The State Of Madhya Pradesh vs Sitaram (Surety)
2022 Latest Caselaw 6436 MP

                                            1

                 High Court of Madhya Pradesh
                       Bench at Gwalior
                      *****************
           DB:- Hon'ble Shri Justice G.S.Ahluwalia &
           Hon'ble Shri Justice Rajeev Kumar Shrivastava

                          CRA 174 of 2011
          Satish alias Vikram Singh Jatav Vs. State of MP

                             CRA 799 of 2011

                 Laxman Singh Jatav Vs. State of MP

                                    AND

                          MCRC 7709 of 2014

                   State of MP Vs. Sitaram (Surety)

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Shri Prakhar Dhengula, counsel for appellants in CRA 174 of
2011 & CRA 799 of 2011 as well as for Surety Sitaram in MCRC
7709 of 2014.
Shri CP Singh, counsel for State in CRA 174 of 2011 & CRA 799
of 2011 as well as for applicant in MCRC 7709 of 2014.
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Reserved on                                   : 19-04-2022
Whether approved for reporting                : ......../............
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                             JUDGMENT

(Delivered on 29/04/2022)

Per Rajeev Kumar Shrivastava, J:-.

This common judgment shall also govern disposal of

Criminal Appeal No.799/2011 filed by appellant -Laxman Singh

Jatav as well as MCRC No.709/2014 filed by State against the

Surety of appellant Satish alias Vikram Singh Jatav.

(2) Being dissatisfied with the judgment of conviction and

order of sentence dated 5th February, 2011 passed in Sessions Trial

No.293 of 2007 by Second Additional Sessions Judge, Dabra,

Criminal Appeal 174/2011 has been preferred by appellant Satish

alias Vikram Singh Jatav whereby, he has been convicted u/S 323

of IPC and sentenced to undergo One Year Rigorous

Imprisonment with fine of Rs.500/- with default stipulation; while

appellant Laxman Singh Jatav has been convicted u/ 302 of IPC

(two counts) and sentenced to undergo Life Imprisonment with

fine of Rs.10,000/- for commission of murder of deceased

Archana and Veere alias Virendra and further, he has been

convicted u/S 307 of IPC (three counts) and sentenced to undergo

Seven Years Rigorous Imprisonment with fine of Rs.5,000/-with

default stipulation for causing injuries to injured Kailashi Bai,

Sultan Singh and Jagdish Singh Jatav. All jail sentences of

appellant Laxman Sigh Jatav were directed to run separately.

(3) It is pertinent to mention here that vide order dated 03-03-

2011, execution of jail sentence of appellant Satish alias Vikram

Singh Jatav was suspended and he was granted benefit of bail. As

per the Office Note, appellant Satish alias Vikram Singh Jatav did

not appear before the Registry of this Court to secure his

presence. Therefore, vide order dated 20-11-2014, arrest warrant

was issued against him as well as proceedings u/S.446 of CrPC

were directed to be initiated against his Surety. Thereafter, an

application for condonation of absence i.e. IA No.9252 of 2014

was filed on behalf of appellant Satish alias Vikram Singh Jatav

and the same was allowed vide order dated 16-12-2014 and the

order issuing arrest warrant against appellant Satish alias Vikram

Singh Jatav was recalled. It is also apparent from the order dated

11.04.2022 that, on the said date as nobody had appeared for

appellants, therefore, Shri Prakhar Dhengula, Counsel who is in

the Panel of Legal Aid Authority, has been appointed to argue the

matter in both Criminal Appeal No.174 of 2011 & Criminal

Appeal No.799 of 2011 filed on behalf of appellants Satish alias

Vikram Singh Jatav and Laxman Singh Jatav as well as argue the

matter for the Surety- Sitaram in MCRC No.7709 of 2014 filed by

State.

(4) Heard learned Counsel Shri Prakhar Dhengula as well as

State Counsel Shri CP Singh, in all connected matters.

