JUDGMENT IN REVIEW
The Supreme Court in its recent judgment in the case
of Balu & others v. State of
Maharashtra [Crl. Appeal No. 175 of 2015-decided on 02.02.2015] and connected criminal appeal has
expatiated on the situations when culpable homicide would amount to
murder under Section 300 “thirdly”, and the ingredients the prosecution has to
establish to bring home a charge for murder under Section 302, Indian Penal
Code.
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| Supreme Court of India at New Delhi |
In the case before a
Bench of the Apex Court comprising of Dipak Misra and Abhay Manohar Sapre, JJ.,
the High Court had confirmed the conviction and sentence awarded to the
appellants by the trial Court. The appellants, apart from other offences, were
convicted under Section
302 read with Section 149 of the IPC and sentenced to suffer life
imprisonment and to pay fine of Rs.10,000/- each, in default of payment of
fine, to undergo further six months rigorous imprisonment. The sentences
imposed in respect of other offences were below 7 years and all the sentences had
been directed to run concurrently.
The
question before the Apex Court, regard being had to the
submissions advanced by the accused through their counsel, was whether the Courts
below had concurrently erred in convicting and sentencing them for the offence
punishable under Section 302, IPC when they ought to have been convicted and
sentenced under Section 304 Part-1, IPC.
The background
facts:
Apparao Rajaram Pund
(A-1) and Madhavrao Rangnathrao Range (PW- 3), both residents of Itlapur village
of Parbhani Districtin Maharashtra, were good friends. Both were
agriculturists. Savitribai-the deceased, was the wife of Madhavrao Range.
Around 25-30 years back, Madhavarao had purchased two kathas of land from Apparao for his cattle shed in the same village
and he was also placed in its possession. However, no sale deed was executed
between them yet Madhavrao continued to remain in possession of cattle shed all
through.
In course of time,
both entered into politics and formed their respective panels to contest the
elections for the post of Sarpanch of the village. In the election, the panel
led by Madhavrao Range won whereas the panel led by Apparao Pund lost. Due to
this event, the relations between them were not as cordial as they used to be
in the past. ThereafterApparao started pressurizing Madhavrao Range to vacate
the land and hand over the possession of cattle shed else he was threatened to
face the dire consequences.
The
Crime:
On 15.01.2008, the
appellants around 7.30 to 8.00 A.M. armed with weapons barged in the cattle
shed and started removing the iron sheets fixed on the roof. Madhavrao
requested the appellants not to remove the sheets. Since the appellants did not
listen to Madhavrao and continued in their operation in removing the sheets,
Madhavrao resisted and made attempt to stop them. At that time, Savitribai and
Madhavrao's son - Udhav (PW -5), who were also present on the spot, intervened
and resisted the appellants from removing the sheets. This led to scuffle
between Apparao ( A-1), Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3).
Accused Nos. 1, 3 and 4 beat Madhavrao with fistblows and leg kicks and threw
him out of cattle shed. Apparao(A-1), who was having bottle containing
kerosene, poured the entire kerosene on cattle shed and Sachin ( A-4) set the
cattle shed on fire. Savitribai, who was resisting the appellants, caught in
contact of fire and received severe burn injuries. On noticing this, Madhavrao
tried to enter in cattle shed to save his wife- Savitribai. Gopal (A-2) then
inflicted an axe blow on Madhavrao’s head due to which he sustained bleeding
injury. When Madhavrao cried for help, Navnath and other persons reached there
and tried to extinguish the fire. Thereafter they wrapped Savitribai in a piece
of cloth and took her to the civil hospital around 10 A.M.
In the meantime,
Mohammad Bashir Sheikh Umar (PW-2)- Inspector on duty to the Nanal Peth Police
Station, got an information that a lady withburn injuries was admitted to the
Hospital. Therefore, he rushed to the hospital to record her statement. After
getting certification from the doctors that Savitribai was in a fit condition
to give her statement, PW-2 recorded her statement (Ex- 45). In the meantime,
Kishore Achyut Deshmukh (PW-1), In-charge Tahsildar of the area also reached to
the hospital and recorded the statement of Savitribai (Ex-P-42).
