Babloo @ Virendra Kumar vs State Of M.P. on 21 December, 2017

1 CrA. 427/2009

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
DB: Hon’ble Shri Justice Anand Pathak
Hon’ble Shri Justice G. S. Ahluwalia, J.J.

Cr.A.427/2009

Bablu alias Virendra Kumar
Vs.
State of MP

Ms. Chitra Saxena, counsel for the appellant.
Shri Ravindra Singh, Public Prosecutor for the respondent/
State.

JUDGMENT
(Delivered on 21/ 12 /2017)
Per G. S. Ahluwalia, J

This Criminal Appeal under Section 374 of Cr.P.C. has
been filed against the judgment and sentence dated 26-2-
2009 passed by 2nd A.S.J. (Fast Track Court), Ganj Basoda,
Distt. Vidisha in Sessions Trial No.193/2007, by which the
appellant has been convicted under
Sections 302, 307 of I.P.C.
and has been sentenced to undergo the Life Imprisonment
and a fine of Rs.2,000/- with default imprisonment and
rigorous imprisonment of 10 years and a fine of Rs. 500/- with
default imprisonment respectively.

2. The necessary facts for the disposal of the present
appeal in short are that, on 5-6-2007 at about 20:00, the
appellant himself lodged a F.I.R., Ex.18, giving information
that he is a labourer by profession and came back to house at
about 7:30 P.M. After taking out his sleepers outside the
house, he went inside the house and his step sister Puja was
sitting outside on the platform. Umesh, who is neighbor
enquired from Puja about the sleepers who informed that the
appellant is inside the house. At that time, the deceased
Prembai, who is the real mother of the appellant also came
there, and the appellant enquired from his mother that what is
going on in the house. Her mother (deceased) replied that
the appellant is nobody to ask such a question. The appellant
also enquired from Puja that what Umesh was saying to her
2 CrA. 427/2009

but Puja replied that Umesh had not said anything. It was
also mentioned by the appellant in the F.I.R. that, Puja and his
mother were carrying on illicit activities in the house
therefore, he has caused multiple knife injuries to his mother
and Puja and both are lying in the house.

3. On the basis of this information, report No. 13/2007
under
Section 307 of I.P.C. was registered at Police Outpost
and the F.I.R. was registered at Police Station Basoda in crime
no. 517/2007. The injured Puja and Prembai were sent for
medical treatment. The dying declarations of Puja and
Prembai were recorded. Prembai, subsequently succumbed to
the injuries. The postmortem of the deceased Prembai was
done. Spot map was prepared, the statements of the
witnesses were recorded, Memorandum of the appellant was
recorded, knife etc were seized. After completing the
investigation, the police filed the charge sheet for offence
under
Section 307,302 of I.P.C.

4. The Trial Court framed charges under Sections 302,307 of
I.P.C.

5. The appellant abjured his guilt and pleaded not guilty.

6. The Prosecution in order to prove its case, examined Puja
(P.W.1), Leela Bai (P.W.2), Banti Prajapati (P.W.3), Raju
(P.W.4), Dr. B.P. Khare (P.W.5), Mindia bai (P.W.6), Raj bai
(P.W.7), Kishan Gopal Pathak (P.W.8), Bansilal (P.W.9),
Dr.Sarvesh Jain (P.W.10), Dr. Dhanesh Tripathi (P.W.11), S.S.
Kushwah (P.W.12), and Gopal Singh Verma (P.W.13). The
appellant did not examine any witness in his defence.

7. The Trial Court by judgment and sentence dated 26-2-2009
convicted the appellant under
Sections 302, 307 of I.P.C. and
sentenced him to undergo the Life Imprisonment and a fine of
Rs.2,000/- with default imprisonment and rigorous
imprisonment of 10 years and a fine of Rs. 500/- with default
imprisonment, respectively.

8. Challenging the judgment and sentence passed by the
Court below, it is submitted by the Counsel for the appellant,
that the appellant has been falsely implicated. Puja (P.W.1) is
the step sister of the appellant and She herself has admitted
3 CrA. 427/2009

in her cross-examination, that She is annoyed with the
appellant, therefore, She has falsely implicated the appellant.
It is further submitted that since, no blood was found on the
knife, therefore, the seizure of the knife is not proved which
creates doubt on the truthfulness of the witnesses. Further,
the appellant was annoyed with the fact that one Umesh used
to visit the house of the deceased Prembai and he was
objecting to it and when he found that Umesh has come to the
house, inspite of his objection, therefore, he got provoked and
under sudden and grave provocation, he assaulted the
deceased and Puja and thus, the offence would not be under
Section 302 of I.P.C. but would be at the most 304 Part I of
I.P.C. It is further submitted that the deceased Prembai died
because of septicemia and not due to the injuries, therefore,
the appellant cannot be held liable for causing death of
Prembai.

9. Per contra, it is submitted by the Counsel for the State that
the F.I.R. was lodged by the appellant himself and on his
disclosure statement, knife has been recovered. Puja (P.W.1)
herself is an injured witness, therefore, her presence on the
spot cannot be doubted and her evidence cannot be brushed
aside very lightly. It is further submitted that Umesh was the
neighbour and he had not come to the house of the appellant
but he had simply enquired from Puja about the sleepers
which were lying outside the house. There is nothing on record
that any illicit activities were going on in the house as claimed
by the appellant in his F.I.R. No body had provoked the
appellant and therefore, he cannot take advantage of
Exception 5 to
Section 300 of I.P.C. Both the injured were
assaulted brutally. The injured Puja (P.W.1) had sustained as
many as 4 stab/incised wounds whereas the deceased Prembai
had sustained multiple stab wounds. It is further submitted
that septicemia and infection had developed because of the
injuries sustained by the deceased Prembai and looking to the
number of injuries as well as the part of the body on which the
injuries were caused, it leaves no doubt that the appellant had
caused such injuries with intention and knowledge to cause
4 CrA. 427/2009

death.

10. Heard the learned Counsel for the parties.

11. The first question for determination is that whether the
death of Prembai was homicidal in nature or not?

12. Dr. Suresh Jain (P.W.10) had medically examined the
injured Prembai (Deceased) and had found the following
injuries :

(i) Stab wound over left side of abdomen. Loops of
intestine are protruding outside. Depth of wound
cannot be assessed. Loops of intestine cannot be
repoisted inside abdomen, hence length and width of
wound cannot be measured. Adv. X-Ray abdomen in
standing position.

(ii) Incised wound Lt. Side of chest. 7 cm medially
from Rt. Nipple Obliquely situated. Size 1.5 X 0.5X
depth not explored.

The patient was referred to Hamidia Hospital, Bhopal.
The M.L.C. Report of Prembai is Ex. P.14.

13. Dr. Dharmesh Tripathi (P.W. 11) had treated Prembai at
Hamidia Hospital, Bhopal.According to this witness, the patient
was brought by one Raju who had informed that known person
has assaulted the injured. At the time of admission, her
general condition was poor, pulse was 116 per minute, B.P.
was 100/70 and RR 20 per minute, RS was 20 minute.
Following injuries were found :-

”(i) A single incised would on 3x2cm over Lt.

Hypocondrium with Prolapsed Bowel Loops from the
wound (with sharp Margins)

(ii) Stitched wound of 1 cm over Rt. Chest just below
medial aspect of breast tissue.”
The patient was operated upon twice. After first operation
the following repair findings were given :-

”(i) Transverse Colon tear of 3 cm intestine at
mesocolan border”
Partial mesenetric tear of 2 cm about 4 ft distal to DJ.
Dusky Bowel Loop of about 3 ft intestine, 2 ft distal to
DJ.

2nd Operation :- Rexploration of parietal wall of
abdomen at the site of entry wound.

The nature of injury was dangerous to life and caused by
sharp and hard object.

The report is Ex. P.16.

5 CrA. 427/2009

14. It appears that after treatment, the deceased came back
to her house and expired on 3-7-2007. An information Ex. P.5
was given by Raju (P.W.4) to the police. The inquest report
was prepared. The dead body of the deceased Prembai was
sent for Postmortem. Dr. B.P. Khare (P.W.5) conducted the
Postmortem and on external examination it was found as
under :-

“Non-healed secondary infected wounds 17 in
number, in anterior abdominal wall all over on both
sides varies from 2 ½” x 1 ¼ ” to 1/3” x 1/5”. One
surgical healed scar cut in mid-line of abdomen 8”
long extending downwards from difisternum one of
the above wound left infra costal region 2 ½” x 1
¼” size connecting to abdominal cavity. One more of
above wounds on left side of abdomen 1½” below
above wound, 1 ”x ¾” also connecting to abdomen
cavity, all above wounds are infected.”

