Madras High Court
Sakthivel vs State Rep. By
Author: M.M.Sundresh
Bench: M.M.Sundresh
Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on Orders Pronounced on
03.11.2020 4.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
Criminal Appeal No.333 of 2018
and Crl.M.P.No.2239 of 2020
Sakthivel .. Appellant/Sole Accused
Vs.
State rep. By
Inspector of Police,
Velipalayam Police Station.
(Cr.No.226 of 2013) .. Respondent/Complainant
Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., against the
judgment dated 21.09.2016, made in S.C.No.189 of 2013 on the file of the
learned Principal District & Sessions Court, Nagapattinam to set aside the
conviction and sentence life imprisonment and fine of Rs.5000/- (Rupees five
thousand only) in default to undergo R.I. for one year.
For Appellant : Mr.Philip Ravindran Jesudoss
For Respondent : Mr.K.Prabhakar
Additional Public Prosecutor
http://www.judis.nic.in
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Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020
JUDGEMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.) The appellant is the sole accused in S.C.No.189 of 2013 on the file of the learned Principal District & Sessions Court, Nagapattinam wherein he was convicted for the offences under Section 302 of I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for a period of one year. The remand period already undergone by the appellant/ accused in this case is set-off under Sec.428 of Cr.P.C. Challenging the said conviction and sentence, the appellant is before this Court .
2.The case of the prosecution, in brief, is as follows:-
The defacto complainant is the mother of the accused as well as the deceased Santhanakumar. The accused is the elder brother of the deceased Santhanakumar, living adjacent house to the deceased. Since 15 days of the occurrence, the accused had some misunderstanding with his wife and therefore, she had left the house. On 12.05.2013 at about 9.30 p.m. the accused was standing in front of the house of the complainant and abused her with filthy words and asking key of his house and the same was questioned by http://www.judis.nic.in 2/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 the deceased, there arose a quarrel between the accused and the deceased. Immediately, the accused with an intention to murder the deceased took a knife from his house verandah and stabbed him at the right chest and caused injury in the right lung. The deceased Santhanakumar died due to that injury at the hospital. Hence, the Inspector of Police Velipalayam Police Station has registered a case as against the accused in Cr.No.226 of 2013 for the offence under Sec.302 I.P.C. and filed final report before the court of Judicial Magistrate No.2, Nagapattinam.
3. The learned Judicial Magistrate No.2, Nagapattinam took cognizance of the offence and the accused was furnished with the copies of relevant documents under Sec.207 Cr.P.C. and committed the case to the Court of Sessions, Nagapattinam.
4. Based on the materials available on record, the trial Court framed charge as against the accused for the offence under Sec.302 I.P.C. and the same was read over and explained to the accused. The accused pleaded not guilty. In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined and exhibits P1 to P19 were marked, besides eight Material Objects. http://www.judis.nic.in 3/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020
5. Based on the incriminating materials, the appellant/ accused was examined under Sec.313(1) (b) of Cr.P.C. and he denied the same. He was provided an opportunity to examine the witnesses if any. But no witness was examined and no document was marked on his side.
6. Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment. Challenging the same, the appellant/accused is before this Court with this Criminal Appeal.
7. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
The summary of the case is as follows:
8. P.W.1 who is the mother of the accused and the deceased Santhanakumar, gave a complaint as against the accused. She is the eye witness to the crime. P.W.1 deposed before the Court that the accused came to the scene of occurrence and asked key of his house and picked up quarrel with the defacto complainant. When the deceased Santhanakumar, who is second son of P.W.1 questioned the act of the accused/appellant herein, the degree of tension exceeded. The accused immediately went to his house and took the knife and stabbed the deceased Santhanakumar on the right chest. http://www.judis.nic.in 4/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 The deceased was taken to the Government Hospital wherein he was declared dead. P.W.12 Investigation Officer registered a case in Crime No.226 of 20123 on the basis of the complaint given by P.W.1. Ex.P13 is the First Information Report. P.W.12 went to the scene of occurrence on 13.5.2013 at about 7.15 hours and prepared Observation Mahazar Ex.P5 and Rough sketch Ex.P14 in the presence of P.W.6 and one Veeraiyan. The Investigation Officer has also recovered ordinary mud and blood stained mud M.Os.7 and 8 in the presence of witnesses under Ex.P6 Seizure Mahazar. P.W.12 has conducted inquest in the presence of panchayatars and prepared Ex.P15 Inquest report and sent the body of the deceased to conduct postmortem through P.W.9 Thiru Gowthaman, Police Constable who identified the deceased Santhanakumar to Doctor in the hospital and handed over the clothes of the deceased M.O.4 and M.O.5 to the Investigation Officer under Ex.P10 Special report. P.W.12 arrested the accused on the same day in the presence of P.W.7. P.W.12 has also recorded the confession statement given by the accused and recovered a knife M.O.1 and also recovered all the materials under Seizure Mahazar Ex.P6 in the presence of the same witnesses and sent all the materials to the Court in Ex.P16 Form 95.
9. P.W.10 Dr.Langaram who has first seen the deceased in the hospital and gave Ex.P11 Accident Register. P.W.11 Dr.M.Mahesh conducted http://www.judis.nic.in 5/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 post mortem on the body of the deceased in the presence of P.W.9. Ex.P12 is the post mortem report. P.W.2 and P.W.3 are the Assistant Director of Forensic Science Department and the Officer of the same department respectively. Ex.P3 and Ex.P4 are the analyst report. After completing the investigation, P.W.12 has filed final report against the accused under Sec.302 I.P.C.
10. P.W.1 mother of the accused and the deceased lodged complaint against the accused has clearly stated before the Court that the accused came to the scene of occurrence and abused her with filthy language under the impression that P.W.1 has taken the key of his house and when the act of the accused was questioned by the deceased, the accused enraged and took out the knife from his house and stabbed the deceased on the right side of the chest. The deceased bleeded with cut injury and fell down. P.W.5 and P.W.7 rushed to the scene of occurrence and taken the deceased to the hospital where the deceased declared dead. P.W.4 who is the niece of P.W.1 also present in the scene at the time of occurrence has deposed corroborative evidence before the Court. Therefore, P.W.1 and P.W.4 who are eye witnesses have very categorically stated before the Court that the accused picked up quarrel with the defacto complainant and the deceased Santhanakumar and stabbed the deceased on his right chest causing death.
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11. The accused/appellant was living separately in a house situated nearby P.W.1's house. He was living separately after quarreling with his wife. On the occurrence day i.e. on 12.5.2013 at about 9.30 p.m., the accused/ appellant had lost his house key and had quarrel with his mother P.W.1 and scolded her for his house key. At that time, the deceased Santhanakumar, brother of the accused/ appellant asked the appellant as to why he was scolding his mother, the accused / appellant has stabbed him on the right side of the chest with the knife taken out from his house. The deceased Santhanakumar fell down with bleeding injury. The accused/ appellant caused bodily injury by stabbing him on the vital organ of the right side of the chest and he was died while he was on the way to Government hospital. Hence, charge was framed under Section 302 of I.P.C.
12. P.W.1 Tmt.Aachiponnu, mother of the deceased and the appellant, eye witness of the crime gave a complaint Ex.P1. P.W.4 Miss Padma, relative of P.W.1 and the deceased, another eye witness of the prosecution. P.W.6 attested the Observation Mahazar Ex.P6 prepared by the Investigation officer, P.W.12. The Court of Sessions, Nagapattinam has framed charges as follows:
''On 12.5.2013 at about 9.30 p.m. in front of your mother's (P.W.1) house, you, brother of the deceased http://www.judis.nic.in 7/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Santhanakumar, accused in this case, lost your house key, quarrel with your mother and when your brother asked you as to why you are scolding your mother, you with an intention to kill your brother, stabbed him at the right side of the chest with the knife taken from your house and thereby causing injury in the lungs resulting in death of the deceased on the way to Nagapattinam Government hospital, thereby you are committed an offence punishable under Section 302 of I.P.C.''
