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2021 DIGILAW 159 (RAJ)

Kala v. State of Rajasthan

2021-01-20

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT : Sandeep Mehta, J. 1. The appellant herein has been convicted and sentenced as below vide judgment dated 04.05.2015 passed by the learned Additional Sessions Judge No. 4, Udaipur in Sessions Case No. 92/2014 (363/2014) (C.I.S. No. 1181/2014): Offence Sentences Fine Fine Default sentence Section 302 IPC Life Imprisonment Rs.5,000/- 2 Months’ R.I. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: 4. The appellant happens to be the husband of the deceased Smt. Sajki. The incident took place on 18.08.2014 wherein, it is alleged that after hot verbal exchanges between the appellant herein and Sajki on the issue as to why, she had sent the children to do labour jobs, the appellant inflicted lathi blows to Smt. Sajki as a result whereof, she fell down. The first informant Mugla (brother of the deceased) accompanied with Narsa, Mansha and Vaja, reached the place of occurrence and on seeing them, the accused appellant ran away into the jungle. Sajki was lying outside the house with the mark of injuries near the left ribs, the abdominal area and on the right thigh. The first informant checked his sister for signs of life but realised that she had passed away. A written report with these allegations was submitted by Mugla (PW-5) at the Police Station Bekariya, District Udaipur on 18.08.2014 at 04.00 pm. whereupon, FIR No. 92/2014 was registered for the offence under Section 302 IPC and investigation was commenced. 5. The body of Smt. Sajki was subjected to autopsy by a panel of doctors at the Public Health Center, Malwa Ka Chhora, Udaipur who noted the following abrasions and bruises on the dead body: (i) abrasion measuring 4 X 2 cms. on left side of abdomen, (ii) abrasion measuring 2 X 1 cms. on the right knee, (iii) bruise measuring 5 X 2 cms. on the left side of abdomen, (iv) bruise measuring 12 X 5 cms. over anterolateral aspect of right thigh lower 2/3rd, (v) bruise measuring 10 X 5 cms. over anterolateral aspect of upper 1/3rd of left thigh. On opening the dead body, the abdomen was found to be distended and 1½ liters clotted blood was found in peritoneal cavity. There was laceration measuring 2 X 2 cms. over anterolateral aspect of right thigh lower 2/3rd, (v) bruise measuring 10 X 5 cms. over anterolateral aspect of upper 1/3rd of left thigh. On opening the dead body, the abdomen was found to be distended and 1½ liters clotted blood was found in peritoneal cavity. There was laceration measuring 2 X 2 cms. deep present over the hilum of spleen. A foetus of 4 months was present in the uterus. The cause of death was opined to be shock due to antemortem bodily injuries which were sufficient in the ordinary course of nature to cause death. After usual investigation, charge-sheet came to be submitted against the appellant for the offence under Section 302 IPC in the court concerned. As the offence was exclusively Sessions triable, the case was committed to the court of Sessions Judge, Udaipur from where, it was transferred to the court of Additional Sessions Judge No. 4, Udaipur for trial. The trial court framed charges against the appellant for the offence under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses and exhibited 25 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, denied the same, claimed to have been falsely implicated but did not lead any defence evidence. On conclusion of the trial, the learned trial court proceeded to convict and sentence the appellant as above. Hence this appeal. 6. Shri J.V.S. Deora, learned counsel representing the appellant, did not question the finding of guilt recorded by the trial court against the appellant but advanced a solitary argument that the offence attributed to the appellant cannot travel to beyond Section 325 IPC. In this regard, he referred to the fact that in the FIR as well as in the evidence of the prosecution eye witnesses, it is clearly mentioned that the husband and the wife were quarreling with each other owing to the issue regarding their children having been sent to do labour jobs by the deceased. Thus, as per Shri Deora, the incident took place on the spur of the moment and after a heated argument. The injuries inflicted by the appellant to the deceased were superficial in nature and the appellant could not have had any knowledge that by inflicting such injuries, he could cause death of his wife Sajki. Thus, as per Shri Deora, the incident took place on the spur of the moment and after a heated argument. The injuries inflicted by the appellant to the deceased were superficial in nature and the appellant could not have had any knowledge that by inflicting such injuries, he could cause death of his wife Sajki. He thus urges that the conviction of the appellant deserves to be toned down from the charge under Section 302 IPC to the one under Section 325 IPC with suitable reduction in sentence. 7. Per contra, Shri Farzand Ali, learned AAG-cum-GA assisted by Shri Anil Joshi, Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the appellant brutally assaulted his pregnant wife by stones, lathi, etc. with such force that they resulted into rupture of spleen and also caused excessive bleeding in the peritoneal cavity leading to instantaneous death. He referred to the statement of the Medical Officer (PW-12) Dr. Yogesh Kumar who described the injuries found on the dead body of the victim and opined that the multiple injuries caused excessive haemorrhage to the extent of 1½ liters which resulting into shock and fatality. The doctor also opined that the injuries were sufficient in the ordinary course of nature to cause death. Thus, learned Public Prosecutor submitted that the trial court was absolutely justified in convicting the appellant for the offence under Section 302 IPC. 8. We have given our thoughtful consideration to the submissions advanced at bar and have minutely gone through the impugned Judgment and the record. 