Jharkhand High Court
Joseph Soy Son Of Late Nathaniel Soy vs The State Of Jharkhand on 5 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1- Cr. Appeal (DB) No. 346 of 2016
THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 346 of 2016
-------
(Against the judgment of conviction dated 23.01.2016 and order of
sentence dated 29.01.2016, passed by learned Additional Sessions
Judge-I, Khunti, in Sessions Trial Case No. 398 of 2012)
------
Joseph Soy son of late Nathaniel Soy, Resident of village-
Soyko, P.O-Murhu, P.S.-Murhu, District-Khunti, Jharkhand
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
------
For the Appellant : Mr. Jorong Jedan Sanga, Advocate
For the Respondent : Mrs. Priya Shrestha, Special .P.P.
--------
C.A.V. on 21/02/2024 Pronounced on 05/03/2024
Per Sujit Narayan Prasad, J.:
Prayer:
1. This appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 23.01.2016 and order of sentence dated 29.01.2016, passed by learned Additional Sessions Judge-I, Khunti, in Sessions Trial Case No. 398 of 2012, whereby and whereunder the learned trial court has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and has sentenced to undergo R.I for life under Section 302 of the Indian Penal Code and fine of Rs.20,000/- and in the event of default of payment of fine convict was further directed to undergo rigorous imprisonment for one year.
-2- Cr. Appeal (DB) No. 346 of 2016 Prosecution Case:
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case:
The First Information Report has been lodged on the basis of fardbayan of Sukru Bhengra, which was recorded by Sub-Inspector of Police, Mehra Police Station, Officer-in- charge of Akri P.S. alleging therein that deceased Pasna Bhengra, the husband of informant Sukru Bhengra, stepped out from his house at around 8:00 AM on 16.12.2011 with Joseph Soy, S/o Late Nathaniel Soy, Village-Soyko, P.S.- Murhu, District-Khunti who at present lives at the house of his maternal uncle Junad Oreya in Japut. He did not return till 4:00 PM then the informant began to wait for the return of her husband deceased Pasna Bhengra. In meanwhile, the informant came out from her house on hearing alarm of shepherd and co-villagers. She came to know that Joseph Soy killed Pasna Bhengra, the husband of informant, with an axe and fled away in forest. The informant went on road near graveyard at west of village and saw the dead body of her husband Pasna Bhengra in a pool of blood. Thereafter, the informant went and narrated this fact to other villagers. The villagers tried to search Joseph Soy here and there but he could not be traced out. At around 11:30 PM, Joseph Soy
-3- Cr. Appeal (DB) No. 346 of 2016 came at house of his maternal uncle Junad Oreya where he was caught with the cooperation of villagers and inquired then Joseph Soy said that we both (deceased Pasna Bhengra and Joseph Soy) were coming from Soradih to our house at Japut and further stated that in the meanwhile, we have exchange of hot discussion and abusive language, and I (Joseph Soy) killed deceased Pasna Bhengra with an axe on this issue and fled into forest after throwing the axe into the bush. After being caught by villagers and as disclosed by Joseph Soy, the axe used for murder was recovered from nearby bush and seized by the police.
3. On the basis of the fardbeyan of the informant Akri P.S. Case No. 44 of 2011 was registered for the offence under Section 323, 324 and 302 of the Indian Penal Code against the accused and after completion of investigation the Investigating Officer submitted charge-sheet under Section 302 of the Indian Penal Code against accused. Accordingly, the cognizance for the offence under Section 302 of the Indian Penal Code was taken against accused and the case stands committed to the Court of Sessions wherefrom it has been transferred to the file of learned District & Sessions Judge-I, Khunti.
4. The charge was framed under Section 302 of the Indian Penal Code against named accused person to which he pleaded not guilty and claimed to be tried.
-4- Cr. Appeal (DB) No. 346 of 2016
5. During trial, in order to prove its case, the prosecution has examined altogether nine [09] witnesses, they are PW 1 Ramaya Konda, PW 2 Nathaniel Topno, PW 3 Soleman Tuti, PW 4-Samuel Oriya, PW 5-Dr. Sunil Khalko, PW 6-
Parmeshwar Dayal Mehara, PW 7 Boas Guria, PW 8 Daniel Mundu and PW 9 Sukru Bhengra, (Informant).
6. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused and found the charges levelled against the appellant proved beyond all reasonable doubts. Accordingly, the appellant had been found guilty and convicted for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo life imprisonment for the said offence, which is the subject matter of instant appeal.
7. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not.
Argument on behalf of appellant:
8. Mr. Jorong Jedan Sanga, learned counsel appearing for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:
-5- Cr. Appeal (DB) No. 346 of 2016 I. That the prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt.
