Gauhati High Court
Majidul Islam vs The State Of Assam on 15 May, 2020
Equivalent citations: AIRONLINE 2020 GAU 168
Bench: Manash Ranjan Pathak, Ajit Borthakur
Page No.# 1/17
GAHC010174372015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 35/2015
1:MAJIDUL ISLAM
VERSUS
1:THE STATE OF ASSAM
2:SRI ROBIN DAS
S/O-LT. DHIRESWAR DAS
VILL-UTTAR GANAKGARI
P.S.-SORBHOG
DIST.-BARPETA
ASSAM
Advocate for the Petitioner : MS.S K NARGIS
Advocate for the Respondent : MRS.C DASR-2
Advocate for the Appellant :- Ms. Syeda Khalida Nargis,
Amicus Curiae,
Advocates for the Respondents :- Ms. Bornali Bhuyan,
Additional Public Prosecutor, Assam.
For the respondent No. 1.
Mr. Kardam Ranjan Patgiri, Advocate,
For the respondent No. 2.
Date of Hearing : 10.01.2019
Date of Judgment : 15.05.2020
Page No.# 2/17
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE AJIT BORTHAKUR
JUDGMENT (CAV)
The accused Majidul Islam @ Majedul has preferred this appeal from jail challenging the judgment and order dated 10.03.2015 passed by learned Sessions Judge, Barpeta in Sessions Case No. 187/2013, corresponding to G.R. Case No. 102/2013, arising out of Sarbhog Police Station (District-Barpeta) Case No. 09/2013 whereby he has been convicted under Sections 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for Life with payment of fine of Rs. 10,000/-, in default to undergo Rigorous Imprisonment for one year, for committing murder of Mridul Roy.
2) The prosecution's case, as it emerges From the First Information Report of the case (Exhibit-5) is that one Rabin Das (PW.5) on 11.01.2013 around 11:00 am lodged a written ejahar before the Officer-in-Charge of Sarbhog Police Station stating that on the previous day, i.e. on 10.01.2013, around 04:00 P.M., while his nephew Mridul Roy was working in a motor garage at Kharichala Village, the accused Majidul Islam came there and without uttering any word, hit him on his head with a piece of wood, injuring him grievously. Injured Mridul Roy was immediately taken to FRU, Barpeta Road for his treatment and from there he was referred to Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta (FAAMCH, in short), Barpeta, wherein the said victim died during his treatment. In the said ejahar, it was also informed that the accused was arrested by the witnesses and handed over to police and by the said ejahar the informant requested the police to take necessary action in that regard. Said FIR of Rabin Das (PW.5) was registered as Sarbhog Police Station Case No. 09/2013 under Section 302 IPC, corresponding to G.R. Case No. 102/2013.
3) It is to be noted herein that prior to the filing of the FIR of the case, one Dr. M. Ahmed, Casualty Medical Officer of FAAMCH, Barpeta on 10.01.2013 around 10:25 pm by a written application informed the Officer-in-Charge of Barpeta Police Station that the patient Page No.# 3/17 Mridul Roy with history of alleged assault expired in the Emergency Department of the said hospital and requested the authority concerned to take necessary action. Said information was registered as Barpeta Police Station G.D. Entry No. 385 dated 10.01.2013. Police personnel from Barpeta Police Station visited said FAAMCH on 11.01.2013, made inquest on the person of the deceased Mridul Roy in presence of witnesses, including his brother and sister-in-law, prepared the inquest report (Exhibit-6), forwarded his dead body to the Barpeta Civil Hospital, Kalgachia for its post-mortem examination, preparing necessary challan and on completion of post-mortem examination, the dead body was handed over to the relatives of the said deceased.
