Narayan Bhadolkar Vs. State of Maharashtra
 Insc 142 (9
Sabharwal & Arijit Pasayat Arijit Pasayat, J.
Varambale (hereinafter referred to as the 'deceased') would not have in his
wildest dreams on 8.5.1982 dreamt when he left home to attend the invitation
extended by the appellant Shankar Narayan Bhadolkar (hereinafter referred to as
accused A-1), that he would never return alive. The appellant allegedly shot
him dead by a gun when the deceased was in his house in response to his
invitation to attend a marriage celebration. The appellant along with his wife Laxmibai
(A-4), son Dinkar (A-3) and one Sambhaji Mahadeo Patil (A-2) faced trial. They
were charged for commission of offences punishable under Sections 302, 201 read
with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellant
was alternatively charged for commission of offence punishable under Section
302, 201 and Section 25(1A) of the Arms Act, 1959 (in short the 'Arms Act').
trial Court found the appellant guilty of the offences punishable under
Sections 302, 201 IPC and 25 of the Arms Act. The other three co-accused
persons were acquitted. Appellant was sentenced to undergo life imprisonment,
two years and six months respectively, with fines and default stipulations.
version as unfolded during trial is as follows:
Dilip Shripati Dalavi (PW-2) had a laundry in the Shivaji Chowk, Kohlapur.
There was also a hair cutting shop adjoining his laundry, which was run by Shantaram
Mane (PW-4) and Ramchandra Mane. They are friends. The deceased was coming to
the said hair cutting saloon and hence he had become their friend. Accused
no.1- appellant was also visiting the said saloon and he had also become their
friend. On 2.5.1982, accused no.1 had come to the shop of Dilip Dalavi (PW-2)
and gave him invitation for dinner arranged in his house at Vadanage, near the
limits of Nigave Dumala Village. The said invitation was for the
dinner arranged on 8.5.1982. Besides the complainant, accused no.1 also invited
Rajendra the brother of the complainant, Shantaram Mane (PW-4) and his brother Rama
and another friend Dattu Kurane. Accused no.1 told him that in case they did
not attend the dinner, then they will have to pay a penalty of Rs.100/-. At
that time, deceased had come to the saloon where this talk was going on. The
deceased was also invited by accused no.1 for the said dinner.
8.5.1982 about 5.30
p.m. the complainant
and others left for Vadanage to the village of accused no.1. After reaching the
Mace, they moved around and thereafter took meals. A bus was to leave at about 8.00 p.m. for their return journey to Kolhapur. They finished their meals at about
7.30 p.m. Thereafter all the invitees came
out of the house and they wanted to catch the bus.
Patil (A-2) and one unknown person entered the house of accused no.1. Deceased
also followed them and went inside. As there was some time for catching the
bus, the complainant also entered the house of accused no.1 for chewing betal
leaves. The bus stop was just in front of the house of accused no.1. The
complainant sat on the cot. The deceased was standing on the threshold of the
house. The unknown person was standing close to them. Accused no.2 was sitting
on the chair in front of him.
no.1 lifted the gun, loaded it with cartridge and pointed it towards the
deceased and then fired it. The said shot hit on the left side chest of the
deceased, who collapsed and blood started oozing. As soon as deceased fell
down, he died instantaneously. As the complainant was afraid, he came out of
the house. Rajendra, Shantaram, Ramchandra and Dattu Kurane were outside the
house. As soon as he came out of the house, those persons enquired from him
about the sound. He disclosed to them that accused no.1 had fired a gun hitting
Pandurang. Thereafter they all started towards Vadanage. They went to the house
of Sadashiv Khadaka to whom they narrated the incident, because he was their
friend. The distance between his house and the house of accused no.1 is about 2
to 3 kms. The brother-in-law of the deceased resides in the same village. Khadake
had taken them in his house. Then they went to village Kerli in the bus
belonging to the society of Vadanage, because the deceased was from Kerli. Then
they went to Mahadeo Varsmble who is the cousin brother of the deceased. They
woke him up and told him about the incident. Thereafter they all went to Shripati
Chougule and disclosed to him the incident. Then he himself alongwith five
others who were present for the dinner came to Karvir Police Station in jeep. Shripati
Chougule came to the police station by motorcycle. Complaint was lodged in the Karvir
Police Station. It was reduced into writing. On the basis of the said first
information report, the Police Inspector Shirawekar registered the offence u/s
302 IPC and also under Section 25 of the Arms Act.
Police Inspector visited the spot along with the complainant and his staff in
the jeep. The complainant pointed out the house of accused no.1. Police
Inspector called out accused no.1 by standing near door. Accused no.1 who came
out by opening the latch of the door was arrested.
green lungi which was on the person of accused no.1 was attached under panchanama
(Ex.12). On interrogation accused no.1 expressed his willingness to show the
well where the corpse of the deceased was thrown. The said well is situate at
village Kerli. Accordingly a memorandum was prepared vide Ex.23 in presence of
the panchas. Accused no.1 then led them to the well and the dead body of
deceased was taken out from the well. It was wrapped in a gunny bag. After
opening the gunny bag, the dead body was taken out. It was identified by Sadashiv
and others. Accordingly panchanama (Ex.24) was prepared. Under the panchanama muddemal
articles nos. 2 and 3 were also attached. Then inquest on the dead body was
drawn (Ex.30). The dead body was sent to the doctor for autopsy. Then the
Police Inspector arrested accused no.2. He also attached a white Dhoti and
Nehru shirt (Art. 4 & 5) of deceased no.2 under panchanama (Ex.14). Then he
visited the scene of offence in the morning and drew panchanama (Ex.15). He
found some blood stains on the threshold and also on the bench. The floor was
cleaned with cow dung. Soiled cow dung was found at the backyard of the house
of accused no.1. It was also attached. Statements of witnesses were recorded.
