Prakash Meshram Vs State of Chhattisgarh

1. Heard Mr. Aditya Khare, learned counsel for the appellant as well as Mr. Soumya Rai, learned Deputy Government Advocate, appearing for the State/respondent.

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2. Today, though the criminal appeal has been listed for hearing on I.A. No.01, application for suspension of sentence and grant of

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bail to the appellant, however, with the consent of learned counsel for the parties, the appeal is heard finally as the appellant is in jail since 23.05.2022.

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3. Accordingly, I.A. No.01, application for suspension of sentence and grant of bail to the appellant, stands disposed of.

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4. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 31.10.2023 passed by the learned Second Additional Sessions Judge, Katghora, District Korba (C.G.) in Sessions Trial No.50/2022, by which the appellant has been convicted for the offence punishable under Sections 302 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo imprisonment for life and fine of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for one month.

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5. The prosecution case, in brief, is that on 22.05.2022, an information was lodged at Police Station Gaurela by the informant regarding the death of deceased Itwar Singh Gond , who had sustained a head injury and succumbed to the same at District Hospital, Gaurela-Pendra-Marwahi. On the basis of the said information, merg intimation (Ex. P/20) was registered and the police initiated inquest proceedings. During the course of investigation, the Investigating Officer prepared the inquest

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report/panchayatnama (Ex. P/22) in the presence of witnesses after summoning panch witnesses under Section 175 Cr.P.C. (Ex. P/21). The dead body of the deceased was sent for postmortem examination vide application (Ex. P/23), and the postmortem report (Ex. P/15 and short PM report Ex. P/27) revealed that the death was homicidal in nature caused by head injury.

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6. Since the incident fell within the jurisdiction of the concerned police station, merg inquiry was converted into a regular criminal case, and FIR (Ex. P/24) was registered against the accused for offence punishable under Section 302 IPC. During investigation, the spot map (Ex. P/09) was prepared based on the statements of witnesses, and a detailed map was also obtained through the Patwari (Ex. P/30). From the place of occurrence, blood-stained soil and plain soil were seized vide seizure memo (Ex. P/02 & P/03) in presence of witnesses. The accused was taken into custody and his memorandum statement (Ex. P/01) was recorded under Section 27 of the Evidence Act, wherein he disclosed that he had committed the murder of the deceased and had concealed the weapon of offence and the clothes worn at the time of incident. Pursuant to the said memorandum, a wooden stick (weapon of offence) and a blue T-shirt were recovered at the instance of the accused vide seizure memo (Ex. P/02 & P/03). The seized articles were sent for medical examination and chemical analysis. The medical examination of the seized stick and clothes was conducted vide Ex. P/17 and Ex. P/18. The

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articles were further sent to the Forensic Science Laboratory, Bilaspur, vide Ex. P/31, and the FSL report (Ex. P/33) was obtained. The prosecution also collected medical documents relating to treatment of the deceased including indoor slip (Ex. P/11), discharge/referral slip (Ex. P/12), OPD slip (Ex. P/13), and intimation of death (Ex. P/14). The accused was arrested (Ex. P/04 and Ex. P/25), and after recording statements of witnesses under Section 161 Cr.P.C. (Ex. P/06 to P/10, P/19), and completing all formalities, a charge-sheet was filed before the competent Court.

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7. During trial, the prosecution examined as many as 12 witnesses including eyewitnesses and seizure witnesses, namely PW-1 Sukhamat Bai, PW-2 Rameshwar and PW-9 Mangal Singh as well as exhibited 33 documents vide Ex.P/1 to Ex.P/33. In order to defence, appellant/accused neither examined any witness nor exhibited any document.

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8. After completion of investigation, charge-sheet was filed against the accused before the jurisdictional criminal Court for the offence punishable under Section 302 of IPC. Since the offence under Section 302 IPC is triable exclusively by the Court of Sessions, the learned Judicial Magistrate First Class, Katghora committed the case to the Court of Sessions, Korba, from where it was received for trial to the Court of Second Additional Sessions Judge, Katghora, District Korba for disposal.

