Radhe Vs. State of
Chhattisgarh  INSC 1047 (7 July 2008)
IN THE SURPEME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 999 OF 2008
(Arising out of SLP (Crl.) No.3018 of 2007) Radhe ...Appellant Versus State of
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Chhattisgarh
High Court dismissing the appeal filed by the appellant (hereinafter
referred to as the `accused').
before the High Court was to the judgment of the learned Additional
Sessions Judge, Manendragarh. The trial Court had found the appellant
guilty of offence punishable under Section 302 of the Indian Penal Code,
1860 (in short the `IPC') but found the co-accused, namely, Kashi and Dev
Kumar to be not guilty. The appellant was sentenced to undergo RI for life
and fine with default stipulation.
version as unfolded during trial is as follows:
On 10.11.1997 Gyan
Singh (hereinafter referred to as the `deceased') went to Ramkhilawan's house
for collecting kanda (eatable bulb). When he did not come back till evening,
his father Heeralal went in search of the deceased to the house of Ramkhilawan
in the evening at around 7.00 p.m. Heeralal along with Ramkhilawan and his son
Gyan Singh were returning to his house. On the way, when they reached near the
house of Kashi, Kashi started scolding Ramkhilawan, who was refrained from
doing so. Therefore, a quarrel erupted.
Appellant who was
carrying pharsa and Kashi a lathi started beating. Appellant gave a pharsa blow
on the leg of the deceased. The leg was cut and turned into two pieces. Gyan
Singh fell down, thereafter Radhe chopped his other leg and assaulted Gyan
Singh with pharsa on his thigh and other parts of the body. Heeralal came to
rescue him. Dev Kumar assaulted him with a lathi on his head and also gave a
blow on his left shoulder. Heeralal fell down. When Ramkhilawan intervened, he
was assaulted by Dev Kumar. In the meantime, Beerbali, who is son of Ramkhilawan
came there. He was also beaten by Radhe with pharsa. Kashi assaulted
Ramkhilawan with a club. Gyan Singh instantaneously died at the spot and others
were injured. Accused appellant and his associates Kashi and Dev Kumar fled
away from the place of occurrence. Heeralal gave intimation and lodged First
Information Report. Both the documents were recorded by Arjun Ram, Assistant
Sub Inspector, Head Constable Jagsai conducted inquest, prepared report and
forwarded the dead body of Gyan Singh for autopsy to Community Health Centre,
Manendragarh. He collected blood stained and plain earth from the spot. Dr.
S.K. Chainpuria conducted autopsy. On examination, he found nine injuries on
the body of deceased and according to his opinion, the cause of death was
syncope due to shock and external hemorrhage caused by multiple injuries. All
the injuries found on the body of Gyan Singh were caused by hard and/or sharp
objects except one which was found to be abrasion and present below left knee.
Death was homicidal in nature. He prepared autopsy report and describing all
the injuries found on the body of the deceased forwarded the report to the
concerned police station. Injured Beerbali, Ramkhilawan and Heeralal were also
sent for medical examination. On medical examination, it was found that they
have sustained various injuries. On the memorandum statement of accused Kashi
one club and one pharsa were recovered from the appellant and seized. From Dev
kumar one club was seized. After post mortem examination, the clothes found on
the body of the deceased were also collected. The statements of witnesses were
recorded. The seized pharsa, clothes and earth were sent for chemical
examination and on examination stained earth, pharsa and clothes of Gyan Singh
were found to be stained with blood. After completion of investigation, the
charge sheet was filed in the Court of Additional Chief Judicial Magistrate,
Manendragarh, who committed the case to the Court of Sessions for trial.
Charges were framed against the appellant and co-accused. The accused-appellant
pleaded innocence and false implication.
the High Court the main stand was that the assault, if any done by the
appellant was in exercise of right of private defence and, therefore,
conviction was not called for. The learned counsel for the respondent on
the other hand supported the judgment of the trial Court. The High Court
did not accept appellant's plea and dismissed the appeal. Stands taken
before the High Court were reiterated in this appeal.
plea of right of private defence cannot be based on surmises and
speculation. While considering whether the right of private defence is
available to an accused, it is not relevant whether he may have a chance
to inflict severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an accused, the
entire incident must be examined with care and viewed in its proper
setting. Section 97 IPC deals with the subject-matter of right of private
defence. The plea of right comprises the body or property (i) of the
person exercising the right; or (ii) of any other person; and the right
may be exercised in the case of any offence against the body, and in the
case of offences of theft, robbery, mischief or criminal trespass, and
attempts at such offences in relation to property. Section 99 lays down
the limits of the right of private defence. Sections 96 and 98 give a
right of private defence against certain offences and acts. The right
given under Sections 96 to 98 and 100 to 106 IPC is controlled by Section
99. To claim a right of private defence extending to voluntary causing of
death, the accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or grievous hurt
would be caused to him. The burden is on the accused to show that he had a
right of private defence which extended to causing of death. Sections 100
and 101, IPC define the limit and extent of right of private defence.
