Madhya Pradesh High Court
Puran vs The State Of Madhya Pradesh Thr. on 5 September, 2024
Author: Anand Pathak
Bench: Hirdesh, Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE HIRDESH, JJ
ON THE 05TH OF SEPTEMBER, 2024
CRIMINAL APPEAL 871 OF 2015
PURAN
Versus
THE STATE OF MADHYA PRADESH
-----------------------------------------------------------------------------------------------
Appearance:
Shri Ashok Kumar Jain- learned Counsel for appellant.
Shri Naval Kishor Gupta- learned Public Prosecutor for respondent/ State.
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JUDEMENT
As per Justice Hirdesh, J:-
Today, this case is listed for hearing on IA No.18790 of 2024, fifth
repeat application under Section 389(1) of Criminal Procedure Code, 1973
moved on behalf of appellant- Puran Yadav for suspension of jail sentence and
grant of bail on the ground of period of custody as he has already suffered
more than 10 years of incarceration, but with the consent of parties, this Court
deems it proper to hear this appeal finally.
(2) The instant Criminal Appeal under Section 374(2) of Criminal
Procedure Code,1973 is preferred by appellant- Puran Yadav from Jail
challenging the impugned judgment of conviction and order of sentence dated
03-08-2015 passed by learned Sessions Judge, Shivpuri (MP) in Sessions Trial
No.177 of 2014 whereby the appellant has been convicted for offence
punishable u/S 302 of IPC and sentenced to undergo for life imprisonment
with fine of Rs.6,000/- and in default of payment of fine amount, rigorous
imprisonment for one year.
(3) Case of the prosecution, in brief, is that in the night of 30-04-2014,
2Suresh (since deceased) was sleeping in the hut (gainth) with his uncle Gole
(PW-2) and brother Mohar Singh (PW-1) in Village Kakrai. Around 02:00 in
the night, accused Puran (appellant) opened the door(tata) and came there with
an axe in his hand. Mohar Singh and others saw him coming there. Accused
assaulted Suresh on his neck by means of axe and fled from there, due to which
Suresh died on spot. Mohar Singh (brother of deceased) lodged a Dehati Nalisi
at PS Bairad, District Shivpuri around 05:00 in the morning. On such
allegations, PS Bairad registered Crime No.141 of 2014 against appellant for
offence punishable under Section 302 of IPC. Naksha Panchnama was
prepared vide Ex.P3. Dead body of deceased- Suresh was sent for Postmortem
which was conducted by Dr.A.K. Maurya (PW-9) who proved Postmortem
Report Ex.P9. Blood-stained and plain soil as well as other articles were
seized. Statements of witnesses were recorded. Appellant was arrested vide
arrest memo Ex.P5. Pursuant to memorandum of appellant, an axe and other
articles were also seized vide Ex.P7 and Ex.P8 and the same were sent to FSL.
After completion of investigation and other formalities, charge-sheet was filed
before the competent Court of Criminal jurisdiction and in turn, the case was
committed to the Sessions Court for its trial, in which the appellant accused
abjured his guilt and entered into defence, by stating that he has not committed
any offence and has falsely been implicated.
(4) In order to bring home the offence, prosecution examined as many as
twelve witnesses and brought on record the relevant documents. Defence has
examined none and not exhibited any document in order to prove its case.
(5) The Trial Court, after appreciation of oral and documentary evidence on
record, convicted the appellant for offence punishable under Section 302 of
IPC and sentenced as above against which the present appeal has been
preferred.
(6) Counsel for appellant submits that the impugned judgment passed by
learned Trial Court is bad in law and contrary to the facts and evidence of the
3
case. The evidence led by prosecution witnesses suffer from serious infirmities.
The learned Trial Court has committed an error in relying upon evidence of
Mohar Singh (PW-1), Gole (PW-2), Matadin (PW3) and Seema (PW-7). All
these witnesses are relatives and interested witnesses, therefore, their evidence
is unreliable. Learned Counsel further contends that some unknown person has
committed murder of deceased and appellant has falsely been implicated due
to election rivalry. On the date of alleged incident, appellant was not present on
spot, but in his in-laws’ house. Although Gole (PW-2) and brother Mohar
Singh (PW-1) brother and uncle of deceased were sleeping near deceased at the
time of incident, but no one resisted the accused nor did anyone try to save the
deceased. Alleged incident had taken place in the dark and it was not possible
to see the accused. Learned Counsel further contends that there is a delay of
more than five months in recording the evidence of prosecution witnesses
which is fatal to the case of prosecution. Therefore, the prosecution story
appears to be doubtful and appellant deserves to be acquitted by setting aside
the impugned judgment.
