Madhya Pradesh High Court
Bhawarsingh vs The State Of Madhya Pradesh on 17 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
1 CRA-5477-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 17th OF APRIL, 2025
CRIMINAL APPEAL No. 5477 of 2017
BHAWARSINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Shubham Dholpure, learned counsel for the appellants.
Shri H.S.Rathore, learned GA for the respondent/State.
Reserved on 07.04.2025.
Delivered on 17.04.2025.
----------------------------------------------------------------------------------------
JUDGMENT
Per: Justice Gajendra Singh
This criminal appeal under section 374 (1) of the Cr.P.C is preferred
challenging the conviction under section 302 of the IPC and sentence of life
imprisonment and fine of Rs.2,000/- with default stipulation of one month’s
simple imprisonment to each appellant vide judgment dated 26.09.2017 in
Sessions Case No.10/2012 by Additional Sessions Judge, Jhabura, M.P.
2. Facts in brief are that on 25.10.2011 Rakesh (PW/1) and deceased
Thakariya were consuming beer at the occasion of Diwali festival at 02.00
p.m in village Sagiya within the jurisdiction of police station Bori, district
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
2 CRA-5477-2017
Alirajpur. Appellants reached there and asked Rakesh and Takariya to serve
the beer. They refused to serve the beer to the appellants/accused and due to
this appellant Bhawarsingh assaulted Rakesh with stick and appellant
Budhiya assaulted Thakariya by a stick of teak used in cot. Rakesh (PW/1)
intimated the incident to the outpost Para, police station Bori, district
Alirajpur on 25.10.2011 at 03.00 p.m vide Ex.P/22 and the same was
recorded under sections 323 & 504 of the IPC under the register maintained
for non cognizable offence under section 155 of the IPC. Rakesh and
Takariya were examined at civil hospital, Jhabua. Thakariya was admitted
there and thereafter he was taken to Dr.Y.M.Bharpoda hospital at Dahod,
Gujarat and was admitted in the hospital on 26.10.2011. He expired during
treatment in Dr.Y.M.Bharpoda hospital, Dahod at 05.00 p.m on 28.10.2011.
A Marg was registered and an offence under sections 302 & 323 r/w section
34 of the IPC was registered on 01.11.2011 as crime no.146/2011 at the
police station Bori, district Alirajpur. After investigation a final report was
submitted to the Court of Chief Judicial Magistrate, Jhabua where a criminal
case no.2036/2011 was registered and vide order dated 28.12.2011 the case
was committed to the Court of Sessions Judge, Jhabua.
3. Appellant Bhawarsingh was tried under sections 302 & 323 of the
IPC and appellant Budhiya was tried under sections 302 & 323 r/w section
34 of the IPC.
4. To bring home the guilt, the prosecution examined Rakesh as
PW/1, Vijay as PW/2, Karansingh as PW/3, Raksingh as PW/4, Bhaiyasingh
as PW/5, Bakh as PW/6, Johar as PW/7, Chibansingh as PW/8, Head
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
3 CRA-5477-2017
Constable Kothibhai as PW/9, Dr.Y.M.Bharpoda from Dahod, Gujarat as
PW/10, Medical Officer Dr.Priti Shobawat as PW/11, Sub Inspector
S.S.Pawar as PW/12, Head Constable Kanhaiyalal as PW/13, Sub Inspector
R.P.Prajapati as PW/14, A.S.I Laxminarayan as PW/15 and Sub Inspector
Amarlal Sharma as PW/16.
5. In cross examination under section 313 of the Cr.P.C
appellant/accused either denied or expressed ignorance regarding the facts
and circumstances appeared against them in evidence. Their defence is of
false implication. They did not examine any witness.
6. Appreciating evidence, trial court acquitted Bhawarsingh from the
charge under section 323 IPC and Bhudiya from the charge under section
323 r/w section 34 of the IPC as Rakesh (PW/1) turned hostile and did not
support the prosecution but appreciating the testimony of Karansingh
(PW/3), Vijay (PW/2), Raksingh (PW/4), Bhaiyasingh (PW/5) and the
medical evidence and the official witnesses recorded the finding that the
appellants caused injuries to Thakariya with intent to cause his death and
their act constitutes the offence of murder punishable under section 302 of
the IPC and sentenced as per para-1 of the judgment.
