Madhya Pradesh High Court
Atul vs The State Of M.P. on 29 October, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 29th DAY OF OCTOBER, 2025
CRIMINAL APPEAL No. 295 OF 2000
ATUL PAWAR
Versus
STATE OF MADHYA PRADESH
AND
CRIMINAL APPEAL No. 326 OF 2000
RAJESH SONI
Versus
STATE OF MADHYA PRADESH
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Appearance:
Shri Vivek Singh, Senior Advocate along with Shri Shivendra
Singh Rawat, Advocates for the appellants.
Shri Santosh Singh Thakur - GA for the respondent/State.
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JUDGMENT
1. These criminal appeals under Section 374 of the Code of Criminal
Procedure, 1973 are filed assailing the judgment of conviction and order of
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sentence dated 26.02.2000 passed by the Third Additional Sessions Judge,
Ujjain, District - Ujjain in S.T. No. 240 of 1998, whereby the learned
Sessions Judge convicted the appellants Atul Panwar and Rajesh Soni for
offence punishable under Section 304-I of IPC and sentenced both of them
to undergo rigorous imprisonment for a period of 7 years each with fine of
Rs. 2,000/- with default stipulation of rigorous imprisonment for one year in
default of payment of fine.
2 The case of prosecution, in brief, is as under:-
A. The injured Manzoor Khan was brought to the District Hospital
Ujjain on 27.12.1997 around 9:45 in the night. Head Constable Prakash
Narayan reached District Hospital, Ujjain and recorded statement of
Manzoor Khan, Ramesh and Aslam. Accordingly, FIR (Ex.P-14) for
offence punishable under Sections 341, 294, 324 read with Section 34
and 506 of IPC was registered at P.S. Madhav Nagar against Atul
Panwar and Rajesh Gaikwad. Manzoor Khan was examined by Dr. R.K.
Tiwari on 27.12.1997. Two incised cut wounds were found on left thigh
and below the left buttock of Manzoor Khan. He was referred for
treatment to Residents Surgical Officer. Dr. Yogendra Kumar Vyas
examined Manzoor Khan in emergency surgical ward and found that
Manzoor Khan was going into coma shock. Manzoor Khan underwent
operation for injuries. Dr. Yogendra Kumar Vyas and Dr. Chouhan
prepared surgical operation report (Ex.P-6). Manzoor Khan was referred
to further treatment to the MY Hospital Indore. Dr. Vyas opined that the
injuries caused to Manzoor Khan were life threatening due to excessive
bleeding. Dr. Ramesh Mehta and Dr. Thatte treated Manzoor Khan at T.
Choithram Hospital. Manzoor Khnn was found vomiting blood, he was
suffering from severe loss of blood. Manzoor Khan died on 4.1.1998
around 12:00. Dr. Thatte opined that Manzoor Khan has died due to
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injury caused on his thigh. Dr. Raj Kumar Singh conducted postmortem
examination on body of Manzoor Khan and opined that Manzoor Khan
has died due to cardio-respiratory failure caused by the injuries and
complications of the injury. Manzoor Khan had suffered cellulitis and
septicemia .
B. The statements of witness Ramesh Sharma, Akhilesh Yadav, Rais
Khan and Dilawar Khan were recorded. Dilawar Khan filed a complaint
to I.G. Police (Ex.P-4) requesting proper investigation. It was revealed
that Atul, Rajesh, SheKhanr and Jitendra Singh had an altercation with
Manzoor Khan on 27.12.1997. Atul and Rajesh assaulted Manzoor Khan
with knife. Manzoor Khan died due to injury caused by Atul and Rajesh.
Accordingly, prosecution for offence punishable under Section 304-I of
IPC was added. The final report was submitted on completion of
investigation.
C. The Chief Judicial Magistrate Ujjain committed the case for trial
to the Sessions Court vide order dated 13.11.1998. The learned Sessions
Judge framed charges for offence punishable under Section 302 of IPC,
in the alternative Section 302 read with Section 34 of IPC against the
accused Atul, Rajesh, SheKhanr and Jitendra Singh.
D. Learned III Additional Sessions Judge Ujjain vide judgment dated
26.02.2000 passed in ST No. 240 of 1998 acquitted the accused
Shekhar and Jitendra Singh of all the charges but convicted the
accused/appellants Atul and Rajesh for offence punishable under Section
304 Part I of IPC and sentenced each of them as stated in para 1 of the
judgment.
