Madhya Pradesh High Court
Bhalya @ Bali vs The State Of Madhya Pradesh on 7 August, 2024
Author: Hirdesh
Bench: Vijay Kumar Shukla, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7th OF AUGUST, 2024
CRIMINAL APPEAL No. 9265 of 2018
BHALYA @ BALI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Anita Jain, learned counsel for the appellant.
Shri Amit Rawal, learned government advocate for the respondent/
State.
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JUDGMENT
Per: Hirdesh, J.
This criminal appeal has been filed by the appellant being aggrieved by
the judgment dated 30.12.2014 passed by 4 th Additional Sessions Judge,
Khargone (West Niman) in Session Trial No.151/2014 whereby the trial court
has convicted the appellant for the offence punishable under Section 302 of
IPC and sentenced him to undergo R.I. for life with fine of R.5,000/- and in
default of payment of fine, one year additional rigorous imprisonment.
2. According to prosecution story, on 09.03.2014 at 07 a.m., PW-1 Ramesh
was informed on a phone call from village that his mother Chanibai has been
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killed by his father. Then after, on the information received by him he went to
village- Baazaar Khodra at his home and saw that his mother was lying dead
and there were so many injuries on her mouth, neck and other parts of the
body. His younger brother-Amar Singh and sister- Laxmibai told him that their
father assaulted their mother by a heavy stick (Khatia kaa Sewala) due to
which mother has died.
3. After receiving the information, police lodged F.I.R. under Section 302
of IPC (Ex.P-1) and arrested the accused and after taking the statements of the
prosecution witnesses prepared Laash Naksha Panchaayatnama and sent the
dead-body for postmortem. After completing the investigation, police filed
charge-sheet before Judicial Magistrate, First Class, Bheekhangaon and as the
case was triable by sessions court, the same was transferred to the sessions
court.
4. The appellant abjured his guilt and by taking plea of innocence claimed
for trial. In order to substantiate the prosecution case, the prosecution produced
six prosecution witnesses. The trial court also recorded the statements of the
accused u/S. 313 of Cr.P.C. The defence also examined one witness DW-1
Naan Singh. After considering the evidence adduced by the parties, the trial
court came to the conclusion that the appellant is guilty of the offence as
mentioned above.
5. Learned counsel for the appellant submits that the judgment passed by
the trial Court is bad in law and contrary to law and facts and the evidence of
the case. The evidence led by the prosecution witnesses suffer from serious
infirmity. He further submitted that the trial court has wrongly relied upon the
testimony of PW-2 Tusari, who is child witness, having so many contradictions
and omissions. Other witnesses are not eye witnesses and having full
contradiction so it is submitted that trial court has committed error in relying
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upon the testimony of the witnesses, hence, it is prayed that the impugned
judgment be set aside and the appellant be acquitted form the charges.
6. On the other hand, learned counsel for the respondent/State supported
the impugned judgment and argued that prosecution has proved its case beyond
any doubt so conviction and sentence does not warrant any interference.
7. Now, the question arises before this Court, whether the findings of the
trial court, conviction and sentence of the appellant under Section 302 is
erroneous in the eye of law and facts.
8. Another question arises before this Court whether the death of the
deceased Chani Bai is homicidal or not.
9. PW-1 Ramesh is son of the deceased and he stated in examination-in-
chief that after receiving information he reached his house at village-Baazaar
Khodra where he saw dead-body of his mother and also saw injuries on mouth,
neck and other parts of the body of his mother. He informed the police and
lodged F.I.R. Ex.P-1. Police prepared Laash Naksha Panchaayatnama and sent
the dead-body for postmortem.
10. PW-10 Hari Prasad Yadav, officer-in-charge, police station- Chainpur
stated in his examination-in-chief that on 09.03.2014, he was posted at police
station-Chainpur. He lodged F.I.R. (Ex.P-1) on the information given by PW-1
Ramesh. He reached the spot and prepared Laash Naksha Panchaayatnama and
sent the dead-body for postmortem. PW-6 Dr. Banshi Mourya stated that he
was posted on 10.03.2014 as medical officer at community health center,
Rodiya, District-Khargone. He conducted the postmortem of the dead-body of
the deceased and noticed the following internal and external injuries on the
body:-
"1- e`frdk lkMh Cysd jax dh iguh Fkh] isVhdksV yky jax dkA
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2- eqg [kqyk gqvk Fkk ,oa mlds nksuksa gkFkks es vkdMu FkhA
3- mldks flj es] ?kqVus es o ihB ij] da/ks ij jxM o lqtu ds fu'kku FksA
4- flj ds lkeus okys Hkkx ij 3 xqf.kr 2 xgjkbZ ds jxM ds fu'kku FksA
2- ckg+; ijh{k.k esa mlds 'kjhj lkekU; :i ls vPNk FkkA mldh xnZu ij jxM
ds fu'kku ugh FksA pksV dk Lo:i lkekU; Fkk%&
1- mldh [kksiMh] diky es dksbZ pksV ugha FkhA blh izdkj inkZ] ilyh]
nkfguk QsQMk] ck;k QsQMk] vkW[kks dh f>Yyh o eqg dh xzkl uyh LoLF; FksA
2- mlds isV esa ikuh o Hkkstu ik;k x;k FkkA Hkkstu ipk gqvk FkkA mlh izdkj
;d`r] ikfy;k] xqnkZ] eq=k'k; ,oa ckgjh bafnz;k lkekU; ,oa LoLF; FkhA
3- pksV jxM vkSj lwtu flj] flyk] ?kqVus] o xa/ks dh tksM rFkk mldh ihB es
Hkh lkekU; jxM ds fu'kku FksA e`rd dh dksbZ Hkh gMMh QsDpj ugha FkhA
mldh pksV dk izdkj jxM ,oa gYdh lwtu dk FkkA"
PW-6 Dr. Banshi Mourya stated in Ex.P-9 medical report that the death
of the deceased was due to excessive blood loss and multiple injuries and mode
of death was shock.