7. Challenging the conviction and sentence, this appeal has been
preferred by the appellants. Their sole argument is that if prosecution story is
taken to as a whole, then also the act of the appellants does not attracts
section 302 of the IPC and at the most its attracts the provision of section
304 Part-II of the IPC.
8. Heard.
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
4 CRA-5477-2017
9. Learned Govt. Advocate appearing for the prosecution has
supported the conviction and sentence passed against the appellants and
prayed for dismissal of the appeal.
10. Perused the record.
11. The testimony of eye witnesses Vijay (PW/2), Karansingh
(PW/3), Raksingh (PW/4) discloses that the incident occurred when deceased
and other persons were consuming beer and appellants also reached there and
asked to serve beer but the beer was not served to them. Due to this,
Bhawarsingh hit Thakariya by a stick and Budhiya also caused injuries to
Thakariya by a teak stick used in cot. Initially the case was registered under
sections 323 & 504 of the IPC. Dr.Y.M.Bharpoda (PW/10), who treated
Thakariya has reported in Ex.P/26 that he found stitched wounds at the right
and left side of Thakariya. On conducting CT scan of the head, a fracture
with symptoms of brain haemorrhage were found. Dr.Preeti Shobawat
(PW/11) conducted the autopsy of Thakariya and reported that except on the
head no external injury was found. Linear fracture was found on the left
temporal bone and right parietal part, due to this there was haemorrhage. In
the internal examination she found intracranial haemorrhage present in the
frontal and temporal lob of the brain. She opined in Ex.P/18 that Thakariya
died due to injuries on the head causing subdural and intracranial
haemorrhage. In cross examination she admitted that the injuries were
required to be treated by Neurologist and the treating doctor Y.M.Bharpoda
was only a general surgeon.
12. The above facts are tested in the light of N.Ramkumar vs. The
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
5 CRA-5477-2017
State represented by Inspector of Police – 2023 INSC 812 in which it is held
in para-16 to 19 as under:
16. It requires to be borne in mind that the test suggested in the
aforesaid decision and the fact that the legislature has used two
different terminologies, ‘intent’ and ‘knowledge’ and separate
punishments are provided for an act committed with an intent to
cause bodily injury which is likely to cause death and for an act
committed with a knowledge that his act is likely to cause death
without intent to cause such bodily injury as is likely to cause
death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in
equal terms. They are not different things. Knowledge would be
one of the circumstances to be taken into consideration while
determining or inferring the requisite intent. Where the evidence
would not disclose that there was any intention to cause death of
the deceased but it was clear that the accused had knowledge that
his acts were likely to cause death, the accused can be held guilty
under second part of Section 304 IPC. It is in this background
that the expression used in Indian Penal Code namely “intention”
and “knowledge” has to be seen as there being a thin line of
distinction between these two expressions. The act to constitute
murder, if in given facts and circumstances, would disclose that
the ingredients of Section 300 are not satisfied and such act is
one of extreme recklessness, it would not attract the said Section.
In order to bring a case within Part 3 of Section 300 IPC, 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. In other words, that the injury found to
be present was the injury that was intended to be inflicted. This
Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy vs
State of Andhra Pradesh, AIR 2006 SC 3010 has observed:
“Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution,
as that will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II. Many petty
or insignificant matters — plucking of a fruit,
straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead
to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases.
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
6 CRA-5477-2017
There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there
may be cases of murder where the accused attempts
to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause
death. It is for the courts to ensure that the cases of
murder punishable under Section 302, are not
converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder
punishable under Section 302. The intention to cause
death can be gathered generally from a combination
of a few or several of the following, among other,
circumstances: (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or
was picked up from the spot; (iii) whether the blow is
aimed at a vital part of the body; (iv) the amount of
force employed in causing injury; (v) whether the act
was in the course of sudden quarrel or sudden fight or
free for all fight; (vi) whether the incident occurs by
chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was any
grave and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the heat
of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused
dealt a single blow or several blows. The above list
of circumstances is, of course, not exhaustive and
there may be several other special circumstances with
reference to individual cases which may throw light
on the question of intention. Be that as it may.