4) After registration of said Sarbhog P.S.Case No. 09/2013, the Investigating Officer of the case formally arrested the accused, visited the place of occurrence, seized a heavy square-shaped cracked wooden log of 36 inches length having two holes on it (MR No.1) as shown by the accused and other witnesses by preparing the Seizure Memo in their presence (Exhibit-3), drawn the sketch map of the place of occurrence (Exhibit-8), recorded the statements of the witnesses acquainted with the incident under Section 161 CrPC, forwarded two witnesses to the Court of the Magistrate at Barpeta to record their statements under Section 164 CrPC. On completion of the investigation of the case and after collecting the statements of Bhaskar Das (PW.2) and Babul Ali (PW.3) made by them before the Judicial Magistrate First Class, Barpeta under Section 164 CrPC (Exhibits - 2 and 4 respectively) as well as the Post Mortem Examination Report of the deceased Mridul Roy from Barpeta Civil Hospital (Exhibit-1), finding prima facie material, the Investigating Officer of the case on 06.04.2013 vide No. 56/2013 submitted the Charge Sheet in said Sarbhog P.S.Case No. 09/2013 (Exhibit-7) against the accused/appellant herein under Section 302 IPC.
5) As Section 302 IPC is exclusively triable by the Court of Sessions, learned Additional Chief Judicial Magistrate, Barpeta by order dated 26.08.2013 committed the said G.R. Case No. 102/2013 to the Court of learned Sessions Judge, Barpeta, wherein it was registered and numbered as Sessions Case No. 187/2013. On 06.09.2013, learned Sessions Judge, Barpeta framed charge under Section 302 IPC against the accused/appellant for allegedly killing Mridul Roy, which was read over and explained to him, to which the accused pleaded not guilty and claimed to be tried. Accordingly, trial of said Sessions Case No. 187/2013 Page No.# 4/17 commenced.
6) To prove the guilt of the accused, prosecution examined six witnesses, including the autopsy doctor, who conducted the post-mortem examination of the deceased, the investigating officer of the case and others. The defence did not adduce any evidence, but cross-examined the prosecution witnesses. After completion of recording of evidence of prosecution witnesses, the Trial Judge on 23.12.2014 recorded the statement of the accused under Section 313 CrPC, wherein the accused denied all the accusations made against him by the prosecution witnesses and also denied to adduce any evidence.
7) Upon appreciation of the evidence adduced by the prosecution and the materials available on record, the learned Sessions Judge, Barpeta on 10.03.2015 recorded the impugned judgment of conviction and sentence as aforesaid and hence, the present appeal.
8) We have heard Ms. Syeda Khalida Nargis, learned Amicus Curiae for the appellant, Ms. Bornali Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent No.1 and Mr. Kardam Ranjan Patgiri, learned counsel for the informant respondent No. 2.
9) Learned Amicus Curiae Ms. S. K. Nargis for the appellant assailing the impugned judgment submitted that the testimonies of the prosecution witnesses are far from convincing. Ms. Nargis also submitted that prosecution failed to prove the intention, criminal intimidation, or any premeditation on the part of the accused in assaulting the victim and that the weapon of offence was not established. Ms. Nargis, learned Amicus Curiae submitted that since the prosecution failed to prove the guilt of the accused appellant beyond all reasonable doubt and as the impugned judgment of conviction and sentence suffers from serious infirmities, therefore, she urged to set aside the impugned judgment of conviction and sentence passed by the Trial Court and to acquit the accused appellant.
10) The second limb of argument of Ms. Nargis is that there was only one blow on the head of the deceased and the accused did not take any undue advantage and for such act, at best, the assailant can be guilty of the offence of culpable homicide not amounting to murder. Ms. Nargis, therefore, submits that the impugned conviction and sentence of the accused appellant should be converted to Exception 4 of Section 302 IPC. In support of her argument Ms. Narigs relied on Balu S/O. Onkar Pund and Another -Vs- State of Maharastra, reported in (2015) 3 SCC 409 and Dilip Kumar Mondal and Another -Vs- State of West Bengal, reported in (2015) 3 SCC 433.
11) On the other hand, Ms. B. Bhuyan, learned Additional Public Prosecutor for the State Page No.# 5/17 respondent contended that the judgment of the learned Trial Court is based on well established facts and figure, evidence and materials available on record and the same has been rendered in accordance with law and therefore submits that the impugned judgment does not call for any interference as far as conviction and sentence of the accused of offence under Sections 302 is concerned. Mr. K. R. Patgiri, learned counsel for the respondent No.2, informant also supports the contention of the public prosecutor and submitted that the impugned judgment of conviction and sentence of the accused appellant does not call for any interference.
12) Considered the judgments cited by learned Amicus Curiae. After hearing the arguments advanced by the parties, we find it necessary to peruse and discuss the evidence on record in brief so as to ascertain the correctness of the impugned judgment.
