Full Judgment Text
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CASE NO.:
Appeal (crl.) 309 of 1997
PETITIONER:
Shankar Narayan Bhadolkar
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 09/03/2004
BENCH:
Y.K. SABHARWAL & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Pandurang Varambale (hereinafter referred to as the
’deceased’) would not have in his wildest dreams on 8.5.1982
dreamt when he left home to attend the invitation extended
by the appellant Shankar Narayan Bhadolkar (hereinafter
referred to as accused A-1), that he would never return
alive. The appellant allegedly shot him dead by a gun when
the deceased was in his house in response to his invitation
to attend a marriage celebration. The appellant along with
his wife Laxmibai (A-4), son Dinkar (A-3) and one Sambhaji
Mahadeo Patil (A-2) faced trial. They were charged for
commission of offences punishable under Sections 302, 201
read with Section 34 of the Indian Penal Code, 1860 (in
short the ’IPC’). Appellant was alternatively charged for
commission of offence punishable under Section 302, 201 and
Section 25(1A) of the Arms Act, 1959 (in short the ’Arms
Act’).
The trial Court found the appellant guilty of the
offences punishable under Sections 302, 201 IPC and 25 of
the Arms Act. The other three co-accused persons were
acquitted. Appellant was sentenced to undergo life
imprisonment, two years and six months respectively, with
fines and default stipulations.
Prosecution version as unfolded during trial is as
follows:
Complainant Dilip Shripati Dalavi (PW-2) had a laundry
in the Shivaji Chowk, Kohlapur. There was also a hair
cutting shop adjoining his laundry, which was run by
Shantaram Mane (PW-4) and Ramchandra Mane. They are
friends. The deceased was coming to the said hair cutting
saloon and hence he had become their friend. Accused no.1-
appellant was also visiting the said saloon and he had also
become their friend. On 2.5.1982, accused no.1 had come to
the shop of Dilip Dalavi (PW-2) and gave him invitation for
dinner arranged in his house at Vadanage, near the limits of
Nigave Dumala Village. The said invitation was for the
dinner arranged on 8.5.1982. Besides the complainant,
accused no.1 also invited Rajendra the brother of the
complainant, Shantaram Mane (PW-4) and his brother Rama and
another friend Dattu Kurane. Accused no.1 told him that in
case they did not attend the dinner, then they will have to
pay a penalty of Rs.100/-. At that time, deceased had come
to the saloon where this talk was going on. The deceased
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was also invited by accused no.1 for the said dinner.
On 8.5.1982 about 5.30 p.m. the complainant and others
left for Vadanage to the village of accused no.1. After
reaching the Mace, they moved around and thereafter took
meals. A bus was to leave at about 8.00 p.m. for their
return journey to Kolhapur. They finished their meals at
about 7.30 p.m. Thereafter all the invitees came out of the
house and they wanted to catch the bus.
One Sambhaji Patil (A-2) and one unknown person entered
the house of accused no.1. Deceased also followed them and
went inside. As there was some time for catching the bus,
the complainant also entered the house of accused no.1 for
chewing betal leaves. The bus stop was just in front of the
house of accused no.1. The complainant sat on the cot. The
deceased was standing on the threshold of the house. The
unknown person was standing close to them. Accused no.2 was
sitting on the chair in front of him.
Accused no.1 lifted the gun, loaded it with cartridge
and pointed it towards the deceased and then fired it. The
said shot hit on the left side chest of the deceased, who
collapsed and blood started oozing. As soon as deceased
fell down, he died instantaneously. As the complainant was
afraid, he came out of the house. Rajendra, Shantaram,
Ramchandra and Dattu Kurane were outside the house. As soon
as he came out of the house, those persons enquired from him
about the sound. He disclosed to them that accused no.1 had
fired a gun hitting Pandurang. Thereafter they all started
towards Vadanage. They went to the house of Sadashiv Khadaka
to whom they narrated the incident, because he was their
friend. The distance between his house and the house of
accused no.1 is about 2 to 3 kms. The brother-in-law of the
deceased resides in the same village. Khadake had taken them
in his house. Then they went to village Kerli in the bus
belonging to the society of Vadanage, because the deceased
was from Kerli. Then they went to Mahadeo Varsmble who is
the cousin brother of the deceased. They woke him up and
told him about the incident. Thereafter they all went to
Shripati Chougule and disclosed to him the incident. Then he
himself alongwith five others who were present for the
dinner came to Karvir Police Station in jeep. Shripati
Chougule came to the police station by motorcycle. Complaint
was lodged in the Karvir Police Station. It was reduced into
writing. On the basis of the said first information report,
the Police Inspector Shirawekar registered the offence u/s
302 IPC and also under Section 25 of the Arms Act.
Thereafter Police Inspector visited the spot along with the
complainant and his staff in the jeep. The complainant
pointed out the house of accused no.1. Police Inspector
called out accused no.1 by standing near door. Accused no.1
who came out by opening the latch of the door was arrested.