II. That the prosecution has also failed to appreciate that it is not a case where any ingredient of Section 302 I.P.C. is attracted.
III. That in the case at hand, there is no reliable eye witness to the occurrence and on mere suspicion the appellant has been arrested and convicted in the case.
IV. Further, the investigation in the case at hand has been done in a haphazedly manner and there are many discrepancies and inconsistency in the testimony of the witnesses in particular the testimony of the informant, P.W. No. 9 and other witnesses. Some witnesses have stated that this occurrence was committed at 4:00 PM and some witnesses stated that it was committed at 2:00 PM. Similarly, there are too many contradictions in evidence of P.W. No. 7- Boas Guriya, P.W. No. 2-Nathaniel Topno and P.W.No. 4-Samuel Guriya and others. But the the learned trial Court did not take into consideration these facts into consdiration while passing the impugned judgment of conviction.
-6- Cr. Appeal (DB) No. 346 of 2016
V. Further, the commission of crime cannot be said to
be conclusively proved in absence of any
corroboration by not sending the ‗blood-stained Tangi' (a sharp-edged iron weapon), said to be used in commission of crime for assaulting the deceased, to the Forensic Science Laboratory.
VI. The learned counsel for the appellant, based upon the aforesaid ground, has submitted that the impugned judgment suffers from illegality, hence not sustainable in the eyes of law.
VII. In alternative, submission has been made that even the prosecution story is taken to be true then also the learned trial court has failed to appreciate that the commission of crime of murder is only on the basis of the heat of passion in a sudden quarrel.
VIII. Therefore, in alternative, it has been argued that even accepting the case of the prosecution to be true, even then, at best this case would fall under Section 304 Part-I or Part II of the Indian Penal Code taking into consideration the fact that in the manner and mode in which the murder is alleged to be committed, no case under Section 302 IPC is made out.
Argument on behalf of respondent-State:
9. Mrs. Priya Shrestha, learned Special P.P. has opposed the grounds agitated on behalf of appellant against the
-7- Cr. Appeal (DB) No. 346 of 2016 impugned judgment by defending the same stating inter alia that there is no infirmity in the impugned judgment on the following grounds:
I. It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since the assault admittedly was inflicted upon the deceased which resulted into death of the deceased.
II. P.W.No. 1 and others are eye-witnesses to the occurrence and their evidences are also supported by other witnesses in course of trial. Accused is named in FIR and when the informant was at her home then the accused took away her deceased-
husband, Pasna Bhengra, and killed him by an axe. He hid the axe in the forest which was recovered by the police. In this way, the prosecution has proved the case against accused beyond the shadow of all reasonable doubt on the basis of oral and documentary evidence.
III. The Investigating Officer has corroborated the occurrence by supporting the testimony of prosecution witnesses as also the injury inflicted upon the deceased has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by sharp
-8- Cr. Appeal (DB) No. 346 of 2016 cutting weapon and the injury has also been found over the dead body of the deceased.
IV. Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed.
10. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses as also the finding recorded by learned trial Court.
11. This Court, before considering the argument advanced on behalf of the parties, is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
Testimony of witnesses:
12. P.W. No. 1-Ramai Konda is a resident of Japut village and deposed in his examination-in-chief that the occurrence took place on 16.12.2011. It was 4:00 PM. At that time, he went to attend nature's call. Joseph Soy and Pasna Bhengra were coming from the west direction. Exchange of abusive language began between them. Joseph Soy was armed with an axe. As soon as they reached near the graveyard, there was exchange of hot talk between them. Joseph assaulted Pasna Bhengra with an axe for 3-4 times. Pasna Bhengra
-9- Cr. Appeal (DB) No. 346 of 2016 sustained injuries at right side of neck, back of ear, neck and head. Consequently, the deceased Pasna Bhengra died. He assaulted him with back side of the axe. Thereafter, Joseph Soy fled away and after going to some distance he threw the axe in the bush. This witness raised alarm. The villagers came on his alarm including Sukru Bhengra, Nathaniel Topno, Somaya Oreya. Pasna Bhengra died at the spot. The police came on 17.12.2011 and inquired this witness. This witness has identified the accused.
13. The P.W. No. 2-Nathaniel Topno has told in his examination-in-chief that occurrence took place at 4:00 PM on 16.12.2011. He was at his home at that time. He heard alarm from graveyard side. He visited near the graveyard and saw that the dead body of Pasna Bhengra was lying there and it was in a pool of blood. Ramai Konda (P.W.No. 1), Sukru Bhengra (P.W.No. 9, Informant) and villagers were present there. Ramai Konda told this witness that the quarrel took place between Joseph and Pasna Bhengra. In the meanwhile, Joseph assaulted and killed Pasna Bhengra with an axe holding in up-down position and he fled. This witness saw injuries at the left side of neck, near the ear, back of head of Pasna. The police came on next day and inquired this witness. This witness identified the accused present in the Court.
