Jharkhand High Court
Matheus Tudu vs The State Jharkhand on 31 October, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.539 of 2013
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[Against the judgment of conviction dated 05.06.2013 and order
of sentence dated 12.06.2013 passed by the learned District &
Additional Sessions Judge-II, Dumka in Sessions Trial Case
No.238 of 2009]
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Matheus Tudu, S/o Chati Tudu @ Samual Tudu
.... .... Appellant
Versus
The State Jharkhand .... .... Respondent/Opp. Party
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. Peeyush Krishna Choudhary, Adv.
: Mr. Aishwarya Prakash, Advocate
For the State : Mr. Bhola Nath Ojha, A.P.P.
.....
C.A.V. on 21/09/2023 Pronounced on 31/10/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, filed under Sections 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction dated 05.06.2013 and order of sentence dated 12.06.2013 passed by the learned District & Additional Sessions Judge-II, Dumka in Sessions Case No.238 of 2009, whereby and whereunder, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code.
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it
-2- Cr. Appeal (DB) No.539/2013 fit and proper to refer the background of prosecution case, as per written report of informant, which reads as under:
3. As per the written report of the informant namely Binod Hembrom P.W.11 who is the elder brother of the deceased Santosh Hembrom that the deceased had fallen in love with Chunai Hansda for last one year. The brother of the informant, namely, Santosh Hembrom (deceased) wants to marry with her. His family members were agreed for the marriage, but they suggested that recently, they have spent a lot of money in "Sharadh" (Death rituals) of grandmother, hence, requested him to wait for some time. It is further stated that the accused Matheus Tudu had also fallen in love with same girl namely- Chunai Hansda.
4. It is alleged that about 10 days ago of the occurrence, some altercation had taken place in between Matheus Tudu, the appellant herein and the deceased. In the evening of 29.05.2009 at about 7 p.m., the deceased went to the house of Sunil but he did not return in night.
5. In the next morning, the informant along with others started searching of his brother and they were going towards village- Bhulkumrarh and they reached near Canal of Tobadadi, then they saw the cycle of the deceased in a field. They also saw that one dead body was lying in the canal and big stone was put on the back of the body. The body was identified by them as the body of deceased Santosh Hembrom. They also saw blood stain in huge quantity and mark of dragging the dead body to the canal. They requested to Chowkidar of the village to inform the local police. They also enquired
-3- Cr. Appeal (DB) No.539/2013 with Sunil. He informed them that at about 9:00 p.m., the deceased went from his house. After sometime, police came there and took the dead body from the canal. They also saw some injury marks on the dead body.
6. On the basis of written report of the informant, Raneshwar P.S. Case No.40/09 dated 30.05.2009 was registered against the sole accused person under Section 302/34 of the IPC and investigation was started.
7. After completion of investigation, the Investigating Officer submitted charge-sheet against the accused person, namely, Matheus Tudu under Section 302 of the Indian Penal Code and the accused was sent up for trial.
8. Thereafter, the cognizance of the offence was taken against the sole accused person and the case was committed to the Court of Sessions. The charge was framed against the accused person, who had pleaded not guilty and claimed to be tried.
9. In course of trial, the prosecution has examined altogether 15 witnesses, i.e., P.W.1-Haridhan Hembrom, P.W.2-Dr. C.P. Sinha, P.W.3-Chunai Hansda, P.W.4-Sundri Hansda, P.W.5-Kalam Hembrom, P.W.6-Jay Dhan Hembrom, P.W.7-Muniram Hansda, P.W.8-Didi Muni Hansda, P.W.9-Sarangi Murmu, P.W.10-Bibhuti Kisku, P.W.11-Binod Hembrom, P.W.12-Ranjit Hembrom, P.W.13- Babudhan Hembrom, P.W.14-Sunil Hembrom and P.W.15- Satendra Narayan Singh.
10. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code, in which, he has denied from the
-4- Cr. Appeal (DB) No.539/2013 prosecution evidence and claimed himself to be innocent and claimed to be tried.
11. Accordingly, the trial court after considering the material available on record and the testimonies of the witnesses found the appellant/accused guilty for the offence under section 302 of I.P.C and as such, convicted and sentenced vide impugned judgment of conviction dated 05.06.2013 and order of sentence dated 12.06.2013, which is the subject matter of instant appeal.
