Gappu @ Jagdish And Others vs State Of Madhya Pradesh

S.K. Gangele, J.

Criminal Appeal No. 2437/2007 has been filed by appellant Gappu @ Jagdish and Criminal Appeal No. 217/2009 has been filed by appellant Motu @

Ashok. Both the appeals are against the common judgment dated 18th October, 2007 passed in Sessions Trial No. 271/2005 by Special Judge, S.C. &

S.T. (Prevention of Atrocities Act), Hoshangabad (M.P.), hence they have tagged together, heard together and decided by this common judgment.

Prosecution story, in brief, is that brother of the complainant Guddu was arrested by the Railway Police in some offence 3-4 days before the

incident. He was sent to jail. His wife Kanti was alone in the house 2 -3 persons had gone to her house in the night when deceased came to know

about the said fact he objected about the aforesaid act to Gappu Dhobi, Motu Gond and Guddu Chamar. There was some altercation took place

between them at about 7: 30 in the morning. Thereafter Guddu Chamar and Gappu Dhobi caught hold of deceased Sanjay and said that who are you

to prevent us from going into the house of Kantibai. They abused him and thereafter appellant- Motu Gond had taken out a Gupti from his vest and

inflicted a blow on the stomach of the deceased. Deceased fell down on the ground. The deceased was taken to J.S.R. Hospital, Itarsi where he was

declared dead. A report was lodged at the police station. Police conducted investigation and filed charge-sheet. Appellants abjured their guilt during

trial and pleaded innocence. Appellant Guddu @ Omprakash was tried by Juvenile Court. Trial court held the appellant Motu @ Ashok guilty for

commission of offence punishable under Section 302 IPC and appellant Gappu @ Jagdish under Section 302 /34 IPC and awarded sentence of life

and fine of Rs. 5,000/- each in default another six months imprisonment.

Learned counsel appearing on behalf of the appellant Motu @ Ashok has submitted that alleged eyewitnesses are related witnesses. There are

major contradictions and omissions in their deposition. Hence the evidence of aforesaid witnesses is not reliable. In alternate, learned counsel has

also submitted that the offence committed by appellant Motu @ Ashok would fall under Section 304 Part-I of IPC. Â

Learned amicus curiae appearing on behalf of appellant Gappu @ Jagdish has submitted that as per evidence of three eyewitnesses, two persons

namely Gappu and Guddu were armed with knife. No witness has deposed that appellant Gappu had inflicted injury by knife. Dr. who performedÂ

postmortem of the deceased deposed that all the three injuries were caused by Gupti. Apart from this, in the FIR which was lodged promptly within 5

hours of the incident, it is mentioned that present appellant and another co-acused Guddu @ Omprakash had beaten the deceased by feet. The trial

court has committed an error in holding the appellant Gappu guilty for commission of offence with the aid of Section 34 of the IPC.

There are three eye witnesses in the case. PW-1/ Totaram is the brother of the deceased. He deposed that at around 7-8 in the evening there was

a quarrel I have heard the sound and I noticed that Gappu, Motu @ Guddu had been beating my brother Sanjay. I tried to save him at that time, Sanjay

was lying there. The accused persons ran away from the place. PW-1 had taken the deceased to the hospital where he was declared dead.

Thereafter I went to the police station to lodge the report Ex.P-1. In his cross-examination, he admitted that it has not been mentioned in the FIR that

Gappu was armed with knife.Â

PW-3/ Rajesh is another witness. He deposed that my wife Reena was cooking food and I had heard the sound of quarrel and subsequently I

came to know that deceased has died. He had taken the deceased to the Hospital.

PW-4/Sangeeta Bai, is wife of PW-1/ Totaram. She deposed that I heard the sound of quarrel thereafter my husband Guddu and Devrani Neeta

came out from the house The appellants had been beating the deceased Sanjay. Gappu had knife and Motu Gond had Gupti. There was injury of Gupti

on the stomach of deceased and injury of knife on the thigh of deceased. Appellants ran away from the spot. Deceased died in the hospital.

PW/5 Neeta Bai is the wife of deceased. She deposed that I heard the sound save me, save me when I was cooking food in the house thereafter

I came out from my house along with Guddu and Sangeeta. She deposed that appellants had been beating the deceased. Motu had Gupti whereas rest

of two persons had knife. There were two injuries of Gupti on the stomach of my husband and one injury of knife. When she reached the hospital she

came to know that deceased has died.