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9. The charge under Section 302 of IPC was framed against the accused, which was read over and explained to him. The accused denied the charge and pleaded innocence. The statement of the accused under Section 313 of the Cr.P.C. was recorded, wherein he claimed himself to be innocent and alleged false implication. The accused did not adduce any defence evidence.

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10. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 31.10.2023 convicted the accused-appellant for the offence punishable under Section 302 of the IPC and sentenced him as mentioned in the fourth paragraph of this judgment. Hence, this criminal appeal has been filed.

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11. Mr. Aditya Khare, learned counsel for the appellant, submits that the prosecution story, even if taken at its face value, is based entirely on a chain of circumstances which is neither complete nor consistent so as to unerringly point towards the guilt of the appellant. It is contended that the case originates from a merg intimation dated 22.05.2022, wherein information was given regarding the death of deceased Itwar Singh Gond due to a head injury at District Hospital, Gaurela-Pendra-Marwahi. The learned counsel submits that the initial registration of merg (Ex. P/20) itself indicates that the cause of death was not immediately known to be homicidal, and only subsequently, after inquest proceedings (Ex. P/22) and postmortem examination (Ex. P/15 and Ex. P/27),

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the prosecution sought to convert the same into an offence under Section 302 IPC. It is argued that such conversion, without any direct ocular account or immediate incriminating material, casts a serious doubt on the genesis of the prosecution case.

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12. It is further submitted by Mr. Khare that the entire case of the prosecution rests upon circumstantial evidence, however, the essential links in the chain are conspicuously missing. The preparation of the spot map (Ex. P/09) and the Patwari map (Ex. P/30), along with seizure of blood-stained and plain soil (Ex. P/02 & P/03), do not, in any manner, connect the appellant with the alleged crime. There is no credible evidence to establish that the seized articles were linked to the appellant or that the alleged place of occurrence was conclusively proved. The learned counsel emphasizes that the prosecution has failed to establish the exact manner in which the incident occurred or the presence of the appellant at the relevant time.

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13. Mr. Khare further submits that the alleged memorandum statement of the appellant (Ex. P/01) and the consequent recovery of a wooden stick and a blue T-shirt are wholly unreliable and do not inspire confidence. It is contended that the recovery witnesses have not supported the prosecution case in material particulars, and the recovery itself is doubtful. Moreover, the prosecution has failed to establish a clear and cogent link between the seized articles and the crime, inasmuch as the

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medical examination reports (Ex. P/17 and Ex. P/18) and the FSL report (Ex. P/33) do not conclusively connect the alleged weapon or clothes with the commission of the offence. Thus, the alleged discovery under Section 27 of the Evidence Act loses its evidentiary value.

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14. It is also contended by Mr. Khare that although the prosecution has placed reliance on medical documents, including indoor slip (Ex. P/11), discharge/referral slip (Ex. P/12), OPD slip (Ex. P/13), and intimation of death (Ex. P/14), the same merely establish that the deceased had sustained injuries and subsequently died, but they do not, by themselves, implicate the appellant. The prosecution witnesses examined under Section 161 Cr.P.C. (Ex. P/06 to P/10 and P/19) have not provided any direct or reliable evidence against the appellant. In absence of any eyewitness account or strong circumstantial evidence, the learned counsel submits that the prosecution has failed to prove its case beyond reasonable doubt.

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15. Lastly, it is submitted by Mr. Khare that the appellant has been falsely implicated in the present case. The statement of the appellant recorded under Section 313 Cr.P.C. clearly reflects his innocence, and no defence evidence was required in view of the weak prosecution case. It is argued that the learned trial Court has failed to appreciate the evidence in its proper perspective and has erroneously convicted the appellant under Section 302 IPC.

