1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Hanuman Prasad Vs. State of Rajasthan DB CRIMINAL APPEAL NO.937/2002. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 13th May, 2009. PRESENT HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE S.P. PATHAK Mr. Biri Singh Sinsinwar for the appellant. Mr. J.R. Bijarania PP for the State. BY THE COURT: (PER HON'BLE PATHAK, J) This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed against the judgment and order dated 29th June, 2002 passed by the Additional Sessions Judge (Fast Track) No.2, Kota in Sessions Case No. 12/2002 by which the accused-appellant has been convicted and sentenced for the offence under sections 302 IPC for imprisonment of life and a fine of Rs.1000/-, in default of payment of fine to further undergo one month rigorous imprisonment. Briefly stated the facts of the case are that on 30th December, 2001 at about 8.45 a.m. PW-3 Shrilal son of Bissa by caste Bairwa lodged an oral report Ex.P-4 in the police station Udyog Nagar, Kota alleging therein that on 30th December, 2001 in 2 the morning at about 8.00 a.m. while he along with his family members Birma, Murti, Kanchan Bai, Sugna Bai and his son Hanuman and Chhotulal Khatik, was sitting in front of the house in village Borkhandi, at that time near the road Ram dayal, the deceased was getting her daughter eased, suddenly, accused- appellant Hanuman son of Gopilal came with a kulhadi (axe) in his hand and without telling anything gave a blow on the back side of the head of Ram dayal as a result of which Ram Dayal died. It has also been alleged that the incident was seen by above persons. The deceased Ramdayal was thereafter taken to the hospital in the jeep by Chhotulal and Shyamlal. It was also stated that the villagers caught the accused along with an axe. On the above report, FIR No.406/2001 was registered at the police station for the offence under section 302 IPC and investigation commenced. During the course of investigation autopsy on the dead-body was done by PW-11 Dr. P.K. Tiwari and post-mortem report is Ex.P-1. Necessary memos Ex.P-2 Panchayatnama, P-3 Seizure memo of blood stained clothes of deceased Ramdayal, Ex.P-5 site plan with description, Ex.P-6 seizure memo of blood smeared soil and simple soil from the place of occurrence, Ex.P-7 memo regarding photographs of the place of occurrence were prepared. Accused- appellant was arrested vide memo Ex.P-8 on 30.12.2001. Recovery memo Ex.P-9 was prepared. After post-mortem dead- body of the deceased was handed over to his relatives. The controlled soil and blood smeared soil, clothes of the deceased 3 were sent to the FSL. FSL report Ex.P-12, in due course of time was received. On shirt, jarsi, blood swab and blood smeared soil and kulhari blood group 'B' was found which was of the deceased. Photo-graphs Ex.P-13 to P-15 were taken at the spot. Negative of the photo-graphs are Ex.P-13A to P-15A. After completion of investigation, charge-sheet was filed under section 302 IPC before the concerned Magistrate who committed the case to the court of Sessions and ultimately the matter came for trial before the Additional Sessions Judge (Fast Track) No.2, Kota who framed charge under section 302 I.P.C. against the accused appellant. The accused denied the charge and claimed trial. In support of its case, the prosecution examined as many as 17 witnesses. In the statement recorded under section 313 Cr.P.C., the accused denied the allegations and stated that the deceased was tenant in his house and several out-siders used to come to him which was objected but the deceased did not accept the advise, therefore, the house was got vacated from him and on account of this enmity he has falsely been implicated in the case. In defence the accused examined DW-1 Durga Shanker. The learned trial court after hearing final submissions, convicted and sentenced the accused as aforesaid. We have heard learned counsel for the appellant as well as learned public prosecutor for the State and carefully perused the material available on record. The learned trial court on the basis of statement of 4 prosecution witnesses; namely, PW-3 Shrilal, the complainant, PW-5 Smt. Kanchan Bai, PW-6 Birma and PW-7 Chhotu Lal recorded its finding that the accused gave axe blow on the back side of the head of the deceased as a result of which the deceased died. The trial court further recorded its finding that in view of the recovery of the axe from the possession of the accused and the fact was confirmed by independent witnesses PW-9 Babulal and PW-1`7 Shri Hanuman Singh and also as the FSL report confirmed the fact that blood group found on the axe and the clothes of the deceased was the same blood group `B' of the deceased. In the above circumstances, the accused was held responsible for committing murder of deceased Ramdayal. In the present matter, the points require for consideration are: (i) Whether the death of deceased Ramdayal was homicidal; (ii) Whether the trial court's finding in relation to inflicting the blow by an axe on the head of the deceased is based on proper appreciation of evidence; and (iii) What is the proper provision to punish the accused if found guilty for committing murder of deceased Ramdayal? Now, we propose to examine the points framed by us. POINT NO.1: 5 PW-11 Dr. P.K. Tiwari has in his statement stated that on the requisition of police station Udyog Nagar, Kota, he conducted post-mortem on the dead-body of deceased Ramdayal who was identified by Ram Singh ASI and Shrilal, the complainant. On examination following external injuries were found: External Injuries: (1) Chope wound over occipital region on right side 9x1cm. Brain matter coming out. Started from 3 cmabove the right ear to the mid line obliquely placed. Antemortem in nature. Internal injuries: On opening of scalp layer near the wound hematoma wound corresponding to external injury no.