13. The learned counsel appearing for the accused/appellant submits that the evidence deposed by P.W.1 and the statement made by P.W.1 in Ex.P1 are contradictory statement. Ex.P1 is the complaint given by P.W.1. P.W.4 Miss Padma is the relative of P.W.1. P.W.1 made arrangement to marry P.W.4 by the deceased Santhana Kumar. P.W.1 and P.W.4 who are the eye witnesses for the occurrence, stayed in P.W.1's house at the time of occurrence. Earlier, there was previous enmity between P.W.1 and the accused/ appellant and the Panchayatdars intervened and the accused was instructed not to repeat the quarrel against P.W.1 in future. On the occurrence day, P.W.1 was scolded with filthy language by the accused/ appellant. In view of the same, when the deceased questioned the act of the accused, the deceased was stabbed in the right side of the chest with the knife by the accused / appellant thereby causing death of the deceased http://www.judis.nic.in 8/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Santhanakumar. P.W.4, neighbour of P.W.1 on hearing the noise rushed to the scene of occurrence and had taken the deceased to the Government hospital, Nagapattinam. P.W.10 Dr.Langaram examined the deceased Santhanakumar and informed that the deceased Santhanakumar died on the way to hospital. Ex.P11 is the Accident Register which indicates that the body of the deceased Santhanakumar sent to post mortem. P.W.11 Dr.M.Mahesh conducted post mortem on 13.5.2013 at 1.00 p.m. and certified that both external and internal injuries found on the body of the deceased and issued Ex.P12 Post Mortem report. P.W.1 lodged a complaint Ex.P1 with P.W.12, who in turn on the basis of complaint Ex.P1, registered F.I.R. Ex.P13, investigated the crime and filed charge sheet. P.W.12 went to the scene of occurrence on 13.5.2013 at about 7.15 a.m. and prepared Observation mahazar Ex.P5 and Rough sketch Ex.P14 in the presence of P.W.6 and one Veeraiyan. P.W.12 also recovered materials viz., M.Os.1 to 8 under Seizure Mahazar Ex.P6. He also conducted inquest in the presence of Panchayatdars and prepared Ex.P15 Inquest report and sent the body of the deceased through P.W.9 Thiru Gowthaman, Police Constable for post mortem.
14. The learned counsel appearing for the appellant submitted that P.W.1 is an interested witness, gave false statement against the appellant. The evidence of P.W.1 before the Court and statement made in Ex.P1 are http://www.judis.nic.in 9/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 contradictory one. According to the learned counsel appearing for the appellant, there was no intention to kill the deceased or previous enmity between the appellant and the deceased. There is no evidence to show that the relation between the accused/appellant and the deceased Santhanakumar is not cordial. There is no motivation or intention to stab the deceased Santhanakumar. The learned counsel appearing for the appellant submitted that on the occurrence day, the accused went to P.W.1's house and asked key resulting in wordy quarrel among the appellant and his mother, P.W.1 and due to intervention of the deceased Santhanakumar, the appellant was provoked, taken knife from his house and stabbed the deceased on the right side of his chest. Therefore, case was registered under Sec.302 I.P.C. Section 302 would not made out unless it is established that the murder was committed with an intention to cause bodily injury, resulting in death. There is no pre-motivation to kill the deceased Santhanakumar. Hence, the present case would not attract offence under Sec.302 I.P.C. and the punishment awarded by the Court of Sessions under Section 302 of I.P.C. is liable to be set aside. Therefore, the Court below erred in placing reliance on the evidence of P.W.1 and P.W.4 who are the interested witnesses of the said occurrence and therefore punishment of life imprisonment awarded by the Court below under Sec.302 of I.P.C. is liable to be set aside. http://www.judis.nic.in 10/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020
15. In reply to the arguments advanced by the learned counsel appearing for the appellant, the learned Public Prosecutor submitted that the Court below elaborately discussed the evidence of P.W.1, P.W.4 and M.O.1 knife used for stabbing the deceased Santhanakumar. There was a wordy quarrel between the appellant and his mother P.W.1. On the earlier occasion, due to the intervention of Panchayatdars, the accused was warned not to repeat in future. At the time of occurrence, the appellant/accused went to the house of defacto complainant and asked key of his house and picked up quarrel with P.W.1. When the deceased Santhanakumar, who is second son of P.W.1 questioned the act of the accused/ appellant herein, having raged, the accused/ appellant taken out a knife from his house and stabbed his brother, viz., the deceased Santhanakumar on the right side of the chest causing bodily injury resulting in death of the deceased. The eye witnesses P.W.1 and P.W.4 have clearly proved the case of the prosecution.
