Allahabad High Court
Raeesuddin vs State on 5 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 4373
Bench: Pradeep Kumar Singh Baghel, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 5 Case :- CRIMINAL APPEAL No. - 1553 of 1989 Appellant :- Raeesuddin Respondent :- State Counsel for Appellant :- P.K.Sharma,Aditya Prasad Mishra,R.K. Sharma Counsel for Respondent :- D.G.A. Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Rajiv Gupta,J.
(Delivered by: Hon'ble Pradeep Kumar Singh Baghel,J.) The appellant, who stands convicted for offence punishable under Section 302 I.P.C., has been sentenced to imprisonment for life by Sessions Judge, Meerut by judgment dated 17th June, 1989. The said case arises out of Sessions Trial No. 69 of 1989.
The incident took place on 8.12.1988 at 10.45 A.M.. According to the prosecution the appellant stabbed the deceased Firoz in broad daylight in front of his brother P.W.-1 Anisuddin, P.W.-2 Shahnawaz who was the employer of the deceased and Shaukin P.W.-3, a neighbour. After the occurrence of the incident the P.W.-1 submitted a written tahrir (complaint) in Police Station Brahmpuri, Meerut on the basis of which a chik F.I.R. was prepared by the P.W.-6 Rakesh Singh and a first information report was recorded at 11.15 A.M.. The investigation was entrusted to S.I. Laik Singh, P.W.-4.
In the F.I.R. it was stated that on 8.12.1988 in the morning the appellant/ accused who is of bad character came in the locality of complainant along with a youngster. The deceased Firoz asked him not to bring undesirable elements in the locality. This led to an altercation between them. On the same day at about 10.45 A.M. when the first informant was sitting on a Chabutra (platform), opposite to Clinic of Dr. Atiqur Rehman, along with his younger brother deceased Firoz, Shahnawaz, a resident of the same locality, Shaukin and Gul Mohammad, the appellant came armed with knife in his hand and he hurled abuses on his brother Firoz and threatened him of dire consequences, and before Firoz could get alerted, he stabbed him in his abdomen and fled away from the scene towards Jatav Gate.
The investigation was set in motion. The injured Firoz was sent to hospital from the police station along with a constable. He was admitted in P.L. Sharma Hospital for treatment. The I.O. went to the Hospital and interrogated the injured Firoz and recorded his statement and gave report for recording dying declaration of the injured. In the hospital the I.O. was handed over shirt and sweater of Firoz which he was wearing at the time of incident and Fard was prepared.
The P.W.-5 Dr. S.C. Nigam examined the deceased Firoz at 11.35 A.M. on 8.12.1988 and he prepared an injury report wherein he has recorded three injuries. The Injury No. 1 was stabbed wound 3.5 cm x 1.5 cm abdominal cavity deep on front and upper part of right side of abdomen; an incised wound was also found which was muscle deep on the front and outer side of base of the right index finger, and one abrasion was also found on the front of right wrist.
On 9.12.1988 Firoz succumbed to his injuries in the hospital hence the case was altered into Section 302 I.P.C.
The I.O. conducted the inquest of the dead body and the body was sent for postmortem. Thereafter, the investigation was entrusted to S.O. Satendra Kumar Tomer. The P.W.-8 Dr. R.N. Khanna conducted the postmortem on the body of the deceased and issued a postmortem report (Ext.K-16). In his opinion the death was due to shock and excessive bleeding. The details of injuries found on the body of the deceased shall be mentioned at the appropriate place in the judgment.
After completion of the investigation, a charge-sheet was submitted against the appellant who stood trial before the Sessions Judge after the matter was committed to the said court. The Sessions Judge framed the charges against the appellant.
The prosecution in support of his case examined the P.W.-1 Anisuddin--the elder brother of the deceased and P.W.-2 Shahnawaz who is stated to be an eyewitness. The deceased Firoz was driver of his tractor. The P.W.-3 Shaukin also claimed to be eyewitness. The P.W.-4, S.I. Laik Singh was the Investigating Officer at the initial stage. He had also recorded statement of injured Firoz under Section 161. Later, he submitted a report regarding dying declaration recorded by him. He had also recorded the statement of P.W.-1 and prepared Fard and has also prepared the site-plan with the help of first informant. P.W.-6 Rakesh Singh was a constable. He had prepared the chick report and after the death of Firoz he had altered the offence under Section 302 I.P.C.. P.W.-7 S.K. Tomer was the Station Officer. He had taken over the investigation on 11.12.1988 from P.W.-4 S.I. Laik Singh.
