REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 323 OF 2007

Onkar Lal     … APPELLANT

Versus

State of M.P.              … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. This  appeal  by  special  leave  has  been  preferred  by  the  appellant

questioning the correctness  of  a Judgment and Order dated 26th October,

2006 passed by a Division Bench of the High Court of Madhya Pradesh,

Indore  Bench,  Indore  in  Criminal  Appeal  No.  12  of  2002  affirming  a

judgment of conviction and sentence dated 27th November, 2001 passed by

the Additional Sessions Judge, Jhabua, in Sessions Trial Case No. 131 of

2001 convicting him for commission of an offence under Section 302 of the

Indian Penal Code and sentencing him to undergo rigorous imprisonment

for life as also pay fine of Rs.10,000/- and in default to undergo rigorous

imprisonment for one year.   

2. The deceased Ramchandra  Patidar  is  related to  the appellant.   The

deceased  was  playing  cards  on  the  platform  of  the  shop  belonging  to

Mahesh Kumar Makwana at about 9:15 p.m. on 10th March, 2001 with him

and others.  Electricity in the locality had gone off.  A lamp was lit.   

Appellant  allegedly  arrived  at  the  said  Village  Raipuriya,  Tehsil

Petlavad in the District of Jhabua with a sword in his hand. He dealt blows

on the deceased.  Ramchandra sustained serious injuries on his face, head

and  other  parts  of  the  body.   He  fell  down  on  the  ground  whereafter

appellant  ran  away.   He was  later  on  shifted  to  Primary Health  Center,

Raipuriya  and  from there  to  a  hospital  at  Petlawad.   He was  eventually

shifted and treated in Indore M.Y. Hospital where he breathed his last.  The

said  village  lies  within  the  jurisdiction  of  Sanyogitaganj,  Indore  Police

Station.   

3. A First Information Report was lodged by Mahesh Kumar Makwana

at about 10 p.m. on the same day.   

4. The homicidal nature of death of Ramchandra is not in dispute.   

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5. From the statement of Dr. N.M. Unda (PW-20),  it  appears that  the

deceased  suffered  two  contusions  and  two  incised  injuries  as  well  as

fracture of right wrist.  The incised injury found on occipital region proved

to be fatal.   

In the first  information report a vivid description of the occurrence

has been given.  The names of Durgesh alias Bablu (PW-10), Babulal (PW-

11), Santhosh Panwar (PW-1) and Ashok Kumar (PW-16) were mentioned

who had been playing  cards  along with  the informant  and the  deceased.

Names of  Dayaram (PW-2),  Sunderlal  (PW-3) and Vasudev (PW-8) also

found place in the said report as the persons who had been watching the

game.  Presence of a lamp at the place of occurrence was also mentioned.  It

was  furthermore  stated  that  Ramchandra  was  taken  on  a  handcart to  a

hospital at Raipuriya by Amrit Lal and Shanti Lal etc. and later on taken to

Petlavad hospital by a jeep.

6. The prosecution, in support of its case, examined a large number of

witnesses  including  Durgesh  alias  Bablu  (PW-10),  Babulal  (PW-11),

Mahesh  Kumar  (PW-4),  Santosh  Panwar  (PW-1),  Vasudev  (PW-8),

Dayaram (PW-2) and Sunderlal (PW-3).   

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7. Both the courts below relied on the evidence of the eye witnesses.

Dayaram (PW-2), Sundarlal (PW-3), Vasudev (PW-8) and Babulal (PW-11)

were, however, declared hostile.

8. The learned Trial Judge relying on the evidence of Mahesh Kumar

(PW-4), first informant, Gendalal (PW-6), Amritlal (PW-7), Durgesh (PW-

10)  and  Ashok  Kumar  (PW-16)  found  the  appellant  guilty  of  the

commission of said offence.  

9. Before us, Mr. Kunal Verma, learned counsel appearing on behalf of

the appellant, would contend :

(i) Amritlal (PW-7) and Gendalal (PW-6) having not been named in

the  First  Information  Report,  their  testimonies  should  not  have

been relied upon by the courts below.