16. The case of the prosecution was clearly established by the evidence of P.W.1 and P.W.4 and the recovery of material objects were also marked before the Court below. Though opportunity was given to the accused/appellant, the appellant is not willing to cross examine P.W.1 and P.W.4 who are the eye witnesses to disprove the prosecution case. Therefore, the Court below rightly came to the conclusion that the http://www.judis.nic.in 11/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 accused/appellant was found guilty of the offence punishable under Sec.302 of I.P.C. and imposed a punishment of life imprisonment and a fine of Rs.5000/- and in default, to undergo rigorous imprisonment for one year. Therefore, the judgment passed by the Court below is sustainable and the same does not warrant interference by this Court.
17. P.W.1, defacto complainant in her evidence has clearly stated that the accused scolded her with filthy language under the impression that she had taken the appellant's house key and when the deceased Santhanakumar, mother of the defacto complainant came out and questioned the act of the appellant, he was stabbed on the right side of the chest with knife by the accused/appellant. The evidence adduced by P.W.1, defacto complainant is as follows:
"rk;gtk; ele;j md;W ehd; vd; tPl;oy;
,Ue;njd;/mg;nghJ vd;Dld; re;jhd FkhUk;.
gj;kht[k; ,Ue;jdh;/ mg;nghJ vjphp vd;
tPl;Lf;F te;J tPlL
; rhtpia vLj;Jf;
bfhz;L nghtpl;nld; vd;W brhy;yp vd;id
tuk;g[ kPwp jpl;odhh;/ mg;nghJ (,we;J
nghd) re;jhdFkhh; Vd; mk;khit jpl;Lfpwha;
vd;W vjphpiaf; nfl;lhh;/ mg;nghJ vjphp
mth; tPlL
; jpz;izf;Fs; Xo. xU fj;jpia
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12/41
Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 vLj;J te;J re;jhdFkhhpd; tyJgf;f khh;gpy; Fj;jptpl;lhh;/ mjdhhy; uj;jk;
te;jJ/ ka';fp fPnH tpGe;J tpl;lhh;/ vjphp
fj;jpia vLj;Jf;bfhz;L Xo tpl;lhh;/
kzpkhwd; re;jhdFkhiu ,U rf;fu
thfdj;jpy; Vw;wpf; bfhz;L gpd;dhy;
ma;ag;gd; cl;fhh;e;J bfhz;L ehfg;gl;odk;
kUj;Jtkidf;F miHj;Jr; brd;wdh;/
lhf;lh; vd; igaid ghh;j;J tpl;L. ,we;J
tpl;ljhf bjhptpj;jhh;/"
18. P.W.4 relative of P.W.1 who is also present in P.W.1's house at the time of occurrence, witnessed the crime. She deposed that the deceased Santhanakumar stabbed the accused on the right side of the chest with knife and ray away from the spot. The deceased Santhanakumar fell down with bodily injury and he was taken to the Government hospital, Nagapattinam by P.W.5 Manimaran. But the deceased died on the way to hospital. The overt act of the crime has been clearly established by P.W.1 and P.W.4.
