Settu
& Ors Vs. State of Tamil Nadu [2006] Insc 516 (22 August 2006)
Arij1t
Pasatat & Lokeshwar Singh Panta
J U D
G M E NT
(Arising
out of S.L.P. (Crl.) No. 267 of 2006) ARIJIT PASAYAT, J.
Leave
granted.
Heard
learned counsel for the parties.
Appellants
call in question legality of the judgment rendered by a Division Bench of the
Madras High Court confirming conviction of each of the appellants and
imposition of sentence as done by the learned Additional Sessions Judge Vellore.
While appellant Nos.1 and 2 were convicted for offence punishable under Section
302 of the Indian Penal Code, 1860 (in short the IPC), appellant No.3 was
convicted for offence punishable under Section 302 read with Section 34 IPC.
The
trial Court held that the prosecution had established the accusations that on
22.8.1995 at 6.00 P.M. the appellants caused injuries to Ramesh (hereinafter
referred to as the 'deceased') by cutting him with knife and pichuvas and as a
result of the said injuries, the deceased breathed his life at about 3.2O P.M.
on 29.8.1995 at Christian Medical College Hospital, Vellore while undergoing
treatment. The further allegation against appellant No.2 was that during the
incident he caused injuries to Babu (PW-12). Appellant No.2 was accordingly
found guilty of offence punishable under Section 324 IPC and sentenced to one
year rigorous imprisonment.
The
factual position as highlighted by the prosecution during trial essentially as
follows:
Chandru
(P.W.1) is the elder brother of the deceased and Babu (P.W.12) was his friend.
On 22.08.1995 at about 3.30
p.m. Babu (P.W.12) met
the deceased, at the bus stop near Sankaranpalayam and deceased was seen with
blood-stained injuries. Babu (P.W.12) questioned him as to what happened.
Deceased
informed him that appellant Nos.1 to 3 and another had beaten him. Babu
(P.W.12) took the deceased to the hospital, where he was given treatment.
Later, the deceased gave a complaint at the Police Station. P.W.12 and the
deceased were returning to their village via Sankaranpalayam.
While
they were at the college road, appellant Nos.1 to 3 were seen standing with
weapons in their hands. On seeing the deceased, the appellant No.1, removing a
knife, which he had kept concealed, cut him on the left side of the head, which
caused an injury on the left eyebrow. He was also inflicted an injury on the
right ear by the said appellant. The deceased fell down. The appellant No.1,
once again inflicted cut on the head of the deceased. The appellant No.2 cut
the deceased on his back as well as on his right knee. P.W.12 intervened and he
also sustained injury on account of the assault by the appellant No.2, which
warded off. P.W.12 suffered an injury on the right wrist. The appellant No.3
beat the deceased on the right hand causing grievous injury. The occurrence was
witnessed by P.W.12 and by P.W.1, the elder brother of the deceased, who had
come to the scene of occurrence in search of his brother on hearing about the
earlier occurrence, which took place at about 3.30 p.m., as well as by P.Ws 2 to 8. The deceased was taken to the Government Hospital at Veliore, where he was examined by the Casualty Medical
Officer (P.W.19) at 7.10
p.m. The doctor found
the following injuries:
1.
A laceration on
the left eyebrow with force.
Fracture
frontal sku11 5X 1/2 X 1/2 deep.
2.
A laceration on
the right forehead 5 X 1/2 X 1/2 cm.
Ex.
P.14 is the wound certificate. In the meantime P.W. 12 appeared before P.W.20,
the Sub-Inspector of Police of Vellore South Police Station and gave a
complaint, which was reduced into writing. The said complaint is Ex. P.4. On
the complaint (Ex. P.4) P.W.20 registered a crime in Crime No.900 of 1995 under
Sections 326 and 323 I.P.C. Investigation was taken up by P.W.20.
P.W.20
reached the scene of occurrence and examined witnesses. As there was no
sufficient light at the place, he returned to the police station. In the
meantime, P.W.12, who had suffered injury was referred to the hospital and was
examined by P.W.19. The doctor found an abrasion on his right wrist measuring 1
X 1/8 cm. P.W.12 complained of pain in his arm. Ex. P.15 is the wound
certificate issued by the Doctor. The bloodstained earth and sample earth,
M.Os.9 and 10 were seized under a mahazar Ex. P.19. He went to Christian Medical College Hospital, where the deceased was sent from Government Pentland Hospital, Veilore, but he could not record
the statement of injured Ramesh as he was unconscious. P.W.20 seized M.O.5 banian
and M.O.6 pant, of the deceased Ramesh under a mahazar Ex. P.3. He searched for
the appellants and arrested appellant Nos. 2 and 3 at about 1.0O p.m. on
24.8.95 when they were near Bagayam bus stand. They were questioned. The
appellant No.2 gave a statement and in pursuance of the admissible portion (Ex.