The appellant in his statement under Section 313 Cr.P.C. has stated that he was implicated falsely and all the witnesses are interested witnesses as they are relatives and Shahnawaz, one of the witnesses was the employer of the deceased.
The trial court found that the prosecution has succeeded in establishing the charge against the accused under Section 302 I.P.C.. The court also found that the statement recorded by the I.O. under Section 161 Cr.P.C. can be treated as dying declaration under Section 32(1) of the Evidence Act, thus it found the appellant guilty for an offence under Section 302 I.P.C. for committing murder of Firoz.
We have heard learned counsel for the appellant and the learned A.G.A.
Learned counsel for the appellant submitted that there was no motive for commission of the offence. The motive which has been developed, later on, was not mentioned in the first information report as well as in statement under Section 161 of the complainant. The statement, recorded by the I.O., of the injured Firoz in the hospital cannot be relied upon as prior to recording the said statement he did not obtain fitness certificate from the doctor, certifying that the injured was in fit mental and physical condition to make a statement. He further submits that in the first medical report of the victim the condition was shown to be poor. Next it was submitted that in the G.D. only single injury has been recorded. In the medical report three injuries have been shown and in the postmortem report four injuries have been recorded.
According to learned counsel for the appellant the prosecution has failed to explain these injuries. Elaborating his submission it was contended that two injuries which have been shown in abdomen there is a distance of 3 cm. so both the injuries are not same. They are two different injuries. It was also submitted that no recovery of knife has been made hence the evidences of the P.W.-1, P.W.-2, and P.W.-3 are contradictory. Therefore, no reliance can be placed on them. It was urged that the incident is alleged to have been taken place in a lane at 10.45 A.M. but not a single independent witness has been produced to support the case of the prosecution. All the witnesses are interested witnesses.
Learned counsel for the appellant has taken the Court to the deposition of P.W.-1 wherein he has clearly stated that there was no enmity between the accused and the deceased and he lastly urged that from the evidence on the record it appears that it was a case of sudden provocation and the appellant has not taken any undue advantage as is evident from the postmortem report that there was only one injury in the abdomen and one minor injury in the right hand of the deceased hence the order of the trial court convicting the appellant under Section 302 is liable to be set aside.
He lastly submitted that in any view of the matter there is no evidence to establish that the appellant had intention to cause death as there was no element of premeditation. The trial court has illegally convicted the appellant under Section 302 I.P.C.. The appellant is guilty of culpable homicide not murder. He was liable to be punished under Part-2 of Section 304 I.P.C..
Sri A.N. Mulla, learned A.G.A. submitted that it was a broad daylight murder and there is an evidence of the cogent witness. He submitted that there is a minor variation in doctor's statement which has no material effect. The statement of all the witnesses are consistent and fully proved the charges against the appellant.
We have considered the submissions of either side and carefully perused the material on record.
The deceased Firoz was the driver of the Tractor owned by P.W.-2 Shahnawaz who lives in the same locality. It appears that some parts of his tractor were found missing. The deceased doubted that it was stolen by the friend of the appellant who accompanied him and moving in the locality. He suspected that the appellant's friend was involved in the theft. The deceased asked the appellant not to bring his friends in the mohalla. The appellant took umbrage to his comment. According to the prosecution the said incident became foundation for the motive of the murder. The prosecution witnesses P.W.-1, P.W.-2 and P.W.-3 have deposed to establish the said facts. They are eye-witnesses of the incident which took place in their front.
P.W.-1 Anisuddin is the real brother of the deceased Firoz and is the first informant also. He has deposed that on 8.12.1988 when the incident occurred he was sitting just opposite the clinic of Dr. Atiqur Rehman on a chabutara along with his younger brother deceased Firoz, Shahnawaz - a resident of the same locality, Shaukin and Gul Mohammad. Suddenly, the appellant came and he started hurling abuses. He said to Firoz that "you consider yourself as Dada, today I will finish you" (roughly translated). Thereafter, he stabbed in the abdomen of the deceased which caused grievous injuries at the right side of his abdomen. Firoz tried to defend himself, with the result he received injury in his right hand also, the accused fled towards Jatav Gate.