(7) On the other hand, learned Counsel appearing for respondent/State
supported the impugned judgment and submitted that Mohar Singh (PW-1),
Gole (PW-2) and Matadin (PW-3) are eye-witnesses of the incident who in
their evidence, stated that accused had assaulted Suresh by means of axe on his
neck in front of them in mid-night in which, they could not protect the
deceased and the accused/appellant ran away from place of occurrence with
axe after commission of crime. Prosecution evidence is duly supported by
medical evidence. The death of deceased was homicidal in nature which has
been answered by learned trial Court in affirmative relying upon postmortem
report (Ex.P9) proved by Dr.A.K.Maurya (PW9) which is a finding of fact
based on evidence available on record. It is neither perverse nor contrary to the
record. There is no infirmity in the impugned judgment. Hence, he prayed for
dismissal of appeal.
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(8) Now, the points for consideration before this Court are; (i) whether the
finding of the Trial Court on conviction and sentence of appellant under
Section 302 of IPC is erroneous in the eyes of law and facts?
First question arises as to whether the death of of deceased is homicidal
or not?
Anand Rai (PW-10), who was posted as Station House Officer at PS
Bairad in his examination-in-chief, deposed that on 30-04-2014, he had
registered Rojnamcha Sanha around 04:10 pm on the information received
from Village Chowkidar (Kotwar)- Ajay Pal telephonically. He was informed
that accused had killed Suresh with an axe. Thereafter, he had written Dehati
Nalisi (Ex.P1) as per information given by Mohar Singh and had gone to the
place of incident where he prepared Panchanama of dead body of deceased-
Suresh in the presence of witnesses vide Ex.P3 and found marks of cut wound
caused by sharp edged object. Spot map was prepared by him in the presence
of Mohar Singh vide Ex.P4. Thereafter, dead body of deceased- Suresh was
sent for postmortem.
Dr. A.K. Maurya (PW-9), in his examination-in-chief, deposed that on
30-04-2014, he was posted as Medical Officer at Primary Health Centre,
Bairad, District Shivpuri. He had conducted postmortem of deceased- Suresh
and found following injuries on the person of deceased:-
”An incised chop wound size 6 cm x 4cm x 4.5 deep with clean
cut margin and horizontal direction which was deep situated in
the middle of left side of the neck. On dissecting the neck,
muscles, fibers and large blood vessels of the neck were cut on
the left side.”
As per opinion of Dr. Maurya, due to these cuts, there was excessive
internal and external bleeding and the windpipe was also cut on the left side of
the neck. Ante-mortem injury was found on the body of deceased- Suresh,
caused by sharp edged object(axe). Suresh died within 24 hours prior to
autopsy. Death of deceased was homicidal in nature. Postmortem report is
Ex.P9.
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On perusal of evidence of these prosecution witnesses, Lash Panchnama
as well as postmortem report Ex.P9 and taking into consideration the fact that
there is no substantial cross-examination by defence, it is clearly proved that
the death of deceased was homicidal in nature.
The next point for determination is as to whether appellant had caused
death of deceased- Suresh by assaulting him with an axe (Kulhadi) ?
At the outset, statements of Mohar Singh (PW-1), Gole (PW-2), Matadin
(PW-3) and Seema (PW-7) are required to be enunciated.
Mohar Singh (PW-1) who had lodged Dehati Nalisi (Ex.P1), in his
examination-in-chief, deposed that deceased- Suresh was his brother. On the
date of incident, he was sleeping in his hut (gainth). At that time, his uncle
Gole and brothers- Matadin and Suresh were also sleeping near him. Around
1:30 in the night, accused/appellant- Puran came there and assaulted his
brother Suresh with axe on his neck. His brother Suresh writhed in pain and
screamed. Hearing his shouts, he, his uncle Gole and Matadin woke up. They
tried to catch the accused, but accused ran away with axe. His brother Suresh
died after an hour. He informed about the incident to his brother-Ajay Pal,
Chowkidar(Kotwar) who reported the above incident to PS Bairad. The police
reached the spot around 4:00-5:00 in the night. He narrated the entire incident
on the basis of which Police recorded dehati nalisi (Ex.P1).
