Abhay K. Gohil, J.
Being aggrieved by the judgment dated 18-5-1998, passed by Sessions Judge Vidisha in Sessions Trial No. 196/97 whereby appellants have been convicted under Sections 302 read with 34 of Indian Penal Code and sentenced to life imprisonment and fine of Rs. 2000/- each and in default of payment of fine to further undergo R.I. for one year each, appellants have preferred this appeal u/s 374 of the Code of Criminal Procedure.
According to the prosecution story, the incident took place on 9-7-1997. On that day, one Shivnarayan had gone to purchase some grocery goods from village Barwai to Ganj Basoda. From there he returned on a motorcycle with one Anshul and one Bahadur Singh. On returning from Ganj Basoda, he stopped at the Bus Stand of Village Barwai to collect the aforesaid goods. appellants Hariom, Jai Singh and Jaggu are also having their "Gumti" shops at the Barwai Bus Stand. appellant Hariom is also having his shop to Iron clothes at the Barwai Bus Stand. At that time there was some altercation between Shivnarayan and the appellants on the Barwai Bus Stand. Thereafter Shivnarayan went to his house and informed his father Gokul Prasad (P.W. 6) and brother Brajesh Kumar (P.W. 1) about the altercation with the appellants. After informing his family members he again came on the Bus Stand. His brothers Brajesh Kumar (P.W. 1) and Pratipal (P.W. 4) also came behind him as Shivnarayan had intimated them about the altercation. When Shivnarayan reached at the place of occurrence, appellant Hariom assaulted him by sword and appellants Jai Singh and Jaggu assaulted him by "Tomy". The incident was witnessed by Brajesh (P.W. 1) and Pratipal (P.W. 4) who were coming behind Shivnarayan. Seeing them, the appellants ran away from the spot. Brijesh (P.W. 1) and Pratipal (P.W. 4) saw the injured and injuries on his hands and legs. Brajesh (P.W. 1) and Pratipal (P.W. 4) immediately came back to their house and informed about the incident to their father Gokul Prasad (P.W. 6) and Chowkidar Netram. They also brought Dr. Sanjay who is having his Unani Clinic at the Bus Stand. Dr. Sanjay came on spot and after seeing the injured, advised that he be taken to Civil Hospital Kurwai. After arranging Tractor-Trolley, the injured was shifted to Kurwai. FIR was also lodged at Police Station Kurwai, from where the injured was referred to hospital where he was medically examined by Dr. K.M. Goyal (P.W. 7). MLC was recorded. Dying declaration of the injured was also recorded by Dr. K.M. Goyal (P.W. 7) which is Ex. P/11 as in the late night, no Executive Magistrate was available to record his statement and thereafter the injured was referred to District Hospital, Vidisha where he was declared dead (hereinafter referred to as "deceased" only). Marg was registered at Kotwali, Vidisha and Panchayatnama of the dead body (Ex. P/2) was prepared, Safina form (Ex. P/3) was also prepared. Post Mortem of the dead body was performed by Dr. M.K. Ostwal (P.W. 15) next day and the intimation about the death was given to Police Station Kurwai. Matter was further investigated by Mukesh Choubey (P.W. 14), Sub-Inspector. He arrested the accused persons and recovered Sword and Tomy from them. Spot map was prepared. Plain and blood stained soil was seized. Blood stained clothes of the deceased were also seized. Seized articles were referred for chemical examination to Gwalior, its report is Ex. P/30 and charge-sheet was filed.
During trial, appellants abjured their guilt and denied their participation in the commission of crime. Trial Court found the evidence of dying declaration and the evidence of Brajesh Kumar (P.W. 1) coupled with the evidence of Dr. K.M. Goyal (P.W. 7) to be reliable. As per Dr. K.M. Goyal (P.W. 7), injuries received by the deceased on both the hands were dangerous to life and as per the evidence of Dr. M.K. Ostwal (P.W. 15), injuries were sufficient in the ordinary course of nature to cause death. appellants have not produced any witness in defence. Trial Court after appreciating the evidence, found the appellants guilty, convicted them and sentenced them as aforesaid against which they have preferred this appeal.
We have heard Learned Counsel of the parties and perused the evidence on record.
