Full Judgment Text
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CASE NO.:
Appeal (crl.) 595 of 2008
PETITIONER:
Daya Nand
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 03/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 595 OF 2008
(Arising out of SLP (Crl.) No.4325 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a
Division Bench of the Punjab and Haryana High Court
upholding the conviction of the appellant for offence
punishable under Section 302 of the Indian Penal Code, 1860
(in short ’IPC’) in terms of the judgment dated 9/10.10.1997
passed by the Additional Sessions Judge, Hissar.
3. A synoptical resume of the prosecution case is as under:
The prosecution machinery was set into motion at the
instance of Shankar - PW 5 who had four brothers. Chhajju
Ram (hereinafter referred to as the ’Deceased’) was younger to
PW 5- Shankar and they had a joint khewat in the revenue
estate of village Sirdhan. On 9.9.1993 the said Shankar and
his brother Nain Sukh and deceased Chhajju Ram went to
their fields known as Theriwala for irrigating the land. Amar
Singh (who faced trial and was acquitted) and Daya Nand
(appellant herein) were already irrigating their fields. Shankar
and others were to take turn of irrigation at 8.00 A.M. from
the accused. At 8.00 A.M. deceased Chhajju Ram diverted the
irrigation water to his field. Accused Daya Nand objected that
his turn of water had not yet started. Chhajju Ram retorted
that their turn started from 8.00 A.M. onwards. An altercation
took place between Shankar and the deceased on one side
and the accused on the other. Accused threatened that they
will see them and both of them left towards the village.
Shankar and others also went to supervise the flow of
irrigation water through the water courses. In the meantime,
both the accused came from the side of village Sirdhan.
Accused Daya Nand was armed with a gun. Accused Amar
Singh exhorted his son accused -Daya Nand to fire a shot.
Accused Daya Nand then fired a shot from his gun towards
Chhajju Ram who took a turn but was hit on the right side of
the waist and fell down. Blood started oozing out from the fire
shot injury. Nain Sukh (PW-6) also reached there at the Naka
and witnessed the occurrence apart from Shankar. Thereafter,
accused fled away towards the village along with the gun.
Chhajju Ram was admitted to Civil Hospital, Fatehabad by his
brother Shanker and Nain Sukh, where he was declared dead
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by the doctor. Ruqa Ex. PG was sent by Dr. Jagdish
Chaudhry to the Station House Officer, Police Station
Fatehabad. A wireless message Ex. PK was sent by the said
Police Station to Police Station Bhattu. Ram Kumar, Assistant
Sub inspector along with some constables reached Civil
Hospital Fatehabad and recorded the statement of Shanker in
Civil Hospital, Fatehabad. That statement Ex. PG/1 was sent
to the Police Station and on its basis, FIR was recorded by
Satbir Singh MHC, copy of which is Ex. PG/3. Inquest
proceedings were conducted and report Ex. PF/1 was
prepared by Ram Kumar Assistant Sub Inspector in the
presence of Devi Lal and Shanker Lal PWs. He moved an
application Ex. PF and post mortem examination was
conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple
wounds of small sizes were found and eleven pellets were
recovered from the abdomen of the deceased. The pellets were
sealed in a vial. The clothes of the deceased were removed and
sealed into a parcel. The cause of death was due to shock and
haemorrhage as a result of fire arm injuries which were ante
mortem in nature and sufficient to cause death in the
ordinary course of nature vide post mortem report Ex. PF/2.
Ram Kumar, Assistant Sub Inspector along with Ram Kumar
Constable then went to village Sirdhan. He inspected the spot
in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij
Lal, Chowkidar. Blood stained earth was lifted, made into a
sealed parcel and taken into possession vide recovery memo
Ex. PH. One empty cartridge of 12 bore was found lying which
was also lifted, made into a sealed parcel and taken into
possession vide memo Ex. PJ. Rough site plan, Ex. PL, was
prepared and statements of other witnesses were recorded.
Accused Daya Nand produced a double barrel gun, Ex. P-8,
licence, Ex. P-9, and two live cartridges. Sketch map, Ex. PP
of the gun was prepared. The gun was placed in a sealed
parcel. The licence and the two live cartridges were also sealed
in parcel and taken into possession vide memo Ex. PP/1. The
case property was sent for Chemical Examination and for
report of the Ballistic expert of Forensic Science Laboratory,
Haryana, Madhuban. Vide report, Ex. PO, the double barrel
gun, Ex. P8, was found in working order, the empty cartridge
hereinafter referred to as the crime cartridge, which was lifted
from the spot, Ex. P6, was opined to have been fired from the
said gun. The pellets recovered from the dead body were
opined to be pellets as are usually loaded in shot gun
cartridges, including 12 bore cartridge. As per reports, Ex.
PO/1 and Ex. P0/2, human blood was found in blood stained
earth and on shirt, Ex. P-1, Banian, Ex. P-2 and underwear
Ex. P-3 of the accused. After completion of investigation,
accused was sent up for trial.
Charge was framed against accused Daya Nand under
Section 302 IPC and 27 of the Arms Act, 1959. Charge was
framed against accused Amar Singh under Section 302 read
with Section 34 IPC.
4. In order to establish the accusations the prosecution
examined 10 witnesses and the report of the Forensic Science
Laboratory, Haryana, Madhuban was exhibited.
5. Accused persons during their examination under Section
313 of the Code of Criminal Procedure, 1973 (in short
’Cr.P.C.’) pleaded innocence and false implication. The Trial
Court relied on the evidence of eye witnesses Shankar (PW5)
and Nain Sukh (PW6). It found the prosecution evidence
cogent and credible and recorded conviction of the appellant.
But so far as accused Amar Singh is concerned, it was held
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that the evidence was not sufficient to fasten guilt on him.
6. In appeal, it was submitted that the evidence of Shankar
(PW5) and Nain Sukh (PW6) should not have been relied upon.
It was further submitted that a single shot that too on the hip
cannot attract application of Section 302 IPC. Prosecution
with reference to the evidence of Shankar (PW5) and Nain
Sukh (PW6) submitted that the evidence was clear and cogent
and, therefore, the accused persons were to be convicted. The
High Court, as noted above, dismissed the appeal.
7. Basic challenge in this appeal is to the conviction under
Section 302 IPC.
8. It was contended, as was done before the Trial Court and
the High Court, that Section 302 IPC has no application.
9. Learned counsel for the State, on the other hand
supported the impugned judgment.
10. The crucial question is 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.
11. 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
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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 al
l
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
incurring the risk of causin
g
death or such injury as is
mentioned above.
12. 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.
13. 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 to cause death" have been used. Obviously, the
distinction lies between a bodily injury likely to cause death
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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" mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of
nature.
14. 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.
15. 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.
16. 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."
17. 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."
18. 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.
19. 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 not be murder.
Illustration (c) appended to Section 300 clearly brings out this
point.
20. 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
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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.
21. 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.
22. 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 (2002 (7) SCC 175), Augustine
Saldanha v. State of Karnataka (2003 (10) SCC 472),
Thangiya v. State of T.N. (2005 (9) SCC 650) and in Rajinder v.
State of Haryana (2006 (5) SCC 425).
23. Considering the evidence on record in the background of
the principles of law, the inevitable conclusion is that the
appropriate conviction would be under Section 304 Part II IPC.
The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of nearly
8= years. The sentence is restricted, therefore, to the period
already undergone. The appeal is allowed to that extent. The
accused person be set at liberty forthwith unless required in
custody in any other case.