Khan @ Waheed & Ors Vs. State of Andhra Pradesh  Insc 364 (27 August 2002)
Pal & Arijit Pasayat. Arijit Pasayat, J.
four appeals relate to a common judgment passed by a Division Bench of the
Andhra Pradesh High Court, whereby three appeals filed by the
accused-appellants and one by the State were disposed of. While the
accused-appellants challenged their conviction under Section 304 Part I read
with Section 34 of the Indian Penal Code, 1860 (in short 'IPC'), State had
taken the stand that accused-appellants should have been convicted under
Section 302 read with Section 34 IPC and the two accused who had been acquitted
by the trial court should have also been convicted. The appeals filed by the
accused-appellants were dismissed and the appeal filed by the State was
partially allowed by converting sentence to Section 302 IPC.
version sans unnecessary details as unfolded during trial was as follows:
no.4 Babu Jani @ Majid Khan @ Majid was an ex-employee of Hazi Mohd. Yakub
(hereinafter referred to as 'deceased'), who had five textile wholesale shops,
which he was running along with his sons and grandsons. Accused Babu Jani
joined hands with city dossier criminals, namely, Abdul Waheed Khan @ Waheed
(accused no.1), Mohd. Haneef @ Haneef (accused no.2) and Mohd. Khadeer @ Khadeer
(accused no.3); and hatched a plan with the aforesaid three accused persons and
a friend of his namely, Aleem (accused no.5). The object was to rob the
deceased, and if necessary by liquidating him. Accused Babu Jani had the
knowledge that the deceased used to go his house around 8.00 p.m. with the sale proceeds of the shops and the
collections were more than rupees one lakh. In pursuance of the conspiracy,
accused Babu Jani took the first three accused on 19.2.1993 and 20.2.1993
between 7 and 7.30 p.m., to point out the deceased and to
acquaint them with his movements of a fixed nature. First attempt was made on
22.2.1993, but finding a lot of people around the spot, the intended objective
could not be achieved. On the next day i.e. 23.2.1993 the fateful date of the
incident, at about 7.30 p.m. after obtaining information from accused Babu Jani
accused nos.1 to 3 waited near house of the deceased on a stolen Chetak scooter
and were armed with the knives.
no.2 was having a plastic tin containing chilly powder water in his hands. At
about 7.45 p.m. the deceased reached near his house in his Ambassador car
driven by Mohd. Taher PW2. He was carrying cash of more than Rs.2.32 lakhs and
demand drafts of Rs.1,60,000/- which were in his cloth bag. When the driver
opened the rear right door of the car and went to collect the tiffin-carrier of
the deceased from the left front door, accused nos. 1 to 3 kept their scooter
in motion and rushed to the deceased Hazi Mohd. Yakub and began stabbing him
indiscriminately with their three knives, while accused no.2 tried to snatch
the bag containing the cash and the demand drafts. There was street light and
also light inside the car. When PW2 rushed to the rescue of the deceased,
accused no. 2 threw chilly powder water on his face and he shouted for help.
Further knife blows were given by the three accused persons till the deceased
collapsed. Accused no.2 snatched away the cash bag from the hands of the deceased
and all the three accused persons fled away on their scooter. Though PW2 and
one Samad Khan (PW-4) chased the accused persons to some distance, they
succeeded in fleeing away. Several other persons including Mohd. Idris Ali
Khan, Mohd. Abdul Bari (PW-3) tried to come near the deceased, but they found
him dead. The three accused Nos. 1 to 3 went to the house of accused Aleem at Boda
Banda where accused Babu Jani was waiting for them.
accused nos. 1 to 4 in his house and they shared the looted money but destroyed
the demand drafts. Police on getting information reached at the spot and the
First Information Report was lodged by Mohd. Iqbal (PW-1). Investigation was
conducted and on completion thereof charge-sheet was filed.
the first three accused persons were charged for having committed offences
punishable under Section 302 IPC read with Section 34 thereof and Section 392
read with Section 34 thereof, and Section 25(1-B) of the Arms Act, 1959 (in
short 'Arms Act'). The first four accused persons were charged with commission
of offences punishable under Section 302 read with Section 120-B(1) IPC as well
with Section 392 read with Section 120-B(1) IPC. Accused no.5 was charged with
commission of offence punishable under Section 302 read with Section 212 IPC,
and Section 411 IPC. The accused persons pleaded innocence.
order to substantiate its case, the prosecution examined 33 witnesses. The
trial court found the evidence of the eye-witnesses to be credible and held
accused nos. 1 to 3 to be guilty. However, it was concluded that the offences
for the commission of which accused nos.1 to 3 were to be convicted related to
Section 304 Part I and Section 392 read with Section 34 IPC. They were
sentenced to suffer rigorous imprisonment for a period of ten years each on the
first count, and also to undergo seven years rigorous imprisonment for the
second. Both the sentences were directed to run concurrently. While the accused
persons filed appeals against their conviction and sentence before the High
Court, State challenged the conviction for lesser offence, and also against the
acquittal of the other two accused persons. As noted above, the High Court held
accused persons to be guilty of offence punishable under Section 302 IPC, and
not under Section 304 Part I. Accordingly, the State's appeal to that extent
was allowed. But the acquittal of the other accused persons was upheld.
