State of Madhya Pradesh vs Kusum Bai

This appeal has been filed against the judgment dated

25.9.2000 passed by the Additional Sessions Judge, Khurai

(Sagar), whereby the appellant No.1-Chandan Singh has been

convicted for the offence under Section 307 of Indian Penal Code

and sentenced for 3 years RI with fine of Rs. 1000/- in default of

fine, RI for one month and appellant No. 2-Tulsiram has been

convicted under Section 324 of IPC and sentenced to the period

already undergone (i.e. 112 days) with fine of Rs. 500/- and in

default of fine further RI for 15 days.

In nutshell the prosecution story is that complainant-Liladhar

is the brother of appellant No.2 Tulsiram. He had given certain

amount of his land to appellant No.2 Tulsiram. There was an

outstanding balance of Rs.800/-. On 7.6.1998 at about 10.30 pm,

Tulsiram was standing in front of his house, the complainant-

Liladhar went to the house of Tulsiram and demanded balance

amount of Rs. 600/-. It is alleged that the appellant No.1-Chandan

Singh came out from his home and assaulted the complainant-

Liladhar by means of knife. When complainant-Liladhar raised

alarm, his father Bhuganti also reached there and appellant No.2

Tulsiram went to his house and came back with lathi and assaulted

Bhuganti on his nose causing simple injury. FIR was lodged and a

Crime under Section 323 / 34 and 307 / 34 of IPC was registered at

police Station, Bina. During the incident, the appellants sustained

injuries, because they have been assaulted by the complainant party.

The appellants have also lodged FIR against Leeladhar, Bhuganti

and Shantibai for offence under Section 323 / 34 of IPC.

The learned trial Court held Chandan Singh guilty of offence

under Section 307 of IPC, hence he has been convicted under

Section 307 and sentenced aforementioned. Appellant No.2

-Tulsiram has been convicted under Section 324 of IPC and

sentenced as aforementioned.

Being aggrieved by the aforesaid judgment, the present

appeal has been filed on the ground that the learned trial Court has

erred in holding that the appellants guilty for the offences, whereas

the appellants have been falsely implicated. The trial Court has not

considered the fact that appellants assaulted Liladhar and Bhuganti

only in their defence. The prosecution suppressed the injuries

sustained by the appellants, which were caused in the same

incident. It is the duty of the prosecution to explain how accused

persons have suffered these injuries, which shows that Liladhar was

the aggressor and he came and assaulted the appellants. The learned

trial Court on the basis of testimony of interested witnesses, which

were full of contradiction and omissions relied upon the prosecution

story, convicted the appellants with excessive sentence.

The appellants abjured their guilt. They took the plea that

they were assaulted by the members of the complainant party in the

incident. They tried to prove the FIR of the counter case and the

medical reports, but no specific defence evidence was adduced.

Hence, the appellants have prayed that they be acquitted from the

charges.

Learned counsel for the appellants has contended that he has

not challenged the conviction and sentence of appellant No. 2

Tulsiram. He further submitted that offence is not made out under

Section 307 of IPC. Case is made out under section 308 of IPC

against appellant No. 1 Chandan Singh because there was sudden

quarrel between the parties. The appellants also got injuries. Both

parties used sharp and cutting weapons and both parties are close

relatives to each other. The incident occurred without any

premeditation. They quarreled for a petty amount which was due for

repayment. Learned counsel for the appellants has further submitted

that a counter case has also been filed by the appellants against

Liladhar, Bhuganti and Shantibai.

The learned Panel Lawyer has vehemently opposed the

contentions and submitted that the learned trial Court has rightly

passed the impugned judgment after appreciating every evidence

and the facts and circumstances of the case. Hence, he prayed that

this appeal be dismissed.

Heard learned counsel for the parties and perused the

records.

Learned counsel for the appellants has not denied the

occurrence of incident, wherein Liladhar sustained injuries by

appellant Chandan. He mainly argued for conversion of offence

from Section 307 to Section 308 of IPC.

Section 308 of IPC reads as under :-

"308. Attempt to commit culpable homocide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homcide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a terms which may extend to seven years, or with fine, or with both."

He drew the attention of the Court to the illustration, where

A, on grave and sudden provocation, fires a pistol at Z, under such

circumstances that if he thereby caused death he would be guilty of

culpable homicide not amounting to murder. A has committed the

offence defined in this section.

It is not in dispute that the appellant No.1 Chandan Singh is

real nephew of injured Liladhar and grand son of injured-Bhuganti.

The appellant-Tulsiram is the real younger brother of injured

Liladhar and son of injured Bhuganti.

In para 1 of the testimony of Liladhar (PW1), it is apparently

clear that firstly Liladhar came to his brother-Tulsiram''s home and

at that time Tulsiram was standing at the door without any arm.

