Akhilesh Singh vs State of M.P.

Appellant - Akhilesh Singh was tried alongwith 4 others in the Court of Fourth Additional Sessions Judge, Bhind. Four of the accused were

acquitted by the trial Court. The appellant was convicted under Section 302 Indian Penal Code and Section 25 of Arms Act and was sentenced to

undergo life imprisonment on the former count and for 2 years R.I. under Section 25 of the Arms Act and the default clause of 6 months R.I.

The case relates to an occurrence which took place on 19/09/1998 at 06:30PM at Shastri Nagar Colony B Block when as per the prosecution,

the appellant alongwith four accused formed an unlawful assembly armed with 12 bore rifle and country made pistol sharing common object to kill

Nillu @ Ashwini.

As per prosecution story borne out from the First Information Report (Ex-P/1) the complainant Upendra Singh Bhadoria (PW-1) informed at

07:10PM that Nillu @ Ashwini was sitting at his timber mart when at 5PM his younger brother Pradhumn Singh (PW-7) had gone to play Cricket

where Raju and Kallu, residents of Village Haiwatpura came and stopped Pradhumn Singh stating why he is playing on the ground. On being

reported Nillu @ Ashwini alongwith boys sitting with him went to the field and gave beating to said Raju and Kallu who went back to Village

Haiwatpura and came back with Akhilesh (appellant), Harvilas and nephew of Kallu, Raju. Akhilesh was armed with 12 bore double barrel gun,

Kallu had 12 bore gun, Raju, Harvilas and nephew of Kallu, Raju had country made pistol. On reaching the spot, Akhilesh (appellant) abused

Nillu @ Ashwini and said ""VERNACULAR MATTER OMITTED"" and gave one gun shot blow on his Chest when the complainant questioned

as what are you doing, Akhilesh (appellant) retorted that kill him (PW-1) also. At that Kallu, Raju, Kallu''s nephew and Harvilas opened fire. To

save his life he (PW-1) took shelter behind Machine. Nillu @ Ashwini fell down, his father Buddh Singh (PW-3), Prashant Singh (PW-6),

Shivnath (PW-5), Netrapal (PW-2) came to rescue, at that moment the assailant ran away.

Upon drawing the First Information Report, investigation was set in motion. The dead body was sent for post mortem, report whereof is Ex-

P/10. The post mortem was conducted by Dr. Rakesh Saxena (PW-10). Blood stained soil and the plain soil were seized from the spot and empty

cartridge of 315 bore with KF92.9MM inscribed thereon was seized vide Ex-P/3. The 12 bore double barrel gun was seized from the possession

of appellant Akhilesh along with Arm licence in the name of Maharaj Singh S/o Ajudhi Singh, Village Haiwatpura, bearing No. MPBHD II No.

8/88 from dated 6.9.88 to 31.12.1999, with two 12 bore live cartridges vide Ex- P/14. The seized articles were sent for scientific analysis

whereon FSL report was submitted vide Ex-P/18, P/19 and the Serologist report was submitted vide Ex-P/20. On completion of investigation the

prosecution submitted charge sheet. On receipt whereof cognizance was taken and all the accused persons including the appellant were committed

to the Court of Session to face trial.

The accused persons abjured their guilt and pleaded innocence and in defence examined Pancham Singh (DW-1), Vishnudatt Yadav (DW-2)

and Srinath Yadav (DW-3) and produced copy of newspaper Swadekh Akhbar dated 20/09/1998, marg intimation Ex-D/9 and order dated

09/08/1999 passed by the District Magistrate cancelling the arms license of Maharaj Singh.

During trial, prosecution examined 14 witnesses. Of whom Upendra Singh Bhadoriya (PW-1), Netrapal Singh (PW-2), Buddh Singh Bhadoriya

(PW-3), Shivnath Singh (PW-5), Prashant Singh (PW-6) and Pradhumn Singh (PW- 7) claimed themselves to be the eyewitnesses. Dr. Rakesh

Saxena, who conducted post mortem and gave the report (Ex-P/10) was examined as PW-10.

