Gujarat High Court
Ramanbhai Navinbhai Kukana vs State Of Gujarat on 2 April, 1987
Equivalent citations: 1988CRILJ982
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
[1 to 7 x x x x x x x x]
8. The learned advocate for the appellant further submitted that even assuming that the accused had given a push from the bridge, the appellant cannot be convicted for the offence punishable under Section 302 of the Penal Code because the case of the accused would not fall within the provisions of Section 300 of the Penal Code. He submitted that in this case the evidence on record shows that there was; no intention on the part of the accused to! cause death of the deceased and, therefore, it would not fall within the first part of Section 300. It is his say that the accused and deceased were quarrelling for a petty amount of Rs. 5/- which was given by the Contractor for taking tea to all the labourers.
9. In this case as the death of one person has been caused by the act of the accused, hence the question which is required to be considered is whether the act of the accused falls within the definition of "culpable homicide not amounting to murder" or the higher offence of "murder" itself. As stated above, the death has actually been caused by criminal act of the accused by giving push to the deceased from the bridge. Since it is not accidental or suicidal death, responsibility for the homicide in absence of any exceptions or extenuating circumstances as per Section 300 of the Penal Code must be borne by the person who has caused it. This question is required to be decided by taking into consideration the four clauses of Section 300 of the Penal Code which are 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 - 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.
The first clause requires that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. It is true that from the evidence it cannot be inferred that the accused had any intention of causing the death of the deceased There is nothing on the record which would suggest that the accused had made any preparations for killing the deceased. Therefore, the act of the accused would not fall within the first, clause of Section 300.
10. It would not also fall within the second clause of Section 300. The second clause deals with acts 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 harm is caused. The mental attitude is twofold - (1) the intention to cause such bodily injury and (2) there is the subjective knowledge that the death will be the likely consequence of the intended injury. From the evidence on record it cannot be said that the accused had an intention of causing particular bodily injury which he was knowing to be likely to cause death because the accused had given the push from the bridge and that he was not knowing that by this push the internal injury No. 2 would be caused and the deceased would die of the, said injury i.e. it cannot be said that the accused had caused that very injury intentionally.
11. The third clause deals with acts which are done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. For the application of this Clause (1) it must be established that injury is caused (2) it must be established objectively what the nature of; that injury in the ordinary course of nature is and (3) it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. For this clause it is not necessary that the accused had had the intention to cause death. If it is proved that the accused had the intention to inflict the injuries actually suffered by the victim and such injuries are found to be sufficient in the ordinary course of nature to cause death, the ingredients of clause 3rdly of Section 300 are fulfilled. In this case the act of the accused would not fall within this clause because the accused was not knowing that by giving a push to the deceased particular injury would be caused to the deceased and, therefore, it cannot be said that his act of giving a push to the deceased from a bridge was done with the intention of causing particular bodily injury and such bodily injury intended by him was sufficient in the ordinary course of nature to cause death.
12. Therefore, the sole question which would require to be decided is whether the act of the accused would fall within clause 4thly of Section 300 which provides that 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. In this case it is to be noted that as per the panchnama and the deposition of the Circle Inspector, the height of the bridge is 22 1/2 ft. Therefore, the question is that if a person is given a push so as to cause his fall from a height of 22 1/2 ft., whether the said act can be said to be imminently dangerous which in all probability would cause death or such bodily injury as is likely to cause death. In our opinion, without any hesitation it can be inferred that the accused must have known that he was running the risk of causing the death of deceased Jamsubhai Harjibhai or such bodily injury as was likely to cause his death and, therefore, his act would be covered by clause 4thly of Section 300 of the Penal Code.
13. In the case of State of Madhya Pradesh v. Ram Prasad the Supreme Court dealt with the case wherein the accused who was living with his mistress Mrs. Rajji poured kerosene on her and set her alight. Mrs. Rajji expired of burns. The evidence on record of that case proved that there were quarrels between the accused and the deceased. The Court held that the act of the accused would be covered within clause 4thly of Section 300 of the Penal Code. The Court held that the offence must be taken to fall within clause 4thly of Section 300 of the Penal Code as the accused has committed the act so imminently dangerous that it must in all probability cause death or result in any injury that was likely to cause death. It would be pertinent to reproduce the following observations of the Supreme Court in the said case:
The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death.
In this case also as stated above, the accused had given push to the deceased from a bridge which is 22 1/2 ft. high from the ground level and the said act was imminently dangerous that it was in all probability likely to cause death or resulted in any injury that was likely to cause death. In the case of Emperor v. Dhirajia (1941) 42 Cri LJ 146 : AIR 1940 All 486, the Division Bench of the Allahabad High Court dealt with a case wherein a woman jumped into the well with six months old baby in her arms. The Court considered the question whether she had knowledge that her act of jumping into well with the six months old baby is an act for which she could be punishable for the offence under clause 4thly of Section 300. The Court held that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. The Court further held that the act of jumping into a well with a six months old baby in one's arms can, but for a miracle, have only one conclusion that the consequence must have been within the knowledge of the accused and that there may not be any intention to that effect on her part. In the case of Rajwant Singh v. State of Kerala AIR 1966 SC 1874 : 1966 Cri LJ 1509, the Supreme Court considered the case wherein the Lt. Commander was decoyed from his house on the pretext that he was wanted at the Naval Base. The accused covered his mouth with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform. They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow. The Lt. Commander subsequently expired. The Court dealt with all the clauses of Section 300 and arrived at the conclusion that the acts of the accused would be covered by the third clause of Section 300. The act of the accused would not be covered by first clause of Section 300 as the accused did not contemplate killing the Lt. Commander and no part of their preparations shows an intention to kill. It would not fall within clause secondly because second clause deals with acts 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 harm is caused. The Court held that for attracting the second clause two-fold mental attitude is required - (1) the intention to cause bodily harm and (2) there is the subjective knowledge that death will be the likely consequence of the intended injury. The Court held that the second clause would not be attracted. With regard to the third clause the Court considered the case of Virsa Singh v. State of Punjab and held that for application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Further, it must be proved that there was an intention to inflict that very j injury and not some other injury and that it was not accidental or unintentional. If this is held against the offender the offence of murder is established. After taking into consideration the facts of that case the Court arrived at the conclusion that the acts of the offender in that case were covered by third clause of Section 300. The Supreme Court further observed that the act of the offender also falls within the fourth clause because to tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton wool soaked in chloroform is an act imminently dangerous to life and it may well be said to satisfy the requirements of the last clause also, although that clause is ordinarily applicable to cases in which there is no intention to kill any one in particular.
