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2024 DIGILAW 100 (HP)

Raj Kumar v. State of Himachal Pradesh

2024-01-12

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. Pardhan-Gram Panchayat, Berry informed the police on 12.06.2023 at 7:40 am that a deadbody was found in the Beas River beneath Sandha Patan Bridge. The police went to the spot and recovered the deadbody. Injuries were found on the forehead and the nose of the deadbody. Enquiries were made in the vicinity but no person could identify the deadbody. Subsequently, Vinod Kumar and Virender Kumar went to the police post Sandhol. Vinod Kumar said that deceased Rinku Kumar had accompanied him to Seoh in his truck. Informant Vinod Kumar took the dinner on 11.06.2023. Rinku went to the truck for sleeping and Vinod Kumar went to the room of Contractor Virender Kumar. Vinod Kumar looked for Rinku on 12.06.2023 in the morning but he was missing. Vinod Kumar searched for him. When he made enquiries in Seoh Bazar from a local person, he was informed that the deadbody of one person was found in the Beas River. The post-mortem examination of the deadbody was conducted. The Medical Officer issued a report that the deceased had died due to the ante mortem drowning leading to cardiopulmonary arrest. The wife of the deceased filed an application stating that Rinku and Vinod had gone in a truck towards Seoh, Sandhol on 09.06.2023. Rinku was in touch with his wife and his children till 11.06.2023. The wife of the deceased called him at 3:00 PM on 11.06.2023; however, the mobile phone was found not reachable. Subsequently, she was informed that Rinku had jumped into the Khad. The police registered the FIR based on the complaint. The police visited the spot with the RFSL team on 20.06.2023 and found the blood-stained soil beneath a tree having a beehive on it. The samples were lifted from the spot. The police interrogated Vinod Kumar and Virender Kumar. The police obtained the call detail record of Vinod, Virender and found that Virender had made many calls to Raj Kumar alias Raju during the night. Virender Kumar disclosed the involvement of Raj Kumar and Ashok Kumar in the incident. Virender Kumar and Vinod Kumar disclosed that Rinku attempted to take the honey out of the beehive and fell in the process. They believed that he was dead and threw him into the Beas River. Virender Kumar produced his vehicle, which was seized by the police. Virender Kumar disclosed the involvement of Raj Kumar and Ashok Kumar in the incident. Virender Kumar and Vinod Kumar disclosed that Rinku attempted to take the honey out of the beehive and fell in the process. They believed that he was dead and threw him into the Beas River. Virender Kumar produced his vehicle, which was seized by the police. Raj Kumar and Ashok Kumar were also arrested, who also confirmed the version of Virender Kumar. It was found after the investigation that Vinod Kumar, Virender Kumar, Raj Kumar, Ashok Kumar and Rinku Kumar had gone to extract honey. Rinku climbed the tree and fell. Virender informed Prakash Chand about the incident, who advised him to take Rinku to the hospital; however, the accused instead of taking Rinku to the hospital threw him into the Beas River. The police presented the challan against the accused for the commission of offences punishable under Sections 302, 201 and 34 of IPC. 2. Raj Kumar and Ashok Kumar filed regular bail petitions seeking their bail. It was asserted that the petitioners are innocent and they are involved in a false case at the instance of some interested person. They have not committed any offence. Nothing incriminating was found in their possession. There is no chance of their absconding. The petitioners would abide by all the terms and conditions, which may be imposed by the Court. The petitioners do not have any criminal record; hence, it was prayed that the present petitions be allowed and the petitioners be released on bail. 3. The status report was filed by the police reproducing the contents of the FIR. It was asserted that in case of release on bail, the petitioners can abscond and commit a serious offence. They can intimidate the witnesses and they would not appear in the Court. Hence, it was prayed that the present petitions be dismissed. 4. I have heard Mr. Kamal Kant Chandel, learned counsel for the petitioners and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 5. Mr. Kamal Kant Chandel, learned counsel for the petitioners submitted that the allegations against the petitioners are false. The allegations even if accepted in their entirety do not constitute an offence punishable under Section 302 of IPC. The offence alleged against the petitioners is not heinous and no useful purpose would be served by detaining the petitioners in custody. 5. Mr. Kamal Kant Chandel, learned counsel for the petitioners submitted that the allegations against the petitioners are false. The allegations even if accepted in their entirety do not constitute an offence punishable under Section 302 of IPC. The offence alleged against the petitioners is not heinous and no useful purpose would be served by detaining the petitioners in custody. Hence, he prayed that the present petitions be allowed and the petitioners be released on bail. 6. