Rajasthan High Court - Jodhpur
Anil Kumar vs State on 25 July, 2012
Bench: Govind Mathur, R.S. Chauhan
FloatingFrame
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. CRIMINAL APPEAL No.489/2012
Anil Kumar V/s. The State of Rajasthan
Date of Judgment :: 25th July 2012
D.B. Criminal Appeal under Section 374
(2) of the Code of Criminal Procedure
against the judgment dated
11.05.2012 passed by the Additional
Sessions Judge No.1, Hanumangarh in
Session Case No.87/2011 (29/10)
(55/10)
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE R.S. CHAUHAN Reportable Mr. M.K. Garg for the appellant.
Mr. K.R. Bishnoi PP for the State.
(Per Hon'ble Mr. R.S. Chauhan, J.) :
Having been convicted for offence under Section 302 IPC, having been sentenced to life imprisonment and having been imposed with a fine of Rs.5,000/- and further having been directed to undergo a sentence of five months' rigorous imprisonment in default thereof, by judgment dated 11.05.2012 passed by the Additional Sessions Judge No.1, Hanumangarh, the appellant, Anil Kumar, has knocked at the doors of this Court.2
In a nutshell, the facts of the case are that on 23.07.2010, the Police Station Hanumangarh Junction received a telephonic call from the Government Hospital, Hanumangarh Town that Shyamlal has been brought to the hospital in an injured condition. Consequently, Lekhram (P.W.10) was deputed to the Hospital in order to record the statement of Shyamlal. At about 7:50 PM, Shyamlal's statement (Ex.P.7) was recorded. In his statement, he claimed that on 22.07.2010 after doing their day's labour, around 8:00 PM, he and his friend, Anil Kumar, came back to their homes. Instead of going to their respective homes. they decided to have some liquor at a Rehari (a temporary shop constructed for the market day). While consuming liquor, both got into an oral argument, which culminated into a fight. As soon as Shyamlal came down from Rehari, Anil kicked him on his stomach and ran away. Shyamlal came back to his house. In the morning, his stomach pain increased. Therefore, he took some medicines at home. Since his condition was not improving, on 23.07.2010, his mother hospitalized him in the Government Hospital at Hanumangarh Junction. On the basis of this report, a formal FIR, FIR No.476/2010, was chalked out for offences under Sections 341, 323 IPC. During the course of investigation, as his condition 3 continued to deteriorate, Shyamlal was referred to P.B.M., Hospital, at Bikaner. After he was operated upon, he expired on 25.07.2010. Therefore, the offence under Section 302 IPC was added.
In order to support its case, the prosecution examined sixteen witnesses and submitted fourteen documents. However, the defence neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, by judgment dated 11.05.2012, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court.
Mr. M.K. Garg, the learned counsel for the appellant, has strenuously raised the following contentions before this Court : firstly, according to the statement of Shyamlal (Ex.P.7), neither Krishan Kumar (P.W.1), nor Smt. Devki (P.W.2) was present at the time of the incident. Yet the prosecution produced both of them as eye-witnesses. Considering the fact that they are brother and mother of Shyamlal, they are interested witnesses. Moreover, Krishan Kumar is a chance witness. Therefore, their testimonies should have been discarded by the learned Judge. However, he has relied upon their testimonies for convicting the appellant. 4
Secondly, there is a contradiction between the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) with regard to the fact as to how many times the appellant had kicked Shyamlal on his stomach. According to Krishan Kumar (P.W.1), the appellant had twice kicked Shyamlal. But according to Smt. Devki (P.W.2) he kicked him only once. Since there is contradiction between the two on a material point, their testimony is untrustworthy.
Thirdly, the learned Judge has misapplied the law. Relying upon the medical evidence, the learned Judge has concluded that due to the kick caused by the appellant, the deceased had suffered a rupture in his small intestine. The learned Judge has further observed that due to the said rupture, Shyamlal had to undergo an operation. He died immediately after the operation. Therefore, the learned Judge has concluded that the appellant "intended to cause the death" of Shyamlal. Hence, he has convicted the appellant for offence under Section 302 IPC.