PW-15/ R.S.S. Rathore, D.S.P deposed that I prepared spot map Ex.P-5 and seized the blood stained earth and plain earth from the spot and

prepared seizure memo Ex.P4. He recorded the statement of witnesses. This witness has seized the Gupti and prepared seizure memo Ex.P-16

whereafter, it was sent to forensic examination. Articles were sent for forensic lab 10. PW/17 Sunil Kumar Jain, deposed that he inquired from Motu

@ Ashok in which he informed about the weapon Gupti. He prepared the memo of Motu vide Ex.P-15 and signed the same.

PW-14/ Dr. Arun Kumar Shivani, performed the postmortem of the deceased. He deposed that he noticed following injuries on the person of the

deceased:-

(1.) Penetrating wound on the lower side of stomach measuring 2 x 1 x 10 cm.

(2.) one incised wound on right thigh measuring 1 x 3 x (3.) another incized wound on right thigh measuring 3 x 2 x 2.

In para 4 of his examination, he further deposed that after examining the Gupti, I noticed that injuries No.1 to 3 sustained by the deceased could be

caused by aforesaid Gupti.

Three witnesses deposed that appellant Motu @ Ashok was armed with Gupti and he had caused injury on the person of the deceased. The

report was lodged by PW-1 vide Ex.P-1. PW-1 admitted in his cross-examination that he lodged the report. In the aforesaid report, it is mentioned that

the appellant Motu inflicted a Gupti blow. It is further mentioned that other accused persons Guddu and Gappu had beaten the deceased from legs.

There is no mention that these persons were armed with knife and they had inflicted injuries on the person of deceased with knife. Aforesaid report

was lodged on 11 pm in the night i.e. after 4 ½ hours of the incident.

Hon'ble Apex Court in the case of Jodan Vs. State of M.P., (2015) 11 SCC 52 has observed that evidence of interested witness has to be

examined carefully.

PW-1/ Totaram did not depose specifically that the present appellant had caused injury to the deceased by knife. PW-4 / Sangeeta Bai deposed

that Appellant Gappu was armed with knife and all the accused persons had beaten the deceased. PW-5 / Neeta Bai deposed that Motu had Gupti

and other two persons had knife. It is also the fact that knife has not been seized from the appellant Gappu. No explanation has been putforth by the

prosecution that why knife was not seized from the appellant Gappu. Doctor, who performed the postmortem, deposed that all the three injuries could

be caused by Gupti. In the FIR lodged by PW-1 it has not been mentioned that appellant â€" Gappu was armed with knife and he had inflicted blow of

knife.

In view of the aforesaid evidence on record, in our opinion, the evidence of related eyewitnesses is not sufficient to hold the appellant Gappu @

Jagdish guilty for commission of offence under Section 302 IPC with the aid of Sec. 34 of the IPC.

In regard to appellant Motu @ Ashok there is a specific evidence that he was armed with Gupti and he had inflicted blow by Gupti. The Doctor

has also deposed that injuries could be caused by Gupti which was seized from the possession of appellant Motu @ Ashok. Hence, in our opinion, the

trial court has rightly held that appellant Motu @ Ashok is guilty and killed the deceased.

Now the question arises whether the offence committed by appellant Motu @ Ashok would fall under Section 304 Part- I IPC or not.

The appellant had inflicted a major blow on the stomach of the deceased due to which urinary bladder was cut and there were two other injuries

also. The deceased was died on the spot. The Hon'ble Apex court in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 has held as

under in regard to intention and motive of accused :-

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.

(10) 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 ail

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.

(11) In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly proceeds on broad lines as, for

example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to

have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels

fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be

convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not

the kind of enquiry. It is broadbased and simple and based on common sense: the kind of enquiry that "" twelve good men and true could readily

appreciate and understand.

On the basis of principle law down by the Hon'ble Apex Court and evidence on record, in our opinion, the trial court has rightly convicted the

appellant Motu @ Ashok for commission of offence of murder and awarded appropriate sentence.

On the basis of aforesaid discussion, Criminal Appeal No. 2437/2007 filed by appellant Gappu @ Jagdish is hereby allowed and his conviction and

sentence awarded by the trial court is hereby set aside. He is on bail. His bail bonds are discharged.

Criminal Appeal No. 217/2009 filed by appellant Motu @Ashok Singh is hereby dismissed. He is in jail. He shall undergo the remaining part of jail

sentence.

We appreciate the assistance provided by learned amicus curiae.