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the petitioners had thrown Rinku into the river instead of taking him to the Doctor. They failed to provide first aid to him, which they were bound to do in the circumstances. Hence, he prayed that the present petitions be dismissed. 7. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 8. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: - 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. 13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [ (2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 9. A similar view was taken in State of Haryana vs Dharamraj2023 SCC Online 1085, wherein it was observed: 7. A foray, albeit brief, into relevant precedents is warranted. (See Ram Govind Upadhyay v. Sudarshan Singh [ (2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 9. A similar view was taken in State of Haryana vs Dharamraj2023 SCC Online 1085, wherein it was observed: 7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.’ 10. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. As per the prosecution, the petitioner, co-accused and the deceased had gone to extract honey from the honey bee. The deceased climbed the tree and fell from it. The petitioner and the co-accused believed that he had died and threw him into the river. 12. In Palani Goundan v. Emperor, 1919 SCC OnLine Mad 67: ILR (1919) 42 Mad 547 : (1919) 10 LW 45 : AIR 1920 Mad 862: 1919 Cri LJ 404 : (1919) 37 Mad LJ 17, the accused struck a blow on his wife’s head with a ploughshare which made her senseless. 12. In Palani Goundan v. Emperor, 1919 SCC OnLine Mad 67: ILR (1919) 42 Mad 547 : (1919) 10 LW 45 : AIR 1920 Mad 862: 1919 Cri LJ 404 : (1919) 37 Mad LJ 17, the accused struck a blow on his wife’s head with a ploughshare which made her senseless. The accused believing her to be dead, hanged her on a beam by a rope to create a false defence of suicide by hanging. She died due to the asphyxiation by hanging and not by the blow. The Full Bench of Madras High Court held that the accused was not guilty of committing culpable homicide because his action was directed towards the lifeless body and he could not be convicted of murder or culpable homicide but can be convicted of the original assault. It was observed: “WALLIS, C.J.:— The accused was convicted of murder by the Sessions Judge of Coimbatore. He appealed to this Court, which took a different view of the facts from that taken by the learned Sessions Judge and has referred to us the question whether, on the facts as found by the learned Judges who composed it, the accused has in law committed the offence of murder. Napier, J., inclined to the view that he had: Sadasiva Ayyar, J., thought he had not. The facts as found are these: the accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He believed her to be dead and in order to lay the foundation for a falsa defence of suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a rope. In fact, the first blow was not a fatal one and the cause of death was asphyxiation by hanging which was the act of the accused. When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constituted the crime of murder or even culpable homicide. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law, this would clearly not be murder but manslaughter on the general principles of the Common Law. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law, this would clearly not be murder but manslaughter on the general principles of the Common Law. In India, every offence is defined both as to what must be done and with what intention it must be done by the section of the Penal Code which makes it a crime. There are certain general exceptions laid down in Chapter IV, but none of them fits the present case. We must therefore turn, to the defining section 299. Section 299 defines culpable homicide as the act of causing death with one of three intentions: (a) of causing death, (b) of causing such bodily injury as is likely to cause death, (c) of doing something which the accused knows to be likely to cause death. It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. “Causing death” may be paraphrased as putting an end to human life; and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man outs the head off from a human body, he does an act which he knows will put an end to life, if it exists. But we think that the intention demanded by the section must stand in some relation to a person who either is alive or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what is believed to be a lifeless body. Complications may arise when it arguable that the two acts of the accused should be treated as being really one transaction as in Queen-Empress v. Khandu [(1891) I.L.R., 15 Bom., 194.] or when the facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and ignorance as to whether the body he bandied was alive or dead, as in Gour Gobindo's Case [(1866) 6 W.R. (Cr. R.), 55.]. The facts as found here eliminate both these possibilities and are practically the same as those found in Emperor v. Dalu Sardar[(1914) 18 C.W.N. 1279.]