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2009 DIGILAW 1260 (DEL)

LIAQAT ALI v. STATE OF N. C. T. DELHI

2009-11-10

AJIT BHARIHOKE, SANJAY KISHAN KAUL

body2009
JUDGMENT SANJAY KISHAN KAUL 1. The appellant though having a good motive of preventing drug consumption used wrong means by inflicting knife injuries on the deceased and causing his death, which has resulted in order of conviction under Section 302 IPC in terms of the judgment dated 5.4.1995 as also of conviction under Section 27 of the Arms Act and on being sentenced to life imprisonment under Section 302 IPC and to pay a fine of Rs.1,000/-, or in default of payment of fine, to undergo RI for three months and for the offence under Section 27 Arms Act to undergo RI for a period of one year and to pay a fine of Rs.500/-and in default of payment of fine, to undergo further RI for one month, has preferred this appeal. 2. Briefly put, case of prosecution is that that on the fateful morning of 26.06.88 at about 7:00 a.m., some boys were taking smack in front of the shop of the complainant and mohalla people were forbidding them from taking smack in the market. In the meanwhile, the deceased Ajay @ Bille reached there and announced that nobody should prevent anyone from taking smack if he wishes to do so. On this, the appellant Liaqat Ali intervened and stated that nobody would be allowed to take smack in the market. This resulted in an altercation and the appellant and the deceased Ajay grappled with each other. The complainant Parvez intervened in that altercation. All of a sudden, the appellant Liaqat fetched a knife from the shop of Parvez and inflicted a knife injury on the shoulder of Parvez and thereafter gave few blows on the chest and back of the deceased Ajay. As a consequence, Parvez suffered simple injury and the injuries inflicted upon the person of Ajay proved to be fatal. 3. Learned counsel for the appellant has submitted that the learned Trial Court has found the appellant guilty on the basis of eye witness account given by PW2 Ram Avtar and PW3 Kundan Lal, which is partly corroborated by testimony of PW1 Parvez, the complainant. He has submitted that from the testimony of PW2 and PW3, it is apparent .that the appellant was not carrying any arm with him. He has submitted that from the testimony of PW2 and PW3, it is apparent .that the appellant was not carrying any arm with him. The incident took place suddenly without any pre-meditation when the appellant was trying to prevent taking of smack by some boys( an illegal act) in the market and the deceased Ajay opposed the stand of the appellant by challenging that anyone who wanted to take smack could do so. He has pointed out that it has come in evidence that complainant Parvez also intervened in the altercation and the appellant in the heat of moment fetched a knife from the shop of the complainant Parvez and stabbed him as well as the deceased, resulting in simple injury to the complainant Parvez and death of the deceased. On the basis of aforesaid facts, learned counsel for the appellant has argued that the case of the appellant does not fall within the purview of Section 300 IPC and the offence committed by him amounted to culpable homicide not amounting to murder punishable under Section 304 Part I IPC. 4. In order to appreciate the contention of learned counsel for the appellant, it would be fruitful to have a look on the law relating to culpable homicide. The distinction between two types of culpable homicide i.e. murder and culpable homicide not amounting to murder has been beautifully drawn by Hon’ble Justice Sarkaria in leading case State of A.P. Vs. Rayavarappu Punnayya, AIR 1977 SC 45 . The relevant portion of the judgment is reproduced below: “13. In the scheme of the Penal Code, 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 this generic offence, the Code practically recognises 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 1st part of Section 304. Then, there is culpable homicide of the third degree. 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 1st 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. 14. The academic distinction between murder and culpable homicide not amounting to murder has vexed the courts for more than a century. 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 key words 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, culpable homicide if the act by which the homicide is murder if the act by which death is caused is done -the death is caused is done INTENTION a) With the intention of causing 1) with the intention of causing death; or death; or 2) with the intention of causing such b) With the intention of causing bodily injury as the offender knows to such bodily injuries as is likely to be likely to cause the death of the cause death; or 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 so act is likely to cause death 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 of such injury as is mentioned above. 15. 15. Clause (b) of Section 299 corresponds with cls. (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 intentional 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 offenders 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. 16. 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. 17. 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. 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. 18. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional-bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and am. v. State of Kerala A.I.R. 1966 S.C. 1874 is an apt illustration of this point. 19. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465 Vivian Bose J. speaking for this Court, explained the meaning and scope of Clause (3), thus (at p. 1500) : The prosecution must prove the following facts before it can bring a case under Section 300, 3rdly. 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. 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. 20. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 20. Thus according to the rule laid down in Virsa Singhs case (supra) 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. 21. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the 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. 22. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima jade found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is [the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder contained in Section 300. This is [the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on. whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the First Part of Section 304, Penal Code. 23. 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 inter-twined 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. 34. In that case, the existence of both these elements was clearly established by the prosecution. There was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions since long. Both the factions had been proceeded against under Section 107, Cr. P.C. The accused had therefore a motive to beat the deceased. The attack was premeditated and pre-planned, although the interval between the conception and execution of the plan was not very long. The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him. They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones, mostly major bones, and dislocating two more. The beating was administered in a brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. The beating was administered in a brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, was a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof. Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders-all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of Clause Thirdly of Section 300 had been cogently and convincingly established.” 5. In the light of the above enunciated principle of law, on analysis of the factual matrix of this case, certain aspects that come to the fore are that the incident took place because of a sudden altercation between the appellant and the deceased when the appellant took a stand that nobody would be permitted to take smack in the market and the deceased took the opposite stand that anyone who wished to take smack was within his right to do so. It is also apparent from the evidence on record that the appellant was not carrying any arms and in the heat of moment, he had brought the knife from the shop of PW1 Parvez who also intervened in the altercation. Thus, this is not a case in which it can be said that the appellant had inflicted injuries on the person of the deceased with the intention to kill him or that he had the intention to cause such bodily injuries to the deceased which would be sufficient to cause death in the ordinary course of nature. Thus, this is not a case in which it can be said that the appellant had inflicted injuries on the person of the deceased with the intention to kill him or that he had the intention to cause such bodily injuries to the deceased which would be sufficient to cause death in the ordinary course of nature. In the given factual matrix, it appears that the appellant, who was trying to prevent some boys from committing an illegal act of taking smack got provoked by the uncalled for interference and encouragement given by the deceased to those boys to take smack and in a fit of anger, he picked up the knife from the shop of complainant Parvez and inflicted knife wounds on the person of the deceased. From the above factual position, it is difficult to infer that the appellant actually took undue advantage of the situation or he even acted in a cruel manner. It is apparent from the facts of this case that in a fit of anger, because of improper act of the deceased Ajay in encouraging the boys to take smack, appellant lost his sense of discrimination and gave knife blows to the deceased, which blows unfortunately fell on chest and back of the deceased and proved to be fatal. Therefore, in our view, the act of the appellant is covered by the Fourth Exception to Section 300 IPC. Therefore, he is not guilty of murder, and his wrongful act amounts to culpable homicide not amounting to murder. Thus, the conviction of the appellant under Section 302 IPC is not sustainable. It is accordingly modified and converted into conviction under Section 304 Part I IPC. However, conviction of the appellant under Section 27 Arms Act is maintained. 6. We have heard learned counsel for the respective parties on the point of sentence. While sustaining the sentence awarded under Section 27 of the Arms Act, we feel that a sentence of 10 years imprisonment for the offence punishable under Section 304 Part I IPC shall suffice in the present case. Both the sentences shall run concurrently. Needless to say that the appellant will get benefit of Section 428 Cr.P.C. and in case he has already served the complete sentence and is not wanted in any other case, appellant shall be released forthwith. 7. The appeal is accordingly partially allowed to the aforesaid extent.