12. The aforesaid judgment of conviction and order of sentence is under consideration before this Court:
"as to whether the trial Court, while convicting the accused person, has committed any illegality or not?"
13. Mr. Peeyush Krishna Choudhary, learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence suffers from infirmity on the following grounds:
(I). The prosecution has miserably failed to establish the charge said to have been proved beyond all reasonable doubts, since, the testimony of P.W.3, namely, Chunai Hansda has been made the basis of conviction along with the testimony of P.W.6. But, the learned trial Court, while convicting the appellant based upon the testimony of these two witnesses, has not been taken into consideration the opinion of the Doctor that the death can also be caused by falling down.
It has been submitted by referring to the testimony of P.W.3 who has deposed that after having been assaulted by the appellant with danda, the deceased fell down near the canal and hence, the opinion of the Doctor is very much relevant in the context that the reason of
-5- Cr. Appeal (DB) No.539/2013 death may also be on the basis of the injury sustained after falling down near the canal, hence, it cannot be said that it is a case of committing murder in order to attract the ingredients of Section 302 of the Indian Penal Code.
(II). The learned trial Court has also not appreciated that there was previous enmity in between the appellant and the deceased on account of love affairs with P.W.3, namely, Chunai Hansda, as has come in the testimony of P.W.9 (mother of the deceased), hence, there is every likelihood of false implication of the appellant.
14. Learned counsel for the appellant, on the aforesaid premise, has submitted that the impugned judgment needs to be interfered with.
15. Per Contra, Mr. Bhola Nath Ojha, learned Addl. Public Prosecutor appearing for the respondent-State has taken the following grounds in defending the impugned judgment of conviction/sentence:-
(i). The conviction is based upon the eye witness, i.e., P.W.3 who has witnessed the entire commission of crime.
It has been deposed by P.W.3 that the appellant assaulted the deceased by danda twice, due to which, he fell down near the canal and thereafter, both of them, i.e., P.W.3 and the appellant had fled away from the place of occurrence.
(ii). The testimony of P.W.3 has also been supported by the testimony of P.W.11, the informant, the brother of the deceased, who has supported the prosecution version by corroborating the testimony of P.W.3.
-6- Cr. Appeal (DB) No.539/2013
(iii). The Investigating Officer has also corroborated the prosecution version by collecting the material in course of investigation.
(iv). It has been submitted by referring to the testimony of the Investigating Officer that the dead body was found from the canal, over which stone was kept, hence, the same clarifies that the murder of the deceased was caused intentionally and as such, it is the case of commission of murder attracting the ingredients of Section 302 of the Indian Penal Code with obvious reason of triangular love.
16. Learned A.P.P., based upon the aforesaid submission, has submitted that the learned trial Court after taking into consideration the testimony of the prosecution witnesses more particularly the eye witness, i.e., P.W.3 corroborated by P.W.6 and the Investigating Officer, since, has passed the impugned judgment of conviction, therefore, the same requires no interference.
17. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court.
18. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimony of prosecution witnesses.
19. P.W.1-Haridhan Hembrom is the seizure list witness. He has stated in his examination-in-chief that on 29/05/2009 at about 7 p.m., Santosh (deceased) went from his house and thereafter, he did not return. In the next morning at about 8 a.m., they saw the dead body of Santosh near canal. After sometime, police came there and took the
-7- Cr. Appeal (DB) No.539/2013 dead body from the canal. Police also recovered two pieces of bangles, one danda, lady's sandal and blood stain soil. Police seized the above items and prepared the seizure-list. He identified his signature on his seizure list, which is marked as Exhbt.1.
20. Further, he has stated that for the last two years, love affairs were going on between Santosh and Chunai. Meantime, accused Matheus Tudu fell in love with Chunai Hansda and some altercation had taken place in between them about 10 days ago from the occurrence.
21. He stated in his cross-examination that police recorded his statement on the same day. Further, he stated that actually Chunai wanted to marry with Santosh, but the family members of the Santosh were not agreed. He also stated that he cannot say about the colour of the sandle but the said sandal was of right leg. He cannot say the number of aforesaid sleeper.
