Punjab-Haryana High Court
Angad And Others vs State Of Haryana on 15 July, 2008
Author: Uma Nath Singh
Bench: Uma Nath Singh, Rajan Gupta
Criminal Appeal No.90-DB of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of Decision : 15.07.2008
Angad and others .....Appellants
versus
State of Haryana .....Respondent
CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH.
HON'BLE MR.JUSTICE RAJAN GUPTA.
Present : Mr.M.K.Garg, Advocate and
Mr.G.S.Sidhu, Advocate, for the appellants.
Mr.S.S.Randhawa, Additional Advocate General, Haryana.
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UMA NATH SINGH, J.
This order shall also dispose of the connected Criminal Appeal No.50-DB of 2008, filed by co-accused-appellant Makhan Ram as both these matters arise out of the judgment dated 22.10.2002 passed by learned Additional Sessions Judge, Sirsa, in Sessions Case No.91 of 2001 (Sessions trial No.3 of 2002), holding all accused appellants guilty of various charges and, thus, sentencing them as under:
(i) for the offence : to undergo rigorous imprisonment u/s 148 IPC. for a period of three years;
(ii) for the offence u/s 302 IPC : to imprisonment for life and to pay a (read with S.149 IPC) fine of Rs.5,000/- each and in default of payment of fine the defaulter accused shall undergo further imprisonment for six months;
(iii) for the offence u/s 323 IPC : to undergo rigorous imprisonment (read with S.149 IPC) for one year; (iv) for the offence u/s 324 IPC : to undergo rigorous imprisonment for three years;
(v) for the offence u/s 325 IPC : to undergo rigorous imprisonment for Criminal Appeal No.90-DB of 2004 2 (read with S.149 IPC) three years and to pay a fine of Rs.2,000/- each and in default of payment of fine, the defaulter accused shall undergo further imprisonment for 2 months.
As per prosecution case, an FIR was registered on a statement given by complainant Mani Ram (PW1) to ASI Satbir Singh (PW11) on 24.5.2001 at 8.30 AM, in Government Hospital, Sirsa. He gave the statement to the effect that he had four brothers. Rameshwar Dass is the eldest, whereas he (complainant Mani Ram) is next to him; Ratti Ram is younger to complainant and the youngest is Banwari Lal. All four brothers reside separately. However, their parents were residing with youngest brother Banwari Lal. His father had partitioned the land among all his brothers. However, complainant and his brother Ratti Ram, immediately younger to him, had been given less land being short of 2 kanals to their share, regarding which they had filed a civil suit. On 23.5.2001, a day before the day of occurrence, at 9.00 AM, they were to utilise water on their turn for irrigation, therefore, complainant Mani Ram's sons, namely, Atma Ram and Dalip Kumar had gone to irrigate their fields, where his two brothers, namely, Banwari Lal and Rameshwar Dass, and nephews Raj Pal and Angad (sons of Rameshwar Dass), and their co-sharer Makhan Ram being son-in- law of Surjit Singh Bawari of their village, did not allow complainant's sons to irrigate the fields. These persons inflicted injuries on his son Dalip Kumar. Dalip Kumar, thus, leaving his brother Atma Ram in the fields came back to his house and narrated this incident to his father Mani Ram, whereupon Mani Ram, his brother Ratti Ram and his daughter's son Chetanya (son of Siri Ram Bhati and resident of Sirsa), who had come Criminal Appeal No.90-DB of 2004 3 to visit their house, started for their fields. When they reached near the bridge of canal, all the aforesaid accused persons, namely, Rameshwar Dass (carrying a lathi), Banwari Lal (armed with a gandasa), Angad, (carrying a gandasa), Rajpal (holding a lathi), and Makhan Ram (armed with a spade (kassi)), who were hiding near the bridge, on seeing the complainant side raised lalkaras that they were not to be spared. Within complainant's sight, Banwari Lal gave a gandasa blow from its sharp edged side on the head of complainant, as a result whereof, he collapsed on the ground. While he was lying on the ground, all the accused persons caused further injuries to him. His younger brother Ratti Ram was also caused injuries and his grand son, namely, Chetanya @ Rinku (daughter's son) was given a gandasa blow on his head by Angad. Having received that injury, Chetanya @ Rinku fell down on the ground. All the accused persons thereafter having seen that