CASE NO.: Appeal (crl.) 854 of 1996 PETITIONER: Augustine Saldanha RESPONDENT: Vs. State of Karnataka DATE OF JUDGMENT: 26/08/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT:
J U D G M E N T
[With Criminal Appeal No. 1734 of 1996]
ARIJIT PASAYAT, J.
These two appeals relate to the common judgment of Karnataka High
Court whereby the judgment of acquittal passed by the Trial Court was
set aside. Augustine Saldanha- appellant in Criminal appeal no.854/1996
was held guilty of offence punishable under Section 302 of Indian Penal
Code, 1860 (in short ‘IPC’) and sentenced to undergo imprisonment for
life. Rocky Saldanha-appellant in Criminal appeal no.1734/1996 was
found guilty for offences punishable under Section 324 IPC and
sentenced to undergo imprisonment for one year. They were also
sentenced to pay fine of Rs.5,000/- and Rs.1,000/- respectively with
default stipulation of six months SI and one month SI respectively.
Accusations which formed foundation of prosecution version are
essentially as follows:
On 17.5.1989 Paul Saldanha (hereinafter referred to as ‘the
deceased’) and Felix Saldanha (PW1) were returning to their houses
after viewing a movie. When they reached near the house of the
appellants, accused Augustine and Rocky along with Henry Saldanha
(acquitted) assaulted the deceased. They were armed with sticks. As a
result of the assaults the deceased breathed his last while PW1
suffered grievous injuries. The incident took place between 10.00 to
10.30 p.m. On next day morning around 5.15, PW8 ASI, of Mulki Police
Station received information from an unknown person of Kumeri that two
bodies were lying at Shadguri of Aikala village. Though he could not
ask the name and address of the informant, he made entries in the
General Diary and proceeded to the spot along with other police
personnel. At the spot he found dead body of the deceased and PW1 in
injured condition. They were taken to hospital and complaint (Exhibit
P-1) was recorded. PW8 registered the FIR after coming to the police
station, and dispatched the same to the Magistrate at Mulki which was
received at about 11.15 a.m. Investigation was undertaken on the basis
of the report of PW1, and after completion thereof charge-sheet was
placed. It needs to be noted that on the basis of information given by
the accused while in custody recoveries were made. In the complaint
(Exhibit P-1) the informant PW1 had stated that he could see assailants
by focussing a torch. He had lost consciousness temporarily, but when
he was in sense, could hear that PWs 3 and 4 i.e. two taxi drivers were
asked by the accused to shift him and deceased to different places; but
they refused to do so. In Court, apart from the evidence of PW1 the
evidence of PWs 3 and 4 were also tendered and pressed into service to
substantiate the accusations. The Additional Sessions Judge of Dakshina
Kannada, Mangalore found the evidence of PW1 to be not believable and
directed acquittal, and the circumstances which weighed with him are as
follows:
Credibility of the report (Exhibit P-1) was doubted because the
injury sustained by PW1 was so serious that he was given treatment in
the emergency room and it was highly improbable that he would have been
in a position to give statement (Exhibit P-1). While PW8 stated that
he had recorded the complaint, handwriting therein was similar to
those in which Exhibits P-8 to P-10 (Panchnamas) were written.
Prosecution version was also doubted because PW2 stated at one place
that PW1 had been taken out of the hospital at the time of spot
inspection, he stated subsequently that PW1 was not taken out. The
evidence of PW1 was also discarded on the ground that there were
exaggerations and improvements and there was no specific mention about
identification by torch and moonlight in Exhibit P-1 as was stated in
Court. Only in the first information report, it was mentioned that
witness was holding a torch. He also found that the recovery of the
torch from the spot was doubtful. It was also noted that the torch was
broken and PW1 did not say as to how the torch was broken. The Trial
Court doubted the version of PW1 because no explanation was given as to
how his shirt was torn and this indicated that there was some violence.