13) PW.1, Dr. Bhaskar Bez, the concerned autopsy doctor deposed before the Court that the deceased Mridul Roy was found with the injury (wound) on his right parietal area of size 10 cm x 7 cm with swelling on its surrounding of size and presence of blood between scalp and skull on the injured site. Said doctor also deposed that other organs of the deceased were found to be healthy, with presence of rigor mortis. PW.1 opined that the cause of death of the deceased was due to shock and haemorrhage due to injury sustained by him on his head. He proved the post-mortem examination report of the deceased, Exhibit-1 and his signature on it.
During his cross examination by the defence, said PW.1 stated that in the said post- mortem report he did not state the time since death of the said deceased.
14) PW.2, Bhaskar Das deposed before the Court that the deceased Mridul Roy was the driver of their Winger vehicle and on the date of the incident around 04:00 pm while he was at Kharislal Bazar near their said vehicle, the accused came from behind and gave one massive blow on the back side of the head of the deceased due to which he sustained grievous injury and thereafter he fell down on the ground. He also deposed that that blood was oozing out from the said injury of the victim and he immediately took the victim to a nearby medical shop along with one Babul Ali (PW.3) and from there he was taken to Barpeta Medical College and Hospital where he succumbed to his injuries. Said PW.2 also deposed that the accused after committing the crime though fled away from the place of occurrence, but he was apprehended by people present there and in the market at the time of occurrence Page No.# 6/17 and then, he was handed over to police. He also deposed that in his presence police seized the wooden log by which the accused assaulted the deceased and also proved the relevant Seizure Memo Exhibit-3 and his signature on it. PW.2 further deposed that his statement was recorded by police as well as by the Magistrate under Section 164, Exhibit-2 and he proved the same as well as his signature on it.
During his cross-examination by the defence, said PW.2 stated that at the time of the incident he was about 10 (ten) feet away from the place of occurrence and that in presence of 4 to 5 persons, the accused assaulted the deceased by a thick wooden log on the backside of his head and that the incident occurred during the daylight around 04:00 pm on a village market day. He also stated that he was not aware about any previous quarrel between the accused and the deceased. He denied the suggestion that it is not the accused who assaulted the deceased but someone else.
15) PW.3, Babul Ali, a mechanic by profession deposed before the Court that the deceased Mridul Roy was the driver of a Winger vehicle and on date of the incident it was parked in the garage of Babul Ali. He deposed that while the said driver was looking at the repairing work done by the mechanic on the vehicle in the garage, the accused suddenly came from behind and assaulted said Mridul with one wooden log on the back side of his head from where blood was oozing out and the victim fell down on the ground and that the said injured was immediately taken to a nearby pharmacy and then to Barpeta Medical College and Hospital where he succumbed to his injuries. He also deposed that after committing the crime, the accused fled away from the place of occurrence, but he was apprehended by the local people present there. He further deposed that his statement was recorded by the Magistrate under Section 164 CrPC, Exhibit-4 and proved the same as well as his signature on it. He deposed that in his presence the wooden log used by the accused for committing the crime was seized by police and that he was a signatory to the said seizure, Exhibit-3 and also proved his signature on it.
During his cross-examination by the defence, PW.3 stated that there was no quarrel between the accused and the deceased and reiterated that while the deceased was looking at the repairing work done by the mechanic in his vehicle, the accused assaulted the deceased by a thick wooden log on the backside of his head and that at the time of the incident there Page No.# 7/17 were 15/16 people near that place, whose names are not known to him. PW.3 also stated that he witnessed the said incident from a distance of about 10 (ten) feet and that the accused was known to him from the date of the incident only. He denied the suggestion that the accused did not assault the deceased.
16) PW.4, Dilip Das is the owner of the winger vehicle of which the deceased Mridul Roy was the driver. Said witness did not see the incident but was informed about it. He stated that police recorded his statement.
17) PW.5, Rabin Das is the informant of the case who is a hearsay witness to the incident and was informed about it. He deposed that that he lodged the FIR of the case, Exhibit-5 and also proved his signature on it and stated that police recorded his statement on the very day of lodging the said FIR.
During his cross-examination by the defence PW.5 admitted that he is a hearsay witness to the incident.