people were attracted towards the scene of occurrence on hearing hue and cry, picked up deceased Chetanya @ Rinku and threw him in the canal. They also caused injuries to complainant's sons Dalip Kumar and Atma Ram and thereafter ran away towards the fields with their weapons. Complainant's co-villagers took out Chetanya @ Rinku from the canal, but by that time, he died due to the said injury, and of drowning. After leaving Siri Ram, father of Chetanya @ Rinku, and his co-villagers near the dead body, his son Dalip Kumar having arranged a jeep, shifted the injured to Government Hospital, Sirsa, for treatment. Pursuant to the aforesaid statement got given by complainant Mani Ram (PW1) to police, an FIR for offences under Sections 302, 324, 323, 148 and 149 IPC was registered and taken for investigation. Inquest of dead body was conducted by SI/SHO Criminal Appeal No.90-DB of 2004 4 Hawa Singh (PW10) on 24.5.2001 who also sent it for postmortem examination. Hawa Singh (PW10) collected incriminating articles, like blood stained earth from the scene of occurrence and made it into a parcel. He affixed his seal and after use, handed it over to Siri Ram, father of the deceased. SI/SHO Hawa Singh also recorded the statements of witnesses, the same day. Thereafter, he handed over the investigation to Inspector Harmesh Singh (PW15). After the postmortem of dead body was over, the postmortem report was produced by ASI Satbir Singh (PW11) before Inspector Harmesh Singh (PW15). The Inspector took it into possession vide recovery memo (Ex.PR) on 24.5.2001 and the next day on 25.1.2001, he arrested accused Makhan Ram. Accused Makhan Ram produced the weapon of offence kassi, which was seized vide Ex.PAA, after preparing its sketch (Ex.PAA/1). Inspector Harmesh Singh (PW15) also recorded the statements of witnesses and on 27.5.2001, he arrested accused Banwari Lal, when he was going in the street in front of his house. Banwari Lal suffered a disclosure statement (Ex.PBB) regarding the weapon of offence gandasa. Pursuant thereto, he also got recovered the gandasa, which was taken into possession vide recovery memo (Ex.PBB/1) after preparing its rough sketch (Ex.PBB/2). The Investigating Officer thereafter prepared the rough sight plan (Ex.PBB/3) of the scene of occurrence with correct marginal notes. The same day, Inspector Harmesh Singh (PW15) also arrested accused Rameshwar Dass, who produced a lathi. That lathi was taken into possession vide recovery memo (Ex.PCC) and its rough sketch was prepared as Ex.PCC/1. The same day, he also arrested accused Raj Pal, who produced a lathi, which was taken in possession vide Ex.PDD after Criminal Appeal No.90-DB of 2004 5 preparing its rough sketch (Ex.PDD/1). On 27.7.2001, after a gap of two months, accused Angad was arrested, who produced a gandasa (Ex.P5), which was taken into possession vide recovery memo (Ex.PB), after preparing its rough sketch (Ex.PC). Inspector Harmesh Singh (PW15) sent all five accused persons after their arrest for medical examination. He submitted an application (Ex.PK) through ASI Satbir Singh on 25.5.2001, the next day of occurrence to Civil Hospital, Sirsa, for Doctor's opinion as to whether injured Ratti Ram and Dalip Kumar were in a position to make statements. The Doctor gave his report (Ex.PK/1) declaring injured Ratti Ram fit to make a statement, whereas injured Dalip Kumar was still not found fit to do so. Later, on 27.5.2001 vide request (Ex.PL), the I.O. again sought Doctor's opinion regarding fitness of injured Dalip Kumar, when he was declared fit vide opinion (Ex.PL/1) to make a statement. During the course of investigation, the I.O. also prepared a rough sight plan of scene of occurrence vide Ex.PEE with correct marginal notes and sent the weapons of offence to FSL for chemical examinations. The I.O. Submitted a challan under Section 173 Cr.P.C. after completion of investigation. Consequently, charges as aforesaid were drawn against accused appellants, to which they pleaded not guilty and claimed trial. During the course of trial, as many as 16 witnesses were examined on behalf of the prosecution, whereas 6 were produced by the defence. On a close scrutiny of evidence on record, learned trial Judge found the prosecution evidence worth inspiring confidence and, thus, recorded the judgment of conviction and sentence as above.