22. P.W.2-Dr. C.P.Sinha, stated in his examination-in-chief that on 30.05.2009, he was posted as Medical Officer in Sadar Hospital, Dumka. On that day, at about 4.10 p.m., he had conducted the postmortem examination on the dead body of Santosh Hansda and followings ante-mortem injuries were found:-
i. Abrasion 1"X1\2" over right eye-brow ii. Lacerated wound 1/2" X 1/2" X muscle deep over back of head in the middle.
iii. Lacerated wound 1" X1/2" X bone deep over parietal region of scull above left ear.
-8- Cr. Appeal (DB) No.539/2013
23. On dissection of the head, under lying parietal bone found fractured. On further dissection, brain and meninges found lacerated and collection of blood found middle cranium. He has stated that death was due to hemorrhage and shock as a result of injury no.(iii).
24. All the injuries caused by hard and blunt substance, time elapsed since death within 24 hours. He identified the postmortem report in his pen and signature which is marked as Exhibit/2.
25. In his cross-examination he stated that all the injuries were found on the body of deceased caused possibly by fall on hard and surface.
26. P.W.3-Chunai Hansda claimed herself to be the eyewitness of the alleged crime. She stated in her examination-in-chief that the occurrence had taken place about 5 months ago, it was night. The occurrence had taken place at side of the canal. She was present there along with Matheus Tudu (appellant), by that time, Santosh went to his house. Actually, for last one year, there was love affair with Santosh but after break up, she started doing love with Matheus Tudu (the appellant). Santosh (deceased) stole her cloths from her house and was taking away the same. Then Matheus Tudu enquired with Santosh about the cloths at the side of canal, thereafter, some altercation had taken place. She deposed that Santosh (deceased) was armed with Pistol and Matheus (appellant) armed with danda and Matheus had given 2/3 danda blow upon the head of the Santosh.
Santosh died on spot. Thereafter, both fled away from there.
27. Further, she stated in the cross-examination that she was in love with Matheus for last three years. At para-9 she deposed that she had
-9- Cr. Appeal (DB) No.539/2013 not seen the deceased taking away her cloth and sandal from her house.
28. She admitted that after break up love affairs with Santosh, she started to love with Matheus. She had physical relation with Matheus (the appellant). Her father was living outside of the village in connection with livelihood, but he knew about her affairs. Further, she clearly admitted in para-14 of her cross- examination that at the time murder of Santosh, she was present there.
29. P.W.4-Sundri Hansda stated in her examination-in-chief that the occurrence had taken place about 7 months ago. She deposed that at about 7 p.m. when she was present in her house, Santosh came there and consumed liquor, thereafter, went somewhere. Next day, she heard that the dead body of Santosh was lying near the canal.
30. She stated that she knew Matheus and Chunai and in her cross- examination she deposed that the Police had enquired with her and she clearly admitted that she had not seen the occurrence by her own eyes.
31. P.W.5-Kalam Hembrom, father of the deceased, stated in his examination-in-chief that the occurrence has taken place about one year ago. He knew Chunai Handa. Actually, he sent his son Santosh to bring labour, but he did not return by next morning, then he sent his son, namely, BInod Hembrom, in search of Santosh. While he was going, he saw the cycle of the deceased lying in the field. After some distance, he had found sleeper of the deceased and further found the dead body of Santosh in canal. The Police came there and took away the dead body of Santosh., He further deposed that One Sundri and
- 10 - Cr. Appeal (DB) No.539/2013 Didi Muni were working in his house and they informed him that Matheus had killed Santosh. He further deposed that Santosh used to love Chunai (P.W.3) and Matheus also loved Chunai. He further deposed that P.W.3 had told in police station that Matheus killed Santosh because she loved Santosh.
32. They also informed that accused had killed Santosh. He further stated in his cross-examination that Police recorded his statement on next morning of the occurrence. He testified that love affairs in between Santosh and Chunai were going on for last two years and Santosh wanted to marry with her. He also stated prior to this occurrence, the quarrel had taken place in between Santosh and Matheus for the girl, but he could not say the date and day of that quarrel.