3 Feeling aggrieved by the impugned judgment of conviction and
order of sentence dated 26.02.2000, present appeals are filed assailing the
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judgment on following grounds:-
(i) The impugned judgment is contrary to the law and facts on
record.
(ii) The evidence of the proposed eye witness is unnatural and
against human probabilities.
(iii) The witness have stated that they have named the accused on
information of Manzoor Khan.
(iv) The test identification parade was not conducted to verify the
identity of the appellants.
(v) The evidence with regard to identity and complicity of appellants
is doubtful.
(vi) The injury caused to Manzoor Khan was on thigh which is not a
vital part of body.
(vii) There was no intention or knowledge that the injury will prove
fetal.
(viii) Manzoor Khan had died after 8 days of incident, therefore, the
alleged offence is not made out.
On these grounds, it is requested that the impugned judgment be
set aside and appellants be acquitted.
4 Learned counsel for the appellants, in addition to the grounds
mentioned in the appeal memo contended that identity of
appellants/accused was not proved beyond reasonable doubt. Learned
counsel referring to the arrest memo of accused Rajesh and the evidence
of the arresting officer contended that the name and identity of accused
Rajesh was not established beyond doubt. The prosecution has failed to
prove complicity of the appellant Rajesh in the alleged offence as the test
identification parade was not conducted. Learned trial Court disbelieved
the evidence of Ramesh Sharma (PW-3), Akhilesh Yadav (PW-4) and
Rais Khan (PW-5), whose police statements were recorded after delay of
6 months. Therefore, the conviction of appellants is erroneous. Learned
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counsel further referred to the medical evidence to contend that Manzoor
has died due to septicemia which may be caused by medical negligence,
therefore, the injury was not sole reason for death of Manzoor. The
injuries were not caused on any vital part of the body. So the intention or
knowledge to cause death is not made out against the accused. The
learned counsel referred to the judgments in case of Rajeevan and
another Vs. State of Kerala (2003) 3 SCC 355 and Gopal Singh Vs.
State of Madhya Pradesh (1972) 3 SCC 268 to buttress his contentions.
5. Per-contra, learned counsel for the State opposed the appeals by
submitting that complicity of accused Atul and Rajesh is clearly made out
from the evidence of eye witness. The death of Manzoor was direct cause
of the injury inflicted on his thigh. Manzoor suffered severe loss of blood
which ultimately resulted in his death. Therefore, the intention or
knowledge, supported by the medical opinion, was proved beyond doubt.
The trial Court did not commit any error in convicting the appellants for
offence punishable under Section 304 Part I of IPC. The appeals are
meritless.
6. Heard both the parties. Perused the appeal memos and the record of
trial Court.
7. The points for determination in both the appeals are as under:-
a) Whether the accused/appellants Atul and Rajesh inflicted the
injury by knife on thigh and below left buttock of Manzoor Khan on
27.12.1997?
b) Whether Manzoor Khan died due to injury caused by the
appellants/accused Atul and Rajesh?
c) Whether the appellants/accused Atul and Rajesh had caused
injury to Manzoor Khan with the intention of causing death or assaulted
him with intention or knowledge of causing such bodily injury, as is
likely to cause death?
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POINT FOR DETERMINATION No.1 - REASONS FOR CONCLUSION
8. Dilawar Khan (PW-2) deposed that Aslam came to his house and
informed that somebody has assaulted his brother Manzoor with knife
near Rohit Paan Corner. Manzoor is taken to hospital. When he reached
District Hospital, Ujjain, Manzoor was in operation theater. Next morning
around 11:00 am, he had conversation with Manzoor. Manzoor informed
that Rajesh Soni and Atul Panwar had assaulted him with knife. Manzoor
further informed that he and Ramesh Sharma were going to District
Hospital. Atul Panwar, Rajesh Soni, Jitu Chouhan and Shekhar were
standing on the road. When he asked them to leave the way, they abused
him and assaulted him. Manzoor was shifted to M.Y. Hospital, Indore. He
was admitted at Choithram Hospital, Indore. Manzoor died during
treatment at Choithram Hospital, Indore on 04/01/1998. Dilawar Khan's
evidence with regard to conversation with Manzoor before his death
remained unaffected in the cross-examination.
