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2005 DIGILAW 82 (UTT)

Tej Singh v. State

2005-03-18

IRSHAD HUSSAIN, RAJESH TANDON

body2005
Judgment (Per Hon'ble Mr. Rajesh Tandon, J) 1. This is an appeal against the judgment and order dated 17-06-2002 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 36 of 2001 State V. Tej Singh convicting the accused/appellant under Section 302 I. P.C. and sentencing him to undergo imprisonment for life. 2. Briefly stated, the facts giving rise to the present appeal are that complainant Narain Singh lodged a report on 23rd May, 2001 at about 12:30 p.m. before Patwari Pankhu alleging that on 23-05-2001 at about 6 a.m. accused Tej Singh committed murder of his grand-father Dan Singh. On the basis of written report Exhibit Ka-2 Chick F.I.R. was prepared by the Patwari and started investigation of the case. During the investigation, he visited the place of occurrence and prepared site plan. He held inquest of the dead body, prepared Panchayat Nama Exhibit-Ka 3 and sent the dead body for post-mortem examination and after completing investigation, submitted charge-sheet against the accused. 3. Accused was charged under Section 302 I.P.C. He pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined PW1 Smt. Chandra Devi, PW2 Dr. H.C. Pathak, PW3 Motima Devi, PW4 Naraln Singh, PW5 Pratap Singh, PW6 Bishan Singh and PW7 Madan Mohan Pant. 4. PW2 Dr. H.C. Pathak conducted post mortem examination on the dead body of the deceased Dan Singh. He found following ante mortem injuries:- (i) Lacerated wound over scalp :- (a) 10.5 x .5 brain deep. Over Right outer scalp; extending posteriorly from root of nose; involving postal, parietal region; brain matter coming out of it. (b) 10 x 3 cm. brain deep 3 cm above post part of (i) A; involving parietal region; brain matter coming out of it. (ii) Lacerated wound over right middle zone; medial to molar prominence and 3 cm lateral to nose; area 5 x 3 cm, surrounding bruised. (iii) Lacerated wound over left upper outer zone; (outer forehead) 2 cm away from left eye; surrounding bruised. Size 7 x 2 cm. 5. In the opinion of Doctor, the death was caused due to ante mortem injuries. 6. On the basis of the evidence adduced by the prosecution, the learned Sessions Judge held the accused guilty for the offence punishable under Section 302 I.P.C. and convicted and sentenced him as stated above. Feeling aggrieved the present appeal has been filed. 7. 5. In the opinion of Doctor, the death was caused due to ante mortem injuries. 6. On the basis of the evidence adduced by the prosecution, the learned Sessions Judge held the accused guilty for the offence punishable under Section 302 I.P.C. and convicted and sentenced him as stated above. Feeling aggrieved the present appeal has been filed. 7. We have heard the learned counsel for the appellant and have gone through the judgement of the learned Sessions Judge and evidence on record. 8. This is a case of direct evidence. The prosecution case is based upon the evidence of eye-witnesses PW1 Smt. Chandra Devi and PW3 Smt. Motima Devi. PW1 Smt. Chandra Devi is the wife of deceased and grand-mother of the accused/appellant. She has stated that on the day of occurrence accused was trying to take money from the pocket of deceased Dan Singh. Dan Singh slapped him and thereafter Dan Singh came to the courtyard, witnesses were also sitting in the courtyard. The accused thereafter gave a blow of wooden board on the head of the deceased, due to which Dan Singh succumbed to the injuries instantaneously. Accused was arrested by the Patwari on the same day. 9. PW3 Motima Devi supported the statement of Smt. Chandra Devi stating that when she asked the accused as to why he struck his grand-father, the accused fled away. This witness is the neighbored of deceased Dan Singh. PW4 Narain Singh, PWS Pratap Singh and PW6 Bishan Singh were also examined by the prosecution. These witnesses are not the eye-witnesses of occurrence but they reached the spot just after the occurrence on hearing hue and cry. 10. In view of the evidence on record, the learned counsel for the appellant has not disputed the occurrence. He submitted that the prosecution version itself goes to show that accused appellant Tej Singh gave only one blow of wooden board on the head of deceased Dan Singh, who was his grand father under passion of heat and he has no intention to cause murder of his grand father and thus the offence of the appellant is culpable homicide not amounting to murder and is punishable under section 304 Second part of the Indian Penal Code. 11. Let us examine the offence of the appellant on the basis of academic distinction between murder and culpable homicide not amounting to murder. 12. 11. Let us examine the offence of the appellant on the basis of academic distinction between murder and culpable homicide not amounting to murder. 12. The Apex Court in (2004) 9 SCC 37 State of U.P. vs. Virendra Prasad, has distinguished the two offences illustrated under section 299 and 300 I.P.C. as under: 7. 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 Subject to certain exceptions Homicide if the act by which culpable homicide is murder the Death is caused is done- if the act by which the, death is caused is done- Intention (a) with the intention of causing (1) with the intention; death; or of causing death; or (b) with the intention of causing (2) with the intention such bodily injury as is likely to of causing such bodily injury 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 (c) with the knowledge that the (4) with the knowledge that the act is likely to cause death. act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of-of causing death or such injury as is mentioned above. 