17. This Court in the case of Pratap Singh @ Pikki v. State of
Uttarakhand (2019) 7 SCC 424 had noticed that the deceased-
victim had suffered total 11 injuries and had been convicted for
offences under Section 304 Part-II/Section 34 IPC apart from
other offences. It was noticed that some altercation took place
and the groups entered into scuffle without any premeditation
and convicted accused for the offence punishable under Section
304 Part-II/Section 34 IPC. Taking into consideration that the
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
7 CRA-5477-2017
appellants therein were young boys and had served sentence of
more than three years and five months and there was no previous
enmity, persuaded this Court that the quantum of sentence is
excessive and accordingly sentenced them to the period already
undergone for the offence under Section 304 Part-II/ Section
34 IPC by observing thus:
“27. We do find substance in what being submitted
by the learned counsel for the appellant and in the
first place, it is to be noted that the trial Court, while
awarding sentence to the appellant has not made any
analysis of the relevant facts as can be discerned from
the judgment (page 96−97 of the paper book) dated
12th January, 1998. Even the High Court has not
considered the issue of quantum of sentence. From
the factual position which emerge from the record, it
is to be noticed that they were young boys having no
previous enmity and were collectively sitting and
watching Jagjit Singh night. On some comments
made to the girls sitting in front of the deceased,
some altercation took place and they entered into a
scuffle and without any pre−meditation, the alleged
unfortunate incident took place between two group of
young boys and it is informed to this Court that the
appellant has served the sentence of more than three
years and five months. Taking into consideration in
totality that the incident is of June 1995 and no other
criminal antecedents has been brought to our notice,
and taking overall view of the matter, we find force
in the submission of the appellant that the quantum of
sentence is excessive and deserves to be interfered
by this Court.”
18. In the case of Deepak v. State of Uttar Pradesh reported in
(2018) 8 SCC 228 it came to be noticed by this Court that
incident had taken place in the heat of the moment and the assault
was by a single sword blow in the rib cage was without any
premeditation and incident had occurred at the spur of the
moment, and thus inferred there was no intention to kill and as
such the offence was converted from Section 302 IPC to Section
304 Part II IPC and the appellant was ordered to be released
forthwith by sentencing them to the period of conviction already
undergone. It was held:
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
8 CRA-5477-2017
“7. On consideration of the entirety of the evidence,
it can safely be concluded that the occurrence took
place in the heat of the moment and the assault was
made without premeditation on the spur of time. The
fact that the appellant may have rushed to his house
across the road and re- turned with a sword, is not
sufficient to in- fer an intention to kill, both because
of the genesis of the occurrence and the single as-
sault by the appellant, coupled with the du- ration of
the entire episode for 1½ to 2 min- utes. Had there
been any intention to do away with the life of the
deceased, nothing prevented the appellant from
making a second assault to ensure his death, rather
than to have run away. The intention ap- pears more
to have been to teach a lesson by the venting of ire by
an irked neighbour, due to loud playing of the tape
recorder. But in the nature of weapon used, the as-
sault made in the rib-cage area, knowledge that death
was likely to ensue will have to be attributed to the
appellant.
8. In the entirety of the evidence, the facts and
circumstances of the case, we are unable to sustain
the conviction of the ap-pellant under Section
302 IPC and are satis- fied that it deserves to be
altered to Sec- tion 304 Part II IPC. It is ordered
accord- ingly. Considering the period of custody un-
dergone after his conviction, we alter the sentence to
the period of custody already undergone. The
appellant may be released forthwith if not required in
any other case.
9. The appeal is therefore allowed in part with the
aforesaid modification of the con- viction and
sentence.”