Gole (PW-2), who is uncle of the deceased and Matadin (PW-3), who is
brother of deceased- Suresh also vindicated the prosecution story in the same
way in their examination-in-chief as stated by Mohar Singh (PW-1) in his
examination-in-chief.
Seema (PW-7), who is daughter of deceased, in her examination-in-
chief, stated that she was sleeping near her father. Around 1:30 in the night,
appellant came and assaulted her father with an axe on his neck. After this, she
screamed for her uncle Mohar Singh (PW-1) and uncle (tau) Gole (PW-2).
Thereafter, all the family members woke up. She saw that accused was
6standing near the hut armed with an axe and thereafter, he ran away from there.
It is contention of learned Counsel for appellant that there was no
independent witness of the incident. It is only vindicated by the relatives of
deceased and there are so many omissions and contradictions in their evidence.
With regard to these aspects, in the case of Chauda Vs. State of
Madhya Pradesh, 2019 ILR M.P. 471, the Division Bench of this Court held
as under:-
“The appellants failed to rebut their testimony which was quite
natural and without any material contradiction and omission, the
conviction can be based on the testimony of close
relatives/interested witnesses. There is no material contradiction
or omission between testimony of eye-witnesses and medical
evidence which must be relied upon. In this case it is held that if
interested / relative witnesses are reliable, then these evidence
are not discarded merely on this ground.”
Further, in the matter of Smt. Dalbir Kaur Vs. State of Punjab, 1977
AIR 472, the Hon’ble Apex Court has made following observation:-
“Interested witnesses are related witnesses and they are
natural witnesses. They are not interested witnesses and their
testimony can be relied upon.”
In the case of Arjun Singh Vs. State of Chhattisgarh, 2017 Vol.2
MPLJ Cr. 305, the Hon’ble Apex Court also observed that the evidence of
related witnesses has the evidentiary value, Court has to scrutinize the
evidences with care in each and every case is a rule of prudence and a rule of
law. Facts of witnesses being related to victim or deceased are not by itself
discredit evidence.
Also, in the matter of altu Ghosh Vs. State of West Bengal, AIR
(2019) SC 1058, the Hon’ble Apex Court has observed as under:-
”(a) This Court has elucidated the difference between
‘interested’ and ‘related’ witnesses in a plethora of cases, stating
that a witness may be called interested only when he or she
derives some benefit from the result of a litigation, which in the
context of a criminal case would mean that the witness has a
direct or indirect interest in seeing the accused punished due to
7prior enmity or other reasons, and thus has a motive to falsely
implicate the accused.
(b) Actually in many cases, it is often that the offence is
witnessed by a close relative of the victim / deceased, whose
presence on the spot of the incident would be natural. The
evidence of such a witness cannot automatically be discarded by
labelling the witness as interested.”
On perusal of evidence of Mohar Singh (PW-1), Gole (PW-2) and
Matadin (PW-3), it was found that they were suggested on behalf of defence
that the alleged incident happened in the dark and it was not possible to
recognize the accused, but all the witnesses were substantially intact and
unshattered in their cross-examination. They denied the suggestions given by
defence. Further, these witnesses in their cross-examination clarified that there
was light of bulb near the hut where the deceased was sleeping and they saw
the appellant/accused.
The next contention of learned counsel for appellant that there are so
many contradictions and omissions in the evidence of Mohar Singh (PW-1),
Gole (PW-2) and Matadin (PW-3). Since, they are interested and related
witnesses, therefore, their evidence is not reliable, even in the wake of the fact
that their statements were recorded after five months of the incident.
