Gujarat High Court
Jayrambhai Panchiyabhai Gamit vs State Of Gujarat & on 7 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/21097/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21097 of 2015
With
CRIMINAL MISC.APPLICATION NO. 21092 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JAYRAMBHAI PANCHIYABHAI GAMIT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR.HIREN M MODI, ADVOCATE for the Applicant(s) No. 1
MS SONAL D VYAS, ADVOCATE for the Respondent(s) No. 2
MS. PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/03/2017
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COMMON ORAL JUDGMENT
1. Since the issues raised in both the applications are interrelated, and the challenge is also to the selfsame first information report, those were heard analogously and are being disposed of by this common judgment and order.
2. By these applications under section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused, seek to invoke the inherent powers of this Court praying for quashing of the first information report being C..R. No.I-67 of 2015 registered with the Songadh Police Station, District: Tapi for the offence punishable under sections 304, 504, 506 read with section 114 of the Indian Penal Code.
3. The case of the prosecution may be summarized as under;
3.1 The respondent No.2 happens to be the father of the deceased. The deceased was appointed by the Forest Department as the president of the Forest Protection Committee. The functions and duties of the Forest Protection Committee was to see that there is no illegal felling of trees in the forest. The applicants before me, one of the original accused persons, are the forest dwellers. They have been cultivating the forest land past couple of years. It is alleged that the deceased, being the president of the committee, was opposing such cultivation of the forest land by the forest dwellers. This led to a dispute between the committee members and the forest dwellers. The allegations are that the forest dwellers tried to exert undue pressure on the deceased Page 2 of 26 HC-NIC Page 2 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT being the president of the committee. The police intervened to resolve the dispute because the police realized that the forest dwellers were cultivating the land under some rights vested in them. The police tried to resolve the dispute, but was not successful. On the fateful day, as alleged, the deceased, being pressurized by the accused persons, became nervous, which led to Myocardial Infarction resulting in cardio respiratory failure. The cause of death assigned in the postmortem report is Myocardial Infarction leading to shock.
3.2 The father though fit to register the first information report for the offence punishable under sections 304, 504, 506 read with section 114 of the Indian Penal Code.
4. On 8th December, 2015, the following order was passed;
"Prima facie, even if I accept the entire case of the prosecution, none of the ingredients to constitute the offence punishable under Section 304 of the Indian Penal Code are spelt out. The deceased appears to have died due to Cardiac arrest.
Let Notice be issued to the respondents, returnable on 20th January, 2016. Mr. H.K. Patel, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent No.1 State of Gujarat. The respondent No.2 served directly through the Investigating Officer of the concerned police station. Direct service is permitted.
The Investigation may proceed further, however, no coercive steps be taken against the applicant.
To be heard with the Criminal Miscellaneous Application No.21092 of 2015."
5. The short point for my consideration is that even if I accept the entire case of the prosecution as it is, whether Page 3 of 26 HC-NIC Page 3 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT section 304 of the Indian Penal Code has any application. To put it in other words, could it be said to be a case of culpable homicide not amounting to murder punishable under section 304 of the Indian Penal Code.
6. Ms. Sonal Vyas, the learned counsel appearing for the respondent No.2-original first informant and Ms. Pathak, the learned APP appearing for the State, vehemently submitted that the deceased died on account of undue pressure exerted by the accused persons. It is submitted that the undue pressure, which was exerted, led to rise in the blood pressure of the deceased, which, in turn, led to cardio respiratory failure.
7. In order to appreciate the question, it will be profitable to refer to the definition of murder as provided in Section 300 of the Indian Penal Code which is quoted below:
300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly.-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-
3rdly.-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-
4thly.-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.
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Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.-When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in Page 5 of 26 HC-NIC Page 5 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of Page 6 of 26 HC-NIC Page 6 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT murder.
Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
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's 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.
Exception 5.-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.
Illustration A, by instigation, voluntarily causes Z, a person under Page 7 of 26 HC-NIC Page 7 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
8. At this stage, it will also be profitable to refer to the following observations of the Supreme Court in the case of State of A.P. vs. Raayavarapu Punnaya, reported in AIR 1977 SC 45, where the Supreme Court laid down the distinction between murder and the culpable homicide not amounting to murder in the following way:
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder' is 'culpable homicide not amounting to. murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three 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 vexed the courts for more than a century. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the Page 8 of 26 HC-NIC Page 8 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT points of distinction between the two offences.
Section 299 Section 300 A person commits culpable Subject to certain exceptions homicide if the act by which culpable homicide is murder if the death is caused is done .... the act by which the death is done ....
