Sharad vs State of M.P.

P.K. Jaiswal, J.—The perennial question whether the appellant-Sharad Yadav deserves to be convicted u/s 302 of IPC, as held by the trial Court or whether the conviction should be converted to that u/s 304 of IPC, has cropped up for consideration before us, in this appeal. In the instant case, four accused persons were charged and prosecuted for commission of the offence u/s 302 and 324 and in alternative 324/ 34 and 302/ 34 and 324 in alternative 324/ 34 of IPC.

After the trial giving the benefit of doubt, Sonu, Shakti and Suraj, accused No 1, 3 and 4 respectively, were acquitted by the XIIth Additional Sessions Judge, Indore, in Sessions Case No. 190 of 2003, vide its judgment and order dated 11.01.2005. The accused No. 2-Sharad Yadav, has preferred this criminal appeal. He has been convicted u/s 302 of IPC by the XIIth Additional Sessions Judge, Indore, in Sessions Trial No. 190 of 2003, whereby the learned trial Court awarded life imprisonment with fine of Rs. 5000/-, in default of payment of fine one year additional rigorous imprisonment and one year rigorous imprisonment u/s 304 of IPC respectively for commission of the aforesaid offence.

Now, in this appeal, it is prayed before us to consider, in the peculiar facts and circumstances of this case, whether, the surviving convicted appellant, Sharad Yadav deserve to be convicted for commission of the aforesaid offence or it deserves to be converted u/s 304 of IPC.

The prosecution story in a nutshell is as under: it is said, PW6, Amul Yadav, cousin brother of the deceased Atul Yadav (son of his mausi/maternal aunty) was involved in the criminal case along with appellant-Sharad Yadav and one more accused person. They appointed one Mr. Deepak Sharma, Advocate as their counsel. They decided that they will equally divide the fees of the Advocate. Amul Yadav, failed to pay the fees of his share and, therefore, a dispute arose between him and appellant Sharad Yadav. On account of this, Amul Yadav (PW6) and appellant were on inimical terms. On 20.3.2003 at about 11-12.00 PM, Balvinder Singh (PW1) and Atul Yadav, were going on their motorcycle to the house of their common friend. Balwinder (PW1) was riding the motorcycle. When they were passing from Prajapati Nagar in front of the house of the accused appellant Sharad Yadav, they saw that all the four accused persons were standing outside their house. At the instance of accused Sharad Yadav, he stopped his motorcycle and no sooner Atul Yadav, came down from the motorcycle, accused Sharad Yadav, started abusing him. Atul, asked him to stop abusing and stated that if he is having any dispute with his cousin brother, Amul Yadav (PW6), he should solve his dispute with him. On this, all four accused persons came out with their knife and on seeing this PW1 Balvinder Singh, stated that they will kill him. When PW1 tried to pacify them, the accused Sharad, who was standing behind the Atul Yadav, inflicted knife injury on his stomach due to which he fell down. When Balvinder (PW1) tried to save his life, he sustained abrasion on right hand thumb and index finger. At the time of occurrence, Karan (PW8), Ravi (PW7) and others were present and they witnessed the incident. When Atul Yadav fell down, the accused persons ran away from the place of occurrence. Balvinder Singh (PW1) with the help of Ravi (PW7) and Karan (PW8) took the injured Atul to Arihant hospital, but before any medical treatment could be provided to him, he was declared "brought dead" (Exhibit D/4) by the doctors attended to him. Intimation of death of deceased Atul Yadav, was given by the Arihant hospital to Chandan Nagar Police Station, Indore. FIR Exhibit P/1, was lodged by Balvinder (PW1) on 20.3.2003 at Chandan Nagar Police Station naming all the four accused in the same and giving details of the injuries caused to the deceased.

After completion of investigation, the accused were prosecuted for commission of the aforesaid offence by the trial Court. As mentioned herein before, accused Sonu Yadav, Shakti Singh and Suraj Singh were acquitted, whereas accused Sharad Yadav was found guilty of commission of offence u/s 302 and 324 of IPC.

We have heard the arguments of Shri R.N. Gupta, learned counsel for the appellant and Shri Deepak Rawal, learned Public Prosecutor for respondent-State and perused the record.

At the outset, learned counsel for the appellant contended that looking to the nature of injury sustained by the deceased, the Court below committed grave error in finding the appellant guilty u/s 302 and 324 of IPC. It was further submitted that appellant the so-called main accused has already undergone a sentence of more than 9 years and 8 months. It has also been submitted that the incident had occurred on the spur of moment and there was neither common object nor common intention in the mind of the accused to commit the murder of deceased Atul Yadav. According to him, thus, the offence deserves to be converted u/s 304 IPC, more so when he has already undergone more than 9 years and 8 months in jail.

On the other hand, learned Public Prosecutor appearing for respondent-State vehemently opposed and contended that looking to the nature of the injury inflicted on vital part of the body of the deceased with deadly weapon, no scope of doubt remains that accused appellant killed the deceased. In any event, the accused was aware of the fact that the nature of injury caused by him would be sufficient in the ordinary course of nature to cause death. It was, therefore, contended that no case for showing any leniency was made out and the finding recorded by the trial Court need not to be disturbed. Consequently, this appeal deserves to be dismissed.

