Rajinder
Vs. State of Haryana [2006] Insc 347 (5 June 2006)
Arijit
Pasayat & C.K. Thakker
(Arising
out of SLP (Crl.) No. 385 of 2006) ARIJIT PASAYAT, J.
Leave
granted.
Appellant
calls in question legality of the judgment rendered by a Division Bench of the
Punjab and Haryana High Court dismissing the appeal filed by the appellant,
upholding the conviction recorded and sentenced imposed on the appellant by
learned Additional Sessions Judge, Hissar, for alleged commission of offences
punishable under Section 302 of the Indian Penal Code, 1860 (in short 'IPC')
and Section 27 of the Arms Act 1959, (in short the 'Arms Act'). The appellant
was convicted for the offence punishable under Section 302 IPC and sentenced to
undergo RI for life and to pay a fine of Rs.10,000/- with default stipulation.
He was also convicted in terms of Section 27 of the Arms Act and was sentenced
to undergo RI for one year and to pay a fine of Rs.500/ with default
stipulation.
Background
facts in a nutshell are as follows:
Vishnu
Ram (PW-8) followed agricultural pursuits at village Tharwa. His elder brother Prithi
Raj lived separately from him. Subhash (hereinafter referred to as the
'deceased') was the son of said Prithi Raj. About 1= years prior to this
occurrence, the police had recovered poppy husk from appellant - Rajinder. He
suspected that deceased had given secret information to the police and he had a
hand in getting the poppy husk, recovered from him. Then in the year 1995, Prithi
Raj had taken 10 acres of land on lease from Indal Kumar, brother of appellant-Rajinder.
Rajinder took ill of it.
On
29.4.1995 at about 7.00
p.m., Vishnu Ram
(PW-8) and deceased were going to irrigate their fields. Appellant met them on
the village phirni. He declared that deceased had given information to the
police regarding the poppy husk and Prithi Raj had taken on lease the land of
his brother and they shall have to pay price for the same. Vishnu Ram (PW-8)
pacified appellant and he left for the village. Then later at about 9.15 p.m. Vishnu Ram (PW-8) and deceased were going through
their fields looking after the water course. Vishnu Ram (PW-8) had a torch with
him. When they reached on the culvert by the side of the village near the road
leading to village Pirthala and deceased was walking ahead of Vishnu Ram
(PW-8), appellant was spotted in the torch light coming from the village side.
He was armed with his gun. He enquired from Vishnu Ram (PW-8) and deceased as
to who they were.
Vishnu
Ram disclosed his own identity and identity of Subhash. Then appellant raised a
'lalkara' saying that he will teach a lesson to them for giving secret
information to the police and for taking the land on lease. He then fired a
shot at Subhash with his gun, which hit on his right thigh. Subhash fell down
on the ground. Vishun Ram (PW-9) raised alarm.
Appellant
then ran away towards his house by firing shots from the gun. Prithi Raj, elder
brother of Vishnu Ram (PW-8) reached the spot on hearing the alarm. A
conveyance was arranged and Vishnu Ram and Prithi Raj took Subhash to Tohana
for treatment.
Dr.
H.L. Gupta (PW-9) on 29.4.1995 at 10 a.m. medically examined the injured. He found the following injury on his
body:
-
"A fire arm
wound on the right thigh-wound of entry circular in shape 1
Margins
were greasy and black.
Wound
of exit-large extensive would 1= x 4" on the atereo-medial aspect of right
thigh (at middle). There were severe bleeding from the wound and margins were everted.
There was corresponding tears in the pant.
There
was corresponding tear in the pant. Pant Ex.P16 was sealed by the doctor into a
parcel and it was given to the police. " The doctor opined that the injury
was dangerous to life. Its duration was fresh and it was caused by a fire-arm. Ex.PK
is copy of the M.L. report. Dr. H.L. Gupta had sent ruqas Ex.PM and PL to the
police.
Subhash
Chander (PW-14) SI/SHO Police Station Tohana on the night intervening
29/30.4.1995 received two ruqas Ex.PL and PM from Civil Hospital, Tohana. He then went to Civil Hospital Tohana along with
other police officials. Ruqas were accompanied by copy of M.L. report of Subhash.
Vishnu Ram complainant met PW Subhash Chander SI in the hospital. His
statement Ex.PD was recorded. He made his endorsement Ex.PD/2 and got his case
registered. Ex.PD/1 is the copy of the FIR.
Subhash
succumbed to the injury in the hospital. His dead body was lying on the trolly
in the gallery of the hospital, when Subhash Chander SI visited the hospital.
He prepared Inquest Report Ex.PH on the dead body of Subhash. Inquest
proceedings were attested by Vishnu Ram and Prithi Raj.
Application
Ex.PQ was sent through Om Parkash Constable for getting the post mortem
examination conducted on the dead body of Subhash.
On
30.4.1995 at 8.30 a.m., Dr. B.B.Lala (PW-10) conducted
post mortem examination on the dead body of Subhash, who had expired on
29.4.1995 at 11.50 p.m. in the hospital.
On
completion of investigation charge-sheet was filed and the accused was charged
for alleged commission of offence punishable under Section 302 IPC and Section
27 of the Arms Act.
Prosecution
examined 14 witnesses. PW-8 was stated to be eye-witness. Accused pleaded
innocence and false implication. Before the High Court the stand of the accused
was that there was delay in sending the first information report. The alleged
motive for commission of offence is not established and in any event there was
only one injury that too on the thigh and, therefore, the case is not covered
under Section 302 IPC. As noted above Trial Court found the accused guilty and
convicted and sentenced him. In the appeal before the High Court, the plea
raised before the Trial Court was reiterated before the High Court. The
prosecution supported the order of conviction as recorded by the Trial Court.
The High Court on consideration of rival stands held that the conviction as
recorded and sentenced as awarded do not suffer any infirmity. The appeal was
accordingly dismissed.
In
support of the appeal learned counsel for the appellant submitted that scenario
as depicted clearly rules out application of Section 302 IPC. At the most even
if prosecution version is accepted in toto the conviction could be under
Section 326 IPC. It is submitted that accused has already suffered custody for
more than 6 years and 8 months.
Learned
counsel for the State on the other hand supported the impugned judgment.
The
crucial question is 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 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.
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 of distinction between the two offences.
Section
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 –
INTENTION
-
with 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 ****
-
with 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.
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 aspect 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 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 to cause death" 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.
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 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 offender.
The
ingredients 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
learned 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 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. 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 was the
injury that was intended to be inflicted.
Thus,
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. Illustration (c) appended to
Section 300 clearly brings out this point.
Clause
(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 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), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (2002 (7) SCC 175), Augustine Saldanha
v. State of Karnataka (2003 (10) SCC 472) and in Thangiya
v. State of T.N. (2005 (9) SCC 650).
When
the factual background is tested on the principles set out above, the
inevitable conclusion is that the conviction under Section 302 IPC cannot be
maintained and the conviction has to be in terms of Section 304 Part II IPC.
Custodial
sentence of 7 years would meet the ends of justice.
The appeal
is allowed to the aforesaid extent.
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