{"id":226191,"date":"2008-04-03T00:00:00","date_gmt":"2008-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daya-nand-vs-state-of-haryana-on-3-april-2008"},"modified":"2015-12-07T22:36:44","modified_gmt":"2015-12-07T17:06:44","slug":"daya-nand-vs-state-of-haryana-on-3-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daya-nand-vs-state-of-haryana-on-3-april-2008","title":{"rendered":"Daya Nand vs State Of Haryana on 3 April, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Daya Nand vs State Of Haryana on 3 April, 2008<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, P. Sathasivam<\/div>\n
           CASE NO.:\nAppeal (crl.)  595 of 2008\n\nPETITIONER:\nDaya Nand\n\nRESPONDENT:\nState of Haryana\n\nDATE OF JUDGMENT: 03\/04\/2008\n\nBENCH:\nDr.  ARIJIT PASAYAT & P. SATHASIVAM\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nREPORTABLE<\/p>\n
CRIMINAL APPEAL NO.  595        OF 2008
\n(Arising out of SLP (Crl.) No.4325 of 2007)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the judgment rendered by a
\nDivision Bench of the Punjab and Haryana High Court
\nupholding the conviction of the appellant for offence
\npunishable under Section 302 of the Indian Penal Code, 1860
\n(in short ‘IPC’) in terms of the judgment dated 9\/10.10.1997
\npassed by the Additional Sessions Judge, Hissar.\n<\/p>\n
3.\tA synoptical resume of the prosecution case is as under:\n<\/p>\n
The prosecution machinery was set into motion at the
\ninstance of Shankar – PW 5 who had four brothers. Chhajju
\nRam (hereinafter referred to as the ‘Deceased’) was younger to
\nPW 5- Shankar and they had a joint khewat in the revenue
\nestate of village Sirdhan. On 9.9.1993 the said Shankar and
\nhis brother Nain Sukh and deceased Chhajju Ram went to
\ntheir fields known as Theriwala for irrigating the land. Amar
\nSingh (who faced trial and was acquitted) and Daya Nand
\n(appellant herein) were already irrigating their fields. Shankar
\nand others were to take turn of irrigation at 8.00 A.M. from
\nthe accused. At 8.00 A.M. deceased Chhajju Ram diverted the
\nirrigation water to his field. Accused Daya Nand objected that
\nhis turn of water had not yet started. Chhajju Ram retorted
\nthat their turn started from 8.00 A.M. onwards. An altercation
\ntook place between Shankar and the deceased on one side
\nand the accused on the other. Accused threatened that they
\nwill see them and both of them left towards the village.
\nShankar and others also went to supervise the flow of
\nirrigation water through the water courses. In the meantime,
\nboth the accused came from the side of village Sirdhan.
\nAccused Daya Nand was armed with a gun. Accused Amar
\nSingh exhorted his son accused -Daya Nand to fire a shot.
\nAccused Daya Nand then fired a shot from his gun towards
\nChhajju Ram who took a turn but was hit on the right side of
\nthe waist and fell down. Blood started oozing out from the fire
\nshot injury. Nain Sukh (PW-6) also reached there at the Naka
\nand witnessed the occurrence apart from Shankar. Thereafter,
\naccused fled away towards the village along with the gun.
\nChhajju Ram was admitted to Civil Hospital, Fatehabad by his
\nbrother Shanker and Nain Sukh, where he was declared dead
\nby the doctor. Ruqa Ex. PG was sent by Dr. Jagdish
\nChaudhry to the Station House Officer, Police Station
\nFatehabad. A wireless message Ex. PK was sent by the said
\nPolice Station to Police Station Bhattu. Ram Kumar, Assistant
\nSub inspector along with some constables reached Civil
\nHospital Fatehabad and recorded the statement of Shanker in
\nCivil Hospital, Fatehabad. That statement Ex. PG\/1 was sent
\nto the Police Station and on its basis, FIR was recorded by
\nSatbir Singh MHC, copy of which is Ex. PG\/3. Inquest
\nproceedings were conducted and report Ex. PF\/1 was
\nprepared by Ram Kumar Assistant Sub Inspector in the
\npresence of Devi Lal and Shanker Lal PWs. He moved an
\napplication Ex. PF and post mortem examination was
\nconducted vide report Ex. PF\/2 by Dr. S.P. Mimani. Multiple
\nwounds of small sizes were found and eleven pellets were
\nrecovered from the abdomen of the deceased. The pellets were
\nsealed in a vial. The clothes of the deceased were removed and
\nsealed into a parcel. The cause of death was due to shock and
\nhaemorrhage as a result of fire arm injuries which were ante
\nmortem in nature and sufficient to cause death in the
\nordinary course of nature vide post mortem report Ex. PF\/2.