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Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Section 302 IPC can be converted/altered to an offence under Section 304 (Part-I or PartII) IPC. Further, as appellant is in jail since 23.05.2022 and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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16. Per contra, Mr. Soumya Rai, learned State counsel, has supported the impugned judgment of conviction and order of sentence, and submits that the prosecution has successfully proved the offence beyond reasonable doubt by leading cogent, reliable and clinching evidence. He submits that the death of the deceased was homicidal in nature, as duly established by the medical evidence, particularly the postmortem report (Ex. P/15 and Ex. P/27), which clearly indicates that the death was caused due to a fatal head injury. The medical testimony of PW-07 and PW-08 fully corroborates the prosecution case and leaves no room for doubt regarding the cause of death. It is further contended that the chain of circumstantial evidence is complete and consistent, pointing unerringly towards the guilt of the appellant. The learned State counsel submits that the

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memorandum statement of the appellant (Ex. P/01), recorded under Section 27 of the Evidence Act, led to the recovery of the weapon of offence, i.e., a wooden stick, and the clothes worn by the appellant at the time of the incident, vide seizure memo (Ex. P/02 & P/03). The said recovery, made at the instance of the appellant, constitutes a strong incriminating circumstance against him, which has been duly proved by the prosecution witnesses.

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17. Mr. Rai submits that the seized articles were subjected to medical and forensic examination, and the reports (Ex. P/17, Ex. P/18, and FSL report Ex. P/33) lend corroboration to the prosecution case. The presence of blood stains and the nature of injuries are consistent with the use of the seized weapon, thereby establishing a direct nexus between the appellant and the crime. The spot map (Ex. P/09) and other documentary evidence further support the prosecution version regarding the place and manner of occurrence. He also contends that the testimonies of prosecution witnesses, including PW-01 to PW-06 and PW-09 to PW-11, are consistent and inspire confidence. Minor discrepancies, if any, are natural and do not go to the root of the matter. The Investigating Officer (PW-12) has duly proved the steps taken during investigation, and no material contradiction has been elicited in his cross-examination so as to discredit the prosecution case. It is thus submitted that the learned trial Court has rightly appreciated the oral and documentary evidence on record and has correctly arrived at the finding of guilt against the appellant. There is no

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perversity or illegality in the impugned judgment warranting interference by this Court. Accordingly, it is prayed that the appeal, being devoid of merit, deserves to be dismissed.

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18. We have heard learned counsel for the parties at considerable length and have given our thoughtful consideration to the rival submissions advanced hereinabove. We have also carefully and minutely perused the entire record of the case, including the pleadings, documentary evidence, and material brought on record, with utmost circumspection.

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Points for Determination

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Whether the prosecution has proved beyond reasonable doubt that the death of deceased Itwar Singh was homicidal in nature?

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Whether the prosecution has further proved beyond reasonable doubt that the appellant/accused caused the homicidal death of the deceased, and if so, whether the conviction recorded under Section 302 of the IPC warrants interference?

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Answer to Point No.1

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19. This Court has given its anxious and thoughtful consideration to the entire oral as well as documentary evidence available on record, particularly the medical evidence, inquest proceedings, and the testimonies of material prosecution witnesses, for the

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purpose of determining the nature of death of deceased Itwar Singh.

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20. At the outset, it is borne out from the record that on the date of incident, the deceased was found in an injured condition in the courtyard of the accused. PW-03 Laluaa Markam, father of the deceased, has categorically deposed that he saw the deceased lying in an injured state with visible injuries on his head and back, and there was profuse bleeding from his body. His testimony finds full corroboration from PW-04 Premwati, who has also stated that the deceased was in a grievously injured condition and was immediately taken for medical treatment to Gaurela-Pendra Hospital, where he succumbed to the injuries during the course of treatment. Both these witnesses have remained consistent in their version, and nothing material has been elicited in their crossexamination to discredit their testimony.