A green lungi which was on the person of accused no.1 was
attached under panchanama (Ex.12). On interrogation accused
no.1 expressed his willingness to show the well where the
corpse of the deceased was thrown. The said well is situate
at village Kerli. Accordingly a memorandum was prepared
vide Ex.23 in presence of the panchas. Accused no.1 then
led them to the well and the dead body of deceased was taken
out from the well. It was wrapped in a gunny bag. After
opening the gunny bag, the dead body was taken out. It was
identified by Sadashiv and others. Accordingly panchanama
(Ex.24) was prepared. Under the panchanama muddemal articles
nos. 2 and 3 were also attached. Then inquest on the dead
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body was drawn (Ex.30). The dead body was sent to the doctor
for autopsy. Then the Police Inspector arrested accused
no.2. He also attached a white Dhoti and Nehru shirt (Art. 4
& 5) of deceased no.2 under panchanama (Ex.14). Then he
visited the scene of offence in the morning and drew
panchanama (Ex.15). He found some blood stains on the
threshold and also on the bench. The floor was cleaned with
cow dung. Soiled cow dung was found at the backyard of the
house of accused no.1. It was also attached. Statements of
witnesses were recorded.
On 30.5.1982 he sent the muddemal articles nos. 1 to 30
and also the viscera and plastic like material forwarded by
the Medical Officer, along with his forwarding letter to the
Chemical Analyser Pune so also, muddemal article, no.10 the
gun was sent to the Ballistic Expert for examination and his
opinion. On enquiry it was revealed that the gun (Art.10)
was in the name of accused no.3 having a valid licence. The
same was attached by him. He obtained a permission from the
District Magistrate, Kolhapur (Ex.21) against accused no.1
for having used the gun without valid licence. for his
prosecution under the Arms Act. After conclusion of the
investigation, charge sheet was submitted in the Court of
Chief Judicial Magistrate, Kolhapur.
The charge was framed against accused nos. 1 to 4 and
they pleaded not guilty.
Accused appellant took the plea that on the date of
occurrence he had invited 30/40 persons to attend the dinner
and the deceased was one of them. He was heavily drunk and
was not in a position to walk and also unable to control
himself. Apprehending that the deceased might create
problems and fall on the road, the appellant dissuaded him
from returning to his place and advised him to go on the
next day. But the deceased paid little heed. To scarce him,
the appellant picked up a gun lying there, loaded the same
with blank cartridges which only create noise. But the
deceased tried to snatch it from him. In the scuffle when
the deceased pulled the barrel of the gun accidentally it
got fired and deceased sustained injuries on his chest.
After seeing the injury, the appellant was totally shocked
and fled away. The other accused persons denied their
involvement in the occurrence. The trial Court as noted
above, found the co-accused not guilty but recorded the
conviction so far as the appellant is concerned under
Sections 302, 201 IPC and Section 25(1A) of the Arms Act,
and imposed sentences.
The plea before the High Court which, did not find
acceptance, was that there was no offence involved as the
act was covered by Section 80 IPC. In any event, there was
no element of culpability to bring home accusations of
Section 302. At the most it was covered by Section 304A.
Finally, it was submitted that even if the prosecution
version is accepted in its toto, the case would be covered
under Section 304 Part II. The trial Court held that though
intention may not be attributed for causing death, it cannot
be said that the accused did not have the requisite
knowledge and the case was covered under clause fourthly of
Section 300. In appeal by the impugned judgment, the High
Court upheld the conviction and sentence. It, however, held
that the case was really covered by clauses Firstly and
Thirdly of Section 300.
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In support of the appeal, learned counsel for the
accused appellant reiterated the stand taken before the
trial court. It is relevant to note at this juncture that
before the High Court the plea that the case was covered
under Section 304A was not specifically pressed into
service. However, the other two pleas raised before the
trial Court i.e. applicability of Section 80 IPC or in the
alternative Section 304 Part II IPC were urged. According to
him, the first plea was available to be urged. He further
submitted that the scenario clearly rules out any
culpability and the act was merely accidental. The accepted
position being that there was no motive to kill the
deceased, both the accused and the deceased were friendly,
there was large number of people invited for the dinner and
the invitees included the deceased, the pleas of the accused
appellant, should have been accepted. It was urged that the
case at hand bears great resemblance to factual position in
Sadhu Singh Harnam Singh v. The State of Pepsu (AIR 1954 SC
271). In that case it was held that the case was covered by
Section 304A and the custodial sentence was restricted to
the period of custodial sentence already undergone.
Residually it was submitted that even if as projected
by the prosecution, its case is accepted offence under
Section 302 IPC is not made out and it would be a case under
Section 304 Part II. With reference to the age of the
accused it was pointed out that he is now nearly 80 years
and the sentence should be restricted to the period already
undergone.
In response, learned counsel for the respondent-State
submitted that the two courts have analysed the factual
position in great detail and have rejected the pleas
presently being urged. The case is one where Section 302 IPC
is clearly applicable. The conduct of the accused after the
occurrence shows the deliberateness in his action. If it was
accidental as pleaded, the normal reaction after the gun
shot would have been to save the deceased and not to cause
disappearance of his dead body by carrying it in gunny bag
and throwing it into a well. These factors clearly establish
that the gun was fired deliberately with clear intention to
kill the deceased.