\nRam Kumar, Assistant Sub Inspector along with Ram Kumar
\nConstable then went to village Sirdhan. He inspected the spot
\nin the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij
\nLal, Chowkidar. Blood stained earth was lifted, made into a
\nsealed parcel and taken into possession vide recovery memo
\nEx. PH. One empty cartridge of 12 bore was found lying which
\nwas also lifted, made into a sealed parcel and taken into
\npossession vide memo Ex. PJ. Rough site plan, Ex. PL, was
\nprepared and statements of other witnesses were recorded.
\nAccused Daya Nand produced a double barrel gun, Ex. P-8,
\nlicence, Ex. P-9, and two live cartridges. Sketch map, Ex. PP
\nof the gun was prepared. The gun was placed in a sealed
\nparcel. The licence and the two live cartridges were also sealed
\nin parcel and taken into possession vide memo Ex. PP\/1. The
\ncase property was sent for Chemical Examination and for
\nreport of the Ballistic expert of Forensic Science Laboratory,
\nHaryana, Madhuban. Vide report, Ex. PO, the double barrel
\ngun, Ex. P8, was found in working order, the empty cartridge
\nhereinafter referred to as the crime cartridge, which was lifted
\nfrom the spot, Ex. P6, was opined to have been fired from the
\nsaid gun. The pellets recovered from the dead body were
\nopined to be pellets as are usually loaded in shot gun
\ncartridges, including 12 bore cartridge. As per reports, Ex.
\nPO\/1 and Ex. P0\/2, human blood was found in blood stained
\nearth and on shirt, Ex. P-1, Banian, Ex. P-2 and underwear
\nEx. P-3 of the accused. After completion of investigation,
\naccused was sent up for trial.\n<\/p>\n
Charge was framed against accused Daya Nand under
\nSection 302 IPC and 27 of the Arms Act, 1959. Charge was
\nframed against accused Amar Singh under Section 302 read
\nwith Section 34 IPC.\n<\/p>\n
4.\tIn order to establish the accusations the prosecution
\nexamined 10 witnesses and the report of the Forensic Science
\nLaboratory, Haryana, Madhuban was exhibited.\n<\/p>\n
5.\tAccused persons during their examination under Section
\n313 of the Code of Criminal Procedure, 1973 (in short
\n‘Cr.P.C.’) pleaded innocence and false implication.  The Trial
\nCourt relied on the evidence of eye witnesses Shankar (PW5)
\nand Nain Sukh (PW6).  It found the prosecution evidence
\ncogent and credible and recorded conviction of the appellant.
\nBut so far as accused Amar Singh is concerned, it was held
\nthat the evidence was not sufficient to fasten guilt on him.\n<\/p>\n
6.\tIn appeal, it was submitted that the evidence of Shankar
\n(PW5) and Nain Sukh (PW6) should not have been relied upon.