- 10 - Cr. Appeal (DB) No. 346 of 2016
14. The P.W.No. 3-Suleman Tuti told in his examination- in-chief that this occurrence took place at 4:30 PM on 16.12.2011. At that time, this witness went towards the west side from village to attend nature's call. Ramai Konda was also present with him. At the same time, Pasna Bhengra and Joseph Soy were coming from the west side and exchanging abusive language. There was a small axe in the hand of Joseph Soy. He was at the distance of 50-60 yards. As soon as they reached near the graveyard, there was exchange of blow between them. Thereafter, Joseph assaulted Pasna Bhengra on his head and at his neck with an axe he was possessing. This witness raised alarm. Pasna Bhengra fell there and died. Joseph threw the axe in bush and fled towards the forest. Thereafter, Ramai Oreya, Boas Oreya, Daniel Mundu, Nathaniel Topno, Sukru Bhengra and others came on alarm. This witness has also identified accused in the Court.
15. P.W.No. 4, Samuel Oreya in his examination-in-chief has stated that the incidence took place on 16.12.2011 at about 4:00 O' Clock in the day and at that time this witness was present in his house. Hearing hulla, he went to the graveyard and saw the dead body of Pasna Bhengra there. There was wound on his neck. The blood was oozing out. Daughter and wife of Pasna Bhengra were also present there. Both were crying. Boas Oreya, Nathaniel Topno, Sukru
- 11 - Cr. Appeal (DB) No. 346 of 2016 Bhengra, Daniel Mundu and other people were present there. Ramai Konda and Suleman Tuti told these people that Joseph committed the murder with an axe and threw the axe into the bush. He has stated in cross-examination that he is not literate, hence he cannot tell the boundaries of the place of occurrence.
16. P.W.No. 5-Dr. Sunil Xalxo has stated in his examination-in-chief that on 17.12.2011, he was posted as Medical Officer in Sadar Hospital, Khunti and on that day at 3:40 PM he had conducted post-mortem of the deceased Pasna Bhengra in which the following injuries were found:-
(i) Deep lacerated wound on neck left side-2"x1"x deep 3".
(ii) Open lacerated wound over capitate bone-3"x2"
plus fracture of that bone.
(iii) Open lacerated wound on chest left side 2"x1"x1" deep.
(iv) Open lacerated wound over frontal bone plus fracture of that bone.
All the injuries are anti-mortem in nature and death caused due to massive haemorrhage and shocked.
Time elapsed since post-mortem examination-10 to 48 hours.
(2) All the above injuries are possible by axe. (3) This is the post-mortem report which is in my pen
- 12 - Cr. Appeal (DB) No. 346 of 2016 and signature marked Exhibit-1. He has stated in his cross-examination that:-
(4) Axe is a sharp cutting weapon. Cut injuries are possible by a sharp cutting weapon. There will no lacerated wound by sharp cut weapon.
(5) I have not found foreign particle i.e. dust, mud in the wound.
17. P.W.No. 6-Investigating Officer Parmeshwar Dayal Mehra has stated in his examination-in-chief that on 16.12.2011, he was posted as the Officer-in-charge of Arki Police Station. He has identified his signature on formal FIR which is in the handwriting of Anand Bhushan Singh, marked as Exhibit-2. He identified his handwriting and signature on the fardbeyan on which the informant of the case had made her thumb impression before him, and he also identified the endorsement on the fardbeyan under his handwriting and signature which is marked as Exhibit-3. He himself took over the charge of investigation and first recorded the re-statement of the informant. He prepared inquest report and sent the dead body to the hospital for conducting post-mortem. He prepared a seizure list after recovering a bloodstained axe from the place of occurrence (bush) and he has mentioned there in the fact of preparation of seizure list in presence of witnesses Daniel Topno and Boas Oreya and these witnesses and he made their
- 13 - Cr. Appeal (DB) No. 346 of 2016 signatures on it. It is marked as Exhibit-4. Thereafter, he inspected the place of occurrence. The place of occurrence of this case is a kuchcha road near the graveyard situated about two hundred yards west of Japut village. This road goes from Japut to Kander, where the deceased is said to have been murdered which is butted and bounded as follows:-the graveyard in the north, the barn of Prabhu Sahay Purti in the south, roofed house in the east and the road that goes to Kander in the west. Other significant things were not found at the place of occurrence. Thereafter, he recorded the evidence of the witnesses Ramai Konda, Suleman Purti, Samuel Oreya, Nathaniel Topno, Boas Oreya and Daniel Mundu and these witnesses completely supported the incident before him. Thereafter, he arrested accused Joseph Soy and took his defence statement. Accused has been identified by him. Thereafter, on the basis of sufficient evidence and on the instructions of senior police officer he submitted charge-sheet against the accused. Seized bloodstained soil is also not available before himin the Court. He was not able to tell length-breadth of seized axe and length-breadth of its handle. He had not sent seized axe for its scientific examination.
