REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1123 OF 2008
Arun Raj ..........Appellant
Versus
Union of India & Ors. ........Respondents
JUDGMENT
H.L. Dattu, J.
1) This appeal by special leave is limited to a particular question
only, namely, correctness of the conviction of the appellant Arun Raj
for an offence under Section 302 of Indian Penal Code and the
propriety of the sentence passed thereunder by the Presiding Officer
of General Court Martial under the Indian Army Act. The short facts
are these – The appellant joined the Indian Army in the year 1983 and
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in the year 1998 he was working as Ex-Signalman (Lance Nayak) of
787 (Independent) Air Defence Brigade Signal Company. On
22.3.1998, one Mr. S.S.B Rao (PW-4) was the Section In-Charge of
Operator Section. At about 1 PM, Mr. Rao returned from lunch and
the appellant reported to him that Havildar R.C Tiwari (deceased) and
Havildar Inderpal (PW-3) abused him by using the word “Gandu”. On
Mr. Rao making an inquiry into the same, they replied in the negative,
despite the appellant making repeated assertion that they insulted him
using the said word. The appellant also brought to the information of
Mr. Rao that in the previous night there was a heated discussion
between the appellant and the deceased and Inderpal, and the matter
was reported to the superior officer. Paulose (PW-1), after having his
lunch, returned to the barrack from the rank mess and he was relaxing
in the cot. At this point of time, he saw the appellant coming towards
the door. He was wearing a half T-shirt and lungi. The cot of the
deceased was near the door and he was sleeping on it. The appellant
took out a knife which was hidden in the lungi and stabbed the
deceased on the right side of the chest. On witnessing the incident,
PW-1 was shocked and shouted to the appellant as to why he did it.
On hearing the shout of PW-1, people came in and gathered
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immediately. The appellant was separated by the crowd and the
deceased was sent to the hospital where he finally succumbed to the
injury. Major Prabal Datta (PW-9) testified that there was no external
injury on the body of the deceased except the stab injury caused by a
knife.
2) An FIR was lodged at the Dehu Road Police Station vide CR-
26 of 1998 under Section 302 of Indian Penal Code. Thereafter,
investigation commenced, during the course of which the body of
the deceased was sent for post mortem and an inquest Panchnama
was also prepared. On completion of the investigation, the charge-
sheet was prepared against the appellant/accused and forwarded to
the Judicial Magistrate 1st Class, Vadgaon Maval. In the meantime,
since the appellant belonged to the armed forces, court martial
proceedings were initiated under the provisions of the Army Act.
Charges were framed against the appellant under Section 302 read
with Section 69 of the Army Act for committing civil offence, i.e.,
knowingly causing the death of the deceased on 22.3.1998. On the
appellant pleading not guilty, the General Court Martial proceeded
to record the evidence of witnesses. The prosecution examined 18
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witnesses. The General Court Martial after appreciating the facts
and the evidence on record, found the appellant guilty of the
offence for which he was charged and after hearing his submission
with regard to the quantum of sentence, sentenced the appellant to
undergo 7 years of rigorous imprisonment and he was also
dismissed from service for committing the offence of murder
punishable under Section 69 of the Army Act read with Section
302 of IPC. However upon revision, the Confirming Authority by
an order dated 15.12.1998 held that the sentence awarded by the
General Court Martial after finding the appellant guilty of murder
under Section 69 of the Army Act read with Section 302 of IPC,
was not justiciable and further observed that once the appellant
was held guilty under the abovementioned Sections, he could be
either sentenced to life imprisonment and fine or sentenced to
death. Accordingly, the General Court Martial by an order dated
15.1.1999, revised the sentence and sentenced the appellant to
imprisonment for life and dismissal from service, which was
subsequently confirmed by the Confirming Authority. Being
aggrieved by this order, the appellant filed a petition before the
Chief of Army Staff under Section 164 of the Army Act, which
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was rejected. The appellant being aggrieved by the same filed a
writ petition before the Bombay High Court.