Section 80 IPC is a part of Chapter IV IPC dealing with
"General Exceptions". The "general exceptions" contained
in Sections 76 to 106 make an offence a non-offence. The
"general exceptions" enacted by IPC are of universal
application and for the sake of brevity of expression,
instead of repeating in every section that the definition is
to be taken subject to the exceptions, the Legislature by
Section 6 IPC enacted that all the definitions must be
regarded as subject to the general exceptions. Therefore,
general exceptions are part of definition of every offence
contained in IPC, but the burden to prove their existence
lies on the accused.
Section 80 protects an act done by accident or
misfortunate and without any criminal intention or knowledge
in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution. The primordial
requirement of Section 80 is that the act which killed the
other person must have been done "with proper care and
caution". In Bhupendrasinh A. Chaudasama v. State of
Gujarat (1998 (2) SCC 603) it was held by this Court that
where the accused shot his own colleague at close range
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without knowing the identity of his target, the act smacked
of utter dearth of any care and caution.
The amount of care and circumspection taken by an
accused must be one taken by a prudent and reasonable man in
the circumstances of a particular case. Where the act of the
accused is itself criminal in nature the protection under
Section 80 is not available. If the accused pleads
exception within the meaning of Section 80 there is a
presumption against him and the burden to rebut the
presumption lies on him. (See K.M. Nanavati v. State of
Maharashtra (AIR 1962 SC 605).
Here the evidence on record as substantiated by the
testimony of PWs 2 and 3 shows that the accused picked up
the gun, unlocked it, loaded it with cartridges and shot the
gun from a close range of about 4/5 ft. aimed at his chest.
Certainly in view of unimpeachable evidence of PWs 2 and 3,
Section 80 has no application.
Coming to the plea of the applicability of Section 304A
it is to be noted that the said provision relates to death
caused by negligence. Section 304A applies to cases where
there is no intention to cause death and no knowledge that
the act done in all probabilities will cause death. The
provision relating to offences outside the range of Sections
299 and 300 IPC. It applies only to such acts which are rash
and negligent and are directly the cause of death of another
person. Rashness and negligence are essential elements under
Section 304A. It carves out a specific offence where death
is caused by doing a rash or negligent act and that act does
not amount to culpable homicide under Section 299 or murder
in Section 300 IPC. Doing an act with the intent to kill a
person or knowledge that doing an act was likely to cause a
persons’ death is culpable homicide. When the intent or
knowledge is the direct motivating force of the act, Section
304A IPC has to make room for the graver and more serious
charge of culpable homicide.
In order to be encompassed the protection under Section
304A there should be neither intention nor knowledge to
cause death. When any of these two elements is found to be
present, Section 304A has no application. The accused-
appellant not only picked up the gun, unlocked it for user
but also put the cartridges and fired from very close range,
aiming at a very vital part of the body.
In the background facts as highlighted above the
inevitable conclusion is that Section 304A has no
application.
The decision in Sadhu Singh’s case (supra) has no
application because in that case the evidence indicated that
the gun was not aimed at the victim and there was evidence
of scuffle between the accused and the deceased. In the
present case though such plea was taken, it has not been
substantiated. On the contrary the evidence of PWs 2 and 3
shows that there was no scuffle as claimed by the accused.
The only other point which needs to be considered is
whether Section 302 IPC has been rightly made applicable.
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.
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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.
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 - 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
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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.
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.
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 degrees 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.
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
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1874) is an apt illustration of this point.
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.
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."
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
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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."
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.
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.
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.
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
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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.
The position was illuminatingly highlighted by this
Court in State of Andhra Pradesh v. Rayavarapu Punnayya and
Anr. (1976 (4) SCC 382) and in Abdul Waheed Khan @ Waheed
and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274).
Looked at the scenario as described by PWs 2 and 3 and
evidence of ballistic report, in our considered view the
offence committed by accused is covered by Section 304 Part
II.
So far as the other convictions are concerned the
conclusions of the trial Court and the High Court do not
warrant any interference. For the conviction under Section
201 it has been established beyond even a shadow of doubt
that dead bodies were carried in a gunny bag. It was
discovered on the basis of the discovery statement in terms
of Section 27 of the Indian Evidence Act, 1872 (in short the
’Evidence Act’) which is also relevant. The conviction is
well merited. So far as offence under Section 25 (1A) of the
Arms Act is concerned, the admitted position being that the
gun belonged to the son of the appellant, and that he had no
license to hold the gun, the evidence has clearly made out
the offence. The District Magistrate, Kohlapur had accorded
sanction under Section 39 of the Arms Act for the
prosecution. Therefore, the conviction under Section 25 (1A)
is also well merited. Custodial sentence of 8 years would
meet the ends of justice. The appeal is allowed to the
extent indicated above.