Marbin George vs State of M.P.

This criminal appeal under Section 374 (2) of the Cr.P.C . filed on behalf of the appellant/accused Pooranlal is directed against the judgment dated 17.8.2005 passed by the Court of Sessions Judge, District Balghat in Sessions Trial

No. 28/2005, whereby the accused/appellant Pooranlal was convicted of the offence punishable under Section 302 of the I.P.C. for having committed murder of deceased Saligram and was sentenced to imprisonment for life and to pay a fine in the sum of Rs.1000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of 6 months.

The prosecution case before the trial Court may be summarized as hereunder: Accused Pooranlal had inimical relations with deceased Saligram on account of partition of agricultural land. At about 4:00 p.m. on 30.10.2004, deceased Saligram was sitting on the embankment of his field grazing his cattle. At that time, accused Pooranlal arrived on the spot armed with an axe. He assaulted the deceased with the axe on the neck. As a result, deceased Saligram died on the spot. At that time, witnesses Samal Singh (PW-3), his wife Kaushalya and Shobhelal (PW-2) were present in the adjacent fields.

They witnessed the incident. Samal Singh asked the accused as to why he had killed deceased Saligram; however, accused Pooranlal ran away. Thereafter, Samal Singh returned to the village and informed the villagers including Saligram's son-in-law Mohan Lal, who lodged the FIR (Ex.P-2) at about 8:00 p.m. the same evening in Police Station Malajkhand, District Balaghat. During the investigation, accused was arrested and the axe allegedly used in commission of the offence was seized from his possession on the basis of the disclosure statement (Ex.P-10) made by him under Section 27 of the Evidence Act. In serological examination conducted in Forensic Science Laboratory, Sagar, human blood was found on the axe and the clothes seized from the possession of accused Pooranlal.

The trial Court framed a charge under Section 302 of the I.P.C. against the accused Pooranlal. However, he abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., he stated that eye witnesses Samal Singh @ Guhdad, Shobhelal and Budh Singh are companions and on account of previous enmity, they have conspired and ganged up against him and falsely implicated him in the case.

After the trial, the trial Court held that prosecution has succeeded in proving beyond reasonable doubt that deceased Saligram had died a homicidal death on account of an incised wounds sustained by him in the neck and cause of his death was shock due to hemorrhage caused by cutting of vital vessels of neck. It was further held that aforesaid fatal wound in the neck of the deceased was inflicted by the accused Pooranal with intent to cause death of the deceased.

Consequently, accused Pooranlal was convicted and sentenced as herein above stated:

The conviction of the accused Pooranlal has been challenged before this Court by learned counsel for the appellant mainly on the ground that even if it is assumed for the sake of argument that appellant Pooranlal had assaulted deceased Saligram, resulting in his death, it may be noted that he is said to have inflicted a solitary blow. Unfortunately, that blow landed on the neck of the deceased resulting in his

death. In these circumstances, it cannot be said that the appellant had intention of causing death of the deceased or had intention of causing such bodily injury as was sufficient in ordinary course of nature to cause death. Therefore, inviting attention to numerous judicial precedents, it has been contended that the act of the appellant, at worst, would fall within the ambit of Section 304 (Part-II) of the I.P.C.

On perusal of the record and due consideration of rival contentions, we are of the view that this criminal appeal against conviction must fail for the reasons hereinafter stated:

It may be noted that the prosecution case is based mainly upon eye witnesses accounts of Shobhelal (PW-2) and Samal Singh (PW-3). First informant Mohan Lal (PW-1) is son-in-law of deceased Saligram. He had lodged first information report (Ex. P-1) about 4 hours after the incident, after having been informed about the same by Samal Singh (PW-3). Shobhelal (PW-2) has stated that appellant Pooranlal and deceased Saligram were cousins. Mohan Lal (PW-1) has provided motive for the crime. He has stated that there was a dispute between Pooranlal and Saligram with regard to agricultural land. They were not on talking terms. Appellant Pooranlal used to warn deceased Saligram that water from Saligram's field must not enter the field of Pooranlal. 8. The