3) The learned Counsel for the appellant raised two contentions
before the High Court of Judicature at Bombay in the Writ
proceedings. Firstly, it was submitted that the charge framed
against the appellant was vague, as a result of which, entire Court
Martial proceedings was vitiated. The second submission was that
the intervention of High Court was required as the facts and
circumstances of the case does not justify the punishment of life
imprisonment as the offence revealed from the material evidence is
only punishable under Section 304 Part II and not under Section
302 of Indian Penal Code. As regards the first contention, the High
Court has observed that as the appellant was informed of all the
allegations put forth against him at the time of Court Martial
proceedings, the charge framed against the appellant cannot be said
to be vague. Considering the second contention, the High Court
found the testimony of PW-1 Paulose who is the eyewitness and
PW-3 Haveldar Indrpal to whom the dying declaration was given
by the deceased, is reliable and, hence, observed that there is no
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doubt about the fact that appellant caused the death of the deceased
by stabbing him with a knife. Therefore, the submission that there
was no intention on the part of the appellant to kill the deceased as
only one stab injury was found on deceased, was rejected by the
Court. The High Court while considering the decision on which
reliance was placed by learned counsel for the accused observed,
that there was no sudden quarrel and the murder was not caused on
spur of moment and no sufficient provocation is found for the
offence committed by appellant to fall under section 304 Part II of
Indian Penal Code. As the offence was found to be committed with
enough time to mediate on the action to commit the murder of
deceased, appellant was said to have intention to cause the death of
the deceased. Thus, the High Court found the charge under Section
302 of Indian Penal Code proved and the procedure under Army
Act followed without any infringement of principles of natural
justice and, accordingly, the Writ Petition was dismissed vide
judgment dated 25.8.2005.
4) We now come to the particular question to which this appeal
is limited, namely, propriety of the conviction and sentence passed
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on the appellant for the offence under Section 302 IPC read with
Section 69 of the Army Act, 1950. Mr.K.K.Mani, the learned
counsel for the appellant contends, that, the death of the deceased
was caused due to grave and sudden provocation and, therefore,
offence would fall under Exception I of Section 300 I.P.C. Further,
it is contended that the offence committed by the appellant is liable
for punishment under Section 304 Part II of the I.P.C., as there is
absence of any intention on part of the appellant to cause death.
Mr.Mani also cited few decisions of this Court to support his
submission that the single stab injury caused by the appellant to the
deceased only amounts to offence punishable under Section 304
Part II and not under Section 302 of I.P.C. Per contra, the learned
counsel for the Union of India submitted that, the findings of the
Court Martial and the punishment upheld by the High Court need
not be interfered by this Court as the facts and the evidence on
record are enough to prove that the offence committed by the
appellant falls under Section 302 of I.P.C. It is also contended that
the scope of judicial review is for limited purpose and that cannot
be used to re-appreciate the evidence recorded in Court Martial
proceedings to arrive at a different conclusion.
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5) We now consider the first contention of the learned counsel
for the appellant. It is not in dispute that the cause of death of
deceased is due to the stabbing by a knife by appellant. However, it
is argued on behalf of the appellant that the appellant caused the
said injury because on 23.03.1998 deceased Havildar R.C.Tiwari
and Havildar Inderpal (PW-3) abused the appellant and he was
provoked to `punish’ the deceased. Thus, the stab injury caused to
the deceased was a result of such grave and sudden provocation
and thus the incident took place on spur of moment. Therefore, the
case of the appellant falls under Exception I of Section 300 of
I.P.C.
At this state itself, it is relevant to notice Section 300 of I.P.C.:
“Section 300. Murder
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or-
2ndly
If it is done 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-
3rdly
If it is done 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-
4thly
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If the person committing the act knows that it is so
imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception I-When culpable homicide is not murder-
Culpable homicide is not murder if the offender,
whilst deprived of the power of self-control by grave
and sudden provocation, causes the death of the
person who gave the provocation or causes the death
of any other person by mistake or accident.
The above exception is subject to the following
provisos:-
First-That the provocations not sought or voluntarily
provoked by the offender as an excuse for killing or
doing harm to any person.
Secondly-That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.
Thirdly-That the provocations not given by anything
done in the lawful exercise of the right of private
defence.