The postmortem report (Exhibit P/17) shows that deceased Atul, had sustained one injury on his stomach. As per this report, the deceased has died of shock and hemorrhage due to stab injury to vital blood vessel. The single injury was sufficient to cause death. This postmortem report has been duly proved by autopsy surgeon Dr. Ravindra (PW11). As per postmortem report Exhibit P/17, deceased Atul, received the following injuries:

A stab wound present obli. 3 x 15 cm x deep going on It. Side lumber region abdomen lat. above illiac crest, piercing deep 11.3 cm into large blood vessel aorta, clot and red ecchymosiss all over present, edges well defined, everted.

Now the question that arises for the consideration in this appeal is whether in the facts and circumstances of the case, conviction of appellant u/s 302 can still be uphold or it deserves to be converted u/s 304 of IPC.

The evidence of injured witness Balwinder Singh (PW1) and two eye witnesses Ravi (PW7) and Karan (PW8) were consistent that appellant Sharad Yadav, had hit the deceased with knife and the blow inflicted has proved to be fatal.

Balvider Singh (PW1) in para 11 of his statement has deposed that Amul Yadav (PW6), cousin brother of the deceased was also accused along with the appellant Sharad Yadav in some criminal case. There arose a dispute between them in respect of sharing of legal expenses of the counsel. He has further deposed in para 30 that present appellant Sharad Yadav, is his friend and hence on 20 March, 2003, he was going along with the deceased, he stopped his motorcycle in front of the house of the Sharad Yadav. All the four accused persons were standing in front of their house. Appellant-Sharad Yadav, on seeing Atul, started abusing and when Atul, asked him to stop abusing him and further contended that if he has some dispute with his brother Amul Yadav (PW6), he should sought out his dispute with him. On this, appellant who was armed with knife has caused fatal injury on the stomach of the deceased due to which he fell down and was declared dead at Arihant hospital, Indore.

Amul Yadav (PW6), in his statement has admitted that deceased Atul is his cousin brother. This witness in para 13 of his cross examination has stated that PW1 was not aware about his dispute with appellant Sharad Yadav. In para 14 he has deposed that deceased had no knowledge about his dispute with appellant-Sharad Yadav.

Other two eye-witnesses Babulal (PW3) and Pawan (PW4) were turned hostile and have not supported the case of the prosecution.

Ravi (PW7) and Karan (PW8), eye witnesses of the case have virtually narrated the same fact, which was narrated by the Balvider Singh (PW1). The evidence of PW1, PW7 and PW8, appears to be convincing and natural. PW1 was accompanied with deceased Atul, when the incident had taken place. Recovery of the knife was made from the possession of the accused appellant-Sharad Yadav. Thus, from the analysis of the aforesaid evidence, it is clear that it was accused Sharad Yadav, who had caused fatal blow on the person of deceased. Evidence of PW1 and PW6 (cousin brother of the deceased) appears to be convincing and natural.

To understand the legal complexities of the matter, we would consider the import of Section 299 and 300 IPC, reproduced herein below. Section 299 of IPC reads as follows:-

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.

In the instant case, there has been death of Atul caused on account of solitary injury by the aforementioned accused. The trial Court has convicted the accused for the offence of murder u/s 302 of IPC. In a plethora of cases, this Court has held that under the scheme of IPC, "culpable homicide" is the genus and "murder" its species wherein all "murder" is "culpable homicide" but all "culpable homicide" is not "murder". Exceptions 1 to 5 to Section 300 IPC indicate the circumstances where "culpable homicide" is not "murder". Exceptions 1 and 4 which are relevant for the present appeal reads as follows:-

Murder.-

Exception 1.-When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Exception 2.-* * *

Exception 3.-* * *

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

Also, fine distinction between Section 299 and Section 300 of IPC has been eloquently and beautifully carved out by Hon''ble Dr. Justice Arijit Pasayat in a recent judgment, after considering all the previous judgments of this Court. We may quote profitably the following paras of the judgment reported in Thangaiya Vs. State of Tamil Nadu, titled Thangaiya Vs. State of T.N. : (SCC pp. 656-57, paras 17-20).

These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh Vs. The State of Punjab, for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause "thirdly" of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.

In the case of Budhi Lal Vs. State of Uttarakhand, the Hon''ble Supreme Court in recent judgment after considering all the previous judgment of the Apex Court including the judgment of Thangaiya Vs. State of T.N. (supra) made a fine distinction between Section 299 & 300 of IPC, which are relevant for the present appeal reads as follows:-

For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.

From the upshot of the aforesaid discussions, it appears that the death caused by the accused-appellant was not premeditated, the accused had no intention to cause death of the deceased, but the injury was sufficient in the ordinary course of nature to cause his death. Thus, according to the law laid down in the case of Virsa Singh Vs. The State of Punjab, , the injury inflicted by the appellant is sufficient in the ordinary course of nature to cause death. It has been proved that though there was no intention to inflict that particular bodily injury, which in the ordinary course of nature was sufficient to cause the death that the injury found to be present was injury that was intended to be inflicted was sufficient in the ordinary course of nature has caused his death, hence the instant case does not fall under the Exceptions 1 & 4 to Section 300 of IPC. In view of the aforesaid, the appeal has no merit and is accordingly, dismissed.