8. Clause (b) of Section 299 corresponds with clause (2) and (3) of Section 300. act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of-of causing death or such injury as is mentioned above. 8. Clause (b) of Section 299 corresponds with clause (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 as 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. 13. In the case of Virsa Singh vs. State of Punjab 1958 SCR 1450 the apex Court held as follows :- 12. Once that is found, the enquiry shifts to the next clause- "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the. intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining- "and the bodily injury intended to be inflicted" is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. 14. The Apex Court after placing reliance on the Virsa Singh case, laid down in the case of State of U.P. vs. Virendra Prasad (2004) 9 SCC 37 as under: 15. Thus, according to the rule laid down in Virsa Singh case2 even if the intention of the 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. 16. 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. 15. 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. 15. Thus in view of the settled principles of law, we have to see whether in the present case, accused Tej Singh inflicted injury to the deceased with the intention to cause his death or the injury was caused without probability of causing death. 16. Deceased Dan Singh was the grand father of accused Tej Singh. P.W.1 Chandra Devi, who is the grand mother of the accused stated on oath that the accused was habitual to take money from his home. When the accused tried to pick up money from the pocket of the deceased, he gave him a slap due to which the accused felt annoyance and gave a blow of wooden board on the head of deceased. She stated as under: 17. From the testimony of P. W.1 Chandra Devi it is clear that accused had no intention to cause death of his grand father. It appears that the accused had developed wrong habits and he used to take money from his grand father to meet his requirements. On the day of incident when he tried to pick out money from the pocket of deceased Dan Singh, deceased gave him a slap due to which under sudden passion of anger accused gave a blow of wooden board on the head of deceased who was an old person. Thus from the act of the accused it appears that although the accused had no intention to cause the death of the deceased but he had knowledge that such a severe blow on the vital part of the body might cause the death of a person. Absence of intention to cause death coupled with the lack of knowledge that death would inevitably be caused on account of the injury would make the offence to fall only under section 304, Part II, and not under section 302 I.P.C. 18. In Camilo Vaz, v. State of Goa, 2000 CRI. L.J. 1816 the Apex Court has held that knowledge that Danda blow was likely to cause death has not to be imputed to accused. In Camilo Vaz, v. State of Goa, 2000 CRI. L.J. 1816 the Apex Court has held that knowledge that Danda blow was likely to cause death has not to be imputed to accused. Their Lordships have held as under: "There was no material on record which showed that appellant was bent upon killing Simon and "eventually death came out to be the result". This is merely a surmise of the High Court. Section 304 is as under : "304. Punishment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations : (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation the case will fall in Part II of Section 304 IPC as in the present case. We are also not oblivious of the fact that the other four accused who were similarly convicted with the appellant with the aid of Section 149 IPC have been held guilty only for offence under Section 326 IPC. " 19. In that situation the case will fall in Part II of Section 304 IPC as in the present case. We are also not oblivious of the fact that the other four accused who were similarly convicted with the appellant with the aid of Section 149 IPC have been held guilty only for offence under Section 326 IPC. " 19. Similar proposition of law has been laid down in the case K. Ramakrishnan Unnithan v. State of Kerala 1999 CRI. L.J. 2101. In this case accused gave a single blow, which was quite severe as a result of which intestine of deceased protruded. Accused has no animosity towards the deceased. Scenario at the time of occurrence not showing that he had intention or requisite knowledge to cause murder. Therefore, the Hon'ble Supreme Court held the accused guilty of the offence under section 304 Part (II) IPC instead of section 302 IPC. 20. In view of proposition of law narrated above we hold that the accused did not commit the offence under section 302 but under Part II of section 304 of the Indian Penal Code. We accordingly set aside the conviction of the appellant under section 302 IPC and instead, convict him under section 304, Part II. 21. The maximum sentence provided under this section is ten years imprisonment or with fine or with both. The accused is, therefore, sentenced to undergo imprisonment for six years. The appellant shall be entitled to remission of the period of sentence already undergone. 22. The appeal stand allowed to the extend mentioned above. Let the record of the case along with a copy of this order be sent to the trial Court for compliance.