Full Judgment Text
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CASE NO.:
Appeal (crl.) 1304 of 2007
PETITIONER:
Bhagwan Bahadure
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 28/09/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1304 OF 2007
(Arising out of SLP (Crl.) No. 3196 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court, Nagpur Bench upholding
the conviction of the appellant for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)
and sentence of imprisonment for life and fine of Rs.1,000/-
with default stipulation.
3. Background facts in a nutshell are as follows:
On 13th March, 2000 Bhagwan Bahadure came to
Bhendala and stayed with Kachrabai (hereinafter referred to
as the ’deceased’), who was residing with her mother Tuljabai
(PW-7). In the morning, of the day of incident, the appellant
started quarrelling with the deceased on a flimsy ground. The
appellant asked her to accompany him to his house. It is
alleged that the appellant, who had a stick in his hand,
assaulted the deceased by means of the stick. The deceased
fell down on the ground. The appellant gave a blow with the
stick on her head, whereby deceased suffered serious injuries
and became unconscious. The appellant thereafter threw the
stick and ran away towards bus stand. Sidharth (PW 1)
witnessed the incident. He went to the roadside for bringing a
jeep to carry his mother to the hospital at Pauni. The Medical
Officer gave first-aid to the victim as the injuries were severe
and she was unconscious. The Medical Officer advised the
family members to take her to the Govt. Medical College,
Nagpur. In the meanwhile, PW 1 lodged a report in the police
station against the appellant. Police registered a crime.
Deceased succumbed to the injuries on way to the hospital at
Nagpur.
4. Considering the evidence of PWs 1,7 & 8, trial court
found the evidence to be credible and cogent and accepted the
same. He did not find any substance in the plea of the
appellant that PWs 1 & 7 were related to the deceased and,
therefore, their evidence could not be acted upon. It also did
not accept the plea that offence under Section 302 IPC was not
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made out. Questioning the correctness of the trial court’s
order, appeal was preferred before the High Court which as
noted above did not find any substance in the appeal.
5. The stand taken before the trial court and the High Court
was reiterated in this appeal.
6. Learned counsel for the State on the other hand
supported the judgment.
7. We shall first deal with the contention regarding
interestedness of the witnesses for furthering prosecution
version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not
conceal actual culprit and make allegations against an
innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it is
cogent and credible.
8. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953
SC 364) it has been laid down as under:-
"A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close
relation would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high and
there is personal cause for enmity, that there
is a tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However, we
are not attempting any sweeping
generalization. Each case must be judged on
its own facts. Our observations are only made
to combat what is so often put forward in
cases before us as a general rule of prudence.
There is no such general rule. Each case must
be limited to and be governed by its own
facts."
9. The above decision has since been followed in Guli
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
was also relied upon.
10. We may also observe that the ground that the witness
being a close relative and consequently being a partisan
witness, should not be relied upon, has no substance. This
theory was repelled by this Court as early as in Dalip Singh’s
case (supra) in which surprise was expressed over the
impression which prevailed in the minds of the Members of the
Bar that relatives were not independent witnesses. Speaking
through Vivian Bose, J. it was observed:
"We are unable to agree with the learned
Judges of the High Court that the testimony of
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the two eyewitnesses requires corroboration.
If the foundation for such an observation is
based on the fact that the witnesses are
women and that the fate of seven men hangs
on their testimony, we know of no such rule.
If it is grounded on the reason that they are
closely related to the deceased we are unable
to concur. This is a fallacy common to many
criminal cases and one which another Bench
of this Court endeavoured to dispel in \026
’Rameshwar v. State of Rajasthan’ (AIR 1952
SC 54 at p.59). We find, however, that it
unfortunately still persists, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."
11. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC
202) this Court observed: (p. 209-210 para 14):
"But it would, we think, be unreasonable to
contend that evidence given by witnesses
should be discarded only on the ground that it
is evidence of partisan or interested
witnesses.......The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct."
12. To the same effect is the decision in State of Punjab v.
Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana
(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of
Orissa (2002 (8) SCC 381).