30.5.1982 he sent the muddemal articles nos. 1 to 30 and also the viscera and
plastic like material forwarded by the Medical Officer, along with his
forwarding letter to the Chemical Analyser Pune so also, muddemal article,
no.10 the gun was sent to the Ballistic Expert for examination and his opinion.
On enquiry it was revealed that the gun (Art.10) was in the name of accused
no.3 having a valid licence. The same was attached by him. He obtained a
permission from the District Magistrate, Kolhapur (Ex.21) against accused no.1 for having used the gun without valid licence.
for his prosecution under the Arms Act. After conclusion of the investigation,
charge sheet was submitted in the Court of Chief Judicial Magistrate, Kolhapur.
charge was framed against accused nos. 1 to 4 and they pleaded not guilty.
appellant took the plea that on the date of occurrence he had invited 30/40
persons to attend the dinner and the deceased was one of them. He was heavily
drunk and was not in a position to walk and also unable to control himself.
Apprehending that the deceased might create problems and fall on the road, the
appellant dissuaded him from returning to his place and advised him to go on
the next day. But the deceased paid little heed. To scarce him, the appellant
picked up a gun lying there, loaded the same with blank cartridges which only
create noise. But the deceased tried to snatch it from him. In the scuffle when
the deceased pulled the barrel of the gun accidentally it got fired and
deceased sustained injuries on his chest.
seeing the injury, the appellant was totally shocked and fled away. The other
accused persons denied their involvement in the occurrence. The trial Court as
noted above, found the co-accused not guilty but recorded the conviction so far
as the appellant is concerned under Sections 302, 201 IPC and Section 25(1A) of
the Arms Act, and imposed sentences.
plea before the High Court which, did not find acceptance, was that there was
no offence involved as the act was covered by Section 80 IPC. In any event,
there was no element of culpability to bring home accusations of Section 302.
At the most it was covered by Section 304A.
it was submitted that even if the prosecution version is accepted in its toto,
the case would be covered under Section 304 Part II. The trial Court held that
though intention may not be attributed for causing death, it cannot be said
that the accused did not have the requisite knowledge and the case was covered
under clause fourthly of Section 300. In appeal by the impugned judgment, the
High Court upheld the conviction and sentence. It, however, held that the case
was really covered by clauses Firstly and Thirdly of Section 300.
support of the appeal, learned counsel for the accused appellant reiterated the
stand taken before the trial court. It is relevant to note at this juncture
that before the High Court the plea that the case was covered under Section
304A was not specifically pressed into service. However, the other two pleas raised
before the trial Court i.e. applicability of Section 80 IPC or in the
alternative Section 304 Part II IPC were urged. According to him, the first
plea was available to be urged. He further submitted that the scenario clearly
rules out any culpability and the act was merely accidental. The accepted
position being that there was no motive to kill the deceased, both the accused
and the deceased were friendly, there was large number of people invited for
the dinner and the invitees included the deceased, the pleas of the accused
appellant, should have been accepted. It was urged that the case at hand bears
great resemblance to factual position in Sadhu Singh Harnam Singh v. The State
of Pepsu (AIR 1954 SC 271). In that case it
was held that the case was covered by Section 304A and the custodial sentence
was restricted to the period of custodial sentence already undergone.
it was submitted that even if as projected by the prosecution, its case is
accepted offence under Section 302 IPC is not made out and it would be a case
under Section 304 Part II. With reference to the age of the accused it was
pointed out that he is now nearly 80 years and the sentence should be
restricted to the period already undergone.
response, learned counsel for the respondent-State submitted that the two
courts have analysed the factual position in great detail and have rejected the
pleas presently being urged. The case is one where Section 302 IPC is clearly
applicable. The conduct of the accused after the occurrence shows the
deliberateness in his action. If it was accidental as pleaded, the normal
reaction after the gun shot would have been to save the deceased and not to
cause disappearance of his dead body by carrying it in gunny bag and throwing
it into a well. These factors clearly establish that the gun was fired
deliberately with clear intention to kill the deceased.
80 IPC is a part of Chapter IV IPC dealing with "General Exceptions".
The "general exceptions" contained in Sections 76 to 106 make an
offence a non-offence. The "general exceptions" enacted by IPC are of
universal application and for the sake of brevity of expression, instead of
repeating in every section that the definition is to be taken subject to the
exceptions, the Legislature by Section 6 IPC enacted that all the definitions
must be regarded as subject to the general exceptions. Therefore, general
exceptions are part of definition of every offence contained in IPC, but the
burden to prove their existence lies on the accused.