19. P.W.4 Ms.Padma who is also present in the scene at the time of occurrence, has deposed before the Court as follows:
http://www.judis.nic.in 13/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 "vdf;Fk; ,we;Jnghd re;jhdFkhUf;Fk;
jpUkzk; bra;J itf;f ntz;Lk; vd;W
Vw;ghL bra;J itj;jpUe;jdh;/ re;jhdFkhh;
,we;j md;W. ehd; m/rh/1d; tPl;oy;jhd;
,Ue;njd;/ re;jhdFkhh; ,wg;gjw;J 1 -1/2
khjj;jpw;F Kd; ehd; mrh/1d; tPl;ow;F brd;W
tpl;nld;/ rk;gtj;jpw;F 15 ehl;fSf;F Kd;g[
vjphpapd; kidtp gphpah vjphpaplk; nfhgpj;Jf; bfhz;L mtuJ mk;kh tPl;Lf;F brd;Wtpl;lhh;/ mjd;gpwF vjphp jdpahf rikj;J rhg;gpl;Lf;
bfhz;oUe;jhh;/ rk;gtj;jpw;F xU thuk; Kd;g[
vjphp vd; mj;ij (m/rh/1) tPl;od; Tiuia
bfhSj;jp tpl;lhh;/ rk;gtj;jd;W ehd;.
m/rh/1. re;jhdFkhh; Mfpnahh; m/rh/1?d;
tPl;oy; ,Ue;njhk;/ mg;nghJ vjphp Foj;J
tpl;L m/rh/1?d; tPlL
; f;F te;J m/rh/1?I
mrp';fkhd thh;ji
; jfshy; jpl;otpl;L rhtpia
bfhL vd;W m/rh/1?I nfl;lhh;/ mg;nghJ
re;jhdFkhh;. Vz;lh mk;khit jpl;Lfpwha;
vd;W nfl;lhh;/ mjw;F vjphp ,njh
tUfpnwd; vd;W brhy;yp tPl;L jpz;izapy;
itj;jpUe;J fj;jpia vLj;J te;J
re;jhdFkhhpd; tyJgf;f khh;gpy; fj;jpahy;
Fj;jpdhh;/ Fj;jpath; fj;jpa[ld; Xotpl;lhh;/
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Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Fj;Jgl;lth; ky;yhf;f rha;e;J tpl;lhh;/ re;jhdFkhiu ehDk;. m/rh/1?k; gpoj;Jf;
bfhz;nlhk;/ ma;ag;gd;. kzpkhwd; re;jhd
Fkhiu Juf;fp nkhl;lhh; irf;fpspy; itj;J
ehfg;gl;odk; muR kUj;Jtkidf;F bfhz;L
brd;whh;fs;/ kUj;Jtkidapy; lhf;lh; re;jhd Fkhiu ghh;j;J tpl;L mth; ,we;J tpl;ljhf bjhptpj;jhh;/"
The opportunity given to the accused/appellant for cross examination of P.W.1 and P.W.4, was not availed by the appellant. Therefore, there is no materials placed before the Court to disprove the statement of P.W.1 and P.W.4.