33. P.W.6-Jay Dhan Hembrom, stated in his examination-in-chief that the occurrence had taken place on 29.05.2009, actually, his brother Santosh went to village-Bhulkumarh at about 7 pm to bring labour from there, but he did not return in the night. In the next morning, he, as per direction of his father, along with his brother Vinod and other boys went to search of Santosh. When they reached near canal, they saw the cycle of the Santosh lying in the paddy field.
34. Subsequently, they saw the dead body of the Santosh. Thereafter, Police came there and prepared paper of the dead body and also seized soil, bangle and danda etc. after making seizure-list. He identified his signature, which is marked as Exhbt.1/1.
35. Further, he stated in his cross-examination that he had not seen the occurrence by his own eyes. Police had seized the blood stain soil,
- 11 - Cr. Appeal (DB) No.539/2013 bangles and danda in front of him. After preparing some paper and he put his signature only on paper. Further, he deposed that seized articles were not produced before the court.
36. P.W.7-Muniram Hansda and P.W.8-Didi Muni Hansda have been declared hostile at the instance of prosecution.
37. P.W.9-Sarangi Murmu, the mother of the deceased stated in her cross-examination that Santosh was her son. The occurrence had taken place one year ago when he went to village-Mulkorha to bring labour, but he did not return in the evening. Thereafter, she sent her another son Binod to search him. Vinod saw the cycle of Santosh in the field and further saw the dead body of the Santosh in another place. She also stated that she knew the accused who was friend of the deceased. Both the boys had fallen in love with the same girl and due to that, some altercation had taken in between them. Further, she stated in her cross-examination that her son was in love for the last two years and she had raised no objection.
38. P.W.10-Bibhuti Kisku has stated in his examination-in-chief that the deceased was his nephew. His dead body was recovered from canal. Thereafter, Police came there and prepared inquest report and he put his signature on that paper. He identified his signature on the Inquest report, which is marked as Exhibit/3. Further, he stated in his cross-examination that as per direction of the police he put his signature. Police had enquired with him what was written in the paper.
39. P.W.11-Vinod Hembrom, the brother of the deceased as well as the informant stated in his examination-in-chief that the occurrence had taken place on 29.5.2009, on that day, his younger
- 12 - Cr. Appeal (DB) No.539/2013 brother Santosh was going to Muikarha village in order to bring labour, but he did not return in the night. In the next morning, he along with 2/3 boys proceeded towards Muikarha in order to search his brother. When they reached near the canal, they saw the cycle of Santosh lying in the field. Subsequently, they saw dead body of his brother in canal, thereafter, he informed to his parent, that Matheus Tudu had killed Santosh on the account of triangular love in between Matheus (appellant), Santosh (deceased) and Chunai (P.W.3).
40. He further deposed that as per his dictation, Ramesh Marandi had written the application. He put his signature. Even, Ramesh Marandi also signed on that petition. He identified written report in the pen of Ramesh Marandi and signed by him as well as by Ramesh Marandi, which is marked as Exhibit/4.
41. Further, he identified the signature on inquest report, which is marked as Exhbt.5. Further, he stated in his cross-examination as stated before the police.
42. He admitted that he had not seen the occurrence by his own eyes. He also stated that at about 10-days ago some altercation had taken place in between Santosh and Matheus, but he had not informed to the Police.
43. P.W.12-Ranjit Hembrom, stated in his examination-in-chief that he heard about the dead body of Santosh Hembrom, then he went there and saw the dead body. He also heard that Matheus Tudu has killed Santosh due to love affairs. Further he stated in his cross- examination that he had not seen the occurrence by his own eyes and police has not recorded his statement.
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44. P.W.13-Babudhan Hembrom and P.W.14-Sunil Hembrom are the tendered witnesses.
45. P.W.15-Satendra Narayan Singh, the Investigating Officer stated in his examination-in-chief that on 30.05.2009, he was posted as Officer-in-charge of Ramgarh P.S. He identified the formal FIR in his pen and signature, which is marked as Exhibit/6. He has also identified the endorsement on the written report in his pen and signature, which is marked as Exhbt.4/1. He also identified the seizure-list written in his pen and signature, which is marked as Exhibit 1/2. He received investigation charge of this case and prepared inquest report in three copies which is marked as Exhibit 5/1.