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21. The medical evidence further strengthens the prosecution case. PW-07 Dr. Simant Rai has deposed that on 20.05.2022, the deceased was brought to the Primary Health Centre, Pasan, in a critical condition with a history of physical assault and head injury. Considering the seriousness of the injuries, he referred the deceased to District Hospital, Gaurela-Pendra, where he was provided necessary treatment, as reflected from indoor admission slips (Ex. P/11 & Ex. P/12). The doctor has further stated that although the deceased was advised to be referred to Bilaspur for

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advanced treatment, the relatives could not take him there, and eventually, on 22.05.2022, the deceased died during treatment. The intimation of death was accordingly sent (Ex. P/14). The testimony of this witness has remained unshaken in crossexamination.

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22. The inquest proceedings were conducted by PW-10 Kuldeep Chaturvedi, who has proved the merg intimation (Ex. P/20), notice to witnesses (Ex. P/21), and inquest report (Ex. P/22). The inquest report clearly records that upon inspection of the dead body, injuries were found on the head near the left ear, where dressing was present, and also on the back portion of the body. The inquest witnesses opined that the injuries appeared to have been caused due to assault, and accordingly recommended postmortem examination to ascertain the exact cause of death. The inquest proceedings have been duly supported by PW-11 Samal Singh, who has affirmed that the inquest was conducted in his presence.

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23. The postmortem examination was conducted by PW-08 Dr. B.S. Paikra, who has proved the postmortem report (Ex. P/15 and Ex. P/27). As per his deposition, on external examination, multiple injuries were found on the body of the deceased, including a lacerated wound near the left ear, contusion on the parietal region of the head measuring approximately 5 × 3 cm, abrasions on the cheek, and multiple injuries marks on the back and chest. On

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internal examination, fracture of the parietal bone and accumulation of blood within the cranial cavity were found, indicating severe head trauma. The doctor has categorically opined that the injuries were ante-mortem in nature and that the death occurred due to coma resulting from head injuries. He has further opined that the nature of death was homicidal and that the death occurred approximately 20–21 hours prior to the postmortem examination. Importantly, no contradiction or inconsistency has been brought out in the cross-examination of this witness so as to discredit his expert opinion.

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24. From the cumulative appreciation of the testimonies of PW-03 Laluaa Markam, PW-04 Premwati, PW-07 Dr. Simant Rai, PW-08 Dr. B.S. Paikra, along with the documentary evidence including inquest report (Ex. P/22), medical documents (Ex. P/11 to Ex. P/14), and postmortem report (Ex. P/15 & Ex. P/27), it stands clearly established that the deceased had sustained multiple grievous injuries, particularly on the head, which were sufficient in the ordinary course of nature to cause death.

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25. The nature, number, and location of injuries, especially the fracture of the skull and internal bleeding in the brain, clearly rule out any possibility of accidental or natural death. The medical evidence is consistent, cogent, and trustworthy, and fully corroborates the version of the prosecution witnesses regarding the deceased having been subjected to a violent assault.

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26. In view of the aforesaid evidence, this Court is of the considered opinion that the prosecution has successfully established that the death of Itwar Singh was homicidal in nature.

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27. Accordingly, Point No. 1 is answered in the affirmative.

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Answer to Point No.2

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28. In the present case, upon a comprehensive re-appreciation of the entire evidence on record, this Court finds that the prosecution case is founded primarily on circumstantial evidence, which is sought to be established through a combination of oral testimony, documentary evidence, medical opinion and scientific examination. In such cases, it is trite that each circumstance must be firmly proved and the chain of circumstances must be so complete as to exclude every hypothesis consistent with the innocence of the accused. It is, therefore, necessary to examine each incriminating circumstance in detail.

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29. Accordingly, this Court proceeds to evaluate the evidence and circumstances relied upon by the prosecution.

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(A) Place of Occurrence and Discovery of Injured Body

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30. The prosecution has proved the spot map (Ex.P/5) and the Patwari map (Ex.P/9), both of which consistently depict the place of occurrence as the courtyard (angan/badi) of the appellant. These maps clearly show that the said place is an open space attached to the residential premises of the appellant and situated

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adjacent to a village pathway.