However, according to the learned counsel, if the evidence is appreciated in a holistic manner, according to Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) and according to the statement of Shyamlal (Ex.P.7), both, the appellant and Shymlal were friends. They were drinking 5 prior to the alleged assault. According to the Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), the appellant had complained to Krishan Kumar (P.W.1) that Shyamlal was calling him obscene names. Shyamlal informed his brother that the appellant had taken some money from his pocket. According to both, Krishan Kumar (P.W.1) and Devki (P.W.2), while the appellant was leaving, he slapped Shyamlal and kicked him on the stomach. Thereafter, he fled. Thus, the entire incident occurred on a trifle issue and, that too, as part of a drunken brawl. Moreover, according to Dr. Mohd. Saleem (P.W.16), the deceased had died due to peritonitis. According to Dr. O.P. Saini (P.W.11), peritonitis is a condition when the peritoneum cavity i.e. abdominal cavity is filled either with liquid or with an infected liquid due to which infection spreads. Such infection causes septicemia. According to the learned counsel, such medical complications are not within the knowledge of the general public. Thus, considering the fact that entire incident occurred on trifle matter, considering the fact that the appellant had kicked Shyamlal only once, obviously he had neither "the intention", nor "the knowledge", that he is likely to cause the death of Shyamlal. Therefore, according to the learned counsel the case is covered neither under Section 299 IPC, 6 nor under Section 300 IPC. Thus, the case falls neither under Section 302, nor under Section 304 part II IPC. At worst, the case falls under Section 325 IPC of causing grievous hurt through use of a blunt weapon. Hence, according to the learned counsel, the learned Judge has erred in convicting the appellant for offence under Section 302 IPC.
On the other hand, Mr. K.R. Bishnoi, the learned Public Prosecutor, has vehmently raised the following contentions before this Court: firstly, since Shyamlal's statement (Ex.P.7) was recorded while he was hospitalized, he may not be able to reveal each and every detail of the incident. Secondly, the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) are corroborated by medical evidence. Hence, the veracity of their testimonies cannot be doubted. Thirdly, according to Shyamlal's statement (Ex.P.7) and according to the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), it is the appellant who had started the confrontation with Shyamlal. Therefore, he is the aggressor. Moreover, the appellant had run away after kicking Shyamlal. Thus, it is obvious that he knew the nature of his act. Fourthly, considering the fact that he had kicked Shyamlal on the stomach, a vital part of the 7 body, his "intention to kill" and "knowledge" that by such kicking on the stomach, in all probability, he is going to cause Shyamlal's death is writ large. Therefore, the learned Judge was certainly justified in concluding that the appellant had both the "intention" as well as the "knowledge" to cause the death of Shyamlal. Thus, the learned counsel has supported the impugned judgment.
Heard the learned counsel for the appellant and perused the impugned judgment.
It is true that Shyamlal, in his statement (Ex.P.7) does not mention the presence of his elder brother, Krishan Kumar (P.W.1) and of his mother, Smt. Devki (P.W.2) at the time of incident. But their presence cannot be doubted as it is most natural. According to Shyamlal it was the evening hour when he and Anil Kumar had come back from the day's work. According to Krishan Kumar (P.W.1), he was returning back home after work. Moreover, the occurrence had taken place near Krishan Kumar's house. Therefore, his presence near his house in the evening is most natural. Thus, he cannot be termed as a "chance witness". Furthermore, the presence of Smt. Devki (P.W.2), in her own home in the evening, is quite natural. Further merely because these witnesses are closely related to Shyamlal, their testimonies cannot be 8 doubted on the ground that they are interested witnesses. While dealing with the testimony of interested witness or related witness, the trial Court is required to seek corroboration from independent evidence, oral or documentary, to the testimony of such a witness. In the present case, the testimonies of Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) are corroborated by Shyamlal' statement (Ex.P.7). Moreover, their testimonies are further corroborated by the medical evidence. Therefore, the learned Judge was justified in treating them as trustworthy witness.
As far as the number of kicks are concerned, there is a slight variation in the evidence produced by the prosecution. According to Shyamlal, in his statement (Ex.P.7), he was hit only once by the appellant. Similarly, according to Smt. Devki (P.W.2), the appellant kicked Shyamlal only once on his stomach. But, according to Krishan Kumar (P.W.1), the appellant kicked Shyamlal twice on his stomach. It is, indeed, trite to state that the law presumes that the dying declaration is almost a gospel truth until and unless the contrary is established by the defence. In the present case, the defence has not challenged the authenticity of the dying declaration. It is also a settled principle of law that if a dying declaration is 9 authentic, it tends to take precedence over any other testimony of any other witness. For, the law presumes that a person near death will always speak nothing but the truth. Therefore, if there is contradiction between the dying declaration and the testimony of Krishan Kumar (P.W.1), the Court should prefer the former over the latter. For, only the victim can reveal the acual act of the accused. According to Shyamlal's statement (Ex.P.7) and according to the testimony of Smt. Devki (P.W.2), the appellant had kicked the deceased only once on his stomach. Hence, this version should be accepted.
