Delhi High Court
Ghan Shyam And Ors. vs State [Along With Crl. A. 365/2003] on 15 March, 2004
Equivalent citations: 2004CRILJ2578, 111(2004)DLT10
Author: D.K. Jain
Bench: D.K. Jain, A.K. Sikri
JUDGMENT D.K. Jain, J.
1. These two appeals by three convicts are directed against the judgment and order of the learned Additional Sessions Judge, Delhi, in Sessions Case No.94/98, arising out of FIR 458/98. Though a common appeal (Crl.A.728/2001) had already been preferred by all the three convicts but a separate appeal (Crl.A. 365/2003) has also been filed subsequently by convict Raju. Since both the appeals are inter-linked, these are being disposed of by this common judgment.
2. The appellants question their convictions for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (for short 'the IPC') for allegedly causing homicidal death of Smt. Seema, hereinafter referred to as the victim. They have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each, with default stipulation of rigorous imprisonment for one month.
3. The prosecution version, unfolded during the trial, is as follows:
On the fateful night of 9/10 July 1998 at about 2 A.M., when there was no light in the area, the convicts were playing cards on the roof of the house on the second floor. Another tenant in the house, namely, Raj Kumar, husband of the victim, told the convicts not to play cards as they were making too much of noise and disturbing his sleep. Upon this the convicts started abusing and beating him. On hearing the noise, the victim came upstairs and intervened, whereupon all the three convicts got hold of the victim and threw her on the 'jaal' on the roof of the first floor, as a result whereof she sustained injuries. She was removed to Dr.Ram Manohar Lohia Hospital, where she was declared brought dead.
On completion of investigations, charge sheet was filed against the convicts. The prosecution examined as many as 16 witnesses to further its case. The convicts chose not to lead any evidence in defense. Placing reliance on the testimony of PW-4, namely, Raj Kumar, husband of the victim and the complainant and PW-5, namely Sube Singh, the landlord of the house, the learned Judge has come to the conclusion that the evidence led by the prosecution is sufficient to bring home the guilt of the convicts and has thus, convicted and sentenced them as aforesaid.
4. We have heard Mr. SDS Rathore on behalf of convict Raju, Mr. Rajesh Mahajan, learned amices Curiae and Mr. Ravinder Chadha on behalf of the State.
5. Although the appellants have challenged the conviction per se, contending that they are innocent, however, during the course of the arguments, learned counsel for the appellants primarily confined their submissions to the point that in any event the case is not covered by Section 300 IPC. What is argued is that the prosecution version itself shows that the appellants had some tiff with the husband of the victim over playing of cards on the terrace and when the victim also came upstairs and tried to intervene, at the spur of the moment they got hold of her and threw her on the jaal. The fall proved fatal and resulted in the death of the victim. It is submitted that the prosecution has failed to prove that the appellants had any intention to cause death of the victim or such bodily injury as they knew was likely to cause death. It is, therefore, asserted that the evidence on record clearly rules out operation of Section 302 IPC. Learned counsel have contended that, at the most, on the evidence taken in its entirety and accepted to be true, it can be said to be a case under Section 304 Part-II IPC. Mr. Chadha, learned counsel for the State, on the other hand, has submitted that evidence on record clearly establishes that it is a case of murder and appellants are punishable under Section 302 IPC. It is urged that unless the case falls in one of the exceptions carved out in Section 300 IPC, conviction has to be under Section 302 IPC.
6. Thus, the question which falls for consideration is whether the evidence brought on record by the prosecution establishes against the appellants a case of "murder" or "culpable homicide not amounting to murder".
7. Both the said offences involve killing of a person. "Murder" is an aggravated form of "culpable homicide". Section 299 IPC defines the offence of culpable homicide and Section 300 deals with murder. Section 299 explains 'culpable homicide' and sets out the circumstances when culpable homicide amounts to murder and when it does not amount to murder. As per Section 300, existence of one of the four conditions, enumerated therein, which basically reflect four mental attitudes, turns "culpable homicide" into "murder", while the three exceptions therein again reduce the offence of "murder" to "culpable homicide not amounting to murder". The distinction between "murder" and "culpable homicide not amounting to murder" is very thin and in fact has always been a vexed question. Therefore, the question posed has to be examined carefully in the light of the broad principles laid down in the judicial pronouncements.
8. In the leading case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and Anr. , their Lordships of the Supreme Court said that in the scheme of the Penal Code, "culpable homicide" is genus and "murder" is specie. All "murders" are "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 1st 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 was also observed that the safest way to approach the problem and appreciate the points of distinction between the two offences is to keep in focus the key words used in the various clauses of Sections 299 and 300 IPC. Analysing the two Sections threadbare, their Lordships said 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 the case, it will be convenient to approach the problem in three stages. 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 IPC. If the answer to this question is, prima facie, found in the affirmative, the stage for considering the operation of Section 300 IPC 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 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 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 IPC. However, the Court observed that these were only broad principles and if applied, would facilitate the task of the Court but in some cases the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
9. These broad principles have been reiterated in subsequent decisions and recently in State of U.P. Vs. V. Prasad .
10. Therefore, as noted above, the question is whether the facts proved by the prosecution in the instant case brings it within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC ?.