15. According to Dr. B.P. Khare (P.W.5), the cause of death
was septicemia due to infection and gangrene of peritoneum,
omentum and intestine coil. The Postmortem report is Ex. P.8.

16. Thus, it is established that the deceased Prembai had
sustained two wounds, i.e., stab wound and an incised wound
and loops of intestine were outside and could not be repaired
at Ganjbasoda Hospital, therefore, she was referred to
Hamidia Hospital, Bhopal. The deceased was operated upon
twice and infected organs of the body were removed.
However, the deceased Prembai ultimately died on 3-7-2007
due to septicemia and gangrene of peritoneum, omentum and
intestine coils.

17. It is submitted by the Counsel for the appellant that
since, the cause of death was septicemia and gangrene,
therefore, it cannot be said that Prembai died because of the
injuries caused by the appellant. The submission made by the
Counsel for the appellant is misconceived and cannot be
accepted and hence rejected. Dr. B.P.Khare (P.W.5) has
specifically stated that the septicemia had developed due to
infection and gangrene of Peritoneum, omentum and intestine
coil and the injuries were caused by the appellant at the very
same place. Thus, the septicemia had developed due to
6 CrA. 427/2009

infection and gangrene of internal organs. Thus, it is clear
that septicemia had developed due to the injuries caused to
the deceased and not because of any other reason.

18. The Supreme Court in the case of Raghubir Singh Vs.
State of Haryana reported in AIR 2000 SC 3395 has held
as under :-

”18.Furthermore, the evidence of Dr. Dalbir
Singh who conducted the postmortem
examination of Arjun Singh (PW-4) was that
four injuries had been caused to the body of
the deceased, of which injuries Nos. 1, 3
and 5 could be caused by a fire-arm. He also
opined that “…………the cause of death was
due to shock due to septicaemia following
peritonitis due to injuries to the large gut,
liver and intervening structures”. PW-4 also
stated that the bullet wound on the chest, if
left untreated, was sufficient to have caused
death in the ordinary course of nature.

19.The evidence thus clearly shows that
peritonitis, renal failure, septicaemia etc.
were directly relatable to the bullet injury.”

19. The Supreme Court in the case of State of Rajasthan
Vs. Arjun Singh and others, reported in AIR 2011 SC
3380 has held as under :-

”17.Finally, learned senior counsel for the
accused pointed out that inasmuch as
Himmat Raj Singh died after 35 days due to
septicemia, the Courts below are not
justified in convicting the accused persons
for an offence under
Section 302 IPC for his
death. Considering the medical evidence
that Himmat Raj Singh sustained 7 gun shot
injuries which were sufficient to cause death
in the ordinary course, we are satisfied that
the death of Himmat Raj Singh undoubtedly
falls within the ambit of 302
IPC.”

20. The Supreme Court in the case of Patel Hiralal
Joitaram Vs. State of Gujarat, reported in (2002) 1 SCC
22 has held as under :-

” 14. The interval between the date of the
incident when the deceased sustained burns
and the date of her death was a fortnight.

PW 2 Dr Vikarambhai, who examined Asha
Ben at 10.30 a.m. on 21-10-1988, noticed
second-degree burns on the upper and
7 CrA. 427/2009

lower portions of her hands, front and back
of her chest and on the neck, ears and
forehead. He found that her condition was
“critical” when he saw her first.

15. PW 12 Dr N.N. Parikh, a tutor in
Forensic Medicine of B.J. Medical College,
Ahmedabad, conducted autopsy on her dead
body on 15-11-1988. He noticed burns of
the third degree on the front and back of
her trunk, both thighs etc., besides second-
degree burns on some other limbs. In his
opinion the death of the deceased was due
to a stroke on account of such burns and
that those burns were sufficient in the
ordinary course of nature to cause her
death.

16. Harping on an answer given by PW 12 in
cross-examination that death of the
deceased had occurred due to “septic”
learned Senior Counsel made out an
argument that such septic condition could
have developed on account of other causes.
Mere possibility of other causes supervening
during her hospitalisation is not a safe
premise for deciding whether she would not
have died due to the burns sustained on 21-
10-1988. The cause of death can be
determined on broad probabilities. In this
context we may refer to a passage from
Modi’s Medical Jurisprudence and
Toxicology, dealing with death by burns:
“As already mentioned, death may occur
within 24 to 48 hours, but usually the
first week is the most fatal. In
suppurative cases, death may occur
after five or six weeks or even longer.”

17. In Om Parkash v. State of Punjab, the
victim was set ablaze on 17-3-1979 and she
sustained burns with which she died only 13
days thereafter. The assailant was convicted
of murder and the conviction was confirmed
by this Court.

18. It is preposterous to say that the
deceased in this case would have been
healed of the burn injuries and that she
would have contracted infection through
some other causes and developed
septicaemia and died of that on 15-11-1988.
Court of law need not countenance mere
academic possibilities when the prosecution
case regarding death of the deceased was
established on broad probabilities as a
sequel to the burns sustained by her. Hence
we repel the contention of the learned
8 CrA. 427/2009

counsel on that score.”

21. Thus, this Court is of the considered opinion, that the
death of Prembai was homicidal in nature and the cause of
death was septicemia due to infection and gangrene of
peritoneum, omentum and intestine coil. There is nothing on
record to suggest that the septicemia had developed due to
post operational complications. Thus, the septicemia had
developed due to infection and gangrene because of injuries
caused by the appellant. Thus, the cause of homicidal death
is directly relatable to the injuries caused by the appellant.

22. The next question for determination is that whether Puja
(P.W.1) had sustained any injury or not ?

22. Dr. Sarvesh Jain (P.W.10) had medically examined Puja
(P.W.1) and had found the following injuries on her body :

(i) Incised wound over left side of chest near
interior axillary line 2.3×0.8cm x depth cannot be
taken. Margins clean cut. Soft Clot present.

(ii) stab wound of 2.5 cm x 0.5 cm x depth cannot
be assessed. Slft clotted, blood present, margins
clean cut. Left Hypochondrium

(iii) Stab wound over abdomen in left
Hypochondrium 7 cm lateral to first wound size 2 cm
x 0.6 cm x depth cannot be assessed.

(iv) Incised wound over flexor aspect of left elbow.
Size 4 cm x 1 cm x muscle deep. Soft clotted blood
present margins clean cut.

She was referred to Hamidia Hospital.
The M.L.C. Report of Puja (P.W.1) is Ex. P.13.

23. Dr. Dharmesh Tripathi (P.W.11) had treated the injured
Puja (P.W.1) at Hamidia Hospital. He found the above
mentioned injuries. The injured Puja (P.W.1) was operated
upon on 6-6-2007 and internal organs were repaired. The
injuries were found to be dangerous to life and were caused
by sharp and hard object. The report is Ex. P. 17.

24. Thus, it is proved beyond reasonable doubt that Puja
(P.W.1) had sustained four stab/incised wounds which were
caused by Hard and Sharp object.

25. The moot question for determination is that who is the
author of injuries caused to the deceased Prembai and injured
Puja (P.W.1).

9 CrA. 427/2009

26. The Case is based on the dying declaration of the
deceased, evidence of Puja (P.W.1).

27. In the present case, the F.I.R. Ex. P.18 was lodged by the
appellant himself admitting that he has caused multiple
injuries to his mother and step sister Puja (P.W.1). Since the
confessional statement, in the form of F.I.R. was made by the
appellant before the police, therefore, the centripetal question
is that whether the F.I.R. Ex. P.18, lodged by the appellant is
admissible in law or not? The question is no more in res
integra.

28. The Supreme Court in the case of Aghnoo Nagesia Vs.
State reported in AIR 1966 SC 119 has held as under :

”10. Section 154 of the Code of Criminal
Procedure provides for the recording of the
first information. The information report as
such is not substantive evidence. It may be
used to corroborate the informant under
S.
157 of the Evidence Act or to contradict him
under
S. 145 of the Act, if the informant is
called as a witness. If the first information is
given by the accused himself, the fact of his
giving the information is admissible against
him as evidence of his conduct under
S. 8 of
the Evidence Act. If the information is a
non-confessional statement, it is admissible
against the accused as an admission under
S. 21 of the Evidence Act and is relevant,
see
Faddi v. State of Madhya Pradesh, Cri.
Appeal No. 210 of 1963, dated 24-1-1964:
(AIR 1964 SC 1850), explaining Nisar Ali v.
State of U. P., (S) AIR 1957 SC 366 and Dal
Singh v. King Emperor, 44 Ind App 137:
(AIR 1917 PC 25). But a confessional first
information report to a police Officer cannot
be used against the accused in view of
S. 25
of the Evidence Act.