Learned counsel for the appellants, at the outset, urged that this is not a case of murder and the offence would fall in the category of Criminal Appeal No.90-DB of 2004 6 culpable homicide not amounting to murder, inasmuch as, there was no motive on the part of the accused appellants to commit this offence and only a simple injury was caused from the reverse side of weapon on the head of deceased, who fell into canal. This is also a submission of learned counsel for the accused appellants that the deceased was immediately taken out of canal by the villagers, though he died by that time. As per medical opinion, the deceased died due to haemorrhage and shock as a result of injury on his head, which was found to be ante-mortem in nature. In view of number and nature of injuries as noticed in the postmortem, and medical reports of injured witnesses, learned counsel pleaded the one and only point that this Court may consider to release the accused appellants on the sentences already undergone with some reasonable amount of fine to be paid towards compensation.
On the other hand, learned Additional Advocate General, Haryana, supported the impugned judgment and submitted that in the facts and circumstances of this case, there is enough material to hold that there was an intention on the part of the accused persons to commit murder of the deceased. According to him, the offence would, thus, be covered under Section 302 read with Section 149 IPC.
We have carefully considered the rival submissions in the light of evidence on record.
Injured witnesses complainant Mani Ram (PW1), Dalip Kumar (PW5) and Ratti Ram (PW14), have fully supported the prosecution case. They have withstood the rigour of lengthy cross-examinations. In the testimony of complainant Mani Ram (PW1), we do not find any such Criminal Appeal No.90-DB of 2004 7 material so as to discard the credibility of his evidence. In fact, this witness was also summoned for re-examination, still the defence could not extract anything to demolish the prosecution case. Dalip Kumar (PW5) is an injured witness. He too has given graphic details of the incident and supported his father Mani Ram (PW1) in material particulars. Chandi Ram (PW2) is Halqa Patwari. He prepared the scaled site plan (Ex.PD), as pointed out by witnesses. HC Suresh Kumar (PW3) tendered his evidence on affidavit (Ex.PE). He had sent the case property to FSL on 10.8.2001 for examinations. ASI Gurdayal Singh (PW4), on receipt of ruqa (Ex.PA), recorded a formal FIR (Ex.PA/1) on 24.5.2001. Constable Ram Kumar (PW8) also tendered his evidence on affidavit (Ex.PJ). He deposited a gandasa, the weapon of offence, in the office of Director, FSL. Hawa Singh (PW10) was SI/SHO, Police Station Rania, on the date of incident, i.e., 24.5.2001. He reached the spot and prepared the inquest report (Ex.PG). He also sent the dead body for postmortem examination and recorded statements of some witnesses. Thereafter, he handed over the case to Inspector Harmesh Singh. ASI Satbir Singh (PW11) was posted as Incharge of Police Post, Village Jiwan Nagar. He went to General Hospital, Sirsa, to find out the medical status of injured witnesses. He made an application to Doctor concerned seeking opinion as to whether the injured persons were in a position to make statements. Thereafter, he recorded the statement of Mani Ram (PW1) vide Ex.PA and sent it to police station for registration of an FIR (Ex.PA/1). He also recovered blood stained clothes of witness Mani Ram and prepared a parcel which he took into possession vide recovery memo (Ex.PQ). He visited the scene of occurrence and handed over the Criminal Appeal No.90-DB of 2004 8 investigation to SI Hawa Singh. He has supported the portion of investigation conducted by him. Brij Mohan (PW13) submitted the case file of Civil Suit No.7-C of 2001, pending between the parties in a Civil Court. Ratti Ram (PW14), is another injured witness, who has also supported the prosecution case. Inspector Harmesh Singh (PW15) investigated the case and put up a challan. He supported the prosecution case in regard to the investigation conducted by him. He had arrested accused persons and recovered the weapons of offence, as pointed out by them. He also prepared a rough site plan of scene of occurrence vide Ex.PEE with correct marginal notes. He recorded the statement of injured witnesses and there is nothing in his testimony to doubt the credibility of investigation. EHC Maru Ram (PW16) also tendered his evidence on affidavit (Ex.PFF). He had deposited the case property in the office of Director, FSL, Madhuban. Thus, these all witnesses, private as well as official, have supported the prosecution case in regard to the part of prosecution case which related to each of them. We have also carefully examined the medical evidence to find out the nature of offence. Dr. Vinod Mahipal (PW6) conducted the postmortem on dead body of deceased on 24.5.2001. In the inquest report submitted by the police, the cause of death was injuries as also throwing the deceased into water. This witness noticed that rigor mortis was present in all four limbs and neck. However, he noticed the presence of only one injury on the dead body as under:
"A lacerated wound which was 5 x ½ cm on left parietal bone deep and 12 cm away from left ear. Clotted blood was present at wound side. On dissection, infiltration of blood present in Criminal Appeal No.90-DB of 2004 9 subcutaneous tissue. On dissection of wound, underlying bone was fractured of 10 cm in length at parietal bone extending obliquely. On dissection of skull, there was hematoma present below the fractured line."