20. In sofar as the other witnesses are concerned, P.W.5 Manimaran, independent witness deposed before the Court below is as follows:
''rk;gtj;jd;W ehd; tPl;oy; ,Ue;njd;/
mg;nghJ re;jhdFkhh; tPl;oy; xnu rj;jk;
nfl;lJ/ Xog;ngha; ghh;j;njd;/ mg;nghJ
m/rh/1. gj;kh Mfpnahh; mth; tPl;oy;
,Ue;jhh;fs;/ m/rh/1 re;jhdFkhiu mth;
koapy; itj;J mGJ bfhz;oUe;jhh;/
re;jhdFkhh; clypy; uj;jfhak; ,Ue;jJ/
mthpd; mk;kh bghpa igad; rf;jpnty;
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Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 re;jhdFkhiu Fj;jptpl;ljhf brhd;dhh;/ ehDk;. ma;ag;gDk; nkhl;lhh; irf;fpspy;
itj;J re;jhdFkhiu muR kUj;Jtkidf;F
miHj;J brd;nwhk;/ ehd; nkhl;lhh;
irf;fpis Xl;ondd;/ ma;ag;gd; gpd;dhy;
mkh;e;J re;jhdFkhiu gpoj;Jf; bfhz;L
te;jhh;/ kUj;Jth; re;jhdFkhiu ghh;j;J
tpl;L mth; ,we;Jtpl;ljhf brhd;dhh;/''
M.Os.1 to 8 were recovered under Seizure Mahazar Ex.P6, Ex.P7 and Ex.P9 in the presence of witnesses. Post mortem report, Ex.P12 as well as the evidence of P.W.11 Dr.M.Mahesh, who conducted post mortem, clearly establish both external and internal injuries caused to the deceased Santhanakumar. Therefore, the findings of the Court below is well founded and the same is sustainable in law and facts.
21. The next ground for consideration of the appeal is that according to the counsel for the appellant, the appellant by sudden provocation, without any intention to cause death or such bodily injury, committed the offence resulting in death of the deceased. Therefore, the appellant could be said to have committed offence punishable under Section 304 Part II of the Code and not under Section 302 of I.P.C. http://www.judis.nic.in 16/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020
22. The principal issue to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the appellant, is 'murder' under Section 302 of I.P.C. or 'culpable homicide not amounting to murder' under Section 304 Part I or Part II of the Code.
23. The Hon'ble Supreme Court in STATE OF ANDHRA PRADESH VS. RAYAVARAPU PUNAYYA & ANOTHER [1976 (4) SCC 382] has elaborately elucidated the distinction between the 'murder' and 'culpable homicide not amounting to murder' which reads as under:
''In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to. murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in s. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under http://www.judis.nic.in 17/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 the l st part of s. 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 s. 304. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide subject to certain if the act by which the death exceptions culpable is caused is done homicide is murder if the act by which the death caused is done-- INTENTION
(a) with the intention (1) with the intention of http://www.judis.nic.in 18/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 of causing death: causing death;
or or
(b) with the intention of (2) with the intention of causing
causing such bodily injury such bodily injury
as is likely to cause death; as the offender knows to or be likely to cause the death of person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
or KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that the act likely to cause death. the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above. Clause (b) of S.299 corresponds with cls. (2) and (3) of s.300. The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that' such harm would http://www.judis.nic.in 19/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of el. (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 cl. (2) is borne out by illustration (b) appended to s. 300. Clause (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl. (2) of s. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the he,art, 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 http://www.judis.nic.in 20/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding el. (b) of s. 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if over- looked, may result 'in miscarriage of justice. The difference between cl. (b) of s. 299 and cl. (3) of s. 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 cl. (b) of s. 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury having regard to the ordinary course of nature. For cases to fall within cl. (3), it is not necessary that the offender intended to cause death, So long as death ensues from the intentional. bodily injury or injuries sufficient to cause death in the ordinary course of nature. http://www.judis.nic.in 21/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Rajwant and anr. v. State of Kerala(2) is an apt illustration of this point. In Virsa Singh v. The State of Punjab, (2) 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 s. 300, 3rdly'. 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 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 suffi- cient 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." Thus according to the rule laid down in Virsa Singh's case (supra) even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of http://www.judis.nic.in 22/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to s. 300 clearly brings out this point. Clause (c) of s. 299 and cl. (4) of s. 300 both require knowledge of the probability of the 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 cl. (4) of s. 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. From the above conspectus, it emerges that whenever 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' (1) A.I.R. 1966 S.C. 1874. (2) [1958] S.C.R. 1495.. be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, http://www.judis.nic.in 23/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection 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 s.