11.The Indian Evidence Act does not define
“confession”. For a long time, the Courts in
India adopted the definition of “confession”
given in
Art. 22 of Stephen’s Digest of the
Law of Evidence. According to that definition
a confession is an admission made at any
time by a person charged with crime,
stating or suggesting the inference that he
committed that crime. This definition was
discarded by the Judicial Committee in
Pakala Narayanaswami v. Emperor, 66 Ind
App 66 at p. 81: (AIR 1939 PC 47 at p. 52).
Lord Atkin observed:

10 CrA. 427/2009

1.”…….no statement that contains self
exculpatory matter can amount to
confession, if the exculpatory statement
is of some fact which if true would
negative the offence alleged to be
confessed. Moreover, a confession must
either admit in terms the offence, or at
any rate substantially all the facts which
constitute the offence. An admission of
a gravely incriminating fact, even a
conclusively incriminating fact, is not of
itself a confession, e.g., an admission
that the accused is the owner of and
was in recent possession of the knife or
revolver which caused a death with no
explanation of any other man’s
possession.”

These observations received the approval of
this Court in
Palvinder Kaur v. State of
Punjab (1), 1953 SCR 94 at p. 104; (AIR
1952 SC 354 at p. 357).
In State of U. P. v.
Deoman Upadhyaya, (1961) 1 SCR 14 at p.
21: (AIR 1960 SC 1125 at pp. 1128-1129).
Shah, J., referred to a confession as a
statement made by a person stating or
suggesting the inference that he has
committed a crime.

12.Shortly put, a confession may be defined
as an admission of the offence by a person
charged with the offence. A statement which
contains self-exculpatory matter cannot
amount to a confession, if the exculpatory
statement is of some fact which, if true,
would negative the offence alleged to be
confessed. If an admission of an accused is
to be used against him, the whole of it
should be tendered in evidence and if part of
the admission is exculpatory and part
inculpatory, the prosecution is not at liberty
to use in evidence the inculpatory part only.
See Hanumant Govind v. State of M. P. 1952
SCR 1091 at p. 1111: (AIR 1952 SC 343 at
p. 350) and 1953 SCR 94 : (AIR 1952 SC

354). The accused is entitled to insist that
the entire admission including the
exculpatory part must be tendered in
evidence. But this principle is of no
assistance to the accused where no part of
his statement is self-exculpatory; and the
prosecution intends to use the whole of the
statement against the accused.

13.Now, a confession may consist of several
parts and may reveal not only the actual
commission of the crime but also the motive
the preparation, the opportunity, the
11 CrA. 427/2009

provocation the weapons used, the
intention, the concealment of the weapon
and the subsequent conduct of the accused.
If the confession is tainted the taint attaches
to each part of it. It is not permissible in law
to separate one part and to admit it in
evidence as a non-confessional statement.
Each part discloses some incriminating fact,
i.e., some fact which by itself or along with
other admitted or proved facts suggests the
inference that the accused committed the
crime, and though each part taken singly
may not amount to a confession, each of
them being part of a confessional statement
partakes of the character of a confession. If
a statement contains an admission of an
offence, not only that admission but also
every other admission of an incriminating
fact contained in the statement is part of the
confession.

14.If proof of the confession is excluded by
any provision of law such as S.24,
S. 25 and
S. 26 of the
Evidence Act, the entire
confessional statement in all its parts
including the admissions of minor
incriminating facts must also be excluded,
unless proof of it is permitted by some other
section under as
S. 27 of the Evidence Act.
Little substance and content would be left in
Ss. 24, 25 and 26 if proof of admission of
incriminating facts in a confessional
statement is permitted.

15.Sometimes, a single sentence in a
statement may not amount to a confession
at all. Take a case of a person charged under
S. 301-A
of the Indian Penal Code and a
statement made by him to a police officer
that “I was drunk: I was driving a car at a
speed of 80 miles per hour. I could see A on
the road at a distance of 80 yards; I did not
blow the horn: I made no attempt to stop
the car; the car knocked down A”. No single
sentence in this statement amounts to a
confession; but the statement read as a
whole amounts to a confession of an offence
under
S. 304-A of the Indian Penal Code,
and it would not be permissible to admit in
evidence each sentence separately as a non-
confessional statement. Again, take a case
where a single sentence in a statement
amounts to an admission of an offence. ‘A’
states “I struck ‘B’ with a tangi and hurt
him”. In consequence of the injury ‘B’ died.
‘A’ committed an offence and is chargeable
under various sections of the Indian Penal
12 CrA. 427/2009

Code. Unless he brings his case within one of
the recognised exceptions, his statement
amounts to an admission of an offence, but
the other parts of the statement such as the
motive, the preparation, the absence of
provocation, concealment of the weapon and
the subsequent conduct, all throw light upon
the gravity of the offence and the intention
and knowledge of the accused, and
negatives the right of private defence,
accident and other possible defences. Each
and every admission of an incriminating fact
contained in the confessional statement is
part of the confession.

16.If the confession is caused by an
inducement, threat or promise as
contemplated by
S. 24 of the Evidence Act,
the whole of the confession is excluded by S.

24. Proof of not only the admission of the
offence but also the admission of every other
incriminating fact such as the motive, the
preparation and the subsequent conduct is
excluded by
S. 24. To hold that the proof of
the admission of other incriminating facts is
not barred by
S. 24 is to rob the section of
its practical utility and content. It may be
suggested that the bar of
S. 24 does not
apply to the other admissions, but though
receivable in evidence, they are of no
weight, as they were caused by inducement,
threat or promise. According to this
suggestion, the other admissions are
relevant but are of no value. But we think
that on a plain construction of
S. 24, proof of
all the admissions of incriminating facts
contained in a confessional statement is
excluded by the section. Similarly, Ss. 25
and 26 bar not only proof of admission of an
offence by an accused to a police officer or
made by him while in the custody of a police
officer but also admissions contained in the
confessional statement of all incriminating
facts related to the offence.

17.A little reflection will show that the
expression “confession” in Ss. 24 to 30
refers to the confessional statement as a
whole including not only the admissions of
the offence but also all other admissions of
the offence but also all other admissions of
incriminating facts related to the offence.
Section 27 partially lifts the ban imposed by
Ss. 24, 25 and 26 in respect of so much of
the information whether it amounts to a
confession or not, as relates distinctly to the
fact discovered in consequence of the
13 CrA. 427/2009

information, if the other conditions of the
section are satisfied.
Section 27 distinctly
contemplates that an information leading to
a discovery may be a part of the confession
of the accused and thus fall within the
purview of Ss. 24, 25 and 26.
Section 27
thus shows that a confessional statement
admitting the offence may contain additional
information as part of the confession. Again,
S. 30 permits the Court to take into
consideration against a co-accused a
confession of another accused affecting not
only himself that the other co-accused.
Section 30 thus shows that matters affecting
other persons may form part of the
confession.

18.If the first information report is given by
the accused to a police officer and amounts
to a confessional statement, proof of the
confession is prohibited by
S. 25. The
confession includes not only the admission of
the offence but all other admissions of
incriminating facts related to the offence
contained in the confessional statement. No
part of the confessional statement is
receivable in evidence except to the extent
that the ban of
S. 25 is lifted by S. 27.

19.Our attention is not drawn to any
decision of this Court or of the Privy Council
on the question whether apart from
S. 27, a
confessional first information report given by
an accused is receivable in evidence against
him. Decisions of the High Court on this
point are hopelessly conflicting. They contain
all shades of opinion, ranging from total
exclusion of the confession to total inclusion;
of all admissions of incriminating facts
except the actual commission of the crime.
In Harji v. Emperor, AIR 1918 Lah 69 and
Nur Muhammad v. Emperor, 90 Ind Cas 148
(Lah), the Lahore High Court held that the
entire confessional first information report
was inadmissible in evidence.
In Emperor v.
Harman Kisha. ILR 59 Bom 120: (AIR 1935
Bom 260, the Bombay High Court held that
the entire confessional report dealing with
events on the right of the offence was hit by
S. 25, and it could not be said that portions
of it dealing with the motive and the
opportunity were not parts of the confession.
In Emperor v. Kommoju Brahman. ILR 1940-
19 Pat 301 at pp. 308, 314: (AIR 1940 Pat
163 at pp. 165, 167), the Patna High Court
held that no part of the confessional first
information report was receivable in
14 CrA. 427/2009

evidence, the entire report formed a single
connected story and no part of it had any
meaning or significance except in relation to
the whole, and it would be wrong to extract
parts of the statement and treat them as
relevant. This case was followed in Adi Moola
Padayachi v. State, 1960 Mad WN 528 and
the Court admitted only the portion of the
confessional first information report which
showed it was given by the accused and
investigation had started thereon.
In State
of Rajasthan v. Shiv Singh, AIR 1962 Raj 3,
the Court admitted in evidence the last part
of the report dealing with the movements of
the accused after the commission of the
offence, but excluded the other parts of the
statement including those relating to motive
and opportunity.
In Legal Remembrancer v.
Lalit Mohan Singh Roy, ILR 49 Cal 167 : (AIR
1922 Cal 342), the Calcutta High Court
admitted in evidence the narrative of the
events prior to the night of the occurrence
disclosing the motive of the offence. This
case was followed by the Nagpur Court in
Bharova Ramdayal v. Emperor, AIR 1941 Nag