18) PW.6, Basanta Kumar Bora is the investigating officer of the case. He deposed that pertaining to Sarbhog P.S.Case No. 09/2013, he investigated the matter, visited the place of occurrence, recorded the statements of the witnesses, seized the wooden log by which the accused assaulted deceased preparing Seizure Memo, Exhibit-3, with his signature on it and the injured expired at FAAMCH, Barpeta and that after completion of the investigation he submitted the Charge Sheet Exhibit-7 in the case, identifying his signature on it. He also deposed that ASI of Police from Barpeta Police Station, namely, Balen Barman conducted the inquest of the person of the deceased and prepared the Inquest Report, Exhibit-6 and said PW.6 identified the signature of said Balen Barman on the Exhibit-6.
During his cross-examination by the defence, PW.6 stated that the incident took place in the front of the garage of Babul Ali and that he did not see the wooden log in the Court that was seized in the case, which was found lying in the front of the garage of Babul Ali. He also stated that around 12:10 noon on 11.01.2013 the said wooden log was seized as shown by the accused Mazidul Islam.
19) The Inquest Report of the deceased Exhibit-6 reflects that the victim sustained head injury. The statements of PW.2, Bhaskar Das and PW.3, Babul Ali, made before the JMFC, Page No.# 8/17 Barpeta under Section 164 CrPC, Exhibits - 2 & 4 respectively reflects that accused gave blow on the head of the deceased by a wooden log. The Post-Mortem Examination Report of the deceased, Exhibit-1, proved by the autopsy doctor, PW.1 Dr. Bhaskar Bez shows that the victim sustained injury on his right parietal area of size 10 cm x 7 cm, with presence of blood on the injured place between his scalp and skull. The autopsy doctor, PW.1 also opined that the cause of death of the deceased was due to shock and haemorrhage because of the injury sustained by him on his head. PW.2 and PW.3 are the ocular witnesses to the incident and their evidence are corroborated by their statements made under Section 164 CrPC, Exhibits - 2 & 4. The defence could not demolish the evidence of those two witnesses.
20) As per the account of the two eye witnesses PWs. 2 & 3 and other evidence available in the case record, the prosecution proved that because of the assault made by the appellant/accused on the head of the victim by a wooden log on the date of the incident, the injured died at FAAMCH, Barpeta due to shock and haemorrhage, as a result of the said head injury sustained by him.
21) It is also in evidence that that there was no quarrel between the accused and the deceased and that while the victim was looking at the repairing work done by the mechanic in the Winger vehicle which he use to drive, the accused suddenly appeared and assaulted the deceased by a thick wooden log on the backside of his head and fled away from the place of occurrence, who was apprehended by people present nearby and handed over to police on 10.01.2013, i.e., the date of the incident itself.
22) However, the prosecution did not prove that the accused had a premeditated design to kill the victim and did not led any evidence regarding the intention of the accused in causing death of the victim. Therefore, in this appeal we are to consider as to whether the offence disclosed by the facts and circumstances proved by the prosecution against the appellant, is "murder" or "culpable homicide not amounting to murder" and that Section 302 IPC has been rightly imposed upon the appellant or not.
23) Chapter XVI of the Indian Penal Code, consisting of Section 299 to 377 relates to "Offences affecting the Human Body". Section 299 IPC relates to "Culpable Homicide and Section 300 IPC relates to "Murder" and "When Culpable Homicide is not Murder", whereas Page No.# 9/17 Section 302 IPC relates to "Punishment for Murder".
24) With the three Illustrations and three Explanations, as per Section 299 IPC, a person commits culpable homicide if the act by which the death is caused is done (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that the offence is likely by such act to cause death.
25) With the four Illustrations and subject to the five exceptions along with the Illustration/Illustrations made under those exceptions, as per Section 300 IPC, culpable homicide committed by a person is murder, (i) If the act by which the death is caused is done with the intention of causing death, or (ii) 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 (iii) 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 (iv) 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.
26) In the case of Afrahim Sheikh -Vs- State of W.B., reported in AIR 1964 SC 1263, the Hon'ble Supreme Court have held that - the causing of the death of a person by doing an act accompanied by intention in the two ways described in Section 299 IPC or with the knowledge that the act is likely to cause death also described in the said Section is distinguishable from cases of death resulting from accident or rash and negligent act, or from hurt either simple or grievous and once it was established that the act was a deliberate act and was not the result of an accident or rashness or negligence, the offence committed was culpable homicide.