gist of testimony of eye witnesses Shobhelal (PW-2) and Samal Singh (PW-3) is that at about 4:30-5:00 p.m. on 29.10.2004 they were in their respective fields. Shobhe Lal (PW-2) has stated that his wife Paran Bai, daughter Leela Bai and granddaughter were also present along with him. They witnessed the incident from a distance of about 35 feet. As per Samal Singh (PW-3) his wife Kaushalya was also present with him. Aforesaid two witnesses have also stated that Saligram was sitting in his field and grazing his cattle. At that time, appellant Pooranlal came from behind carrying an axe and first he assaulted the deceased twice or thrice with blunt side of the axe on the back. As a result, the deceased fell

down. Thereafter, he struck a blow upon the neck of the deceased, cutting the same. Consequently, the deceased died on the spot. When Samal Singh asked the appellant as to why he had killed Saligram, the appellant replied that he would also kill Samal Singh. Appellant Pooranlal escaped from the

spot. Thereafter, Samal Singh returned to the village and informed villagers including Mohan Lal, about the incident.

Dr. Anil Shukla (PW-6) who had conducted post-

mortem examination upon the dead body of the deceased Saligram has stated that he had found only one wound on the

body. It was a chopped wound admeasuring 2"x1"x2" upon the left side of neck, 1.5" below the chin and 2" above the collarbone. The muscles of the neck were visible and thyroid cartilage was broken. The blood vessels were cut. Aforesaid injury were caused by a hard and sharp object. The deceased had died as a result of hemorrhage due to cutting of main blood vessels. The hemorrhage had resulted in shock and death of the deceased. Aforesaid injury was sufficient in the ordinary course of nature to cause death. The witness has further stated that aforesaid wounds could have been caused by the axe seized pursuant to the disclosure statement made by the appellant. However, during his cross-examination Dr. Anil Shukla (PW-6) has categorically stated that he did not find any contusion or swelling in the back of the deceased. He has further stated that if a blow is delivered the blunt side of an axe to the back of a person, it would result in contusion.

It is true that both eye witnesses namely Shobhelal

(PW-2) and Samal Singh (PW-3) have clearly stated that before delivering the fatal blow upon the neck of the deceased, the appellant had struck two or three blows to the back of the deceased by blunt side of the axe. However, in the post-mortem examination Dr. Anil Shukla (PW-6) had found no injury upon the back of the deceased. On the basis of aforesaid discrepancy, it was contended before the trial Court that medical evidence does not corroborate the eye witness account. In these circumstances the testimony of eye witnesses was unreliable; therefore, the appellant deserves the benefit of doubt.

We may note in this regard that the fact that the

appellant had struck 2-3 blows from the blunt side of the axe upon the back of the deceased may not have been corroborated by the medical evidence; however, there is no discrepancy between the statement of eye witnesses and the medical evidence with regard to the fatal injury caused by the appellant upon the neck of the deceased with sharp side of the

axe. Thus, learned trial Court had rightly ignored aforesaid discrepancy. Apart from aforesaid discrepancy, there are no material contradictions and omissions between the statements of the eye witnesses inter se or between their Court statements and police statements. There is nothing on record to suggest that Shobhe Lal (PW-2) and Samal Singh (PW-3) were partisan witnesses, interested witnesses or even related witnesses. Thus, there is no reason to discard their testimony in respect of the fatal blow delivered by the appellant. Thus, the trial Court committed no error in placing reliance upon the testimony of the eye witnesses. We may also take note of the fact that this part of the judgment has not been seriously challenged on behalf of the appellant during the course of arguments.

Learned counsel for the appellant have mainly laid emphasis upon the fact that this is the case of a solitary blow; therefore, inviting attention to various authorities it has been contended that the intention to cause death of the deceased is not discernible in the facts and circumstances of the case.

Therefore, the act of the appellant would come under the purview of Section 304 (Part-II) of the I.P.C. Since the appellant has already undergone 13 years of rigorous imprisonment, the conviction should be converted into one under Section 304(Part-II) and the sentence should be reduced to the period already undergone. In support of aforesaid contention, learned counsel for the appellant has placed reliance upon the judgments rendered by the Supreme Court in the case of Abdul Mazid Vs. State of Assam, AIR

1994 S.C. 1487, Maharaja Vs. State of Tamil Nadu, 2009 CRI.L.J. 315, Ranjit Singh Chandrasingh Atodaria Vs.

State of Gujarat, AIR 1994 SC 1060 and Surinder Kumar

Vs. Union Territory, Chandigarh, AIR 1989 SC 1094.