9. Dr. R.K. Tiwari (PW-12) stated that he was working as Surgeon at
District Hospital, Ujjain on 27/12/1997. The injured Manzoor Khan S/o
Gaus Mohd. was brought by Ramesh S/o Biharilal. He examined
Manzoor and found two cut wounds. The condition of Manzoor was
serious, therefore, he was admitted for surgery. This evidence shows that
Ramesh S/o Biharilal was with Manzoor at the ime of incident and he had
taken Manzoor for treatment to District Hospital, Ujjain.
10. Ramesh Sharma PW-3 deposed that he and Manzoor were going to
District Hospital on Luna. They reached near Rohit Paan shop in Sethi
Building around 9:00 in the night. Manzoor asked the accused to walk on
side of the road. Atul, Jitendra, Shekhar and Rajesh Soni abused
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Manzoor. Manzoor get down from his vehicle. There was a scuffle. Atul
Panwar and Rajesh Soni assaulted Manzoor with knife. Manzoor fell
down. He was bleeding. Akhilesh, Rais, Santosh and Aslam came there.
They rescued Manzoor. Thereafter, he took Manzoor to District Hospital
on Luna. Dilawar Khan, brother of Manzoor came to District Hospital
after sometime. Manzoor was taken to operation theater. Later, Manzoor
was shifted to M.Y. Hospital Indore, In cross-examination of para-16,
Ramesh Sharma specifically stated that Rajesh had assaulted Manzoor
with knife. The testimony of Ramesh Sharma remained unrebutted in
cross-examination.
11. Ramesh Sharma (PW-3) has stated that Akhilesh and Rais Khan
came to rescue at the time of incident. Akhilesh Yadav (PW-4) and Rais
Khan (PW-5) stated that Atul Panwar, Rajesh Soni, Shekhar and Jitendra
were abusing and assaulting Manzoor Khan near Rohit Paan Corner.
Rajesh Soni assaulted Manzoor with knife on his thigh, thereafter, Atul
Panwar also assaulted Manzoor with knife. They intervened and rescued
Manzoor. Manzoor fell down on ground. He was profusely bleeding.
Ramesh Sharma took Manzoor to District Hospital on his Luna. Manzoor
was admitted at District Hospital.
12. Learned counsel for the appellants submitted that the police
statement under section 161 of the Cr.P.C of these witness Akhilesh and
Rais were recorded after delay of almost six month, therefore, their
presence on the spot is doubtful. Ramesh Sharma (PW-3) was present at
the spot of the incident. He had taken the injured Manzoor to District
Hospital, which was corroborated by the treating doctor, Dr. R.K. Tiwari
(PW-12). Ramesh Sharma has specifically mentioned presence of
Akhilesh Yadav and Rais Khan on the spot, therefore, mere delay in
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recording of their statements by the Investigation Officer is not sufficient
to discard their corroborative testimony. Thus, the evidence of the eye
witnesses Ramesh Sharma, Akhilesh Yadav and Rais Khan unanimously
establish that Rajesh Soni and Atul Panwar had assaulted Manzoor with
knife on 27/12/1997 near Rohit Paan Corner. Manzoor suffered injury
and was taken for treatment to District Hospital, Ujjain.
13. The trial Court considering the evidence of Ramesh Sharma (PW-
3), Dilawar Khan (PW-2), Akhilesh Yadav (PW-4) and Rais Khan (PW-5)
concluded that although the complicity of Shekhar and Jitendra in the
alleged incident and their participation in inflicting injury to Manzoor
Khan was doubtful, there is no inconsistency or contradiction in the
prosecution evidence with regard to the fact that Atul and Rajesh had
assaulted Manzoor Khan with knife. The conclusion of trial Court, in
view of the above discussion, is well reasoned and appropriate.
14. Learned counsel for the appellants forcefully argued that there is
material discrepancies with regard to identification of accused Rajesh.
Ramesh (PW-3) in his police statement (Ex.D-2) informed that the
assailant was Rajesh Gaikwad resident of Mahananda Nagar. Later, he
stated that assailant was Rajesh Chabutara of Dabaripeetha. Learned
Counsel refered to para 5, 10 and 11 of testimony of Ramesh (PW-3) to
point out the inconsistencies. Head Constable Prakash Narain Dubey
informed that he has arrested Rajesh Soni vide arrest memo (Ex.P-8) on
his appearance before the P.S. Madhav Nagar. He stated that Rajesh
himself told him that he is Soni and also known as Gaikwad. Rajesh did
not tell him that he is resident of Mahananda Nagar. He tried to search
Rajesh in Mahananda Nagar but the local residents informed that Rajesh
lives in the city. He tried to search Rajesh in city, but could not find him.