27) In the case of State of A.P. -Vs- Rayavarapu Punnayya, reported in (1976) 4 SCC 382, the Hon'ble Supreme Court have elucidate the points of distinction of Culpable Homicide and Murder under Sections 299 and 300 IPC with a comparative table. The Hon'ble Apex Court in the cases of Abdul Waheed Khan -Vs- State of A.P., reported in (2002) 7 SCC 175; Shankar Narayan Bhadolkar -Vs- State of Maharashtra, reported in (2005) 9 SCC 71; Thangaiya -Vs-
Page No.# 10/17 State of T.N., reported in (2005) 9 SCC 650'; Israr -Vs- State of U.P., reported in (2005) 9 SCC 616 and Phulia Tudu -Vs- State of Bihar, reported in (2007) 14 SCC 588 referred the said table. In the case of Rayavarapu Punnayya (supra) Hon'ble Apex Court observed as follows:
"12. In the scheme of IPC culpable homicide is the genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide"
sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the 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.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Sections 299 IPC Sections 300 IPC Culpable Homicide Murder
A person commits culpable homicide if Subject to certain exceptions culpable the act by which the death is caused is homicide is murder if the act by which done -- the death is caused is done --
INTE NTION
(a) with the intention of causing (1) with the intention of causing death;
death; or or
(2) 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
(b) with the intention of
causing such bodily injury as is
likely
to cause death; or
(3) with the intention of causing bodily
injury to any person and the bodily
Page No.# 11/17
injury intended to be inflicted is
sufficient in the ordinary course of
nature to cause death; or
KNOW LEDGE
(4) with the knowledge that the act is so
imminently dangerous that it must
in all probability cause death or such
bodily injury as is likely to cause
(c) with the knowledge that the act death, and without any excuse for
is likely to cause death. incurring the risk of causing death
or such injury as is mentioned
above.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mensrea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" has been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be Page No.# 12/17 the "most probable" result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh -Vs- State of Kerala [AIR 1966 SC 1874] is an apt illustration of this point.
18. In Virsa Singh -Vs- State of Punjab [AIR 1958 SC 465] Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. 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 be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal 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 prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this Page No.# 13/17 question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
28) The Hon'ble Apex Court in the case of Phulia Tudu -Vs- State of Bihar, reported in (2007) 14 SCC 588 referring its earlier decision in the case of Virsa Singh -Vs- State of Punjab [AIR 1958 SC 465] observed as follows:
"29. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (AIR 1958 SC at page 467, para 12) "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly';
First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
30. The learned Judge explained the third ingredient in the following words (at AIR p. 468, para 16):
"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justifies such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
31. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Page No.# 14/17 Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e.: (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.
33. Clause (c) of Section 299 and clause (4) of Section 300, both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
34. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
35. The position was illuminatingly highlighted by this Court in State of A.P. -Vs- Rayavarapu Punnayya [(1976) 4 SCC 382] and in Abdul Waheed Khan -Vs- State of A.P. [(2002) 7 SCC 175], Augustine Saldanha -Vs- State of Karnataka [(2003) 10 SCC 472].
29) In the case of Gudar Dusadh -Vs- State of Bihar, reported in (1972) 3 SCC 118, a Bench of three Judges of the Hon'ble Supreme Court have held that -
"8. Clause "3rdly" consists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. So far as the first part is concerned, the court has to see whether the injury which was found on the deceased was the one intended by the accused or whether if was accidental without his having intended to cause that bodily injury. Once it is found that the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find in the light of medical evidence as to whether the bodily injury inflicted was sufficient in the ordinary course of nature to cause death. If the court finds that the requirements of both the parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions."
