Narain Singh & Anr. Vs. State of M.P.
EmailAppeal: Criminal Appeal No. 489 of 1999
Petitioner: Narain Singh & Anr.
Respondent: State of M.P.
Apeal: Criminal Appeal No. 489 of 1999
Judges: K.T. THOMAS & S.N. PHUKAN, JJ.
Date of Judgment: Nov 20, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Sections 300, 302 and 304 read with section 34 – Murder – Culpa-ble homicide not amounting to murder – Accused appellants attack-ing the deceased and inflicting lathi blows – Another person (A3) joining them subsequently and inflicting axe blows on the accused – Medical evidence showing that the lathi injuries alone, did not cause the death of the victim – A3 himself having been murdered subsequently, accused appellants convicted by trial court for the offence of murder – High Court confirming the conviction. Held, since the cause of death was due to haemothorax developed by the injured victim, in the light of the medical evidence and also the testimony of the prosecution witnesses the accused appellants punishable only under section 304. A rigorous imprisonment of 7 years on each of the accused appellants, accordingly imposed.
Held:
Death would have been caused on account of the points of the fractured ribs perforating into the lungs resulting in haemothor-ax. But those injuries in that form could not have been intended by the assailants who inflicted the blows with the lathis. The maximum which we can attribute to the appellants is they intended to inflict blows with the lathis and caused fracture of the ribs. The turn which took place later when the fractured ribs had plunged into the lungs need not necessarily have been intended by the assailants. (Para 9)
We alter the conviction to section 304, part II of the IPC. The interest of justice will be met by awarding a sentence of rigor-ous imprisonment for seven years for each of the appellants. We do so. (Para 12)
JUDGEMENT:
ORDER
1. Three brothers were arraigned in the trial court for the murder of their half-brother-Kamal Singh. The third one – Ajab Singh is not alive today, he is reported to have been murdered later. Hence, this appeal relates only to A1-Narain Singh and A2-Gulab Singh. The trial court and the High Court convicted them under section 302 read with section 34 of the IPC. They were sentenced to imprisonment for life.
2. The three accused and Kamal Singh, the deceased are the sons of Mohabbat Singh (DW-1). Deceased is the son from the first mar-riage while the three accused are the sons from the second mar-riage. It appears that there was some difference of opinion between the deceased and the accused regarding land. According, to the prosecution case, on 29.4.96 when deceased was sitting near the well of the house, A1-Narain Singh, A-2 Gulab Singh reached the spot and inflicted blows with lathis on the deceased. This was followed by A3-Ajab Singh reaching the spot with an axe and he also inflicted injuries with that weapon. The injured Kamal Singh was taken to the hospital, but he was pronounced dead.
3. FIR was lodged by PW-1 Anandi Lal at about 4.45 p.m. on the same day. He and PW-4 (Resham Bai) widow of the deceased have said that they rushed to the scene on hearing the information from PW2-Mahinder (minor son of the deceased) that his father was being attacked by the present appellant. Prosecution examined those three witnesses besides PW3 (Geeta Bai) the sister-in-law of PW1 as a witness. Some other witnesses were examined to speak to a statement said to have been made by the deceased that he was attacked by the appellants.
4. The trial court made full reliance on the testimony of PW3-Geeta Bai and also the limited version regarding the occurrence spoken to by PW2-Mahinder, the child witness.
5. Mr. Jaspal Singh learned senior counsel who argued for the appellants contended that the dying declaration attributed to the deceased cannot be relied on, on account of various infirmities which he highlighted. No doubt the infirmities highlighted are sufficient to create doubt in our mind as to the possibility of the deceased speaking to those persons as to what happened in a fully conscious state of mind. Hence, we thought of focussing on the evidence of PW3-Geeta Bai and PW2-Mahinder.
6. Mr. Jaspal Singh made an endeavour to create a dent on the credibility of the evidence of PW3 as well as PW2. The grounds raised are not sufficient for us to interfere with the finding arrived at by the trial court and the High Court that those two witnesses have seen the occurrence.
7. The position which has reached as per the evidence is thus:
The deceased was attacked first by the present appellants (A1 and A2) with lathis. The injuries attributed to lathi blows have been noted by PW11 Dr. Niazi in the postmortem report. They are inju-ries nos. 5, 6 and 7 (bones of the left fore arm and right fibula were fractured; ribs 7-9 on the left side were also fractured). Internally the doctor found that the fractured ribs had caused haemothorax on the left side. We are not reproducing the incised wounds noted by the doctor in the postmortem report as those injuries were attributed only to the third accused who is not alive now.
8. Mr. Jaspal Singh, learned senior counsel on the strength of the medical evidence made an alternative contention that appell-ants cannot be convicted under section 302 of the IPC with the help of section 34 for what the third accused had done with the axe. We find much force in the said contention because the evi-dence of the eyewitnesses as well as the so called dying decla-ration have only proved that A3 was not present initially at the time when the appellants attacked the deceased with lathis. In other words A3 joined them later with the axe. This is enough to dispel the possibility of a junction of minds between all the three accused for developing a common intention. This again means that A1 and A2 and the appellant can be convicted only on the strength of what they have done and not for what A3 had done.
9. The injuries inflicted by A3 were not the immediate cause of death, but it was haemothorax which was developed by the deceased ultimately resulted in his death. The question in the background is whether the offence would escalate to culpable homicide amounting to murder. Death would have been caused on account of the points of the fractured ribs perforating into the lungs resulting in haemothorax. But those injuries in that form could not have been intended by the assailants who inflicted the blows with the lathis. The maximum which we can attribute to the ap-pellants is they intended to inflict blows with the lathis and caused fracture of the ribs. The turn which took place later when the fractured ribs had plunged into the lungs need not necessari-ly have been intended by the assailants.