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Learned counsel referring to arrest memo (Ex.P-8) contended that "@
Gaikwad" was added subsequently. Learned Counsel further contended
that no test identification parade was conducted to verify identity of
Rajesh Gaikwad as Rajesh Soni during investigation. Thus, the
prosecution with regard involvement of Rajesh in the alleged offence is
doubtful.
15. The test identification parade under Section 9 of the Evidence Act
is conducted for the purpose of satisfaction of the investigation officer
with regard to identity of assailant. It is not a substantive evidence. The
substantive evidence with regard to identity of assailant is "Dock
identification" conducted in the Court during trial.
16. The Supreme Court in case of R. Shaji v. State of Kerala, (2013)
14 SCC 266, observed as under-
57. It has further been submitted that the prosecution failed to hold the test
identification parade. Therefore, the prosecution case itself becomes doubtful.
58. In Vijay v. State of M.P. [(2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] this
Court, while dealing with the effect of non-holding of a test identification
parade, placed very heavy reliance upon the judgments of this Court
in Santokh Singh v. Izhar Hussain (1973) 2 SCC 406: AIR 1973 SC
2190, State of H.P. v. Lekh Raj (2000) 1 SCC 247 : AIR 1999 SC 3916
and MalKhansingh v. State of M.P. (2003) 5 SCC 746 and held that the
evidence from a test identification parade is admissible under Section 9 of the
Evidence Act, 1872. The identification parade is conducted by the police. The
actual evidence regarding identification is that which is given by the witnesses
in court. A test identification parade cannot be claimed by an accused as a
matter of right. Mere identification of an accused in a test identification parade
is only a circumstance corroborative of the identification of the accused in
court. Further, conducting a test identification parade is meaningless if the
witnesses know the accused, or if they have been shown his photographs, or if
he has been exposed by the media to the public. Holding a test identification
parade may be helpful to the investigation to ascertain whether the
investigation is being conducted in a proper manner and with proper direction.
(See also Munna Kumar Upadhyay v. State of A.P. (2012) 6 SCC 174 )
59. In the instant case, the witnesses, particularly Jose (PW 8), Baiju (PW 9),
Reji (PW 11) and Shanavas (PW 12), made it clear that they were acquainted
with the appellant since he was posted in the control room of their city.
Moreover, just after the incident took place, the same being a sensitive case
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wherein the main accused was a highly ranked official of the Police
Department, wide publicity was given to the same by the media. In the light of
the aforementioned fact situation, the holding/non-holding of a test
identification parade loses its significance. It is also pertinent to note that the
defence did not put any question to B. Muralidharan Nair (PW 77), the
investigating officer in relation to why such TI parade was not held.
*****
61. Be that as it may, when a statement is recorded in court, and the witness
speaks under oath, after he understands the sanctity of the oath taken by him
either in the name of God or religion, it is then left to the court to appreciate
his evidence under Section 3 of the Evidence Act. The Judge must consider
whether a prudent man would appreciate such evidence and not appreciate the
same in accordance with his own perception. The basis for appreciating
evidence in a civil or criminal case remains the same. However, in view of the
fact that in a criminal case, the life and liberty of a person is involved, by way
of judicial interpretation, courts have created the requirement of a high degree
of proof.
17. The eye witness Ramesh Sharma (PW-3) supported by other eye
witness Akhilesh Yadav (PW-4) and Rais Khan (PW-5) have specifically
identified all accused during their evidence before the trial Court and
specifically stated that Rajesh Soni had assaulted Manzoor Khan with
knife. The testimony with regard to the identification of Rajesh Soni as
assailant remained unrebutted in cross-examination. Apparently, there is
no discrepancy with regard to identity of Rajesh Soni. Therefore, the
benefit of precedents relied upon by the appellants is not available.
18. The learned trial Court in para 25 of the judgement has dealt with
this contention and concluded that the minor discrepancy with regard to
pet/alias name and the residence is not sufficient to discard the evidence
with regard to complicity of accused/appellant Rajesh Soni in the alleged
offence. The finding of trial Court is appropriate in view of above
discussion.