(ii) As there was no electricity at the relevant time, it was obligatory

on the part of the investigating officer to seize the lamp and the

same  having  not  been  done,  the  Prosecution  case  has  been

rendered  doubtful  insofar  as  identification  of  the  appellant  is

concerned.   

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(iii) Amritlal (PW-7) and Gendalal (PW-6) cannot be said to be eye-

witnesses  to  the  occurrence  as  they  were  standing  at  some

distance.

(iv) Gendalal (PW-6) in his evidence having admitted that he was not

near the spot, Amrit Lal with whom he was talking could not also

be an eye-witness to the occurrence.

(v) Moreover, the prosecution, having, failed to establish any motive

on  the  part  the  appellant,  the  impugned  judgment  cannot  be

sustained.   

(vi) The weapon of offence having been seized from the house of the

appellant  which  contained  no  blood  stains  although  the  same

according  to  one  of  the  prosecution  witnesses  was  left  by  the

appellant at the spot, the entire prosecution case has been rendered

doubtful.   

(vii) In any event, keeping in view the peculiar facts and circumstances

of this case only an offence under Section 304 Part II of the Indian

Penal Code is made out and not a case under Section 302 thereof.  

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11. Mr. R.P.  Gupta,  learned senior  counsel  appearing on behalf  of the

respondent, on the other hand, supported the impugned judgment.   

12. At the outset we must place on record that the prosecution has failed

to prove any motive on the part of the appellant to commit the said offence.   

It must however be borne in mind that the prosecution case is found

to  have  been  proved  by  several  eye-witnesses  who  admittedly  have  no

animosity towards the appellant.   Indisputably, the appellant was closely

related to the deceased being his uncle (mausa).  They were residents of the

same village.   Both were known to the villagers for a long time.  It was a

moonlit night.  Cards were being played which could not have been done

unless there was sufficient light.   

13. The deceased had suffered as many as six injuries.  The learned Trial

Judge in its judgment noticed:

“The abovesaid Doctor did not reveal such opinion in blind but he found the first injury a contusion abrasion  on  the  right  hand  shoulder  joint  in  the area of 3 cms x 2 cms and abrasion mark in the area of 2 cms x 1 cms and injury No. 2 towards the right eye, Injury No. 3 lacerated wound on the part of  the  palm where  the  fingers  connect  with  the palm measuring 2.1 cms. x 0.7 cms and 1 cm x 0.5 cm, and Injury No. 4 fracture in the right ankle and fifth injury lacerated wound on occipital part and below the  occipital  part  measuring  7  cms  x  1.5

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cms.  On the  full  scale  surface  deep,  corners  of which were regular, hair of the head been cleaned. Besides the above-said injuries, other injuries had also been found during the postmortem of the dead body of the deceased Ram chandra.”

14. On being arrested the appellant made a confession leading to recovery

of a sword.  The High Court in view of the fact that no blood stain was

found on the sword and in the manner in which the same was recovered did

not place any reliance thereupon.

15. Presence of the lamp at the place of occurrence has been disclosed by

several  prosecution  witnesses.   Although  there  appears  to  be  some

contradictions as to who had brought it or who had lit it, the same, in our

opinion, is not of much significance.

16. Although  the  police  station  and  the  Primary  Health  Center  are

situated  in  the  same village  but  the  fact  remains  that  after  the  assault  a

handcart  had  to  be  arranged  to  take  the  deceased  to  the  Primary Health

Centre wherein he must have been given some first aid and thereafter upon

arranging a jeep he could be sent to another hospital, there cannot be any

doubt whatsoever that some time must have been consumed in the process.

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PW-4 Mahesh Kumar lodged the First Information Report.  We have

noticed hereinbefore that the occurrence took place at about 9:15 p.m. and

the First Information Report was lodged at about 10.00 pm, i.e., within a

reasonable time.

17. The very fact  that  the First  Information  Report  was  lodged almost

immediately after the occurrence had taken place by a person who had no

enmity/animosity  with  the  appellant  clearly  shows  that  he  had  not  been

falsely implicated.