Judgment of the High Court, as noted above, is the subject matter of challenge
in these appeals.
counsel for the appellants submitted that the evidence on which the trial court
has placed reliance does not inspire confidence. The accused persons were put
to test identification parade after their arrest. PW 2, the driver did not
participate in the first test identification parade and only after a month a
second test identification parade was conducted when PW2 participated and
identified the accused persons. According to the learned counsel delay in
conducting the parade corroded prosecution version.
it was submitted that looking into the circumstances, Trial Court came to the
right conclusion that the accused were to be convicted under Section 304 Part I
IPC and not under Section 302 IPC. The High Court should not have altered the
conviction. Learned counsel for the appellant has submitted that the doctor
PW8, who conduced the post-mortem has found injury no.10 in Ex.P/5 to be an
abrasion on the left temple of the deceased and it is possible on account of
fall on the rough surface. Similarly, internal injury no.2 corresponded to
external injury no.10. From this the trial court had arrived at the conclusion
that it was not possible to draw an inference about accused nos.1 to 3's
intention to kill the deceased for robbing the cash.
learned counsel for the State submitted that the trial court has dealt with in
detail as to why there was some delay in holding the test identification
parades. It is to be noted that the accused persons were arrested after about 2
months of the date of occurrence. They were placed in police custody and
thereafter under judicial custody. Immediately after the accused persons were
arrested a motion was made to the concerned court for test identification
parade and moment the court fixed the date, the test identification parade was
conducted. As PW2 was not available on the first date, a second test
identification parade was done. The High Court found no substance in the plea
of the accused-appellants that the witnesses identified the accused persons as
they were in jail prior to this identification parade. It was noted with
reference to the evidence of concerned Metropolitan Magistrate who conducted
the test identification parade that due formalities were observed before
conducting test identification parades. It also held that the reason for delay
has been duly explained.
to the applicability of Section 302 IPC, it is submitted that though the
intention was to rob the deceased, when the deceased resisted, in order to
achieve the intended object, he was indiscriminately stabbed till he succumbed
to death and the cash and the drafts were snatched away. The High Court was
justified in its conclusion about the applicability of Section 302 IPC.
High Court has duly considered the injuries highlighted by Trial Court and
found the approach to be wrong. The respective stands need careful
observed by this Court in Matru @Girish Chandra v. The State of U.P. (AIR 1971 SC 1050), identification tests do not
constitute substantive evidence. They are primarily meant for purpose of
helping the investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. The
identification can only be used as corroborative of the statement in court.
Singh v. Izhar Hussain and Anr. (AIR 1973 SC 2190)]. The necessity for holding
an identification parade can arise only when the accused are not previously
known to the witnesses. The whole idea of a test identification parade is that
witnesses who claim to have seen the culprits at the time of occurrence are to
identify them from the midst of other persons without any aid or any other
source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the investigation stage, is
to test the memory of the witnesses based upon first impression and also to
enable the prosecution to decide whether all or any of them could be cited as
eye-witness of the crime. The identification proceedings are in the nature of
tests and significantly, therefore, there is no provision for it in the Code of
Criminal Procedure, 1973 (in short the 'Code') and the Indian Evidence Act,
1872 (in short the 'Evidence Act'). It is desirable that a test identification
parade should be conducted as soon as after the arrest of the accused. This
becomes necessary to eliminate the possibility of the accused being shown to
the witnesses prior to the test identification parade. This is a very common
plea of the accused and, therefore, the prosecution has to be cautious to
ensure that there is no scope for making such allegation. If, however,
circumstances are beyond the control and there is some delay, it cannot be said
to be fatal to the prosecution. In the instant case, the factual scenario noted
by the trial court reveals that all possible efforts were made to have test
identification parade immediately after the arrest of the accused persons. The
accused persons were arrested on 25.5.1993, were in police custody from
9.6.1993. On 16.6.1993, requisition was given to the Magistrate to hold the
identification and first test was held on 26.6.1993 by the Magistrate. As PW-2
was not available, on request of police second test was held. Merely because
the second test identification parade was held that cannot be a suspicious
circumstance as prosecution has explained as to why that was necessitated.
view of the credible and cogent evidence of the eye-witnesses we do not find
any substance in the plea that the testimony of the witnesses suffered from any
infirmity. The appellants have already been held to be the authors of the
crime. The Trial Court analysed evidence of the eye- witnesses in great detail.
They have graphically described the incident.
cross-examination has not brought any doubt on the truthfulness of their
statements. High Court in appeal has also dealt with the acceptability of the
evidence and found it to be flawless.
brings us to the crucial question as to which was the appropriate provision to
be applied. In the scheme of the IPC culpable homicide is genus and 'murder'
its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking
generally, 'culpable homicide' sans 'special characteristics of murder is
culpable homicide not amounting to murder'.
the purpose of fixing punishment, proportionate to the gravity of the generic
offence, the IPC practically recognizes 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.
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.