POINT FOR DETERMINATION No. 2- REASONS FOR CONCLUSION
19. Dr. R.K. Tiwari (PW-12) deposed that he had examined Manzoor
Khan brought by Ramesh Sharma at District Hospital, Ujjain on
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27/12/1997. He found one cut injury below left buttock and one cut injury
on outer side of left thigh of Manzoor Khan. Manzoor was bleeding. His
condition was serious. The injury was caused within two hours of the
examination. The evidence of Dr. R.K. Tiwari (PW-12) and primary
medico- legal examination report Ex.P/12 and 13 corroborate the alleged
incident that Manzoor Khan has sustained injury around 9:00 pm on
27/12/1997. It further corroborates the nature of injury and the possible
weapon used to inflict such injury.
20. Dr. Yogendra Kumar Vyas (PW-6) , the treating surgeon deposed
that he had treated Manzoor Khan on 27/12/1997 at District Hospital,
Ujjain. Manzoor had sustained two incised wounds on his thigh. He was
bleeding. Manzoor was going into shock, therefore, he was administered
four bottles of blood. He and Dr. Chouhan, Surgical Specialist operated
Manzoor. They found that the incised wound was bone deep. It was
profusely bleeding. The vessels were cut. On 02/01/1998, Manzoor was
referred for treatment to M.Y. Hospital, Indore vide referral letter (Ex.-
P/7). Dr. Yogendra Kumar Vyas (PW-6) opined that the injury caused to
Manzoor was life threatening in absence of treatment and due to
excessive bleeding. In para -9 of cross-examination, Dr. Yogendra Kumar
Vyas (PW-6) admitted that the injuries were not on any vital part.
21. Dr. Chandrashekhar Thatte (PW-8) deposed that Manzoor Khan
was admitted at Choithram Hospital, Indore on 03/01/1998. Manzoor
Khan had sustained incised wound on left thigh. He was vomiting blood
and blood was oozing from his anus. He was severely anemic. He was
administered blood and treated by medicine. On 04/01/1998 around 12:00
in the noon, Manzoor Khan expired. Manzoor Khan died due to injury
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caused on his thigh. Dr. Ramesh Gupta (PW-9), C.M.O of Choithram
Hospital, Indore also deposed on same lines.
22. Dr. Rajkumar Singh (PW7) conducted postmortem examination of
Manzoor Khan on 05/01/1998. Dr. Singh opined that Manzoor had died
of cardio respiratory failure due to injury and its complications. There
were traces of cellulite and septicemia. Thus, the medical evidence
proves the fact that Manzoor has died on 04/01/1998 due to injury caused
on his left thigh by knife in the night of 27/12/1997. Manzoor Khan was
continuously undergoing treatment after the incident. The death of
Manzoor Khan is not attributal to any other intervening factor or
circumstance.
23. The learned trial Court in para 13 to 18 and 26 of the judgement
has considered the medical evidence to conclude that there was continuity
in treatment of Manzoor Khan. His condition deteriorated day by day and
ultimately, he succumbed to death due to injury inflicted in the alleged
incident and its complications. The conclusion of trial Court is based on
medical evidence available on record.
POINT FOR DETERMINATION No. 3- REASONS FOR CONCLUSION
24. The trial Court in para 29 of the judgement has considered the
circumstances with regard to alleged incident and concluded that both the
accused assaulted Manzoor Khan without any premeditation in the heat of
moment during quarrel. Therefore, the offence punishable under Section
302 or Section 302 read with Section 34 of IPC is not made out.
However, while inflicting the injury with knife on the thigh of Manzoor
Khan, the assailants Atul and Rajesh were aware of the fact that the injury
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might cause death of Manzoor Khan. They had knowledge that the injury
is sufficient to cause death of Manzoor Khan.
25. The Supreme Court in case of Khokan v. State of Chhattisgarh,
reported in (2021) 3 SCC 365 , held as under-
13. Now so far as the reliance placed upon the decision of this Court in
Sanjay v. State of U.P., (2016) 3 SCC 62 by the learned counsel appearing on
behalf of the appellant-accused is concerned, on considering the said decision,
we are of the opinion that in the facts and circumstances of the case, the said
decision shall not be applicable to the facts of the case on hand. In the said
case, the death occurred 62 days after the occurrence due to septicaemia. In
between, the deceased was discharged from the hospital in good condition and
he survived for 62 days. Therefore, having regard to the fact that the deceased
survived for 62 days and that his condition was stable when he was discharged
from the hospital, this Court was of the opinion that the Court cannot draw
inference that intended injury caused was sufficient in ordinary course of
nature to cause death so as to attract Section 300 Thirdly IPC. Thereafter, on
facts, this Court modified the conviction from that of Section 302 IPC to
Section 304 Part I IPC and sentenced the accused to undergo 10 years' RI.