(5) Prosecution case, in short, is that on 29-06-2007 at around

05:15 pm, complainant Kamlesh (PW3) written a Dehati Nalishi

before Police Station Pichore, District Gwalior stating therein that

two years prior to the incident, his father Gangaram had

purchased a land from Vijayram. On the date of incident i.e. 29-

06-2007 while his nephew Dinesh (PW6) was cultivating the land

by means of tractor, accused Laxman Singh Jatav obstructed him

from cultivating the same as it is his land, otherwise he will kill

him and stood up in front of tractor by which Dinesh returned

home and narrated the incident. Accused Laxman along with his

brother and son hurled abuses at the complainant party from their

house due to which, daughter-in-law of complainant Kailashi and

niece Archana came to the house of the accused. Accused Laxman

caused gunshot fire by his 12 bore gun which hit thigh of Kailashi

Bai (PW3) and caused gunshot fire on the chest of Archana as a

result of which, Archana fell down on the ground. Thereafter,

when complainant's brother Veere alias Virendra came for rescue,

accused Laxman caused gunshot fire at Virendra as a result of

which, he also fell down on the ground. Villagers, namely, Sultan

Jatav (PW11) and Jagdish Jatav (PW1) when intervened the

matter, gunshot fires were also caused at them by accused

Laxman Singh. Due to fear complainant party did not come the

scene of occurrence. Appellant Satish (son of Vijay Singh) also

caused an injury on the back of Dinesh by means of lathi. After

arrival of police, all the injured were sent to Dabra Hospital in a

jeep where they were examined. As soon as injured were brought

to the Hospital, brother and niece of complainant, namely,

Archana and Virendra both died. On the basis of Dehati Nalishi

Ex.P5 recorded by SHO Pichore, Crime No.62/2007 was

registered for offences under Sections 302, 307, 147, 148, 149 of

IPC vide Ex.P26. Constable Sarvesh Singh recorded merg

intimation vide Ex.27 and Ex.P29 and the matter was handed over

to Amresh Bohare, SHO, Pichore for investigation and during

investigation, crime details was prepared vide Ex.P6. Safina form

regarding death of Archana and Virendra and Naksha Panchnama

were prepared vide Ex.P7 to Ex.P10. From the spot, blood-stained

and plain soil as well as blood-stained clothes of deceased

Archana and Veere alias Virendra were collected. Empty

cartridges & other articles of 12 bore gun kept in front of house of

Naresh were seized. Blood-stained clothes of injured Kailashi Bai

were seized. Injured Sultan, Jagdish, Leelawati and Kailashi Bai

were medically examined. Spot map, Khasra Panchshala and

Naksha were prepared by Patwari vide Ex.P20 to Ex.P21.

Postmortem of deceased Archana and Veere alias Virendra was

done. Injured Dinesh (PW6) was also medically examined. From

the possession of accused Satish Jatav, a lathi was seized vide

Ex.P2 and from the possession of accused Laxman Jatav, a 12

bore gun along with licence and live cartridges were seized vide

Ex.P1. After seizure, all incriminating materials were sent for

examination to FSL, from where the report Ex.P36 was received.

During investigation, the statements of witnesses u/S. 161 of

CrPC were recorded. The appellants accused persons were

arrested vide arrest memo Ex.P3 & Ex.P4. After completion of

investigation, charge sheet was filed before the Court. As the case

was triable by Court of Session, therefore, the case was

committed to the Sessions Court, Gwalior.

(6) Accused persons pleaded not guilty of charges and claimed

to be tried and in their further statements recorded u/S 313 of

CrPC they pleaded that false case is foisted upon them. In order to

lead evidence, the accused persons examined Pooran Singh,

Dinesh Shivhare, Jai Singh, Leelawati and Ladku as DW1, DW2,

DW3, DW3, DW4 & DW5 in their defence.