14. However, the learned advocate for the appellant relied upon the case of Sarabjeet Singh v. State of U.P. . In that case the accused No. 1 along with other accused went to the house of one Ghirau. Accused No. 1 and another person attacked Ghirau and the remaining accused began demolishing the charni walls and the thatched shed. Accused 1 lifted infant Radhey Shyam and threw him with some force on the ground. It was the prosecution case that Radhey Shyam suffered some internal injuries and vomitted blood and soon fell into come. Radhey Shyam had succumbed to these injuries. The Court had held that the act of the accused 1 would not be covered 1stly and 3rdly of Section 300 and clause 2ndly and 4thly were not pressed into service. In this view of the matter, in our opinion, that decision would not help the appellant in any way in deciding whether the act of the appellant is covered by clause 4thly of Section 300.
15. The learned advocate for the appellant further relied upon the decision of this Court in Criminal Appeal No. 116 of 1975 decided on 6th and 7th November 1975. Wherein the accused 2 gave a kick on the chest of the deceased with such force that the deceased Shantilal fell on the parapet wall which gave way and he fell on the road and thereafter because of the injuries he expired. In that case the deceased Shantilal had gone on the first floor wherein accused 1, 3, 4 and 5 were residing. Accused No. 2 was a guest. The Court has observed that a man is presumed to know that natural and probable consequence of his own act and as accused No. 2 was standing a little higher on a level and he gave a kick on the chest of the deceased with such force that at least Shantilal was bound to dash against the parapet wall which gave way. The Court negatived the contention that the accused 2 could be imputed an intention to cause death or held responsible straightway for the death of Shantilal falling from a height of about 13 feet and suffering such injuries as would cause intracranial haemorrhage which necessarily caused the death of Shantilal. The Court further observed that accused 2 could not have anticipated parapet giving way leading him to fall on the road from a height of 13 feet, and that ordinarily, by giving kick blows, people do not cause such bodily injuries which would ordinarily be fatal. It was held that when accused 2 gave only one kick blow to f Shantilal it cannot be said that he intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause the death of Shantilal, nor can it be said that it was likely to cause his death, nor that injury that may be caused was likely to cause the death of Shantilal. Hence the Court convicted the accused 2 for an offence under Section 325 of the Penal Code.
16. In our opinion, the facts of that Case and the present case are entirely different. In this case the push is given by the accused so that the deceased falls in river from the height of 22 1/2 ft. while in the case decided by the Division Bench the accused gave merely a kick blow on the chest of the deceased without knowing that parapet would give way and that the accused would fall from a height of 13 ft. The Court in that case took into consideration that the accused had no knowledge that such bodily injury as was likely to cause his death would be caused by the kick blow on the chest and no such knowledge could be imputed to the accused. Therefore, the finding of that case, in our opinion, would have no bearing in deciding this matter.
17. However, the learned advocate for the appellant vehemently submitted that even if the act of the accused is covered by clause 4thly, yet it would fall within Exception 4 of Section 300. He submitted that in this case there was sudden quarrel between the accused and the deceased for a paltry amount of Rs. 5/- and in the heat of passion without taking any undue advantage or acting in a cruel or unusual manner the accused had given a push to the deceased from the bridge of the river. Unfortunately because of the push the accused fell from the bridge of the river and he succumbed to the injuries. He, therefore, submitted that the appellant should not be convicted for the offence punishable under Section 302 of the Indian Penal Code but at the most he can be convicted for the offence punishable under Section 304 Part II of the Penal Code. From the evidence on record it seems that the accused and deceased were quarrelling near the bus stop of village Lakadmad. The accused was giving pushes and fist blows to the deceased. Both of them went on the bridge and at that time the accused gave a push to the deceased. The accused was not having any weapon in his hand. It is further proved from the evidence that there was some quarrel between the accused and the deceased for an amount of Rs. 5/- which was paid by the Contractor for taking tea to the labourers. Therefore, it seems that without any premeditation in a sudden fight and in the heat of passion the accused had given a push to the deceased. He had not taken any undue advantage nor he had acted in a cruel or unusual manner. The injuries on the deceased as stated by the doctor reveal that the injuries were due to fall. The accused had not caused any other injury to the deceased. Therefore it is apparent that the accused had not taken any undue advantage of the situation. In this view of the matter, the act of the accused would be covered by Exception 4 to Section 300. In this view of the matter, the accused requires to be convicted for the offence under Section 304 Part II of the Penal Code. As we are converting the conviction of the accused from one under Section 302 to that under Section 304 Part II of the Indian Penal Code we are required to hear the appellant-accused with regard to the sentence, [Paras 18 to 20 omitted - Ed. ]