There is no absolute proposition of law laid down by this Court in the said
decision that in all cases where the deceased died due to septicaemia, the case
would fall under Section 304 Part I IPC. In the present case, though the
deceased died due to septicaemia, however, it is required to be noted that he
died while taking treatment in the hospital and that too he died within three
days from the date of occurrence of the incident. Therefore, on facts, the said
decision shall not be applicable.
14. However, at the same time, it is also required to be noted that the deceased
was admitted to the hospital after 24 hours and thereafter he died within three
days due to septicaemia. If he was given the treatment immediately, the result
might have been different. In any case, as observed hereinabove, there was no
premeditation on the part of the accused; the accused did not carry any
weapon; quarrel started all of a sudden and that the accused pushed the
deceased and stood on the abdomen and therefore, as observed hereinabove,
the case would fall under Exception 4 to Section 300 IPC and neither Clause 3
of Section 300 nor Clause 4 of Section 300 shall be attracted. Therefore, as
observed hereinabove, at the most, the accused can be said to have committed
the offence under Section 304 Part I IPC.
26. In matter of Nankaunoo v. State of U.P., reported in (2016) 3
SCC 317, it was held that-
10. The learned counsel for the appellant then contended that the gunshot
injury was on the lower part of the left thigh which is a non-vital organ and it
cannot be said that the appellant intended to cause the death of the deceased
and therefore the conviction of the appellant under Section 302 IPC is not
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sustainable. In the light of the above contention, the question falling for
consideration is whether the conviction of the appellant under Section 302 IPC
is sustainable?
11. Intention is different from motive. It is the intention with which the act is
done that makes a difference in arriving at a conclusion whether the offence is
culpable homicide or murder. The third clause of Section 300 IPC consists of
two parts. Under the first part it must be proved that there was an intention to
inflict the injury that is present and under the second part it must be proved
that the injury was sufficient in the ordinary course of nature to cause death.
Considering clause Thirdly of Section 300 IPC and reiterating the principles
stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 :
1958 Cri LJ 818] , in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State
(Delhi Admn.), (1991) 2 SCC 32 : 1991 SCC (Cri) 299] , para 12, this Court
held as under : (SCC p. 41)
"12. Referring to these observations, Division Bench of this Court in Jagrup
Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 : 1981 SCC
(Cri) 768] , observed thus : (SCC p. 620, para 7)
'7. ... These observations of Vivian Bose, J. have become locus
classicus. The test laid down in Virsa Singh case [Virsa Singh v. State
of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , for the applicability
of clause Thirdly is now ingrained in our legal system and has become
part of the rule of law.'
The Division Bench also further held that the decision in Virsa Singh
case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] has
throughout been followed as laying down the guiding principles. In both these
cases it is clearly laid down that the prosecution must prove (1) that the body
injury is present, (2) that the injury is sufficient in the ordinary course of
nature to cause death, (3) that the accused intended to inflict that particular
injury, that is to say it was not accidental or unintentional or that some other
kind of injury was intended. In other words clause Thirdly consists of two
parts. The first part is that there was an intention to inflict the injury that is
found to be present and the second part that the said injury is sufficient to
cause death in the ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and circumstances that the
intention of the accused was to cause that particular injury. Whereas under the
second part whether it was sufficient to cause death, is an objective enquiry
and it is a matter of inference or deduction from the particulars of the injury.
The language of clause Thirdly of Section 300 speaks of intention at two
places and in each the sequence is to be established by the prosecution before
the case can fall in that clause. The 'intention' and 'knowledge' of the accused
are subjective and invisible states of mind and their existence has to be
gathered from the circumstances, such as the weapon used, the ferocity of
attack, multiplicity of injuries and all other surrounding circumstances. The
framers of the Code designedly used the words 'intention' and 'knowledge'
and it is accepted that the knowledge of the consequences which may result in
doing an act is not the same thing as the intention that such consequences
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should ensue. Firstly, when an act is done by a person, it is presumed that he
must have been aware that certain specified harmful consequences would or
could follow. But that knowledge is bare awareness and not the same thing as
intention that such consequences should ensue. As compared to 'knowledge',
'intention' requires something more than the mere foresight of the
consequences, namely, the purposeful doing of a thing to achieve a particular
end."