Annasahab Gholap -
Assistant Police Inspector (PW-16) then registered the crime being Crime No. 6
of 2008 and started investigation. On the same day, five accused were arrested,
panchnama (Ex-P-58) was prepared and several articles were recovered from the
spot. On 16.01.2008 at 6.15 a.m., Savitribai succumbed to her injuries while in
the Hospital. This led to arrest of some other accused persons and also led
toregistration of case of offence punishable under Section 302 of the Indian
Penal Code, 1860 along with other offences punishable under Sections 147, 148,
323, 324, 436, 440, 448, 506 read with Section 149 IPC against the appellants
and other accused persons. The case was then committed to Sessions for trial.
The accused asserted their innocence and claimed trial.
The
findings of the Courts below:
The Sessions Court
convicted the appellants-accused and sentenced them to suffer jail terms as narrated
above. Challenging the said order, the appellants-accused filed appeals in the
High Court against their conviction. The High Court, by the impugned judgment,
dismissed their appeals and confirmed the conviction and sentence awarded by
the trial Court to each of the appellants.
As against the said
order of the High Court, the appellants have preferred these appeals by way of
special leave before the Apex Court.
Contentions
of the accused before the Apex Court:
The accused through their
counsel contended before the summit Court that taking the prosecution case on
its face value, it was not a case of murder of Savitribai so as to enable the
Courts to convict the appellants under Section 302 IPC but it was a case
falling under Section 304 Part-I IPC. Their counsel pointed out that there was
neither any intention on the part of any of the appellants to commit the murder
of Savitribai nor the appellants had visited the spot with any such intention. It
was further pointed out by the accused that their only intention was to take
possession of the cattle shed and it was in process of taking forcible possession,
the sudden fight ensued between the two groups as also cattle shed caught fire
causing burn injuries to Savitribai, which unfortunately resulted in her death.
It was also pointed
out that if the appellants had come to the spot with an intention to eliminate
Savitribai, they or any member of their group would have in the first instance
targeted Savitribai, who was present on the spot with her husband (PW-3) and
inflicted injury. It was not done. According to the accused, Savitribai’s death
was as a result of burn injuries because she was inside the shed, which caught
fire. Therefore, the accused urged that the Supreme Court should alter the
sentence to that of the one punishable under Section 304 Part-I IPC instead of
under Section 302 IPC because it was not a case of murder but it was a case of
culpable homicide not amounting to murder.
The respondent-State
supported the concurrent findings of the Courts below.
The
judicial evaluation:
The Bench taking note
of the law laid down by the Court on the question as to when culpable homicide is a murder under Section 300 “thirdly” and what
are the elements which the prosecution should establish, referred to, and relied
on the decision reported in Virsa Singh v. State of Punjab, 1958 SCR
1495, wherein Justice Vivian Bose, writing the judgment for the Bench had held:
“13. In considering whether the intention was to
inflict the injury found to have been inflicted, the enquiry necessarily
proceeds on broad lines as, for example, whether there was an intention to
strike at a vital or a dangerous spot, and whether with sufficient force to
cause the kind of injury found to have been inflicted. It is, of course, not
necessary to enquire into every last detail as, for instance, whether the
prisoner intended to have the bowels fall out, or whether he intended to
penetrate the liver or the kidneys or the heart. Otherwise, a man who has no
knowledge of anatomy could never be convicted, for, if he does not know that
there is a heart or a kidney or bowels, he cannot be said to have intended to
injure them. Of course, that is not the kind of enquiry. It is broad-based and
simple and based on commonsense: the kind of enquiry that “twelve good men and
true” could readily appreciate and understand.
14. To put it shortly, the prosecution must prove
the following facts before it can bring a case under Section 300
“thirdly”;
15. First, it must establish, quiteobjectively, that
a bodily injury is present;
16. Secondly, the nature of the injury must be
proved; These are purely objective investigations.
