Gauhati High Court
Ahmed Ali vs The State Of Assam on 4 January, 2012
Author: A. K. Goel
Bench: A. K. Goel
1
THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal(J) No.132 of 2007
Ahmed Ali .... .... Appellant
- Versus -
State of Assam ... .... Respondent.
For the appellant : Ms. Usha Das, Legal Aid Counsel.
For the State : Mr. Z. Kamar, P.P., Assam.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. A. K. GOEL
THE HON'BLE MR. JUSTICE C. R. SARMA
Date of hearing : 04.01.2012
Date of judgment : 04.01.2012.
JUDGMENT AND ORDER (Oral)
(A. K. Goel, CJ.)
1. This appeal has been preferred against conviction of the appellant under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand), in default, to undergo further R.I. for two years.
Crl. Appeal(J) No.132/2007 Page 1 of 11 22. On 13.09.1998 at 10.30 A.M. the accused and his brother Siddeque Ali had gone for fishing at the sluice gate of Bhelangi river of Patlikuchi village in Barpeta district. A quarrel suddenly took place between the two brothers on the issue of setting of net in the gate. Deceased Kaseruddin, son of Siddeque Ali, intervened with a view to pacify the two brothers. In the process, the accused assaulted the deceased with a pointed bamboo stick on the head. The injured was taken to Mandia Primary Health Center and was referred to Barpeta Civil Hospital. He was given medical treatment at 5.00 P.M. in the said hospital but he was advised to be taken to Gauhati Medical College for further treatment. However, since the parents of the victim were poor, they could not take the injured to the Medical College. The injured succumbed to his injuries at 11.00 P.M. Abdul Kader (PW
1), paternal uncle of the deceased, lodged the F.I.R. with Police Station, Barpeta on which S.I. Jadav Ch. Hazarika (PW 8) conducted investigation and after his transfer, the investigation was completed by Mohesh Hazarika (PW 9). Post mortem examination was conducted by PW 6, Dr. Dhiren Das, who was, at the relevant point of time, working as Deputy Superintendent of Barpeta Civil Hospital. He found swelling with haematoma on the middle and the right side of head over the right temporal bone above the right ear and bruises on the right side of back Crl. Appeal(J) No.132/2007 Page 2 of 11 3 and on the left shoulder. According to him, the cause of death was shock and haemorrhage as a result of injury sustained which was ante mortem. After investigation, the accused was sent up for trial.
3. The prosecution examined 9 witnesses. PW 1, Abdul Kader, is brother of father of the deceased, PW 2 Siddeque Ali is father of the deceased PW 7, Moinul Haque, a co-villager was on the spot and had seen the occurrence. PW 3, Ainal Haque, a co-
villager, was also an eye-witness being on the place of occurrence. PW 4, Lal Miya and PW 5, Asoruddin, were nearby and had learnt about the occurrence immediately.
4. The father of the deceased Siddeque Ali and uncle Abdul Kader and co-villager Ainal Haque categorically deposed about the accused causing injuries to the deceased which resulted in his death.
5. In his statement under Section 313 Cr.P.C. accused stated that during quarrel suddenly his lathi blow had hit the deceased without any intention.
6. The learned trial Court after due appreciation of the evidence held that the case of the prosecution was established beyond reasonable doubt and convicted and sentenced him accordingly.
Crl. Appeal(J) No.132/2007 Page 3 of 11 47. We have heard Ms. Usha Das, learned Legal Aid Counsel, for the appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam for the respondent.
8. Learned counsel for the appellant is unable to dispute that case for conviction of the appellant is made out but her only contention is that offence will fall under Section 304 Part II and not under Section 302. We find merit in the contention. From the evidence of PWs 1, 2, 3 and 7, who are eye-witnesses, it is clear that there was a quarrel between the accused and father of the deceased all of a sudden on a small issue. The deceased intervened to pacify his father and his uncle. The accused has not disputed the quarrel but has taken the plea that there was no intention to injure the deceased. In the circumstances, while the accused could be imputed the knowledge that the stick could hit the head which could be fatal, he may not be imputed the intention of causing the said injury.
9. According to the evidence of eye-witnesses, the quarrel took place between the two brothers -- the appellant and the father of the deceased on a petty issue all of a sudden. There is nothing to show that the accused had any ill intention to kill or to injure the deceased. The fact remains that the deceased was of tender age and the accused would certainly be imputed Crl. Appeal(J) No.132/2007 Page 4 of 11 5 knowledge that the stick injury could be on the head and could be fatal. In the circumstances, we are of the view that the offence will be culpable homicide not amounting to murder falling under Section 304 Part II of the IPC.
10. Distinction between culpable homicide not amounting to murder and murder is well known. The same is on account of special mens rea presence of which makes lesser offence greater. The first clause applies if death is caused with intention to cause death. If intention to kill is proved, the offence is murder unless one of the exceptions applies. The second clause is attracted when act is done with intention of causing such bodily injury, as offender knows to be likely to cause death. In other words, there should be intention to cause bodily harm and subjective knowledge of the consequence. The third clause requires intention of causing bodily injury which is sufficient in ordinary course of nature to cause death i.e. there has to be intention and objective finding of the injury being sufficient to cause death. It must be proved that the intention was to inflict the very injury and not some other injury. The fourth clause applies if accused has knowledge that the act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death or the act of incurring of risk of causing death without any excuse. This legal position has been Crl. Appeal(J) No.132/2007 Page 5 of 11 6 vividly analysed, inter alia, in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382} as follows :
"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 minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
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
caused 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 is causing such bodily injury as the offender knows to be likely likely to cause death; or 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 Crl. Appeal(J) No.132/2007 Page 6 of 11 7 KNOWLEDGE
(c) With the knowledge that (4) With the knowledge that the act is likely to cause death 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.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause.
This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to Crl. Appeal(J) No.132/2007 Page 7 of 11 8 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.
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 v. State of Kerala is an apt illustration of this point.
Crl. Appeal(J) No.132/2007 Page 8 of 11 918. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):
"The prosecution must prove the following facts before it can bring a case under Section 300, „thirdly‟. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender Crl. Appeal(J) No.132/2007 Page 9 of 11 10 as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this 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 Crl. Appeal(J) No.132/2007 Page 10 of 11 11 amounting to murder", punishable under the first part of Section 304, of the Penal Code."
11. Accordingly, while upholding the conviction of the appellant, we alter the charge from Section 302 to Section 304 Part II of the IPC and reduce the sentence to rigorous imprisonment for 10 years. However, the sentence of fine of Rs.20,000/- is maintained along with the default sentence of two years in case of non-payment of fine. The fine, if realised, be paid to the father of the deceased.
12. The appeal is disposed of accordingly.
JUDGE CHIEF JUSTICE TUC Crl. Appeal(J) No.132/2007 Page 11 of 11