INTENTION
(a) with the intention of (1) with the intention of
causing death; or causing death; or
(b) with the intention of (2) with the intention of causing such bodily injury as causing such bodily injury as is likely to cause death; or the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that the act is likely to cause the act is so imminently death. dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of 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 mens rearequisite 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 intentional 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 Page 9 of 26 HC-NIC Page 9 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT 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" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and if overlooked, may result 'in miscarriage of justice.
The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
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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 and another v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
18. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465, Vivian Bose, J. speaking for this Court, explained the meaning and scope of Clause (3), thus :
"The prosecution must prove the following facts before it can bring a case under Sec.300, '3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was 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's case (supra), even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of 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 Page 11 of 26 HC-NIC Page 11 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT 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, 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 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, Penal Code."
9. I am of the view that, in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. I am also of the view that the police, at the end of the investigation, cannot file a charge- sheet for the offence under section 304 of the Indian Penal Code. Section 304 of the Indian Penal Code would apply provided the case falls within one of the exceptions to section 300 of the I.P.C. If a charge-sheet is filed for the offence of murder, and if it is the case of the accused that the offence is Page 12 of 26 HC-NIC Page 12 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT one of culpable homicide not amounting to murder, then he has to bring the case within one of the exceptions to section
300.
10. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Harendra Nath Mandal vs. State of Bihar, 1993 (2) 435, in which the Supreme Court observed as under;
" Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of section 299 of the Penal Code, 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. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well- known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and Page 13 of 26 HC-NIC Page 13 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation."
11. Thus, section 304 of the Indian Penal Code does not create an offence of culpable homicide, not amounting to murder. That section provides for punishment in case of culpable homicide, not amounting to murder. The first part of it provides for punishment of such offence, when the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. The second part of it provides for punishment in a case when the act 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 offence that is made punishable under that Section is the same offence namely; an offence of culpable homicide not amounting to murder. It only provides different punishments, taking into consideration, whether the act was done with a particular intention or the act was done with the knowledge that is likely to cause death without any intention to cause death, or to cause such bodily injury as is likely to cause death. It will be significant to note that this Section 304 covers cases also where the offence is prima facie an offence of murder, punishable under Section 302, but in view of the application of any one of the exceptions given in Section 300 of the Indian Penal Code, the offence of murder is reduced to an offence of culpable homicide, not amounting to murder.
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12. At this stage, and in the aforesaid context, I must look into section 105 of the Evidence Act, which reads as under;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
13. Thus, the plain reading of section 105 of the Evidence Act makes it clear that the burden of proving the existence of circumstances, bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso, is upon the accused and the court shall presume the absence of such circumstances.
14. In the aforesaid context, I may refer to and rely upon a three Judge Bench decision of the Supreme Court in the case of Vijayee Singh & Ors. vs. State of U.P., AIR 1990 SC 1459, wherein the Supreme Court observed as under;
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"22. At this stage it becomes necessary to consider the meaning of the words "the Court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. 'From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it, the Court either believes 597 that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved."
23. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances"
bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every Page 16 of 26 HC-NIC Page 16 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT reasonable doubt should go to the accused.
24. It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows:
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."
Another passage at page 48 reads as follows:
"In criminal cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded fare greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by defence is not a pre-requisite to an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner .....No matter what the charge ..... the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be enter- tained.
XX XX XX
XX XX XX
In many cases, however, the accused's defence will involve introducing new issues, for example, automatism, provocation, self-defence, duress, etc. Once there is any evidence to support such "explanations" the onus of disproving them rests upon the prosecution. The accused, either by cross- examination of the prosecution Page 17 of 26 HC-NIC Page 17 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence."
Dealing with the presumptions of law, the author has noted on page 60, thus:
"Generally in criminal cases (unless otherwise directed by statute and subject to 4-15 ante) the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein. Thus, in cases of murder, the burden 599 of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution. On charges of rape, etc. the burden of proving non-consent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant's knowledge that his or her spouse was alive within the seven years last past."
Wigmore on evidence, dealing with the "Legal Effect of a presumption" (3rd ed., Vol. IX p. 289) explains: "It must be kept in mind that the peculiar effect of a presumption 'of law' (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary' from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption disappears as a rule of Taylor in his 'Treatise on the Law of Evidence' ( 12th Edn. Vol. 1 page 259) points out:
"On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prisoner, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, to convict, he must necessarily have recourse to negative evidence. Thus, if a statute, in the direct description of an offence, and not by way of proviso (a), contain negative matter, the Page 18 of 26 HC-NIC Page 18 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT indictment or information must also contain a negative allegation, which must in general be supported by prima facie evidence."