19. This Court in a recent judgement in the case of Anbazhagan
vs. The State represented by the Inspector of Police in Criminal
Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined
the context of the true test to be adopted to find out the intention
or knowledge of the accused in doing the act as under:
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
9 CRA-5477-2017
“60. Few important principles of law discernible
from the aforesaid discussion may be summed up
thus:
(1) When the court is confronted with the question,
what offence the accused could be said to have
committed, the true test is to find out the intention or
knowledge of the accused in doing the act. If the
intention or knowledge was such as is described in
Clauses (1) to (4) of Section 300 of the IPC, the act
will be murder even though only a single injury was
caused. To illustrate: ‘A’ is bound hand and foot. ‘B’
comes and placing his revolver against the head of
‘A’, shoots ‘A’ in his head killing him
instantaneously. Here, there will be no difficulty in
holding that the intention of ‘B’ in shooting ‘A’ was
to kill him, though only single injury was caused.
The case would, therefore, be of murder falling
within Clause (1) of Section 300 of the IPC. Taking
another instance, ‘B’ sneaks into the bed room of his
enemy ‘A’ while the latter is asleep on his bed.
Taking aim at the left chest of ‘A’, ‘B’ forcibly
plunges a sword in the left chest of ‘A’ and runs
away. ‘A’ dies shortly thereafter. The injury to ‘A’
was found to be sufficient in ordinary course of
nature to cause death. There may be no difficulty in
holding that ‘B’ intentionally inflicted the particular
injury found to be caused and that the said injury was
objectively sufficient in the ordinary course of nature
to cause death. This would bring the act of ‘B’ within
Clause (3) of Section 300 of the IPC and render him
guilty of the offence of murder although only single
injury was caused.
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section
300 of the IPC, the act of the accused which would
otherwise be murder, will be taken out of the purview
of murder, if the accused’s case attracts any one of
the five exceptions enumerated in that section. In the
event of the case falling within any of those
exceptions, the offence would be culpable homicide
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
10 CRA-5477-2017
not amounting to murder, falling within Part 1
of Section 304 of the IPC, if the case of the accused
is such as to fall within Clauses (1) to (3) of Section
300 of the IPC. It would be offence under Part II of
Section 304 if the case is such as to fall within
Clause (4) of Section 300 of the IPC. Again, the
intention or knowledge of the accused may be such
that only 2nd or 3rd part of Section 299 of the IPC,
may be attracted but not any of the clauses of Section
300 of the IPC. In that situation also, the offence
would be culpable homicide not amounting to
murder under Section 304 of the IPC. It would be an
offence under Part I of that section, if the case fall
within 2nd part of Section 299, while it would be an
offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused
person falls within the first two clauses of cases of
culpable homicide as described in Section 299 of the
IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is
punishable under the second part of Section 304. In
effect, therefore, the first part of this section would
apply when there is ‘guilty intention,’ whereas the
second part would apply when there is no such
intention, but there is ‘guilty knowledge’.
(4) Even if single injury is inflicted, if that particular
injury was intended, and objectively that injury was
sufficient in the ordinary course of nature to cause
death, the requirements of Clause 3rdly to Section
300 of the IPC, are fulfilled and the offence would be
murder.
(5) Section 304 of the IPC will apply to the
following classes of cases : (i) when the case falls
under one or the other of the clauses of Section 300,
but it is covered by one of the exceptions to that
Section, (ii) when the injury caused is not of the
higher degree of likelihood which is covered by the
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
11 CRA-5477-2017
expression ‘sufficient in the ordinary course of nature
to cause death’ but is of a lower degree of likelihood
which is generally spoken of as an injury ‘likely to
cause death’ and the case does not fall under Clause
(2) of Section 300 of the IPC, (iii) when the act is
done with the knowledge that death is likely to ensue
but without intention to cause death or an injury
likely to cause death.
To put it more succinctly, the difference between the
two parts of Section 304 of the IPC is that under the
first part, the crime of murder is first established and
the accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under
the second part, the crime of murder is never
established at all. Therefore, for the purpose of
holding an accused guilty of the offence punishable
under the second part of Section 304 of the IPC, the
accused need not bring his case within one of the
exceptions to Section 300 of the IPC. (6) The word
‘likely’ means probably and it is distinguished from
more ‘possibly’. When chances of happening are
even or greater than its not happening, we may say
that the thing will ‘probably happen’. In reaching the
conclusion, the court has to place itself in the
situation of the accused and then judge whether the
accused had the knowledge that by the act he was
likely to cause death.