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of
the injury in the ordinary course of nature to cause death. The sufficiency is
the high probability of death in the ordinary course of nature. When the
sufficiency exists and death follows, causing of such injury is intended and
causing of such offence is murder. For ascertaining the sufficiency of the
injury, sometimes the nature of the weapon used, sometimes the part of the
body on which the injury is caused and sometimes both are relevant.
Depending on the nature of weapon used and situs of the injury, in some cases,
the sufficiency of injury to cause death in the ordinary course of nature must
be proved and cannot be inferred from the fact that death has, in fact, taken
place.
13. Keeping in view the above principles, when we examine the facts of the
present case, the deceased sustained gunshot wound of entry 1½″ × 1½″ on the
back and inner part of left thigh, six gunshot wounds of exit each ⅓″ × ⅓″ in
size in front and middle left thigh. Due to the occurrence in the morning at the
barber shop of the deceased, the appellant emerged from the northern side of
the grove carrying pistol in his hand and fired at the deceased. The weapon
used and the manner in which attack was made and the injury was inflicted
due to premeditation clearly establish that the appellant intended to cause the
injury. Once it is established that the accused intentionally inflicted the injury,
then the offence would be murder, if it is sufficient in the ordinary course of
nature to cause death. We find substance in the contention of the learned
counsel for the appellant that the injury was on the inner part of left thigh,
which is a non-vital organ. Having regard to the facts and circumstances of the
case that the gunshot injury was caused in the inner part of left thigh, the
sufficiency of injury to cause death must be proved and cannot be inferred
from the fact that death has taken place. But the prosecution has not elicited
from the doctors that the gunshot injury on the inner part of left thigh caused
rupture of any important blood vessel and that it was sufficient in the ordinary
course of nature to cause death. Keeping in view the situs and nature of injury
and in the absence of evidence elicited from the doctor that the said injury was
sufficient in the ordinary course of nature to cause death, we are of the view
that it is a fit case where the conviction of the appellant under Section 302 IPC
should be under Section 304 Part I IPC.
(Also relied Gokul Parashram Patil v. State of Maharashtra,
(1981) 3 SCC 331)
27. In view of the above discussions, it is concluded that the
prosecution has proved beyond doubt that There was an altercation and
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scuffle between deceased Manzoor Khan and accused Rajesh Soni and
Atul Panwar around 9:00 pm in the night of 27.12.1997. The accused
Atul Panwar and Rajesh Soni had assaulted Manzoor Khan with knife on
his thigh and below the left buttock. Manzoor Khan has died due to the
injuries and its' complications. Learned trial Court committed no error in
holding that the accused had assaulted Manzoor Khan by knife with
knowledge that the bodily injury inflicted to Manzoor Khan is likely to
cause death. Therefore, the trial Court had committed no error in
convicting the accused/appellants Atul Panwar and Rajesh Soni for
offence punishable under Sections 304 Part I of IPC. The appeals
assailing the conviction has no merit, hence, dismissed. The impugned
Judgement of conviction dated 26.02.2000 is affirmed.
28. Now, the propriety of the sentence is considered. Both the accused
Rajesh Soni and Atul Panwar were aged around 20 years at the time of
alleged incident. The incident happened in the heat of moment by the
youngsters, when the deceased had scuffled with them over petty issue of
walking on midway. There was no premeditation. Both the accused had
inflicted single knife blow to the deceased. They did not act in cruel
manner. Almost 28 years have elapsed since the alleged incident. The
bitter memories of incident and feel of loss might have diminished. In
view of these aspects of the matter, in opinion of this Court, reduction in
sentence of imprisonment with enhancement of fine may serve the ends
of justice.
29. Consequently, the appeals are partly allowed only on the point of
sentence. The appellants/accused Atul son of Krishnarao and Rajesh son
of Kailash Chand Soni are sentenced for offence punishable under
Section 304 Part I of IPC with rigorous imprisonment for (5) five years
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and fine of Rs. 5,000/- each. In default of payment of fine, the defaulter
convict shall undergo additional rigorous imprisonment for one year. The
period of custody undergone by the appellants/accused shall be set off in
the sentence of imprisonment. The supersession warrant be prepared
accordingly. The order of the trial Court with regard to disposal of the
property is affirmed.
30. The record of the trial Court be remitted alongwith copy of this
judgement after necessary compliances.
A copy of this judgement be retained in the record of connected
criminal appeal.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
BDJ / amol