Gendalal and Amritlal who although were standing at some distance

must have seen at least a part of the occurrence.  They might not have been

named in the First Information Report but indisputably they were examined

by the investigating officer on 11-03-2001.  According to Gendalal, he was

standing at a distance of 20-25 feet from the place of occurrence.  He and

Amritlal  being  the  residents  of  same village  and  furthermore  it  being  a

moonlit  night,  there was no reason as to why they would not  be able to

identify the assailant.

18. With the aforementioned backdrop, we may notice the deposition of

the  informant.   According  to  him when  the  supply  of  electricity  failed,

Mahesh Kumar brought the lamp which was lying on the table.  He being

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the owner of the shop, his presence at the place of occurrence cannot be

doubted.  He evidently was one of those who had been playing cards with

the deceased and others.  He denied that the incident took place when the

supply  of  electricity  failed.   He  categorically  stated  that  the  lamp  was

brought and lit.

19. PW-6 is Gendalal, who in his deposition categorically stated that he

had been standing at a distance of 20-25 feet from the place of occurrence.

According to Amritlal, the distance between the shop of Mahesh Makwana

and the place where they were standing was only 8-10 ft.; only one house

being in between.  He immediately reached the place of occurrence hearing

cries.  Similar is the statement of Amritlal who examined himself as PW-7.

According to this witness, as soon as they heard the noise, he and Gendalal

ran towards the spot and found the appellant giving blows.  He furthermore

stated that night was a moonlit one.   

20. Our attention has been drawn to the statement made by him that the

lamp was lighted by Mahesh Makwana to contend that according to Mahesh

Makwana  it  was  Ramesh  Chander  who  had  brought  the  lamp and  lit  it.

Ramesh Chander might have brought the lamp but the possibility of Mahesh

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lighting  it  cannot  be  ruled  out.   In  any  event,  the  said  purported

contradiction, in our opinion, is not a significant one.   

21. We, furthermore,  are  of  the  opinion  that  the  statement  of  Durgesh

alias Bablu (PW-10) who was named as a witness in the First Information

Report is reliable.  He might not have supported the prosecution story in its

entirety but we may notice that he had categorically stated that the appellant

had attacked the deceased due to which he suffered injuries.  He had also

given the size of the lamp as also the diameter of the chimney thereof.  He

also made a frank statement as regards his feelings after the incident took

place.   

22. Ashok Kumar examined himself as PW-16.  

Mr. Verma would submit that he, at the time of the incident, was said

to be in the tailoring shop of his brother Mahesh Kumar Makwana, although

in the First Information Report it was stated he had been playing cards.  We

do  not  find  any  inconsistency  in  the  said  statement.   Mahesh  Kumar

Makwana was the owner of the shop and the cards were being played on the

platform thereof.  Thus, both the statements made by the said witnesses in

his  deposition  before  the  Court  as  also  in  the  First  Information  Report

corroborate each other.   

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23. Having regard to the materials brought on record by the prosecution,

as noticed hereinbefore, we have no doubt in our mind that the statements

made  by  the  first  informant  Mahesh  Kumar  Makwna  (PW-4)  has  been

corroborated  in  material  particulars  by  other  witnesses.   Some  of  the

witnesses  who  have  been  declared  hostile  have  also  supported  the

prosecution case in part but for our purpose it is not necessary to consider

their evidences.   

Indisputably, some of the prosecution witnesses were related to the

deceased.   Their  presence  has  been  established  beyond  any  shadow  of

doubt.  No suggestion had been put to anyone of the said witnesses that they

had any enmity against the accused.   

In a case of this nature where the appellant had come with a sword

and hit the deceased more than once, leading to his death, the same, in our

opinion, would not come within the purview of the second part of Section

304 of the Indian Penal Code.  The intention on the part of the accused to

cause  death  or  cause  such  injury  which  would  likely  to  cause  death  is

apparent.  The deceased was hit with the sword on a vital part of the body as

he was assaulted repeatedly.

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24. For  the  reasons  aforementioned,  we  find  no  merit  in  this  appeal.

Accordingly, it is dismissed.   

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

..…………………………..…J.  [H.L. Dattu]

New Delhi; March 31, 2009

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