The P.W.-1 further stated that he along with Shahnawaz chased the appellant to some distance, but they gave up and returned the spot of the incident where he found that his brother was in very serious condition. He dictated the report to his cousin Salim on the spot and he took the report and his injured brother to the police station.
The S.O. sent the injured Firoz to the hospital along with a constable. At that time Firoz was in position to talk. The I.O. visited the hospital and he had recorded the statements of Firoz and one Mobin. Next day, Firoz died in the hospital. He had also deposed that about three days earlier to the date of offence some parts of Shahnawaz's tractor were stolen by some unknown miscreants. The deceased Firoz had complained to Raisuddin - the appellant and asked him not to come in the locality along with strangers. It is stated that Raisuddin got annoyed with the deceased. He further deposed that on the date of occurrence of incident about two hours before the incident there was altercation between them in the same context. He has stated that the clinic of the doctor was opened and the compounder was present in the clinic but there was no patient. He had also stated that near the place of occurrence there are several shops and one school is also situated. It was also mentioned that the school was opened and the teachers and students were present in the schools and there was normal movement of the people in the lane.
It is stated that when the incident took place the P.W.-1 and P.W.-2 Shahnawaz sounded the alarm. Some people had rushed there but none of them chased the accused.
The P.W.-2 - Shahnawaz stated that the deceased was working with him. He was working as a tractor driver. At the time of occurrence of the incident at about 10.45 A.M. he was sitting along with P.W.-1, P.W.-3 on a platform (chabutara) opposite to the clinic of Dr. Atiqur Rehman, the appellant came and stabbed the deceased and after causing the injury he ran away from the spot. It is stated that he and Anisuddin - P.W.-1 chased the accused but they could not nab him. He had stated that the clinic of doctor was closed and the shops in front of which they were sitting was also closed. He could not recall whether on the date of occurrence the school was closed or open.
The P.W.-3 deposed that he was sitting on Chabutra of a Vakil Sahab along with Gul Mohammad, Firoz, the deceased, Anis and Shahnawaz. The appellant came near them and addressing to Firoz said you pose that you are a Dada and after uttering said words he attacked Firoz with a knife. After stabbing him in his abdomen he ran away from the spot. In his cross examination he stated that he had seen the appellant from a very close distance of two-four paces. He has given details of the incident which is natural and inspire confidence.
Learned counsel for the appellant has laid great emphasis on the fact that the P.W.-1, P.W.-2 and P.W.-3 are all partisan witnesses as the P.W.-1 is the real brother of the deceased and the P.W.-2 is admittedly the employer of the deceased and the P.W.-3 is also their friend, were gossiping with them while outside the deceased, were also sitting with them along with the deceased. He had submitted that the incident had taken place at 10.45 A.M. in the morning but no independent witness has been produced. The prosecution witnesses in order to fill up the said lacuna have made false statement that all the shops were closed. It was submitted that all the three witnesses regarding clinic of Dr. Atiqur Rehman is self-contradictory. It was an attempt to explain the absence of the independent witnesses.
Learned counsel has also submitted that at the time of incident an eyewitness was sitting between the P.W.-2 and P.W.-3 hence it was unbelievable that when the appellant came with a knife in his hand to stab the deceased who was sitting along with eye-witness the P.W.-1, P.W.-2 and P.W.-3 did not make any attempt to prevent him and save the deceased. In their statements they were completely silent, why they did not make any attempt to intervene in the said situation and they were mute spectators until the appellant had stabbed the deceased in his stomach. Only then the P.W.-1 had said to chase the appellant along with P.W.-2.
On the basis of the said submission it was urged by learned counsel for the appellant that the presence of all the three witnesses P.W.-1, P.W.-2 and P.W.-3 is doubtful. Lastly he urged that the P.W.-1 in his statement has stated that one of his elder brother whose name is also happens to be Raeesuddin has been convicted under Section 302 and serving the conviction of life imprisonment thus there as enmity with the family of the victim and some unknown persons have committed the offence and the appellant has been falsely implicated in the case.
It is true that there are some minor discrepancies in the statements of P.W.-1, P.W.-2 and P.W.-3 which have been noticed earlier.
