CASE NO.: Appeal (crl.) 541 of 1999 PETITIONER: Subhash Shamrao Pachunde RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 08/12/2005 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT:
J U D G E M E N T
S.B. SINHA, J.
The sole appellant herein was prosecuted for commission of offences
with five others under Sections 147, 148, 302 read with Section 149 323,
324 and 149 of the Indian Penal Code.
Shamrao, father of the Appellant, was accused no. 1. The accused
nos. 3 and 4 Ganpati and Tanaji were his brothers whereas accused no. 5
Vijay Dattatray Salunke was his nephew. The accused no. 6 Vijay
Gangaram Patel was a close family friend.
By reason of its judgment dated 08.11.1989 the learned trial Judge
while convicting the Appellant under Section 302 of the IPC and sentencing
him to undergo imprisonment for life and pay a fine of Rs.10,000/- or in
default thereof to undergo rigorous imprisonment for three years, and the
accused nos. 1 and 4 under Section 324 of the IPC; acquitted the others of all
charges. The High Court in the appeals preferred by the appellant therein
affirmed the judgment passed by the learned trial Court but modified the
sentence in respect of accused nos. 1 and 4 to the period already undergone.
This appeal was admitted on a limited question, i.e., as regard nature
of offence.
Before adverting to the contentions raised in the appeal we may notice
the fact of the matter in brief. The parties were members of a joint family.
Shamrao, accused no. 1 and Prahlad were two brothers. Whereas accused
Nos. 2 to 5 belong to the branch of Shamrao; the deceased and the
complainant were sons of Prahlad. A partition took place between the said
brothers in 1984; whereby the northern portion of the open plot by the side
of Haripur Road was allotted to the share of Prahlad and the southern one to
Shamrao. The northern and southern portion of the plot is divided by a 15 ft.
wide road. Indisputably the relationships between the parties were strained.
All accused except accused no. 6 and the deceased as also the
complainant, sons of Prahlad, are thus closely related. It is not in dispute
that the complainant and his brothers had been bearing grudge against
Shamrao and his sons inter alia on the ground of inequitable division of the
joint family properties. Their residential houses of both parties were side by
side .
On the day of occurrence an almond tree was being planted in their
side of open plot by the accused. Rajendra, PW8 and his brother
Nandkumar, deceased were standing in their portion of the open plot
allegedly waiting for their friends for going to participate in a game of
Kabaddi to which accused nos. 2 and 3 asked them as to what they had
been watching. They replied that they were standing on their own plot
belonging to their father. The accused on that rushed towards them with
weapons. accused no. 1 had an iron-rod, accused no. 2 had a knife, accused
no. 3 was carrying a Pick-axe and accused no. 4 a shovel in their hand.
Seeing accused persons advancing towards them the complainant and the
deceased started retreading southwards, i.e., towards plot of the accused.
They fell in a gutter. Shamrao and Tanaji allegedly assaulted Rajendra
whereas Nandkumar was assaulted by the appellant and Ganpati, accused
no. 4 with the weapons in their hands. Rajendra tried to evade the assault on
him by Shamrao with iron-rod as a result whereof he received injury on his
back. A spade blow was given by Tanaji on his right foot. The appellant is
said to have inflicted knife blows on Nandkumar, one on the chest below the
left nipple and the other on the side near the arm-pit; whereas Ganpati is
said to have inflicted blow on his stomach on the left side above hip bone by
using pick-axe. The said incident is said to have been witnessed by Raju,
P.W. 9 and Shrirang Jadhav, P.W. 10 who are friends of Rajendra and who
were coming back from a temple. The accused thereafter ran away.
Whereas the deceased was shifted to hospital in a Rickshaw, the
complainant went to the Police Station alone in another Rickshaw It is not
in dispute that Baburao Thorat P.W. 16, the P.S.O. received a phone call
from Dr. Aphale informing that Nandkumar had been admitted to the
hospital by his brother Arvind.