(7) In order to bring home charges, the Prosecution in support

of its case, has examined as many as 19 witnesses i.e. Jagdish

Singh (PW1), Suresh Kumar (PW2), Kamlesh (PW3),

Ku.Kalpana (PW4), Kailashi (PW5), Dr.R.K.Gupta (PW12),

Pramod Kumar Yadav (PW13), Dr.A.K.Sharma (PW14), Dr.VD

Mathur (PW15), Yashwant Singh (PW16), Sarvesh Singh

(PW17), KN Tripathi (PW18) & Amresh Bohare (PW19).

(8) The learned Trial Judge, after appreciating the evidence led

by prosecution and relying on the evidence, found the charges

against appellants as proved and accordingly, convicted and

sentenced them for the offence as mentioned above in paragraph 2

of this judgment.

(9) Challenging the impugned judgment, it is contended on

behalf of the appellants that the judgment of conviction and

sentence passed against the appellants is arbitrary and the same

suffers from improper evaluation of evidence available on record.

The trial Court has erred in not appreciating the evidence of

defence evidence in its right perspective. Under these

circumstances, the appeals filed by the appellants assailing their

conviction and sentence deserve to be set aside and it is prayed

that appellants be acquitted from the charges levelled against

them.

(10) On the other hand, learned counsel for the State supported

impugned judgment and submitted that prosecution evidence is

fully corroborated by medical evidence and the postmortem report

of deceased in which gunshot injuries were found on the body of

deceased as well as MLC of injured and, therefore, there is no

infirmity in the judgment of conviction and sentence passed by

the learned Trial Court and the learned Trial Court did not err in

convicting and sentencing the appellants accused for the offence

as indicated above.

(11) Alleged Offence is of double murder and the moot question

question arises for consideration of appeals as to whether murder

of deceased Archana and Veere alias Virendra is a culpable

homicide amounting to murder or not ?

(12) Before adverting to the merits of case, it would be

appropriate to throw light on the relevant provisions of Sections

299 and 300 of IPC. 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."

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."

(13) 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 of the deceased 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.

(14) The scope and ambit of clause Thirdly of Section 300 IPC

was considered in the decision in Virsa Singh vs. State of

Punjab, [AIR 1958 SC 465], and the principle enunciated therein

explains the legal position succinctly. The accused Virsa Singh

was alleged to have given a single spear blow and the injury

sustained by the deceased was "a punctured wound 2" x="

transverse in direction on the left side of the abdominal wall in the

lower part of the iliac region just above the inguinal canal. Three

coils of intestines were coming out of the wound." After analysis

of the clause Thirdly, it was held: -

"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

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."

(15) In Arun Nivalaji More vs. State of Maharashtra

(Case No. Appeal (Cri.) 1078-1079 of 2005), it has been

observed as under :-

"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant

and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done

(i) with the intention of causing death; or

(ii) with the intention of causing such bodily injury as is likely to cause death; or

(iii) with the knowledge that the act is likely to cause death."

If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.

12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.

13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the

word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -

"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended."

In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -

"'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."

(16) Section 299 of Indian Penal Code runs as under :-

"299. Culpable homicide.-- Whoever causes

death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

(17) 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;

(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.

(18) Section 300 of Indian Penal Code runs as under :-

"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

(19) '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.

(20) Indian Penal Code recognizes 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 to murder (Section

304 of IPC).

(21) A bare perusal of the section makes it crystal clear that the

first and the second clauses of the section refer to intention apart

from the knowledge and the third clause refers to knowledge

alone and not the intention. Both the expression "intent" and

"knowledge" postulate the existence of a positive mental attitude

which is of different degrees. The mental element in culpable

homicide i.e., mental attitude towards the consequences of

conduct is one of intention and knowledge. If that is caused in any

of the aforesaid three circumstances, the offence of culpable

homicide is said to have been committed.

(22) 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.