In the opinion of Doctor, the cause of death was haemorrhage and shock resulting from injuries described herein-above, which were ante- mortem in nature and sufficient to cause death in normal course of nature. He also noticed extra dural hematoma on dissection of the solitary injury on the head region of deceased. He also mentioned that if oozing of blood from the wound is not immediately stopped, death of a person may occur within two minutes. He clarified by mentioning that there was no visible injury on the person of deceased, except the solitary injury as aforesaid. In regard to the injuries caused on the person of injured witnesses, Dr. S.L.Aggarwal (PW7) conducted the X-ray examination of witness Ratti Ram and found a fracture on left frontal bone of skull. He also proved his report (Ex.PH) and X-ray films (Ex.PH/1 and (Ex.PH/2). In his cross- examinations, the doctor clarified that he has not given the length of fractures in his report. Dr.C.P.Dadhich (PW9) had given his opinion on 25.5.2001 on an application by police (Ex.PK), that patient Ratti Ram was fit to make a statement, whereas, another injured witness Dalip was under
the influence of some drug, therefore, he was unfit to do so. Dr.Dadhich, on 27.5.2001, gave further opinion vide Ex.PL/1 that patient Dalip was also fit to make a statement. Dr.Dale Singh (PW12) gave the details of injuries noticed on the persons of injured Ratti Ram, Mani Ram, Dalip Kumar and Atma Ram. Dr. Dale Singh medico legally examined injured Ratti Ram, a Criminal Appeal No.90-DB of 2004 10 young man of 28 years, on 24.5.2001 at 2.00 a.m., and noticed the following injuries:
"1. A lacerated wound of 2½ cm ½ cm x bone deep on occipital region. Jagged swollen, irregular margins. Fresh bleeding was present. X-ray was advised.
2. Lacerated wound of 2½ cm x ½ cm x bone deep on left parietal region. Jagged swollen, irregular margins. Fresh bleeding was present. X-ray was advised.
3. Bruise of 10 cm x 10 cm on left side of face having a wound of 1½ cm x 1 cm x muscle deep. Lacerated, jagged, swollen margins were present. Red colour. Fresh bleeding was present. X-ray was advised.
4. An incised wound of 2½ cm x ½ cm x muscle deep on dorso-lateral side of left hand at first metacarpal region. Clean cut, even, everted margins. Fresh bleeding was present. X-ray was advised."
At the time of examination, injured Ratti Ram was found conscious. His BP was 120/80 mm of Hg., and pulse rate 75 per minute. Injuries No.1, 2, 3 & 4 were advised X-ray. Probable duration of injuries was within 24 hours. According to him, injury No.4 had been caused by a sharp edged weapon and the rest by a blunt weapon. He proved Ex.PT, as carbon copy of MLR and Ex.PT/1, as the diagram showing the seat of injuries.
On the same day, Dr.Dale Singh also medico legally examined injured Mani Ram, aged 25 years, and noticed the injuries as under:
"1. There was in incised wound of 3½ cm x ½ cm x Criminal Appeal No.90-DB of 2004 11 bone deep on lid parietal region. Fresh bleeding was present. X-ray was advised.
