Madhya Pradesh High Court
Nandu vs State Of M.P. on 1 September, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 499/2006
Nandu 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. 499/2006
Nandu S/o Galtha Pardi
R/o Village Khejrachak
Tahsil & District Guna (MP)
Versus
State of Madhya Pradesh
Through Police Station Kotwali
District Guna (MP).
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Shri Anoop Nigam, learned counsel for the appellant.
Shri B.P.S.Chauhan, learned Public Prosecutor for the respondent/
State.
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Date of hearing : 23rd August, 2021
Date of Judgment : 1st September, 2021
Whether approved for reporting: YES
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JUDGMENT
(01/09/2021)
Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under
Section 374 of CrPC, challenging the judgment of conviction and
sentence dated 26.6.2006 passed by Third Additional Sessions
Judge, Fast Track, Guna, in Sessions Trial No. 268/2005, whereby
appellant has been convicted under Section 460 of IPC and
sentenced to undergo life imprisonment with fine of Rs.500/-. In
default of payment of fine, to undergo additional RI of one year.
2. Admitted facts in the present case are that Umesh
Davar (PW-4) and his wife Varsha Davar (PW-1) are residents of
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Nandu vs. State of MP
Mathur Colony, Guna. On 24.3.2005 they had gone to Jaipur.
During midnight of 24th and 25th March, 2005, unknown persons
committed theft in their house and also committed murder of
Chowkidar Bhagwan Singh. This incident was informed by their
brother Gulshan Davar, who lodged FIR (Ex.P/2). It is also
undisputed that merg (Ex.P/11) was registered by Hemant Tiwari
(PW-11) as per information given by Umesh Davar. It is also
admitted that spot map (Ex.P/10) was prepared by Balbahadur
Singh Parmar (PW-10) on 25.3.2005 and remaining investigation
was also done by Balbahadur Singh Parmar (PW-10). It is also
admitted that Dr. P.K.Sharma (PW-5) had conducted the
postmortem of deceased Bhagwan Singh. Postmortem report is
Ex.P/5.
3. The prosecution story in short is that Umesh Davar
(PW-4) and his wife Varsha Davar (PW-1) are the residents of
Mathur Colony, Guna. They were visiting the house of their
relative at Jaipur. They had requested Gulshan Davar, brother of
Umesh Davar, staff Hariom Ojha and Pawan to lookafter the
house. On the date of incident, i.e., midnight of 24 th and 25th
March, 2005 unknown persons entered into their house by
breaking grill of window and committed theft of various valuable
ornaments along with gents watch and idol of Sai Baba. As guard
Bhagwan Singh objected the same, he was murdered by the
aforesaid unknown persons. Gulshan Davar visited the house of
Umesh Davar on the next day morning, he saw that guard
Bhagwan Singh was murdered and his body was roped there and
one grill of a window was also removed. Gulshan Davar informed
the police, on account of that Ex.P/2 was registered for
commission of offence under Section 460 of IPC. Gulshan Davar
informed Umesh Davar about the incident. Postmortem of the
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Nandu vs. State of MP
deceased was conducted by Dr. P.K.Sharma (PW-5). Postmortem
report is Ex.P/5, wherein the doctor concerned has stated that
Bhagwan Singh died due to coma, which was the result of head
injury. One important fact was brought on record that in the
midnight of 24th and 25th March, 2005, Constable Bhaskar Singh
Raghuvanshi (PW-3) and one another Constable were on gast
(official round) in their area. At around 3.00 amm they saw one
motorcycle was coming from Mathur Colony side. Three persons
were seating on the motorcycle. As soon as they saw the police,
they fled away. The Constable had seen the motorcycle number in
the light of torch. Motorcycle number was MP-08-J-7149 and
persons sitting on motorcycle were young and were also looking
like Pardi. When they returned back to Police Station after gast at
around 5.00 am, they came to know that murder has been
committed in Mathur Colony.