At the outset, Shri Dhirendra Singh, Learned Counsel for the appellants submitted that he is not challenging the prosecution evidence on record. He submitted that the injuries on the body of the deceased are mostly on non-vital parts. Therefore, he submitted that even if the case of the prosecution is accepted as it is, the same will not fall u/s 302 of Indian Penal Code but at the most it will fall u/s 304 part I of Indian Penal Code for culpable homicide not amounting to murder. He further submitted that all the appellants are in jail and they have already suffered jail sentence of around eight years, therefore his prayer is that the conviction be modified to that u/s 304 Part I of Indian Penal Code and they be released on undergone jail sentence. In support of his contentions, he placed reliance on the decisions in the case of Harish Kumar v. State (Delhi Admn.), 1994 SCC (Cri) 581, Maliya v. State of Rajasthan, 1994 SCC (Cri) 1413, Ramjattan v. State of U.P., 1995 SCC (Cri) 169, Kariya v. State of Karnataka, 2000 (8) Supreme 572 and
In reply, Shri C.S. Dixit, learned public prosecutor supported the judgment and the findings recorded by the trial Court and his contention is that this case will not fall u/s 304 Part I, Indian Penal Code, but this is a case of clear cut murder of the deceased. In support of his contention he placed reliance on the decision in the case of
Out of the four eye-witnesses, the trial Court has relied only on the evidence of Brajesh Kumar (P.W. 1) who is brother of the deceased. Though Netram (P.W. 2), Sanjay Kumar Sinha (P.W. 3) and Pratipal (P.W. 4) have also supported the prosecution case, but the trial Court has found that they came on spot later on and they had not seen the incident. Though Pratipal (P.W. 4) who is brother of the deceased has supported the prosecution case, but, he was declared hostile as in the cross-examination he has said that when he reached on spot, the assailants ran away. Further in the cross-examination he has clarified that he had seen the incident and also the assailants running away from the spot. He has also admitted that it was the time of night and it was a dark place. No source of light was available on spot and the appellants ran away after beating his brother in the darkness. Netram (P.W. 2) and Sanjay Kumar Sinha (P.W. 3) had stated that they reached on spot after the incident and they had only seen the injured. They both were declared hostile as they have not supported the prosecution version. The injured was initially medically examined by Dr. K.M. Goyal (P.W. 7). As per the medical examination report (Ex. P/10), he received following nine injuries:
8. Incised wound 5 cm x 2 cm x muscle deep situated laterally on the mid of left arm.
Incised wound 5 cm x 2 cm x muscle deep on lower part of left arm.
Incised wound 7 cm x 1 cm x muscle deep over lateral part of face.
Incised wound 5 cm x 2 cm x muscle deep anteriorly placed on mid of right arm.
Incised wound 5 cm x 2 cm x bone deep on mid of right forearm anterior direction across the forearm.
Incised wound 5 cm x 2 cm x bone deep on upper 1/3 rd part of right fore arm.
Incised wound 10 cm x 6 cm x whole thickness of limb. Bones and Arteries vein are all cut. Forearm is separated from arm at elbow.
Incised wound 3 cm x 2 cm anteriorly placed over middle of left leg.
Incised wound 2 cm x 1 cm over lateral aspect of right ankle.
As per his evidence, the injuries were dangerous to life and condition of the injured was very critical. Pulse was not recordable. Blood was oozing. He had also recorded the dying declaration of the deceased vide Ex. P/11. Post-mortem of the dead body was performed by Dr. M.K. Ostwal (P.W. 15). Dr. Ostwal found only five injuries on the body of the deceased. In the opinion of this doctor, the cause of death of syncope due to severe injuries on the right arm which cut all important blood vessels, muscles and bones. According to him, the death was probable in the ordinary course of nature. The death was homicidal in nature. In the cross-examination, he had admitted that the injured could have been saved, had he received medical assistance in time. He has further admitted that on stoppage of bleeding and also on blood transfusion, it was possible to save him. He has further admitted that if the blood was not available then IB fluid also could have saved him. He has admitted that the deceased was not having any injury on the vital parts of his body and he had seen the injuries on both the hands. Dr. K.M. Goyal (P.W. 7) in the cross-examination has not supported the injuries which were described in the post-mortem report. After considering the medical evidence of both the doctors, the trial Court has found that the doctor who performed autopsy on the dead body had not properly recorded the injuries and it appears that he might have not seen those injuries on the body of the deceased. Though Dr. K.M. Goyal (P.W. 7) who recorded the MLC has stated that his condition was very critical and it was a case of excessive bleeding but he has not clearly opined that the injuries received were sufficient to cause death in the ordinary course of nature. It is not in dispute that the injuries received by the deceased are on non-vital parts of the body though injury No. 7 had fully damaged his forearm which was at the verge of separation from the hand. Brajesh (P.W. 1) in his cross-examination has stated that one of his brothers, Awadh Narayan is a constable in the police department and the relations of the deceased with the appellants were not enmical. It has also come in the evidence that the deceased was himself a habitual offender and 5-6 criminal cases were registered and pending against him. He used to quarrel in the village after consuming liquor.