Dealing with the presumptions, the author says: "The proper direction as to onus of proof where prima facie evidence has been given on the part of the prosecution which, if unanswered, would raise a presumption upon which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presumption, is that if they accepted the explanation given 600 by and on behalf of the prisoner, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him as the onus of proof that he was guilty still lay upon the prosecution. If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them."
It is held in Nanavati's case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall regard the non-existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to sup- port his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed:
"An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentional- ly shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge Page 19 of 26 HC-NIC Page 19 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300 Indian Penal Code. or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to bring his case 601 within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence."
In Dahyabhai's case as already noted, the relevant portion reads thus:
"The evidence so placed may not be sufficient to discharge the burden under s. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Penal Code."
25.The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places 'burden of proof' on Page 20 of 26 HC-NIC Page 20 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to dis- place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
26.From what has been discussed above it emerges that the presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same. Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary Page 21 of 26 HC-NIC Page 21 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
27 It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason- able doubt, are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
15. Let me, for the time being, proceed on the footing that Page 22 of 26 HC-NIC Page 22 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT the case is not one of culpable homicide not amounting to murder, but is of murder. In such circumstances, the only clause that can be invoked, if at all applicable, would be Clause Fourthly to section 300. Section 300 reads as under;
"300. 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 -
2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- 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."
16. Clause fourthly covers those class of cases which are very dangerous in themselves and the act is done with the knowledge that it must, in all probability, cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, the provisions of clause fourthly are required to be attracted only when the offender knows that his act is so imminently dangerous that it would, in all probability, cause death or, at least, such bodily injury, which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that clause fourthly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from the illustration (d) Page 23 of 26 HC-NIC Page 23 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT of Section 300 of the IPC.
17. The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon the nature of the act and its evident risk to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise.
18. Sitting in a Division Bench, I had an occasion to consider Clause Fourthly of section 300 in the case of Lashuben Chemabhai Chaudhary vs. State of Gujarat, Criminal Appeal No.945 of 2007, decided on 3rd August, 2012. I may quote the relevant observations as under;
"13. We have already discussed above that the action of the accused in pushing the deceased in the fire of a hearth was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our view, the case cannot be said to be covered under Clause Fourthly of Section 300 IPC, however, the case of the appellant is covered under Section 304, Part-II IPC. Clause (4) to Section 300 reads as under :-
"300. 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 -
2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- 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 Page 24 of 26 HC-NIC Page 24 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
This clause covers class of cases which are very dangerous in themselves and the act is done with the knowledge that it must in all probability cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, provisions of this clause are required to be attracted only when the offender knows that his act is so imminently dangerous that it would in all probability cause death or atleast such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that the clause 4thly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives dof many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from illustration (d) of Section 300 of the IPC. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. This can be gathered from the clear wording of the clause (4), namely, "If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death ......." For applicability of this clause following are the necessary requirements :-
(1) the act must be imminently dangerous;
(2) the act must be of extraordinary recklessness;
(3) the danger to human life must be so imminent; and (5) the imminence should be such that it will in all probability cause death or cause such bodily injury as is likely to cause death.
The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon nature of the act and its evident risk to human life. The danger threatened must be to human life. It must be an act in which death Page 25 of 26 HC-NIC Page 25 of 26 Created On Mon Aug 14 06:03:58 IST 2017 R/CR.MA/21097/2015 JUDGMENT of human is certain or almost so, and it would cause surprise if the result was otherwise. Moreover, the danger must not only be of certain or almost certain death, but of a death which is near and may be counted by days or may be hours. Thus, it can be seen that unlike the preceding three clauses of Section 300 clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause.
19. The act on the part of the applicants herein, as one of the accused persons, of exerting pressure and thereby creating tension in the mind of the deceased, which led to cardio respiratory failure, in my opinion, by any stretch of imagination, will not fall under Clause Fourthly to section 300 so as to bring the case within the ambit of culpable homicide amounting to murder.
20. In the result, these applications are partly allowed. It is declared that section 304 of the I.P.C has no application in the present case. The first information report, to that extent, is quashed. If any other offence is made out on the basis of the evidence on record and other materials, it shall be open for the Investigating Officer to look into the same and carry out the necessary investigation in accordance with law.
21. With the above, both the applications are disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 26 of 26 HC-NIC Page 26 of 26 Created On Mon Aug 14 06:03:58 IST 2017