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31. Significantly, both documents record that the injured and bloodstained body of the deceased was found lying at the said spot. The description in Ex.P/5 further clarifies that the place is under the possession and control of the appellant. Despite detailed cross-examination, no material contradiction or discrepancy has been brought on record so as to create any doubt regarding the place of occurrence.

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32. The defence has not been able to probabilize that the said place was accessible to the general public in such a manner as to dilute the exclusive nexus of the appellant with the spot. Thus, it stands firmly established that the deceased was found in a grievously injured condition within the courtyard of the appellant, which is a highly incriminating circumstance.

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(B) Evidence of PW-03 Lalluram Markam

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33. PW-03 Lalluram Markam, who is a material witness, has deposed that on the night of the incident, at about 10:00–11:00 PM, the appellant had called the deceased to his house. This part of the testimony remains consistent and has not been shaken in crossexamination.

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34. Though the witness has admitted in cross-examination that he reached the spot on the following morning, such admission does not dilute the evidentiary value of his statement regarding the appellant having called the deceased. This fact finds

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corroboration from his earlier statement recorded during investigation (Ex.P/8), thereby lending assurance to his testimony.

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35. The presence of the deceased in the house/angan of the appellant pursuant to such call constitutes a crucial link in the chain of circumstances and establishes the “last seen” circumstance.

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(C) Evidence of PW-04 Premvati

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36. PW-04 Premvati has also supported the prosecution case by deposing that the deceased resided in proximity to the appellant and had gone towards his house on the date of the incident. She has further stated that the deceased was found lying in an injured condition in the courtyard of the appellant.

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37. It has been elicited in her cross-examination that certain details were not stated before the police, including the fact relating to the deceased being found on a cot. However, such omissions are not material in nature and do not affect the substratum of the prosecution case.

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38. Her testimony that the police were informed and that the deceased was taken to the hospital through ambulance remains unchallenged. The defence has failed to impeach her credibility on any substantial ground. Thus, her evidence corroborates the presence of the deceased in the appellant’s premises and the immediate aftermath of the incident.

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(D) Effect of Minor Contradictions and Omissions

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39. The so-called omissions brought out in the cross-examination of PW-03 and PW-04 pertain only to peripheral aspects and do not go to the root of the matter. It is well settled that minor discrepancies are bound to occur due to normal errors of observation, memory and narration.

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40. In the present case, the core facts, namely, that the appellant had called the deceased and that the deceased was found grievously injured in the appellant’s courtyard, remain intact and unshaken. Therefore, no adverse inference can be drawn on account of such minor inconsistencies.

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(E) Hostile Witnesses – PW-01, PW-02 and PW-09

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41. The prosecution has examined PW-01, PW-02 and PW-09 as witnesses to the memorandum and seizure proceedings. These witnesses, however, have not supported the prosecution case and have been declared hostile. It is a settled principle of law that the testimony of a hostile witness cannot be discarded in toto and can be relied upon to the extent it is found to be credible. In the present case, although these witnesses have denied the seizure and memorandum proceedings, they have not been able to furnish any plausible explanation for their departure from their earlier statements.

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42. More importantly, the testimony of the Investigating Officer (PW12) remains consistent and cogent. He has clearly deposed

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regarding the recording of memorandum statement (Ex.P/1) and the recovery of incriminating articles vide seizure memo (Ex.P/2). Nothing substantial has been elicited in his cross-examination to discredit his version.

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43. There is no suggestion of any enmity or motive on the part of the Investigating Officer to falsely implicate the appellant. In such circumstances, the official testimony of the Investigating Officer inspires confidence and can safely be relied upon.