13. The above position was highlighted in Babulal Bhagwan
Khandare and Anr. V. State of Maharashtra [2005(10) SCC
404] and in Salim Saheb v. State of M.P. (2007(1) SCC 699).
14. This brings us to the crucial question as to which was
the appropriate provision to be applied. In the scheme of the
IPC culpable homicide is genus and ’murder’ its specie. All
’murder’ is ’culpable homicide’ but not vice-versa. Speaking
generally, ’culpable homicide’ sans ’special characteristics of
murder is culpable homicide not amounting to murder’. For
the purpose of fixing punishment, proportionate to the gravity
of the generic offence, the IPC practically recognizes three
degrees of culpable homicide. The first is, what may be called,
’culpable homicide of the first degree’. This is the gravest form
of culpable homicide, which is defined in Section 300 as
’murder’. The second may be termed as ’culpable homicide of
the second degree’. This is punishable under the first part of
Section 304. Then, there is ’culpable homicide of the third
degree’. This is the lowest type of culpable homicide and the
punishment provided for it is also the lowest among the
punishments provided for the three grades. Culpable homicide
of this degree is punishable under the second part of Section
304.
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15. The academic distinction between ’murder’ and ’culpable
homicide not amounting to murder’ has always vexed the
Courts. The confusion is caused, if Courts losing sight of the
true scope and meaning of the terms used by the legislature in
these sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the interpretation
and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of Sections
299 and 300. The following comparative table will be helpful in
appreciating the points of distinction between the two offences.
Section 299 Section 300
A person commits culpable homicide Subject to certain exceptions
if the act by which the death is caused is done- culpable homicide is murder
if the act by which the
death is caused is done -
INTENTION
(a) with the intention of causing (1) with the intention of
death; or causing death; or
(b) with the intention of causing (2) with the intention of
such bodily injury as is likely causing such bodily injury
to cause death; or as the offender knows to be
likely to cause the death of
the person to whom the harm
is caused;
or
(3) With the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted
is sufficient in the
ordinary course of nature
to cause death; or
KNOWLEDGE
(c) with the knowledge that the act (4) with the knowledge that
is likely to cause death. the act is so imminently
dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
incurring the risk of causing
death or such injury as is
mentioned above.
16. Clause (b) of Section 299 corresponds with clauses (2)
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact
that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or
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condition. It is noteworthy that the ’intention to cause death’
is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the
offender’s knowledge of the likelihood of such injury causing
the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause. This aspect of clause
(2) is borne out by illustration (b) appended to Section 300.
17. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally given
knowing that the victim is suffering from an enlarged liver, or
enlarged spleen or diseased heart and such blow is likely to
cause death of that particular person as a result of the
rupture of the liver, or spleen or the failure of the heart, as the
case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an intention to
cause death or bodily injury sufficient in the ordinary course
of nature to cause death, the offence will not be murder, even
if the injury which caused the death, was intentionally given.
In clause (3) of Section 300, instead of the words ’likely to
cause death’ occurring in the corresponding clause (b) of
Section 299, the words "sufficient in the ordinary course of
nature" have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real and if overlooked, may
result in miscarriage of justice. The difference between clause
(b) of Section 299 and clause (3) of Section 300 is one of the
degree of probability of death resulting from the intended
bodily injury. To put it more broadly, it is the degree of
probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The
word ’likely’ in clause (b) of Section 299 conveys the sense of
probable as distinguished from a mere possibility. The words
"bodily injury.......sufficient in the ordinary course of nature to
cause death" means that death will be the "most probable"
result of the injury, having regard to the ordinary course of
nature.
18. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient
to cause death in the ordinary course of nature. Rajwant and
Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt
illustration of this point.
19. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465),
Vivian Bose, J. speaking for the Court, explained the meaning
and scope of clause (3). It was observed that the prosecution
must prove the following facts before it can bring a case under
Section 300, "thirdly". First, it must establish quite
objectively, that a bodily injury is present; secondly the nature
of the injury must be proved. These are purely objective
investigations. Thirdly, it must be proved that there was an
intention to inflict that particular injury, that is to say, that it
was not accidental or unintentional or that some other kind of
injury was intended. Once these three elements are proved to
be present, the enquiry proceeds further, and fourthly it must
be proved that the injury of the type just described made up of
the three elements set out above was sufficient to cause death
in the ordinary course of nature. This part of the enquiry is
purely objective and inferential and has nothing to do with the
intention of the offender.
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20. The ingredients of clause "Thirdly" of Section 300, IPC
were brought out by the illustrious Judge in his terse language
as follows:
"To put it shortly, the prosecution must prove the
following facts before it can bring a case under
Section 300, "thirdly".
First, it must establish, quite objectively, that a
bodily injury is present.
Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that
is to say that it was not accidental or unintentional,
or that some other kind of injury was intended.
Once these three elements are proved to be present,
the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the
type just described made up of the three elements
set out above is sufficient to cause death in the
ordinary course of nature. This part of the enquiry
is purely objective and inferential and has nothing
to do with the intention of the offender."
21. The learned Judge explained the third ingredient in the
following words (at page 468):
"The question is not whether the prisoner
intended to inflict a serious injury or a trivial
one but whether he intended to inflict the
injury that is proved to be present. If he can
show that he did not, or if the totality of the
circumstances justify such an inference, then
of course, the intent that the section requires
is not proved. But if there is nothing beyond
the injury and the fact that the appellant
inflicted it, the only possible inference is that
he intended to inflict it. Whether he knew of its
seriousness or intended serious consequences,
is neither here or there. The question, so far
as the intention is concerned, is not whether
he intended to kill, or to inflict an injury of a
particular degree of seriousness but whether
he intended to inflict the injury in question
and once the existence of the injury is proved
the intention to cause it will be presumed
unless the evidence or the circumstances
warrant an opposite conclusion."
22. These observations of Vivian Bose, J. have become locus
classicus. The test laid down by Virsa Singh’s case (supra) for
the applicability of clause "Thirdly" is now ingrained in our
legal system and has become part of the rule of law. Under
clause thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are satisfied: i.e. (a)
that the act which causes death is done with the intention of
causing death or is done with the intention of causing a bodily
injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It
must be proved that there was an intention to inflict that
particular bodily injury which, in the ordinary course of
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nature, was sufficient to cause death, viz., that the injury
found to be present was the injury that was intended to be
inflicted.
23. Thus, according to the rule laid down in Virsa Singh’s
case, even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention
of causing death, the offence would be murder. Illustration (c)
appended to Section 300 clearly brings out this point.
24. Clause (c) of Section 299 and clause (4) of Section 300
both require knowledge of the probability of the act causing
death. It is not necessary for the purpose of this case to dilate
much on the distinction between these corresponding clauses.
It will be sufficient to say that clause (4) of Section 300 would
be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as
distinguished from a particular person or persons \026 being
caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability, the act
having been committed by the offender without any excuse for
incurring the risk of causing death or such injury as aforesaid.
25. The above are only broad guidelines and not cast iron
imperatives. In most cases, their observance will facilitate the
task of the Court. But sometimes the facts are so intertwined
and the second and the third stages so telescoped into each
other that it may not be convenient to give a separate
treatment to the matters involved in the second and third
stages.
26. The position was illuminatingly highlighted by this Court
in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.
(1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors.
v. State of Andhra Pradesh (JT 2002 (6) SC 274), and
Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472)
and Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).
27. Keeping the aforesaid legal principles in view, the factual
position is to be examined. It cannot be said as a rule of
universal application that whenever one blow is given Section
302 IPC is ruled out. It would depend upon the facts of each
case. The weapon used, size of the weapon, place where the
assault took place, background facts leading to the assault,
part of the body where the blow was given are some of the
factors to be considered.
28. Considering the background facts involved, the
appropriate conviction would be under Section 304 Part I IPC,
and conviction is accordingly altered. Custodial sentence of
10 years would meet the ends of justice.
29. The appeal is allowed to the aforesaid extent.