86. In Kartar Singh v. State, AIR 1952 Pepsu
98, the Court admitted in evidence the
introductory part and the portion narrating
the motive and the opportunity. In Ram
Singh v. The State, ILR (1952) 2 Raj 93, the
Rajasthan High Court held that where it is
possible to separate parts of the first
information report by an accused from that
in which he had made a confession that part
which can be so separated should be
admitted in evidence, and on this view,
admitted a part of the report relating to
motive and subsequent conduct including
the statement that the accused had left the
deceased lying wounded and breathing in
the tibari and there was no hope of her
surviving and he had come having covered
her with a cloth. In Lachman Munda v. The
State of Bhiar, AIR 1964 Pat 210, the Patna
High Court admitted in evidence portions of
the first information report relating to the
motive the opportunity and the entire
narrative of events before and after the
crime. This case was followed in the
judgment under appeal. Some of the decided
cases took the view that if a part of the
report is properly severable from the strict
confessional part, then the severable part
could be tendered in evidence. We think that
the separability test is misleading and the
15 CrA. 427/2009

entire confessional statement is hit by S. 25
and save and except as provided by
S. 27
and save and except the formal part
identifying the accused as the maker of the
report, no part of it could be tendered in
evidence.

20.We think, therefore, that save and except
parts 1, 15 and 18 identifying the appellant
as the maker of the first information report
and save and except the portions coming
within the purview of
S. 27, the entire first
information report must be excluded from
evidence.”

The Supreme Court in the case of Bheru singh Vs. State
of Rajasthan reported in (1994) 2 SCC 467 has held as
under :

”17. Where the first information report is
given by an accused himself to a police
officer and amounts to a confessional
statement, proof of the confession is
prohibited by
Section 25 of the Evidence
Act. No part of the confessional statement
can be proved or received in evidence,
except to the extent it is permitted by
Section 27 of the Evidence Act. The first
information report recorded under
Section
154 CrPC is not a substantive piece of
evidence. It may be used to corroborate the
informant under
Section 157 of the
Evidence Act or to contradict him under
Section 145 of the Evidence Act in case the
informant appears as a witness at the trial.
Where the accused himself lodges the first
information report, the fact of his giving the
information to the police is admissible
against him as evidence of his conduct
under
Section 8 of the Evidence Act and to
the extent it is non-confessional in nature, it
would also be relevant under
Section 21 of
the Evidence Act but the confessional part
of the first information report by the
accused to the police officer cannot be used
at all against him in view of the ban of
Section 25 of the Evidence Act.”

29. Thus, the confessional part of the F.I.R. lodged by the
appellant would not be admissible in law and only that part of
the F.I.R. would be admissible which led to discovery of fact.
However, no information was given by the appellant with
16 CrA. 427/2009

regard to the knife allegedly used by him in the F.I.R., Ex.
P.18, therefore, we are of the considered opinion, that the
F.I.R. Ex. P.18, lodged by the appellant, cannot be used either
against or in favor of the appellant.

30. The dying declaration of the deceased Prembai, Ex. P.15,
was recorded, by Gopal Singh Verma (P.W.13), Tahsildar, Ganj
Basoda. Gopal Singh Verma (P.W.13) has stated that he
received a letter from Police Station Basoda for recording
dying declaration and accordingly, he had recorded the dying
declaration of Prembai, Ex. P.15 after obtaining fitness
certificate from the Doctor. The victim Prembai had informed
that She has been assaulted by her son Bablu who is also
known as Virendra. The injuries were caused by knife at about
7:30 P.M. This witness was cross examined in detail. This
witness denied the suggestion that the dying declaration is not
in his handwriting. However, he admitted that it is not
mentioned that the thumb impression of the declarant, is of
which hand? He further admitted that the dying declaration is
not in question-answer form. He further denied that he had
written the dying declaration on his own. Thus, nothing could
be elicited from the cross examination of this witness, which
may make the dying declaration of the deceased Prembai, Ex.
P.15, unreliable or doubtful. The submission made by the
Counsel for the appellant that since, the dying declaration was
not in question-answer form, therefore, it should be
discarded, cannot be accepted.

The Supreme Court in the case of Vithal Vs. State of
Maharashtra reported in (2006) 13 SCC 54 has held as
under :-

”10. Dying declarations which were four in
number were made before different
authorities including a Magistrate. The
Executive Magistrate Shashikant was
examined as PW 6. The learned trial Judge
was not correct in discarding the said dying
declarations. It is now well settled that a
dying declaration if found to be acceptable,
the same need not be described to be in
question and answer form.

11. In Laxman v. State of Maharashtra the
17 CrA. 427/2009

law has been laid down in the following
terms: (SCC pp. 713-14, para 3)

2.”Normally, therefore, the court in
order to satisfy whether the deceased
was in a fit mental condition to make
the dying declaration looks up to the
medical opinion. But where the
eyewitnesses state that the deceased
was in a fit and conscious state to make
the declaration, the medical opinion will
not prevail, nor can it be said that since
there is no certification of the doctor as
to the fitness of the mind of the
declarant, the dying declaration is not
acceptable. A dying declaration can be
oral or in writing and any adequate
method of communication whether by
words or by signs or otherwise will
suffice provided the indication is
positive and definite. In most cases,
however, such statements are made
orally before death ensues and is
reduced to writing by someone like a
Magistrate or a doctor or a police officer.
When it is recorded, no oath is
necessary nor is the presence of a
Magistrate absolutely necessary,
although to assure authenticity it is
usual to call a Magistrate, if available for
recording the statement of a man about
to die. There is no requirement of law
that a dying declaration must
necessarily be made to a Magistrate and
when such statement is recorded by a
Magistrate there is no specified
statutory form for such recording.

Consequently, what evidential value or
weight has to be attached to such
statement necessarily depends on the
facts and circumstances of each
particular case. What is essentially
required is that the person who records
a dying declaration must be satisfied
that the deceased was in a fit state of
mind. Where it is proved by the
testimony of the Magistrate that the
declarant was fit to make the statement
even without examination by the doctor
the declaration can be acted upon
provided the court ultimately holds the
same to be voluntary and truthful. A
certification by the doctor is essentially
a rule of caution and therefore the
voluntary and truthful nature of the
18 CrA. 427/2009

declaration can be established
otherwise.”

12. It was further held:

3.”It is indeed a hypertechnical view
that the certification of the doctor was
to the effect that the patient is
conscious and there was no certification
that the patient was in a fit state of
mind especially when the Magistrate
categorically stated in his evidence
indicating the questions he had put to
the patient and from the answers
elicited was satisfied that the patient
was in a fit state of mind whereafter he
recorded the dying declaration.”

13. In Balbir Singh v. State of Punjab it is
stated:

4.”18. The law does not provide that a
dying declaration should be made in any
prescribed manner or in the form of
questions and answers.”

31. The Supreme Court in the case of State of Karnataka
Vs. Shariff reported in (2003) 2 SCC 473 has held as
under :-

” 21. It is true that PW 11 and PW 14 were
the police personnel and a Magistrate could
have been called to the hospital to record
the dying declaration of Muneera Begum,
however, there is no requirement of law that
a dying declaration must necessarily be
made to a Magistrate.
In Bhagirath v. State
of Haryana on receiving message from the
hospital that a person with gunshot injuries
had been admitted, a head constable rushed
to the place after making entry in the police
register and after obtaining certificate from
the doctor about the condition of the injured
took his statement for the purposes of
registering the case. It was held that the
statement recorded by the head constable
was admissible as dying declaration. Similar
view was taken in
Munnu Raja v. State of
M.P. wherein the statement made by the
deceased to the investigating officer at the
police station by way of first information
report, which was recorded in writing, was
held to be admissible in evidence.