Therefore, it is clear that the deceased himself was behaving like a ruffian in the village. His brother himself has admitted that the deceased used to quarrel with other persons. There is no evidence on record that what was the cause behind the happening of this incident. Prosecution has not produced any evidence about the motive of the crime. There is no evidence on record that how initially the quarrel took place between the deceased and the appellants. Deceased himself has narrated the cause of quarrel with washerman Hariom but Brajesh (P.W. 1) has not stated anything before the Court about the earlier quarrel between them. Thus, it is clear that no evidence of motive or cause of incident is available on record. After quarrelling the deceased came back to his house, narrated the incident to his father and brother and thereafter immediately went to the Bus Stand where the incident took place. The defence of the appellants is that when the deceased came back, he was carrying Sword in his hand and therefore the overt act of the appellants was in the right of their private defence. Though the appellants have also not stated anything in their statements recorded u/s 313 of the Code of Criminal Procedure but it is almost certain that no evidence of premeditation and motive is available on record. As per the evidence of Brajesh (P.W. 1), he himself came on the place of occurrence from his house and the incident took place immediately thereafter. Gokul Prasad (P.W. 6) is the father of the deceased. He has only stated that when the deceased came to the house, he informed him that there was a quarrel between him and the appellants, but, what was the reason of this quarrel was not mentioned to his father and his father has also not narrated the same to the Court. Therefore, from the evidence of his father also, reason of the quarrel is not known. Gokul Prasad (P.W. 6), father of the deceased has also deposed that the oral dying declaration was made by the deceased to him and the names of the appellants as assailants were mentioned to him but in the cross-examination he has stated that when the oral dying declaration was made by the deceased to him, Netram (P.W. 2) and Dr. Chan Singh were also present and many other persons were also present on spot but none of the witnesses Netram or Dr. Chan Singh or any other independent witness has supported the evidence of this witness Gokul Prasad (P.W. 6).
In the light of the aforesaid evidence, though the trial Court has found that it is a case of murder u/s 302, Indian Penal Code but as discussed above, it is clear that there is no evidence about motive of the incident. It is also true that the deceased has not stated the cause of quarrel with the appellants either to his father or to his brother and even in his dying declaration (Ex. P/11), he has not stated the cause of incident. Looking to his criminal background it may be possible that he might have gone either to take revenge or to rebuke the appellants. From the prosecution evidence, it is also clear that there was no previous enmity between the parties. Learned Counsel for the appellants has also raised a suspicion about the consciousness of the deceased at the time of giving the dying declaration. His submission is that when his condition was serious and the pulse was not recordable, it was not possible for the deceased to give any dying declaration. There is no evidence of premeditation available on record.