(23) The fact that the death of a human being is caused is not

enough unless one of the mental states mentioned in ingredient of

the Section is present. An act is said to cause death results either

from the act directly or results from some consequences

necessarily or naturally flowing from such act and reasonably

contemplated as its result. Nature of offence does not only depend

upon the location of injury by the accused, this intention is to be

gathered from all facts and circumstances of the case. If injury is

on the vital part, i.e., chest or head, according to medical evidence

this injury proved fatal. It is relevant to mention here that

intention is question of fact which is to be gathered from the act

of the party. Along with the aforesaid, ingredient of Section 300 of

IPC are also required to be fulfilled for commission of offence of

murder.

(24) 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.

(25) In Anda vs. State of Rajasthan [1966 CrLJ 171), while

considering "third" clause of Section 300 of IPC, it has been

observed as follows :-

"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."

(26) 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."

(27) 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 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'.

(28) In Pulicherla Nagaraju @ Nagaraja vs. State of AP

[(2006) 11 SCC 444, while deciding whether a case falls under

Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-

"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used;

(ii) whether the weapon was carried by the

accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden 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."

(29) In Sangapagu Anjaiah v. State of A.P. (2010) 9

SCC 799, Hon'ble Apex Court while deciding the question

whether a blow on the skull of the deceased with a crowbar would

attract Section 302 IPC, held thus:

"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."

(30) In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC

639, this it has been held as follows:-

"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.

7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.

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."

(31) In the case of Bavisetti Kameswara Rao v. State of

A.P. (2008) 15 SCC 725 , it is observed in paragraphs 13 and 14

as under:

"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated;

(ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his

business, it could not be as if its user would be innocuous.

14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p.

468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."

The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p.

468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the

circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.

The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

17. ... It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."

(32) Dr. RK Gupta (PW12) in his evidence deposed on 29-06-

2007 he was posted as Medical Officer in CHC, Dabra. On the

said date, he medically examined injured Sultan Singh and found

two entrance wounds on the body of injured, one bullet injury of

size of 2x 1 cm on the upper part and medial part of left thigh and

another pellet injury of size 1x1 cm on the left upper forearm near

elbow and advised for X-ray of both injuries. Dr. Gupta medically

examined injured Jagdish and found one lacerated wound of size

1x ½ cm on the lower part of thigh, caused by hard and blunt

object and the injury was simple in nature. Dr. Gupta examined

injured Kailashi Bai and found two lacerated wound, one bullet

injury of 6x8 cm on the left buttock and another bullet injury of

2x2 cm on the left buttock. He advised for X-ray of both injuries.

Similarly, Dr. Gupta also examined Leelawati, wife of appellant

Laxman Jatav and found two lacerated wounds, one size of 4x1

cm on the middle of skull vertically and another size of 2x1 cm on

the left temple (forehead). Both injuries were caused by hard and

blunt object and simple in nature. The MLC reports of aforesaid

injured as Ex.P16 to Ex.P18 respectively.

(33) Dr. A.K.Sharma (PW14) in his evidence deposed that on

30-06-2007 he was posted as Medical Officer in Civil Hospital,

Dabra. On the said date, he conducted postmortem of deceased

Veere alias Virendra and found four injuries, first on the chest

anterior right side of sternum, second on the chest-upper part of

sternum and third on the chest anterior right side and fourth large

wound like a groove (hole) on the left side Axilla. According to

doctor, all injuries found on the body of deceased were ante-

mortem in nature and cause of death of deceased was due to fire

arm injuries causing rupture of left lung, leading to hemorrhage

and shock. Duration of death of deceased was 6-24 hours. PM

report is Ex.P23. Similarly, Dr.Sharma also conducted postmortem

of deceased Archana and found a rounded hole on the chest size of

2.8 cm in diameter, collar of abrasion was present, no blackening

and tattooing was present, firearms entry wound was found. One

wound with insular margin inverted edges on back right side

lower, size 3x2.8cmxdeep connected to track and firearms exit

wound was found. According to opinion of doctor, the cause of

death of deceased Archana was due to firearm injury causing

rupture of heart and right lung leading to haemorrhage and shock.