18. P.W.No. 7-Boas Guriya has stated in his examination- in-chief that the incident took place on 16.12.2011 at 2:00 O'clock in the day. On that day, this witness had gone to the
- 14 - Cr. Appeal (DB) No. 346 of 2016 house of Birbaki and Dawood. On the same day, when he was returning home and reached there, Suleman and Ramai Konda told him that Joseph Soy killed Pasna Bhengra with an axe and fled after killing him. The meeting was held in the village. Thereafter, the villagers went to the police station and gave information about it. The police came to the village next day along with Chowkidar. Before the arrival of the police, Mukhiya of village Panchayat had called Saloni Kundu and held meeting. The police prepared the papers of the dead body and then took the dead body to the police station. It has further been stated he had put his signature on the inquest report. He had also signed the memo of arrest which is marked as Exhibit-5 for identification. He has also identified his signature on seizure list dated 17.12.2011, which is marked as Exhibit-4/1. He has stated in his cross- examination that he also accompanied the dead body and at that time, he put his signature. The house of Suleman and Ramai is half a kilometer from his house. Suleman, Ramai and Joseph Soy are not residents of Japut. Joseph Soy resides at the house of his maternal uncle Junas Oreya. This witness is a village head. Joseph had himself stated.
19. Thus, this witness is not an eye-witness of this incident, but he has admitted in his examination-in-chief that when he reached the place of occurrence, he came to know about the
- 15 - Cr. Appeal (DB) No. 346 of 2016 incident from Suleman and Ramai Konda that Joseph Soy killed Pasna Bhengra with an axe.
20. P.W.No. 8-Daniel Mundu has stated in his examination-in-chief that the incident took place on 16.12.2011. At that time in the evening, this witness was present in his house. There was an uproar in the village. He went to the place of uproar and saw dead body of the deceased Pasna Bhengra lying there. There were injuries of axe on his face, neck and near temple of his head. Villagers and the deceased's wife Sukru Bhengra told that her husband had left home in the morning with Joseph Soy. Both of them being in the inebriated condition started quarrelling near the graveyard and assaulted him with an axe. Next day, when the information was given to the police station by phone, Chowkidar came by vehicle and took away the dead body with him. Joseph Soy is present to whom he identified. He has stated in his cross-examination that the next day Chowkidar came with a passenger vehicle and took away the dead body.
21. The P.W.No. 9-informant Sukru Bhengra has told before the Court in course of trial that the occurrence took place at 4:30 AM. She was at her house in evening. Joseph Soy attacked her husband Pasna Bhengra on his face and neck with an axe near the graveyard. Thereafter, alarm was raised. The villagers assembled there. The villagers asked
- 16 - Cr. Appeal (DB) No. 346 of 2016 Joseph Soy whether he committed murder or not then Joseph Soy replied that ―I have committed the murder‖. Her husband died at the place of occurrence. Her husband and Joseph went to drink Hariya and did not come back home till evening. Thereafter, villagers organized a meeting. Thereafter, the villagers have taken the dead body of Pasna Bhengra to Arki Police Station. This witness got information about the occurrence from the villagers. The police had not recorded statement (witness is illiterate). Joseph Soy who was present in the Court and she identified him. Joseph Soy searched and produced the axe used in murder. This witness has told in her cross-examination that shepherds had told her about the occurrence but their names are not in her memory. She was at her house at the time of occurrence. A meeting was organized in the village. Ramai Konda (P.W.No. 1), Suleman Tuti (P.W.No. 3), Samuel Oraiya (P.W.No. 4), Nathaniel Topno (P.W.No. 2), Boas Oreya (P.W.No. 7) and Daniel Oreya (P.W.No. 8) were present in the meeting. She told in the meeting that she came to know about the occurrence from the shepherds and the people present in the meeting also told her about the murder. The shepherds also narrated about the murder to the people present in the meeting. Her husband and Joseph stepped out from house to drink Hariya at the early morning. They drank Hariya at Khusrupiri. She does not know at whose house they took Hariya. She did not see
- 17 - Cr. Appeal (DB) No. 346 of 2016 them while taking Hariya. She does also not know where they visited after taking Hariya. She is unable to say where and how Joseph searched the axe. He searched it with villagers. This witness has not re-married. Soma is her husband. Pasna Bhengra was another name of Soma. The villagers took away the dead body of her husband by a vehicle. The Chowkidar did not accompany the dead body to the police station. This witness has denied that she has no knowledge about the occurrence and gave false evidence.