The first information report lodged by Rajendra was recorded at 8.15
p.m. by Shri Thorat against the accused for commission of offences under
Section 307 read with Section 34 of the I.P.C. Shri Thorat again received a
call soon thereafter from Dr. Aphale informing him that Nandkumar had
died in the meanwhile.
The learned Sessions Judge did not believe a part of the prosecution
story, viz., that the complainant and the deceased fell into the gutter because
of the mischievous acts of tripping of their legs by the appellant and
Ganpati. He was also of the opinion that the accused nos. 5 and 6 had no
role to play in the incident. He furthermore held that the incident having
taken place at the spur of moment, no case of formation of common object
or common intention had been made out and consequently held that they
were guilty of commission of offences having regard to their individual acts.
Mr. V.A. Mohta, learned senior counsel appearing for the appellant
despite limited leave having been granted sought to argue the appeal on
merit which was not permitted. The learned counsel took us through the
judgments of both the courts below as also the evidence of P.W. 8 Rajendra,
P.W. 9 Raju and P.W. 10 Shrirrang. It was contended that the findings of
the Courts below holding the appellant guilty of commission of an offence
under Section 302 I.P.C. must be considered by us in the context that the
prosecution story was partly disbelieved. It was urged that admittedly the
incident occurred on the plot owned by his father and in that view of the
matter it cannot be said to be a case where the appellant had any intention or
motive to cause the death of the deceased and the accused nos. 1 and 4 to
cause injuries on P.W. 8. Learned Counsel further urged that Exhibit 31, the
knife, having not been found to be blood-stained, the purported recovery
thereof was irrelevant. It was further submitted that as both the Courts
below have concurrently found that the incident occurred at the spur of
the moment without there being premeditation and meeting of mind, the
appellant at best can be said to have committed an offence under Part II of
Sec. 304 of the Indian Penal Code. Our attention was also drawn to the fact
that weapons held by all the accused were available at the spot having been
carried by them for planting the almond tree. Mr. Mohta further submitted
that in a case of this nature the fourth Exception appended to Section 300 of
the I.P.C. would be attracted. Reliance in this behalf has been placed in the
case of Khanjan Pal v. State of U.P. (1990) 4 SCC 53 and Bhojappa
Hanumanthappa Choudannavar and ors. vs. State of Karnataka (2004) 2
SCC(Cri.) 1783.
Mr. Adsure, learned counsel appearing on behalf of the State, on the
other hand, submitted that the prosecution case has not only been supported
by the complainant but also by the independent eyewitnesses and having
regard to the fact that the appellant herein has inflicted two knife injuries on
the vital part of the body of the deceased, it is not a case where fourth
Exception to Section 300 of the I.P.C. shall apply.
Having regard to the fact that limited leave was granted in the matter,
namely, on the question of nature of offence, we are only called upon to
determine the question as to whether the offence of causing the death of
Nandkumar at the hands of the Appellant would come within the purview of
the fourth Exception to Section 300 I.P.C. or not.
The genesis of the occurrence is not in dispute. The complainant and
the deceased were watching plantation of an almond tree in their premises
by the accused from their own land. They cannot be said to have caused any
annoyance to them. It is the appellant and his brother who started exchange
of words by asking as to what they had been seeing. The answer by the
complainant to the effect that they had been standing on their own land
cannot be said to be a cause for the accused being greatly provoked so as to
cause bodily injuries on the deceased and the complainant. The appellant
and his companions who were armed with weapons assaulted the deceased
and the complainant who were unarmed and must have been taken by
surprise. Conceivably appellant nos. 1, 3 and 4 were carrying iron rod,
pick-axe and shovel respectively for the purpose of the plantation of the tree,
but the knife, which was the weapon of offence and was being carried by the
appellant herein, was not required for the said purpose. Why he was
carrying such a big knife remains unexplained.
