Bhagwan Bahadure Vs. State of Maharashtra  Insc 981 (28 September 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 1304 OF 2007 (Arising out of SLP (Crl.) No. 3196 of 2006) Dr. ARIJIT
Challenge in this appeal is to the judgment of a Division Bench of the Bombay
High Court, Nagpur Bench upholding the conviction of the appellant for offence
punishable under Section 302 of the Indian Penal Code, 1860 (in short the
'IPC') and sentence of imprisonment for life and fine of Rs.1,000/- with
Background facts in a nutshell are as follows:
On 13th March, 2000 Bhagwan Bahadure came to Bhendala
and stayed with Kachrabai (hereinafter referred to as the 'deceased'), who was
residing with her mother Tuljabai (PW-7). In the morning, of the day of
incident, the appellant started quarrelling with the deceased on a flimsy
ground. The appellant asked her to accompany him to his house. It is alleged
that the appellant, who had a stick in his hand, assaulted the deceased by
means of the stick. The deceased fell down on the ground. The appellant gave a
blow with the stick on her head, whereby deceased suffered serious injuries and
became unconscious. The appellant thereafter threw the stick and ran away
towards bus stand. Sidharth (PW 1) witnessed the incident. He went to the
roadside for bringing a jeep to carry his mother to the hospital at Pauni. The
Medical Officer gave first-aid to the victim as the injuries were severe and
she was unconscious. The Medical Officer advised the family members to take her
to the Govt. Medical College, Nagpur. In the meanwhile, PW 1 lodged a report in the police
station against the appellant. Police registered a crime.
succumbed to the injuries on way to the hospital at Nagpur.
Considering the evidence of PWs 1,7 & 8, trial court found the evidence to
be credible and cogent and accepted the same. He did not find any substance in
the plea of the appellant that PWs 1 & 7 were related to the deceased and,
therefore, their evidence could not be acted upon. It also did not accept the
plea that offence under Section 302 IPC was not made out. Questioning the
correctness of the trial court's order, appeal was preferred before the High
Court which as noted above did not find any substance in the appeal.
stand taken before the trial court and the High Court was reiterated in this
Learned counsel for the State on the other hand supported the judgment.
shall first deal with the contention regarding interestedness of the witnesses
for furthering prosecution version. Relationship is not a factor to affect
credibility of a witness. It is more often than not that a relation would not
conceal actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In such cases,
the court has to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible.
8. In Dalip
Singh and Ors. v. The State of Punjab (AIR 1953
SC 364) it has been laid down as under:- "A witness is normally to be
considered independent unless he or she springs from sources which are likely
to be tainted and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely. Ordinarily a
close relation would be the last to screen the real culprit and falsely
implicate an innocent person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to drag in an innocent
person against whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact of relationship
far from being a foundation is often a sure guarantee of truth. However, we are
not attempting any sweeping generalization. Each case must be judged on its own
facts. Our observations are only made to combat what is so often put forward in
cases before us as a general rule of prudence.
is no such general rule. Each case must be limited to and be governed by its
above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu
Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose, J. it was observed:
are unable to agree with the learned Judges of the High Court that the testimony
of the two eyewitnesses requires corroboration.
foundation for such an observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their testimony, we know of no
is grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find,
however, that it unfortunately still persists, if not in the judgments of the
Courts, at any rate in the arguments of counsel."
Again in Masalti and Ors. v. State of U.P.
(AIR 1965 SC 202) this Court observed: (p. 209-210 para 14):
it would, we think, be unreasonable to contend that evidence given by witnesses
should be discarded only on the ground that it is evidence of partisan or
interested witnesses.......The mechanical rejection of such evidence on the
sole ground that it is partisan would invariably lead to failure of justice. No
hard and fast rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is partisan
cannot be accepted as correct."
the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera
and Ors. v. State of Orissa (2002 (8) SCC 381).
The above position was highlighted in Babulal Bhagwan Khandare and Anr. V.
State of Maharashtra [2005(10) SCC 404] and in Salim Saheb
v. State of M.P. (2007(1) SCC 699).
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 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.
299 Section 300 A person commits culpable homicide Subject to certain
exceptions if the act by which the death is caused is done- culpable homicide
is murder 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.
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
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" means 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.
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:
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.
are purely objective investigations.
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. 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
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
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
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 (JT 2002 (6) SC 274), and Augustine
Saldanha v. State of Karnataka (2003 (10) SCC 472) and Thangaiya
v. State of Tamil Nadu (2005 (9) SCC 650).
Keeping the aforesaid legal principles in view, the factual position is to be
examined. It cannot be said as a rule of universal application that whenever
one blow is given Section 302 IPC is ruled out. It would depend upon the facts
of each case. The weapon used, size of the weapon, place where the assault took
place, background facts leading to the assault, part of the body where the blow
was given are some of the factors to be considered.
Considering the background facts involved, the appropriate conviction would be
under Section 304 Part I IPC, and conviction is accordingly altered. Custodial
sentence of 10 years would meet the ends of justice.
The appeal is allowed to the aforesaid extent.
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