9. It is relevant to mention here that there is no allegation of any prosecution witness that the accused, at any point of time prior to the incident, used to treat his wife the deceased Sajki with cruelty on any account whatsoever. There is absolutely lack of evidence of motive. The FIR (Ex. P/4) came to be lodged by the brother of the deceased namely Mugla (PW-5) against the appellant in which, there is a categoric assertion that the appellant herein was heard telling his wife in a loud voice as to why she had sent their children for doing labour jobs. Apparently, the grievance of a father against his young children being sent for doing labour jobs cannot be termed to be unjustified. Apparently, the grievance of a father against his young children being sent for doing labour jobs cannot be termed to be unjustified. Thus, apparently the appellant had a justifiable cause to quarrel with his wife on this aspect. The eye-witnesses Sankla Ram (PW-4), Mugla (PW-5), Mansha (PW-10), Narsa (PW-11) and Vaja (PW-13) have clearly stated that the spouses i.e. the appellant herein and the deceased were quarreling with each other and the noise of the altercation were heard by the witnesses on which, they reached the place of incident and saw the appellant assaulting Sajki by a lathi. The first informant Mugla (PW-5) emphatically stated in his examination-in-chief that at the time of incident, the appellant was shouting at the deceased as to why, she had sent their children for doing labour jobs. Apparently thus, the quarrel between the spouses took place on the issue of Sajki the deceased having sent their children to do labour jobs and the assault made by the appellant on the victim was at the spur of the moment followed by a heated verbal exchange. The Medical Officer (PW-12) Dr. Yogesh Kumar was one of the members of the Medical Board which conducted autopsy upon the dead body of Sajki and issued the postmortem report (Ex. P/5) in which, the injuries, referred to supra, were noticed. The Medical Board mentioned presence of 1½ liters of clotted blood inside the peritoneal cavity, however, the walls thereof were unharmed. There was a superficial laceration of the spleen which probably led to the bleeding. In this background, we are of the view that the appellant could not have had any knowledge that by inflicting such injuries to his wife, he could cause her death. 10. In view of the foregoing discussion, we are of the opinion that the appellant can neither be imputed the intention nor the knowledge that while inflicting fatal injuries to his wife on the non-vital parts of the body, he could cause her death. Hon'ble the Supreme Court considered the distinction between the murder and culpable homicide not amounting to murder in the case of Daya Nand vs. State of Haryana reported in AIR 2008 SC 1823 and held as below: "10. 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. 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. 11. 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. 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 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 (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury 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 act is likely to cause death. (4) 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. 12. 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. 13. 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. 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. 14. 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. 14. 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. 15. In Virsa Singh v. State of Punjab, 1958 CriLJ 818, 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. 16. 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. 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. 17. 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. 18. 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. 18. 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. (a) 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 (b) 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. 19. 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 not be murder. Illustration (c) appended to Section 300 clearly brings out this point. 20. 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. 21. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. 21. 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. 22. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., 1977 CriLJ 1, Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, [2002] SUPP 1 SCR 703, Augustine Saldanha v. State of Karnataka, 2003 CriLJ 4458, Thangiya v. State of T.N., 2005 CriLJ 684 and in Rajinder v. State of Haryana, 2006 CriLJ 2926. 23. Considering the evidence on record in the background of the principles of law, the inevitable conclusion is that the appropriate conviction would be under Section 304 Part II IPC. The conviction is accordingly altered." 11. Admittedly, the incident took place on the spur of the moment after a sudden quarrel between the spouses. The accused did not act in an extremely cruel manner and the blows by lathi were inflicted on the non-vital parts of the body. 12. Thus, considering the facts of the case at hand on the anvil of the principles laid down by Hon'ble the Supreme Court in the case of Daya Nand (supra), we are of the view that the conviction of the appellant as recorded by the trial court for the offence under Section 302 IPC cannot be sustained and the same deserves to be toned down to the offence under Section 304 Part II of the IPC. 13. Accordingly, the impugned judgment dated 04.05.2015 passed by the learned Additional Sessions Judge No. 4, Udaipur in Sessions Case No. 92/2014 (363/2014) (C.I.S. No. 1181/2014) is set aside. The conviction and sentence of the appellant under Section 302 of the IPC is quashed and set aside and instead, he is convicted for the offence under Section 304 Part II of the IPC. Considering the entirety of the facts and circumstances as available on record, we hereby sentence the appellant to undergo 7 years' rigorous imprisonment and a fine of Rs. 2,000/- in default of payment of fine, to further undergo 2 months' simple imprisonment. 14. The appeal is partly allowed in these terms. 15. Considering the entirety of the facts and circumstances as available on record, we hereby sentence the appellant to undergo 7 years' rigorous imprisonment and a fine of Rs. 2,000/- in default of payment of fine, to further undergo 2 months' simple imprisonment. 14. The appeal is partly allowed in these terms. 15. Record be returned to the trial court forthwith.