\nIt was further submitted that a single shot that too on the hip
\ncannot attract application of Section 302 IPC.  Prosecution
\nwith reference to the evidence of Shankar (PW5) and Nain
\nSukh (PW6) submitted that the evidence was clear and cogent
\nand, therefore, the accused persons were to be convicted.  The
\nHigh Court, as noted above, dismissed the appeal.\n<\/p>\n
7.\tBasic challenge in this appeal is to the conviction under
\nSection 302 IPC.\n<\/p>\n
8.\tIt was contended, as was done before the Trial Court and
\nthe High Court, that Section 302 IPC has no application.\n<\/p>\n
9.\tLearned counsel for the State, on the other hand
\nsupported the impugned judgment.\n<\/p>\n
10.\tThe crucial question is as to which was the appropriate
\nprovision to be applied.  In the scheme of the IPC culpable
\nhomicide is genus and ‘murder’ its specie.  All ‘murder’ is
\n‘culpable homicide’ but not vice-versa. Speaking generally,
\n‘culpable homicide’ sans ‘special characteristics of murder is
\nculpable homicide not amounting to murder’. For the purpose
\nof fixing punishment, proportionate to the gravity of the
\ngeneric offence, the IPC practically recognizes three degrees of
\nculpable homicide.  The first is, what may be called, ‘culpable
\nhomicide of the first degree’. This is the gravest form of
\nculpable homicide, which is defined in Section 300 as
\n‘murder’.  The second may be termed as ‘culpable homicide of
\nthe second degree’.  This is punishable under the first part of
\nSection 304. Then, there is ‘culpable homicide of the third
\ndegree’.  This is the lowest type of culpable homicide and the
\npunishment provided for it is also the lowest among the
\npunishments provided for the three grades. Culpable homicide
\nof this degree is punishable under the second part of Section\n<\/p>\n
304.<\/p>\n
11.\tThe academic distinction between ‘murder’ and ‘culpable
\nhomicide not amounting to murder’ has always vexed the
\nCourts.  The confusion is caused, if Courts losing sight of the
\ntrue scope and meaning of the terms used by the legislature in
\nthese sections, allow themselves to be drawn into minute
\nabstractions.  The safest way of approach to the interpretation
\nand application of these provisions seems to be to keep in
\nfocus the keywords used in the various clauses of Sections
\n299 and 300. The following comparative table will be helpful in
\nappreciating the points of distinction between the two offences.\n<\/p>\n
\t\tSection 299\t\t\t\t\tSection 300<\/p>\n
A person commits culpable homicide\t\tSubject to certain exceptions
\nif the act by which the death is\t\tculpable homicide is murder  caused is done
\n\t\t\t\t\tif the act by which the
\n\t\t\t\t\t\t\tdeath is caused is done –<\/p>\n
\n\nINTENTION\n\n(a) with the intention of causing  \t\t(1) with the intention of \n    death; or\t\t\t\t\tcausing death; or\n\n<\/pre>\n
(b) with the intention of causing \t\t(2) with the intention of
\n    such bodily injury as is likely  \tcausing such bodily injury
\n\t to cause death; or \t\t\t\tas the offender knows to be
\n\t\t\t\t\t\t\t\tlikely to cause the death of
\n\t\t\t\t\t\t\t\tthe person to whom the harm
\n\t\t\t\t\t\t\t\tis caused; or<\/p>\n
\t\t\t\t\t\t\t\t(3) With the intention of
\n\t\t\t\t\t\t\t\tcausing bodily injury to any
\n\t\t\t\t\t\t\t\tperson and the bodily injury
\n\t\t\t\t\t\t\t\tintended to be inflicted
\n\t\t\t\t\t\t\t\tis sufficient in the
\n\t\t\t\t\t\t\t\tordinary course of nature
\n\t\t\t\t\t\t\t\tto cause death; or<\/p>\n
KNOWLEDGE
\n****<\/p>\n
(c) with the knowledge that the act      (4) with the knowledge that
\n\t is likely to cause death.\t\t\tthe act is so imminently
\n\t\t\t\t\t\t\t\tdangerous that it must in all
\n\t\t\t\t\t\t\t\tprobability cause death or
\n\t\t\t\t\t\t\t\tsuch bodily injury as is
\n\t\t\t\t\t\t\t\tlikely to cause death, and
\n\t\t\t\t\t\t\t\twithout any excuse for
\n\t\t\t\t\t\t\t\tincurring the risk of causing
\n\t\t\t\t\t\t\t\tdeath or such injury as is
\n\t\t\t\t\t\t\t\tmentioned above.\n<\/p>\n
12.\tClause (b) of Section 299 corresponds with clauses (2)
\nand (3) of Section 300.  The distinguishing feature of the mens
\nrea requisite under clause (2) is the knowledge possessed by
\nthe offender regarding the particular victim being in such a
\npeculiar condition or state of health that the internal harm
\ncaused to him is likely to be fatal, notwithstanding the fact
\nthat such harm would not in the ordinary way of nature be
\nsufficient to cause death of a person in normal health or
\ncondition.  It is noteworthy that the ‘intention to cause death’
\nis not an essential requirement of clause (2).  Only the
\nintention of causing the bodily injury coupled with the
\noffender’s knowledge of the likelihood of such injury causing
\nthe death of the particular victim, is sufficient to bring the
\nkilling within the ambit of this clause.  This aspect of clause
\n(2) is borne out by illustration (b) appended to Section 300.\n<\/p>\n
13.\tClause (b) of Section 299 does not postulate any such
\nknowledge on the part of the offender.  Instances of cases
\nfalling under clause (2) of Section 300 can be where the
\nassailant causes death by a fist blow intentionally given
\nknowing that the victim is suffering from an enlarged liver, or
\nenlarged spleen or diseased heart and such blow is likely to
\ncause death of that particular person as a result of the
\nrupture of the liver, or spleen or the failure of the heart, as the
\ncase may be.  If the assailant had no such knowledge about
\nthe disease or special frailty of the victim, nor an intention to
\ncause death or bodily injury sufficient in the ordinary course
\nof nature to cause death, the offence will not be murder, even
\nif the injury which caused the death, was intentionally given.
