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2012 Supreme(MP) 563
IN THE HIGH OF MADHYA PRADESH
P.K. Jaiswal and M.C. Garg, JJ.
Santosh v. State of M.P.
Criminal Appeal No.932 of 2004 (Indore) : against the judgment and order of Fourth Additional Sessions Judge, Nahargarh, District Mandsaur, passed in Sessions Trial No.114 of 2003;
Decided on 1.11.2012.
Ajay Vyas for appellant;
R.S. Parmar, Panel Lawyer for respondent/State.
Headnote:Penal Code, 1860 -- Ss.299, 300, 302, 304(I), 324 and 325 -- Arms Act, 1959 -- Ss.25 and 27 -- offence of murder -- intention to cause the injuries sufficient in the ordinary course of nature to cause death proved -- motive to kill the deceased also proved -- offence proved.
Held : From the aforesaid facts and circumstances of the case it cannot be said that the appellant had no intention to cause fatal injuries to the deceased nor it can be said that there was no intention to cause the particular injuries which were sufficient in the ordinary course of nature to cause death of the deceased. From collective analysis and examination of the evidence on record it is clear that the appellant had motive to kill the deceased. Under these circumstances, we find it difficult to hold that the appellant is liable to be convicted only under section 304(I) of IPC.
A close look at the evidence of the said main witness makes it clear that when the dispute started Santosh was having Axe and, thereafter, he came with lethal weapon like sword to cause death of deceased Laxminarayan Teli. From the above evidence it cannot be said that the quarrel between them was not premeditated, as the incident took place due to heated arguments and altercations between them and could be termed as a result of the sudden grave provocation. The intention of the appellant was clear to cause death of the deceased, otherwise he could not have left the place of incident and brought the sword. The death of the deceased was homicidal in nature. (2005)9 SCC 650 followed. 1978 MPWN 301, AIR 2012 SC 3026, AIR 2012 SC 1951, AIR 2011 SC 1655, AIR 2011 SC 840, Cr.LR 2011 (SC) 519, Cr.LR 2011 (SC) 551 and Criminal Appeal No.388 of 2004 distinguished.
naM lafgrk] 1860 && /kkjk 299] 300] 302] 304¼1½] 324 rFkk 325 && vk;q/k vf/kfu;e] 1959 && /kkjk 25 rFkk 27 && gR;k dk vijk/k && e`R;q dkfjr djus ds fy, izd`fr ds ekewyh vuqdze esa i;kZIr {kfr;k¡ dkfjr djus dk vk’k; lkfcr && e`rd dh gR;k djus dk gsrq Hkh lkfcr && vijk/k lkfcrA
vfHkfu/kkZfjr % ekeys ds iwoksZDr rF;ksa rFkk ifjfLFkfr;ksa ls ;g ugha dgk tk ldrk fd vihykFkhZ dk e`rd dks ?kkrd {kfr;k¡ dkfjr djus dk dksbZ vk’k; ugha Fkk u gh ;g dgk tk ldrk gS fd fof’k”V {kfr;k¡] tks e`rd dh e`R;q dkfjr djus ds fy, izd`fr ds ekewyh vuqdze esa i;kZIr Fkha] dkfjr djus dk vk’k; ugha FkkA vfHkys[k ij lk{; ds lkewfgd fo’ys”k.k rFkk ijh{kk ls ;g Li”V gS fd vihykFkhZ dk e`rd dh gR;k djus dk gsrq FkkA bu ifjfLFkfr;ksa ds v/khu] ge ;g vfHkfu/kkZfjr djuk dfBu ikrs gSa fd vihykFkhZ dsoy naM lafgrk dh /kkjk 304¼1½ ds v/khu gh fl)nks”k Bgjk, tkus ds fy, nk;h gSA
mDr eq[; lkf{k;ksa ds lk{; ij xgu n`f”V ls ;g Li”V gksrk gS fd tc fookn izkjaHk gqvk larks”k dqYgkM+h fy, gq, Fkk rFkk] rRi’pkr~] og e`rd y{ehukjk;.k rsyh dh e`R;q dkfjr djus ds fy, ryokj tSls ?kkrd vk;q/k lfgr vk;kA iwoksZDr lk{; ls ;g ugha dgk tk ldrk fd muds e/; >xM+k iwoZfpafrr ugha Fkk ;Fkk muds e/; mRrsftr cgl rFkk >xM+ksa ds dkj.k ?kVuk gqbZ rFkk >xM+k vpkud xaHkhj izdksiu dk ;Fkk ifj.kke ugha ekuk tk ldrk FkkA vihykFkhZ dk e`rd dh e`R;q dkfjr djus dk vk’k; Li”V Fkk] vU;Fkk og ?kVuk LFky ugha NksM+ ldk gksrk rFkk ryokj yk;k gksrkA e`rd dh e`R;q izd`fr esa ekuoo/k FkhA ¼2005½9 ,l lh lh 650 vuqlfjrA 1978 e-iz- ohDyh uksV~l 301] , vkb vkj 2012 ,l lh 3026] , vkb vkj 2012 ,l lh 1951] , vkb vkj 2011 ,l lh 1655] , vkb vkj 2011 ,l lh 840] fdz- ,y vkj 2011 ¼,l lh½ 519] fdz- ,y vkj 2011 ¼,l lh½ 551 rFkk nkafMd vihy dz-388 lu~ 2004 izHksfnrA
¼iSjk 11 ,oa 12