. We agree with the decision of the learned Judges in that case and with a clear intimation of opinion by Sergeant, C.J., in Queen-Empress v. Khandu [(1891) I.L.R., 15 Bom., 194.]Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can of course be punished both for his original assault on his wife and for his attempt to create false evidence by banging her. These, however, are matters for the consideration and determination of the referring Bench. 13. In Govindan Kutty v. State, 1950 SCC OnLine Ker 13: 1951 Cri LJ 871, the accused caused injury to his wife by means of a pointed stick. She collapsed and believing her to be dead hanged her on a branch of a tree, so that the people may think that it was the case of suicide. Subsequently, she died due to hanging and not due to the original injuries. The Kerala High held that the accused would be liable for the commission of offences punishable under Section 326 and not 302 of the IPC. It was observed: 8. The problem that has arisen in this Criminal Appeal is not entirely new. In the case reported in Queen Empress v. Khandu, 15 Bom. The Kerala High held that the accused would be liable for the commission of offences punishable under Section 326 and not 302 of the IPC. It was observed: 8. The problem that has arisen in this Criminal Appeal is not entirely new. In the case reported in Queen Empress v. Khandu, 15 Bom. 194, there was a somewhat similar legal position. There, the accused had struck the deceased three blows on the head with the intention of killing him. In the present case, as we have already stated, there is no evidence to show that there was any intention to kill the woman. The intention was only to hurt. In that respect, the present case differs from the case in Queen-Empress v. Khandu, 15 Bom. 194. In that case, after the accused had dealt three blows to the head of the victim the latter fell down senseless on the ground. The accused believed that he was dead, and with a view to removing all evidence of the crime committed by him, he set fire to the hut in which the victim was lying. The medical evidence disclosed that the blows struck by the accused were not likely to cause death and did not in fact cause death but that death was really caused by the injuries from burning when the accused had set fire to the hut. It was held by a majority of the Judges of the Bombay High Court that the accused was guilty of an attempt to murder under S. 307, Penal Code, 1860. A different view was expressed by Parsons J., which was followed in somewhat similar cases by certain other High Courts. The learned Chief Justice of Bombay, whose opinion finally prevailed, has stated in his judgment that the accused undoubtedly believed that he had killed his victim and that since “there would be difficulty in regarding what occurred from first to last as one continuous act done with the intention of killing the deceased,” the offence committed by the accused must be held to be the only attempt to murder. 9. Another case, which is more to the point, is the Full Bench decision of the Madras High Court reported in Palani Gounden v. Emperor, 42 Mad. 547 : (A.I.R. (7) 1920 Mad. 862 : 20 Cr. LJ 404 F.B.). 9. Another case, which is more to the point, is the Full Bench decision of the Madras High Court reported in Palani Gounden v. Emperor, 42 Mad. 547 : (A.I.R. (7) 1920 Mad. 862 : 20 Cr. LJ 404 F.B.). There the accused struck his wife a blow on her head with a ploughshare which, though not shown to be a blow likely to cause death, did in fact render her unconscious and, believing her to be dead, in order to lay the foundation of a false defence of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation. It was held by the Full Bench that the accused was not guilty of either murder or culpable homicide not amounting to murder. That was the opinion expressed by the Full Bench on a reference made to it, and the learned Judges agreed with the decision of Sergeant, C.J. in the case reported in Queen-Empress v. Khandu, 15 Bom. 194. When the matter went back again to the Division Bench, the Judges, who originally heard the case, convicted the accused of grievous hurt under S. 326, Penal Code, 1860. In another case, that came up before the Madras High Court, reported in the Court took the view that since the intention of the accused throughout was to kill the woman, who was the victim, they were clearly liable for murder. The headnote which describes the facts of the case fairly and accurately is as follows: “The accused, who had formed a deliberate plan to kill a woman and who had intended to kill her, decoyed her under the pretence of taking her to a sick relation. On the way, he had a struggle with the woman during which her thali fell off or was removed. An attempt might have been made to strangle her. She was immediately dragged either in an unconscious or semi-conscious condition onto the railway line, her body was put across the railway Hoe in such a way that her neck lay across the rails, and she was killed by a passing train. The accused did not put forward the case that they believed the woman to be dead when they put her body across the railway line. The accused did not put forward the case that they believed the woman to be dead when they put her body across the railway line. Held: That the accused