11. So considering the evidence of PW-1 Ramesh, PW-2 Tusari and PW-5
Hariprasad Yada and PW-6 Dr. Banshi Moury, it is found that there is no
substantial cross-examination of the defence in regard to the homicidal death
of the deceased. So it is clearly proved that death of the deceased was
homicidal in nature.
12. Now, the point arises whether the appellant caused the death of the
deceased by assaulting her by a heavy stick.
13. PW-2 Tusari, who is daughter of the deceased has stated in para 2 that
her father had beaten her mother by a heavy stick (Khatia kaa Sewala) due to
which her mother died. At the time of the incident, she and her younger brother
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Amar Singh were present and her elder brother- Ramesh had gone out of
village for labour work. PW-1 Ramesh is not eye witness. He was informed on
phone about the incident then he reached his house.
14. In the present case, star witness is PW-2 Tusari, who is daughter of the
appellant and deceased. Considering the evidence of PW-2, it was found that
she was intact in her cross-examination and there is no any contradiction and
omission in her cross-examination. She clearly stated that her father had beaten
her mother by a heavy stick (Khatia kaa Sewala) which resulted into the death
of the deceased.
15. Considering the aforesaid ocular evidence and medical evidence,
prosecution has proved beyond doubt that the death of the deceased is
homicidal. The present appellant has cause death of the deceased with the help
of a heavy stick (Khatia kaa Sewala). So it is clearly established that appellant
was involved in the incidence.
16. Learned counsel for the appellant argued that present case does not fall
under Section 302 of IPC and this case falls under Section 300 of IPC as the
incident has taken place all of a sudden and grave provocation. He further
submitted that appellant was the husband of the deceased and he was drunken
at the time of the incident. His intention was not to kill his wife.
17. In the case of Arun Nivalaji More vs. State of Maharashtra, reported
in (2006) 12 SCC 613, the Hon'ble Supreme Court 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
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in any one of these clauses, it will be murder as defined in
Section 300 IPC, 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
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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
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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."
18. In the present case, it was established that appellant had knowledge that
death could occur due to injuries by said weapon but it is not established that
he had intention to kill the deceased for two reasons which are as under:-
(1) The weapon, which was used, was admittedly a heavy stick
(Khatia kaa Sewala) which is ordinarily found in each villager's house.
(2) According to medical report, no fracture was found on the body of
the deceased.
19 In the case of Molu Vs State of Harya AIR 1976 SC 2499 that in the
case where multiple injuries were multiple injuries were received by the
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deceased which were caused by blunt weapons like lathis and the injuries were
of minor character and were not on any vital parts of the body even though
which are on the scalp portion, are superficial then it can be held that the
accused had the intention to assault the deceased with the knowledge that
injuries caused by him are likely to cause death of the deceased and in such
circumstances, the accused had committed an offence under Section 304 Part-
II of the Indian Penal Code and not under Section 302, I.P.C. In the case of
State through P.S. Lodhi Colony Vs Sanjeev Nanda (2012) 8 SCC 450 and
Rampal Singh Vs State of Uttar Pradesh (2012) 8 SCC 289 the Apex Court
held that after critical and microscopic analysis thereof shows that once
knowledge i.e. likely to cause death is established but without any intention to
cause death, then jail sentence may be for a term which may extend to 10 years
or with fine or with both as it would be an offence under Section 304 Part-II of
I.P.C.
20. We, therefore, allow the appeal to the extent that conviction of the
appellant is altered under Section 302 of IPC to Section 304 Part II of IPC and
sentence of the appellant is reduced from life imprisonment to the jail sentence
already undergone by the appellant which is more than 10 years. The sentence
of fine is maintained.
21. Accordingly appeal is partly allowed and disposed off. Subject to
deposit of fine amount (if already not deposited), the appellant shall be
released from custody if not required in any other case.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
N.R.