Duration of death was 6 to 24 hours. Postmortem report of

deceased Archana is Ex. P24.

From the aforesaid medical evidence, it is apparent that all

injuries sustained by deceased Archana and Virendra were ante-

mortem in nature and cause of their death was due to firearm

injuries causing rupture of left lung and right lung leading to

hemorrhage and shock and death was homicidal in nature. The

injuries were sufficient to cause their death in the ordinary course

of nature.

(34) PW3- Kamlesh, who is the author of Dehati Nalishi in his

examination deposed that they had purchased a land from Vijay,

brother of appellant Laxman Singh Jatav, prior to two years of the

incident and on the date of incident i.e. 29-06-2007 when his

nephew Dinesh had gone for cultivating the land, some altercation

took place between accused with Dinesh and Dinesh returned

home along with his tractor and narrated the incident to family

members. On account of that, his daughter-in-law Kailashi Bai

(PW5) and niece Archana (deceased) reached the house of

accused and objected them for not hurling abuses. At that time,

accused Laxman started firing by his 12 bore double barrel gun

which hit waist of Kailashi Bai and also caused gunshot fire at his

niece Archana, which hit her chest as a result of which, she fell

down on the ground. This witness further deposed that when his

brother Virendra rushed towards the spot for rescue, accused

Laxman also caused gunshot fire at the chest of Virendra as a

result of which he also fell down on the ground. This witness

further in his evidence deposed that at the time of cultivating the

land, except accused Laxman Singh no other person was present.

Dinesh (PW-6) also supported the same version of complainant

Kamlesh (PW3) & his evidence remained unchanged in his

examination and cross-examination.

(35) PW4 Ku. Kalpana (sister of Dinesh) in para 3 of her

evidence deposed that there is a boundary wall in front of house of

accused Laxman. She had seen the presence of accused Laxman in

front of her house. This witness further deposed that first gunshot

fire was caused by accused Laxman at her mother and thereafter,

when her sister Archana came to see her mother, Laxman also

caused gunshot fire at her. This witness in para 5 of her cross-

examination deposed that she along with her mother and sister

Archana had gone to the house of accused Laxman without

informing family members. As accused Laxman abused them,

they tried to pacify him. This witness in para 6 of her cross-

examination deposed that after firing, Leelawati (wife of accused

Laxman) sent her husband Laxman inside house. It is incorrect to

say that her family members assaulted Leelawati and she did not

see injuries sustained by Leelawati. This witness also deposed that

she did not see any injury on the head of injured Leelawati. PW5

Kailashi Bai, wife of deceased Virendra also supported version of

Ku.Kalpana (PW4) whose evidence remained unchanged in her

examination and cross-examination.

(36) PW7 Pooran Singh in his deposition stated that accused

persons abused in filthy languages and accused Laxman open

fired by his 12 bore double barrel gun at Archana, Kailashi Bai

and Virendra. When Sultan and Jagdish went to pick all three, then

Laxman also caused gunshot fires at Sultan and Jagdish. All

accused persons were exhorting that whosoever comes to save, he

will be killed. Accused Satish inflicted a lathi blow on the back of

Dinesh. This witness has also admitted in his cross-examination

that his house is one furlong from the house of Laxman and also

admitted in his cross-examination that all of them had entered to

pick the corpse after arrival of police. Before that, nobody had

entered in the boundary wall of house of accused.

(37) Injured witness Sultan Singh (PW11) in para 1 of his

examination in chief deposed that when he went to the place of

occurrence for rescue, then Laxman caused gunshot fires at his

thigh and hand by means of 12 bore double barrel gun. This

witness further deposed that he subsequently came to know that

Archana and Virendra died and injured Kailashi also sustained

gunshot injuries. He also admitted in his cross-examination that

when he reached the spot, there was nobody else present except

wife of Laxman.

