Delhi District Court
State vs Keshav @ Sonu on 2 July, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No.DLWT01-000482-2020
SC No. 60/2020
FIR No. 214/2019
PS: Anand Parbat
U/s 302 IPC
In the matter of :
State
Versus
Keshav @ Sonu
S/o Kishan Lal
R/o H. No. 48/53, Street No. 6,
Nai Basti, Anand Parbat, Delhi
......Accused
Date of Institution of case : 20-01-2020
Date of reserving Judgment : 08-04-2024
Date of pronouncement of judgment : 02-07-2024
Appearance:
For the State :Mr. Himanshu Garg, Ld. Additional
Public Prosecutor.
For accused Keshav @ Sonu : Mr. R.R Jha, Ld. LAC.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 1/41
JUDGMENT
1. This judgment intends to decide the trial of the accused namely Keshav @ Sonu son of Sh. Kishan Lal who is accused of killing his own wife Payal.
The factual matrix:
2. Accused Keshav and deceased Payal were the tenants of one Smt. Sundari Devi for the last 4-5 years before the incident. They were residing with their minor daughter as tenants, in a room situated on the first floor of the premises bearing no i.e. H. No. 48/53, Gali no. 6, Nai Basti, Anand Parbat, Delhi. The complainant Smt Sundari Devi was residing in the ground floor of the property along with her family. On the fateful night at about 9.30 pm the complainant heard Payal shouting "aunty dekho inhone mere kya maar diya hai" The complainant went upstairs and saw her oozing blood from her chest. On asking of the complainant, Payal told that her husband Keshav had stabbed knife on her chest by saying inhone. Thereafter, Payal got unconscious. The complainant along with her son Chander, took Payal first to Indu Polyclinic and as per the advice Payal was taken to Jeevan Mala Hospital where Payal was declared brought dead. On 20.09.2019, the postmortem on the dead body was conducted. In the postmortem report Ex. PW-7/A, the following observations were made by the doctor: -
1. Incised stab wound vertically oriented is present on the upper part of left breast. The lower end is touching areola and is situated 12 cm from the mid line and 15 cm from the left coracoid process of the shoulder joint. On an State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 2/41 approximation it is measuring 2.5 cm x 0.2 cm. Upper angle is found more acute than the lower.
2. On exploration of wound track it is seen running downward, backward, towards centre and found passing through 5th Intercostal Space injuring the intercostal muscles and blood vessels, also with clean cut incised injury to the adjoining 5th Costo Condral Junction and 6th costal cartilage measuring 1.8 cm x 0.8 cm and is situated 4.5 cm from the mid line.
3. On further opening about 2 litres of clotted / semi clotted blood is seen in the pericardial cavity. On further exploration the wound track is seen involving the Apex of heart (Let ventricle) passing through the left ventricular cavity. The measurement of which is 1.3 cm x 0.1 cm.
4. On further exploration, the wound track is found involving the Left Dome of Diagphragm and further penetrating Left Lobe of the Liver. About 500 ml of clotted / semi - clotted blood is present in the peritoneal cavity. On further exploration, a penetrating wound over the lower 1/ 3rd of the front of the body of stomach is seen. The dimension of which is 0.3 cm x 0.1 cm. The approximate length of the wound track is 13 to 14 Cms."
The Cause of death:
3. The doctor conducting the postmortem opined the cause of death as the combined effect of hemorrhagic and cardiogenic shock due to incised stab wound sustained by the deceased which was sufficient to cause death in ordinary course of nature.
4. After the registration of the FIR on the statement of the complainant the investigation was started. The evidence was collected. The accused was arrested. The statements of the witnesses were recorded. The knife used in the offence was recovered at the instance of the accused from his house. On State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 3/41 completion of the investigation the charge sheet was filed for the offence under section 302 IPC.
5. The Ld. Magistrate took the cognizance of the offence and committed the case to the Court of Sessions.
The charge against the accused :
6. The accused Keshav @ Sonu did not plead guilty to the charge for the offence u/s 302 IPC framed against him and claimed trial.
The evidence by the prosecution:
7. To prove the afore-mentioned charge against the accused, the prosecution led the following oral as well as documentary evidence:-
Oral evidence:
PW-1 Sh. Krishan @ Son of the complainant, who informed Gullu the police regarding the incident. PW-2 Smt. Sundari Complainant on whose statement present FIR was registered.
PW-3 Sh. Chander Son of the complainant, who took the injured firstly to the nearby clinic and thereafter to Jeevan Mala hospital with the complainant.
PW-4 ACP Mahesh He prepared the scaled site plan of the Kumar spot. PW-5 ASI Jairam He proved GD no. 91A and GD No.99A Meena recorded by him regarding the incident. PW-6 ASI Ratan He proved copy of FIR no. 214/2019 u/s Kamle 302 IPC PS Anand Parbat, endorsement on rukka and certificate u/s 65 IEA during his deposition in the court. PW-7 Dr. Thejaswi He along with Dr. Arindam Chatterjee State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 4/41 HT prepared the postmortem report no. 634/19 of deceased Payal. He proved PM report, sketch of of knife and subsequent opinion during his deposition.