2. A bruise of 3 cm x 3 cm with swelling of 6 cm x 6 cm on left elbow posterior side. It was red colour. X- ray was advised.
3. Bruise of 3 cm x 2 cm with swelling of 8 cm x 6 cm on right elbow, was red coloured. X-ray was advised.
4. Bruise on left thigh lateral side 4 cm x 4 cm was red coloured.
5. Complaint of plain lateral side at middle of right foot, forsal surface. X-ray was advised."
He was also conscious at the time of examination with BP 120/80 mm of Hg., and pulse rate 75 per minute. Pupils were noticed equal on both sides. Injuries No.1, 2, 3 & 5 were advised X-ray and injury No.4 was declared simple in nature. All these injuries were caused within a probable duration of 24 hours. Injury No.1 was caused by a sharp edged weapon, whereas all the rest by a blunt weapon. He proved Ex.PU, as carbon copy of the MLR and Ex.PU/1, as diagram showing the seat of injuries.
Dr.Dale Singh also medico legally examined injured Dalip Kumar, aged 22 years, on that day and noticed the injuries as:
"1 Bluish colouration around right thigh with bruise of 2 cm x 1 cm on right eye-brow, was red coloured. X-ray was advised.Criminal Appeal No.90-DB of 2004 12
2. Bruise of 16 cm x 3 cm on right scapular region was red coloured. X-ray was advised.
3. Bruise on left elbow measuring 6 cm x 2 cm was red coloured. Advised X-ray.
4. Complaint of chest pain all over chest with history of multiple fist blows. Advised X-ray."
Dalip Kumar was also found conscious with BP 120/80 mm of Hg. and pulse rate 75 per minute. All the injuries were advised X-ray. They were caused within a duration of 24 hours by blunt weapon. He proved Ex.PV, as carbon copy of MLR and Ex.PV/1, as a diagram showing the seat of injuries.
Dr.Dale Singh also medico legally examined the 4th injured person Atma Ram, aged 28 years. He was found to have suffered only two injuries as under:-
"1. Bruise with abrasion on occipital parietal region measuring 4 cm x 3 cm was red coloured. X-ray was advised.
2. Bruise of 3 cm x 3 cm on nose, was red coloured. X-ray was advised."
The patient was found conscious with BP 120/80 mm of Hg., and pulse rate 75 per minute. Injuries No.1 & 2 were advised X-ray and were found to have been caused by a blunt weapon within 24 hours. Dr. Dale Singh proved Ex.PX as a carbon copy of MLR and Ex.PX/1 as the diagram showing the seat of injuries.
Thus, from the ocular and medical evidence, both, the Criminal Appeal No.90-DB of 2004 13 prosecution case is found to be well founded and established. There are injured witnesses like, Mani Ram (PW1), Dalip (PW5) and Ratti Ram (PW14), whose testimonies find full support in the medical evidence as also in FIR and the recovery memos.
Now, coming to nature of offence in regard to death of deceased Chetanya @ Rinku, complainant Mani Ram (PW1), who is also the injured witness, in his cross-examination has clarified that Angad caused gandasa blow from its reverse side on the head of deceased. This is also corroborated by his son Dalip (PW5) another injured witness. Besides, Dr.Vinod Manipal (PW6), who conducted postmortem on dead body of deceased Chetanya @ Rinku, has stated that he noticed a solitary injury like, extra-dural hematoma on dissection of the head of deceased. Doctor has also mentioned in his cross-examination that a person suffering from extra dural hematoma may survive. He clarified that a simple fracture on skull alone may not be the reason for death, and hematoma was also a reason for death in this case. He did not rule out the possibility of receiving head injury in question by fall on the edge of brick from a height of 8/10 feet. He did not notice any other visible injury on the person of deceased. According to this Doctor, time variance between the injury and death was between few minutes to any length of time. Thus, the fracture on skull caused by assault from reverse side of a sharp edged weapon was not the sole cause of death. Moreover, the deceased had a well built body with 5`-9" length. In his cross-examination, the Doctor has also stated that it appears to be a body of 18 years old person.