This case raises an interesting legal issue with regard to the subtle distinction between "culpable homicide not amounting to murder" and "murder". It further raises the issue whether the appellant had the intention or knowledge to cause the death of Shyamlal or not? Or whether his intention was to merely cause grievous injury to Shyamlal-an injury which unfortunately resulted in his death?
The distinction between 'murder' and 'culpable homicide not amounting to murder" is no longer res integra. For, in the case of State of Andhra Pradesh V/s. Rayavarapu Punnayya & Anr. [AIR 1977 SC 45], the Hon'ble Supreme Court has critically analysed both the 10 provisions and has delineated the distinction between the two as under :-
"12. In the scheme of the Penal Code, '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 this generic offence, the Code practically recognises three degress 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 lst 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.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. 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 minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words 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 300.11
Section 299 Section 300 A Person commits culpable Subject to certain homicide if the act by which exceptions culpable
the death is caused is done- homicide is murder if the act which which the death caused is done INTENTION
(a) with the intention of (1) with the intention of causing death; or causing death; or
(b) with the intention of (2) with the intention of causing such bodily injury causing such bodily injury as as is likely to cause death the offender knows to be or; 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 (4) with the knowledge that the act is likely to cause the act is so imminently death. 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.
(Emphasis in the original)
14. Clause (b) of Section 299 corresponds with cls. (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 12 condition or state of health that the intentional 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.
15. 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.
16. 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 over- looked, may result in miscarriage of justice. 13
The difference between clause (b) of Sec. 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 death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death... It will be sufficient to say that cl.(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 persons or persons - 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. While appreciating the evidence in an holistic manner, the learned Judge has over emphasized "the effect", rather than first considering "the cause". The learned Judge is overwhelmed by the fact that Shyamlal's 14 small intestine had a minute rupture, by the fact that he had undergone an operation, by the fact that eventually he had expired. But, in order to infer the intention or knowledge, it is essential to examine the cause of the injury suffered by the deceased. Thus, it was imperative for the learned Judge to critically analyze the circumstances in which Shyamlal was kicked.
Shyamlal, in his statement (Ex.P.7), informs us that the appellant and his neighbours' son, Anil Kumar, were returning from their work. They had stayed back to have a drink at the Rehari. According to him, both of them had sat and consumed liquor. Only later on, an altercation ensued between them. According to Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), it is the appellant who informed them that Shyamlal was misbehaving with him and calling him obscene names. When Krishan Kumar (P.W.1) asked Shyamlal as to why he was misbehaving with the appellant, Shyamlal told his brother that the appellant had taken out some money from his pocket. Krishan Kumar (P.W.1) told the appellant to return the money and to settle the dispute. According to both, Krishan Kumar (P.W.1) and Smt. Devki (P.W.2), while Krishan Kumar was taking Shyamlal back home, the appellant slapped Shyamlal, who fell down. The appellant 15 kicked him in the stomach only once and ran away.
Thus, the entire incident occurred over a trivial issue and partly due to the influence of the liquor which the appellant and Shyamlal had consumed. At the heat of the moment, in a sudden quarrel, obviously, the appellant did not have the intention to cause the death of Shyamlal. After all, the appellant had not planned the murder in a cold blooded fashion by carrying any weapon, lethal or otherwise, with him. The circumstances as narrated by Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) clearly reveal that only verbal altercation had taken place between Shyamlal and the appellant - both whom were friends. At the spur of the moment, the appellant had slapped Shyamlal, and kicked him only once in the stomach. After kicking him, he had left the place without caring to find out as to what happened to Shyamlal. Therefore, it is highly unlikely that the appellant had the intention to cause such bodily injury which would be "sufficient in the ordinary course of nature to cause the death" of Shyamlal.