Accused no. 1 and 4 as well as the appellant advanced towards the
deceased and the complainant as a result whereof they went near the gutter
which was just by the side of the land of the accused. It may or may not be
that both the deceased and the complainant were tripped into the gutter by
the mischievous acts on the part of the appellant and his brother Ganpati, but
the fact remains that they fell therein. The learned trial Judge in his
judgment found that while retreading, they fell into the gutter themselves.
The complainant and the deceased were assaulted in the gutter itself. They
were not carrying any weapon whereas the accused were carrying deadly
weapons. The effect of assault with deadly weapons on the vital part of the
body of the deceased by the appellant must be considered in the
aforementioned factual background. The learned trial judge and
consequently the High Court arrived at a finding of fact that the complainant
and the deceased fell into the gutter. The garments put on by the deceased
and the complainant as also the appellant were seized. The learned trial
Judge held that:
“It is also not in dispute that the none of the
accused has sustained any injury and, therefore, the fact
that arrest panchanama is not prepared, does not show
that there is manipulation on the part of the I.O. clothes,
of these accused are attached under panchanama Ex 44.
This panchanama is duly proved by P.W. 6 Chandrakant
Babar. Panchanama shows that Dhoti and Shirt of
Shamrao were stained with blood. There were blood
stains on the waist-band and pant of accused No. 2
Subhash, and the Bandi and under-pant of accused No. 3
Ganpati were soiled with silt. There were blood stains on
the pant of Tanaji. I have seen these garments at the time
of arguments. It is found that silt was on the sleeve of
shirt near the cuff, of accused No. 2 Subhash. These
stains are not mentioned in the panchanama. There was
silt on all the garments of accused No. 3 Ganapati. There
were mud stains on the pant, art. No. 22, of accused No.
4 Tanaji. It is pertinent to note here that according to
accused No. 3 he had also fallen in the gutter and,
therefore, the fact that all his clothes are covered with
silt, is explained. These facts establish beyond doubt
credibility of testimony of complainant and eye-
witnesses, P.W. 9 Raju Bavadekar and P.W. 10 Shrirang
@ Ranga Jadhav that the complainant and his brother
Nandkumar had fallen in the gutter and they were
assaulted in the gutter.”
The deceased and the complainant thus having fallen into the gutter
were not in a position to defend themselves.
At this juncture, we may notice the ante mortem injuries found on the
body of the deceased Nandkumar. The doctor who examined the deceased
stated:
“When I examined the patient, I found that the
patient was conscious. His general condition was poor.
There was severe pallor. Pulse 110 per minute.
Respiratory rate 40 per minute. B.P. 80 to 60 Hg.
Patient gave history of assault at 7 p.m. with knife.”
The post mortem was also conducted by him. The doctor further
opined:
“At the time of post-mortem, I observed that the
clothes of the deceased were wet with dirty water. I have
described external injuries in column No. 17. I have also
observed at the time of post-mortem that there was mark
of blood over chest, abdomen, legs hands mixed with
dirty water stains. These observations are mentioned in
column No. 14 of post-mortem notes.”
He further stated that :
“Contents of the post-mortem notes are correct.
Post mortem notes are marked as Exh. 67. All these
injuries were ante-mortem. Injury No. 1 in col. No. 17
corresponds to finding in col. No. 29(e) i.e. injury to left
lung. Injury No. 4 is surgical. Injury No. 2 corresponds
to internal injury described in col. No. 21 showing that
large intestine was punctured. The blood seen in the
peritoneam might on account of injury No.3 described in
column No. 17. Standing of pleura with blood is on
account injury No. 1. Inj. Nos. 1 to 3 and 5 can be
caused by hard and sharp weapon. Art. No. 31-knife
shown to witness. Injury No. 1, 2 and 5 can be caused by
this knife. Injury No. 5 can be caused while making
efforts to ward off the blow. Pick-axe (Art. No. 5) shown
to witness. Injury No. 3 can be caused by pointed end of
the pick-axe.”
