Supreme Court of India
ONKAR LALversusSTATE OF MADHYA PRADESH
- Citation
- 2009 INSC 426
- Decided
- 31 March 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The prosecution proved the charge of murder beyond reasonable doubt, and the conviction under Section 302 IPC stands.
Summary
Onkar Lal, the uncle of the deceased Ramchandra Patidar, was charged with murder under Section 302 IPC for stabbing the victim with a sword during a card game on a moonlit night. The FIR was lodged within an hour of the incident by a person with no animosity towards the accused, and the weapon was later recovered from the accused's house, albeit without blood stains. Although four of the seven eye‑witnesses turned hostile, the trial court relied on the remaining eyewitnesses and other prosecution witnesses, leading to a conviction which the High Court affirmed. On appeal, the accused contended lack of motive, improper reliance on witnesses not named in the FIR, and argued that the offence should be limited to Section 304 Part II. The Supreme Court held that the prosecution had sufficiently proved the charge, that the nature of the injuries and the accused’s intent satisfied the elements of murder, and that the witnesses’ testimony was reliable despite some being hostile. Consequently, the conviction under Section 302 IPC was upheld and the appeal dismissed.
Issues considered
- The prosecution failed to establish a motive for the accused.
- Whether witnesses not named in the FIR could be relied upon.
- Whether the absence of blood stains on the seized weapon undermines the prosecution case.
- Whether the offence constitutes murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part II.
- Whether the FIR was lodged within a reasonable time.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 304
Subjects
murderSection 302 IPCeye‑witness testimonyhostile witnessFIR timingweapon seizureappellate review
Judgment
[2009] 5 S.C.R. 195
~. i
~
ONKAR LAL A
\I.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 323 of 2007)
MARCH 31, 2009
B
[S.B. SINHA, DR. MUKUNDAKAM SHARMA AND H.L.
DATTU, JJ.]
Penal Code, 1860 - s. 302 - Murder - Prosecution -
Eye-witnesses to the incident- Their names mentioned in FIR c
- FIR lodged within reasonable time - Recovery of weapon
of offence at the instance of the accused - Conviction by
courts below - On app_eal, held: Prosecution case proved -
Accused liable to be convicted - The witnesses were
--;I independent - The case cannot come within purview of s. 304 D
/PC in view of the nature of injuries caused.
Appellant-accused was prosecuted u/s. 302 IPC for
having caused death of one person. Weapon of offence
was seized at the instance of the accused. During trial 4
E
out of 7 eye-witnesses turned hostile. Trial court
convicted the accused, placing reliance on eye-
witnesses and other PWs. High Court confirmed the
conviction.
~ 1 In appeal to this court appellant-accused contended F
that prosecution has failed to prove its case in view of
the facts that there was no motive; that two of the
witnesses could not be termed as eye-witnesses and
their names were also not mentioned in FIR; that there
was no blood-stain on the seized weapon. Alternatively G
it was contended that only an offence u/s.304 (Part II) IPC
.,, was made out.
....
Dismissing the appeal, the Court
195 H
..
196 SUPREME COURT REPORTS [2009] 5 S.C.R.
A HELD: 1.1 The prosecution has failed to prove any
motive on the part of the appellant to commit the offence.
However, the prosecution case is found to have been
proved by several eye-witnesses who admittedly have no
animosity towards the appellant. Indisputably, the
B . appellant was closely related to the deceased being his
uncle. 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. The
c deceased had suffered as many as six injuries. On being
arrested the appellant made a confession leading to
recovery of a sword. 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 , __
0
lit it, the same is not of much significance. [Paras 12, 13,
14 and 15] [200-F-H; 201-A, E, FJ
1.2. The First Information Report was lodged within
a reasonable time. The very fact that the First Information
E 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. (Paras 16 and 17] [202-
B-C] .
F
1.3. Having regard to the materials brought on record
by the prosecution, there is no doubt that the statements
made by the first informant (PW-4) has been corroborated
in material particulars by other witnesses. Some of the
witnesses who have been declared hostile have also
G supported the prosecution case in part. [Para 23] (203-
H; 204-A-B]
' 1.4. Some of the prosecution witnesses were related
to the deceased. Their presence has been established
H
ONKAR LAL v. STATE OF MADHYA PRADESH 197
..