46. Further, he stated that during the course of investigation, he recorded the restatement of the informant and inspected the place of occurrence. The place of occurrence is situated near the canal in between village, Muikorha and Borah Bathan. He also found the blood stain in the field of Khujru Muru which is situated in western side of canal. The field of Bahadur Hansda is situated 10 meters away. He also found two lathis with blood stain cloths and sleeper and he had seized the above articles. He recorded the statement of the other witnesses and received postmortem report and also got examined witness Chunai Hansda under Section 164 of the Cr.P.C.
47. Further, he had stated in his cross-examination that informant is Resident of village Bora-Bathan and accused is resident of Muikorha. Actually Santosh (Deceased) had fallen in love with Chunai Hansda for the last one year. He wanted to bring the girl to his home, but his family members were not agreed.
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48. Further, he stated that on the date of occurrence at about 7 p.m., the deceased went to house of Sunil Murmu at village Mulkumrha. He also admitted that seized articles have not been produced before the court.
49. It appears from the testimonies of the witnesses as has been discussed hereinabove that homicide is there. The same has been supported by P.W.3, P.W.11 and P.W.15 the Investigating Officer.
50. But the question herein is that "as to whether the commission of crime of murder, will come under the exception to Section 300 of the Indian Penal Code or it is a case of commission of crime said to be under Section 302 of the Indian Penal Code?
51. This Court, before answering the aforesaid issue based upon the testimony, deems it fit and proper to refer the provision of Section Sections 299, 300, 301 and 302 and 304.
52. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredient of culpable homicide as provided under Section 299 of the Indian Penal Code, the murder as provided under Section 300 and ingredient of Section 304 of the Indian Penal Code.
53. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act - (a) with the intention of causing
- 15 - Cr. Appeal (DB) No.539/2013 death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. "intent" and "knowledge" as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3rd condition contemplates 69. The Hon'ble Apex Court while taking in to consideration of aforesaid ingredients of section 299 IPC in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :-
"32. For this purpose we have to go to Section 299 which defines "culpable homicide". This offence consists in the doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 :
1966 Cri LJ 171] x"intent" and "knowledge" in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the
- 16 - Cr. Appeal (DB) No.539/2013 person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person."
54. It is, thus, evident that our legislature has used two different terminologies 'intent' and 'knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that 'intent' and 'knowledge' cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that 'intent' and 'knowledge' are the same. 'Knowledge' will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
55. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of the IPC designedly used the two words 'intention' and 'knowledge', and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens
- 17 - Cr. Appeal (DB) No.539/2013 rea is not required in order to prove that a person had certain knowledge, he "must have been aware that certain specified harmful consequences would or could follow." (Russell on Crime, Twelfth Edition, Volume 1 at page 40).
56. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that 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, secondly, 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 thirdly, 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 fourthly, 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.
57. In the case of Nankaunoo Vrs. State of Uttar Pradesh, reported in (2016) 3 SCC 317 it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as :-
"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the
- 18 - Cr. Appeal (DB) No.539/2013 offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] , para 12, this Court held as under: (SCC p. 41) "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7) '7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.' The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been
- 19 - Cr. Appeal (DB) No.539/2013 followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their
- 20 - Cr. Appeal (DB) No.539/2013 existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end."
58. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder which are as follows :-
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(a) If a person is suddenly provoked by a third party and loses
his self-control, and as a result of which causes the death of another person or the person who provoked him, it won't amount to murder subject to proviso as provided.
(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person.
(d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender' having taken undue advantage or acted in a cruel or unusual manner.
(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
59. All these exceptions mentioned above shall come under purview of Section 304 and will be termed as culpable homicide not amounting to murder.
60. This Court, in order to consider the culpability of the appellant, of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II.
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61. The Hon'ble Apex Court has dealt with the aforesaid position in the case of Surinder Kumar Vrs. Union Territory, Chandigarh reported in (1989) 2 SCC 217, wherein, paragraph 6 and 7 are relevant which are being referred hereunder as :-
"6. Exception 4 to Section 300 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 having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not
- 23 - Cr. Appeal (DB) No.539/2013 have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to hand over possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411 IPC and his name was registered as a bad character at the local police station. It was
- 24 - Cr. Appeal (DB) No.539/2013 presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the fifth rib about 2" below the nipple. It may incidentally be mentioned that the trial court came to the conclusion that the injury found on the neck of PW 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307 IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after
- 25 - Cr. Appeal (DB) No.539/2013 PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years."