(38) Another injured witness PW1 Jagdish in para 1 of his

examination-in-chief deposed that he had also sustained gunshot

injury caused by accused Laxman Singh. This witness further

stated that the accused persons were unlawfully assembled on the

date of incident. Accused Laxman caused gunshot fires and all

other persons unanimously hurled abuses and exhorted that ''all

will be killed by pick and choose and nobody will be escaped''.

This witness also deposed in his cross-examination that the

accused persons were uttering filthy language from their houses.

(39) From the evidence of injured witness Dinesh (PW6),

Jagdish (PW1), Kailashi Bai (PW5), Sultan Singh (PW11) as well

as evidence of Ku. Kalpana (PW4), Pooran Singh (PW7) and

complainant Kamlesh (PW1), it is clear that accused Laxman

caused gunshot fires by his 12 bore double barrel gun resulting

into death of deceased Archana and Virendra and also caused

gunshot injuries to injured Jagdish, Kailashi Bai and Sultan Singh

and appellant Satish has also caused an injury to Dinesh by means

of lathi. As discussed above, it is clear that evidence of aforesaid

witnesses is trustworthy and offer the graphic eye-account of exact

events during the course of occurrence.

(40) So far as the contention of counsel for appellants that the

Trial Court did not consider defence evidence produced in their

support is concerned, Leelawati (DW4), out of four defence

witnesses, who is the wife of accused Laxman Singh, in para 5 of

her cross-examination has specifically admitted that her husband

Laxman Singh has a 12 bore gun and he had caused gunshot fires

as a result of which, deceased were died. Evidence of other

Defence Witnesses cannot be admissible as being members of

accused family, have given their evidence in order to save accused

persons.

(41) Next contention of counsel for the appellants that

complainant party had gone to the house of accused and in the

incident, Leelawati the wife of accused Laxman Singh also

sustained injury, therefore, it cannot be said that accused persons

exceeded their right of private defence. In support of contention,

learned counsel for appellants has relied on judgments of Hon'ble

Apex Court in the case of Moti Singh vs. State of Maharashtra

(2002) 9 SCC 494 and Wassan Singh vs. State of Punjab,

(1996) 1 SCC 458.

(42) Regarding scope and limitations of right of private defence,

Hon'ble Apex Court has emphasized in detail in the matter of

Kashi Ram & Others vs. State of Rajasthan, reported in (2008)

3 SCC 55 as under:-

''33. The right of private defence is codified in sections 97 to 106 of the Indian Penal Code and all these sections will have to be read together to ascertain whether in the facts and circumstances the accused appellants are entitled to right of private defence or they exceeded the right of private defence. Only when all these sections are read together, we get comprehensive view of the scope and limitation of that right. The position of law is well-settled for over a century both in England and India.

******

45. Private defence can be used only to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention as held by this court in Bishnas v. State of W. B. (2005) 12 SCC 657. In the said judgment the relevant portion of Kennys Outlines of Criminal Law and Criminal Law by J.C. Smith and Brian Hogan have been quoted. We deem it appropriate to reproduce the same.

''89. It is natural that a man who is attacked should resist, and his resistance, as such, will not be unlawful. It is not necessary that he should wait to be actually struck, before striking in self-defence. If one party raises up a threatening hand, then the other may strike. Nor is the right of defence limited to the particular person assailed; it includes all who are under any obligation, even though merely social and not legal, to protect him. The old authorities exemplify this by the cases of a husband defending his wife, a child his parent, a master his servant, or a servant his master (and perhaps the courts would now take a still

more general view of this duty of the strong to protect the weak).

90. The learned author further stated that self- defence, however, is not extended to unlawful force:

'But the justification covers only blows struck in sheer self-defence and not in revenge. Accordingly if, when all the danger is over and no more blows are really needed for defence, the defender nevertheless strikes one, he commits an assault and battery. The numerous decisions that have been given as to the kind of weapons that may lawfully be used to repel an assailant, are merely applications of this simple principle. Thus, as we have already seen, where a person is attacked in such a way that his life is in danger he is justified in even killing his assailant to prevent the felony. But an ordinary assault must not be thus met by the use of firearms or other deadly weapons....''