Explanation-Whether the provocation was grave
and sudden enough to prevent the offence from
amounting to murder is a question of fact.”
6) The aforesaid Section provides five exceptions wherein the
culpable homicide would not amount to murder. Under Exception
I, an injury resulting into death of the person would not be
considered as murder when the offender has lost his self-control
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due to the grave and sudden provocation. It is also important to
mention at this stage that the provision itself makes it clear by the
Explanation provided, that what would constitute grave and
sudden provocation, which would be enough to prevent the offence
from amounting to murder, is a question of fact. Provocation is an
external stimulus which can result into to loss of self-control. Such
provocation and the resulting reaction need to be measured from
the surrounding circumstances. Here the provocation must be such
as will upset not merely a hasty, hot tempered and hypersensitive
person but also a person with clam nature and ordinary sense.
What is sought by the law by creating the exception is that to take
into consideration situations wherein a person with normal
behavior reacting to the given incidence of provocation. Thus, the
protection extended by the exception is to the normal person acting
normally in the given situation.
7) The scope of the “doctrine of provocation” was stated by
Viscount Simon in Mancini v. Director of Public Prosecution,
(1942) A.C. 200 at p.206: “it is not all provocation that will
reduce the crime of murder to manslaughter. Provocation to have
that result, must be such as temporarily deprive the person
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provoked of the power of self-control as result of which he
commits the unlawful act which caused death. The test to be
applicable is that of the effect of the provocation on a reasonable
man, as was laid down by the Court of Criminal Appeal in Rex v.
Lesbini, (1914) 3 K.B.1116 so that an unusually excitable or
pugnacious individual is not entitled to rely on provocation which
would not have led ordinary person to act as he did. In applying
the test, it is of particular importance to (a) consider whether a
sufficient interval has elapsed since the provocation to allow a
reasonable man time to cool, and (b) to take into account the
instrument with which the homicide was effected, for to retort, in
the heat of passion induced by provocation, by a simple blow, is
very different thing from making use of a deadly instrument like a
concealed dagger. In short, the mode of resentment must bear a
reasonable relationship to the provocation if the offence is to be
reduced to manslaughter.”
8) It is, therefore, important in the case at hand to consider the
reasonable relationship of the action of appellant of stabbing the
deceased, to the provocation by the deceased in the form of
abusing the appellant. At this stage, it would be useful to recall the
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relevant chain of events in brief to judge whether there was
sufficient provocation and the criterion under the provision are
satisfied to bring the offence under the Exception I. As is already
stated, on the previous night of the incidence, there was altercation
between the appellant and deceased, as the deceased had abused
the appellant. On 23.3.1998 at about 1.00 PM, the deceased
complained to the Higher Officer-Mr.S.S.B.Rao about the said
incident. Thereafter, he returned to his barrack and was present
there before the happening of the incident. In the testimony,
(PW-1) Paulose states that he was also present in the same barrack
after he came back from Other Rank Mess at 2.15 PM and was
relaxing on his cot which was in the corner of the same barrack. At
that time he saw the appellant coming towards the door on which
he thought that the appellant was coming for either urinal or to
collect his clothes spread out in sun. The appellant who was
wearing a half T-shirt and lungi came near the cot of the deceased
which was at the door and took out a knife from the lungi and
stabbed on the right side of chest of the deceased when he was
asleep. PW-1 agreed at the time of examination of witness, that he
was shocked to see the appellant stab the deceased and he also
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shouted at the appellant asking him what was he doing. Thus, PW-
1 was unable to relate the actions of appellant to the abuses by
deceased or the altercation which happened the previous night.
Further, it is clear from the testimony of the PW-1 and the
evidence collected (ME-1), that the knife which was completely
made of iron and had a sharp edge was hidden at the waistline of
the lungi of the appellant. Major Prabal Datta, PW-9 was the
Regimental Medical Officer at 19 AD Regt. In his cross
examination, he has stated, that there was not much time lag
between the occurrence of the incident and the deceased being
rushed to the hospital. The facts like that there was time lag of 40-
45 minute after appellant had come from the office of Higher
Officer after complaining and was present with the appellant in the
same barrack without any conversation between them, that he had
got the knife which was sharp enough to have the knowledge that it
might cause death of a human being when stabbed, that the knife
was hidden and removed by appellant only when he was about to
stab the deceased, that the appellant stabbed the deceased on the
chest which is a fragile portion of the body and can cause death
when stabbed by sharp weapon and also that the eyewitness was
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unable to link the abusing and the altercation of the deceased and
appellant to the action of stabbing, rules out the possibility of the
offence being committed due to `grave and sudden’ provocation.