4. During investigation accused Nandu Pardi was
arrested alongwith his motorcycle No. MP08-J-7149, seizure
memo is Ex.P/13. Memorandum was recorded and as per
information given in memorandum various stolen properties were
seized vide Ex.P/14. Dinesh Sharma, Parshad Municipal Council,
conducted identification parade of the seized articles. On the basis
of above, case was registered and charge sheet was filed against
present appellant. Against absconding accused Jackey S/o Babu
charge sheet was filed under Section 299 of CrPC.
5. Appellant Nandu was tried for the offence punishable
under Section 460 of IPC. Appellant abjured his guilt. The trial
Court convicted and sentenced the appellant as under :-
Name of Section Punishment Fine In default,
accused punishment
Nandu 460 IPC Life Imprisonment 500/- One year RI
-( 4 )- CRA No. 499/2006
Nandu vs. State of MP
6. The grounds raised are that the trial Court has erred in
convicting and sentencing the appellant. The FIR was lodged
against unknown person. There is no eye-witness in the present
case. The prosecution is lacking direct evidence and the entire
prosecution story is suspicious. Identification was not conducted
properly and the relevant witness Constable Bhaskar Singh
Raghuvanshi (PW-3) has not stated anything about identification
of accused/appellant, hence the prosecution story is suspicious and
lacunaes in the investigation are fatal to the prosecution case. The
trial Court has erred in convicting the appellant only on the basis
of seizure of stolen properties despite the fact that the articles were
seized after three months of the incident. No any other articles
similar to the stolen properties were mixed with the seized articles
at the time of identification, therefore, the identification became
doubtful. The articles were seized from open place, therefore, no
presumption could be drawn against the present appellant/accused.
The statement of Bhaskar Singh Raghuvanshi (PW-3) is unreliable
as he had seen the motorcycle from back side, when the
motorcycle was returning back. The FIR is also self-contradictory.
Hence, prayed for setting aside the impugned judgment of
conviction and sentence.
7. 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.
8. Heard the learned counsel for the rival parties and
perused the record.
9. In the present case, the following question emerges
for consideration :
"(i) Whether, in the midnight of 24 th and 25th
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Nandu vs. State of MP
March, 2005, accused/appellant Nandu
Pardi committed lurking house-trespass by
night or house-breaking by night in the
house of Umesh Davar ?
(ii) Whether, accused/appellant Nandu while
committing lurking house-trespass or
lurking house-break by night by breaking
grill of window of the house of Umesh
Davar voluntarily caused death of
Chowkidar Bhagwan Singh ?
(iii) Whether, the death of Bhagwan Singh was
culpable homicide ?
(iv) Whether, the culpable homicide of
deceased Bhagwan Singh comes within the
purview of 'murder' ?
(v) Whether, appellant/accused Nandu had
committed murder of guard Bhagwan
Singh ?
10. Along with considering admitted facts mentioned in
para 2 of the judgment, the present case is considered on its merits.
11. Dr. P.K.Sharma (PW-5) has stated in his statement
that he conducted postmortem of deadbody of deceased Bhagwan
Singh and he found injuries over the head and nose of the
deceased and the deceased died due to coma, which was the result
of injuries caused on head. The injuries caused were sufficient to
commit culpable homicide, which amounts to murder. Post-
mortem report is Ex.P/5, wherein following injuries were found
over the body of deceased Bhagwan Singh:-
(i) Incised wound, size 6cm x 1cm x bone
deep over scalp, right parietal region,
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Nandu vs. State of MP
fracture of right parietal bone seen;
(ii) Incised wound, size 3cm x 1cm x bone
deep over right frontal region, fracture of
frontal bone right side seen;
(iii) Incised wound Nose bridge, size 3cm x
1/2cm x bone deep.
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."
-( 7 )- CRA No. 499/2006
Nandu 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: -
-( 8 )- CRA No. 499/2006
Nandu 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
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Nandu 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
-( 10 )- CRA No. 499/2006
Nandu 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,
-( 11 )- CRA No. 499/2006
Nandu 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;
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Nandu 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
-( 13 )- CRA No. 499/2006
Nandu 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
-( 14 )- CRA No. 499/2006
Nandu 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
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Nandu 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."