62. In the case of Murlidhar Shivram Patekar and Another Vrs. State of Maharashtra, reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 which reads as under:-
"28. The question however still remains as to the nature of the offence committed by the accused
- 26 - Cr. Appeal (DB) No.539/2013 and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217] , this Court has held as under: (SCC p. 220, para 7) "7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this
- 27 - Cr. Appeal (DB) No.539/2013 Exception provided he has not acted cruelly."
(emphasis supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p. 595 : (2009) 3 SCC (Cri) 1130] , in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, para 9) "9. ... '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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a
- 28 - Cr. Appeal (DB) No.539/2013 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"."
63. In the case of Surain Singh Vrs. State of Punjab, reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :-
"13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not
- 29 - Cr. Appeal (DB) No.539/2013 covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight"
implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which
- 30 - Cr. Appeal (DB) No.539/2013 both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter."
64. In the case of State of Andhra Pradesh Vrs. Rayavarapu Punnayya & Anr., reported in (1976) 4 SCC 382, the Hon'ble Apex Court, while clarifying the distinction between section 299 and 300 of the IPC and their consequences, held as under:-
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' is species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, '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 greatest 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
- 31 - Cr. Appeal (DB) No.539/2013 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."
(Emphasis supplied)
65. In Pulicherla Nagaraju v. State of A.P., reported in (2006) 11 SCC 444, wherein the Hon'ble Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed as under:
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there
- 32 - Cr. Appeal (DB) No.539/2013 may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. 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, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused
- 33 - Cr. Appeal (DB) No.539/2013 dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
(Emphasis supplied)
66. Recently, the Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police, reported in 2023 SCC OnLine SC 857, which are being quoted as under:
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:--
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. --- (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any
- 34 - Cr. Appeal (DB) No.539/2013 one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply
- 35 - Cr. Appeal (DB) No.539/2013 when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of
- 36 - Cr. Appeal (DB) No.539/2013 the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution
- 37 - Cr. Appeal (DB) No.539/2013 must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, 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 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause
- 38 - Cr. Appeal (DB) No.539/2013 such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental
- 39 - Cr. Appeal (DB) No.539/2013 or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
67. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues :-
(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code?
(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code?
(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof?
68. Since all the three issues are interlinked, the same are being decided hereinbelow by considering them together, in the light of the deposition of witnesses examined during course of trial. Summarizing the depositions of the witnesses as referred above it is found from the testimonies of P.W.3 Chunai Hansda who at the time of occurrence was accompanying the appellant. The deceased reached near them and scuffle took place.
69. It has been deposed that the appellant was having pistol. The appellant assaulted the deceased with danda due to which the deceased fell down and died on the spot near the canal, thereafter accused/appellant fled away.
- 40 - Cr. Appeal (DB) No.539/2013
70. It further appears from the testimony of P.W.5, father of the deceased, who is the hearsay witness but came to know about the commission of murder of his son.
71. He has deposed that the dead body of the deceased was found in canal and the Police came there and taken the dead body of the deceased.
72. P.W.6, has deposed in his examination-in-chief that the occurrence had taken place on 29.05.2009 while Santosh (deceased) went to village Bhuikumarh at about 7:00 p.m. to bring labour. But he did not return in the night.
73. In the next morning, he along with brother of deceased namely Binod and other boys went in search of Santosh, the deceased. When they reached near canal, then they saw the cycle of Santosh lying in the paddy field. Subsequently, they saw the dead body of the Santosh. Police came there and prepared paper of the dead body and also seized soil, bangle, danda etc. after making seizure list. He has identified his signature, which is marked as Exhibit 1/1.
74. In his cross-examination, he has deposed that he had not seen the occurrence by his own eyes. Police had seized the blood stain soil, bangles and danda in front of him.
75. He has further admitted that the seized articles have not produced before the Court. He has further deposed that the deceased Santosh was fallen in love with Chunai Hansda, P.W.3.