22. The other reason given by the High
Court is that the dying declaration was not in
question-answer form. Very often the
deceased is merely asked as to how the
19 CrA. 427/2009

incident took place and the statement is
recorded in a narrative form. In fact such a
statement is more natural and gives the
version of the incident as it has been
perceived by the victim. The question
whether a dying declaration which has not
been recorded in question-answer form can
be accepted in evidence or not has been
considered by this Court on several
occasions.
In Ram Bihari Yadav v. State of
Bihar it was held as follows:

5.It cannot be said that unless the
dying declaration is in question-answer
form, it could not be accepted. Having
regard to the sanctity attached to a
dying declaration as it comes from the
mouth of a dying person though, unlike
the principle of English law he need not
be under apprehension of death, it
should be in the actual words of the
maker of the declaration. Generally, the
dying declaration ought to be recorded
in the form of questions and answers
but if a dying declaration is not
elaborate but consists of only a few
sentences and is in the actual words of
the maker the mere fact that it is not in
question-answer form cannot be a
ground against its acceptability or
reliability. The mental condition of the
maker of the declaration, alertness of
mind, memory and understanding of
what he is saying, are matters which
can be observed by any person. But to
lend assurance to those factors having
regard to the importance of the dying
declaration, the certificate of a
medically trained person is insisted
upon.

23. In Padmaben Shamalbhai Patel v.

State of Gujarat it was held that the
failure on the part of the medical men to
record the statement of the deceased in
question-and-answer form cannot in any
manner affect the probative value to be
attached to their evidence. This view was
reiterated in
State of Rajasthan v. Bhup
Ram and
Jai Prakash v. State of Haryana.”

Thus, the dying declaration cannot be discarded, merely
on the ground that the same was not recorded in question-
answer form.

32. Gopal Singh Verma (P.W.13) had obtained the certificate
20 CrA. 427/2009

of fitness from Dr. Sarvesh Jain, prior to and after the
recording of dying declaration of Prembai, Ex. P.15. Dr.
Sarvesh Jain (P.W.10) has also stated that the victim Prembai
was conscious and in fit state of mind prior to and during the
recording of dying declaration. Thus, this Court is of the
considered opinion that the victim Prembai, was conscious and
in fit state of mind and had given a dying declaration which
was recorded by an Executive Magistrate. Thus, the dying
declaration Ex. P.15 of the deceased Prembai is reliable and
can form basis for conviction of the appellant.

33. The Supreme Court in the case of Ramesh Vs. State of
Haryana reported in (2017) 1 SCC 529 has held as under :

”31. Law on the admissibility of the dying
declarations is well settled.
In Jai Karan v.
State (NCT of Delhi), this Court explained
that a dying declaration is admissible in
evidence on the principle of necessity and
can form the basis of conviction if it is found
to be reliable. In order that a dying
declaration may form the sole basis for
conviction without the need for independent
corroboration it must be shown that the
person making it had the opportunity of
identifying the person implicated and is
thoroughly reliable and free from blemish. If,
in the facts and circumstances of the case, it
is found that the maker of the statement
was in a fit state of mind and had voluntarily
made the statement on the basis of personal
knowledge without being influenced by
others and the court on strict scrutiny finds
it to be reliable, there is no rule of law or
even of prudence that such a reliable piece
of evidence cannot be acted upon unless it is
corroborated. A dying declaration is an
independent piece of evidence like any other
piece of evidence, neither extra strong or
weak, and can be acted upon without
corroboration if it is found to be otherwise
true and reliable. There is no hard-and-fast
rule of universal application as to whether
percentage of burns suffered is
determinative factor to affect credibility of
dying declaration and improbability of its
recording. Much depends upon the nature of
the burn, part of the body affected by the
burn, impact of the burn on the faculties to
think and convey the idea or facts coming to
21 CrA. 427/2009

mind and other relevant factors. Percentage
of burns alone would not determine the
probability or otherwise of making dying
declaration. Physical state or injuries on the
declarant do not by themselves become
determinative of mental fitness of the
declarant to make the statement (see
Rambai v. State of Chhattisgarh).

32. It is immaterial to whom the declaration
is made. The declaration may be made to a
Magistrate, to a police officer, a public
servant or a private person. It may be made
before the doctor; indeed, he would be the
best person to opine about the fitness of the
dying man to make the statement, and to
record the statement, where he found that
life was fast ebbing out of the dying man
and there was no time to call the police or
the Magistrate. In such a situation the
doctor would be justified, rather duty-bound,
to record the dying declaration of the dying
man. At the same time, it also needs to be
emphasised that in the instant case, dying
declaration is recorded by a competent
Magistrate who was having no animus with
the accused persons. As held in
Khushal Rao
v. State of Bombay, this kind of dying
declaration would stand on a much higher
footing. After all, a competent Magistrate
has no axe to grind against the person
named in the dying declaration of the victim
and in the absence of circumstances
showing anything to the contrary, he should
not be disbelieved by the court (see
Vikas v.
State of Maharashtra).

34. The Supreme Court in the case of Mukesh Vs. State
(NCT of Delhi) reported in (2017) 6 SCC 1 has held as
under :

”174. A dying declaration is an important
piece of evidence which, if found veracious
and voluntary by the court, could be the
sole basis for conviction. If a dying
declaration is found to be voluntary and
made in a fit mental condition, it can be
relied upon even without any corroboration.
However, the court, while admitting a dying
declaration, must be vigilant towards the
need for “compos mentis certificate” from a
doctor as well as the absence of any kind of
tutoring.

175. In Laxman v. State of Maharashtra,
the law relating to dying declaration was
succinctly put in the following words:

22 CrA. 427/2009

“3. … A dying declaration can be oral or
in writing and any adequate method of
communication whether by words or by
signs or otherwise will suffice provided
the indication is positive and definite. In
most cases, however, such statements
are made orally before death ensues
and is reduced to writing by someone
like a Magistrate or a doctor or a police
officer. When it is recorded, no oath is
necessary nor is the presence of a
Magistrate absolutely necessary,
although to assure authenticity it is
usual to call a Magistrate, if available
for recording the statement of a man
about to die. There is no requirement of
law that a dying declaration must
necessarily be made to a Magistrate
and when such statement is recorded
by a Magistrate there is no specified
statutory form for such recording.

Consequently, what evidential value or
weight has to be attached to such
statement necessarily depends on the
facts and circumstances of each
particular case. What is essentially
required is that the person who records
a dying declaration must be satisfied
that the deceased was in a fit state of
mind. Where it is proved by the
testimony of the Magistrate that the
declarant was fit to make the statement
even without examination by the doctor
the declaration can be acted upon
provided the court ultimately holds the
same to be voluntary and truthful. A
certification by the doctor is essentially
a rule of caution and therefore the
voluntary and truthful nature of the
declaration can be established
otherwise.”

176. The legal position regarding the
admissibility of a dying declaration is settled
by this Court in several judgments. This
Court in
Atbir v. Govt. (NCT of Delhi), taking
into consideration the earlier judgment of
this Court in
Paniben v. State of Gujarat and
another judgment of this Court in
Panneerselvam v. State of T.N., has
exhaustively laid down the following
guidelines with respect to the admissibility
of dying declaration:

“22. (i) Dying declaration can be the sole
basis of conviction if it inspires the full
23 CrA. 427/2009

confidence of the court.

(ii) The court should be satisfied that the
deceased was in a fit state of mind at the
time of making the statement and that it
was not the result of tutoring, prompting or
imagination.

(iii) Where the court is satisfied that the
declaration is true and voluntary, it can base
its conviction without any further
corroboration.

(iv) It cannot be laid down as an absolute
rule of law that the dying declaration cannot
form the sole basis of conviction unless it is
corroborated. The rule requiring
corroboration is merely a rule of prudence.

(v) Where the dying declaration is
suspicious, it should not be acted upon
without corroborative evidence.

(vi) A dying declaration which suffers from
infirmity such as the deceased was
unconscious and could never make any
statement cannot form the basis of
conviction.

(vii) Merely because a dying declaration
does not contain all the details as to the
occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not
to be discarded.

(ix) When the eyewitness affirms that the
deceased was not in a fit and conscious
state to make the dying declaration, medical
opinion cannot prevail.

(x) If after careful scrutiny, the court is
satisfied that it is true and free from any
effort to induce the deceased to make a
false statement and if it is coherent and
consistent, there shall be no legal
impediment to make it the basis of
conviction, even if there is no
corroboration.”

177. It is well settled that dying declaration
can form the sole basis of conviction
provided that it is free from infirmities and
satisfies various other tests. In a case where
there are more than one dying declaration,
if some inconsistencies are noticed between
one and the other, the court has to examine
the nature of inconsistencies as to whether
they are material or not. The court has to
examine the contents of the dying
declarations in the light of the various
surrounding facts and circumstances.”
24 CrA. 427/2009

35. Thus, it is well established principle of law that where the
dying declaration is found to be reliable, then the same may
be a sole ground for convicting the accused. In the present
case, the dying declaration of the deceased Prembai, Ex. P.15
was recorded by an Executive Magistrate, Gopal Singh Verma
(P.W.13) after obtaining certificate of fitness from Dr. Sarvesh
Jain (P.W10) who has specifically stated that the victim was in
fit state of mind and conscious during the recording of dying
declaration, it is, accordingly held that the dying declaration of
the deceased is sufficient to hold the appellant guilty of
causing injuries to the deceased Prembai.