-( 16 )- CRA No. 499/2006
Nandu 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
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Nandu 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
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Nandu 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
-( 19 )- CRA No. 499/2006
Nandu 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
-( 20 )- CRA No. 499/2006
Nandu 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
-( 21 )- CRA No. 499/2006
Nandu 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)
-( 22 )- CRA No. 499/2006
Nandu 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.
-( 23 )- CRA No. 499/2006
Nandu 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. Gulshan Davar (PW-2) had lodged the FIR (Ex.P/2),
Lash Panchayatnama (Ex.P/4) was prepared and the investigation
was done by Balbahadur Singh Parmar (PW-10). During the
course of investigation seized articles were identified and the
identification parade was conducted by Parshad, Dinesh Sharma
(PW-14), wherein the seized articles were identified by Umesh
Davar (PW-4) and his wife Varsha Davar (PW-1). The seizure
memo of motorcycle No. MP08-J-7149 was also prepared by Sub-
Inspector R.S.Chauhan (PW-12). Memorandum given by accused
Nandu is Ex.P/15. On the basis of memorandum given by the
accused, the stolen properties were seized from the place as per the
information given by the accused in his memorandum. The articles
were seized vide Ex.P/14. Parshad Dinesh Sharma (PW-14)
conducted the process of identification of seized articles.
-( 24 )- CRA No. 499/2006
Nandu vs. State of MP
35. It would be relevant to reiterate the provisions of
Section 460 of IPC as under :
"460. All persons jointly concerned in
lurking house-trespass or house-breaking
by night punishable where death or
grievous hurt caused by one of them.-- If, at
the time of the committing of lurking
house-trespass by night or house-breaking
by night, any person guilty of such offence
shall voluntarily cause or attempt to cause
death or grievous hurt to any person, every
person jointly concerned in committing
such lurking house-trespass by night or
house-breaking by night, shall be punished
with imprisonment for life, or with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine."
From the above provision, it is apparent that Section
460 of IPC is intended that where any person commits lurking
house-trespass by night or house-breaking by night and voluntarily
attempts to cause death or grievous hurt to any person, every
person shall be punished in the manner provided for in the section.
The words " at the time of the committing of lurking house-
trespass by night or house-breaking by night" are the most
important ingredient of the section. The words "at the time of
committing of" are limited to the time during which criminal
trespass continues which forms an element of house-trespass,
which is itself essential to house-breaking and is required to be
committed during house-trespass or house-breaking. It is also one
of the most important ingredients that the person, who commits
the aforesaid act, while committing such act, commits murder or
causes grievous hurt.
36. For proving the aforesaid act of a person or proving a
person guilt of aforesaid offence under Section 460 of IPC, the
-( 25 )- CRA No. 499/2006
Nandu vs. State of MP
prosecution is required to prove :
(i) that, the accused committed lurking
house-trespass by night or house-
breaking by night;
(ii) that, the accused causes or attempts to
cause death or grievous hurt;
(iii) that, the accused had committed
aforesaid act whilst engaged in
committing lurking house-trespass by
night or house-breaking by night.
37. As mentioned above, Dr. P.K.Sharma (PW-5) had
proved post-mortem report (Ex.P/5), wherein he has opined that
the death of the deceased was due to injuries caused on head and
nose, which resulted into coma and death was homicidal in nature
and the injuries caused were also sufficient to commit murder.
38. Now it has to be seen whether the aforesaid theft was
committed by the present appellant ? If yes, whether the murder of
Bhagwan Singh has been committed by the present appellant
during lurking house-trespass by night or by lurking house-break
by night ?
39. As the case is of theft and theft was done by lurking
house-trespass by night and there is no eye-witness to the case,
therefore, only on the basis of circumstantial evidence this case
has to be considered.