On perusal of evidence of Mohar Singh (PW-1), Gole (PW-2) and
Matadin (PW-3), it was found that the alleged incident had taken place on 30-
04-2014 and they were examined after five months of the incident i.e. in the
month of September, 2014. Although there are some minor omissions and
contradictions in their evidence, but they cannot be discarded only on this sole
ground. So, in view of aforesaid discussion, in the opinion of this Court, minor
contradictions and omissions shall not affect the substantial part of evidence of
witnesses as they have unrebutted substantially in each and every part of their
evidence which is duly supported by medical evidence. In this regard, in the
case of Ramni alias Rameshwar Vs. State of MP (1999) 2 JLJ 354, it has
been held as under:-
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”24. When eye-witness is examined at length it is quite possible
for him to make some discrepancies. No true witness can
possibly escape from making some discrepant details. Perhaps an
untrue witness who is well-tutored can successfully make his
testimony totally non-discrepant. But Courts should bear in mind
that it is only when discrepancies in the evidence of a witness are
so incompatible with the credibility of his version that the Court
is justified in jettisoning his evidence. But too serous a view to
be adopted on mere variation falling in narration of an incident
(either as between the evidence of two witnessed or as between
two statements of the same witness) is an unrealistic approach
for judicial scrutiny.”
Learned Counsel for appellant further contends that evidence of Seema
(PW-7), who is daughter of deceased- Suresh, is not reliable as none of
witnesses, namely, Mohar Singh (PW-1), Gole (PW-2) and Matadin (PW-3) has
stated that at the time of incident, Seema (PW7)was also sleeping near her
father (deceased) at the time of incident.
On perusal of evidence of Seema (PW-7), it appears that although there
is minor contradiction between her police statement and Court statement
recorded under Section 164 of CrPC (Ex.D2) yet she in her evidence has fairly
stated that she was sleeping near her father. When the accused came and
assaulted on the neck of her father, she shouted for her uncle and uncle(tau).
In her Court statement Ex.D2, there is no mention that she woke up to drink
water nor had she made any statement to this effect in her examination-in-
chief. She has also clarified that her house and hut (gainth) are at a distance of
about 10-15 steps. Therefore, evidence of this witness does not appear to be
unnatural and doubtful.
In Ex.P4, Investigating Officer- Anand Rai (PW-10) has specifically
mentioned about the details of crime. In Serial No.1 of Ex.P4, it has been
clearly mentioned that deceased- Suresh was found lying dead on the cot. It is
true that it was not mentioned that from which place, Mohar Singh (PW-1) had
seen the incident but it is not a major defect.
In case of murder regarding faulty investigation, the Hon’ble Apex Court
9in the case of Dhanraj Singh alias Shera and Others vs. State of Punjab
AIR 2004 SC 1920, held that in the case of a defective investigation, the Court
has to be circumspect in evaluating the evidence. But it would not be right in
acquitting an accused person solely on account of the defect; to do so would
tantamount to plying into the hand of the Investigating Officer if the
investigation is designedly defective. When the direct testimony of eye-
witnesses corroborated by the medical evidence fully establishes the
prosecution version failure or omission or negligence on the part of the
Investigating Officer cannot affect credibility of the prosecution version.
Learned Counsel for the appellant also contends that there was delay of
near about five months in recording the evidence of witnesses by Investigating
Officer.
On perusal of evidence of Investigating Officer- Anand Rai (PW-10), it
appears that not a single question was put before him during trial as to why he
had taken the evidence of prosecution witnesses with delay.
Considering the evidence of Anand Rai (PW-10), it was found that no
prejudice has been caused to the appellant. Therefore, submission of counsel
for appellant has no substance in this regard.
Learned counsel for appellant further contends that there is no motive of
appellant to cause death of deceased and prosecution has utterly failed to prove
the motive of appellant for commission of offence.
On perusal of evidence of prosecution witnesses, it is crystal clear that
appellant/accused had asked for bullock-cart and when deceased- Suresh
denied for the same, the accused/appellant committed the alleged incident.
However, the witnesses in their evidence admitted that they did not inform the
police about the refusal of deceased to give the bullock cart to the accused.
Otherwise, it was a normal thing in which no person would have even thought
that accused would cause death of deceased over such a trivial matter.
Therefore, not informing the police about this matter earlier is not a laxity. The
10prosecution case is based on direct evidence, hence, the absence of motive is
not of any special importance and nor can the prosecution evidence be
considered unreliable. Therefore, the argument of learned Counsel for
appellant is bereft of substance.
Learned Counsel for appellant further contends that police seized axe
vide seizure memo Ex.P7 in which it was not mentioned that blood was found
on axe but in the FSL report, human blood was found on the seized axe which
creates doubt on the veracity of seizure memo Ex.P7.
It is true that according to seizure memo Ex.P7, there is no mention that
blood was found on axe but in the FSL report, human blood was found. The
same will not render any assistance to appellant as all the witnesses have
elaborately supported the prosecution case.