Jaiswal, J. -- 1. The appellant has filed this appeal against the judgment of conviction and order dated 10.9.2004, passed by the 4th Additional Sessions Judge, Nahargarh, District Mandsaur in Sessions Trial No.114/2003, convicting the appellant under sections 302, 324 and 325 of IPC read with section 25 of Arms Act, 1959 and sentenced to undergo life imprisonment with fine of Rs.5,000/- under section 302 of IPC, one year’s RI with fine of Rs.500/- under section 324 of iPC and three years’ RI with fine of Rs.500/- under section 27 of Arms Act; in default of payment of fine he shall undergo RI for one year and two-two months respectively under above sections.
2. Facts and circumstances giving rise to this appeal are as follows :
As per case of the prosecution, on 17.7.2003 at about 7 p.m. complainant Dilip (PW1) was in his court-yard, at that relevant point of time, appellant Santosh started removing the angles wherein barbered wire of Laxminarayan Teli was affixed. Laxminarayan (since deceased) asked him not to remove the angles. On this, Santosh, who was at that relevant point of time, armed with Axe, his father Laxminarayan, who was also armed with Axe and his servant Kanhaiyalal armed with lathi, came there and started quarrelling with Laxminarayan Teli. When this dispute was going on, Santosh ran away to his hut, brought sword from there and gave first blow on his left hand of the Laxminarayan, due to which his left jaw was amputated from wrist level. Thereafter, he gave second blow over left side of his neck below mandible, due to which he fell down. On seeing this, injured son Kamal (PW4) came there and tried to save his father. Appellant Santosh inflicted sword blow on his right hand, due to which he sustained injury. At the time of occurrence Suresh, Satyanarayan (PW3), Mohanlal and other persons of that locality were also present and they had witnessed the incident. After causing injuries all the three accused persons namely appellant Santosh, his father Laxminarayan Soni and his servant Kanhaiyalal Teli ran away from the spot. Injured Laxminarayan Teli was taken to Mandsaur Hospital, but his left jaw was lying on the place of occurrence. Injured Kamal was taken to Primary Health Centre, Nahargarh. The report was lodged by Dilip (PW1) to Police Station Nahargarh, on the basis of which the offence was registered. During investigation, the amputated jaw, plain and blood mixed earth and a wrist watch were seized vide seizure memo Ex.P-2 and prepared spot map vide Ex.P-3. In the meantime, Laxminarayan Teli died, therefore, in presence of the witnesses inquest report Ex.P-10 and trace map Ex.P-10 were prepared. Axe was seized from accused Kanhaiyalal and all the three accused persons were arrested and on the basis of memo of accused Santosh sword was seized from him.
3. After completion of the investigation, charge-sheet was filed against the appellant under sections 302, 324 and 323/34 of IPC along with two others before the Judicial Magistrate First Class, Sitamau, from where the case was committed to the Court of Sessions at Mandsaur, who in turn made over the case to the 4th Additional Sessions Judge, Mandsaur for trial. During trial, charge under sections 302, 302/34, 324 of IPC and section 25/27 of the Arms Act was framed against the accused persons. They abjured the guilt and pleaded not guilty.
4. It is not in dispute that at the relevant time civil suit in respect of the boundary dispute was pending between the parties. To prove its case as many as 16 witnesses were examined by the prosecution, whereas DW1 Kailash and DW2 Munna Khan were examined as defence witnesses. After appreciating the material available on record and considering the evidence of four eye-witnesses namely PW1 Dilip Kumar, PW2 Mohanlal, PW3 Satyanarayan and PW4 Kamal, the learned trial Court convicted appellant under sections 302, 324 and 325 of IPC read with section 25 of Arms Act, 1959 and sentenced as stated herein-above, but acquitted t