40. Varsha Davar (PW-1) and Umesh Davar (PW-2) are
husband-wife. They have stated in their statement that one day
before the date of incident they went to Jaipur. On the next day of
the incident they were informed by Gulshan Davar (PW-2) that
theft has been committed in their house and murder of Bhagwan
Singh has also been committed. On account of that, they reached
-( 26 )- CRA No. 499/2006
Nandu vs. State of MP
to their residence. This fact has also been stated in para 1 of the
statement given by Umesh Davar (PW-4).
41. Gulshan Davar (PW-2) has stated in his statement that
on the very next day of the incident he visited the house of his
brother along with police and locks were opened in front of him
and he disclosed the whereabouts of the stolen properties and
Umesh Davar (PW-4) has stated in his statement that one day after
the incident he reached to his house then locks were opened by the
police in his presence. He verified the articles of his house and
informed accordingly regarding stolen property to the police. That
means, there is vital contradiction between the statement given by
Umesh Davar (PW-4) and Gulshan Davar (PW-2).
42. Rajesh Solanki (PW-13) in para 1 of his statement has
stated that around one and half years back he was passing through
road, when he reached near a small bridge, he saw that police had
already arrested Nandu Pardi and his signatures were on arrest
memo (Ex.P/12). This witness is also witness of memorandum
(Ex.P/15) and seizure memo (Ex.P/13). This witness has stated in
his cross-examination (para 3) that all the aforesaid proceedings
were done at Kotwali, Guna and all the documents on which he
had signed are annexed with the case produced before the Court.
43. Hariom Ojha (PW-7) and Pawan (PW-8) are the
witnesses of seizure of one piece of glass and one rope but the
aforesaid seizures are not the result of memorandum given by the
accused. They have stated in their cross-examination that they put
their signatures as per the direction of the police.
44. R.S.Chauhan (PW-12) in para 7 of his statement has
stated that at the time of arrest of accused nothing was recovered
from the possession of the accused. Only one motorcycle was
seized. This witness has stated in his statement in para 3 that
-( 27 )- CRA No. 499/2006
Nandu vs. State of MP
various stolen articles were seized by Ex.P/14. The aforesaid
articles were recovered from the possession of the accused but the
place of seizure is an open place and no memorandum witness has
supported the prosecution case.
45. Bhaskar Singh Raghuvanshi (PW-3) has stated in his
statement that in the midnight of 24 th and 25th March, 2005 he was
on official duty and was on night gast. When he reached Nazul
Colony, where Bhargava Colony, Mathur Colony, Premi Colony
and other colonies are situated, at around 3.00 am he saw one
motorcycle which was coming from the side of Mathur Colony,
three persons were seating on it. They were going towards railway
line. Since they saw the police they returned back their motorcycle
and fled away towards Balwant Nagar. He has also stated that in
the light of torch he saw the number of motorcycle, i.e., MP08-J-
7149. This witness has also stated that when he returned back after
gast at around 5.00 am to police station Kotwali, he came to know
that in Mathur Colony murder has been committed, so he informed
about motorcycle number to the Station House Officer. He has also
stated that the bikers were young boys and looking like Pardis.
46. Prosecution has tried to implicate the present accused
on the basis of aforesaid evidence but the aforesaid information
had neither been entered into any Rojnamcha Sahna nor any
documentary evidence had been produced. Therefore, this fact
again creates doubt over the prosecution story.
47. Dinesh Sharma (PW-14) Parshad, Nagar Palika has
stated in his statement that he conducted identification proceeding
of seized articles. He has also stated that identification proceeding
was conducted in the absence of police at Naveen Pathshala,
Nayapura, Guna. In his cross-examination he has stated that as his
handwriting was not good, therefore, the proceeding of Ex.P/1,
-( 28 )- CRA No. 499/2006
Nandu vs. State of MP
identification of articles has not been written by him. He got it
written by the police who took the seized articles before him. The
statement of this witness is also not reliable as Varsha Davar
(PW-1) has stated in cross-examination that identification of
articles was done inside police station. This witness has tried to
correct her version afterwards but has no force to support the
prosecution case.
48. In the present case, finger prints of the accused were
also taken but no examination of finger prints was conducted and
the motorcycle which was alleged to be seized from the possession
of the accused was neither having key nor any ownership
documents were seized. Therefore, prosecution remains failed to
establish that the accused Nandu was the owner of seized
motorcycle.