22. Learned trial court, based upon the testimonies of eye witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellants under Section 302 of Indian Penal Code and directed to undergo R.I. for life. Analysis:
23. This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II of the Indian Penal Code.
24. The Hon'ble Apex Court has dealt with the aforesaid position of law in the case of Surinder Kumar v. Union
- 18 - Cr. Appeal (DB) No. 346 of 2016 Territory, Chandigarh reported in (1989) 2 SCC 217 wherein at paragraph 6 and 7 it has been held as under:
"6. Exception 4 to Section 300 reads as under:
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
In the present case, the deceased and PW 2 had entered the room occupied by SikanderLal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to hand over possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2
- 19 - Cr. Appeal (DB) No. 346 of 2016 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 wasconvicted at Narnaul on two occasions under Section 411 IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that AmritLal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on NityaNand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the fifth rib about 2" below the nipple. It may incidentally be mentioned that the trial court came to the conclusion that the injury found on the neck of PW 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307 IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because
- 20 - Cr. Appeal (DB) No. 346 of 2016 three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years.
[Emphasis supplied]
25. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as :-
"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] ,para 12, this Court held as under: (SCC p. 41) "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7) „7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.‟
- 21 - Cr. Appeal (DB) No. 346 of 2016 The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The „intention‟ and „knowledge‟ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words „intention‟ and „knowledge‟ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to „knowledge‟, „intention‟ requires something more than the mere foresight of the consequences,
- 22 - Cr. Appeal (DB) No. 346 of 2016 namely, the purposeful doing of a thing to achieve a particular end."
26. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 which reads hereunder as :-
"28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217] , this Court has held as under: (SCC p. 220, para 7) ―7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.‖ (emphasis supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p. 595 : (2009) 3 SCC (Cri) 1130] , in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, para 9)
- 23 - Cr. Appeal (DB) No. 346 of 2016 "9. ... „18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
[Emphasis supplied]
27. In the case of Surain Singh v. State of Punjab reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :-
13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the First Exception, after which its place would have been more appropriate. The
- 24 - Cr. Appeal (DB) No. 346 of 2016 Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight"
implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter."
28. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Hon'ble Apex Court, while clarifying the distinction between section 299 and 300 of the Indian Penal Code and their consequences, held as under: --
"12. In the scheme of the Penal Code, „culpable homicide‟ is genus and „murder‟ is species. All „murder‟ is „culpable homicide‟ but not vice-versa. Speaking generally, „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 degrees of culpable homicide. The first is what may be
- 25 - Cr. Appeal (DB) No. 346 of 2016 called „culpable homicide of the first degree‟. This is the greatest form of culpable homicide, which is defined in Section 300 as „murder‟. The second may be termed as „culpable homicide of the second degree‟. This is punishable under the first part of Section 304. Then, there is „culpable homicide of the third degree‟. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.‖ [Emphasis supplied]
29. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, the Hon'ble Apex Court enumerated some of the circumstances relevant to finding out as to whether there was any intention to cause death on the part of the accused. The Hon'ble Court observed as under :-
―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 insignificant 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 motives like revenge, greed, jealousy or suspicion may be 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 attempts 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 converted 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
- 26 - Cr. Appeal (DB) No. 346 of 2016 death can be gathered generally from a combination of a few or several of the following, 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 incident occurs by chance or whether there was any premeditation; (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 reference to individual cases which may throw light on the question of intention."
[Emphasis supplied]
30. Recently the Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under:
"66. 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 Section 300 of the
- 27 - Cr. Appeal (DB) No. 346 of 2016 IPC, the act will be murder even though only a 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 enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 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 knowledge 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 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 person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable 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 intention,‟ 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 injury was intended, and objectively that injury was sufficient 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.
- 28 - Cr. Appeal (DB) No. 346 of 2016 (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 Section 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 distinguished from more „possibly‟. When chances of happening are even or greater than its 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 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 homicide 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
- 29 - Cr. Appeal (DB) No. 346 of 2016 facie established on the evidence on record, the prosecution must still be required 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 Section 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 described under Section 299 of the IPC.
(8) The court must address itself to the question of mensrea. 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 direct 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 injury, degree of force used in causing the injury, the manner 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 principle, can be drawn that the accused did not have the intention 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 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
- 30 - Cr. Appeal (DB) No. 346 of 2016 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 sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden 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.
31. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues :-
(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or
(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code?
or
(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or
(iv) Whether the appellants are entitled for acquittal in absence of cogent evidences?