10. The resultant position is this. The offence cannot be brought within the purview of the “thirdly” clause of section 300 of the IPC. There is evidence that the deceased was dumped into a drain after launching the attack. If that had happened, the injuries on the lungs would have been the consequence of such a fall.
11. Viewing the medical evidence along with the testimony of PW3 and PW2 would enable the defence to successfully bring the of-fence within the purview of section 304, part II of the IPC.
12. In the result, we alter the conviction to section 304, part II of the IPC. The interest of justice will be met by awarding a sentence of rigorous imprisonment for seven years to each of the appellants. We do so.
13. Appeal is disposed of in the above terms.
1. Three brothers were arraigned in the trial court for the murder of their half-brother-Kamal Singh. The third one – Ajab Singh is not alive today, he is reported to have been murdered later. Hence, this appeal relates only to A1-Narain Singh and A2-Gulab Singh. The trial court and the High Court convicted them under section 302 read with section 34 of the IPC. They were sentenced to imprisonment for life.
2. The three accused and Kamal Singh, the deceased are the sons of Mohabbat Singh (DW-1). Deceased is the son from the first mar-riage while the three accused are the sons from the second mar-riage. It appears that there was some difference of opinion between the deceased and the accused regarding land. According, to the prosecution case, on 29.4.96 when deceased was sitting near the well of the house, A1-Narain Singh, A-2 Gulab Singh reached the spot and inflicted blows with lathis on the deceased. This was followed by A3-Ajab Singh reaching the spot with an axe and he also inflicted injuries with that weapon. The injured Kamal Singh was taken to the hospital, but he was pronounced dead.
3. FIR was lodged by PW-1 Anandi Lal at about 4.45 p.m. on the same day. He and PW-4 (Resham Bai) widow of the deceased have said that they rushed to the scene on hearing the information from PW2-Mahinder (minor son of the deceased) that his father was being attacked by the present appellant. Prosecution examined those three witnesses besides PW3 (Geeta Bai) the sister-in-law of PW1 as a witness. Some other witnesses were examined to speak to a statement said to have been made by the deceased that he was attacked by the appellants.
4. The trial court made full reliance on the testimony of PW3-Geeta Bai and also the limited version regarding the occurrence spoken to by PW2-Mahinder, the child witness.
5. Mr. Jaspal Singh learned senior counsel who argued for the appellants contended that the dying declaration attributed to the deceased cannot be relied on, on account of various infirmities which he highlighted. No doubt the infirmities highlighted are sufficient to create doubt in our mind as to the possibility of the deceased speaking to those persons as to what happened in a fully conscious state of mind. Hence, we thought of focussing on the evidence of PW3-Geeta Bai and PW2-Mahinder.
6. Mr. Jaspal Singh made an endeavour to create a dent on the credibility of the evidence of PW3 as well as PW2. The grounds raised are not sufficient for us to interfere with the finding arrived at by the trial court and the High Court that those two witnesses have seen the occurrence.
7. The position which has reached as per the evidence is thus:
The deceased was attacked first by the present appellants (A1 and A2) with lathis. The injuries attributed to lathi blows have been noted by PW11 Dr. Niazi in the postmortem report. They are inju-ries nos. 5, 6 and 7 (bones of the left fore arm and right fibula were fractured; ribs 7-9 on the left side were also fractured). Internally the doctor found that the fractured ribs had caused haemothorax on the left side. We are not reproducing the incised wounds noted by the doctor in the postmortem report as those injuries were attributed only to the third accused who is not alive now.
8. Mr. Jaspal Singh, learned senior counsel on the strength of the medical evidence made an alternative contention that appell-ants cannot be convicted under section 302 of the IPC with the help of section 34 for what the third accused had done with the axe. We find much force in the said contention because the evi-dence of the eyewitnesses as well as the so called dying decla-ration have only proved that A3 was not present initially at the time when the appellants attacked the deceased with lathis. In other words A3 joined them later with the axe. This is enough to dispel the possibility of a junction of minds between all the three accused for developing a common intention. This again means that A1 and A2 and the appellant can be convicted only on the strength of what they have done and not for what A3 had done.
9. The injuries inflicted by A3 were not the immediate cause of death, but it was haemothorax which was developed by the deceased ultimately resulted in his death. The question in the background is whether the offence would escalate to culpable homicide amounting to murder. Death would have been caused on account of the points of the fractured ribs perforating into the lungs resulting in haemothorax. But those injuries in that form could not have been intended by the assailants who inflicted the blows with the lathis. The maximum which we can attribute to the ap-pellants is they intended to inflict blows with the lathis and caused fracture of the ribs. The turn which took place later when the fractured ribs had plunged into the lungs need not necessari-ly have been intended by the assailants.
10. The resultant position is this. The offence cannot be brought within the purview of the “thirdly” clause of section 300 of the IPC. There is evidence that the deceased was dumped into a drain after launching the attack. If that had happened, the injuries on the lungs would have been the consequence of such a fall.
11. Viewing the medical evidence along with the testimony of PW3 and PW2 would enable the defence to successfully bring the of-fence within the purview of section 304, part II of the IPC.
12. In the result, we alter the conviction to section 304, part II of the IPC. The interest of justice will be met by awarding a sentence of rigorous imprisonment for seven years to each of the appellants. We do so.
13. Appeal is disposed of in the above terms.