(1) occipital bone right side was broken which was of the size 9x0.8 cm. Membrane was cut. In the opinion of the witness the cause of death was injury no.1 which was dangerous to life and as a result of which the deceased had died. The witness has proved post-mortem report Ex.P-1. In view of the medical evidence and in view of the opinion recorded by PW-11 Dr. P.K. Tiwari, there is no difficulty in reaching to the conclusion that the death of the deceased was not natural one and the death was homicidal. The injury found on the person of the deceased was antemortem in nature. The point no.1 is answered accordingly. POINT NO.2: PW-1 Smt. Murti Bai, PW-2 Hanuman, the child witness, PW-3 Srilal, PW-4 Smt. Sugna Bai, PW-5 Smt. Kanchan Bai, PW-6 Birma and PW-7 Chhotulal are the witnesses who had 6 seen the occurrence. All of them have stated that on the day of incident at about 8.00 a.m. at the site accused came having kulhadi in his hand and inflicted a blow at the back side of head of deceased Ramdayal as a result of which Ramdayal died. They have also stated that the deceased was taken to the hospital. Lengthy cross-examination has been done from the above witnesses. The contention of the learned counsel is that the evidence of above witnesses is not reliable in view of the contradictions in their statements. It has also been contended that enmity is apparent of the accused with the family members of the deceased from the statement recorded under section 313 Cr.P.C. as the deceased was compelled to vacate the house of the accused, which was on rent, therefore, they had grievance against the appellant and this aspect of the matter has not properly been appreciated by the trial court. On the other hand learned public prosecutor has opposed the submissions. It is not necessary to discuss the evidence in detail as the trial court has properly appreciated the evidence and the contention of the learned counsel that since the witnesses are in near relation, their testimony is not to be relied is not liable to be accepted for the simple reason that the witnesses may be in relation of the deceased but then that cannot be a reason to 7 discard their testimony. What is required is to scrutinise their evidence with caution and care. PW-1 Smt. Murti Bai, Pw-2 Hanuman, PW-3 Srilal, PW-4 Smt. Sugna Bai, PW-5 Smt. Kanchan Bai, PW-6 Birma and PW-7 Chhotu Lal in one voice have stated that it was the accused who came at the spot having a kulhadi in his hand and gave one blow on the head of the deceased. In the above circumstnaces, only for the reason that the deceased who was tenant of the accused and was subsequently evicted from the house and for this enmity the relations of the deceased will leave the real culprit and involve the accused- appellant falsely cannot be believed. The axe in question by which the appellant inflicted blow was seized by the police and accused was apprehended at the spot and from his possession kulhadi was taken. The kulhadi was sent to the FSL for examination. The FSL report Ex.P-12 leaves no manner of doubt that the axe was used in the incident and on the axe and the clothes of the deceased, blood group 'B' was found. PW-8 Ram Ratan, PW-10 Hari Mohan Sharma, SHO, Police station Udyog Nagar, Kota and also PW-9 Babulal are the witnesses before whom controlled soil, blood smeared soil and clothes of the deceased were seized by the police. Ex.P-9 is the recovery memo of kulhadi which was prepared in the presence of PW-9 Babulal and PW-16 Ramdayal. Though PW-8 Ramratan and PW-9 Babulal have denied this aspect that kulhadi was recovered from the accused but then on cross-examination conducted from the above witnesses they have 8 admitted their signatures on the firds. Thus, it appears that the above two witnesses have tried to help the accused on this point but there does not appear from the evidence of the investigating officer and the eye witnesses of the case that the accused has been falsely implicated in the case as a false recovery memo Ex.P9 has been prepared as the accused was apprehended by the villagers while he was having axe in his hand. In the above circumstances, coupled with the statement of investigating officer and PW-10 Hari Mohan, there remains no doubt in our mind that the recovery of the axe was made from the accused. The eye witnesses are reliable and the evidence of the investigating officer in this case could not be shattered even after a lengthy cross examination on the point of recovery made from the accused of the Kulhari. The articles seized at the spot and the clothes taken of the deceased were sent to the FSL and as discussed here-in- above, the FSL report received indicates that the blood group 'B' of the deceased was found on the clothes of the deceased, axe and also on the blood smeared soil. The prosecution has examined PW-14 Satveer Singh, constable no.1324 of police station Udyog Nagar, Kota who was handed over four sealed packets by the malkhana incharge PW-17 Hanuman Singh in sealed condition and the same were deposited in sealed condition in FSL by P.W.14 Satveer Singh Constable. The evidcence led in defence of Durga Shanker is not at all reliable. He has deposed that from the house of eye witness 9 the place of incident was not visible but in view of Ex.P5 site plan his evidence is not of worth credence and trial court has correctly discarded his evidence. In view of the above discussion and analysis of evidence, it stands established that the accused appellant was responsible for committing murder of the deceased by giving a blow on the back side of the head of the deceased by an axe, therefore, we find that the evidence