... It is true that in a given case the
enquiry may be linked up with the
seriousness of the injury. For example, if
it can be proved, or if the totality of the
circumstances justify an inference, that
the prisoner only intended a superficial
scratch and that by accident his victim
stumbled and fell on the sword or spear
that was used, then of course the offence
is not murder. But that is not because the
prisoner did not intend the injury that he
intended to inflict to be as serious as it
turned out to be but because he did not
intend to inflict the injury in question at
all. His intention in such a case would
be to inflict a totally different injury.
The difference is not one of law but one
of fact."
33. In the light of above annunciation of law laid down by
Hon'ble Apex Court, the evidence available on record in the
present case is considered.
34. In the present case the prosecution examined Rajendra
Singh (PW-1), Balram (PW-2), Mahavir Prasad Shukla (PW-3),
Antram (PW-4), Dr. A.K.Gupta (PW-5), Phool Singh (PW-6), Sub-
Inspector D.R.Roniya (Investigating Officer)(PW-7). Ex. P/1 to
Ex.P/23 were proved by the prosecution witnesses before the trial
Court
35. First ground raised by learned counsel for the
appellants is that the FIR is anti-timed. It is true that the FIR is not
an encyclopedia but in the present case the facts mentioned in the
FIR have to be analyzed minutely.
36. Section 154 of CrPC runs as under :-
"154. Information in cognizable cases.
--(1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
-( 25 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
shall be reduced to writing by him or under his
direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf."
37. Dr. A.K.Gupta (PW-5) has stated in his statement that
on 14.11.2000 at around 4 pm he conducted post-mortem of the
body of deceased Mahendra, in whose body three entrance wounds
of firearm and two exit wounds of firearm were found. This
witness has also stated that the deceased died due to aforesaid
injuries. Post-mortem report is Ex.P/13. This witness has stated in
his statement that during the course of post-mortem he found
following injuries
(i) Gunshot injury over the sternum of the
deceased, that was 9cm x 6cm, irregular
and its margins were everted and edges
were ragged and torn;
(ii) Gunshot injury 4cm below right nipple
with oozing of blood, size 3cm x 2 cm,
margins everted (wound of exit);
(iii) Gunshot injury over right scapular
region lateral to T3 shape - round
blackening, charring of skin. Dark ring
seen having two zones margin inverted
(wound of entry);
(iv) Gunshot injury (wound of entry) at the
level of T7 on left side of back. Dark
ring seen. Charring of skin, margin -
inverted;
(v) Gunshot injury (wound of entry) above
left buttock with charring of skin, size
2cm x 2cm, shape-oval. Broken piece of
dip bone 6 cms deep, tortuous direction.
No wound of exit seen. Pallet was not
found within the wound;
(vi) Abrasion over frontal bone of skull, size
2cm x 1.5 cm, margins were irregular.
-( 26 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
It is also stated by this witness that the injuries caused
were gunshot injuries and aforesaid injuries were found on the
body of the deceased. The death was caused within six hours of
post-mortem and death of deceased was due to injuries caused to
him and was homicidal in nature.
38. In the present case, place of incident is 50-60 mtrs
away from the concerning police station. The death was caused by
gun shot injuries. Therefore, it appears that on hearing the sound
of gunshots police might have taken initiatives prior to institution
of FIR. Under Section 154 of CrPC as cognizable offence had
been committed near the police station therefore, it was not
required to register FIR first because the FIR is only information
of commission of cognizable offence. It is also not obligatory that
on commission of cognizable offence FIR be lodged first, only
after registering FIR, police can take initiative. In the present case
since police noticed that cognizable offence had occurred nearby
the police station, in response to aforesaid police had taken
cognizance and started legal action. Therefore, if any variation or
lacunae is there in the FIR, that is not fatal to the prosecution case.
Rather, it reflects that police was fully cautious and alert and had
performed its duty as per law.