PW-8 Ct. Doola Ram He joined the investigation with ASI Parveen Kumar. He deposed about the investigation conducted in his presence. PW-9 Dr. Kundan He proved MLC No. 186/19 of deceased Kumar Payal prepared at Jeevan Mala Hospital by Dr. Barister Singh.
PW-10 HC Naveen He joined the investigation with ASI Parveen and Ct. Dhoola Ram. He deposed about the investigation conducted in his presence.
PW-11 IO/ Inspector He was handed over the investigation of Chander Bhan the present case after registration of FIR.
He deposed about the investigation conducted by him in the case.
PW-12 ASI Praveen He conducted initial investigation of the
Kumar case and deposed about the same in the
court.
Documentary evidence:
Ex. PW-2/A Statement of complainant Sundari
Ex.PW-2/B Seizure memo of blood-stained clothes of
complainant
Mark PW-3/A Statement u/s 161 Cr.P.C of PW Chander Ex.PW-4/A Scaled site plan of the spot Ex.PW-5/A GD No. 91A dated 19.09.2019 Ex. PW-5/B GD No. 99A dated 19.09.2019 Ex.PW-5/C Certificate u/s 65B IEA in support of computerized copy of FIR Ex.PW-6/A Copy of FIR no. 214/2019 U/s 302 IPC PS Anand Parbat Ex.PW-6/B Endorsement of ASI Ratan Kamle on rukka Ex.PW-6/C Certificate u/s 65 B IEA State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 5/41 Ex.PW-7/A Postmortem report no. 634/19 prepared by Dr. Arindam Chatterjee and Dr. Thejaswi HT Ex.PW-7/B Sketch of knife i.e. weapon of offence Ex.PW-7/C Subsequent opinion regarding weapon of offence i.e. the knife Ex. PW-8/A Seizure memo of ornaments of the deceased Ex.PW-8/B Seizure memo of clothes of deceased handed over by doctor in the hospital Ex. PW-8/C Seizure memo of blood in gauze Ex.PW-9/A MLC no. 186/19 of Ms. Payal (since deceased) Ex.PW-10/A Seizure memo of blood in gauze, blood earth control and earth control from the spot. Ex.PW-10/B Seizure memo of blood stained slipper of deceased.
Ex.PW-10/C Arrest memo of accused Keshav @ Sonu Ex.PW-10/D Personal search memo of accused Keshav @ Sonu Ex.PW-10/E Disclosure statement of accused Keshav @ Sonu Ex.PW-10/F Pointing out memo of the place of occurrence Ex.PW-10/G Sketch of knife recovered at the instance of accused Ex.PW-10/H Pointing out-cum-recovery memo of knife Ex.PW-11/A Site plan of the spot at the instance of complainant Ex.PW-11/B Dead body handing over memo Ex.PW-11/C & Dead body identification statement of relatives Ex.PW-11/D namely Rajni and Sita Ram of deceased Ex.PW-11/DX Form no. 25.35(1) (B) prepared by the IO Ex.PW-11/E Application of IO regarding subsequent opinion in respect of weapon of offence Ex.PW-12/A Rukka State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 6/41 Statement u/s 294 Cr.P.C of accused :
8. The statement of the accused U/s 294 Cr.P.C was recorded wherein he admitted the contents and genuineness of following documents:-
i. Scene of Crime report no. 752/19 dated 20.09.2019 (Ex. AD-1).
ii. PCR form no. 10393 (Ex. AD-2).
iii. Certificate U/s 65 B of IEA dated 06.12.2019 (Ex.AD-3).
iv. Twenty two photographs of scene of crime (Ex. AD-
4) (Colly).
v. FSL Report no. SFSLDLH/11711/BIO/2677/19 dated 12.06.2020 prepared by Dr. Monika Chakarwarthy, Sr. Scientific Assistant, Biology (Ex. AD-5) v. Police officials, who collected the opinion and deposited the sealed knife in the malkhana, sent the sealed knife for subsequent opinion and sent the exhibits in FSL, Rohini.
vi. Fact regard filing of the FSL Report by Inspector Shiv Prakash along with supplementary charge-sheet.
9. Accordingly, in view of his statement U/s 294 Cr.P.C, witnesses i.e. Inspector Narender Singh (sl. no.11), W/Ct Preeti (sl. no.12), SI Harish Chander Pathak (sl.no.13), Ct. Pramod (sl.no.16), Ct. Nitesh Kumar (sl.no.17), HC Vinod Paswan (sl.no.18) and HC Sailesh (sl.no.19) in the main chargesheet and witness i.e. Monika Chakravarty, Sr. Scientific Officer (Biology) (sl.no.1) and Inspector Shiv Prakash (sl.no.2) in supplementary charge-sheet, were dropped from the list of witnesses.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 7/41 The statement of accused u/s 313 Cr.P.C:
10. In his statement u/s 313 Cr.P.C he claimed to be falsely implicated in the present case and did not lead any defence evidence. Nor he examined himself in his defence under section 315 Cr.P.C.