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(F) Recovery of Weapon and Clothes

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44. The Investigating Officer (PW-12) has proved that on 23.05.2022, the appellant made a disclosure statement (Ex.P/1) under Section 27 of the Evidence Act, pursuant to which a wooden stick used in the commission of the offence and the blood-stained clothes of the appellant were recovered vide seizure memo (Ex.P/2).

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45. The recovery has been effected at the instance of the appellant and is, therefore, admissible and constitutes a strong incriminating circumstance. The defence has failed to create any dent in this recovery during cross-examination.

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(G) Medical Opinion and Forensic Evidence

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46. The seized articles were sent for medical opinion and chemical examination. PW-08, the medical expert, has opined that the injuries sustained by the deceased could be caused by the seized wooden stick. This opinion directly connects the weapon with the

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injuries. Further, the FSL report (Ex.P/33) confirms that human blood was found on the seized wooden stick as well as on the clothes of the appellant. This scientific evidence lends strong corroboration to the prosecution case.

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47. Significantly, the appellant has not offered any explanation as to how human blood came to be present on the seized articles. In absence of any explanation, this circumstance assumes great probative value and forms a vital link in the chain of evidence.

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(H) Last Seen Theory and Section 106 Evidence Act

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48. The prosecution has successfully established that the deceased was last seen alive in the company of the appellant, having been called by him to his house, and thereafter his injured body was found in the appellant’s courtyard. Once such a circumstance is proved, the burden shifts upon the appellant under Section 106 of the Evidence Act to explain the facts which are especially within his knowledge, namely, as to how the deceased sustained injuries within his premises. The appellant has failed to discharge this burden. No explanation whatsoever has been offered either during cross-examination of witnesses or in his statement under Section 313 Cr.P.C. This failure provides an additional link in the chain of circumstances.

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(I) Conduct of the Appellant

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49. The conduct of the appellant also assumes significance. The evidence on record indicates that after the incident, the appellant

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did not take any steps to provide medical assistance to the deceased nor did he inform the authorities. His silence and inaction, coupled with his failure to explain the incriminating circumstances, are indicative of a guilty mind and further strengthen the prosecution case.

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(J) Completion of Chain of Circumstances

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50. From the cumulative analysis of the evidence on record, the following circumstances stand firmly established:

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The deceased sustained homicidal injuries;

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The appellant had called the deceased to his house;

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The deceased was last seen alive in the company of the appellant;

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The injured body of the deceased was found in the courtyard of the appellant;

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Recovery of the blood-stained wooden stick and clothes at the instance of the appellant;

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Medical evidence establishing that the injuries could be caused by the seized weapon;

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FSL report confirming presence of human blood on the seized articles;

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Failure of the appellant to explain the incriminating circumstances.

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51. The aforesaid circumstances are of a conclusive nature and form a complete and unbroken chain, which is consistent only with the

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hypothesis of the guilt of the appellant. They exclude every possible hypothesis consistent with innocence.

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52. In view of the foregoing discussion, this Court holds that in all human probability, it was the appellant who caused fatal injuries to the deceased, leading to his death.

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53. Accordingly, Point No. 2 is answered in the affirmative.

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54. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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55. While dealing with The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. 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:-

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“60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:

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(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

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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.

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(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

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case falling within any of those exceptions, the offence would be culpable homicide 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.

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(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’.

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(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that

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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.

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(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 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.

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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.

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(6) The word ‘likely’ means probably and it is

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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.

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(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 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.

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(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to

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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.

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(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.

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(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.

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(11) Where the prosecution proves that the accused 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

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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.

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(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.”

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56. The prosecution case in the present matter rests predominantly on circumstantial evidence, duly supported by medical and scientific corroboration. The evidence on record establishes that on 22.05.2022, the deceased Itwar Singh Gond sustained a fatal head injury and succumbed to the same during treatment at District Hospital, Gaurela-Pendra-Marwahi. The merg intimation (Ex. P/20) was promptly recorded, followed by inquest proceedings (Ex. P/22), which noted the injuries on the person of the deceased. The postmortem report (Ex. P/15 and Ex. P/27) unequivocally opines that the death was homicidal in nature and caused due to a head injury, thereby establishing the foundational fact of homicidal death.