(7) The distinction between culpable homicide
(Section 299 of the IPC) and murder ( Section 300 of
the IPC) has always to be carefully borne in mind
while dealing with a charge under Section 302 of the
IPC. Under the category of unlawful homicides, both,
the cases of culpable homicide amounting to murder
and those not amounting to murder would fall.
Culpable homicide is not murder when the case is
brought within the five exceptions to Section 300 of
the IPC. But, even though none of the said five
exceptions are pleaded or prima facie established on
the evidence on record, the prosecution must still be
required under the law to bring the case under any of
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
12 CRA-5477-2017
the four clauses of Section 300 of the IPC to sustain
the charge of murder. If the prosecution fails to
discharge this onus in establishing any one of the
four clauses of Section 300 of the IPC, namely, 1stly
to 4thly, the charge of murder would not be made out
and the case may be one of culpable homicide not
amounting to murder as described under Section
299 of the IPC.
(8) The court must address itself to the question of
mens rea. If Clause thirdly of Section 300 is to be
applied, the assailant must intend the particular injury
inflicted on the deceased. This ingredient could
rarely be proved by direct evidence. Inevitably, it is a
matter of inference to be drawn from the proved
circumstances of the case. The court must necessarily
have regard to the nature of the weapon used, part of
the body injured, extent of the injury, degree of force
used in causing the injury, the manner of attack, the
circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that
makes a culpable homicide a murder. The intention
to cause injury or injuries sufficient in the ordinary
cause of nature to cause death also makes a culpable
homicide a murder if death has actually been caused
and intention to cause such injury or injuries is to be
inferred from the act or acts resulting in the injury or
injuries.
(10) When single injury inflicted by the accused
results in the death of the victim, no inference, as a
general principle, can be drawn that the accused did
not have the intention to cause the death or that
particular injury which resulted in the death of the
victim. Whether an accused had the required guilty
intention or not, is a question of fact which has to be
determined on the facts of each case.
(11) Where the prosecution proves that the accused
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
13 CRA-5477-2017
had the intention to cause death of any person or to
cause bodily injury to him and the intended injury is
sufficient in the ordinary course of nature to cause
death, then, even if he inflicts a single injury which
results in the death of the victim, the offence squarely
falls under Clause thirdly of Section 300 of the IPC
unless one of the exceptions applies.
(12) In determining the question, whether an accused
had guilty intention or guilty knowledge in a case
where only a single injury is inflicted by him and
that injury is sufficient in the ordinary course of
nature to cause death, the fact that the act is done
without premeditation in a sudden fight or quarrel, or
that the circumstances justify that the injury was
accidental or unintentional, or that he only intended a
simple injury, would lead to the inference of guilty
knowledge, and the offence would be one under
Section 304 Part II of the IPC.”
13. In the facts of the case on hand, it is discernible that there was no
pre-meditation to cause death or the genesis of occurrance and looking to the
nature of weapon used to assault the deceased and the number of assaults the
offence can be brought clearly within the ambit of section 304 Part-II of the
IPC.
14. Accordingly, we are of the considered view that the present
appeal deserves to be allowed in part. Accordingly, the appeal is allowed in
part and the conviction of the appellants under section 302 is altered /
converted to one under section 304 Part-II of the IPC.
15. Appellant No.1 Bhawarsingh s/o Budhiya has already suffered
jail sentence of about 7 years and 7 and half months (from 13.11.2011 to
08.06.2012 and from 26.09.2017 to 18.10.2024) and appellant No.2 Budhiya
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
NEUTRAL CITATION NO. 2025:MPHC-IND:10227
14 CRA-5477-2017
s/o Mansingh has suffered jail sentence of about 8 years and 1 and half
months (from 13.11.2011 to 08.06.2012 and from 26.09.2017 to till date).
The above jail sentence is sufficient and sentence of the appellants under
section 304 Part-II of the IPC is converted from life imprisonment to the
period already undergone.
16. Appellant No.1 Bhawarsingh is on bail and his bail bonds shall
stand discharged and appellant No.2 Budhiya be released forthwith, if not
required in any other case.
17. A copy of this judgment be sent to the trial court for compliance.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 4/21/2025
10:15:50 AM
[ad_1]
Source link