Admittedly, the deceased received injuries on the non-vital parts of his body. All the injuries were on the hands, arms and legs. In the case of Harish Kumar v. State (Delhi Admn.) (supra), the Apex Court has considered the medical evidence on record. Though from the medical evidence the injuries were sufficient to cause death in the ordinary course of nature within Clause 3rdly of Section 300, Indian Penal Code, but on a close scrutiny of the evidence, the Hon''ble Supreme Court found that there was no evidence which could conclusively show that the evidence can be brought within Clause 3rdly of Section 300, Indian Penal Code. The injuries were considered by the Court and also the time gap between the infliction of injuries and the date of death which was two days after the injuries were inflicted. The Court has found that there was no sufficient material on record as to the nature of the treatment given to the deceased during those two days. Therefore, under the aforesaid facts and circumstances of the case, the Hon''ble Supreme Court found that it cannot be held conclusively that the injuries were sufficient to cause death and under such circumstances the conviction was altered from Section 302, Indian Penal Code to Section 304 Part II Indian Penal Code. Again in the case of Maliya v. State of Rajasthan (supra), the Hon''ble Supreme Court considered the difference between murder and culpable homicide and considered the part played by the accused, the weapon used and nature of blows inflicted. As Lathi blows were inflicted on non-vital parts of the body of the deceased, the Court held that in the absence of direct or circumstantial evidence to show that the accused intended to cause death of the victim, the accused are liable to be convicted u/s 304 Part 11/34 of Indian Penal Code instead of Section 302/34 of Indian Penal Code. In the case of Ramjattan v. State of U.P. (supra), the deceased received multiple injuries caused by twelve accused on non-vital organs of the victims. One of them died the next day due to shock and haemorrhage. There was no indication in the medical evidence that any of the injuries was sufficient to cause death in the ordinary course of nature. Though there was fracture of 8th and 9th ribs but there was no corresponding external injury found which resulted in the fracture. In the absence of intention to cause death, it was held that Clause 3rdly or 1stly of Section 300 are not attracted as common object to cause death was not established, the Hon''ble Apex Court has held that prosecution must prove in objective manner whether the injuries were sufficient in the ordinary course of nature to cause death and the same cannot be inferred unless the injuries are so patent and after considering the other circumstances the conviction was converted from Section 302/149, Indian Penal Code to Section 304 Part 11/149, Indian Penal Code. Again in the case of Kariya v. State of Karnataka (supra), the deceased had suffered eight injuries, but no injury was caused on any vital part of the body. The deceased was assaulted by an Axe. The doctor who conducted post-mortem stated that none of the injuries individually were sufficient to cause death. The Hon''ble Apex Court further found that if the appellant had intended to cause the death of the deceased then he could have attacked the victim at the vital parts of his body. As the injuries were only on the hands and legs of the deceased and there being no injury on the vital parts of the body, after considering the opinion of the doctor it was found that the appellant cannot be said to have intended to cause the death of the deceased.
Under the aforesaid circumstances, the conviction was altered to Section 304; Part II, Indian Penal Code and the appellant was sentenced to 10 years imprisonment. Recently in the case of Kunhimodeenkutty v. State of Kerala (supra), the Hon''ble Supreme Court has considered this aspect of the matter that all the accused persons attacked the deceased causing him severe injuries; the incident happened all of a sudden when accused persons saw the deceased and other injured witnesses. In such circumstances it was held that the offence committed would only come within the ambit of the offence punishable u/s 304 Part I, Indian Penal Code.
Shri Dixit, learned public prosecutor placed reliance on the case of Brij Bhukhan v. The State of Uttar Pradesh (supra) wherein it is held that:
Although the medical evidence does not say that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it is open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailants intended to cause death of the deceased." It is true that the Court can infer that the appellants intended to cause death of the deceased from looking into the nature of injuries but in the instant case there are no surrounding circumstances and corroborating evidence to infer the same.
Considering the aforesaid pronouncements of the Apex Court, from the evidence of this case it is clear that the deceased has not received any injury on the vital parts of his body. All the injuries received were on non-vital parts of the body of the deceased. The injuries were on legs and hands. Though the appellants were having Sword and "Tomy" in their hands which are sharp cutting objects but there is no evidence of premeditation or intention to cause death. Looking to the other evidence on record that there was no previous enmity between the parties and the deceased himself went on the place of occurrence, we find that the case of the appellants will not fall u/s 302, Indian Penal Code, but, it will fall under Sections 299 read with 304 Part II of Indian Penal Code for culpable homicide not amounting to murder. Thus, considering the totality of the facts and circumstances of the case together with the evidence on record and in the absence of any evidence of intention to cause death we find that the prayer of the Learned Counsel for the appellants for releasing them on undergone jail sentence appears to be reasonable and acceptable as the appellants have already suffered jail sentence of around eight years.
Consequently, this appeal is partly allowed. Conviction of the appellants u/s 302/34 is modified to that u/s 304, Part 11/34 of Indian Penal Code. As appellants have already suffered jail sentence of around eight years, their jail sentence is reduced to that already undergone by them. appellants are in jail. They be released forthwith if not required in any other case on their depositing the amount of fine if not already deposited by them failing which default clause imposed by the trial Court shall be liable to be enforced.