Submissions by Ld. Prosecutor:
11. Ld. Prosecutor while relying upon the oral and documentary evidence on the record argued that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt. He argued that the testimonies of the prosecution witnesses have brought home the charges against the accused. He further contended that the accused had the intention to cause the death of the deceased which is clear from the stab-
injury he caused on the chest of the deceased. He further contended that accused could not impeach the testimonies of the witnesses of the prosecution.
Submissions by Ld. Counsel for accused:
12. On the other hand, Ld. LAC for the accused argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He argued that none of the prosecution witnesses had seen the incident in question and thus there is no eye witness. He further contended that the prosecution did not examine any independent public witness from the neighbourhood at the time of the recovery of the alleged weapon which created a doubt in the case of the prosecution. In the alternative he contended that even for the sake of arguments it is believed that the prosecution has proved the case, then also no State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 8/41 offence under section 302 IPC is made out and the facts proved on the record only proves the offence under section 304 IPC.
Analysis:
13. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
14. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses.
Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 9/41 evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
15. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v.
Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 10/41 punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
16. The present case is based upon the oral testimonies of the prosecution witnesses. How the oral evidence in a case should be appreciated, has been considered by the Hon'ble Supreme Court in the case of Balu Sudam Khalde & Anr Vs The State of Maharashtra, CA No. 1910/2010 dated 29.03.2023. The relevant observations are reproduced here as under: -
APPRECIATION OF ORAL EVIDENCE "25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 11/41 IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 12/41 XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]"
17. Now, let us discuss the testimonies of material prosecution witnesses.
18. The present FIR was registered on the statement Ex.PW- 2/A of PW-2 i.e. complainant Smt. Sundari. She is the landlady of accused and is the material prosecution witness. She deposed that accused had been living on the first floor of her house for last 3-4 years and they had arranged his marriage with Payal as his parents were no more. She further deposed that on 19.09.2019, at about 9.30 p.m when she was cooking food, she heard Payal shouting "aunty dekho inhone mere ko kya maar diya" upon which she went upstairs and saw Payal bleeding from her chest. She further deposed that she took the Payal downstairs where the deceased fainted. PW-2 along with her son Chander took Payal to Indu Poly Clinic from where on asking of doctor, she took Payal to Jeevan Mala Hospital in a three-wheeler scooter where doctor declared her dead. She also deposed that she handed over her blood-stained clothes to the IO. During her deposition, PW-2 identified her signatures on her statement Ex.PW-2/A and on seizure memo of clothes Ex.PW-2/B. PW-2 Smt. Sundari was cross-examined by accused wherein she stated it to be correct that she had not seen the injury State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 13/41 being caused to Payal. She denied the suggestion that she did not hand over her clothes to the IO on 20.09.2019 or that the clothes were seized by the police after 5-6 days of the incident. She further denied the suggestion that her statement Ex.PW-2/A was not recorded on 20.09.2019 or that the same was recorded on some other date.
19. PW-1 Sh. Krishan @ Gullu is the son of the landlady of accused. In his examination-in-chief, he deposed that accused had been living as tenant on the first floor of his house with his wife Payal and one daughter. On 19.09.2019, at about 9.30 p.m he was present at the ground floor of the house and his mother was cooking food when Payal shouted that "dekho aunty inhone kya maar diya" and his mother went upstairs to see as to what had happened. He deposed that thereafter he saw his mother bringing Payal down stairs, who was bleeding from her chest. He further deposed that his brother namely Chandan and his mother took Payal to Indu Poly Clinic while he informed the police from the mobile phone of his mother. He deposed that he told the police that accused Keshav and Payal had a quarrel and accused Keshav inflicted injury to Payal. Police took accused to police station. He further deposed that at about 10.15 p.m, his mother informed him that Payal had been declared dead. He deposed that police recorded his statement on the next day.
He was cross-examined on behalf of accused wherein he admitted that he had not seen the incident, but he also heard the cries of Payal. He also admitted that he did not hear Payal saying "Keshav ne maar diya". He denied the suggestion that he was not State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 14/41 present at his house at the time of incident or that police recorded his statement at later stage.
20. PW-3 Sh. Chander @ Lalu is the son of landlady of accused. In his examination in chief, he deposed on the same lines as deposed by PW-1 Sh. Krishan @ Gullu and PW-2 Smt. Sundari. He also deposed that he did not go upstairs as he thought there was a routine fight between the accused and the deceased. He deposed that he alongwith his mother i.e. PW-2 took Payal to a small clinic and thereafter to Jeevan Mala Hospital where she was declared dead. Thereafter, he alongwith his mother returned to his house. Police recorded his statement.