- 31 - Cr. Appeal (DB) No. 346 of 2016
32. Since all the aforesaid issues are inextricably inter- linked, the same are being discussed and decided hereinbelow together.
33. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredients of culpable homicide as provided under Section 299 of the Indian Penal Code amounting to murder as provided under Section 300 IPC and not amounting to murder as provided under Exception 4 to Section 300 of the Indian Penal Code.
34. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act - (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death, ―intent‖ and ―knowledge‖ as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mensreanecessary for the offence. The knowledge of
- 32 - Cr. Appeal (DB) No. 346 of 2016 3rd condition contemplates knowledge or the likelihood of the death of the person.
35. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :-
"32. For this purpose we have to go to Section 299 which defines "culpable homicide". This offence consists in the doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] x"intent" and "knowledge" in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mensrea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person."
36. It is, thus, evident that our legislature has used two different terminologies ‗intent‟ and ‗knowledge‟ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily
- 33 - Cr. Appeal (DB) No. 346 of 2016 injury as is likely to cause death, it would be proper to hold that ‗intent‟ and ‗knowledge‟ cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‗intent‟ and ‗knowledge‟ are the same. ‗Knowledge‟ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
37. Thus, while defining the offence of culpable homicide and murder, the framers of the Indian Penal Code laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder. as the case may be.
38. The framers of the Indian Penal Code designedly used the two words ‗intention‟ and ‗knowledge‟, and it must be taken into consideration that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mensrea is not required in order to prove that a person had certain knowledge, he ―must have been aware that certain specified harmful consequences would or could follow.‖
- 34 - Cr. Appeal (DB) No. 346 of 2016
39. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death.
40. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as :-
"20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:
- 35 - Cr. Appeal (DB) No. 346 of 2016 "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. ---"
41. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that 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 inflicted is sufficient in the ordinary course of nature to cause death, or 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
- 36 - Cr. Appeal (DB) No. 346 of 2016
42. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder, which are as follows :-
(a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won't amount to murder subject to proviso as provided.
(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person.
(d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender' having taken undue advantage or acted in a cruel or unusual manner.
- 37 - Cr. Appeal (DB) No. 346 of 2016
(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
43. All these exceptions mentioned above shall come under the purview of Section 304 IPC and will be termed as culpable homicide not amounting to murder.
44. It is, thus, evident that the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside purview of exception carved out under Section 300 of the Indian Penal Code.
45. In the present case, from the testimonies it is established that the deceased-Pasna Bhengra and accused- Joseph had gone to take Hariya (country made liquor) in the morning. P.W. 1 Ramai Konda, who had gone to attend the nature's call has deposed that Joseph Soy and Pasna Bhengra were coming from the west side and altercation took place between them. Joseph Soy was carrying an axe in his hand. As soon as they reached near the graveyard, scuffle started between them. Joseph assaulted Pasna Bhengra 3-4 times using the axe. Pasna Bhengra received injuries at the left side of his neck, in the back, near the throat and behind
- 38 - Cr. Appeal (DB) No. 346 of 2016 the head. Pasna Bhengra fell there. This fact is also supported by the evidence of P.W. No. 07-Dr. Sunil Xalxo, as it is clear from the expert witness- doctor that he has described injury numbers 01, 02, 03, 04 etc corroborating the evidence of other prosecution witnesses, in particular P.W.1, who in his examination-in-chief has supported the fact that the injury has been caused by assault made by the back side of the axe. Thereafter, Joseph Soy fled and after travelling a certain distance thrown the axe into the bush. When this witness raised hulla, the villagers Sukra Bhengra, Nathanial Topno, Ramai Oreya and other persons gathered there. Pasna died there. The police came on 17.12.2011 and had inquired this witness.
46. The parameters for judging the case have been dealt with by Hon'ble Apex Court in the case of Sayaji Hanmat Baukar v. State of Maharashtra, AIR 2011 SC 3172 whereunder the circumstances of the case has been held that if the act is done without premeditation in a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then exception 4 will be attracted.
47. Law is well settled that in order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied namely :-
(a) It should be sudden fight.
- 39 - Cr. Appeal (DB) No. 346 of 2016
(b) There was no premeditation.
(c) The act was done in a heat of passion
(d) The assailant had not taken any undue advantage or acted in a cruel manner.
48. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. If a person in the heat of passed in a sudden quarrel picks a weapon or any thing which is handy and thereby injuries are caused, one of which proves fatal, he would be entitled to get the benefit of exception 4 to Section 300 of IPC provided he has not acted cruelty. Thus, whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC.
49. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II by appreciating the evidences vis-à-vis the provisions of murder or exception 4.
