MADHVI SHAKYA vs STATE OF MADHYA PRADESH THR

Appellant has filed this appeal against the judgment dated 12 t h May, 1995 passed in Sessions Trial No.139/93. The trial Court held the appellant guilty for commission offence punishable under Section 302 of IPC and awarded sentence for life imprisonment alongwith fine amount Rs.500/-.

Prosecution case in brief is that on 06.06.1993, at around 10:30 in the morning, deceased-Munnalal had been going to a river. When he reached in front of the house of the appellant-Pappoo, the appellant, who was standing beside his house, had an air gun with him. He told the deceased that he would not go to the river and, thereafter, he fired a shot from the air gun and one pallet hit at the neck of the deceased. He fell down.

Thereafter, his family members reached on the

spot. They had taken the deceased to police station, where deceased himself lodged a report.

Thereafter, he was sent to the hospital and after a period of 13 days, he died. Police conducted investigation and filed the charge-sheet. During trial, the appellant abjured his guilt and pleaded innocent. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of IPC and awarded sentence as mentioned above in the judgment.

Learned counsel for the appellant has submitted that there is no sufficient evidence to prove the guilt of the appellant beyond reasonable doubt.

In alternate, he has submitted that the offence committed by the appellant could be under Section 304 Part II of IPC and sentence of the appellant may be reduced to already undergone.

Contrary to this, learned Government Advocate has submitted that the prosecution has established the guilt of the appellant beyond reasonable doubt. The trial Court has rightly convicted the appellant and awarded a proper sentence.

Prosecution examined total 16 witnesses to prove the guilt of the appellant. D0efence has not examined any witness.

PW-1 Jhiriya Bai is the mother of the deceased.

She deposed that her son was going to nullah to wash clothes. He was in the job of washing cloths. Sundar and Rajendra came to her and told her that Pappoo had inflicted injury by air gun to the deceased. Thereafter, she rushed to the place of incident and asked the deceased that what had happened. Then he told her that Pappoo had inflicted gun shot injury at his neck. Thereafter, she alongwith other family members had taken the deceased to Lakhnadaun Police Station, where deceased himself lodged the report and signed the report. From the police station, the deceased was sent to Seoni Hospital. Thereafter, he was referred to Jabalpur Hospital. After 13 days, he was died. Same facts have been deposed by PW-2 Bhoori Bai, who is the sister of the deceased. PW-3 Jugru is the brother of the deceased. He also deposed the same facts.

PW-9 Sundar is the eye witness. He deposed that at around 10:30 in the morning, he alonwith Rajesh and the deceased, who was his uncle (mama), were going to nullah to wash the cloths.

When he alongwith deceased and Rajesh were passing in front of the house of the appellant, he stopped the deceased and asked him where he was going and then the appellant told the deceased not to go to nullah and fired a shot from his air gun, which had hit on the neck of the deceased. Blood was coming from the neck of the deceased. Thereafter, he told the fact to his mausi, nani and mami. They came at the spot.

They had taken the deceased to police station, where he lodged the report. Thereafter, he was admitted in the hospital.

PW-10 Jagdish deposed that the brother of the accused-appellant had taken his air gun and there were two pallets alongwith the air gun.

After 4-6 days of giving the air gun, he came to know that air gun was seized.

PW-5 Guddu Kumar Rajak deposed that before him accused appellant had given a memorandum, which is Ex.P1 and he signed the same and at the instance of the appellant, from a nullah, the air gun was seized vide seizure memo Ex.P2 and he signed the same. PW-4 Mahesh Kumar Rajak also proved the fact of memorandum and seizure

memo. He also admitted that he had signed the memorandum and the seizure memo.

P W - 1 2 Dr .A.K. Jainde posed that on 06.06.1993, he was posted at Community Health Center, Lakhnadaun and he had examined the deceased and noticed one punctured wound at the neck near thyroid cartilage. He advised X-

Ray. The injury was caused by the pallet.

PW-15 Dr. D.K. Sakalya deposed that he was posted Lecturer on 17.06.1993 at Medical College, Jabalpur. On the aforesaid date, he performed postmortem of the deceased and noticed following injury.

"VERNACULAR MATTER OMITTED"

He also noticed one pallet in the injury and the pallet was seized and sealed. In his cross-examination, he deposed that normally due to pallet injury caused by an air gun death cannot

occur. However, it is a rare case. Death had taken place because of complications.