Hon'ble the Apex Court while drawing distinction between Criminal Appeal No.90-DB of 2004 14 culpable homicide and murder, in a judgment reported in (2003) 10 Supreme Court Cases 472, (Augustine Saldanha versus State of Karnataka) (para nos.9 to 21) has held as under:
".......9. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of 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, IPC particularly recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree." This is the greatest 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.
10. The academic distinction between "murder" and Criminal Appeal No.90-DB of 2004 15 "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 caluses 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 Subject to certain homicide if the act by which exceptions culpable the death is caused is done- homicide is murder if the act by which the death is 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 causing such bodily injury injury as is likely to as the offender knows to cause death; or cause the death of the person to whom the harm is Criminal Appeal No.90-DB of 2004 16 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 (4) with the knowledge that that the act is likely to the act is so imminently cause death. Dangerous that it must, in all probability, cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
11. 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 be in the ordinary way of nature be sufficient to cause death of Criminal Appeal No.90-DB of 2004 17 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.
12. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of causes 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 the death of that particular person as a result of the repture of the liver, 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 Criminal Appeal No.90-DB of 2004 18 "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause
(b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
13. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensures from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh V. State of Kerala is an apt illustration of this point.
14. In Virsa Singh v. State of Punjab, Vivian Bose, J. speaking for the Court, explained the meaning and scope Criminal Appeal No.90-DB of 2004 19 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.
15. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (AIR P.467, Para 12) "12. 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 Criminal Appeal No.90-DB of 2004 20 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."
16. The learned Judge explained the third ingredient in the following words (AIR at P.468, para 16):
"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, or 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 Criminal Appeal No.90-DB of 2004 21 here nor 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."
17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case 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 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.
18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the accused was Criminal Appeal No.90-DB of 2004 22 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.
19. 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- 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.
20. 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 Criminal Appeal No.90-DB of 2004 23 to give a separate treatment to the matters involved in the second and third stages.
21. The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya and recently in Abdul Waheed Khan v. State of A.P. ...." In this background when there was no specific motive for causing the death of deceased; that the solitary injury was caused from the reverse side of a sharp edged weapon, and that the deceased after solitary injury was thrown into canal and taken out soon thereafter by co-villagers of Mani Ram (PW1), we are hesitant to hold that the death of deceased was the most probable result of the injury caused from the reverse side of a sharp edged weapon.
In view of the aforesaid, we are of the opinion that accused persons had no intention to commit murder of deceased Chetanya @ Rinku and they had only knowledge that their acts are likely to cause death of deceased. Hence, the offence would be covered under Section 304 (II) I.P.C., culpable homicide not amounting to murder. Thus, the impugned judgment recording conviction and sentence of accused persons in so far as it relates to the findings that offence is punishable under Section 302 read with Section 149 IPC, is set-aside to that extent and instead, accused- appellants are held guilty of offence under Section 304 (II) read with Section 149 IPC. As regards their conviction and sentence on other counts, the impugned judgment is affirmed. As four accused-appellants have undergone more than 5 years and one accused-appellant Makhan Ram remained in jail for more than 7 years, we sentence four of them namely, Criminal Appeal No.90-DB of 2004 24 Angad; Rajpal; Rameshwar and Banwari to undergo 5 years' RI with a fine of Rs.1,00,000/ each; in defaulst of payment of fine to undergo further RI for 2 years, and sentence appellant Makhan Ram to undergo 7 years' RI with a fine of Rs.50,000/-; in default of payment of fine, to undergo further RI for 1 year. This is clarified that if the appellants have not undergone the sentences as aforesaid awarded by this Court, the Chief Judicial Magistrate shall ensure the compliance. The amount so realised towards fine shall be paid to the next of kin of deceased as compensation under Section 357 Cr.P.C.
With the aforesaid modification of the impugned judgment in regard to the nature of offence and quantum of sentence under Section 302 read with Section 149 IPC, as held by learned trial Judge, which is converted into the one under Section 304 (II) read with Section 149 IPC, we dismiss both the appeals.
(UMA NATH SINGH)
JUDGE
15-07-2008 (RAJAN GUPTA)
*mohinder JUDGE
Whether this judgment be referred to Reporter or not? YES/NO