In his opinion, the injury No. 1 by itself was sufficient in the ordinary
course of nature to cause death. Injury No. 2 and 3 can also cause death but
in that case the death will not be immediate. Those injuries however would
not be sufficient in the ordinary course of nature to cause death as there
could be chances of survival as well as of death. It was explained by him
that in his injury report he opined that injury no. 2 was muscle deep; at that
time he did not probe the injury. In his cross-examination, the doctor further
stated that:
“The direction of injury No. 1 is medial upto the
thylum of lung (root of lung). Direction of injury no. 2 is
downwards. Direction of injury no. 3 is medial. It is
correct to say that would cause by pick-axe (Article No.
5) will have lacerations on the edges of the wound. I
have not noted these lacerations while describing injury
No.3. It is correct to say that the weapon must enter upto
intestine for 6 inches for causing a puncture The depth of
this injury no. 3 is about 6 inches. Now says, I cannot
definitely say that inj. No. 3 can be caused by Article No.
5. Considering the fact that the weapons pierced the
body of 6 inches. It is a fact that I have described inj.
No. 2 in M.L.C. register as muscle deep. This is so
because at that time I did not probe the injury.”
The injury no. 1 therefore went right upto the right of the lung. The
appellant herein did not restrain himself after inflicting one injury. He
inflicted other and further injury also. The injuries, in view of the post
mortem report, admittedly were more than one.
It is, thus, not a case where only one injury was inflicted by the
accused on sudden provocation.
Section 299 I.P.C. reads as under:
“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”
Section 300 I.P.C. reads as under:
“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-
Secondly,- 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-
Thirdly,- 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-
Fourthly,- 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 2 to the said Rule postulates that “when 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 persons who gave the
provocation or causes the death of any other person by mistake or accident.”
Exception 4 to the said Rule reads thus:
“Exception 4. Culpable homicide is not murder if
it is committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a
cruel or unusual manner.”
In this case Exception 2 has no application as the Appellant cannot be
said to have committed offence whilst deprived with the power of self-
control by grave and sudden provocation, as has been noticed hereinbefore,
that in the facts and circumstances of the case the deceased and the
complainant cannot be said to have caused any provocation to the Appellant.
The distinction between the offences of culpable homicide and murder
is the presence of special mens rea which consists of four mental attitudes in
the presence of any of which the lesser offence becomes greater. These
attitudes are stated in Section 300 IPC as distinguishing murder from
culpable homicide not amounting to murder.
The ingredients of the said Exception 4 are (i) there must be a sudden
fight; (ii) there was no pre-meditation; (iii) the act was committed in a heat
of passion and (iv) the assailant had not taken any undue advantage or acted
in a cruel manner.
In the event the said ingredients are present, the cause of quarrel
would not be material as to who offered the provocation or started assault.
Indisputably, however, the occurrence must be sudden and not pre-meditated
and the offender must have acted in a fits of anger.
In Rajendra Singh & Ors. v. State of Bihar (2000) 4 SCC 298 at p.
307 this Court held:
“So far as the third contention of Mr. Mishra is
concerned, the question for consideration would be as to
whether the ingredients of Exception 4 to Section 300 of
the Indian Penal Code can be said to have been satisfied.
The necessary ingredients of Exception 4 to Section 300
are:
(a) a sudden fight;
(b) absence of premeditation;
(c) no undue advantage or cruelty.
but the occasion must be sudden and not as a cloak for
pre-existing malice. It is only an unpremeditated assault
committed in the heat of passion upon a sudden quarrel
which would come within Exception 4 and it is necessary
that all the three ingredients must be found. From the
evidence on record it is established that while the
prosecution party was on their land it is the accused who
protested and prevented them from continuing with
ploughing but when they did not stop the accused persons
rushed to the nearby plot which is their land and got
weapons in their hands and assaulted the prosecution
party ultimately injuring several members of the
prosecution party and causing the death of one of them
while they were fully unarmed. In this view of the matter
on scrutinizing the evidence of the four eyewitnesses
PWs 2, 4, 7 and 8 who have depicted the entire scenario
it is not possible for us to agree with the submission of
Mr. Mishra, learned Senior Counsel appearing for the
appellants that the case is one where Exception 4 to
Section 300 would be applicable. We, therefore, reject
the said submission of the learned counsel.”