However, in the case of Thangaiya Vs. State of Tamil Nadu, 2005 SCC (Cri) 1284 it has been held that there is no fixed rule that whenever a single blow is inflicted, Section 302 of the I.P.C. would not be attracted. Referring to the leading case of Virsa Singh Vs. State of Punjab, AIR

1958 SC 465, the Supreme Court held that even if intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (C) appended to Section 300 clearly brings out this point. In para 22 of the judgment,

Supreme Court further observes that:

It cannot be said as a rule of universal application that whenever one blow is given, Section 302 of the I.P.C. is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered.

On the same point the principles laid down by the Supreme

Court in the cases of Pappu Vs State of M.P., (2006) 7 SCC 391 and Dhupa Chamar v. State of Bihar, AIR 2002 SUPREME COURT 2834 may also be profitably referred to.

When we examine the facts of the present case in the backdrop of aforesaid legal position, we may note that in the instant case, there was previous enmity between the appellant and the deceased. At the time of the incident, the deceased was sitting quietly on the embankment of his field, grazing his cattle. The appellant suddenly arrived armed with an axe.

He inflicted a solitary chopped wound upon the neck of the deceased breaking thyroid cartilage and cutting muscles and main blood vessels. As a result, the deceased died instantaneously. There was no exchange of words before the assault between the appellant on one hand and the deceased on the other. There was no provocation, much less grave and sudden provocation, offered on the spot by the deceased.

There was no quarrel or fight. The appellant came determined to kill the deceased and without uttering a word, struck a blow with a dangerous weapon like axe, from the sharp side upon a vital part of the body like neck. The blow was delivered with sufficient force so as to cut the main blood vessels of the neck. Thus, the offence was not committed following a sudden fight or quarrel and in the heat of passion.

In these circumstances the appellant cannot be attributed merely with the knowledge that his act may cause death. The circumstances in which the blow was delivered clearly betrayed the intention to cause death on the part of the appellant. It was a cold blooded, premeditated murder. As such, the act of the appellant would not fall under the ambit of Section 304 (Part-II) simply because a solitary blow was delivered.

It may be noted here that all of aforesaid authorities cited on behalf of the appellant are distinguishable on facts.

In the case of Surinder Kumar (supra), Maharaja (supra) and Ranjit Singh (supra) there was a sudden quarrel. In the case of Abdul Majit (supra) the murder was not premeditated and the appellant was given dagger by co-accused during quarrel.

The injury was also not sufficient in ordinary course of death; whereas, in the case at hand, there is no evidence of any quarrel or fight much less sudden quarrel or fight between the appellant on one hand and the deceased on the other. As such, the appellant derives no benefit from aforesaid authorities.

Learned counsel for the appellant has also placed reliance upon the two authorities of our own High Court. The first one is Siya Ram Vs. State of M.P. (Judgment dated

18.7.2003) passed in Criminal Appeal No. 55/1994 and second one is Kadhori and another Vs. State of M.P.

(judgment dated 6.12.2005) passed in Criminal Appeal No.929/1995. The facts and circumstances of the aforesaid two cases are also different from the present one. In the case of Siya Ram (supra) the conviction was altered from one Section 302 of the I.P.C. to Section 304 (Part-II) because there was a quarrel on account of use of ox by appellant which belonged to the deceased. The intention to cause death was also not discernible. In the case of Kadhori (supra) there was a sudden quarrel and there was no intention to cause a particular injury which could be sufficient in ordinary course of nature to cause death. As such, these authorities also do not come to the aid of the appellant either.

In these circumstances, it is absolutely clear that the appellant could not be attributed merely with the knowledge that his act was likely to cause death but it is obvious that he had intention of causing death of the deceased. In these circumstances, the trial Court has rightly held that the offence would be punishable under Section 302 of the I.P.C. and not under Section 304 (Part-I or Part-II) thereof, notwithstanding the fact that a solitary blow was delivered.

In aforesaid circumstances, the Court is of the view that no interference is warranted in the impugned judgment.

This appeal has no substance and deserves to be dismissed.

Consequently, this criminal appeal is dismissed. The conviction of the appellant Pooranlal under Section 302 of the I.P.C. and sentence of life imprisonment and fine in the sum of Rs.1000/- imposed upon the him by the trial Court is affirmed.