The appellant clearly had time to deliberate and plan out the death
of Havildar R C Tiwari (the deceased). We, therefore, conclude
that the first contention of the learned counsel for the appellant has
no merit and the appellant cannot get benefit of the Exception I to
Section 300 of I.P.C.
9) We now turn to second point urged on behalf of the
appellant. It is contended by learned counsel that there was no
intention on the part of the appellant to cause the death of the
deceased and, hence, Section 304 Part II of the IPC which deals
with culpable homicide not amounting to murder, will be attracted.
Alternatively, it is contended that the appellant dealt one single
blow on the deceased, and hence, intention to cause death cannot
be attributed to the appellant and, hence, the act of the appellant
will not fall under Section 302 of IPC but under Section 304 Part
II. In light of these contentions, it is necessary to look into the
wordings of the relevant provision. Section 304 of IPC reads:-
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“Section 304. Punishment for culpable homicide
not amounting to murder
Whoever commits culpable homicide not amounting
to murder shall be punished with imprisonment for
life ,or imprisonment of either description for a term
which may extend to ten years, and shall also be liable
to fine, if the act by which the death is caused is done
with the intention of causing death, or of causing such
bodily injury as is likely to cause death,
Or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely
to cause death.”
10) Essentially the ingredients for bringing an act under Part II of
the Section are:-
(i) act is done with the knowledge that it is likely to cause
death,
(ii) there is no intention to cause death, or to cause such bodily
injury as is likely to cause death.
11) The first ingredient is easily solved by referring to the
weapon used by the appellant to strike a knife blow to the
appellant. The appellant in this instance has used a kitchen knife. A
kitchen knife with sharp edges is a dangerous weapon and it is very
obvious that the appellant was aware that the use of such a weapon
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can cause death or serious bodily injury that is likely to cause
death. As far as the second ingredient is concerned, the appellant’s
learned counsel contended that the fact that there was one single
blow struck, proves that there was no intention to cause death. In
support of the plea, reliance is placed on the decisions of this court
in the case of Bhera v. State of Rajasthan, [(2000) 10 SCC 225],
Kunhayippu v. State of Kerala, [(2000) 10 SCC 307], Masumsha
Hasansha Musalman v. State of Maharashtra, [(2000) 3 SCC 557],
Guljar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K.
Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309],
Pappu v. State of M.P., [(2006) 7 SCC 391], Muthu v. State by
Inspector of Police, Tamil Nadu, [(2007) 12 Scale 795]. A brief
perusal of all these cases would reveal that in all these cases there
was a sudden and instantaneous altercation which led to the
accused inflicting a single blow to the deceased with a sharp
weapon. Hence, there has been conviction under Section 304 Part
II as delivering a single blow with a sharp weapon in a sudden
fight would not point towards intention to cause death. These cases
are clearly distinguishable from the case at hand, purely on the
basis of facts. In the present case, there has been no sudden
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altercation which ensued between the appellant and the deceased in
the present case. The deceased called the appellant `gandu’
following which there was a heated exchange of words between
the two, the day before the murder. The next day, however, the
appellant concealed a kitchen knife in his lungi and went towards
the cot of the deceased and struck the deceased a blow on the right
side of the chest, while the deceased was sleeping. The fact that the
appellant waited till the next day, went on to procure a deadly
weapon like a kitchen knife and then proceeded to strike a blow on
the chest of the appellant when he was sleeping, points unerringly
towards due deliberation on the part of the appellant to avenge his
humiliation at the hands of the appellant. The nature of weapon
used and the part of the body where the blow was struck, which
was a vital part of the body helps in proving beyond reasonable
doubt, the intention of the appellant to cause the death of the
deceased. Once these ingredients are proved, it is irrelevant
whether there was a single blow struck or multiple blows. This
court in the case of State of Rajasthan v. Dhool Singh, [(2004) 12
SCC 546] while dismissing a similar contention has stated that, “It
is the nature of injury, the part of body where it is caused, the
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weapon used in causing such injury which are the indicators of the