were guilty of the offence of murder and that the Sessions Judge erred in holding that they were guilty only of the offence of an attempt at murder under S. 307, Penal Code, 1860.” It will be seen that the facts, in that case, differ from the facts of the present case because the accused never put forward the defence that they believed the woman to be dead when they put her body across the railway line. The intention was clearly to murder, and the manner in which they put the neck of the victim on the railway line in order that the wheels of the train might pass over it and kill her, clearly indicated what the object was in resorting to this gruesome method of killing the woman. In our view, the present case is very much like the case reported in Palani Goundan v. Emperor, 42 Mad. 547: (A.I.R. (7) 1920 Mad. 862: 20 Cr. L.J. 404 F.B.). Here, as in that case, the evidence does not disclose that there was any intention to kill the woman and in the circumstance, we have, as already stated, taken the view that the offence committed by the first accused-appellant is not murder, but only of causing grievous hurt under S. 325, Travancore Penal Code. The decision of the trial Court should accordingly be altered. The conviction for murder cannot stand. The conviction can be only under S. 325, Travancore Penal Code. The sentence also must be set aside. 14. In Rajan v. State, 2016 SCC OnLine Mad 16892, the accused closed the mouth and nose of the deceased. She fainted. Believing that the deceased was no more, he laid her on the mat, poured kerosene on her and set her on fire. The deceased died due to the burn injuries. Madras High Court held that the act of the accused does not amount to murder but culpable homicide not amounting to murder. It was observed: 28. In the instant case, as we have already pointed out when the accused committed the first act of slapping the deceased, he had no intention at all, either to cause the death or to cause such bodily injury which is likely to cause death. It was observed: 28. In the instant case, as we have already pointed out when the accused committed the first act of slapping the deceased, he had no intention at all, either to cause the death or to cause such bodily injury which is likely to cause death. Similarly, when he committed the second act of pouring kerosene and setting fire to the deceased also, he had no intention to cause the death of the deceased or to cause such bodily injury as is likely to cause death. As we have already concluded, these two acts constitute one single act. Had it been the case that the first act was done with the intention to cause death and believing that out of the first act, the deceased died, the second act is done, though factually, the death was caused only by the second act since both the acts constitute one single act and since there was initial intention for the accused to cause the death of the deceased, the act of the accused would fall within the first limb of section 299 of IPC and section 300 of IPC and, therefore, he would be liable for punishment under Section 302 of IPC. But, obviously, the accused never had such intention to cause the death of the deceased nor did he have intention to cause such bodily injury as is likely to cause death. But, at the same time, as we have already concluded, since the accused had committed, the said second act of pouring kerosene and setting fire without taking adequate care and attention, in a reckless manner, and without making due verification as to whether the deceased was dead or not, he had in haste poured kerosene and set fire and killed the deceased. Therefore, the belief as claimed by the accused that the deceased was dead is not out of good faith. So, he can be imputed with knowledge as required under the third limb of Section 299 of IPC when he did the second act of pouring kerosene and setting fire to the deceased. At this juncture, it needs to be mentioned that clause (iv) of Section 300 of IPC and the third limb of Section 299 of IPC have presented considerable difficulty to courts in their practical application to concrete cases. At this juncture, it needs to be mentioned that clause (iv) of Section 300 of IPC and the third limb of Section 299 of IPC have presented considerable difficulty to courts in their practical application to concrete cases. The range of probability in the two clauses relates to causing death but in one it is comparatively not so strong as in the other. Although one may know that the act or illegal omission is so dangerous that it is likely to cause death still, it is not murder, even if death was caused thereby, if the doer had no knowledge that in all probabilities it would cause death [vide State of Kerala v. Mani @ Chandran, 1992 Crl.L.J. 1682]. In the instant case, we are of the view that so much knowledge as is required under the fourth limb of section 300 of IPC cannot be imputed to the accused and, therefore, he cannot be punished for an offence under Section 302 of IPC and thus, he is liable to be punished only under Section 304(ii) of IPC. 15. In Prathibha v. State of Kerala, 2023 SCC OnLine Ker 10136, the accused caused an injury on the part of the head of the deceased by hitting it against