It is trite that it is natural for human beings to state variant statements due to various factors such as memory, time-gap, ability to recall the facts. In the case of Appabhai and another v. State of Gujarat, 1988 Supp SCC 241 the Supreme Court while dealing with the submissions regarding discrepancies in the evidence of eye-witnesses has ruled in the following terms:
"13. ...The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab v. State of Madhya Pradesh observed: [SCC p. 756, SCC (Cri) p. 824, para 8]:
"This Court has held that falsus in no falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.."
In the case of State of Haryana v. Bhagirath and others, (1999) 5 SCC 96 the Supreme Court has held that it is impossible in any criminal trial to prove all the elements with a scientific precision. In the case of Kuriya and another v. State of Rajasthan, (2012) 10 SCC 433 the Supreme Court has considered at length the effect of discrepancies or improvements and held that unless discrepancy or improvement is material and it cast doubt on the credibility of the witness. Variation which does not have serious consequences on the facts of the case, can be taken as normal conduct of a person. It is observed that normally when a witness recalls a past incident, he tends to exaggerate the facts and minor discrepancies do occur.
The Supreme Court in the case of Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1973) 2 SCC 793 has struck a note caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The Court has public accountability. The proof beyond reasonable doubts should not be stretched unnecessarily to embrace every hunch, hesitancy and degree of doubt.
Applying the aforesaid principle in the present case, we find that the statements of P.W.-1, P.W.-2 and P.W.-3 are consistent. All of them are eye-witnesses of the incident. They were sitting with the deceased when the incident occurred. The discrepancies pointed out by learned counsel for the appellant do not directly relate to the incident. A careful reading of their statements shows that their evidence regarding attack by the appellant on the deceased has no discrepancy. Their statements are consistent and inspire confidence. Hence on the basis of minor discrepancy the evidence of eye-witness cannot be discarded. Accordingly, we hold that testimonies of these three natural witnesses are of sterling character.
The P.W.-3 Shaukin who was sitting along with Gul Mohammad, Anisuddin the brother of the deceased and Shahnawaz had seen the incident from a very close quarter of 2-4 paces. It is stated that the accused appellant came. He stabbed Firoz and ran away from the spot. He is a neighbour of the deceased. He runs a shop. He is a plumber and works at a hardware shop.
The P.W.-2 was the employer of the deceased Firoz. He is also an eye-witness. His house is also situated in the same locality about 150-200 paces.
From a careful reading of the statements of P.W.-1, P.W.-2 and P.W.-3 it is established that the incident had occurred on 8.12.1988 at about 10:45 A.M. and there was no doubt regarding the commission of the offence by the accused appellant. Hence, we find that the findings recorded by the trial court that the accused appellant is guilty for the commission of the offence does not warrant any interference.
As regards the submission of learned counsel for the appellant that there was no independent witness and all the witnesses are relative or partisan witnesses, it is true that P.W.-1 is real brother of the deceased, P.W.-2 is his employer and P.W.-3 is a neighbour of the deceased. The incident took place at 10.45 A.M. on 8.12.1988. It is common experience that in winters most of the shops in small places are opened a little late. The incident took place at 10.45 a.m. hence it cannot be said that the witnesses have made a false statement that most of the shops were closed.
The issue whether in absence of the independent witnesses, the statement of family members or the friends of the deceased can be discarded only on the ground that they are partisan witnesses, came to be considered by the Supreme Court in number of cases.
In the case of Dalip Singh and others v. State of Punjab, AIR 1953 SC 364 the Supreme Court has held that unless the defence shows that a witness has a cause to wish to implicate him falsely due to some enmity, it cannot be said that he is not an independent witness and for taking such a plea there must be some foundation. The statement of witnesses cannot be discarded as only on the ground that he is a close relative. In fact a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. Following passage is apposite in this regard:
"27. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In the case of Hari Obula Reddy and others v. The State of Andhra Pradesh, (1981) 3 SCC 675 the Court has considered the law relating to the evidence of witnesses in the following terms:
"13. ...it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon..."
The similar view has been taken by the Supreme Court in the case of Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498, which reads as under:
"7. ...The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence..."
In the case of Mano Dutt and another v. State of Uttar Pradesh, (2012) 4 SCC 79 the Supreme Court has held as under:
"24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member or interested witness or person known to the affected party."
Recently the Supreme Court in the case of Yogesh Singh v. Mahabeer Singh and others, (2017) 11 SCC 195 has reiterated the similar view in the following terms:
"28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon."