PW-3 Sh. Chander @ Lalu was cross-examined on behalf of accused. He admitted that he did not see the assault on Payal and also did not hear her screams. He deposed that he saw the Payal when she was being brought downstairs by his mother. His statement was recorded by the police on 20.09.2019. He admitted that the clothes of his mother were not seized by the police in his presence.
21. In view of the testimonies of the aforesaid witnesses it is true that none of the afore said three witnesses has claimed to be the eye witness of the incident. But their testimonies have shown that they were present in ground floor of the house at the time when the deceased had shouted and called the land lady from the upper floor. PW2 deposed that the deceased had injury on her chest wherefrom the blood was oozing out and also stated that "inhone kyaa maar diya". Ld LAC argued that the PW2 admitted that deceased did not tell the specific name of the accused. But the court can take the judicial notice of the fact the in the Indian State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 15/41 society especially in North India, the wives in the common parlance refer to their husbands before third persons as "inhone". Moreover, PW1 has also deposed that the accused was taken from the house by police after sometime from his room. There is no cross-examination from him on the said positive statement. Even no suggestion has also been given to him in this regard. Hence, his testimony remained unchallenged of this fact. Thus, the testimonies of PW-1, PW-2 and PW-3 if read as a whole- appear to have a ring of truth. The general tenor of their testimonies does not show that their credits have been impeached or have been shaken by cross-examination rendering them to unworthy of belief.
22. PW- IO Inspector Chander Bhan also stated in the cross examination that the PCR officials brought the accused to the police station in the night of 19.09.2019. In his statement u/s 313 Cr.P.C also the accused furnished no explanation or defence in this regard. Nor has he led any evidence in his defence. Hence, the presence of the accused in the house at the time of the occurrence is established beyond reasonable doubt. Moreover, there is nothing in the cross examination of the relevant witnesses so as to impeach their credibility of the witnesses. Hence, this court is of the opinion that the presence of the accused and the presence of the complainant has been proved on the record beyond reasonable doubt.
23. Ld LAC has argued that some other person might have committed the offence as the entry to the house of PW2 was open at the time of the incident. He referred to the testimony of the PW2 that she admitted that the entry to her house was open at the State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 16/41 time of incident. Thus, accused tried to build up a defence that an outsider was the offender. But the record shows that this defence has not been developed by the accused. There is no cross examination to the witnesses that an outsider might have committed the offence. Even in his statement under section 313 CrPC also accused has not stated anything in this regard. Thus, there is no material on the record to support the said argument advanced by the Ld. LAC.
24. Thus, it has been proved on the record that at the time of the incident the accused was present in house and he was taken by the PCR officials. The incident happened within the four walls of the tenanted house of the accused. Apart from the accused and the deceased there was no third person present in the house. There is no evidence that the deceased had narrated the reason as to why the accused would stab her with the knife. Thus, the same is within the special knowledge of the accused. Hence, at this stage the court deems it fit to discuss section 106 Indian Evidence Act and law applicable thereto. Section 106 IEA prescribes that the prosecution at all the times may not be able to collect all the evidence of a crime and some facts might be in special knowledge of the accused. In such scenario then it is for the accused to prove those facts within his special knowledge so that he could give a different narration to what has been produced by the prosecution.
25. Section 106 of the Evidence Act reads as follows:
"106. Burden of proving fact especially within knowl- edge.-- When any fact is especially within the knowl- edge of any person, the burden of proving that fact is upon him.
Illustration State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 17/41
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
26. In the judgment of Anees vs State (NCT of Delhi) 2024 SCC OnLine 757, the Hon'ble Supreme Court observed as under:-
"36. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".
27. It is settled law that section 106 IEA does not absolve the prosecution from discharging its onus to prove the case against the accused not does it any burden upon the accused to prove his innocence. What it does is that when certain facts are within the special knowledge of the accused which may counter the story of the prosecution which led sufficient evidence to show the complicity of the accused in the crime but the accused by proving certain facts within his special knowledge can give his side of story.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 18/41
28. At this stage, the following observations of the Supreme Court in the case of Anees (supra) are worth reproduction: -
44. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a con-
viction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable ex- planation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.
45. Section 106 of the Evidence Act obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the ac- cused is able to prove some other facts especially within his knowledge, which would render the evidence of the prosecution nugatory. If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the ex- planation. But, if the accused in such a case does not give any explanation at all or gives a false or unaccept- able explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:
"All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the ab- sence of satisfactory explanation appearing from his evidence."
(Emphasis supplied)
46. To recapitulate the foregoing : What lies at the bot- tom of the various rules shifting the evidential bur- den or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 19/41 prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convinc- ing evidence on certain issues from its own hand and it is, therefore, for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot al- ways apply to negative facts. It is not for the prosecu- tion to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a dif- ferent intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams--Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion--para 527 negative averments and para 528 -- "require affirma- tive counter-evidence" at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.
47. But Section 106 of the Evidence Act has no applica- tion to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they hap- pened to be present when it took place. The intention underlying the act or conduct of any individual is sel- dom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be as- sumed that he had that intention, unless he proves the contrary.