the edge of the cot. He threw the body into the Arabian Sea to destroy the evidence. It was held that the accused would be liable for the original injury and not for the murder. It was observed: 22. In the light of the evidence tendered by PW27 that the cause of death of the infant was the combined effect of drowning and head injury, it has to be held that the child was disposed of alive by accused 1 and 2 in the sea, even though they believed that the child was lifeless. This takes us to the legal issue of whether an act performed by a person, as in the case on hand, by disposing of the body of the infant in the sea which he/she believed to be lifeless, would attract the offence punishable under Section 299 IPC. Section 299 is brought under Chapter XVI of IPC titled ‘OF OFFENCES AFFECTING THE HUMAN BODY’ and under the sub-title ‘OF OFFENCES AFFECTING LIFE’. The offence of culpable homicide is defined under Section 299 of IPC under the said sub-title, which reads thus: “299. Culpable homicide. Section 299 is brought under Chapter XVI of IPC titled ‘OF OFFENCES AFFECTING THE HUMAN BODY’ and under the sub-title ‘OF OFFENCES AFFECTING LIFE’. The offence of culpable homicide is defined under Section 299 of IPC under the said sub-title, which reads thus: “299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b) A knows Z to be behind a bush. B does not know it. A intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has committed the offence of culpable homicide. (c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B or to cause death by doing an act that he knew was likely to cause death. Explanation 1: A person who causes bodily injury, to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2: Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3: The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born”. 23. Explanation 3: The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born”. 23. As evident from the extracted definition itself, the provision is attracted only when a person does an act which causes the death of another, either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. These three are the species of mens rea contemplated in the provision, and unless it is established that the act of the accused would fall under any of these, it would not amount to an offence of culpable homicide. Therefore, in order to attract the Section, the act must be one performed with the intention of putting an end to a human life or with the knowledge that the same may put an end to a human life. Needless to say, if the act is performed on a body which the person concerned believed to be lifeless, the offence is not attracted, for when the act was performed, the person concerned could have neither had the intention of putting an end to the human life nor had the knowledge that the act performed by him may or is likely put an end to human life. An identical view is seen taken by a Full Bench of the Madras High Court in Palani Goundan v. Emperor, 1919 SCC OnLine Mad 67. It is also seen that the said case was considered by a Full Bench on a reference by a Division Bench dealing with a case where the accused hanged the body of a person under the belief that the body is lifeless. The relevant portion of the judgment reads thus: “When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constituted the crime of murder or even culpable homicide. The relevant portion of the judgment reads thus: “When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constituted the crime of murder or even culpable homicide. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law, this would clearly not be murder but manslaughter on the general principles of the Common Law. In India, every offence is defined both as to what must be done and with what intention it must be done by the section of the Penal Code which makes it a crime. There are certain general exceptions laid down in Chapter IV, but none of them fits the present case. We must therefore tarn, to the defining section 299. Section 299 defines culpable homicide as the act of causing death with one of three intentions: (a) of causing death, (b) of causing such bodily injury as is likely to cause death, (c) of doing something which the accused knows to be likely to cause death. It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. “Causing death” may be paraphrased as putting an end to human life; and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man outs the head off from a human body, he does an act which he knows will put an end to life, if it exists. But we think that the intention demanded by the section must stand in some relation to a person who either is alive or who is believed by the accused to be alive. But we think that the intention demanded by the section must stand in some relation to a person who either is alive or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. Complications may arise when it is arguable that the two acts of the accused should be treated as being really one transaction as in Queen-Empress v. Khandu [ILR (1891) 15 Bom 194.] or when the facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and ignorance as to whether the body he bandied was alive or dead, as in Gour Gobindo's Case [(1866) 6 W.R. (Cr. R.) 55]. The facts as found here eliminate both these possibilities and are practically the same as those found in The Emperor v. DaluSardar [(1913-14) 18 CWN 1279]. We agree with the decision of the learned Judges in that case and with clear intimation of opinion by Sergeant, C.J., in Queen-Empress v. Khandu. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can of course be punished both for his original assault on his wife and for his attempt to create false evidence by banging her. These, however, are matters for the consideration and determination of the referring Bench.” 24. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can of course be punished both for his original assault on his wife and for his attempt to create false evidence by banging her. These, however, are matters for the consideration and determination of the referring Bench.” 24. As evident from the extracted passage in the judgment, the view taken is that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances and that therefore, he/she is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. We are in respectful agreement with the said view. Needless to say, the conviction of accused 1 and 2 under Section 302 read with Section 34 is liable to be interfered with. 25. As clarified by the Madras High Court in Palani Goundan, in a case of this nature, the accused can certainly be convicted for the original act which rendered the child to an unconscious state and also for their attempt to cause the disappearance of the evidence. But, in the case on hand, as noted, there is no charge in respect of the same. In other words, the accused cannot be convicted for any offence. If the accused cannot be convicted for any offence, the question of convicting them for causing disappearance of the evidence does not arise [See Duvvur Dasratharammareddy v. State of A.P., (1971) 3 SCC 247 ].” 16. In the present case also, assuming the whole of the prosecution case to be true, the petitioners cannot be held liable for the commission of the murder. At best, they can be held liable for culpable homicide not amounting to murder punishable under Section 304 of IPC or at worst for nothing because they had not caused the original hurt and the deceased had fallen from the tree by himself. 17. Therefore, the submission of learned counsel for the petitioners has to be accepted as correct that the allegations in the FIR assuming them to be true do not constitute the commission of an offence punishable under Section 302 of IPC. 18. The petitioners were arrested on 20.06.2023 as per the status report. 17. Therefore, the submission of learned counsel for the petitioners has to be accepted as correct that the allegations in the FIR assuming them to be true do not constitute the commission of an offence punishable under Section 302 of IPC. 18. The petitioners were arrested on 20.06.2023 as per the status report. The challan has been prepared and presented against them. The matter is listed for evidence on 10.01.2024, which means that the petitioners are not required to be investigated. The police are relying upon the circumstantial evidence and the disclosure statement made by the petitioners to prove their case. Therefore, the plea that the petitioners can intimidate the witnesses or destroy the evidence is not acceptable. 19. In any case, the police can always file an application for cancellation of the bail in case, it is found that the petitioners are misusing the liberty extended to them by violating the terms and conditions imposed by the Court. The bail cannot be denied based on apprehensions alone. 20. The trial is yet to commence and it will take some time to conclude the trial. The detention of the petitioners in custody during the trial is not justified. Keeping in view the nature of the allegations made against the petitioners, the bail petitioners are ordered to be enlarged on bail, subject to their furnishing bail bonds in the sum of Rs. 50,000/- each with one surety each in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: (i) The petitioners will attend the trial on every date of hearing and if they are unable to do so, they will seek an exemption from the Court by filing an appropriate application, (ii) The petitioners will not intimidate the witnesses nor will they influence any evidence in any manner whatsoever, (iii) The petitioners shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial. (iv) The petitioners will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court. (v) The petitioners will furnish their mobile number, and social media contacts to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. (v) The petitioners will furnish their mobile number, and social media contacts to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 21. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 22. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. 23. The petitions stand accordingly disposed of. A copy of this order be sent to the Superintendent Sub Jail Mandi, District Mandi, H.P. and the learned Trial Court by FASTER. 24. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioners and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.