PW-13 L.N. Bhadoriya is the Investigating Officer. He deposed that on 06.06.1993, he was posted as Sub Inspector at Lakhnadaun Police Station. Deceased Munnalal lodged the report Ex.P13. Thereafter, he conducted investigation and prepared spot map, which is Ex.P14 and signed the same. Same was signed by the witnesses also. On 06.06.1993, he recorded statements of the witnesses namely Munnalal, Sundarlal, and Rajendra. On 19.06.1993, he recorded statements of other witnesses namely Jhiriya Bai, Mahawati, Jugru, Para Bai, Jagdish Prasad, Rajesh and Bhuri Bai. Accused-appellant was arrested on 06.06.1993. His memorandum is Ex.P1 and he signed the same. On the basis of his memorandum, an air gun was seized vide seizure memo Ex.P2 and he as well as other witnesses signed the same.

From the evidence of eye witness PW-9, this fact has been proved that the appellant caused an injury at the neck of the deceased by air gun. The deceased himself lodged the report at the police station immediately after happening of incident, which is Ex.P13. This fact has been mentioned in the FIR that the present appellant had caused the injury by the air gun. PW-1 Jhiriya Bai, PW-2 Bhuri Bai and PW-3 Jugru also deposed that PW-9 Sundar told them immediately after the incident that the appellant had caused gun shot injury to the deceased. Thereafter, they reached on the spot and they had taken the deceased to the police station. Thereafter, the deceased was admitted in the hospital. On the memorandum of the appellant, a gun was seized. Witnesses of seizure memo have verified the fact of seizure of

gun. Hence, this fact is very well established that the appellant had caused injury at the neck of the deceased by the air gun.

Now the question is "what offence could be made out against the appellant?"

There is no evidence that the appellant had intention to kill the deceased. As per the evidence of PW-9 Sundar, when the deceased alongwith two persons reached near the house of the appellant, the appellant told the deceased not to go to nullah and thereafter, he fired a shot by the air gun. The doctor PW-15, who conducted postmortem of the deceased, deposed that normally death will not occur from the injury caused by the air gun. A pallet was found in the

wound. The deceased died after 13 days from the date of incident.

The Hon'ble Apex Court further in the case of Nankaunoo vs State of Uttar Pradesh, (2016)

3 SCC 317 has held as under in regard to difference between intention and motive:

"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 the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh's case, in Jai Prakash v. State (Delhi Administration ) (1991) 2 SCC 32, para (12), this Court held as under:-

"12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 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, AIR 1958 SC 465 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 AIR 1958 SC 465 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 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 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."

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."

The Hon'ble Apex Court in the aforesaid judgment has quoted a judgment passed in the case of Virsa Singh vs State of Punjab, AIR 1958 SC 465, in which the Apex Court has held that the prosecution has to prove the case, that the body injury is present, that the injury is sufficient in the ordinary course of nature to cause death, that the accused intended to inflict that particular injury that is to say it was accidental or unintentional. In the present case, prosecution has failed to prove the fact that the injury is sufficient in the ordinary course of nature to cause death. Contrary to this, the doctor, who performed postmortem of the deceased, deposed that due to pallet injury normally death may not occur and it was a rare case. The deceased died due to complications. There was no intention of the appellant to kill the deceased. It was an accidental

case. Deceased died after 13 days of the incident.

The Apex Court in the case of Sivakumar vs State By Inspector of Police, (2006) 1 SCC 714 has held that where the injury is caused by an air gun, the offence committed by the accused would be under Section 304 part II of IPC .

The Hon'ble Apex Court in the case of Willie

(William) Slaney vs State of M.P ., AIR 1956 SC 116 has held as under in regard to the fact that whether the offence would fall under Section 304 Part II of IPC or 302 of IPC :

"Where the accused causing the death of another had no intention to kill, then the offence would be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death.

****

There was a heated exchange of words. The accused slapped the deceased on the cheek. The accused lifted his fist. The accused snatched a hockey stick from his younger brother and gave one blow on his head with a hockey stick with the result that his skull was fractured. The deceased died in the hospital then days later. In the opinion of the doctor the injury was likely to cause death.

Held (i) that on the facts and circumstances of the case the offence fell under Section 304 Part II and not under Section 302 . Admittedly there was no premeditation and there was a sudden fight. The nature of the injury was such that the accused could not be attributed with the special knowledge required by Section 300, nor was the injury sufficient in the ordinary course of nature to cause death."

On the basis of principle of law laid down by the Hon'ble Apex Court and the evidence on record as discussed above, in our opinion, the appellant is guilty for commission of offence punishable under Section 304 Part II of IPC. The appellant has suffered actual jail sentence for more than four

years. Hence, appellant could be awarded a sentence of already undergone for commission of offence punishable under Section 304 part II of IPC .

Consequently, the appeal filed by the appellant is partly allowed. His conviction for commission of offence punishable under Section 302 of IPC and the sentence awarded by the trial Court is hereby set

aside. The appellant is convicted for commission of offence punishable under Section 304 part II of IPC .

His sentence is modified as already undergone. The appellant is on bail. His bail bonds are discharged.