Even if it be assumed that responses to the questions put to the
deceased or the complainant caused provocation, the same evidently was
because of the pre-existing malice and the bias which the Appellant had
against them. Moreover, the manner in which the deceased and the
complainant were assaulted show that the assailants took undue advantage of
the situation as they fell into the gutter and were, thus, in a helpless
condition.
In Prabhu and ors. vs. State of M.P. [1991 Suppl. (2) SCC 725] a
three Judge Bench of this Court rejected a similar contention in a case where
the accused inflicted more than one injury stating :
“The evidence of PW 4, Dr. C.K. Dafal,
however, shows that the deceased was belaboured
mercilessly. There were innumerable contusions on the
entire body of the deceased from head to toe. The wrist,
humerus, etc. were fractured and the whole body was full
of rod marks. There were several contused lacerated
wounds on the entire face and the left eye was bleeding.
The totality of the injuries caused to the victim clearly
supports the finding of both the courts below that the
appellants went on belabouring the deceased till he died
on the spot.
In Thangaiya v. State of T.N. [(2005) 9 SCC 650], relying upon a
celebrated decision of this Court in Virsa Singh v. State of Punjab [1958
SCR 1495], 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 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.”
Therein it was held that there is no fixed rule that whenever a single
blow is inflicted Section 302 would not be attracted.
No hard and fast rule, however, can be laid down as different
situations may arise having regard to the factual matrix involved therein.
Khanjan Pal v. State of U.P. [(1990) 4 SCC 53] relied upon by Mr.
Mohta is distinguishable. In that case altercations between the deceased and
the accused was admitted. A scuffle took place in course whereof the
deceased received injuries. Evidence brought on records clearly established
that the whole incident took place as a result of sudden development. The
appellant therein was found to have acted at the spur of the moment and
without any premeditation.
In this case, there was no provocation from the side of the deceased.
He did not make even any causal remark which could provoke him nor the
parties entered in altercations which culminated in the incident.
In Bhojappa Hanumanthappa (supra) whereupon again Mr. Mohta
placed reliance the fact of the matter was entirely different as would appear
from the following :
“A commotion took place in front of the house of
Bhimappa (PW1) during the night of 10-9-1984. The
appellant and his co-accused were involved in assaulting
Bhimappa and his brothers-in-law. While the brawl was
in full swing PW 1’s daughter Renu Kavva, a twelve year
old little girl, rushed to the scene presumably to rescue
her father whom she would have thought to be in a
dangerous situation. The appellant herein then swished a
wooden hammer he was then possessed with, which hit
on the head of Renu Kavva, which unfortunately turned
out to be fatal. Therefore, the High Court, on the appeal
against acquittal, found that the appellant did not intend
to inflict the injury which caused her death. We are in
agreement with the finding of the High Court that the
offence is only under Section 304 Part II IPC.”
In the afore-mentioned situation, this Court opined that the appellant
therein had no ire against the little girl either before or during the
occurrence. It was an act done in a rash mood with no intention to cause
even grievous hurt to her.
The case at hand stands absolutely on a different footing. The
reported blows on the body of the deceased evidently were done with an
intention to cause bodily injuries to him and such injuries were sufficient in
the ordinary course of nature to cause death, the offence would come within
the purview of culpable homicide amounting to murder as envisaged under
Section 300 of the I.P.C.
Having regard to the facts and circumstances of the present case and
for the reasons stated hereinbefore, we are of the opinion that it is not a fit
case where a different opinion from that of the trial court as also the High
Court can be arrived at. Both the courts, in our considered view had rightly
convicted the appellant herein for commission of an offence under Section
302 of the I.P.C. The appeal being devoid of any merit is dismissed.