Tested on anvil and touchstone of the aforesaid principle, we find that evidence of P.W.-1 and P.W.-2 cannot be discarded on the ground that they are brother and employer of the deceased respectively. As regards P.W.-3, he is an independent and natural witness. He is resident of same locality. From his cross-examination the defence could not elicit any fact which shows that he is a partisan witness.
Learned counsel for the appellant has next submitted that the statement recorded under Section 161 of the deceased cannot be treated to be a dying declaration as the doctor has not certified that he was in a fit position to make statement.
The I.O. had recorded the statement of the deceased before his death on the same day on 8.12.1988 while he was in position to speak. In his statement the deceased has supported the prosecution case and has clearly stated that the appellant had stabbed in the presence of P.W.-1, P.W.-2 and P.W.-3. His statement has been relied treated by the trial court as a dying declaration.
In the case of State of Karnataka v. Suvarnamma and another, (2015) 1 SCC 323 there were two dying declaration of a bride who died due to excessive burn injuries. One statement was recorded by the police and thereafter the Magistrate was called and her dying declaration was recorded (Ext. D-7) by the Taluka Executive Magistrate, wherein it was recorded that the deceased caught fire accidentally, she had switched on the gas stove and had gone to change her clothes; when after returning back, she lit the match stick, as a result of which fire broke out resulting in accidental burn injuries. The trial court has not discarded the dying declaration of a Magistrate and convicted the accused under Section 498A and 304-B IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. The High Court of Karnataka set aside the order of the trial court and acquitted the accused. The Supreme Court reversed the judgment of the High Court and restored the judgment of the trial court. The Court has dealt the dying declaration recorded by the police but observed that two dying declarations are recorded, the court has to find out as to which one was genuine and truth as the dying declaration of police cannot be discarded even if it corroborated the prosecution case.
It is significant to mention that the deceased Firoz after receiving grievous injuries was sent to the hospital. The investigating officer recorded his statement under Section 161 Cr.P.C. before he was sent for surgery. Later, Firoz succumbed to his injuries. It is the case of prosecution that his statement recorded under Section 161 Cr.P.C. can be treated a dying declaration under Section 32(1) of the Evidence Act. We find that the trial court has rightly treated the statement of the deceased made under Section 161 Cr.P.C. as a dying declaration, though it was not signed by Firoz nor it was made in the presence of a Magistrate or doctor. In such circumstances the statement made by the injured person who later died cannot be discarded.
The P.W.-5 Dr. S.C. Nigam in his cross examination has deposed that when Firoz was admitted in the hospital he was in a position to make a statement.
Firoz in his statement has stated that he was sitting along with Anisuddin, Shahnawaz and Shaukin (P.W.-1, P.W.-2 and P.W.-3) respectively in front of the clinic Dr. Atiqur Rehman. The accused came there at about 10:45 A.M. and the accused stabbed him and ran towards Jatav Gate side. It was further recorded that his brother has lodged a first information report and he was brought to the police station on rickshaw thereafter he was sent to hospital by a constable.
We shall now consider the submission of learned counsel for the appellant that in any view of the matter the appellant is not guilty of culpable homicide amounting to murder but even if the Court reaches at conclusion that he is guilty, the case falls under exceptions to Section 300 of the Code, hence he can be awarded punishment under Section 304.
The Supreme Court has observed in the case of State of Andhra Pradesh v. Rayavarapu Punnayya and another, (1976) 4 SCC 382 that the academic distinction between "culpable homicide not amounting to murder" has vexed the Courts for more than a century. This issue came to be settled by three root authorities: (i) Visra Singh v. State of Punjab, AIR 1958 SC 465; (ii) Rajwant v. State of Kerela, AIR 1966 SC 1874; (iii) State of Andhra Pradesh v. Rajavarapu Punnayya (supra). These root authorities have been followed in a catena of decisions. The principle, which can be discerned from various decisions can be briefly summarised.
'Culpable homicide' is genus and 'murder' is its species. All 'murder' is 'culpable homicide' but all the culpable homicide is not murder, there can be a killing of human being which can be 'culpable homicide' not amounting to murder. A careful reading of Sections 299 and 300 shows that some of the provisions are similar and seem to be overlapping but some of keywords used in both sections demonstrate and clarify the real purpose for which legislature has used them. A comparative table of both the sections as drawn in the case of Rayavarapu Punnayya (supra) is extracted below for convenience:
Section 299 Section 300 A person commits culpable homicide of the act by which the death is causeD is done-
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done-
INTENTION
(a) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender known 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 intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(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 death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
In the case of Rayavarapu Punnayya (supra), the Court has further lucidly analysed the distinctions between two terms:-
"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 degress of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gratest 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."