17. 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.
18. Once these three elements are proved to be
present, the enquiry proceeds further and,
19. 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.
20. Once these four elements are established by the
prosecution (and, of course, the burden is on the prosecution throughout) the
offence is murder under Section 300 “thirdly”. It does not matter that there
was no intention to cause death. It does not matter that there was no intention
even to cause an injury of a kind that is sufficient to cause death in the
ordinary course of nature (not that there is any real distinction between the
two). It does not even matter that there is no knowledge that an act of that
kind will be likely to cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest of the enquiry is
purely objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of nature
to cause death. No one has alicence to run around inflicting injuries that are
sufficient to cause death in the ordinary course of nature and claim that they
are not guilty of murder. If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be shown, or reasonably
deduced, that the injury was accidental or otherwise unintentional.”
The Bench also
observed that in a recent decision, Pulicherla Nagaraju @
Nagaraja Reddy Vs. State of Andhra Pradesh (2006)11 SCC 444, the Supreme Court
had once again examined the issue as to what relevant factors should be kept in
consideration while deciding the question as to whether case in hand falls
under Section 302 or 304 Part-I or Part-II, and quoted Justice Raveendran who speaking
for the Court had held in para 29 as under:
“29. Therefore, the court should proceed to decide
the pivotal question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304 Part II. Many
petty or insignificant matters — plucking of a fruit, straying of cattle,
quarrel of children, utterance of a rude word or even an objectionable glance,
may lead to altercations and groupclashes culminating in deaths. Usual motives
like revenge, greed, jealousy or suspicion may be totally absent in such cases.
There may be no intention. There may be no premeditation. In fact, there may
not even be criminality. At the other end of the spectrum, there may be cases
of murder where the accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no intention to cause death. It
is for the courts to ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under Section 304 Part I/II, or
cases of culpable homicide not amounting to murder, are treated as murder
punishable under Section 302.
The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is,of course, not exhaustive
and there may be several other special circumstances with reference to
individual cases which may throw light on the question of intention..”
The finding of the
Apex Court:
Applying
the dictum laid down in these decisions to the facts of the case at hand, the
Bench, accepting the contentions of the appellants-accused, found that find
that “this is a case where the appellants should have been convicted for the
offence punishable under Section 304 Part-I instead of Section 302 IPC.”
Explaining its
reasoning for altering the conviction of the accused from one under Section 302
to Section 304, Part-I, IPC, the Court said :
“It
is for the reason that firstly, neither there was any motive and nor any
intention on the part of any of the appellants to eliminate Savitribai.
Secondly, there was no enmity of any kind with Savitribai in person with any of
the appellants. Thirdly, the appellants had gone there to take possession of
the cattle shed and not with an intention to kill any member of the family of
Madhavrao Renge. Fourthly, if at all, if there wassome kind of animosity or
jealousy then it was towards A-1 whose panel had won the election. Savitribai
had nothing to do with election because she never contested the election.
Fifthly, despite the appellants armed with weapons, none of them inflicted any
injury or gave blow to Savitribai but single blow was inflicted only on
Madhavrao, who fortunately survived. Sixthly, Savitribai died due to sustaining
of burn injuries, which she suffered because the appellants ablazed the cattle
shed by pouring kerosene on it. In other words, if the appellants had not
ablazed the cattle shed then the incident of death of Savitribai would not have
occurred. Eighthly, it was a fight on a spur of moment between the two male
groups on the issue of taking possession of cattle shed with no intention to
kill any one and lastly, in the absence of any overt act attributed to any of
the appellants towards Savitribai for inflicting any injury to her, the
appellants could not have been convicted for an offence of committing murder of
Savitribai so as to attract the rigour of Section 302 IPC and instead they
should have been convicted for an offence of culpable homicide not amounting to
murder under Section 304 Part I IPC.”
The
sentence:
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