Analysis of testimony of witnesses:
50. P.W.No. 1-Ramai Konda, a local resident of that village is an eye-witness to the occurrence. He has deposed in his
- 40 - Cr. Appeal (DB) No. 346 of 2016 examination-in-chief that when he went to attend nature's call, he saw that accued-Joseph Soy and deceased-Pasna Bhengra were coming from west direction. There was exchange of abusive language between them. Joseph Soy was armed with an axe. As soon as they reached near the graveyard, there was exchange of blow between them. Thereafter, Joseph assaulted Pasna Bhengra with an axe for 3-4 times due to which Pasna Bhengra sustained injuries at right side of neck, back of ear, neck and head. Consequently Pasna Bhengra died.
51. The P.W.No. 2-Nathaniel Topno, who is a hearsay witness has deposed in his examination-in-chief that when the occurrence took place he was at his home. He heard alarm from graveyard side. He visited near the graveyard and saw that the dead body of Pasna Bhengra was lying there and Ramai Konda (P.W. 1) told this witness that the quarrel took place between Joseph and Pasna Bhengra. In meanwhile, Joseph assaulted and killed Pasna with an axe.
52. P.W.No. 3-Suleman Tuti, who is an eye witness to the occurrence, has deposed in his examination-in-chief that when the occurrence took place, at that time, he went towards the west side from village to attend nature's call. Ramai Konda was also present with him. At the same time, Pasna Bhengra and Joseph Soy were coming from the west side and exchanging abusive language. There was a small axe
- 41 - Cr. Appeal (DB) No. 346 of 2016 in the hand of Joseph Soy. As soon as they reached near the graveyard, there was exchange of blow between them. Thereafter, Joseph assaulted Pasna Bhengra on his head at his neck with an axe due to which Pasna Bhengra fell there and died. Joseph threw the axe in bush and fled towards the forest.
53. P.W.No. 4, Samuel Oreya, who is a hearsay witness, has deposed in his examination-in-chief that when the incidence took place at that time he was present in his house. Hearing halla, he went to the graveyard and saw the dead body of Pasna Bhengra there.
54. P.W.No. 5-Dr. Sunil Xalxo, who has conducted post mortem of deceased has found deep lacerated wound on neck left side, open lacerated wound over capitates bone, open lacerated wound on chest and open lacerated wound over frontal bone plus facture of that bone. He has opined that all the injuries are possible by axe. Thus the doctor has corroborated the oral evidence adduced by the witnesses.
55. P.W.No. 6-Investigating Officer Parmeshwar Dayal Mehra, who has conducted investigatioin of the matter, recorded statement of witnesses and seized the blood- statined axe form the place of occurrence (bush) which was used in commission of crime of murder. But admittedly, He had not sent seized axe for its scientific examination.
- 42 - Cr. Appeal (DB) No. 346 of 2016
56. P.W.No. 7-Boas Guriya is a hearsay witness who has deposed that he came to know about the incidence from Suleman and Ramai Konda who told him that Joseph Soy killed Pasna Bhengra with an axe and fled away.
57. P.W.No. 8-Daniel Mundu has stated in his examination- in-chief that at the time of incidence he was in his house. There was an uproar in the village. He went to the place of uproar and saw dead body of the deceased Pasna Bhengra lying there. There were injuries of axe on his face, neck and near temple of his head. Villagers and the deceased's wife Sukru Bhengra told that her husband had left home in the morning with Joseph Soy. Both of them being in the inebriated condition started quarrelling near the graveyard and assaulted him with an axe. Thus, this witness is not the eye witness but he went to the place of occurrence and described the injuries inflicted upon the deceased.
58. P.W.No. 9-informant Sukru Bhengra, has got information about the occurrence from the villagers. She has deposed before the Court in course of trial that at the time of occurrence she was at her house in evening. Joseph Soy attacked her husband Pasna Bhengra on his face and neck with an axe near the graveyard. Thereafter, alarm was raised. The villagers assembled there. The villagers asked Joseph Soy whether he committed murder or not then Joseph Soy replied that ―I have committed the murder‖. Her husband died at the
- 43 - Cr. Appeal (DB) No. 346 of 2016 place of occurrence.She has also specifically deposed that her husband and Joseph went to drink Hariya.
59. This Court, on the basis of the discussion made hereinabove of the prosecution witnesses, has found that the learned trial court has considered the testimony of informant as also the eye witnesses and other witnesses, who are said to be hearsay witness and supported the prosecution version to the effect that accused-Joseph Soy and deceased-Pasna Bhengra were coming from the west direction. There was exchange of abusive language between them. Joseph Soy was armed with an axe. As soon as they reached near the graveyard, there was exchange of hot talk between them. Thereafter, Joseph assaulted Pasna Bhengra with an axe for 3-4 times due to whcih Pasna Bhengra sustained injuries at right side of neck, back of ear, neck and head and consequently Pasna Bhengra died.