...,_ \
A
beyond any shadow of doubt. No suggestion had been
put to any one of the said witnesses that they had any
enmity against the accused. [Para 23) (204-C]
2. In a case of this nature where the appellant had
come with a sword and hit the deceased more than once, B
''-"'
leading to his death, the same, would not come within the
purview of the second part of Section 304 IPC. 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. [Para
c
23) (204-D]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 323 of 2007.
D
,..... ~'
From the Judgment & Order dated 26.10.2006 of the High
Court of Madhya Pradesh at Indore in Criminal Appeal No. 12
of 2002.
Kuna! Verma and Raju! Shrivastav (for S.K. Verma) for the
Appellant. E
R.P. Gupta, Upasana Nath, Sunny Chaudhary and Aditya
Singh (for C.D. Singh) for the Respondents.
The Judgment of the Court was deliver~d by
~.
F
i
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 G
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
H
...
198 SUPREME COURT REPORTS [2009] 5 S.C.R.
A Code and sentencing him to undergo rigorous imprisonment
f
--
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
B 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,
c 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
D 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
E
Kumar Makwana at about 10 p.m. on the same day.
4. The homicidal nature of death of Ramchandra is not in
dispute.
F 5. From the staterpent of Dr. N.M. Unda (PW-20), it k
appears that the deceased suffered two contusions and two
incised injuries as well as fracture of right wrist. The incised
injury found on occipital regi9n proved to be fatal.
In the first information report a vivid description of the
G 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
H
.. ONKAR LAL v. STATE OF MADHYA PRADESH 199
........ ) [S.B. SINHA, J.]
found place in the said report as the persons who had been A
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. B
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).
c
7. Both the courts below relied on the evidence of the eye
witnesses. Dayaram (PW-2), Sundarlal (PW-3), Vasudev (PW-
8) and. Babula I (PW-11) were, however, declared hostile.
D
--~ 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 E
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 F
' 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 G
doubtful insofar as identification of the appellant is
y
concerned.
• (iii) Amritlal (PW-7) and Gendalal (PW-6) cannot be
said to be eye-witnesses to the occurrence as they H
200 SUPREME COURT REPORTS (2009] 5 S.C.R.
I J
,;
A were standing at some distance.
(iv) Gendalal (PW-6) in his evidence having admitted
that he was not rn~ar the spot, Amrit Lal with whom
he was talking could not also be an eye-witness to
the occurrence.
B
(v) Moreover, the prosecution, having, failed to
establish any motive on the part the appellant, the
impugned judgment cannot be sustained.
c (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
D 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
E thereof.
11. Mr. R.P. Gupta, learned senior counsel appearing on
behalf of the respondent, on the other hand, supported the
impugned judgment.
F
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
G 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 y
being his uncle (mausa). They were residents of the same ~
village. Both were known to the villagers for a long time. It was
H a moonlit night. Cards were being played which could not have
,
ONKAR LAL v. STATE OF MADHYA PRADESH 201
[S.B. SINHA, J.]
. I
....
·A
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
8
hand shoulder joint in the area of 3 ems x 2 ems and
abrasion mark in the area of 2 ems x 1 ems 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 ems. x 0.7 ems and 1 cm x 0.5 cm, and c
Injury No. 4 fracture in the right ankle and fifth injury
lacerated wound on occipital part and below the occipital
part measuring 7 ems x 1.5 ems. 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
D
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 E
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 F
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 G
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 H
202 SUPREME COURT REPORTS [2009] 5 S.C.R.
t
. ..
A whatsoever that some time must have been consumed in the
process.
PW-4 Mahesh Kumar lodged the First Information Report.
We have noticed hereinbefore that the occurrence took place
B 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
c 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
D 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.
E
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 the owner of the shop, his presence
F 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.
G
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
H
ONKAR LAL v. STATE OF MADHYA PRADESH 203
[S.B. SINHA, J.)
' " in between. He immediately reached the place of occurrence A
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. B
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
c
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 D
.. ..Ji
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 E
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, F
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 G
thereof. Thus, both the statements made by the said witnesses
in his deposition before the Court as also in the First
'I
Information Report corroborate each other.
23. Having regard to the materials brought on record by
H
204 SUPREME COURT REPORTS [2009] 5 S.C.R.
A the prosecution, as noticed hereinbefore, we have no doubt in
I
...
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
B case in part but for our purpose it is not necessary to consider v-4
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
c 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
D 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
E of the body as he was assaulted repeatedly.
24. For the reasons aforementioned, we find no merit in
this appeal. Accordingly, it is dismissed.
K.K.T. Appeal dismissed.
F '
).
y
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