fact whether the respondent caused the death of the deceased with
an intention of causing death or not. In the instant case, it is true
that the respondent had dealt one single blow with a sword which
is a sharp-edged weapon measuring about 3 ft. in length on a vital
part of body, namely, the neck. This act of the respondent though
solitary in number had severed sternoclinoid muscle, external
jugular vein, internal jugular vein and common carotid artery
completely leading to almost instantaneous death. Any reasonable
person with any stretch of imagination can come to the conclusion
that such injury on such a vital part of the body with a sharp-edged
weapon would cause death. Such an injury, in our opinion, not
only exhibits the intention of the attacker in causing the death of
the victim but also the knowledge of the attacker as to the likely
consequence of such attack which could be none other than
causing the death of the victim. The reasoning of the High Court as
to the intention and knowledge of the respondent in attacking and
causing death of the victim, therefore, is wholly erroneous and
cannot be sustained.”
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12) In the case of Virsa Singh v. State of Punjab, [AIR 1958 SC
465], this court while referring to intention to cause death laid
down:-
“27. Once these four elements are established by the
prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under s.
300, 3rdly. 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
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 a licence 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.”
This court further observed:-
“33. It is true that in a given case the enquiry may be
linked up with the seriousness of the injury,. For
example, if it can be proved, or if the totality of the
circumstances justify an inference, that the prisoner only
intended a superficial; scratch and that by accident this
victim stumbled and fell on the sword or spear that was
used, then of course the offence is not murder. But that is
not because the prisoner did not intend the injury that he
intended to inflict to be as serious as it turned out to be
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but because he did not intend to inflict the injury in
question at all. His intention in such a case would be to
inflict a totally different injury. The difference is not one
of law but one of fact; and whether the conclusion should
be one way or the other is a matter of proof, where
necessary, by calling in aid all reasonable inferences of
fact in the absence of direct testimony. It is not one for
guess-work and fanciful conjecture.”
13) In Anil v. State of Haryana, [(2007) 10 SCC 274], while
referring to Virsa Singh (supra) this court laid down:-
“19. In Thangaiya v. State of T.N., relying upon a
celebrated decision of this Court in Virsa Singh v. State
of Punjab 1958 CriLJ 818 , the Division Bench observed:
17. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh case
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.
18. Thus, according to the rule laid down in Virsa Singh
case even if the intention of the appellant 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.
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14) In the aforesaid decision, this Court held that there is no fixed
rule that whenever a single blow is inflicted Section 302 would not
be attracted.
15) It is clear from the above line of cases, that it is necessary to
prove first that there was an intention of causing bodily injury; and
that the injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death. From the evidence on record, it is
very clear that the appellant intended to cause death. In light of this
finding, the evidence on record makes it clear that Section 304 Part
II of the IPC will not be attracted. Further PW-1, in his cross-
examination asserts that the deceased held his hand out after he
was stabbed in the chest. It is very likely that this action on the part
of the deceased prevented the appellant from stabbing him multiple
number of times. The argument might deserve some merit in case
there is a sudden altercation which ensues in the heat of the
moment and there is no deliberate planning. In the present case, as
stated above there was due deliberation on the part of the appellant
and he assaulted the deceased a day after he misbehaved with him.
Hence, the contention of the learned counsel that the appellant had
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no intention to cause death of the deceased has no merit and,
accordingly, it is rejected.
16) We, accordingly, hold that the conviction of the appellant for
the offence under Section 302 of Indian Penal Code, is not bad in
law. In our opinion, the appeal has no merit and, accordingly, it is
dismissed.
……………………………………J.
[Dr. MUKUNDAKAM SHARMA]
…………………………………J.
[H.L. DATTU]
New Delhi,
May 13, 2010.
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