P. 2O) given by him, and on production by him knife and two sticks M.O. 8
series, were seized under a mahazar, (Ex. P.21).
On
24.8.95, investigation in the crime was taken up by P.W. 21, the Inspector of
Police. On 4.9.1995 appellant No.1 was arrested and on the basis of his
statement a knife was recovered.
After
completion of investigation Investigating Officer filed charge sheet and the
accused persons were sent up for trial.
In
order to further its version prosecution examined nine witnesses. Out of them, PWs
2 to 8 made departure from the statement given during investigation. Therefore,
prosecution relied upon the evidence of PWl and PW12. The trial Court held that
the evidence of these two witnesses was cogent, credible and trustworthy and
accordingly recorded the convictions and imposed sentence as noted earlier.
The
accused persons preferred an appeal before the High Court which as noted supra
was dismissed by the impugned judgment.
Learned
counsel of or the appellants submitted that the prosecution version is not
credible, cogent and is essentially unreliable. The evidence of PWs. 1 and 12
has not been analysed carefully because former was the elder brother of the
deceased while the later was his friend. Additionally, the scenario as
described by the prosecution clearly rules out application of Section 302 IPC.
So far as appellant No.3 is concerned, the prosecution version is to the effect
that he assaulted on the right leg and not on any vital part. The Doctor PW13
has clearly indicated that the injuries which were stated to be fatal injuries were
lacerated injuries.
In
response, learned counsel for the respondent-State supported the judgment of
the trial court and the High Court.
According
to him the concurrent finding of fact recorded by the courts below should not
be interfered with.
The evidence
of PWs 1 and 12 have been analysed in great detail by the trial Court and the
High Court. The same has been rightly held to be cogent and credible.
This
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'. For 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. 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 punishment for the three grades.
Culpable homicide of this degree is punishable under the second part of Section
304.
The
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 distinction between the two offences.
Section
299 Section 300 A person commits culpable homicide if the act by which the
death is caused is done Subject to certain exceptions culpable homicide is
murder if the act by which the death is caused is done –
INTENTION
-
with the
intention of causing death; or
-
with the
intention of causing death; or
-
with the
intention of causing such bodily injury as is likely to cause death; or
-
with the
intention of causing such bodily injuries as the offender knows to be likely to
cause the death of the person to whom the harm is caused; or
-
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
-
with the
knowledge that the act is likely to cause death.
-
with the
knowledge that 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.
Clause
(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 of Clause (2) is borne out by
illustration (b) appended to Section 300.
Clause
(b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases of 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
of 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.
For
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 point.
In 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 acts 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 proceeded further, and fourthly it must be proved that the injury of
the type just described made up 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 offender.
The
ingredient of clause "Thirdly" of Section 300, IPC were brought out
by the illustrious Judge in his terse language as follows:
-
"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." The leaned
Judge explained the third ingredient in the following words (at page 468):
"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 opposite conclusion." These observations of Vivian Bose, J.
have come 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. Under clause thirdly of Section
300 IPC, culpable homicide is murder, if both the following conditions are
satisfied: i.e.
-
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
-
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 the injury that was
intended to be inflicted.
Thus,
according to the rule laid down in Virsa Singh's case, eve 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.
Clause
(c) of Section 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 aforesaid.
The
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.
The
position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976
(4) SCC 382) and recently in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (2002 (7) SCC 175) and in Thangaiya
v State of Tamil Nadu (2005 (9) SCC 650).
The
factual scenario is examined in the back ground of the legal principles set out
above. The conclusion is that the appropriate conviction would be in terms of
Section 302 IPC so far as appellant No.1 is concerned. The appeals stands
dismissed so far as he is concerned. It is the prosecution case that the fatal
injuries are attributable to him. He had assaulted the deceased with a knife
which was concealed by him. Taking note of the weapon used by the appellants
and the place where injuries were inflicted, appellant No.2 has to be convicted
under Section 304 Part I IPC. So far as appellant No.3 is concerned, he is to
be convicted in terms of Section 326 IPC. The conviction of appellant No. 2 in
terms of Section 324 IPC is in order. The custodial sentence of 10 years would
meet the ends of justice so far as appellant No.2 is concerned.
For
appellant No.3, the custodial sentence would be three years rigorous
imprisonment. The sentence awarded by the trial court as affirmed by the High
Court so far as appellant No.2 is concerned in respect of his conviction in
terms of Section 324 IPC remains unaltered. The two sentences imposed on him
shall run concurrently. The appeal is allowed to the aforesaid extent, so far
as appellant Nos. 2 and 3 are concerned.
In
view of the disposal of the appeal itself, no orders are necessary to be passed
in miscellaneous petitions.
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