36. Apart from the written dying declaration, Leela Bai
(P.W.2), has stated that the deceased Prembai was lying on
the ground in an injured condition and had informed this
witness, that She has been assaulted by the appellant. This
witness has not been cross examined in detail. One one
question was put to this witness, that whether the information
given by the deceased Prembai was correct or not, which was
suitably replied by this witness that She cannot say that
whether the said information was correct or not.
Undisputedly, Leela bai (P.W.2) is not an eye witness,
therefore, there was no occasion for her to verify the
information given by the deceased, but the oral dying
declaration given by the deceased Prembai has been proved
beyond reasonable doubt, as nothing could be elicited from
the evidence of this witness, which may make her evidence
unreliable.

37. The next question would be that what offence has been
committed by the appellant by causing injuries to the
deceased Prembai ?

38. In the dying declaration of the deceased Prembai, Ex.
P.15, no motive has been assigned by the deceased. In fact,
no question was put to the victim by the Executive Magistrate,
with regard to the reason for committing the offence.
Similarly, the dying declaration of Puja (P.W.1), Ex. D-1 was
also recorded in which the injured Puja (P.W.1) has expressed
her ignorance as to why the appellant committed offence. It
25 CrA. 427/2009

is further submitted that Puja (P.W.1) in her evidence has
stated that the appellant had demanded Rs. 20,000/- and
when his mother, Prembai, refused to give the same, they
both were assaulted by the appellant. In cross examination,
Puja (P.W.1) has admitted that She was sitting outside the
house on a platform, when the appellant came there. She also
admitted the appellant had enquired about the sleeper and
Umesh was inside the house. She further admitted that the
appellant is her step brother. She clarified that their fathers
are different. She further admitted that Umesh had enquired
as to who has come and then she had informed that the
appellant had come. Thereafter, a suggestion was given to
this witness, that the appellant had alleged that illicit activities
are going on in the house, which was denied by this witness.
She further denied the suggestion that since, her relations
with Umesh were not proper therefore, the appellant was
objecting to it. She further denied that in fact the appellant
had attacked Umesh and this witness and the deceased had
tried to intervene in the matter and therefore, they had
sustained injuries. It is submitted that since, the appellant
was objecting to the illicit relations between Puja (P.W.1) and
Umesh and on the date of incident, after noticing Umesh in
the house, the appellant lost his self control and attacked
Umesh and since, the injured Puja (P.W.1) and the deceased
intervene in the matter, therefore, they also sustained
injuries. Thus, it is submitted by the Counsel for the appellant
that since, the incident took place without premeditation and
in a heat of passion, upon a sudden quarrel, therefore, the act
of the appellant would fall within Exception 4 to
Section 300 of
I.P.C.

39. Exception 4 to Section 300 I.P.C. reads as under :

”Exception 4.–Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and
without the offender’s having taken undue
advantage or acted in a cruel or unusual
manner.

6.Explanation.–It is immaterial in such
26 CrA. 427/2009

cases which party offers the provocation or
commits the first assault.”

40. Thus, in order to invoke the applicability of Exception 4 to
Section 300 of i.P.C., the following conditions are to be
satisfied :

(i) that the incident took place without premeditation

(ii) the incident took place in a sudden fight

(iii) the incident took place in a heat of passion.

(iv) upon a sudden quarrel

(v) that the offender without having taken undue
advantage or acted in a cruel or unusual manner.

41. The Supreme Court in the case of Sridhar Bhuyan Vs.
State of Orissa reported in (2004) 11 SCC 395 has held as
under :-

”8. The fourth exception of Section 300 IPC
covers acts done in a sudden fight. The said
exception deals with a case of prosecution
not covered by the first exception, after
which its place would have been more
appropriate. The exception is founded upon
the same principle, for in both there is
absence of premeditation. But, while in the
case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there
is only that heat of passion which clouds
men’s sober reason and urges them to
deeds which they would not otherwise do.
There is provocation in Exception 4 as in
Exception 1; but the injury done is not the
direct consequence of that provocation. In
fact Exception 4 deals with cases in which
notwithstanding that a blow may have been
struck, or some provocation given in the
origin of the dispute or in whatever way the
quarrel may have originated, yet the
subsequent conduct of both parties puts
them in respect of guilt upon equal footing.
A “sudden fight” implies mutual provocation
and blows on each side. The homicide
committed is then clearly not traceable to
unilateral provocation, nor in such cases
could the whole blame be placed on one
side. For if it were so, the exception more
appropriately applicable would be Exception

1. There is no previous deliberation or
determination to fight. A fight suddenly
takes place, for which both parties are more
or less to be blamed. It may be that one of
27 CrA. 427/2009

them starts it, but if the other had not
aggravated it by his own conduct it would
not have taken the serious turn it did. There
is then mutual provocation and aggravation,
and it is difficult to apportion the share of
blame which attaches to each fighter. The
help of Exception 4 can be invoked if death
is caused: (a) without premeditation; (b) in
a sudden fight; (c) without the offender’s
having taken undue advantage or acted in a
cruel or unusual manner; and (d) the fight
must have been with the person killed. To
bring a case within Exception 4 all the
ingredients mentioned in it must be found.
It is to be noted that the “fight” occurring in
Exception 4 to
Section 300 IPC is not
defined in
IPC. It takes two to make a fight.
Heat of passion requires that there must be
no time for the passions to cool down and in
this case, the parties have worked
themselves into a fury on account of the
verbal altercation in the beginning. A fight is
a combat between two and more persons
whether with or without weapons. It is not
possible to enunciate any general rule as to
what shall be deemed to be a sudden
quarrel. It is a question of fact and whether
a quarrel is sudden or not must necessarily
depend upon the proved facts of each case.
For the application of Exception 4, it is not
sufficient to show that there was a sudden
quarrel and there was no premeditation. It
must further be shown that the offender has
not taken undue advantage or acted in a
cruel or unusual manner. The expression
“undue advantage” as used in the provision
means “unfair advantage”.

42. The Supreme Court in the case of Rampal Singh Vs.
State of U.P. reported in (2012) 8 SCC 289 has held as
under :

7.22. Thus, where the act committed is
done with the clear intention to kill the other
person, it will be a murder within the
meaning of
Section 300 of the Code and
punishable under
Section 302 of the Code
but where the act is done on grave and
sudden provocation which is not sought or
voluntarily provoked by the offender himself,
the offence would fall under the Exceptions
to
Section 300 of the Code and is punishable
under
Section 304 of the Code. Another fine
tool which would help in determining such
28 CrA. 427/2009

matters is the extent of brutality or cruelty
with which such an offence is committed.

Thus, the provocation should be from the side of the
complainant party and should not be voluntary by the
offender himself.

43. In Holmes v. Director of Public Prosecutionns
[1946 AC 588] provocation has been explained as under:

8.”The whole doctrine relating to provocation
depends on the fact that it causes, or may
cause, a sudden and temporary loss of self-
control, whereby malice, which is the
formation of an intention to kill or to inflict
grievous bodily harm, is negatived.
Consequently, where the provocation
inspires an actual intention to kill, or to
inflict grievous bodily harm, the doctrine that
provocation may reduce murder to
manslaughter seldom applies.”

44. The Supreme Court in the case of B.D. Khunte Vs. Union
of India reported in (2015) 1 SCC 286 has held as under :

”12. What is critical for a case to fall under
Exception 1 to
Section 300 IPC is that the
provocation must not only be grave but
sudden as well. It is only where the
following ingredients of Exception 1 are
satisfied that an accused can claim
mitigation of the offence committed by him
from murder to culpable homicide not
amounting to murder:

(1) The deceased must have given
provocation to the accused.

(2) The provocation so given must have
been grave.

(3) The provocation given by the deceased
must have been sudden.

(4) The offender by reason of such grave
and sudden provocation must have been
deprived of his power of self-control; and
(5) The offender must have killed the
deceased or any other person by mistake or
accident during the continuance of the
deprivation of the power of self-control.”

45. The Supreme Court in the case of Pappu Vs. State of
M.P. reported in (2006) 7 SCC 391 has held as under :-

29 CrA. 427/2009

”12. For bringing in its operation it has to
be established that the act was committed
without premeditation, in a sudden fight in
the heat of passion upon a sudden quarrel
without the offender having taken undue
advantage and not having acted in a cruel
or unusual manner.”