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, the following comparative table will be
helpful in appreciating the points of distinction between the two offences.
299 Section 300 A person commits culpable homicide Subject to certain
exceptions if the act by which the death is caused is culpable homicide is
murder if the act by done- which the death is caused is done
the intention of causing death; or (1) with the intention of causing death;or
with the intention of causing such (2) with the intention of causing such
bodily injury as is likely to cause bodily injury as the offender knows death;
or to be likely to cause the death of the person to whom the harm is caused; or
(3) with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death; or
the knowledge that the act is (4) with the knowledge that the act is likely to
cause death. so imminently dangerous that it must in all probability cause
death or such bodily injury as is likely to cause death, and without any excuse
for incurring the risk of causing death or such injury as is mentioned above.
(b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite under clause (2) is the
knowledge possessed by the offender regarding the particular victim being in
such a peculiar condition or state of health that the internal harm caused to
him is likely to be fatal, notwithstanding the fact that such harm would not in
the ordinary way of nature be sufficient to cause death of a person in normal
health or condition. It is noteworthy that the 'intention to cause death' is
not an essential requirement of clause (2). Only the intention of causing the
bodily injury coupled with the offender's knowledge of the likelihood of such
injury causing the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause. This aspect of clause (2) is borne out
by illustration (b) appended to Section 300.
(b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of Section 300 can be
where the assailant causes death by a fist blow intentionally given knowing
that the victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that particular person
as a result of the rupture of the liver, or spleen or the failure of the heart,
as the case may be. If the assailant had no such knowledge about the disease or
special frailty of the victim, nor an intention to cause death or bodily injury
sufficient in the ordinary course of nature to cause death, the offence will
not be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of Section 300, instead of the words 'likely to cause death'
occurring in the corresponding clause (b) of Section 299, the words
"sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real and if overlooked, may result in miscarriage
of justice. The difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the degree of probability
of death which determines whether a culpable homicide is of the gravest, medium
or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys
the sense of probable as distinguished from a mere possibility. The words
"bodily injury.......sufficient in the ordinary course of nature to cause
death" mean that death will be the "most probable" result of the
injury, having regard to the ordinary course of nature.
cases to fall within clause (3), it is not necessary that the offender intended
to cause death, so long as the death ensues from the intentional bodily injury
or injuries sufficient to cause death in the ordinary course of nature. Rajwant
and Ors. v. State of Kerala, AIR 1966 SC 1874 is an apt illustration of this
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
ingredients of clause "Thirdly" of Section 300, IPC were brought out
by the illustrious Judge in his terse language as follows:
put it shortly, the prosecution must prove the following facts before it can
bring a case under Section 300, "thirdly".
it must establish, quite objectively, that a bodily injury is present.
the nature of the injury must be proved. These are purely objective
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.
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.
part of the enquiry is purely objective and inferential and has nothing to do
with the intention of the offender." The learned Judge explained the third
ingredient in the following words (at page 468):
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
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 or 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
opposite conclusion." These observations of Vivian Bose, J. have become
test laid down by Virsa Singh's 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
to the rule laid down in Virsa Singh's case, even if the intention of accused
was limited to the infliction of a bodily injury sufficient to cause death in
the ordinary course of nature, and did not extend to the intention of causing
death, the offence would be murder. Illustration (c) appended to Section 300
clearly brings out this point.
(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 treatment to the matters
involved in the second and third stages.
position was illuminatingly highlighted by the this Court in State of Andhra
Pradesh v. Rayavarapu Punnayya (1976 (4) SCC 382).
case at hand, the evidence of the witnesses was that the three appellants had
indiscriminately stabbed the deceased, though their object was to rob deceased.
As established by evidence of eye-witnesses the accused persons expected
resistance and all the three were armed with knives. It cannot be said that
they expected no resistance even if they intended to rob a huge sum of money.
The intended object was to get the money. When there was expected resistance by
the deceased, they went on giving stabs with the knives till the deceased lost
his life and thereafter the cash and the demand drafts were snatched. It is the
intention prevailing at the time of assaults, which determines the
applicability of the relevant provisions. One of the factors which appears to
have weighed with the trial court, and on which the reliance was placed to
alter conviction to Section 304 Part I was the finding that the two injuries
which were stated by the doctor PW8 to be sufficient to cause the death were
possible by fall. A reading of the post-mortem report indicates that several
injuries were stated by the doctor to be the cause of death and the two
injuries noticed by the trial court were not the only ones. In fact, injury
no.5 i.e. stab injury was one of them. There were six stab wounds. The doctor
stated injury Nos. 5, 7 and 11 and internal injuries 1 and 2 were sufficient to
cause death in the normal course of nature. Much was made by the trial Court of
the statement of PW-8 to the effect that cause of death could be stab wounds
associated with head injury. It was, however, not noticed that the doctor
clarified to the following effect: "The Stab wounds as well as the head injury
are individually sufficient to cause death". The stab wounds came first
and then the possible fall. Taking into account the totality of the
circumstances the conviction recorded by the High court under Section 302 IPC
cannot be faulted.
appeals deserve dismissal, which we direct.