It is quite apparent that there is no complication in respect of clause (a) of Section 299 and clause (1) of Section 300. The intention of causing death is common in both the provisions. If the prosecution succeeds in establishing that accused has intentionally caused the death of the deceased, accused is guilty of 'murder' punishable under Section 302 of the Code. The difficulty arises in application of clause (b) of Section 299 which corresponds with clause (2) and (3) of Section 300 I.P.C.. Clause (2) of Section 300 deals with those cases where person was suffering from severe disease like heart, enlarged liver or enlarged spleen and this fact was known to the assailant but he knowingly hit the person even by fist resulting the death of the person due to rupture of spleen or liver or failure of the heart. In such situation the offence will be murder even though it was caused by a simple fist blow. Because, the assailant had knowledge regarding the illness of person and had also intention to cause death. However, if he had no knowledge regarding illness or special frailty of the victim nor an intention to cause death or bodily injury sufficient in ordinary course of nature to cause death, the offence will not be murder.
The most complex point is to find out or to determine, is application of clause (3) of Section 300 of the given facts and circumstances of the case.
Clause 3 of Section 300 also correspondences clause (b) of Section 299, these two clauses are most puzzling and tricky and have engaged the attention of courts in numerous cases. Clause (b) of Section 299 and clause (3) of Section 300, employ two different words likely and sufficient in ordinary course of nature respectively. In the case of Rayavarapu Punnayya (supra) the Supreme Court has sounded a word of caution that distinctiion between two above mentioned words is fine but real and if overlooked by courts it may result in miscarriage of justice.
(emphasis supplied) The heavy obligation is cast upon the Court to find out from the evidence the degree of probability of death which has resulted from intended bodily injury. From careful analysis/evaluation of the evidence, the Court can reach at the conclusion in respect of the said fact. From the evidence, it has to be find out the degree of probability of death which is broadly of three categories- (1) gravest (ii) medium (iii) the lowest degree. The most complex point is to find out or to determine is the applications of clause (3) of Section 300 in the given facts and circumstances of the case. The above mentioned clause "bodily injury sufficient in ordinary course of nature to cause death" means that death will be the most probable result of injury inflicted by the assailant on the victim having regard to the ordinary course of nature.
Relevant, it may be, to mention that under clause (3) of Section 300 it is not necessary that assailant intended to cause death. Suffice it would be that death occurred due to his intention to cause bodily injury, which proved to be fatal and victim dies to said injury.
The scope of clause (3) of Section 300 has been aptly analyzed by the Supreme Court in Visra Singh (supra) which is considered a locus classicus. But, in the case of R.P. Tyagi v. State (Government of NCT of Delhi), (2009) 17 SCC 445 the Supreme Court has observed that law laid down in Virsa Singh (supra) has been whittled down in two subsequent cases. The relevant paragraphs of the said case are being extracted herewith below:
"12. Mr. Malhotra's reliance on Virsa Singh case (AIR 1958 SC 465) is, however, misplaced. Virsa Singh case was on its own peculiar facts and its effect has in any case been whittled down in Harijinder Singh v. Delhi Admn. (AIR 1968 SC 867) and Laxman Kalu Nikalje v. State of Maharashtra (AIR 1968 SC 1390).
13. In Laxman Kalu Nikalje v. State of Maharashtra it was held (AIR p. 1393, para 11):
"11. ...Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. [As it was clear] Laxman did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention [accused]. ...The act which was done was done with the knowledge [the accused] was likely by such act to cause the death of [deceased]. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304..."
In the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 the Supreme Court has quoted with approval the following paragraph of the case of Visra Singh (supra):
"11. The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. State of Punjab, 1958 SCR 1495: (AIR 1958 SC 465) for the 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. Then 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. If this is also held against the offender the offence of murder is established."
To sum up the clause 'thirdly' of Section 300 I.P.C. following grounds are necessary to be proved:
(1) that a bodily injury is proved;
(2) the nature of injury must be proved i.e. whether it is gravest, medium or the lowest degree;
(3) the injury was not accidental but intentional. It may be that assailant wanted to cause some other kind of injury;
(4) it must be proved that the injury was sufficient to cause the death in ordinary course of nature. This ingredient is inferential and intention of assailant is not relevant, if there is evidence that even unintentional injury which was caused was sufficient to cause death.