On perusal of cross-examination of Anand Rai (PW-10), it was found
that a suggestion was given by accused/defence to him that the accused was
not present in his village at the time of incident but he was at his in-laws’ house
in village Gehloi. As regards plea of alibi, it should be proved by defence
evidence but during trial under Section 313 of CrPC the appellant/accused did
not take this defence evidence. Even, no question was asked in this regard to
any witness other than Investigating Officer. Therefore, the possibility of
accused being at some other place at the time of incident or the incident being
committed by some other person is proved to be completely baseless. Judgment
passed by Hon’ble Apex Court in the matter of State of Maharashtra Vs.
Narsingrao Gangaram Pimple, (1984) 1 SCC 446 is worth relied on, wherein
it has been held that it is well established that plea of alibi must be proved with
certainty so as to completely exclude the possibility of presence of person
concerned at the place of occurrence.
On going through the record of the trial Court as well as in view of the
aforesaid decision of the Apex Court, it is clear that plea of alibi which has
been taken by the appellant was not proved and possibility of his presence at
11the place of occurrence cannot be excluded. Thus, this plea has no substance
and hence, cannot be accepted.
In the alternative, learned Counsel for appellant submits that even if
prosecution story is accepted in its entirety, it is assumed that appellant had no
intention to cause death of the deceased, therefore, at the most, offence falls
within the purview of Section 304 Part II IPC instead of Section 302 of IPC.
Before adverting to the above proposition, it would be appropriate to
throw light on the interpretation of relevant provisions of Sections 299 and 300
of IPC in the light of judgment of Hon’ble Apex Court. 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 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
12Section 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
13being 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.”
In the above context, lets now see to Section 299 of Indian Penal Code
which 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.”
Thus, section 299 of IPC lays down culpable homicide as 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
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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.
Section 300 of Indian Penal Code is also relevant in the present context,
which 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.”
Indian Penal Code 1860 recognizes two kinds of homicide : (1) Culpable
homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable
homicide, dealt with by Section 304-A of IPC. Likewise, there are two kinds of
culpable homicide; (i) culpable homicide amounting to murder (Section 300
read with Section 302 of IPC), and (ii) culpable homicide not amounting to
murder (Section 304 of IPC).
A bare perusal of the said Section makes it clear like a day light that the
15
first and the second clauses of the section 299 IPC refers 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.
Apart from that 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. The fact that the death of a
human being is caused is not enough unless one of the mental state mentioned
in ingredient of the Section 299 IPC 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
caused on the person of the deceased by the accused, the intention is to be
gathered from all facts and circumstances of the case, like if injury is on the
vital part, i.e., chest or head etc. and as per the medical evidence that injury had
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.
(9) Considering the aforesaid verdict of the Hon’ble Apex Court and
provisions of Sections 299 and 300 of IPC as well as considering the nature of
injury caused to the deceased, it was found that appellant had caused injury on
the vital part of deceased i.e. neck by means of axe which is a sharp-edged
object. Thus, the prosecution was within its four-corners thereby was able to
prove the offence beyond reasonable doubt and as per medical evidence, the
death of deceased was homicidal in nature which was caused by means of axe
and ocular evidence is fully corroborated by medical evidence. Therefore, it is
16
crystal clear that the appellant intended to commit the murder of deceased-
Suresh.
(10) After going through the entire facts and circumstances of the case and
looking to the fact that the prosecution witnesses have fully supported the
prosecution evidence and their evidence are duly supported or corroborated by
medical evidence, the learned trial Court has not committed any error in
convicting and sentencing the present appellant-accused for offence punishable
under Section 302 of IPC.
(11) In view of above discussion, the impugned judgment of conviction and
order of sentence dated 03-08-2015 passed by learned Sessions Judge,
Shivpuri (MP) in Sessions Trial No.177 of 2014 deserves to be and is hereby
upheld. This appeal being sans substratum, is hereby dismissed.
Let a copy of this judgment along with record be sent to the trial Court
concerned for necessary information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
MAHENDRA Digitally signed by MAHENDRA BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981397a35
BARIK
d9758a2b55074, postalCode=474001, st=Madhya Pradesh,
serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B6C8C3F
F0E5E280DD36D476F6BA, cn=MAHENDRA BARIK
Date: 2024.09.11 23:21:21 +05’30’