Liladhar demanded Rs.800/- from Tulsiram and thereafter

appellant No.1 Chandan Singh came out from his house with knife

and gave three blows; two at the chest and one at stomach. As per

the opinion of Dr.P.K. Jain (PW8) he examined the injured on the

date of incident and found

(1) incised penetrating wound over left side of abdomen 2x1/2cm;

(2) incised wound over left side of the chest about 2x1/2cm deep;

(3) incised penetrating wound in right side of chest 2x1/2cm;

(4) abrasions over the right side of chest and

(5) multiple abrasions at left forearm. The aforesaid incised wounds were caused by hard and sharp object and abrasions were caused by hard and blunt object.

Dr. P.K. Jain (PW8) has also scribed the dying declaration of

injured Liladhar on the same day i.e. on 07.06.1998 at about 11.45

PM. Liladhar has stated that he was assaulted by his brother

Tulsiram and his nephew Chandan Singh by means of knife. As per

the statements of Liladhar (PW1) and Dr. P.K. Jain (PW8), it is

clearly proved that such type of injuries were caused by appellant

No.1 Chandan Singh to Liladhar by knife.

In para-7 of the cross-examination of Dr.P.K. Jain (PW8),

has also stated that at the time of examination of injured Liladhar,

he found the general condition of the injured was not severe and no

symptom was shown that the aforesaid injuries were sufficient to

cause death nor he has stated that the injuries were fatal and

dangerous to life. At the time of aforesaid medical examination

Liladhar was conscious.

Learned counsel for the appellant has referred Section 300

Exception 4 of IPC, which prescribes that 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 having taken undue advantage or acted in a cruel or

unusual manner. He relied upon the case of Posuram Deshmukh

Vs. State of Chhattisgarh [AIR 2009 SC 2482] and drew the

attention of this Court in para-7, which reads as under :-

"7. .............................. A `sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter ..........................."

In para 5 of the cross-examination of Liladhar (PW1), he has

stated that while returning home from Bina, he met with Tulsiram at

the door of his house. When he asked for payment of outstanding

sum of Rs.800/-, appellant No.2 Tulsiram and appellant No. 1

Chandan Singh without any conversation suddenly assaulted him.

In para-9 he has admitted that a counter case is pending on the

report of appellants. Similarly his wife Shantibai (PW2) has

supported version of Liladhar. Bhuganti (PW4) father of

complainant-Liladhar and grand-father of Chandan Singh also

confirmed that the incident occurred due to the demand of Rs.800/-.

In sudden quarrel appellant Chandan Singh inflicted thrice by knife

on the vital body part of Liladhar.

Evidence of witness showed that the complainant was an

aggressor as he had proved the same. Appellant No. 1 Chandan

Singh inflicting injury to Liladhar on his chest and abdomen. Since

there was an attempt to commit culpable homicide by the said

appellant. As it has already been said the intention or knowledge

has to be ascertained from the nature of injury that is caused and

when the doctor has clearly stated that the injury was not sufficient

in the ordinary course of nature, to cause death and if death cannot

be caused by such an injury, there is no question of accused being

liable under Section 307 of IPC.

Taking into account the back ground in which the incident

took place, the type of knife which was used, the accused had the

intention of causing death or he had an intention of causing such

injury which is sufficient in the ordinary course or nature to cause

death, though in the circumstances, all that can be said is that when

the appellant No. 2 Chandan inflicted the injury on the person of

victim with the said knife, he must have the knowledge that the said

injury was likely to cause death and therefore, his offence can fall

under Section 308 of IPC and not under Section 307 of IPC. With

the result that his conviction under Section 307 of IPC cannot be

sustained and he can be convicted only under Section 308 of IPC.

In view of the above discussion, this Court finds that the

appellant No. 1 / Chandan Singh is guilty for offence punishable

under Section 308 of IPC. Hence, this appeal is partly allowed.

Accordingly, appellant No.1 Chandan is acquitted from the offence

under Section 307 of IPC. He is convicted for offence under

Section 308 of IPC and sentenced for 2 years RI along with fine of

Rs. 5000/- and in default of fine, he shall further undergo sentence

for six months. As appellant No. 1 Chandan Singh was in custody

for 112 days, therefore, the same shall be adjusted against the two

years sentence as imposed under Section 308 of IPC and he will be

liable to undergo only the remaining part of sentence. If fine

amount has been deposited by the appellant, the same shall also be

adjusted against Rs. 5000/- as imposed under Section 308 of IPC.

With regard to appellant No. 2 Tulsiram, the conviction and

sentence passed by learned Court is maintained.

Appellant No. 1 is directed to surrender immediately before

the concerned trial Court to undergo the remaining sentence, failing

which the trial Court shall take appropriate action.

Copy of this order be sent to both the Courts below for

information and compliance alongwith its record.