29. Thus, from the aforesaid observations, it is clear that the prosecution is first required to discharge its onus by proving the essential elements to establish the offence and the same does not absolve the prosecution from its duty even though some of the facts are within the special knowledge of the accused. Unless and until, a prima facie case is established by the evidence of the prosecution, the onus does not shift upon the accused.
30. Having gone through the entire evidence on record, this court is of the considered opinion that the prosecution has proved State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 20/41 certain foundational facts which raises an inference that the ac- cused was the offender in this case. Some of major facts proved by the prosecution are following :-
(i) The accused was present in the house at the time of the incident which happened within four walls of the house and some facts being in his special knowledge he did not prove any facts to counter the story of the prosecution;
(ii) The accused has not proved his defence that any outsider might have committed the offence in this case as the main gate of the house of the complainant was open;
(iii) The accused was taken away by the police a little after the incident; and
(iv) The knife was recovered from the kitchen of the house at instance and the doctor did not rule out the possibility of the stab injury from the said knife etc.
31. Thus, the prosecution has proved certain facts which gave birth to the inference that it was the accused who caused the in- jury to the chest of the deceased. Since, the offence took place within the four walls of the house and there being no other eye witness, the accused had the special knowledge of some of the facts. However, the accused has failed to either prove the said facts by leading his evidence nor has he been able to bring the same on the record by way of the cross examination of the prose- cution witnesses. Since, the prosecution has been able to prove on the record that the offence was committed by the accused, hence, it was incumbent upon the accused to prove facts which could disprove or create a doubt in the story of the prosecution.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 21/41 Thus, this court holds that it was the accused who committed the offence.
32. As far as the cause of death is concerned, PW-7, Dr. Tejaswi deposed that on 20.09.2019, he along with Dr. Arindam Chatterjee performed autopsy and prepared PM report no. 40/09, Ex. PW-7/A. He also deposed that he had given subsequent opinion regarding the weapon of offence. He proved the sketch of knife Ex. PW-7/B and subsequent opinion as Ex. PW-7/C. He opined the cause of death as combined effect of hemorrhagic and cardiogenic shock due to incised stab wound which was sufficient to cause death in ordinary cause of nature. Therefore, the injury sustained by the deceased to cause her death was sufficient in the ordinary course of nature. The subsequent opinion Ex. PW-7/C states that he did not rule out the possibility of the injury sustained by the deceased from the knife produced before him. Therefore, from the postmortem report, it is clear that the death of the deceased was unnatural. The injury on the chest of the deceased was sufficient to cause her death in the ordinary course of nature.
33. On the recovery of the knife is concerned, the Ld. LAC for the accused argued that the knife has been planted upon the accused. However, the evidence on the record shows that there is no force in the submission of Ld. LAC. In this regard, the prosecution has relied upon the testimony of PW-10, HC Naveen and PW-11, Insp. Chander Bhan. PW-10, HC Naveen deposed that after the arrest of the accused, he led the police party and got recovered one vegetable cutting knife from underneath the gas stove. In the cross-examination, he stated that when they reached State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 22/41 at the house of accused, the accused opened the gate of the kitchen. PW-11 corroborated the testimony of PW-10 and deposed that accused recovered one vegetable knife from under the gas stove from his house. In his cross-examination, he stated that accused took out the knife used in the offence from under the gas stove from his house. He was not asked the question if the gate of the kitchen was closed or the accused opened the gate. Therefore, in the cross-examination of the witnesses, nothing could come which could impeach the credibility of the witnesses. A careful perusal of their cross-examination shows that no effective cross-examination was conducted by the accused on the aspect of the recovery of the knife.
34. The Ld. LAC further contended that the alleged recovery of the knife cannot be relied upon as no independent person from the neighbourhood was joined by the IO. However, this Court does not find any force in the said submission. The accused cross-examined PW -11, IO Insp. Chander Bhan in this regard who stated that he asked the public persons to join the investiga- tion but they refused to join the proceedings. No cross-examina- tion in this regard was conducted from PW-10, HC Naveen. Even otherwise, it is settled law that normally the public persons are not willing to join the police investigation, especially when the neighbours are involved in an offence. The police officials are the responsible public servants and recovery of an object by them cannot be doubted, especially when no foundation has been laid down by the accused. In this case, recovery has been effected from the house of the accused and not from an open public place. There is absolutely no doubt in the recovery of the knife at the in-
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 23/41 stance of the accused. Thus, I have no hesitation to reject the sub- mission of the Ld. LAC in this regard.
Whether offence is under section 302 IPC or 304 IPC:
35. The Ld. LAC has argued in the alternative that even if the case is proved against the accused, still the accused can be con- victed with the offence u/s 304 IPC as it is a case of single stab injury and the accused cannot be attributed the intention to cause the death of the deceased or with the intention to cause an injury which was sufficient to cause death in the ordinary course of na- ture, and thus at best, he can be attributed only the knowledge that by his act, he may cause the death of the deceased.