46. Thus, if the facts of the case are considered, it appears
that after the appellant came back to the house, one Umesh,
who is the neighbour enquired about the sleepers which were
kept outside the house. Although suggestions were given to
Puja (P.W.1) about her intimate relations with Umesh, but the
same were denied. Nothing could be brought on record by the
appellant, that since, the appellant was opposed to intimate
relationship between Umesh and Puja (P.W.1) and was
continuously objecting to it, therefore, he was under
prolonged provocation. Even another suggestion has been
given by the appellant that in fact, the appellant had a fight
with Umesh, and since, the injured Puja (P.W.1) and the
deceased Prembai, intervened in the matter, therefore,
accidentally they got injured. If the number of injuries
sustained by Puja (P.W.1) and the deceased are considered,
then it would be clear that Puja (P.W.1) had sustained 4
stab/incised wounds, whereas the deceased Prembai had
sustained two stab/incised wounds and her intestine had come
out of the stomach. The force with which the injuries were
caused, can be inferred. Thus, it cannot be said that the
injured Puja (P.W.1) and deceased Prembai, accidentally
sustained injuries while they were trying to intervene in the
matter, as repeated blows were given to them.

47. It is further submitted by the Counsel for the appellant,
that the prosecution has not examined Umesh, whose
presence on the spot was admitted by the injured Puja (P.W.1)
and therefore, it must be inferred that the prosecution has
suppressed the very genesis of the incident. The submission
made by the Counsel for the appellant is misconceived and
cannot be accepted.

48. The Supreme Court in the case of Takhatji Hiraji Vs.
30 CrA. 427/2009

Thakore Kubersing Chamansingh reported in (2001) 6
SCC 145 has held as under :-

”19. So is the case with the criticism
levelled by the High Court on the
prosecution case finding fault therewith for
non-examination of independent witnesses.
It is true that if a material witness, who
would unfold the genesis of the incident or
an essential part of the prosecution case,
not convincingly brought to fore otherwise,
or where there is a gap or infirmity in the
prosecution case which could have been
supplied or made good by examining a
witness who though available is not
examined, the prosecution case can be
termed as suffering from a deficiency and
withholding of such a material witness would
oblige the court to draw an adverse
inference against the prosecution by holding
that if the witness would have been
examined it would not have supported the
prosecution case. On the other hand if
already overwhelming evidence is available
and examination of other witnesses would
only be a repetition or duplication of the
evidence already adduced, non-examination
of such other witnesses may not be
material. In such a case the court ought to
scrutinise the worth of the evidence
adduced. The court of facts must ask itself

— whether in the facts and circumstances of
the case, it was necessary to examine such
other witness, and if so, whether such
witness was available to be examined and
yet was being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise. If
the witnesses already examined are reliable
and the testimony coming from their mouth
is unimpeachable the court can safely act
upon it, uninfluenced by the factum of non-
examination of other witnesses…….”

49. The Supreme Court in the case of Vijendra Singh Vs.
State of U.P. Reported in (2017) 11 SCC 129 has held as
under :-

”37. In Dahari Vs. State of U.P. [2012)10
SCC 256], while discussing about the non-
examination of material witness, the Court
expressed the view that when he was not
31 CrA. 427/2009

the only competent witness who would have
been fully capable of explaining the factual
situation correctly and the prosecution case
stood fully corroborated by the medical
evidence and the testimony of other reliable
witnesses, no adverse inference could be
drawn against the prosecution. Similar view
has been expressed in Manjit Singh [(2013)
12 SCC 746], and Joginder Singh Vs. State
of Haryana [(2014) 11 SCC 335].”

50. The Supreme Court in the case of State of H.P. Vs. Gian
Chand reported in (2001) 5 SCC 71 has held as under :

9.14…………Non-examination of a material
witness is again not a mathematical formula
for discarding the weight of the testimony
available on record howsoever natural,
trustworthy and convincing it may be. The
charge of withholding a material witness
from the court levelled against the
prosecution should be examined in the
background of facts and circumstances of
each case so as to find whether the
witnesses were available for being examined
in the court and were yet withheld by the
prosecution. The court has first to assess
the trustworthiness of the evidence adduced
and available on record. If the court finds
the evidence adduced worthy of being relied
on then the testimony has to be accepted
and acted on though there may be other
witnesses available who could also have
been examined but were not examined.
However, if the available evidence suffers
from some infirmity or cannot be accepted
in the absence of other evidence, which
though available has been withheld from the
court, then the question of drawing an
adverse inference against the prosecution
for non-examination of such witnesses may
arise. It is now well settled that conviction
for an offence of rape can be based on the
sole testimony of the prosecutrix
corroborated by medical evidence and other
circumstances such as the report of
chemical examination etc. if the same is
found to be natural, trustworthy and worth
being relied on.

51. In the case of Yogesh Singh Vs. Mahabeer Singh and

others reported in (2017) 11 SCC 195, the Supreme Court
32 CrA. 427/2009

has held as under :

”51. Similarly, in Raghubir Singh Vs. State
of U.P. [(1972) 3 SCC 79], it was held that
the prosecution is not bound to produce all
the witnesses said to have seen the
occurrence. Material witnesses considered
necessary by the prosecution for unfolding
the prosecution story alone need be
produced without unnecessary and
redundant mulitplication of witnesses. In
this connection, general reluntance of an
average villager to appear as a witness and
get himself ivolved in cases of rival village
factions when tempers on both sides are
running high has to be borne in mind.

52. Further, in Appabhai Vs. State of
Gujarat [1988 Supp SCC 241], this Court
has observed :

11…….. Experience reminds us that
civilised people are generally insensitive
when a crime is committed even in
their presence. They withdraw both
from the victim and the vigilante. They
keep themselves away from the court
unless it is inevitable. They think that
crime like civil dispute is between two
individuals or parties and they should
not involve themselves. This kind of
apathy of the general public is indeed
unfortunate, but it is there everywhere,
whether in village life, towns or cities.”

52. Thus, the evidence of Puja (P.W.1) cannot be discarded
merely on the ground that although Umesh was present on
the spot, but still he has not been examined by the
prosecution.

53. In the alternative, it was next submitted by the Counsel
for the applicant that even otherwise, the prosecution has
failed to prove motive to commit suicide. It is well established
principle of law that where the case is based on direct
evidence and the evidence led by the prosecution is worth
reliance, then the same cannot be discarded merely on the
ground of absence of motive. The Supreme Court in the
case of Yogesh Singh (Supra) has held as under :

”46……. It is a settled legal proposition
that even if the absence of motive, as
alleged, is accepted that is of no
consequence and pales into insignificance
33 CrA. 427/2009

when direct evidence establishes the crime.
Therefore, in case there is direct
trustworthy evidence of the witnesses as to
commission of an offence, motive loses its
significance. Therefore, if the gensis of the
motive of the occurrence is not proved, the
ocular testimony of the witnesses as to the
occurrence could not be discarded only on
the ground of absence of motive, if
otherwise, the evidence is worthy of
reliance. (Harishanker Vs. State of U.P.
[(1996) 9 SCC 40], Bikau Pandey Vs. State
of Bihar [(2003) 12 SCC 616], State of U.P.
Vs. Kishanpal [(2008) 16 SCC 73], Abu
Thakir Vs. State of T.N. [(2010) 5 SCC 91],
and Bipin Kumar Mondal Vs. State of W.B.
[(2010) 12 SCC 91].”

54. It is further submitted by the Counsel for the appellant
that since, no blood stains were found on the knife, therefore,
the prosecution has failed to prove the recovery of knife and
thus, it gives a deep dent to the prosecution case. The
submission made by the Counsel for the appellant cannot be
accepted and hence rejected. The non-recovery of weapon of
offence, would not be material, where the case is based on
direct evidence.

55. The Supreme Court in the case of Nankaunoo V. State
of U.P. Reported in (2016) 3 SCC 317, has held as under :-

9. The learned counsel for the appellant contended
that the courts below failed to take note of the fact
that the alleged weapon “country-made pistol” was
never recovered by the investigating officer and in
the absence of any clear connection between the
weapon used for crime and ballistic report and
resultant injury, the prosecution cannot be said to
have established the guilt of the appellant. In the
light of unimpeachable oral evidence which is
amply corroborated by the medical evidence, non-
recovery of “country-made pistol” does not
materially affect the case of the prosecution. In a
case of this nature, any omission on the part of the
investigating officer cannot go against the
prosecution case. Story of the prosecution is to be
examined de hors such omission by the
investigating agency. Otherwise, it would shake the
confidence of the people not merely in the law
enforcing agency but also in the administration of
justice.”
34 CrA. 427/2009

56. The Supreme Court in the case of Mritunjoy Biswas
Vs. Pranab reported in (2013) 12 SCC 796 has held as
under :

”33. The learned counsel for the respondent has
urged before us that there has been no recovery of
weapon from the accused and hence, the
prosecution case deserves to be thrown overboard
and, therefore, the judgment of acquittal does not
warrant interference.