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57. During the course of investigation, the appellant was taken into custody and his memorandum statement (Ex. P/01) was recorded under Section 27 of the Evidence Act, wherein he disclosed his involvement in the incident and the concealment of the weapon of offence and the clothes worn at the time of the occurrence. Pursuant thereto, a wooden stick and a blue T-shirt were recovered at his instance vide seizure memos (Ex. P/02 and Ex. P/03). The recovery has been duly proved by the prosecution witnesses and the Investigating Officer, and constitutes a significant incriminating circumstance against the appellant.

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58. The seized articles were subjected to medical and forensic examination. The medical reports (Ex. P/17 and Ex. P/18) and the FSL report (Ex. P/33) confirm the presence of blood on the seized articles. The appellant has failed to offer any plausible explanation regarding the presence of blood on the weapon of offence and his clothes, thereby strengthening the chain of circumstances pointing towards his guilt. Further, the seizure of blood-stained soil from the place of occurrence and preparation of the spot map (Ex. P/09) and Patwari map (Ex. P/30) lend corroboration to the prosecution version regarding the situs of the incident.

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59. The medical evidence assumes great significance in the present case. The postmortem report clearly reveals that the deceased sustained a serious head injury, which was sufficient in the ordinary course of nature to cause death. The nature and extent

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of injury are consistent with the use of a hard and blunt object like a wooden stick, which was recovered at the instance of the appellant. Thus, the medical evidence fully supports and corroborates the prosecution case.

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60. The cumulative effect of the circumstances established on record, namely the homicidal death, recovery of the weapon and bloodstained clothes at the instance of the appellant, corroborative medical and forensic evidence, and absence of any explanation from the appellant, forms a complete chain pointing unerringly towards the guilt of the appellant. The defence has failed to create any reasonable doubt or to probabilize any alternative hypothesis consistent with innocence.

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61. However, upon careful consideration of the entire factual matrix, this Court finds that the incident appears to have occurred in the course of a sudden altercation. There is no material on record to indicate any prior enmity or premeditation on the part of the appellant. The evidence suggests that the assault was not repeated and was limited in nature. The use of a wooden stick available at the spot and the infliction of a single fatal blow indicate absence of any calculated or pre-planned intention to commit murder.

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62. In such circumstances, though the appellant can safely be attributed with the knowledge that inflicting a blow on the head is likely to cause death, the prosecution has not been able to

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establish beyond reasonable doubt that the appellant intended to cause death or such bodily injury as was sufficient in the ordinary course of nature to cause death. The case, therefore, falls within Exception 4 to Section 300 IPC, being an act committed without premeditation in a sudden fight in the heat of passion.

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63. Consequently, this Court is of the considered view that the conviction of the appellant under Section 302 IPC is not sustainable in the facts of the present case. While the authorship of the injury by the appellant stands proved, the nature of the offence would fall within the ambit of culpable homicide not amounting to murder.

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64. Accordingly, while affirming the finding that the appellant caused the fatal injury resulting in the death of deceased Itwar Singh Gond, the conviction under Section 302 IPC is set aside and is altered to one under Section 304 Part-I IPC.

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65. Resultantly, the conviction of the accused under Section 302 IPC is set aside and he is convicted under Section 304 Part-I IPC. Considering the gravity of the offence, the manner of its commission, and all attending circumstances, the accused is sentenced to undergo rigorous imprisonment for a term of 10 years. The fine imposed by the trial Court shall remain intact. The appellant is stated to be in jail since 23.05.2022 being the date of arrest. He is directed to serve out the sentence as modified above.

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66. The criminal appeal is allowed in part to the extent indicated hereinabove.

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67. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial Court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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68. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Anu

Prakash Meshram v. State of Chhattisgarh

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Prakash Meshram v. State of Chhattisgarh

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