is enough on record to prove the guilt of the accused. The appreciation of the evidence in this regard has properly been made by the trial court. The point no.2 is answered accordingly. POINT NO.3: It has been the contention of the learned counsel that in the instant case there is only one single blow on the head of the deceased, therefore, either the accused is liable to be convicted under section 304 Part I or Part II IPC. According to the learned counsel, the learned trial court has committed illegality in convicting the accused u/s 302 IPC. In support of his submission, learned counsel has placed reliance on the decisions in the case of Sunder Lal Vs. State of Rajasthan- 2007 Cr.L.R. (SC) 629, Arun Nivalaji More Vs. State of Maharashtra- 2006(2) WLC (SC Criminal 465, Suresh Sitaram Surve Vs. State of Maharashtra- 2003(1) WLC (SC) Criminal 280, A. Maharaja Vs. State of Tamil Nadu- 2008 XII AD(S.C.) 260 and Abbas Ali Vs. State of Rajasthan- 2007(2) Crimes 164 (SC). 10 On the other hand, learned public prosecutor contends that the accused appellant had knowledge as well as the intention to cause death of the deceased and as a result of kulhadi blow on the head of the deceased, instantaneously the deceased died at the spot and that in itself proves the force and the pressure exerted by the accused at the time of inflicting Kulhari blow on the head of the deceased. We have considered the submissions made before us. In the case of Sunder Lal (supra), the Hon'ble Apex Court while considering the dying declaration in a case where 'gandasi blow was inflcited when the deceased was sleeping. The Hon'ble Apex Court observed that once the court is satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant and further comes to the conclusion that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It has further been observed that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Hon'ble Apex court has also explained distinction between section 299 and 300 IPC. It has been observed that the academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow 11 themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. It has further been observed as under: 18. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 19. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. 12 Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 20. The learned Judge explained the third ingredient in the following words (at page 468): "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion." 21. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) 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, 13 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. 22. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of 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. 23. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 24. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 14 Thus, it appears that in view of the above decision of Apex Court and in view of the decision rendered in Virsa Singh Vs. State of Punjab- AIR 1958 SC 465, even if the intention of the accused is considered limited to the infliction of a bodily injujry 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. It also appears that clause © of section 299 and clause (4) of section 300 both require knowledge of the probability of the act causing death. Clause (4) of section 300 applies where the knowledge of the offender as to the probability of the death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The Apex Court in the above case considering the dying declaration observed that appropriate conviction would be under section 304 Part I IPC. In Arun Nivalaji More (supra), the allegations against the accused-appellant were that he was having a knife with him and entered in the office of the Divisional Commercial Superintendent at about 4.15 p.m. on 20.1.1987 and was waiting for an opportunity when Shri Ahirwar would be left alone in his chamber. Subsequently, he entered in the chamber of Ahirwar and 15 gave him a blow by the knife on the left side of stomach. On the above allegations, trial was held by the Additional Sessions Judge and he recorded finding that the prosecution version of the incident that the appellant assaulted the deceased with a knife which has been recovered from his possession and has been produced in the court and disbelieved the stand taken by the accused that deceased had used any sarcastic remarks or that there was any scuffle between the appellant and the deceased, convicted the accused-appellant under section 304 Part I and sentenced him to seven years rigorous imprisonment. On preferring appeal before the High Court by the accused and the State of Maharashtra, the High Court dismissed the appeal filed by the accused and allowed the appeal filed by the State and altered the conviction of the accused to that of section 302 IPC. The Hon'ble Supreme Court finding that the prosecution was able to estab lish beyond reasonable shadow of doubt that the appellant caused an injury by knife on the left hypochondrium which resulted in one inch long tear in posterior wall of stomach in middle part of stomach, 2-1/2” long rupture in anterior wall of body of stomach, midway between two curvatures, edges clean cut. There was one small perforation about half centimeter in diameter in middle of transverse colon, anteriorly. The injury inflicted by the accused was clearly intended by him and it was not accidentally. The medical evidence established that the injury was sufficient in the ordinary course of nature to cause death. In the above 16 circumstances, it was observed that the High Court was perfectly correct in allowing the appeal filed by the State and alter the sentence from 304 Part I to 302 IPC. In the case of Suresh Sitaram