36. In order to appreciate the said submission of the Ld. LAC, the following comparative table will be helpful in appreciating the points of distinction between culpable homicide and murder:-
SECTIONS 299 AND 300 OF THE IPC Section 299 Section 300 A person commits Subject to certain exceptions culpable homicide is culpable homicide if murder if the act by which the death is caused is the act by which the done-
death is caused is done-
INTENTION
(a) with the intention (1) with the intention of causing death; or of causing death; or (2) with the intention of causing such bodily injury
(b) with the intention as the offender knows to be likely to cause the of causing such bod- death of the person to whom the harm is caused; or ily injury as is likely (3) with the intention of causing bodily injury to to cause death; or any person and the bodily injury intended to be in-
flicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowl- (4) with the knowledge that the act is so imminently State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 24/41 edge that the act is dangerous that it must in all probability cause likely to cause death death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as is mentioned above.
37. There cannot be any meaningful discussion on the concept of culpable homicide not amounting to murder and culpable homicide amounting to murder as provided by section 299 and 300 IPC respectively, without adverting to the landmark judg- ment of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC
382. The relevant paragraphs in the said judgment for the sake of guidance can be reproduced here as under:-
"12. In the scheme of the Penal Code, "culpable homi- cide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking gener- ally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, propor- tionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homi- cide. 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 homi- cide and the punishment provided for it is, also, the low- est 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 mean- ing 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 ap- plication of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300..."
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 25/41 "14. 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, not- withstanding the fact that such harm would not in the or- dinary way of nature be sufficient to cause death of a per- son in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential require- ment of clause (2). Only the intention of causing the bod- ily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particu- lar victim, is sufficient to bring the killing within the am- bit 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 en- larged 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 or- dinary 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 probabil- ity of death which determines whether a culpable homi- cide 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 possi- bility. The words "bodily injury ... sufficient in the ordi-
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 26/41 nary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature."
''17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of na- ture. Rajwant v. State of Kerala [AIR 1966 SC 1874 :
1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illus- tration of this point."
"18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):
"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. It must be proved that there was an intention to inflict that particu- lar injury, that is to say, that it was not accidental or un- intentional or that some other kind of injury was in- tended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
"19. Thus according to the rule laid down in Virsa Singh case of 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 "mur- der". 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 cor- responding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowl-
edge of the offender as to the probability of death of a person or persons in general -- as distinguished from a State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 27/41 particular person or persons -- being caused from his im- minently dangerous act, approximates to a practical cer- tainty. 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. From the above conspectus, it emerges that when- ever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The ques- tion to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connec- tion between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the op- eration of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpa- ble homicide not amounting to murder", punishable un- der the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punish- able under the first part of Section 304, of the Penal Code."
38. In the case of Anbazhagan Vs The State represented by The Inspector of Police, CA No. 2043 of 2023, arising out of S.L.P. (Criminal) No. 29289 of 2019 decided on 20.07.2023 the Supreme Court extensively discussed the law of culpable homi- cide and the murder including the judgment of Punnayya and Virsa Singh. Speaking through Hon'ble Mr. Justice J.B. Pardi- wala, the Court culled out the legal principles in this regard. The State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 28/41 paragraph no. 60 of the judgment summed up the discussion in the judgment. The said paragraph no. 60 is reproduced here in below for the sake of the benefit for all: -
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: --
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Sec-
tion 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instan- taneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Sec- tion 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Sec- tion 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enu- merated in that section. In the event of the case falling within any of those exceptions, the offence would be cul- pable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the ac- cused is such as to fall within Clauses (1) to (3) of Sec- tion 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowl- edge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 29/41 also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused per- son falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is pun- ishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty in- tention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular in- jury was intended, and objectively that injury was suffi- cient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Sec- tion 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distin- guished from more 'possibly'. When chances of happen- ing are even or greater than it is not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 30/41 the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homi- cide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be re- quired under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Sec- tion 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as de- scribed under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by di- rect evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the in- jury, degree of force used in causing the injury, the man- ner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general prin- ciple, can be drawn that the accused did not have the in- tention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 31/41 bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is suffi- cient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sud- den fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
39. The present case is a case of single stab injury. In the case of single injury, it is always difficult to decide whether the ac- cused had the injury to cause the death of the person or to cause the injury which is sufficient to cause death in the ordinary course of nature. It is settled law that it is fallacious to compre- hend that wherever there is a single injury, only a case of culpa- ble homicide is made out and not of murder. The Hon'ble Supreme Court in the case of Anbazhagan (supra) referred the judgment of Virsa Singh as to how the intention is to be inferred even in a case of single injury. Justice Bose in the case of Virsa Singh held as under :-
"23. ... The question is not whether the prisoner in- tended 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 total- ity 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 infer- ence is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences is nei- ther here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to in- flict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 32/41 once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the cir- cumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or other- wise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the in- jury in question.
24. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For exam- ple, if it can be proved, or if the totality of the circum- stances justify an inference, that the prisoner only in- tended a superficial scratch and that by accident his vic- tim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact. ..."