299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, 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 s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s. 304, depending. respectively, or whether the second or the third Clause of s. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s. 304, Penal Code. The above are only broad guidelines and not cast-iron http://www.judis.nic.in 24/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so inter- twined and the second and the third stages so telescoped into each other, that it may not be convenient,to give a separate treatment to the matters involved in the second and third stages.
Now let us consider the problem before us in the light of the above enunciation. It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connection between the beating administered by A-1 and A-2 to the deceased and his death. The accused confined the beating to. the legs and arms of the deceased, and therefore, it can be said that they perhaps had no "intention to cause death" within the contemplation clause
(a) of s. 299 or cl. (1) of s. 300. It is nobody's case that the instant case falls within el. (4) of s. 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of imminent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel http://www.judis.nic.in 25/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 for the appellant has not contended that the case would fall under el. (4) of s. 300. His sole contention is that even if the accused had no intention to cause death, the facts established fully bring the case within the purview of cl. (3) of s. 300 and as such the offence committed is murder and nothing less. In support of this contention reference has been made to Andhra v. State of Rajasthan(1) and Rajwant Singh v. State of Kerala (supra). As against this, Counsel for the respondent submits that since the accused selected only non-vital parts of the body of the deceased, for (1) A.I.R. 1966 S.C. 148. inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under clause (3) of s. 300; at the most, it could be said that they had knowledge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of s. 299, and the offence committed was only "culpable homicide not amounting to murder", punishable under s.304, Part 11. Counsel has thus tried to support the reasoning of the High Court. The trial Court, 'as 'already noticed, had convicted the respondent of the offence of murder. It applied the rule in Virsa Singh's case (supra). and the ratio of Anda v. State and held that the case was http://www.judis.nic.in 26/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 clearly covered by clause Thirdly of s. 300. The High Court has disagreed with the trail Court and held that the offence was not murder but one under s. 304, Pt. II. The High Court reached this conclusion on the following reasoning:
(a) "There was no premeditation in the attack. It was almost an impulsive act". (b) "Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts the body." (c) "There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding". (which) "according to PWI might have stopped with in about half an hour to one hour." (d) "Death that had occurred 21 hours later, could have been only due to shock and not due to hemorrhage also, as stated by PW 12... who conducted the autopsy. This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein. From the injuries inflicted the accused therefore could not have intended to cause death." (e) "A1 and A2 had beaten the deceased with heavy sticks. These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of... , http://www.judis.nic.in 27/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 therefore considerable force must have been used while inflicting the blows. Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminently dangerous that in all probability their acts would result in such injuries as are likely to cause the death. The offence ...is therefore culpable homicide falling under ....s. 299, I.P.C. punishable under s. 304 Part II and not murder."
24. The Hon'ble Supreme Court in AJIT SINGH VS. STATE OF PUNJAB [(2011) 9 SCC 492] has held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that amounting to murder as well as that http://www.judis.nic.in 28/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 not amounting to murder in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.
25. The Hon'ble Supreme Court in the case of VINEET KUMAR CHAUHAN VS. STATE OF U.P. [(2007) 14 SCC 660] noticed that academic distinction between murder and culpable homicide not amounting to murder had vividly been brought out by this Court in STATE OF A.P. V. RAYAVARAPU PUNNAYYA [(1976) 4 SCC 382], where it was observed as under:
''..that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to http://www.judis.nic.in 29/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection 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 in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, or whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.''
26. The Hon'ble Supreme Court in RAYAVARAPU PUNAYYA case (supra), has clearly stated that the Court should determine whether the http://www.judis.nic.in 30/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s. 304, depending. respectively, or whether the second or the third Clause of s. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s. 304, Penal Code.