91. In Browne 1973 NI 96 (NI at p. 107] Lowry, L.C.J. with regard to self-defence stated:

The need to act must not have been created by conduct of the accused in the immediate context of the incident which was likely or intended to give rise to that need.

92. As regards self-defence and prevention of crime in Criminal Law by J.C. Smith & Brian Hogan, it is stated:

''Since self-defence may afford a defence to murder, obviously it may do so to lesser offences against the person and subject to similar conditions. The matter is now regulated by Section 3 of the Criminal Law Act, 1967. An attack which would not justify D in killing might justify him in the use of some less degree of force, and so afford a defence to a charge of wounding, or, a fortiori, common assault.

But the use of greater force than is reasonable to repel the attack will result in liability to conviction for common assault, or whatever offence the degree of harm caused and intended warrants. Reasonable force may be used in defence of property so that D was not guilty of an assault when he struck a bailiff who was unlawfully using force to enter D's home. Similar principles apply to force used in the prevention of crime.''

(43) Therefore, so far as the contention of appellants that they

can be protected by the right of private defence is concerned, the

same has no force as the complainant party were barehanded

reached the house of accused in order to pacify the accused party

not to abuse in filthy languages. On account of that, accused

Laxman Singh who was having a 12 bore double barrel gun,

caused gunshot fires at the injured as well as at both of the

deceased.

(44) On scrutinizing the evidence of aforesaid material

prosecution witnesses as well as on going through the medical

evidence which is fully corroborated prosecution story, this Court

is of the considered opinion that prosecution has rightly

established appellants guilty of aforesaid offences. Therefore, we

found no infirmity in passing impugned judgment of conviction

and order of sentence passed by Trial Court and the Trial Court

has rightly held appellant Satish alias Vikram Singh Jatav guilty of

offence u/S 323 of IPC for causing injury to Dinesh (PW6) and

held appellant Laxman Singh Jatav guilty for commission of

offence u/S 302 of IPC (two counts) regarding double murder of

deceased Archana and Virendra by means of 12 bore double barrel

gun and also held guilty of offence u/S 307 of IPC (three counts)

for causing firearm injuries to injured Jagdish, Kailashi Bai and

Sultan Singh.

(45) As a result, CRA 174 of 2011 filed by appellant Satish alias

Vikram Singh Jatav & CRA No.799 of 2011 filed by appellant

Laxman Singh Jatav fail and are hereby dismissed. The impugned

judgment of conviction and order of sentence dated 5 th February,

2011 passed in Sessions Trial No.293 of 2007 by Second

Additional Sessions Judge, Dabra is hereby affirmed.

(46) Since appellant Satish alias Vikram is on bail, therefore,

his bail bonds and surety bonds shall stand cancelled and he is

directed to surrender before the Trial Court to serve the remaining

part of jail sentence. Similarly, since appellant Laxman Singh

Jatav is in jail, therefore, he be also directed to serve the jail

sentence awarded by Trial Court.

(47) A copy of this judgment be sent to jail concerned as well

as a copy of this judgment along with record be sent to Trial Court

concerned for information and compliance.

(48) As both the aforesaid Criminal Appeals have been

dismissed by this Court and bail bonds and surety bonds have been

cancelled, therefore, it is not required to pass a separate order in

MCRC No.7709/2014 filed by the State against surety Sitaram

regarding initiation of proceedings under Section 446 of CrPC and

the same stands closed.

             (G. S. Ahluwalia)                    (Rajeev Kumar Shrivastava)
                  Judge                                      Judge




MKB


Digitally signed by MAHENDRA
BARIK
Date: 2022.04.29 18:26:11 +05'30'