(Emphasis supplied)
40. Thus, it was held when there is nothing to suggest that the accused did not intend to cause the injury and it is proved that he in fact, caused the injury then in such case he shall be deemed to have the intention to cause the injury. Also, the said intention is of the fact and not of the law. The accused can show by leading his evidence that he did not intend to cause that particular injury or that the injury was unintentional or accidental.
41. The similar observations were made by the Supreme Court in the judgment of Anbazhagan (supra), wherein, the Court re- lied upon the judgment of Jagrup Singh Vs. State of Haryana (1981) 3 SCC 616. The relevant observation in the case of An- bazhagan (supra) is reproduced here as under:-
47. This question was again considered in Jagrup Singh v. State of Haryana, (1981) 3 SCC 616, by a Bench of this Court consisting of Justice D.A. Desai and State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 33/41 Justice A.P. Sen and following the ratio laid down in Virsa Singh (supra) it was held as under:--
"6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body re- sulting the death must always necessarily reduce the of- fence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Istly or clause 3rdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances at- tendant upon the death."
42. The Hon'ble Court in the case of Anbazhagan (supra) again referred to the judgment of Jai Prakash v. State (Delhi Admin.), (1991) 2 SCC 32. The relevant observation in the case of Anbazhagan (supra) are reproduced here as under:-
53. In Jai Prakash v. State (Delhi Admin.), (1991) 2 SCC 32, this Court, after an exhaustive review of various deci-
sions, more particularly, the principles laid down in Virsa Singh's case (supra), concluded as under:--
"18. In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge of the consequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result. We may point out that we are not con- cerned with the intention to cause death in which case it State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 34/41 will be a murder simplicitor unless exception is attracted. We are concerned under clause 3rdly with the intention to cause that particular injury which is a subjective in- quiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause 3rdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of 'intention' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that clause 3rdly is not at- tracted and that the accused must be attributed knowl- edge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punish- able under Section 304 Part II IPC."
(Emphasis supplied)
43. To decide whether the case falls under section 302 IPC or 304 IPC, one can take into consideration the certain circum- stances. In the case of Anbazhagan (supra), the Hon'ble Supreme Court referred to the judgment of Pulicherla Na- garaju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, the Hon'ble Supreme Court elucidated the circum- stances relevant to finding our whet her there was an intention to cause death or not. The relevant observation in Anbazhagan (supra) are reproduced hereasunder:-
65. We may lastly refer to the decision of this Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, wherein this Court enu-
merated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. This Court observed : (SCC pp. 457-58, para 29) "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or in- significant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual mo- tives like revenge, greed, jealousy or suspicion may be State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 35/41 totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused at- tempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not con- verted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section
302. The intention to cause death can be gathered gen- erally from a combination of a few or several of the fol- lowing, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the inci- dent occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with refer- ence to individual cases which may throw light on the question of intention."
(Emphasis supplied)
44. In view of the aforesaid propositions, let us see if the cir- cumstances as described hereinabove do exist in this case or not. The weapon used in this case was a kitchen knife. It was not brought by the accused from outside and picked up by him from the house itself. The accused only caused one stab injury and did not cause multiple injuries. The deceased was his wife and there is no evidence of prior enmity. The aforesaid circumstances might have brought the case of the accused u/s 304 IPC as there might have been the evidence that he did not have the intention State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 36/41 to cause of the deceased or the injury which was sufficient to cause death in the ordinary course of nature. However, there is no evidence on the record to prove the same. The accused has failed to lead evidence or probablise the same by cross-examination of the prosecution witnesses. Thus, there is nothing on the record to suggest accused did not have the intention to cause injury to the deceased, which was sufficient in the ordinary course of nature to cause death. Therefore, the question that whether the accused had the intention to cause death or to cause injury sufficient in the or- dinary course of nature to cause death would reveal that nor- mally, the person in the case of a single injury shall be presumed that he intended to inflict the injury. If the accused can show that he did not or if the circumstances justify such inference, then such intention as required by Section 300(3) IPC is not proved. It is also settled that whether he intended to cause such particular injury is a question of fact and is not a question of law. The seri- ousness of the injury has nothing to do with the question whether he intended to inflict the said injury or not.
45. The judgment of Virsa Singh (supra) lays down the law that the Court must be satisfied firstly, that a bodily injury was present and secondly, the nature of the injury must be proved. These two are purely objective investigations. Therefore, the third consideration would be that there was an intention to inflict that particular injury and that it was not accidental or uninten- tional or that some other kind of injury was intended. If these ele- ments are proved, then the inquiry proceeds further and fourthly, it must be proved that the injury described made of the three aforesaid elements is sufficient to cause death in the ordinary course of nature.