On conclusion of trial the learned Fourth Additional Sessions Judge while acquitting four accused persons on the findings that charge of unlawful

assembly by them (the four) showing common object could not be proved by the prosecution beyond doubt, however, held the appellant guilty of

the charges under Section 302 IPC and under Section 25 Arms Act and sentenced him as above.

It is the contention on behalf of the appellant that the First Information Report was anti-dated and antitimed as the fire was from closed range

and the death was accidental caused during scuffle, no explanation was tendered by the prosecution as to seizure of empty 315 bore cartridge, no

independent witness was examined. That Upendra Singh Bhadoriya (PW-1) was a chance witness. In the alternative, it is submitted that as there

was no previous enmity and the altercation took place because of the victim party had given the beating to Kallu and Raju and the incident having

taken place in the heat of passion with no premeditation, and that there was no intention to kill, the appellant is entitled for the benefit of exception

Four of Section 300 IPC.

Learned counsel for the State supports the conviction. It is urged that same is based on cogent material evidence.

Considered the rival submissions.

As per postmortem report Ex-P/10 following injuries were found on the body of the deceased viz:

(i) Lacerated wound - 4 cm x 2 cm: over right big toe dorsell.

Lacerated wound - 2 cm x 1 cm; over right II toe dorsell.

Lacerated wound - 1 cm x 1 cm; over right III toe dorsell.

Simple in nature caused by friction or by some hand and stone object.

(ii) Gun shot wound- Over chest 1 cm lateral to left. Stornal border in the VI IGS, round in shape 3cm dia inverted edges, charring present,

carbon particles present on wound margin and inside the wound.

The report further reveals that five pellets and one cork was recovered from lungs, heart and stomach of the deceased. No exit wound was

found in the body. When questioned as to the distance from which the gun was fired, the doctor (PW-10) in paragraph 14 of the testimony stated

that without referring to Text Book, he cannot say the distance from where the injuries were caused. However, on opinion being sought he opined

that, with the charring, tattooing and carbon particles being present the distance from where the fire was caused could be within three feet. This

fact, as to the distance from which the gun was shot, is also borne out from the testimony of Upendra Singh Bhadoriya (PW-1) who in paragraph

10 of the Court statement states that the Akhilesh fired from the distance of four to five feet (though it is recorded vice versa i.e. tc

VERNACULAR MATTER OMITTED"" however, there being corroborative evidence on record to establish that the deceased was not armed,

the said version is treated as an inadvertent typographical error). Similarly Netrapal Singh (PW-2) in his Court statement in paragraph 16 stated

that the distance between the appellant and Ashwini was four to five feet. In paragraph 18 of the testimony he categorically denies the suggestion

that it was during scuffle that the gun got fired and accidentally had hit the deceased. He further denies of any one from the victim party was

carrying 315 bore gun. Buddh Singh Bhadoriya (PW-3) in paragraph 18 of his deposition denies that the deceased was hit by gun shot

accidentally. Shivnath Singh (PW-5) in paragraphs 7 and 15 gives the distance between the assailant appellant and victim between five to seven

feet and further denies that Nillu alias Ashwini was accidentally hit. Prashant Singh (PW-6) in paragraph 15 has narrated the entire picture and

presence of other persons when the offence was committed. It reveals that neither the Shivnath Singh (PW-5) nor other witnesses are passers by

or chance witnesses as argued on behalf of appellant. The ocular evidence as to the distance from which the gun was fired corroborated with

medical evidence that the deceased was fired from a distance not less than 3 feet rules out the contention on behalf of the appellant that the

deceased got hit because of the scuffle and accidental fire. Scuffle, even if there was, because of the injuries to big toe, was at a different time than

when the deceased was fired at with an intention to kill. The contention that the death of Nillu alias Ashwini was accidental is thus negatived from

the evidence on record.