34. In Lakshmi v. State of U.P. (2002) 7 SCC
198this Court has ruled that: (SCC p. 205, para 16)
“16. Undoubtedly, the identification of the body,
cause of death and recovery of weapon with which
the injury may have been inflicted on the deceased
are some of the important factors to be established
by the prosecution in an ordinary given case to
bring home the charge of offence under
Section
302 IPC. This, however, is not an inflexible rule. It
cannot be held as a general and broad proposition
of law that where these aspects are not
established, it would be fatal to the case of the
prosecution and in all cases and eventualities, it
ought to result in the acquittal of those who may
be charged with the offence of murder.”

35. In Lakhan Sao v. State of Bihar (2000) 9 SCC
82 it has been opined that: (SCC p. 87, para 18)
“18. The non-recovery of the pistol or spent
cartridge does not detract from the case of the
prosecution where the direct evidence is
acceptable.”

36. In State of Rajasthan v. Arjun Singh (2011) 9
SCC 115 this Court has expressed that: (SCC p.
122, para 18)
“18. … mere non-recovery of pistol or
cartridge does not detract the case of the
prosecution where clinching and direct
evidence is acceptable. Likewise, absence of
evidence regarding recovery of used pellets,
bloodstained clothes, etc. cannot be taken or
construed as no such occurrence had taken
place.”

57. Thus, when there is ample unimpeachable ocular
evidence and the same has been corroborated by the medical
evidence, non-recovery of the weapon does not affect the
prosecution case.

58. Thus, where the oral evidence is unimpeachable and
reliable and further corroborated by the medical evidence,
35 CrA. 427/2009

then the prosecution case cannot be thrown overboard merely
on the basis of non-recovery of weapon of offence.

59. Thus, the appellant has failed to prove that he was
provoked by the situation and under the said sudden and
grave provocation, he lost the power of self control. Further
more, the number of injuries and the part of the body on
which the injuries were caused as well as the internal damage
caused by the injuries, clearly suggests that the appellant had
acted in a cruel manner. Thus, the case of the appellant would
not be covered by Exception 4 to
Section 300 of I.P.C., and
thus, he is held guilty of committing murder of his mother
Prembai, making himself liable for conviction under
Section
302 of I.P.C.

60. The next question for determination is that whether the
appellant had caused injuries to the injured Puja (P.W.1) and
whether they were dangerous to life?

61. Dr. Sarvesh Jain (P.W.10) had medically examined the
injured Puja (P.W.1) and had found the following injuries on
her body :

(i) Incised wound over left side of chest near
interior axillary line 2.3×0.8cm x depth cannot be
taken. Margins clean cut. Soft Clot present.

(ii) stab wound of 2.5 cm x 0.5 cm x depth cannot
be assessed. Slft clotted, blood present, margins
clean cut. Left Hypochondrium

(iii) Stab wound over abdomen in left
Hypochondrium 7 cm lateral to first wound size 2 cm
x 0.6 cm x depth cannot be assessed.

(iv) Incised wound over flexor aspect of left elbow.
Size 4 cm x 1 cm x muscle deep. Soft clotted blood
present margins clean cut.”
She was referred to Hamidia Hospital.
The M.L.C. Report of Puja (P.W.1) is Ex. P.13.

Dr. Dharmesh Tripathi (P.W.11) had treated the injured
Puja (P.W.1) at Hamidia Hospital. He found the above
mentioned injuries. The injured Puja (P.W.1) was operated
upon on 6-6-2007 and internal organs were repaired. The
injuries were found to be dangerous to life and were caused
by sharp and hard object. The report is Ex. P. 17.

62. Puja (P.W.1) has stated that the appellant had caused
multiple injuries (four in number) to her. She has stated that
36 CrA. 427/2009

the appellant had demanded Rs. 20,000 from the deceased
and when She refused to give the same, the appellant started
assaulting her. When this witness tried to intervene in the
matter, She too was assaulted by the appellant. The witness
was cross examined in detail, but nothing could be elicited
from her cross examination, which may make her evidence
unreliable.

63. The Supreme Court in the case of Jage Ram Vs. State
of Haryana reported in (2015) 11 SCC 366 has held as
under –

”12. For the purpose of conviction under
Section 307 IPC, the prosecution has to
establish (i) the intention to commit murder;
and (ii) the act done by the accused. The
burden is on the prosecution that the
accused had attempted to commit the
murder of the prosecution witness. Whether
the accused person intended to commit
murder of another person would depend
upon the facts and circumstances of each
case. To justify a conviction under
Section
307 IPC, it is not essential that fatal injury
capable of causing death should have been
caused. Although the nature of injury
actually caused may be of assistance in
coming to a finding as to the intention of the
accused, such intention may also be
adduced from other circumstances. The
intention of the accused is to be gathered
from the circumstances like the nature of
the weapon used, words used by the
accused at the time of the incident, motive
of the accused, parts of the body where the
injury was caused and the nature of injury
and severity of the blows given, etc.

13. In State of M.P. v. Kashiram [(2009) 4
SCC 26 ], the scope of intention for
attracting conviction under
Section 307 IPC
was elaborated and it was held as under:
(SCC pp. 29-30, paras 12-13)
“12. … ’13. It is sufficient to justify a
conviction under
Section 307 if there is
present an intent coupled with some
overt act in execution thereof. It is not
essential that bodily injury capable of
causing death should have been
inflicted. The section makes a
distinction between the act of the
accused and its result, if any. The court
37 CrA. 427/2009

has to see whether the act,
irrespective of its result, was done with
the intention or knowledge and under
circumstances mentioned in the
section. Therefore, an accused charged
under
Section 307 IPC cannot be
acquitted merely because the injuries
inflicted on the victim were in the
nature of a simple hurt.

14. This position was highlighted in State of
Maharashtra v. Balram Bama Patil [(1983) 2
SCC 28 ],
Girija Shankar v. State of U.P.
[(2004) 3 SCC 793 ]and
R. Prakash v. State
of Karnataka [(2004) 9 SCC 27].

* * *

16. Whether there was intention to kill or
knowledge that death will be caused is a
question of fact and would depend on the
facts of a given case. The circumstances that
the injury inflicted by the accused was
simple or minor will not by itself rule out
application of
Section 307 IPC. The
determinative question is the intention or
knowledge, as the case may be, and not the
nature of the injury.’
See State of M.P. v. Saleem [(2005) 5 SCC
554], SCC pp. 559-60, paras 13-14 and 16.
13 ‘6. Undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed, etc. This position was
illuminatingly stated by this Court in
Sevaka
Perumal v. State of T.N. [(1991) 3 SCC 47]
(Saleem case [(2005) 5 SCC 554], SCC p.
558, para 6)”

64. Thus, in view of the number of injuries, situs of injuries,
weapon used by the appellant, this Court is of the considered
opinion that the appellant had an intention to commit murder
of Puja (P.W.1) and there was an overt act on the part of the
appellant.

65. Thus, the appellant is held guilty of making an attempt to
kill Puja (P.W.1) and thus, has made himself liable for
conviction under
Section 307 of I.P.C.

38 CrA. 427/2009

66. Accordingly, the conviction of the appellant under
Sections 302, 307 of I.P.C. recorded by the Trial Court, is
hereby upheld.

67. So far as the question of sentence is concerned, the
minimum sentence provided for offence under
Section 302 of
I.P.C. is Life Imprisonment and therefore, no interference is
permissible. So far as the sentence awarded under
Section
307 of I.P.C. is concerned, the Trial Court has awarded the jail
sentence of rigorous imprisonment of 10 years and a fine of
Rs.500/- with default imprisonment. The manner in which the
offence has been committed by the appellant considering the
fact that he had given multiple knife blows to his own step
sister, this Court is of the considered opinion, that the jail
sentence of rigorous imprisonment of 10 years and a fine of
Rs. 500/- does not call for any interference. The Trial Court
has directed that both the sentences shall run concurrently.

68. Consequently, the judgment and sentence dated 26-2-
2009 passed by 2nd A.S.J. (Fast Track Court), Ganj Basoda,
Distt. Vidisha in Sessions Trial No.193/2007, is hereby
affirmed.

69. The appellant is in jail.

70. The appeal fails and is hereby dismissed.

(Anand Pathak ) (G.S. Ahluwalia)
Judge Judge

*MKB*

MAHENDRA KUMAR BARIK
2017.12.22 14:00:54 +05’30’

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