60. In the light of aforesaid fact, now it is to be apprreciated as to whether the case is coming under Exception 4 to Section 300 of the Indian Penal Code or not.
61. Admittedly, in order to invoke this exception, four ingredients must be satisfied, i.e., - (i) it was a sudden fight;
(ii) there was no premeditation; (iii) the act was done in a heat of passion ; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
- 44 - Cr. Appeal (DB) No. 346 of 2016
62. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed by the Hon'ble Apex Court as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation,(b) in a sudden
- 45 - Cr. Appeal (DB) No. 346 of 2016 fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight.
Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
63. This Court, on the basis of the factual aspect as discussed hereinabove as also after taking into consideration the law laid down by Hon'ble Apex Court in the case of Surinder Kumar v. Union Territory, Chandigarh (Supra), Nankaunoo v. State of Uttar Pradesh (Supra), MurlidharShivramPatekar and Another v. State of Maharashtra (Supra) and Surain Singh v. State of Punjab (Supra) and other aforesaid judicial pronouncements wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not
- 46 - Cr. Appeal (DB) No. 346 of 2016 amounting to murder, reverting back to the facts of the given case, is proceeding to examine the fact of the given case.
64. In the instant case from perusal of the testimonies of the witnesses it is noticed that none of the witneses including the informant has uttered a word that there was previous enmity between the parties rather it has come in their testimony that both were in drunken condition and there was altercation between them. There was exchange of abusive language and scuffle took place between them. An axe was in the hand of accused but the said axe kept by the accused for the purpose of murder of deceased, evidence to that effect has not been led, however, the evidence has come that axe was used in commission of crime.
65. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence.
66. Thus, considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that due to sudden altercation and scuffle between the accused and the deceased, who were in drunken state and not in their normal state of mind, the accused who was having axe in his hand in a sudden heat of passion gave axe blow upon the person of deceased due to
- 47 - Cr. Appeal (DB) No. 346 of 2016 which he sustained grievous injury and fell down in injured condition and subsequently died. Admittedly the act of giving blow upon the head by axe was not came out of any premeditation rather it was happened in a sudden fight, in a heat of passion because of sudden quarrel.
67. In the backdrop the aforesaid discussion and the judicial pronouncement and the evidence of prosecution witnesses as also taking into consideration the facts and circumstances of the instant case, we are of the view that since the assault made by the appellant was not a premeditated one and also there was no intention to commit murder rather it was done in a sudden heat of passion in a scuffle between the accused and deceased and further the appellant had not taken any undue advantage, which fact is proved by the oral evidence adduced by the witnesses as also by the doctor, this Court is of the view that the case of present appellant comes under Exception 4 to Section 300 IPC but the learned trial court has come to the finding by considering the case to be a case of commission of murder and hence has convicted the appellant under Section 302 of the Indian Penal Code but, while doing so, the learned trial court has not appreciated the fact about the applicability of the exception as under exception 4 of Section 300 of I.P.C.
68. This Court, therefore, is of the view that the learned trial court while convicting the appellants for commission of
- 48 - Cr. Appeal (DB) No. 346 of 2016 offence under Section 302 of the Indian Penal Code, has committed error by ignoring all these facts as recorded in the preceding paragraphs.
69. Accordingly, we are of the view that the judgment impugned convicting the appellant under Section 302 I.P.C. needs to be interfered with by modifying it to that of conviction of the appellant under Section 304 Part-I of the Indian Penal Code.
70. Consequently, the judgment passed by the learned trial court is modified and appellant - Joseph Soy is held guilty under Section 304 Part I of the Indian Penal Code.
71. On the question of sentence, we have been informed that the appellant has already suffered incarceration for over 12 years, as he has been in custody since 2011. Conclusion:
72. In the aforesaid circumstances, we are inclined to modify the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant is directed to be released forthwith, if not required to be detained for any other case.
73. In view of the discussions made hereinabove, judgment of conviction dated 23.01.2016 and order of
- 49 - Cr. Appeal (DB) No. 346 of 2016 sentence dated 29.01.2016, passed by learned Additional Sessions Judge-I, Khunti, in Sessions Trial Case No. 398 of 2012 is, modified to the aforesaid extent.
74. Accordingly, the instant appeal stands dismissed with the aforesaid modification in the judgment of conviction and order of sentence.
75. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
76. Pending Interlocutory Application, if any stands disposed of.
I Agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (PradeepKumarSrivastava, J.) Jharkhand High Court, Ranchi Dated: Ranchi 05/03/2024 Alankar/A.F.R.