\nIn clause (3) of Section 300, instead of the words ‘likely to
\ncause death’ occurring in the corresponding clause (b) of
\nSection 299, the words “sufficient in the ordinary course of
\nnature to cause death” have been used. Obviously, the
\ndistinction lies between a bodily injury likely to cause death
\nand a bodily injury sufficient in the ordinary course of nature
\nto cause death. The distinction is fine but real and if
\noverlooked, may result in miscarriage of justice. The difference
\nbetween clause (b) of Section 299 and clause (3) of Section 300
\nis one of the degree of probability of death resulting from the
\nintended bodily injury.  To put it more broadly, it is the degree
\nof probability of death which determines whether a culpable
\nhomicide is of the gravest, medium or the lowest degree.  The
\nword ‘likely’ in clause (b) of Section 299 conveys the sense of
\nprobable as distinguished from a mere possibility.  The words
\n“bodily injury…….sufficient in the ordinary course of nature to
\ncause death” mean that death will be the “most probable”
\nresult of the injury, having regard to the ordinary course of
\nnature.\n<\/p>\n
14.\tFor cases to fall within clause (3), it is not necessary that
\nthe offender intended to cause death, so long as the death
\nensues from the intentional bodily injury or injuries sufficient
\nto cause death in the ordinary course of nature.  Rajwant and
\nAnr. v. State of Kerala, (AIR 1966 SC 1874) is an apt
\nillustration of this point.\n<\/p>\n
15.\tIn Virsa Singh v. State of Punjab, (AIR<\/a> 1958 SC 465),
\nVivian Bose, J. speaking for the Court, explained the meaning
\nand scope of clause (3). It was observed that the prosecution
\nmust prove the following facts before it can bring a case under
\nSection 300, “thirdly”. First, it must establish quite objectively,
\nthat a bodily injury is present; secondly the nature of the
\ninjury must be proved. These are purely objective
\ninvestigations.  Thirdly, it must be proved that there was an
\nintention to inflict that particular injury, that is to say, that it
\nwas not accidental or unintentional or that some other kind of
\ninjury was intended.  Once these three elements are proved to
\nbe present, the enquiry proceeds further, and fourthly it must
\nbe proved that the injury of the type just described made up of
\nthe three elements set out above was sufficient to cause death
\nin the ordinary course of nature. This part of the enquiry is
\npurely objective and inferential and has nothing to do with the
\nintention of the offender.\n<\/p>\n
16.\tThe ingredients of clause “Thirdly” of Section 300, IPC
\nwere brought out by the illustrious Judge in his terse language
\nas follows:\n<\/p>\n
“To put it shortly, the prosecution must prove
\nthe following facts before it can bring a case
\nunder Section 300, “thirdly”.\n<\/p>\n
First, it must establish, quite objectively, that
\na bodily injury is present.\n<\/p>\n
Secondly, the nature of the injury must be
\nproved.  These are purely objective
\ninvestigations.\n<\/p>\n
Thirdly, it must be proved that there was an
\nintention to inflict that particular bodily injury,
\nthat is to say that it was not accidental or
\nunintentional, or that some other kind of
\ninjury was intended.\n<\/p>\n
Once these three elements are proved to be
\npresent, the enquiry proceeds further and,<\/p>\n
Fourthly, it must be proved that the injury of
\nthe type just described made up of the three
\nelements set out above is sufficient to cause
\ndeath in the ordinary course of nature.  This
\npart of the enquiry is purely objective and
\ninferential and has nothing to do with the
\nintention of the offender.”\n<\/p>\n
17.\tThe learned Judge explained the third ingredient in the
\nfollowing words (at page 468):\n<\/p>\n
“The question is not whether the prisoner
\nintended to inflict a serious injury or a trivial
\none but whether he intended to inflict the
\ninjury that is proved to be present.  If he can
\nshow that he did not, or if the totality of the
\ncircumstances justify such an inference, then
\nof course, the intent that the section requires
\nis not proved.  But if there is nothing beyond
\nthe injury and the fact that the appellant