11. There is no gain saying that the onus lies on the prosecution to prove the ingredients mentioned in Section 300 IPC and bring the case under any one of the four clauses of the said provision, namely, 'firstly' to 'fourthly', to sustain the charge of murder. If it fails to do so, the charge of murder would not be made out and the case may be one of "culpable homicide not amounting to murder" as described under Section 299 IPC. In the instant case, the learned Trial Judge has not found that the appellants had any intention to cause death of the victim or to cause such bodily injury which they knew to be likely to cause the death of the victim and, therefore, clauses 'firstly' and 'secondly' of Section 300 get ruled out. Then comes the question whether the case is covered under clause 'thirdly' of Section 300 IPC ?.
12. Explaining the scope of clause (3) of Section 300, in Virsa Singh Vs. State of Punjab , a locus classicus on the issue, their Lordships of the Supreme Court said that before the prosecution can bring a case under Section 300 'thirdly', the prosecution must prove the following facts:
"First it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under Section 300 'thirdly". It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
13. Thus, as per the guidelines laid down in Virsa Singh's case (supra), which have consistently been followed, under clause 'thirdly' of Section 300 IPC, "culpable homicide" is murder if the following twin conditions are satisfied: (a) that the act which causes death is done with the intention of causing a bodily injury and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.
14. Tested on the touchstone of these broad guidelines, we feel that the evidence adduced by the prosecution falls short of bringing the case within the ambit of clause 'thirdly' of Section 300 IPC. It has come in the testimonies of PW-4, the star witness, that the victim came upstairs after hearing the noise of fight between the appellants and the said witness, her husband. The incident took place all of a sudden, at the spur of the moment and at the heat of the passion when the victim tried to intervene. When the altercation between the appellants and the husband of the victim took place, she was not present at the place of occurrence. Thus, there could be no intention to harm her particularly when she was not even a party to the initial quarrel and towards whom the appellants had no malice. It has come in the evidence of PW-5 Sube Singh, the landlord of the victim, that the relations between the two parties, who were co-tenants, were normal and that appellants were apprehended from the house itself where the incident had taken place. It is a case where no weapon was used to cause any bodily injury to the victim, though throwing the victim on the jaal itself proved to be fatal. Had the intention been to kill her, they could have thrown her on to the road from the terrace of the second floor. From the evidence of PW-5 it is clear that after the incident, the appellants did not attempt to run away from the place of occurrence. It, thus, stands proved that there was no pre-meditation, no enmity, animus and motive to kill the victim.
15. Therefore, having regard to the totality of the evidence on record, we find it difficult to hold that when the appellants threw the victim on the "jaal" of the first floor, they had intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause her death. Merely because the fall of the victim on the "jaal" was sufficient to cause death in ordinary course of nature, as opined by the doctor, PW-6, in our opinion, is by itself not sufficient to raise an inference that the appellants intended to cause such bodily injury as was sufficient to cause death. We have, thus, no hesitation in coming to the conclusion that the case does not fall within the ambit of clause 'thirdly' of Section 300 IPC.
16. Since the case set up against the appellants was of "intentionally" causing bodily injury to the victim, clause 'fourthly' of Section 300 IPC, on its plain language, is not attracted on the facts of the present case.
17. Having come to the conclusion that the case is not covered under any of the clauses of the definition of murder in Section 300 IPC, it is not necessary to go into the question as to whether the case falls within the ambit of any of the exceptions enumerated under Section 300. Yet we feel that the case would be squarely covered by Exception-4 as it was a case of sudden fight; there was no pre-meditation; the act of throwing the victim on to the jaal was in the heat of passion upon a sudden quarrel and the appellants had not even attempted to take an undue advantage or had acted in a cruel manner.
18. For the foregoing reasons, we allow the appeals partly and alter the conviction of the appellants from that under Section 302 IPC to one under Section 304 part-II IPC. The order of sentence is also modified and the sentence of 'life imprisonment' awarded to the appellants is set aside and instead they are sentenced to undergo rigorous imprisonment for five years. The fine imposed and the default stipulation would remain unaltered. From the nominal roll of the appellants it appears that all of them have already undergone sentence for a period of more than five years. If that be so, they shall be set at liberty forthwith, unless required in connection with some other case. The bail bonds executed by them shall stand discharged.
19. Before parting with the case, we record our appreciation for the effort put in by Mr. Rajesh Mahajan, Advocate, who appeared amices curiae for two of the appellants and assisted us dexterously.