49. In Padala Veera Reddy vs State Of Andhra Pradesh
And Others [AIR 1990 SC 79], it has been observed as under :-
"10. Before adverting to the arguments
advanced by the learned Counsel we shall at
the threshold point out that in the present
case here is no direct evidence to connect
the accused with the offence in question and
the prosecution rests its case solely on
circumstantial evidence. this Court in a
series of decisions has consistently held that
when a case rests upon circumstantial
evidence such evidence must satisfy the
following tests :
(1) the circumstances from which an
inference of guilt is sought to be
drawn, must be cogently and firmly
established;
(2) those circumstances should be of
a definite tendency unerringly
pointing towards guilt of the accused;
-( 29 )- CRA No. 499/2006
Nandu vs. State of MP
(3) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from
the conclusion that within all human
probability the crime was committed
by the accused and none else; and (4)
the circumstantial evidence in order
to sustain conviction must be
complete and incapable of
explanation of any other hypothesis
than that of the guilt of the accused
and such evidence should not only be
consistent with the guilt of the
accused but should be inconsistent
with his innocence. (See Gambhir v.
State of Maharashtra).
11. See also Rama Nand and Ors. v. State of
Himachal Pradesh, Prem Thakur v. State of
Punjab, Earabhadrapa alias Krishappa v.
State of Karnataka Gian Singh v. State of
Punjab 1986 Suppl. SCC 676, Balvinder
Singh v. State of Punjab."
50. When the case fully resists upon the circumstantial
evidence then it is the settled principle of law that all the
circumstances available against the accused should be so
connecting that only inference can be drawn that it is the
appellant/accused who is the author of the crime concerned. For
this proposition, reliance can be placed on a leading case of the
Hon'ble Apex Court reported in Sharad Birdhichand Sarda v.
State of Maharashtra (AIR 1984 SC 1622), wherein the Hon'ble
Apex Court after discussing the entire law on the point case to the
conclusion as under:-
"The following conditions must be fulfilled
before a case against an accused based on
circumstantial evidence can be said to be
fully established;
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
-( 30 )- CRA No. 499/2006
Nandu vs. State of MP
fully established. The circumstances
concerned 'must or should' and not 'may be'
established.
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty.
(3) the circumstances should be of a
conclusive nature and tendency.
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused."
On perusal of the aforesaid case laws on the point, we
are of the considered opinion that the prosecution has failed to
prove the chain of circumstances available.
51. In the case of Ramreddy Rajeshkhanna Reddy vs.
State of A.P. [(2006) 10 SCC 172], it has been held in placing
reliance on the judgment in the case of Anil Kumar Singh v.
State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v.
State of A.P. (2005) 7 SCC 603:-
"It is now well settled that with a view
to base a conviction on circumstantial
evidence, the prosecution must establish all
the pieces of incriminating circumstances by
reliable and clinching evidence and the
circumstances so proved must form such a
chain of events as would permit no
conclusion other than one of guilt of the
accused. The circumstances can not be on
any other hypothesis. It is also well-settled
that suspicion, however, grave may be,
cannot be substitute for a proof and the
Courts shall take utmost precaution in
-( 31 )- CRA No. 499/2006
Nandu vs. State of MP
finding an accused guilty only on the basis of
the circumstantial evidence."
52. On the basis of aforesaid discussions, it is apparent
that the prosecution has failed to prove its case beyond doubt.
Resultantly, the appeal filed by appellant Nandu is hereby allowed
and appellant Nandu is hereby acquitted of the charges under
Section 460 of IPC. The impugned judgment of conviction and
sentence passed by the trial Court is hereby set aside.
53. As per report dated 11.8.2021 received from
Superintendent, Central Jail, Gwalior Appellant Nandu is in jail.
Appellant Nandu be released in this appeal arising out of Sessions
Trial No. 268/2005, if not required in any other case.
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' 16:53:14 +05'30'