76. P.W.7 and 8 has been declared to be hostile.
77. P.W.9, who is the mother of the deceased, has stated in her examination-in-chief that when the deceased has not returned in the
- 41 - Cr. Appeal (DB) No.539/2013 evening, then she sent her another son Vinod to search him. Vinod saw the cycle of Santosh in the field and further saw the dead body of Santosh in another place.
78. She has also corroborated about the love affairs of the deceased with P.W.3. She has also deposed that the appellant was friend of the deceased. She has further deposed that both the boys was fallen in love with same girl and due to that, some altercation had taken in between them.
79. P.W.10 is the witness of inquest report. He has deposed in his examination-in-chief that the deceased was his nephew. His dead body was recovered from canal. Police came there and prepared inquest report and he put his signature on the paper.
80. P.W.11 is the brother of the deceased as well as the informant of his case. He has stated in his examination-in-chief that the occurrence had taken place on 29.05.2009. On that day, his younger brother Santosh was going to Muikarha Village in order to bring labour but he did not return in night. As such in the next morning, he along with 2/3 boys proceeded towards Muikarha in order to search his brother. When they reached near the canal, they saw the cycle of Santosh lying in the field. They also saw the dead body of his brother in canal. Accordingly, due information was given to the parents and thereafter the Police being informed and came there.
81. P.W.12 is the hearsay witness, while, P.W.13 and P.W.14 are the tendered witnesses and they have not supported the prosecution case.
- 42 - Cr. Appeal (DB) No.539/2013
82. P.W.15 is the Investigating Officer. He has prepared the inquest report. He has corroborated the testimony of P.W.11 and other witnesses whose statements were recorded under Section 161 of the Cr.P.C.
83. He has also deposed that he has found two lathis with blood stain cloths and sleeper and seized the above articles. He recorded the statement of the other witnesses and received the postmortem report. He has also deposed of recording the statement of Chunai Hansda under Section 164 of the Cr.P.C.
84. He has also found in course of investigation that the Santosh (deceased) had fallen in love with Chunai Hansda for last one year. He wants to bring the girl to his home but his family members were not agreed.
85. It has further come in his testimony that he has found the sign of dragging of the dead body. He has found the dead body in the canal over which a stone was there.
86. Admittedly, herein the P.W.3 was having love affairs with the deceased. But, as has been disclosed by P.W.3 in her testimony that the said affairs were broken down for the last one year.
87. It has also been deposed that after the end of relation with the deceased, she had fallen in love with the appellant. The deceased was objecting to the same since, he was willing to marry with P.W.3. But as has been deposed by P.W.3 that since the deceased had already married and hence, she had broken the relationship with the deceased. But the deceased was having intense inclination with the P.W.3 which would be evident from the testimony of P.W.3 itself,
- 43 - Cr. Appeal (DB) No.539/2013 wherein, she deposed that while she was along with the appellant, the deceased was going along with her stolen cloths taken from her house.
88. She further deposed that the deceased was having with the pistol. She has further deposed that when the deceased reached near the appellant then the scuffle took place upon which, the appellant had assaulted the deceased by danda (lathi) due to which the deceased fell down and thereafter, she along with the appellant fled away from the place of occurrence.
89. It is evident from the testimony of P.W.3 that on the issue of love affairs with her, the deceased and the appellant were having inimical relationship. The appellant had assaulted the deceased by danda and thereafter, when the deceased fell down near the canal, both of them, i.e., P.W.3 and the appellant had fled away from the place of occurrence.
90. The Investigating Officer, in course of investigation, found the broken bangles and the sandal at the place of occurrence.
91. The Investigating Officer found the broken bangles at the place of occurrence which suggests scuffle had taken place at the place of occurrence. It has also come in the testimony of P.W.3 that the appellant has taken out the pistol from the deceased which also suggests that the scuffle took place in between the deceased and the appellant.
92. The conviction is based upon the testimony of P.W.3 but the P.W.3 has only stated about the assaults as made by the appellant upon the deceased by lathi. The falling down of the deceased near the
- 44 - Cr. Appeal (DB) No.539/2013 canal had been witnessed by P.W.3 before both of them (P.W.3 and the appellant) fled away from the place of occurrence.