30) The evidence of the case goes to show that in the afternoon around 04:00 pm on Page No.# 15/17 10.01.2013, while the victim was looking at the repairing work done by the mechanic in his vehicle that he use to drive, the accused suddenly appeared and assaulted him by a thick wooden log on his head and then fled away from the place of occurrence and the said injured died in the same night around 10:00/10:25 pm in the hospital. The Post Mortem Examination Report of the victim and the autopsy doctor in evidence proved that the blow on the head of the deceased Mridul Roy with the wooden log was given with a force resulting in an injury of size 10 cm x 7 cm on his right parietal area with swelling on its surrounding of size and presence of blood between scalp and skull on the injured site and that he died due to shock and haemorrhage as a result of the injury sustained by him on his head and his other parts of body was found to be healthy. The said injury sustained by the deceased was on his head, which is vital part of the body and As per medical evidence, the said head injury of the injured Mridul Roy proved fatal.
31) The circumstances of the case shows that the assault made by the accused appellant on the head of the victim was deliberate and it was neither accidental nor unintentional or that some other kind of injury was intended by the accused. The said head injury, as proved, was sufficient in the ordinary course of nature to cause death of the deceased. As the accused caused the head injury, a vital part of the deceased, that too with a thick wooden log, the intention to kill the deceased, certainly is attributed to the accused.
32) In the present case it is seen that there was no quarrel or any commotion or any scuffle between the victim and the appellant/accused and there was also no provocation from the side of the victim. It was the appellant; accused of the case who was the aggressor in the case and assaulted the victim on his head, where the victim could not even defend himself. The defence failed to demolish the evidence of PWs. 2 and 3, the eyewitnesses to the incident regarding the deliberate blow given by the accused appellant on the head of the victim by a heavy wooden log and their evidence remained intact.
33) It is well settled that if a person deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a severe injury of the head/skull, vital part(s) of the body of the other person, then the assailant must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death Page No.# 16/17 of the victim or such bodily injury as is sufficient to cause death and the case shall be covered by clause thirdly of Section 300 IPC. The fact that the accused/appellant gave only one blow on the head of the deceased, in the facts and circumstances of the case, would not mitigate his offence and make him guilty of the offence of culpable homicide not amounting to murder.
34) In the present case, law laid down in the cases of Rajwant Singh (supra) and Virsa Singh (supra) are proved by the prosecution and the case against the accused appellant squarely falls within the ambit of clause "thirdly" of Section 300 of the Indian Penal Code.
35) We are, therefore, satisfied that the conviction of the appellant was proper under Section 302 IPC and see no reason to interfere with the impugned judgment and order dated 10.03.2015 passed by learned Sessions Judge, Barpeta in Sessions Case No. 187/2013, corresponding to G.R. Case No. 102/2013, arising out of Sarbhog Police Station (District- Barpeta) Case No. 09/2013.
36) The judgments cited by learned Amicus Curiae are not applicable in the present case. In the case of Balu S/O. Onkar Pund and Another -Vs- State of Maharastra, reported in (2015) 3 SCC 409 there was a scuffle regarding taking possession of cattle shed between two male groups and one of the accused poured kerosene on cattle shed and set the cattle shed on fire in which one of the victim came into contact with fire and died later in hospital because of severe burn injuries. In the other case of Dilip Kumar Mondal and Another -Vs- State of West Bengal, reported in (2015) 3 SCC 433 regarding the incident though there was no premeditation, but scuffle took place between the parties that led to causing of injuries to the deceased and there was insufficient evidence as to the alleged injuries. Relying on the decision of Apu Dutta -Vs- State of Assam, reported in 2018 (2) GLT 385, though the respondents submitted for victim compensation under Section 357A CrPC, but nothing was brought on record regarding the dependents of the deceased and requiring their rehabilitation.
37) In the result, we find no merit in this appeal and it is accordingly dismissed.
38) We appreciate the valuable assistance rendered by both Ms. Syeda Khalida Nargis, learned Amicus Curiae, appearing for the appellant/accused and Ms. Bornali Bhuyan, learned Page No.# 17/17 Additional Public Prosecutor, Assam representing the State. The Gauhati High Court Legal Services Authority, Guwahati shall pay an amount of Rs. 7,500/- to the learned Amicus Curiae Ms. Syeda Khalida Nargis towards her professional fee.
39) Registry shall return the records to the Court of learned Sessions Judge, Barpeta along with a copy of this Judgment.
40) Registry shall also forward a copy of this judgment to the Superintendent/Jailor, District Jail, Barpeta so as to furnish the same to the appellant/accused, Majidul Islam @ Majedul.
Judge Judge Comparing Assistant