Besides the ocular and medical evidence to establish that Nillu alias Ashwini succumbed to the gun shot injury caused by the appellant is also

established from the ballistic report, Ex-P/18 wherein the pellets recovered from the body of the deceased were found to have been fired from the

12 bore gun Article A-1 which was seized at the instance of the appellant. And though the Mahesh Singh (PW-11) and Gangaram (PW-12), who

witnessed the seizure did not support the prosecution; however, the evidence of the eye witnesses, the medical evidence and the FSL report since

corroborates in establishing the commission of crime by using the 12 bore gun Article A-1, the prosecution succeeded in establishing the

commission of crime by the appellant beyond reasonable doubt.

It is next contended that the FIR was anti-dated and that there is no explanation for delay. To establish this contention, learned counsel for the

appellant led us through the evidence of Netrapal Singh (PW-2), Buddh Singh Bhadoriya (PW-3), Shivnath Singh (PW-5), Prashant Singh (PW-

6) and Pradhumn (PW-7).

The First Information Report, Ex-P/1 was recorded on 19/09/1998 at 19:10PM as to the incident taking place at 18:30PM. The distance at

which the police station is situated is about 2KM. Upendra Singh (PW-1), the complainant was exhaustively cross examined and was questioned

about his presence at the place of incident. He categorically denied the suggestions of his not present at the scene of crime. He vividly states in

paragraph 7 that from hospital he went to lodge the complaint. This fact stands corroborated from the testimony of Netrapal Singh (PW-2), Buddh

Singh (PW-3) and the Investigating Officer PW-13. Whereas the testimony of Netrapal Singh (PW-2), Buddh Singh (PW-3) in paragraphs 14

and 18 of their statement establishes that Upendra Singh (PW-1) from hospital had gone to lodge report, the Investigating Officer PW-13 in

paragraph 2 gives the detail as to crime report being sent to the Court by intimation to Chief Judicial Magistrate, Bhind vide Javak Kramank

265/98 dated 19/09/1998.

Investigating Officer''s contention in paragraphs 12 and 13 of the cross examination is of no consequence, nor does it lead to establish that the

crime intimation was not sent. Minor discrepancies in presence of direct evidence is of no assistance to the appellant in his contention that the First

Information Report was not promptly lodged.

It is next contended on behalf of the appellant that the prosecution witnesses besides being close relative were tutored and there was no

independent witness. It is urged that one of the witness Upendra Singh (PW-1) who is not close relative was a chance witness. Placing reliance on

the spot map Ex-P/2, it is urged on behalf of the appellant that the scene of the crime shown therein as at spot ''A'', around it are the houses of

K.S. Gupta, Indrapal Singh Kushwaha and one Kushwahaji and is also near to Shastri Nagar ''B'' Block Colony and one narrow road, the

movement of commuters thereover cannot be ruled during the time when the offence is said to have been commissioned, yet the prosecution only

confined to those witnesses who were named by the complainant Upendra Singh (PW-1) and no independent witnesses being examined creates

doubt over the correctness of prosecution story. These contentions when closely examined on the anvil of the evidence of Upendra Singh (PW-1)

as to the reason for being present at the scene along with others to get over the altercation which took place over playing cricket in the ground, and

being corroborated beyond any doubt by other prosecution witnesses, whose presence at the scene of crime being as natural as that of the

appellant, the contention on behalf of the appellant must fail. It rules out the contention that the Upendra Singh (PW-1) is a chance witness.

The question now requires consideration is as to the nature of the offence committed by the appellant. The evidence produced against the

accused establishes that in order to avenge the altercation in the cricket the accused armed with 12 bore gun, and shot at Nillu @ Ashwini. The

evidence on record reveals that it was not at the spur of the moment during heat of exchange that the appellant fired the gun. On the contrary, the

evidence reveals that when the victim party had almost pacified the exchanges and the assailant while moving away from the place, the appellant

turned around and shot the gun at Nillu @ Ashwini from a distance of 3 to 5 feet, rules out the contention that the shot was not fired with an

intention to kill. These contentions when tested on the anvil of the theory propounded and discarded that the death was due to accident which

occurred during scuffle, deserves to be rejected at the outset. Even otherwise the evidence on record amply establishes that the appellant had an

intention to kill therefore he had come armed with loaded 12 bore gun.