As far as the knowledge is concerned, it is very unlikely that the appellant ,who is merely an illiterate labourer, would know that by kicking someone, once in his stomach, he is likely to cause such an injury which is so 16 imminently dangerous that it must in all probability cause death. As mentioned above, according to Dr. O.P. Saini (P.W.11), peritonitis is caused when a liquid or infected liquid is collected in the peritoneum cavity and the infection spread causing septicemia in the body. According to Dr. Mohd. Saleem (P.W.16), the small intestine had a small rupture of 1 X 1 cm. Such a small rupture could not be imagined as being caused by a single kick. Therefore, it is most unlikely that the appellant would have the knowledge that by a single kick, he can cause the rupture of the small intestine which would ultimately lead to Shyamlal's death.
Even Krishan Kumar (P.W.1) and Smt. Devki (P.W.2) did not take the incident to be too serious, till Shyamlal's condition deteriorated. According to the prosecution, they initially took Shyamlal to Rohitash Sharma (P.W.9), who is a neighbourhood doctor. According to him, Smt. Devki (P.W.2) came to his clinic around 2:00 PM and informed him that Shyamlal had stomachache. He went to their house and gave him a medicine for subsiding the stomachache. Subsequently, Shyamlal told his elder brother that the pain has not subsided. Upon this information, he was taken to the Government Hospital at Hanumangarh Town. According to 17 Dr. Vinod Mawariya (P.W.6), when he examined Shyamlal, he did not find any external injury upon his stomach. Shyamlal only complained about the pain in his stomach. It is only when his condition started deteriorating further that Dr. Vinod Mawariya (P.W.6) referred him to the Hospital at Bikaner. Thus, initially neither the family members, nor the doctors suspected something very serious. Hence, even the medical experts did not have any knowledge that a mere kick on the stomach would lead to the possibility of death. If the medical expert did not have such knowledge implicitly, it is unsafe to hold that a common man would have such a knowledge.
Considering the circumstances in which Shyamlal was kicked by the appellant, it is unsafe to hold that the appellant had the intention of causing such bodily injury as is likely to cause death, as required by Section 299 IPC, or had the intention to cause such bodily injury as is sufficient in the ordinary course of nature to cause death, as required by Section 300 IPC. Similarly, it is highly unsafe to hold that he would have the knowledge that such an act is likely to cause death, as required by Section 299 IPC, or, that he had the knowledge that his act is so imminently dangerous that in all probability it would cause death of Shyamlal. Hence, his act cannot be 18 termed either as "culpable homicide amounting to murder", or as "murder".
While Section 319 IPC defines "hurt", Section 320 IPC defines "grievous hurt".
Section 320 IPC is as under :-
320. Grievous hurt - The following kinds of hurt only are designated as "grievous" :-
First.- Emasculation.
Secondly.- Permanent privation of the sight of either eye.
Thirdly. - Permanent privation of the hearing of either ear, Fourthly. - Privation of any member or joint.
Fifthly. - Destruction or permanent impairing of the powers or any member or joint.
Sixthly. - Permanent disfiguration of the head or face.
Seventhly. - Fracture or dislocation of a bone or tooth.
Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Part eighthly deals with "any hurt which endangers life". Thus, obviously what was caused by the appellant to the deceased was grievous hurt as defined in Section 320 IPC.
Section 325 IPC prescribes the punishment for voluntarily causing grievous hurt by a blunt weapon. Although a kick cannot be classified as "blunt weapon", but, nonetheless voluntarily causing grievous hurt by the 19 use of one's body would fall under Section 325 IPC.
Therefore, this Court holds the appellant guilty of offence under Section 325 IPC. Hence, his conviction is reduced from Section 302 IPC to Section 325 IPC.
This court is informed that the appellant has undergone three months as an undertrial prisoner, and two months as a convicted prisoner. Thus, he has served a total sentence of five months. As a last resort, the learned counsel for the appellant has pleaded that his sentence should be reduced to the period already undergone by him. But considering the fact that the offence has been committed under Section 325 IPC, this court is of the opinion that the appellant should be sentenced to a period of two years of rigorous imprisonment and should pay a fine of Rs.30,000/-. He shall also pay a compensation of Rs.50,000/- to the family of Shyamlal. In case, he either fails to deposit the fine amount, or the compensation amount, he shall further undergo a sentence of one year of rigorous imprisonment in default thereof.
For the reasons above, this appeal is partly allowed.
(R.S. CHAUHAN), J. (GOVIND MATHUR), J. A.Asopa/-