The Trial Court noted that PW1 did not specifically say as to why PWs 3
and 4 declined to take the dead body of deceased and PW1 to a different
place, though PWs 3 and 4 gave details in Court. Another circumstance
to doubt the version of PW1 was that there were several injuries on the
body of the deceased, and the PW1, while PW1 stated that one blow each
was given to the deceased and to him. With these findings the Trial
Court found the accused persons not guilty and they were acquitted. In
appeal, the High Court found that each of the reasons given by the
Trial Court suffered from vulnerability. The High Court found that
evidence of PW1 was credible and cogent. So far as injuries on the
deceased and PW1 are concerned, it was noted that doctor had stated
that several injuries were possible because of one blow. In case of
PW1 one injury related to complaint of pain on the leg. When PW1 had
stated specifically about the torch in Exhibit P-1, the mere fact that
there was non-mention of moonlight was not good enough to discard the
evidence as unreliable. Similarly, even if torch was broken it was not
necessary for PW1 to explain how it was broken. Evidence was that he
had fallen down after receiving the blow on the head. It was also
noticed that PW2-doctor’s evidence did not affect the credibility of
prosecution evidence that PW1 was taken to the spot, in view of what
had been indicated by the doctor in his evidence and as borne out by
documents. Merely because PW1 had not indicated in Exhibit P-1 as to
why PWs 3 and 4 did not want to take deceased and PW1 in their
respective taxies that cannot be considered to be a vital omission. In
fact evidence of PWs 3 and 4 clearly establish the role of accused
persons and the veracity of prosecution version. With these findings
accused Augustine Saldanha was convicted and sentenced by Additional
Sessions Judge under Section 302 IPC as aforesaid. Similarly,
considering the nature of the injuries sustained by PW1, accused Rocky
Saldanha was sentenced to undergo one year imprisonment as noted above
for offences punishable under Section 324 IPC.
In support of the appeal learned counsel has submitted that the
Trial Court had correctly appreciated the evidence and the High Court
was not justified in reversing the findings. It was quite improbable
that PW1 identified the accused persons in the dark night. The
injuries found on the body of the deceased and PW1 do not tally with
the version as stated by PW1 in his evidence.
The evidence of PW1 and PW8 suffers from many infirmities. For
example, as to how PW1 who was in unconscious condition could be able
to give a report without any medical aid, is not explained. Residually,
it was argued that one blow was given in the dark night and it would
rule out application of Section 302 IPC.
In response, learned counsel for the State submitted that the
High Court has analysed the evidence in detail and found the acquittal
not justified. The circumstances which weighed the Trial Court are not
germane and the High Court has rightly held that the conclusions were
erroneous. The analysis made by the High Court suffers from no
infirmity and the conclusions are, therefore, in order. Minor and
trifle circumstances were magnified by the Trial Court as rightly
observed by the High Court.
We find that the High Court has analysed the evidence in great
detail, and concluded that Trial Court’s conclusions were fallacious
and based on magnification of trifle and unimportant materials, which
in no way affected credibility of prosecution version. We find no
deficiency in view taken by High Court.
The High Court was, therefore, justified in holding that
Augustine Saldanha and Rocky Saldanha were responsible for the death
and injury to the deceased and PW1 respectively.
The only other point which needs to be considered is whether
Section 302 IPC has been rightly made applicable.
This brings us to the crucial question 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 greatest 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.
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.
Section 299 Section
300
A person commits culpable homicide Subject to certain
exceptions
if the act by which the death is culpable homicide is
murder caused is done – if the act by
which the
death is caused is done –
INTENTION
(a) with the intention of causing (1) with the
intention of
death; or causing death; or
(b) with the intention of causing (2) with the
intention of
such bodily injury as is likely causing such
bodily injury
to cause death; or 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 (4) with the
knowledge that
is likely to cause death. 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.
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.
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” 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.
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.
In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), 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.
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.
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.”
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.”
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.
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 be
murder. Illustration (c) appended to Section 300 clearly brings out
this point.
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.
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.
The position was illuminatingly highlighted by this Court in
State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC
382) and recently in Abdul Waheed Khan @ Waheed and Ors. v. State of
Andhra Pradesh (JT 2002 (6) SC 274).
Undisputedly the incident took place in a dark night when
visibility was poor but identification was possible because the victims
of the assailants were known to each other. Therefore, there is
nothing wrong in PW1 identifying the accused persons. The fact remains
that in the dark night obviously one cannot move without a torch or
some other lighted object. In fact, in Exhibit P-1 also there is
mention of a torch.
It needs to be noted that only one blow was given in the dark
night. Though it cannot be said as a rule of universal application that
whenever one blow is given application of Section 302 IPC will be ruled
out and that even a single blow delivered with a heavy or dangerous
weapon on a vital part of the body would make the offence a murder. On
the peculiar facts found in the present case, we feel that clause
‘Thirdly’ of Section 300 cannot be applied. The blow was said to have
been delivered with a stick and in a pitch dark night of time in the
forest surroundings of the area where it occurred. It could not
reasonably be stated with any certainty that the accused chose that
vital part of the body to inflict the injury and that the blow was
aimed without any of such specific intention could have landed on the
head due to so many other circumstances, than due to any positive
intention also. We, therefore, alter the conviction of appellant
Augustine Saldanha from Section 302 IPC to Section 304 Part II.
Custodial sentence of eight years would meet ends of justice. His
appeal is accordingly allowed to the indicated extent. So far as
appellant Rocky Saldanha is concerned, in view of the detailed analysis
made by the High Court, we do not find any interference with his
conviction or the sentence imposed. His appeal is dismissed. The
accused persons who are on bail, are directed to surrender to custody
to serve remainder of their sentences.