80 protects an act done by accident or misfortunate and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution. The primordial requirement of
Section 80 is that the act which killed the other person must have been done
"with proper care and caution". In Bhupendrasinh A. Chaudasama v.
State of Gujarat (1998 (2) SCC 603) it was held by this Court that where the
accused shot his own colleague at close range without knowing the identity of
his target, the act smacked of utter dearth of any care and caution.
amount of care and circumspection taken by an accused must be one taken by a
prudent and reasonable man in the circumstances of a particular case. Where the
act of the accused is itself criminal in nature the protection under Section 80
is not available. If the accused pleads exception within the meaning of Section
80 there is a presumption against him and the burden to rebut the presumption
lies on him. (See K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605).
the evidence on record as substantiated by the testimony of PWs 2 and 3 shows
that the accused picked up the gun, unlocked it, loaded it with cartridges and
shot the gun from a close range of about 4/5 ft. aimed at his chest.
in view of unimpeachable evidence of PWs 2 and 3, Section 80 has no
to the plea of the applicability of Section 304A it is to be noted that the
said provision relates to death caused by negligence. Section 304A applies to
cases where there is no intention to cause death and no knowledge that the act
done in all probabilities will cause death. The provision relating to offences
outside the range of Sections 299 and 300 IPC. It applies only to such acts
which are rash and negligent and are directly the cause of death of another
person. Rashness and negligence are essential elements under Section 304A. It
carves out a specific offence where death is caused by doing a rash or
negligent act and that act does not amount to culpable homicide under Section
299 or murder in Section 300 IPC. Doing an act with the intent to kill a person
or knowledge that doing an act was likely to cause a persons' death is culpable
homicide. When the intent or knowledge is the direct motivating force of the
act, Section 304A IPC has to make room for the graver and more serious charge
of culpable homicide.
order to be encompassed the protection under Section 304A there should be
neither intention nor knowledge to cause death. When any of these two elements
is found to be present, Section 304A has no application. The accused- appellant
not only picked up the gun, unlocked it for user but also put the cartridges
and fired from very close range, aiming at a very vital part of the body.
background facts as highlighted above the inevitable conclusion is that Section
304A has no application.
decision in Sadhu Singh's case (supra) has no application because in that case
the evidence indicated that the gun was not aimed at the victim and there was
evidence of scuffle between the accused and the deceased. In the present case
though such plea was taken, it has not been substantiated. On the contrary the
evidence of PWs 2 and 3 shows that there was no scuffle as claimed by the
only other point which needs to be considered is whether Section 302 IPC has
been rightly made applicable.
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'
'murder' is 'culpable homicide' but not vice-versa.
generally, 'culpable homicide' sans 'special characteristics of murder is
culpable homicide not amounting to murder'. For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide.
first is, what may be called, 'culpable homicide of the first degree'. This is
the gravest form of culpable homicide, which is defined in Section 300 as
'murder'. The second may be termed as 'culpable homicide of the second degree'.
This is punishable under the first part of Section 304. Then, there is
'culpable homicide of the third degree'. This is the lowest type of culpable
homicide and the punishment provided for it is, also the lowest among the
punishments provided for the three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.
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 culpable homicide is murder caused
is done - if the act by which the death is caused is done –
the intention of causing (1) with the intention of death; or causing death; or
with the intention of causing (2) with the intention of such bodily injury as
is likely causing such bodily injury to cause death; or as the offender knows
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 KNOWLEDGE ****
the knowledge that the act (4) with the knowledge that is likely to cause
death. the act is so imminently dangerous that it must in all probability cause
death or such bodily injury as is likely to cause death, and without any excuse
for incurring the risk of causing death or such injury as is mentioned above.
(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 degrees 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 Anr. 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
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:
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. 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." 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
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.
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 locus classicus. The 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.
clause thirdly of Section 300 IPC, culpable homicide is murder, if both the
following conditions are satisfied:
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
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'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.
(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
other, 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 this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976
(4) SCC 382) and in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274).
at the scenario as described by PWs 2 and 3 and evidence of ballistic report,
in our considered view the offence committed by accused is covered by Section
304 Part II.
as the other convictions are concerned the conclusions of the trial Court and
the High Court do not warrant any interference. For the conviction under
Section 201 it has been established beyond even a shadow of doubt that dead
bodies were carried in a gunny bag. It was discovered on the basis of the
discovery statement in terms of Section 27 of the Indian Evidence Act, 1872 (in
short the 'Evidence Act') which is also relevant. The conviction is well
merited. So far as offence under Section 25 (1A) of the Arms Act is concerned,
the admitted position being that the gun belonged to the son of the appellant,
and that he had no license to hold the gun, the evidence has clearly made out
the offence. The District Magistrate, Kohlapur had accorded sanction under
Section 39 of the Arms Act for the prosecution. Therefore, the conviction under
Section 25 (1A) is also well merited. Custodial sentence of 8 years would meet
the ends of justice. The appeal is allowed to the extent indicated above.