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 37/41
46. Now, coming back to the facts of the case, it is proved on the record that there was an injury on the deceased which was sufficient to cause death in the ordinary course of nature. The sin- gle stab injury on the chest of the deceased was opined as suffi- cient to cause death by the doctor. The incident had taken place within the four walls of the house of the accused and the de- ceased. The deceased was the wife of the accused. Apart from ac- cused and the deceased, there was no other person who was present at the spot.
47. Although in the deposition of PW-1, it has come that he told the police that deceased Payal had a fight in which accused had inflicted injuries to her. Ld. LAC tried to make out a case that there was a fight between them. However, in the cross-exam- ination, the accused did not ask any question regarding the fight. The said fight could have caused sudden and grave provocation to the accused to inflict the injury and also given the accused a reason to cause the injury to deceased. However, the witness was not probed any further. The witness was not the eye witness ad- mittedly. Moreover, Ld. LAC further argued that deceased and the accused were happily married and they used to live peace- fully on the first floor. Her cross-examination also revealed that she was not cross-examined by the accused to bring his case un- der any of the exceptions of Section 300 IPC. Even in his state- ment u/s 313 Cr.P.C., the version of the accused was that he was innocent and he did not give any explanation as to what were the circumstances that he stabbed the deceased. Hence, nothing has come on the record to infer that the accused did not have the in- tention to cause the injury to the deceased or that the said injury State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 38/41 was accidental or unintentional or that the accused is entitled for any of the exception u/s 300 IPC.
48. To buttress his submissions that at that best, accused is guilty of offence u/s 304 IPC, the Ld. LAC has relied upon the judgment of Hon'ble Supreme Court in Tholan Vs State of Tamil Nadu, AIR 1984 SC 759. Ld. LAC argued that in the case of Tholan (supra), the accused gave only single knife blow on the chest of the deceased and the Hon'ble Supreme Court held that only an offence u/s 304 (II) IPC was made out. However, I am not impressed with the submissions of the Ld. LAC. The fact of the case in Tholan (supra) would show that the accused in the said case stabbed the deceased after brief altercation. The Hon'ble Supreme Court observed that the incident in the said case oc- curred on a spur of moment and further that the accused has no malice with the deceased. The altercation of the accused with the deceased happened in the spur of moment and their meeting was accidental. In those facts and circumstances, the Hon'ble Supreme Court held that accused was guilty for the offence u/s 304(II) IPC and thus, accused was convicted with the imprison- ment for five years. In the present case, there is nothing of that sort. The accused was the husband of deceased. He was alone in the house with the deceased at the time of murder of deceased. The incident took place within the four walls of the house of de- ceased. What actually led to the events, which ultimately resulted into the death of deceased, was either known to the deceased or to the accused. The accused has not led any evidence in this re- gard nor has he built up a case of section 304 either Part I or Part II by way of cross-examination of prosecution witnesses. There- fore, I am not inclined to accept the submissions of Ld. LAC State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 39/41 which placed reliance on the judgment of Tholan (supra), hence his submission stands rejected.
49. To sum up the following facts have been proved from the evidence led by the prosecution:-
(i) That the accused and the deceased being the husband and wife were the tenants on the upper floor in the house of the complainant PW-2.
(ii) That on the date of incident the complainant and her two sons were present in the ground floor of the house when upon hearing the voice of the deceased the complainant went up-
stairs and saw deceased bleeding from her chest.
(iii) That the deceased told the complainant that " inhone kya maar diya" and thereafter, the complainant along with her son took the deceased to the hospital where she was declared brought dead.
(iv) In the postmortem, the single stab injury on the chest of the deceased was opined as sufficient to cause death in the or- dinary course of nature.
(v) That the presence of the accused in the house has been established by the prosecution and further that the apart from the deceased and the accused, no third person was present in their house.
(vi) That the presence of the complainant in her house is also well established from the FSL report, admitted by the accused in Section 294 Cr.P.C., as the DNA from the blood on the gauze of the deceased was found to be matching with DNA from the shirt of the complainant which was handed over to the IO.
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(vii) That the accused had the special knowledge as to under what circumstances, the incident happened and as such the ac- cused could not prove any facts which could have countered the story of the prosecution giving benefit to the accused. Moreover, the prosecution has established the foundation facts to raise an inference that accused intended to cause such injury to the deceased.
(viii) That despite the cross-examination the credibility of the complainant and her two sons as well as the police officials could not be impeached and the prosecution witnesses with- stood the test of cross-examination.
50. Therefore, in view of the aforesaid discussions, this court is of the opinion that the prosecution has been able to prove that the accused had the intention to cause an injury i.e. the stab in- jury though the single one and the same was sufficient to cause the death of the deceased in the ordinary course of nature, hence, this Court is of the opinion that the act of the accused by which deceased lost her life and thus, the accused is held guilty for the offence of murder as defined u/s 302 IPC.
51. Hence, accused stands convicted for the offence u/s 302 IPC.
52. Let parties be heard on the point of sentence.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2024.07.02
16:29:43
Pronounced in the open +0530
Court on 02-07-2024. (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Keshav @ Sonu SC No.60/2020 FIR No. 214/2019 41/41