39. It is also submitted by learned counsel for the
appellants that in the FIR, which was registered around three hours
prior to seizure of tractor, despite engine number of tractor has
been mentioned in the FIR, which also reflects that FIR is anti-
timed rather concocted.
40. As discussed above, whenever any cognizable offence
is committed, police is not expected to wait for lodging of FIR.
Police can initiate legal proceeding as soon as it is found that some
cognizable offence has been committed within the jurisdiction of
-( 27 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
concerned police station. Therefore, the argument advanced by
learned counsel for the defence has no force.
41. Now it has to be seen whether the aforesaid death has
been caused by the appellants or not ?
42. It is admitted fact that there was previous enmity
between the parties for commission of murder of Vasudev as well
as for commission of murder of Feli Ram. Trial was conducted
wherein parties arrived at compromise, despite aforesaid fact the
existence of enmity between the parties remained in existence,
which reflects motive of the accused persons. Prosecution
witnesses Rajendra (PW-1), Balram (PW-2) and Antram (PW-4)
have supported the prosecution case and they have stated in their
statement that first gunshot was caused by Ramveer Singh to the
deceased. Immediately thereafter, Kailash also caused gunshot
injury to the deceased. The injuries inflicted are supported by
medical evidence. Various entry as well as exit wounds were
found. These witnesses have specifically stated that as soon as
accused Ramveer caused gunshot injury to Mahendra, Mahendra
fell down, thereafter accused Kailash caused gunshot injuries to
the deceased. Deceased Mahendra was lying on the earth. Injuries
were caused on the back of the deceased. Dr. A.K.Gupta (PW-5)
has specifically stated that all three entry wounds were found on
the back of the deceased and two exit wounds were found at the
chest of the deceased. Firearm injury caused on the buttock of the
deceased had no exit wound, which also supports the statement
given by aforesaid prosecution witnesses. Dr. A.K.Singh (PW-5)
has specifically stated in his statement that considering the
gunshot entry wounds which were caused on the back of the
deceased, it is apparent that the gunshot injuries were caused while
the deceased was standing. It is true that expert evidence is not of
-( 28 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
the nature of conclusive proof but it shows the probability and on
account of probability shown inference can be drawn as in the
present case, prosecution witnesses have also stated that gunshot
injuries were caused to the deceased when the deceased was
running away from the place of incident. Blackening, inverted
edges and charring of skin was found over the body of the
deceased, which also supports the prosecution case that the
injuries found on the body of the deceased were gunshot injuries.
43. On scrutiny of evidence, it is apparent that whenever
gunshot injury is caused by two persons simultaneously and both
the persons aim their fires to a single target, no one can imagine
and presume that which injury is caused by which gun first.
Therefore, the defence taken by learned counsel for the appellants
in this regard has no force. It is also submitted that various
contradictions and omissions are there in the evidence given by
the prosecution witnesses. This argument has no force as the
incident took place within few seconds, therefore, such type of
contradictions and omissions are not fatal to the prosecution case.
The Investigating Officer has proved the investigation and the
witnesses of memorandums and seizure memos have also
supported the prosecution case.
44. In the light of the foregoing discussion, we are of the
considered opinion that the trial Court did not err in convicting
and sentencing the appellants. Hence, the appeal filed by the
appellants is devoid of merits and is hereby dismissed. The
judgment of conviction and sentence dated 23.11.2005 passed by
the trial Court is hereby confirmed.
45. As per report dated 9.8.2021 received from
Superintendent, Central Jail, Gwalior Appellant Ramveer is in jail
but he has been released on parole for 30 days w.e.f. 04.08.2021.
-( 29 )- CRA No. 82/2006
Ramveer and Kailash vs. State of MP
Similarly, appellant Kailash is also in jail and he had been released
on parole for 16 days from 28.7.2021 to 12.8.2021. Trial Court is
directed to take steps to ensure the custody of both the appellants
to serve out their remaining sentence.
Let a copy of this judgment along with record of the
trial Court be sent back immediately.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2021.09.01
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
16:54:07 +05'30'