102 and 105, IPC deal with commencement and continuance of the right of
private defence of body and property respectively. The right commences, as
soon as a reasonable apprehension of danger to the body arises from an
attempt, or threat, or commit the offence, although the offence may not
have been committed but not until that there is that reasonable
apprehension. The right lasts so long as the reasonable apprehension of
the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963
SC 612), it was observed that as soon as the cause for reasonable
apprehension disappears and the threat has either been destroyed or has
been put to route, there can be no occasion to exercise the right of
above position was highlighted in Rizan and Another vs. State of
Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur,
Chhatttisgarh (2003 (2) SCC 661), and Sucha Singh and Anr. v. State of
Punjab (2003 (7) SCC 643).
because there was a quarrel and accused persons claimed to have sustained
injuries, that does not confer a right of private defence extending to the
extent of causing death as in this case. Though such right cannot be
weighed in golden scales, it has to be established that the accused
persons were under such grave apprehension about the safety of their life
and property that retaliation to the extent done was absolutely necessary.
No evidence much less cogent and credible was adduced in this regard. The
right of private defence as claimed by the accused has been rightly
academic distinction between "murder" and "culpable
homicide not amounting to murder" has always vexed the courts. 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 minute 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.
Virsa Singh v. State of Punjab (AIR 1958 SC 465) Vivian Bose, J. speaking
for the Court, explained the meaning and scope of clause (3). It was
observed that 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.
Thirdly, 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
ingredients of clause "thirdly" of Section 300 IPC were brought
out by the illustrious Judge in his terse language as follows:
"12. To put it
shortly, 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.
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."
learned Judge explained the third ingredient in the following words (at
"The question is
not whether the prisoner intended to inflict a serious injury or a trivial one
but whether he intended to inflict the injury that is proved to be present. If
he can show that he did not, or if the totality of the circumstances justify
such an inference, then, of course, the intent that the section requires is not
proved. But if there is nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is that he intended to
inflict it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question, so far as the intention
is concerned, is not whether he intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he intended to inflict the injury
in question; and once the existence of the injury is proved the intention to
cause it will be presumed unless the evidence or the circumstances warrant an
observations of Vivian Bose, J. have become locus classicus. The test laid
down by Virsa Singh case (supra) for the applicability of clause
"thirdly" is now ingrained in our legal system and has become
part of the rule of law. Under clause thirdly of Section 300 IPC, culpable
homicide is murder, if both the following conditions are satisfied i.e.
(a) that the act which causes death is done with the intention of causing
death or 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.
according to the rule laid down in Virsa Singh case (supra) even if the
intention of the 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.
(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 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
above are only broad guidelines and not cast-iron imperatives. In most
cases, their observance will facilitate the task of the court. But
sometimes the facts are so intertwined and the second and the third stages
so telescoped into each, that it may not be convenient to give a separate
and clear cut treatment to the matters involved in the second and third
position was illuminatingly highlighted by this Court in State of A.P. v.
Rayavarapu Punnayya (1976 (4) SCC 382), Abdul Waheed Khan alias Waheed and
Ors. v. State of A.P. (2002 (7) SCC 175) and Raj Pal and Ors. v. State of
Haryana (2006 (8) SCC 678).
is to be noted that Heeralal has stated that the appellant had assaulted
both legs, thigh and hands of the deceased with pharsa. He chopped both
the legs of the deceased who died instantaneously. Beerbali's (P.W.5)
evidence was also to similar effect.
is nobody's case that the appellant had assaulted any of the accused or
that he had participated in the quarrel.
counsel for the appellant submitted that since he was present at the place
of occurrence, it is but natural on the part of the accused appellant to
assume that he may have assaulted him. Mere presence of a person at the
place of quarrel is not sufficient to show that he had any intention to
cause any injury. In the instant case, even that intention is not manifest
and in any event, any intention to do an act cannot be counteracted by
actual assault. Even deceased was not armed.
the instant case, in a brutal manner the appellant had chopped both legs
of the deceased and with the weapon caused other injuries on the body of
the deceased. Above being the position, there is no scope for interference
in this appeal. The appeal is dismissed.
ARIJIT PASAYAT) ...............................J.