In Virsa Singh Vs. State of Punjab [AIR 1958 SC 465], it is held:

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution

has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature.

Section 300, ""thirdly"" was quoted:

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.

It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, ""and

the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause

death in the ordinary course of nature, then the intention is to kill and in that event, the ""thirdly"" would be unnecessary because the act

would fall under the first part of the section, namely-

If the act by which the death is caused is done with the intention of causing death.

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender:

If it is done with the intention of causing bodily injury to any person.

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether

the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are

purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the

question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is

found to be present.

Once that is found, the enquiry shifts to the next clause:-

and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it

that is to say, if the circumstances justify an inference that a man''s intention was only to inflict a blow on the lower part of the leg, or

some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is

shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the

clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then

the earlier part of the clause we are now examining- ""and the bodily injury intended to be inflicted"" is merely descriptive. All it means

is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must

in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the

injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of

inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 ""thirdly"";

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or

unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of

the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This

part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the

offence is murder under S. 300 ""thirdly"". It does not matter that there was no intention to cause death. It does not matter that there

was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any

real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause

death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective

and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to

cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature

and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only

escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

In Gudar Dusadh Vs. State of Bihar [AIR 1972 SC 952], it is held:

The appellant who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of murder and he has been rightly

convicted under section 302 Indian Penal Code. The appellant along with his companions was lying in wait to attack Ramlal and, according to the

evidence on record which has been accepted by the High Court, he gave a blow on the head of Ramlal as a result of which Ramlal fell down and

died instantaneously. It has also been found by the High Court that there was no altercation or exchange of abuses between Ramlal and the

accused party. The circumstances of the case thus show that the assault was premeditated and the blow on the head of Ramlal was not accidental.

The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of

culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force, and resulted in a 3"" long

fracture of the left parietal bone. Ramlal deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As

the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case

against the appellant would fall squarely within the ambit of clause ""3rdly"" of Sec. 300, Indian Penal Code. According to that clause, culpable

homicide is murder 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. Section 300 also provides for some exceptions but we are not concerned with them in this case.

In the present case, both parts of the clause ""3rdly"" have been satisfied. As observed earlier, the injury which was inflicted by the accused on the

head of Ramlal was not accidental. It is not the case of any one that the appellant aimed a blow on some other part of the body and because of

some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant

aimed a blow on the head of Ramlal with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was

found on the head of the deceased. The evidence of Dr. R.S. Singh who performed post-mortem examination shows that the above injury was

sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased. The case of the appellant would thus be

covered by clause ""3rdly"" of section 300 and he would be guilty of the offence of murder.

In Dhupa Chamar and others Vs. State of Bihar [(2002) 6 SCC 506], it is held:

Intention is different from motive. It is the intention with which the act is done that makes difference, in arriving at a conclusion whether the

offence is culpable homicide or murder...

The above circumstance would show that the accused intentionally inflicted the injury and the same would indicate such a state of mind of the

appellant Dhupa Chamar that he aimed and inflicted the injury with a deadly weapon. In the absence of evidence or reasonable explanation to

show that this appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessels

and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the

ingredient ""intention"" is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause

death. Therefore, inevitable conclusion would be that Appellant 1 Dhupa Chamar has committed the offence of murder and not culpable homicide

not amounting to murder. This being the position, we do not find that the High Court has committed any error in upholding conviction of Appellant

1 Dhupa Chamar under Section 302 of the Penal Code.

In view of above analysis we do not find any discrepancy in the prosecution establishing the guilty of the appellant and the findings arrived at by

the trial Court on the basis of evidence, of holding the appellant guilty of offence under Section 302 IPC and Section 25 of the Arms Act.

Consequently, appeal fails and is dismissed. The appellant is on bail. His bail bonds are cancelled. The appellant - Akhilesh Singh is directed to

surrender immediately before the trial Court, so that he be sent to the jail for execution of the remaining jail sentence.

A copy of judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of appellant -

Akhilesh Singh and to get sentence executed by him.