27. Now, let us see the four clauses of Section 300 of the Code.
"'300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— (Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in- flicted is sufficient in the ordinary course of nature to cause death, or— http://www.judis.nic.in 31/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 (Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause 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 aforesaid.
28. Referring to exceptions to culpable homicide amounting to murder, the Hon'ble Supreme Court in RAMPAL SINGH VS. STATE OF U.P. [Crl.A.No.2114 of 2009, dated 24.7.2012] has held as under:
''15. Section 300 of the code states what kind of acts, when done with the intention of causing death of bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to murder. it is also murder when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to culpable homicide amounting to murder. The explanations spell out the elements which need to be satisfied for application of such exceptions, like http://www.judis.nic.in 32/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 an act done in the heat of passion and without pre- mediation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, culpable homicide would not amount to murder. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case.
16. This Court in the case of Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC 660 noticed that academic distinction between murder and culpable homicide not amounting to murder had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382], where it was observed as under:
..that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of section 299 and 300 of the Code and the drawing support http://www.judis.nic.in 33/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the 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 would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection 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 in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in http://www.judis.nic.in 34/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.
17. Having noticed the distinction between murder and culpable homicide not amounting to murder, now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.
18. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not.
First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its http://www.judis.nic.in 35/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 wisdom, thus, covered the entire gamut of culpable homicide that amounting to murder as well as that not amounting to murder in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.
19. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 http://www.judis.nic.in 36/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 years. The first clause of this section includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the exceptions to section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer :Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009 )
20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 http://www.judis.nic.in 37/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."
29. In the case on hand, the evidence examined in its entirety, shows that without any pre-meditation, the appellant committed the offence. The same, however, was done with the intent to cause a bodily injury which could result in death of the deceased. This Court finds from the above facts and materials that there was no enmity between the appellant and the deceased and there was no allegation of the prosecution that before the occurrence, the appellant had pre-meditated the crime of murder. Due http://www.judis.nic.in 38/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 to hostile attitude from the family of the deceased, a sudden quarrel took place between the appellant and the deceased. On account of heat of passion, the appellant went home and took out a knife and attacked the deceased on his right chest causing death when the deceased came to the rescue of his mother at the time of occurrence.
30. In view of the foregoing discussions in the earlier paragraphs and the decisions cited supra, we are convinced that provision under Sec.304 Part I of I.P.C. would attract in the instant case for the reason that the offence committed by the accused/appellant is culpable homicide not amounting to murder.
31. We partly allow this appeal and alter the offence that the appellant has been guilty of, from that under Section 302 of the Code to the one under Section 304 Part I of the Code. Therefore, the appellant is deserved to be punished under Sec.304 Part I of I.P.C. Therefore, the punishment awarded by the Court below for the offence under Sec.302 I.P.C. is altered to that of offence punishable under Section 304 Part I of I.P.C. and consequently, we award a sentence of eight years rigorous imprisonment and to pay a fine of Rs.20,000/-, in default, to undergo simple imprisonment for one month. The detention period already undergone by the appellant is set off under Sec.428 of Cr.P.C. The judgment under appeal is modified in the above terms.
http://www.judis.nic.in 39/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 Accordingly, the Criminal appeal is partly allowed. Consequently, Crl.M.P.No.2239 of 2020 is closed.
(M.M.S.J) & (D.K.K.J.) 4 .12.2020 Speaking/Non Speaking order Index: Yes/No Internet: Yes/No vaan To
1.The Principal District & Sessions Judge, Nagapattinam.
2.The Addl. Public Prosecutor, High Court, Madras.
http://www.judis.nic.in 40/41 Crl.A.No.333 of 2018 & Crl.M.P.No.2239 of 2020 M.M.SUNDRESH, J and D. KRISHNAKUMAR, J.
vaan Pre-Delivery Judgment in Crl.A.No.333 of 2018 and Crl.M.P.No.2239 of 2020 Dated: 4.12.2020 http://www.judis.nic.in 41/41