Full Judgment Text
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CASE NO.:
Appeal (crl.) 690 of 2007
PETITIONER:
Sunder Lal
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 07/05/2007
BENCH:
Dr. ARIJIT PASAYAT, P.K. BALASUBRAMANYAN & D.K. JAIN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 690 OF 2007
(Arising out of SLP (Crl.)No. 4589 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. In this appeal judgment of a Division Bench of the
Rajasthan High Court is the subject matter of challenge. The
appellant was found guilty of offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’),
while the co-accused Laxmi Narain was found guilty of offence
punishable under Section 302 read with Section 34 IPC. Each
of the accused was sentenced to undergo imprisonment for life
and to pay a fine of Rs.1,000/- each with default stipulation.
The trial Court’s judgment of conviction & sentence was
maintained.
3. Background facts in a nutshell are as under:
4. On 22.8.1998 a ’Parcha Bayan’ (Ex.P20) of injured
Heeralal (hereinafter referred to as the ’deceased’) was
recorded by the SHO, Police Station, Chechat, Distt. Kota,
wherein it was stated that accused appellant Sunderlal told
him as to why he has been abused. He told him that he should
remove the stones. Subsequently in the night at about 2 a.m.
when he was sleeping in his house, accused Sunderlal
inflicted a blow on his head by ’Gandasi’ with the intention to
kill him and also inflicted injuries on his hand. He also stated
that accused Laxmi Narain also inflicted injuries on his legs.
When he cried Chaturbhuj, Deva, Rameshwar came but both
the accused appellants ran away. On the basis of this ’Parcha
Bayan’ Police registered a case for offences under Sections
448, 307, 323 and 34 IPC. Subsequently, FIR No.125/1998
(Ex.P.22) was registered on 22.8.1998 itself. The injured was
examined in the night itself at about 3 a.m. at Primary Health
Centre, Chechat by Dr. Girish Chand (PW-1). The injured
succumbed to the injuries at about 7 a.m. His post-mortem
was conducted on 22.8.1998 itself by Dr. Ashok Mundara
(P.W.22). The I.O. prepared the site plan and recorded the
statements of the prosecution witnesses under Section 161 of
the Code of Criminal Procedure, 1973 (in short the ’Code’) The
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accused persons were arrested and on the basis of their
information, the weapons i.e. gandasi and lathi were
recovered. After death of Heera Lal the case was converted for
offence punishable under Section 302 IPC. After completion of
the investigation, the police filed a challan against both the
accused appellants. The case was committed and the trial
Court framed the charges against the accused appellant
Sunderlal for offence under Section 302 IPC and appellant
Laxmi Narain for offence under Section 302 read with Section
34 IPC. Both the accused denied the charges and claimed to
be tried.
5. The trial Court found the evidence to be cogent and
credible. The dying declaration was found to be reliable. The
High Court found the judgment of the trial Court to be in order
and dismissed the appeal.
6. In support of the appeal, learned counsel for the
appellants submitted that the High Court should not have
placed reliance on the so called dying declaration. The same
was not worthy of acceptance. Additionally, when the recovery
has been disbelieved, the conviction solely on the highly
improbable dying declaration should not have been made.
Alternatively, it was submitted that offence under Section 302
IPC has not been made out.
7. In response, learned counsel for the respondent-State
supported the order of the courts below.
8. The dying declaration was recorded at 3.45 a.m. on
22.8.1998. It was categorically stated that he was sleeping in
the night. The appellant came and assaulted him on his head
with the gandasi with the intention of killing him and the co-
accused Laxmi Narain inflicted injuries on his legs. The dying
declaration was treated as the first FIR when the investigation
was taken.