Insofar as, clause (4) of Section 300 is concerned, it does not pose much difficulty. Clause (c) of Section 299 and clause (4) of Section 300 both talk about knowledge of the probability of causing death by act of assailant. The provision requires that assailant must have full knowledge that his act is highly dangerous and in all probability it would cause death of a person.
Section 300 deals with murder comprehensively. It elaborately deals with most of the aspects relating to murder inasmuch as it also provides to exceptions to "culpable homicide amounting to murder" by carving out five unclouded exceptions. If a case falls under any of the exceptions in that event "culpable homicide is not murder" and offender gets punishment under either of the part of Section 304 but not under Section 302.
A close look at the five exceptions unfold the mitigating circumstances when offender is spared from maximum sentence admissible is that is imprisonment for life.
Broadly the exceptions are:
(1) When offender on sudden provocation lost his self control and caused death or death is caused by accident or mistake;
(2) If the offender while exercising his private defence, exceeds his limit granted by law and causes death;
(3) If a public servant while doing his duty for the advancement of public justice exceeds the power and causes death;
(4) Exception 4 can be attracted if death is caused in following circumstances: (a) in a sudden fight; without premeditation; (c) without the offender's having taken undue advantage, or acted in a cruel or unusual manner.
In the case of Ajit Singh Vs. State of Punjab, (2011) 9 SCC 462, the Supreme Court observed that the courts have to be extremely careful and cautious while considering the evidence whether the same falls under Section 300 or would fall under its five exceptions which provide that homicide not amounting to murder From the above discussion, it is evident that basically Section 302 and Section 304 of the Code is punitive provision. If the Court records a finding that prosecution has established the charge of murder, for which punishment is prescribed in Section 302 of the Code. But if it is found that case falls under any of the exceptions of Section 300 of the Code then it has to apply Section 304 of the Code. Bare reading of Section 304 makes it clear that it divides the offence in two distinct classes:-
(A) If the accused commits an act with intention of causing death or with intention of causing such bodily injury as was likely to cause death.
(B) In case accused caused the death unintentionally but knowingly that his act may cause death.
This takes us to next question that when accused is entitled to get benefit of exception-4 to Section 300. Authority in abundance is available laying down principle when Exception-4 can be invoked. We may in this regard gainfully refer to the decisions of the Supreme Court in the case of Arumugam v. State rep. by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, wherein the Court has held that to invoke Exception-4 of Section 300 IPC the following facts have to be established. Paragraph-9 of the judgment reads as under:
"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
In the context reference may be made to the judgment of the Supreme Court in the case of Mahesh v. State of M.P., (1996) 10 SCC 668, wherein the Court invoking Exception-4 to Section 300 of the IPC, observed in the following terms:
"4. From a perusal of the evidence, we find that when the appellant arrived along with the cattle at the field there was no premeditation for the assault. At the spot, there was an altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. The statement of the appellant and the suggestions given on his behalf to the prosecution witnesses that there was an attempt to assault the deceased with a Parena, which was with the deceased, does not appear to be improbable. Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304(Part-I) IPC. The trial court, under the circumstances, was justified in convicting him for the said offence and the High Court, in our opinion, fell in error in interfering with it and that too without dispelling any of the reasons given by the trial court. The judgment of the High Court convicting the appellant for an offence under Section 302 IPC cannot be sustained and we accordingly set it aside and instead convict the appellant for the offence under Section 304 (Part-I) IPC."
Similar view was taken by the Supreme Court in the case of Muthu v. State by Inspector of Police, Tamil Nadu, (2009) 17 SCC 433 held that the Courts should not try somehow to find out some way to bring the case under parameter of Section 302 C.P.C. to punish the person. The relevant part of the judgment reads as under:
"10. The observation of the court in the above decision that "it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II" cannot, in our opinion, be understood to mean that the Court should somehow try to find out some way of treating the offence to be under Section 302 IPC. In our opinion, there is a clear distinction between a case of pre-meditated attack with intention to cause death and a case where there was no such pre-meditated intention and death was caused in the heat of the moment or fit of anger during an altercation or quarrel.
11. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people some times do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions 1 and 4 have been inserted in Section 300 IPC.
12. We may also refer to Exception 4 to Section 300 IPC which reads as under:
"Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner".
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16. In our opinion on the facts of the case the act committed was done with the knowledge that it is likely to cause death but without any intention to cause death or cause such bodily injury as is likely to cause death. Hence the offence comes under the Part II of Section 304 IPC."
Keeping in mind the aforesaid principle laid down in the above-mentioned judgments of the Supreme Court, we find that the appellant has taken umbrage at the deceased's rudeness.
The evidence of the prosecution indicates that some parts of the tractor were found to be missing. The deceased doubted the involvement of some outsider who had accompanied the accused-appellant in the locality. The deceased had asked the accused-appellant not to bring outsider in the locality. The said statement of the deceased had agitated the accused appellant.
The postmortem report and the statement of the doctor shows that deceased had one stab wound on right side of abdomen and incised wound 3 cm. x 1/2 cm. bone cut on the base of right index finger on its outer side. From the evidence it is manifest that there is a simple muscle deep injury on deceased's index finger. It appears that was first injury which was caused when deceased tried to defend him from the assault. The appellant thereafter assaulted him on his abdomen which proved fatal and without taking any undue advantage he fled from scene.
The combined reading of aforestated exceptions yield but one result that on account of a mitigating factor in favour of offender, he is liable to be punished under Section 304.
This brings to us to the last question whether the appellant is liable to punish under Part-I or Part-II of Section-304 of the Code.
It is a well settled law that basically Sections 302 and 304 of the Code is punitive provisions If Court records a finding that prosecution has established the charge of murder, for which punishment is prescribed in Section 302 of the Code. But, if it is found that case falls under any of the exceptions of Section 300 of the Code then it has to apply Section 304 of the Code for the purposes of awarding lesser punishment bearing in mind principles mentioned in above three root decisions which have been followed in unbroken line of decisions of the Supreme Court. Bare reading of Section 304 makes it clear that it divides the offence in two distinct clauses:
(A) If accused commits an act with intention of causing death or with intention of causing such bodily injury as was likely to cause death;
(B) In case accused caused the death unintentionally but knowingly that his act may cause death.
In the case of Rampal Singh v. State of Uttar Pradesh, (2012) 8 SCC 289 the Supreme Court approved with approval its earlier decision in Mohinder Pal Jolly v. State of Punjab, (1979) 3 SCC 30 in the following terms:
"24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under (SCC pp. 36-37 para 11):
"11. A question now arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause 'Fourthly', then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."
After quoting the above passage, the Court rules thus:-
"25. As we have already discussed, classification of an offence into either part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the "principle of exclusion". This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, "culpable homicide amounting to murder". Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."
Thus, from the nature of injuries it cannot be said that the appellant has acted cruelly or has taken undue advantage. The evidence shows that after stabbing the accused-appellant took to his heels from the scene of the incident.
In our view the incident has occurred on a trivial issue about 30 years back. There is no evidence on record that they had any longstanding enmity which led to incident. From the evidence it is also evident that the appellant had no intention to kill the deceased. The appellant was only 20 years old at the time of incident. He assaulted the deceased in a fit of anger. The P.W.-1 in his cross-examination has admitted in the FIR that he had not mentioned any motive for the altercation which occurred on 5.12.1988. In all probability, it appears to us that the appellant assaulted the deceased in sudden fight due to some comments of the deceased which provoked him. It is significant that after inflicting one injury in the abdomen he did not cause any other injury. His first blow was taken by the deceased on his hand causing minor injuries in his index finger. In view of the said facts it cannot be said that he acted in any cruel or unusual manner. Hence we are of the considered opinion that the appellant's conviction under Section 302 I.P.C. be scored out and converted to one under Section 304 Part-I I.P.C. and sentence awarded to him is palliated to 7 years R.I. and a fine or Rs. 10,000/- which, on realisation, be paid to the family of the victim. In case he fails to deposit the above sum he shall further undergo one year imprisonment.
The appellant who is on bail shall be taken into custody forthwith and be sent to jail for serving out remaining part of sentence. His bail bonds stand cancelled and sureties discharged.
The appeal stands allowed in part and decided accordingly.
Let the copy of this order be sent to trial court concerned for intimation and necessary follow up action.
Order Date :- 5.10.2018 Digamber