93. This Court, on the basis of the assessment of the testimony of P.W.3 who has been considered to be eye witness by the learned trial Court, is of the view that the assault was given by the appellant upon the deceased in course of scuffle took place in between them and it further appears that P.W.3 has also come in the way otherwise, there was no question of finding the broken bangles at the place of occurrence.
94. It requires to refer herein that the learned trial Court has based the conviction solely upon the testimony of P.W.3., wherein, the P.W.3 has disclosed about two assaults by danda which was given by the appellant, due to which, the deceased fell down near the canal, thereafter, the P.W.3 along the appellant fled away from the place of occurrence. From the deposition of PW.3 it is also evident that on point of stealing cloth of the P.W.3 by the deceased, the scuffle was taken place in between deceased and appellant and without any intention appellant assaulted the deceased.
95. These circumstances suggest that there was an altercation in between the deceased and the appellant in which P.W.3 was also involved for any reason whatsoever, since, the broken bangle was found from the place of occurrence and it is clearly deposed by P.W.3 that the deceased had committed theft of her cloths from her house and thereafter, he was running away. Hence, it cannot be said that there was pre-meditation of mind of committing murder, hence, it is coming under the exception as referred hereinabove.
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96. We have considered the testimony of Investigating Officer, wherefrom, we have found that the Investigating Officer has found the sign of dragging of the body and the dead body was found in the canal over which a stone was found.
97. But this version was not supported by the sole eyewitness i.e.P.W.3. If the version of Investigating Officer would have been in corroboration to the testimony of the sole eyewitness i.e.P.W.3, then certainly, the case would have been the commission of murder attracting the ingredients of Section 304 of the Indian Penal Code. But that is not the fact herein, since, P.W.3 has not supported the aforesaid version of drowning the dead body in the canal. Further, the Investigating Officer has not investigated on this issue.
98. This Court, therefore, is of the view that the testimony of the Investigating Officer to that extent being not corroborated by the testimony of P.W.3, cannot be made applicable for attracting the ingredients of Section 302 of the Indian Penal Code.
99. It is bounden duty of the court to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters may lead to altercations culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. 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, or cases of culpable homicide not amounting to murder.
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100. The intention to cause death can be gathered generally from a combination of a few or several circumstances like nature of the weapon used; or the weapon was carried by the accused or was picked up from the spot; the amount of force employed in causing injury; the act was in the course of sudden quarrel or sudden fight or free for all fight; the incident occurs by chance or whether there was any premeditation; there was any grave and sudden provocation, and if so, the cause for such provocation; it was in the heat of passion; the accused dealt a single blow or several blows.
101. This Court, based upon the discussion made hereinabove, is of the view that it is a case where the crime was committed at the spur of moment and without premeditation and intention.
102. This Court, in view thereof, is of the view that the conviction is not required to be under Section 302 of the Indian Penal Code, rather, based upon the aforesaid discussion, it is a case under Section exception to Section 300 and hence, Part-II of Section 304 of the Indian Penal Code, since is attracted, hence, the conviction is to be under Section 304 Part-II.
103. This Court, after having the discussed the factual aspects along with the legal position as above and coming to the judgment passed by the learned trial Court, is of the view that the judgment of conviction/sentence needs to be interfered with.
104. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds the appellant guilty for the offence under Section 304 Part II I.P.C and sentence him to undergo
- 47 - Cr. Appeal (DB) No.539/2013 rigorous imprisonment for nine years and fine of Rs.5000/- in default thereof to further suffer rigorous imprisonment of six months.
105. It has been informed that the appellant is languishing in judicial custody since 2009 and as such, he has already remained in the custody for the period of more than 14 years, therefore, he is sentenced for the period already undergone and appellant is directed to be released from the jail custody, if not wanted in any other case.
106. Accordingly, the judgment of conviction dated 05.06.2013 and order of sentence dated 12.06.2013 passed by the learned District & Additional Sessions Judge-II, Dumka in Sessions Trial Case No.238 of 2009, is hereby modified at the extent as indicated hereinabove.
107. The appeal is hereby dismissed with the aforesaid modification of the judgment of conviction and order of sentence to the extent as indicated above.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 31st October, 2023.
Rohit/-A.F.R.