9. At this juncture, it is relevant to take note of Section 32
of the Indian Evidence Act, 1872 (in short ’Evidence Act’)
which deals with cases in which statement of relevant fact by
person who is dead or cannot be found, etc. is relevant. The
general rule is that all oral evidence must be direct viz., if it
refers to a fact which could be seen it must be the evidence of
the witness who says he saw it, if it refers to a fact which
could be heard, it must be the evidence of the witness who
says he heard it, if it refers to a fact which could be perceived
by any other sense, it must be the evidence of the witness who
says he perceived it by that sense. Similar is the case with
opinion. These aspects are elaborated in Section 60 of the
Evidence Act. The eighth clauses of Section 32 are exceptions
to the general rule against hearsay just stated. Clause (1) of
Section 32 makes relevant what is generally described as
dying declaration, though such an expression has not been
used in any Statute. It essentially means statements made by
a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death. The
grounds of admission are: firstly, necessity for the victim being
generally the only principal eye-witness to the crime, the
exclusion of the statement might deflect the ends of justice;
and secondly, the sense of impending death, which creates a
sanction equal to the obligation of an oath. The general
principle on which this species of evidence is admitted is that
they are declarations made in extremity, when the party is at
the point of death and when every hope of this world is gone,
when every motive to falsehood is silenced, and the mind is
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induced by the most powerful considerations to speak the
truth; a situation so solemn and so lawful is considered by the
law as creating an obligation equal to that which is imposed by
a positive oath administered in a Court of justice. These
aspects have been eloquently stated by Lyre LCR in R. v. Wood
Cock (1789) 1 Leach 500. Shakespeare makes the wounded
Melun, finding himself disbelieved while announcing the
intended treachery of the Dauphin Lewis explain:
"Have I met hideous death within my
view,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure ’gainst the fire?
What is the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4)
The principle on which dying declaration is admitted in
evidence is indicated in legal maxim "nemo moriturus
proesumitur mentiri \026 a man will not meet his maker with a lie
in his mouth."
10. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which a
person is on deathbed is so solemn and serene when he is
dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this
reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be
excluded it will result in miscarriage of justice because the
victim being generally the only eye-witness in a serious crime,
the exclusion of the statement would leave the Court without a
scrap of evidence.
11. Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth
as an obligation of oath could be. This is the reason the Court
also insists that the dying declaration should be of such a
nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the statement
of deceased was not as a result of either tutoring, or prompting
or a product of imagination. The Court must be further
satisfied that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the assailant. Once
the Court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any
further corroboration. 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. This Court has laid
down in several judgments the principles governing dying
declaration, which could be summed up as under as indicated
in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration.
[See Munnu Raja & Anr. v. The State of Madhya Pradesh
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(1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav
and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of
Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased had
an opportunity to observe and identify the assailants and was
in a fit state to make the declaration. [See K. Ramachandra
Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it should
not be acted upon without corroborative evidence. [See
Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard to
it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982
SC 1021)]
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. [See Ram Manorath and
Ors. v. State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does contain the
details as to the occurrence, it is not to be rejected. [See State
of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981
SC 617)]
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See Surajdeo Oza and Ors.
v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the eye-
witness said that the deceased was in a fit and conscious state
to make the dying declaration, the medical opinion cannot
prevail. [See Nanahau Ram and Anr. v. State of Madhya
Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said declaration
cannot be acted upon. [See State of U.P. v. Madan Mohan and
Ors. (AIR 1989 SC 1519)].
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time must be
preferred. Of course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to be accepted.
[See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR
1982 SC 839)]
12. In the light of the above principles, the acceptability of
alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must like any other evidence, satisfy the Court
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. 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 basis of conviction, even if there is no corroboration.
[See Gangotri Singh v. State of U.P.{JT 1992 (2)SC 417),
Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993 (5)
SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT
1994 (3) SC 232), State of Rajasthan v. Kishore (JT 1996 (2)
SC 595) and Muthu Kutty and Anr. v. State by Inspector of
Police, T.N. (2005 (9) SCC 113).
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13. This brings us to the crucial question as to which was
the appropriate provision to be applied. It is stated that the
occurrence took place at night with practically no light and
therefore, no identification would have been possible. 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.
14. 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 culpable homicide is
murder caused is done \026 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
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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.
15. 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
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.
16. 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
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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" mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of
nature.
17. 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.
18. 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.
19. 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
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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."
20. 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."
21. 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
nature, was sufficient to cause death, viz., that the injury
found to be present was the injury that was intended to be
inflicted.
22. 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.
23. 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
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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.
24. 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.
25. 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), Augustine
Saldanha v. State of Karnataka (2003 (10) SCC 472) and
Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).
26. Though the occurrence took place at night, the existence
of light, however, feeble has been established. The accused
and deceased were well known to each other. So identification
by deceased, since he was seeing him from close quarters, is
possible. If persons are known to each other, from the manner
of walk, talking and peculiar features of gait identification is
possible. The courts below have rightly held that deceased
could have easily identified the accused persons.
27. Considering the fact that the occurrence took place in the
night in almost dark conditions with feeble light and attack
was made indiscriminately, the appropriate conviction would
be under Section 304 Part I, IPC. Custodial sentence of 10
years would meet the ends of justice.
28. The appeal is allowed to the aforesaid extent.