\ninflicted it, the only possible inference is that
\nhe intended to inflict it. Whether he knew of its
\nseriousness or intended serious consequences,
\nis neither here or there.  The question, so far
\nas the intention is concerned, is not whether
\nhe intended to kill, or to inflict an injury of a
\nparticular degree of seriousness but whether
\nhe intended to inflict the injury in question
\nand once the existence of the injury is proved
\nthe intention to cause it will be presumed
\nunless the evidence or the circumstances
\nwarrant an opposite conclusion.”\n<\/p>\n
18.\tThese observations of Vivian Bose, J. have become locus
\nclassicus.  The test laid down by Virsa Singh’s case (supra) for
\nthe applicability of clause “Thirdly” is now ingrained in our
\nlegal system and has become part of the rule of law. Under
\nclause thirdly of Section 300 IPC, culpable homicide is
\nmurder, if both the following conditions are satisfied: i.e. (a)
\nthat the act which causes death is done with the intention of
\ncausing death or is done with the intention of causing a bodily
\ninjury; and (b) that the injury intended to be inflicted is
\nsufficient in the ordinary course of nature to cause death. It
\nmust be proved that there was an intention to inflict that
\nparticular bodily injury which, in the ordinary course of
\nnature, was sufficient to cause death, viz., that the injury
\nfound to be present was the injury that was intended to be
\ninflicted.\n<\/p>\n
19.\tThus, according to the rule laid down in Virsa Singh’s
\ncase, even if the intention of accused was limited to the
\ninfliction of a bodily injury sufficient to cause death in the
\nordinary course of nature, and did not extend to the intention
\nof causing death, the offence would not be murder.
\nIllustration (c) appended to Section 300 clearly brings out this
\npoint.\n<\/p>\n
20.\tClause (c) of Section 299 and clause (4) of Section 300
\nboth require knowledge of the probability of the act causing
\ndeath.  It is not necessary for the purpose of this case to dilate
\nmuch on the distinction between these corresponding clauses.
\nIt will be sufficient to say that clause (4) of Section 300 would
\nbe applicable where the knowledge of the offender as to the
\nprobability of death of a person or persons in general as
\ndistinguished from a particular person or persons  being
\ncaused from his imminently dangerous act, approximates to a
\npractical certainty. Such knowledge on the part of the offender
\nmust be of the highest degree of probability, the act having
\nbeen committed by the offender without any excuse for
\nincurring the risk of causing death or such injury as aforesaid.\n<\/p>\n
21.\tThe above are only broad guidelines and not cast iron
\nimperatives. In most cases, their observance will facilitate the
\ntask of the Court. But sometimes the facts are so intertwined
\nand the second and the third stages so telescoped into each
\nother that it may not be convenient to give a separate
\ntreatment to the matters involved in the second and third
\nstages.\n<\/p>\n
22.\tThe position was illuminatingly highlighted by this Court
\nin State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.<\/a>
\n(1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors.
\nv. State of Andhra Pradesh<\/a> (2002 (7) SCC 175), Augustine
\nSaldanha v. State of Karnataka<\/a> (2003 (10) SCC 472),
\nThangiya v. State of T.N. (2005 (9) SCC 650) and in Rajinder v.
\nState of Haryana<\/a> (2006 (5) SCC 425).\n<\/p>\n
23.\tConsidering the evidence on record in the background of
\nthe principles of law, the inevitable conclusion is that the
\nappropriate conviction would be under Section 304 Part II IPC.
\nThe conviction is accordingly altered.\n<\/p>\n
24.\tUndisputedly, the accused has suffered custody of nearly
\n8= years.  The sentence is restricted, therefore, to the period
\nalready undergone.  The appeal is allowed to that extent.  The
\naccused person be set at liberty forthwith unless required in
\ncustody in any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Daya Nand vs State Of Haryana on 3 April, 2008 Author: . A Pasayat Bench: Dr. Arijit Pasayat, P. Sathasivam CASE NO.: Appeal (crl.) 595 of 2008 PETITIONER: Daya Nand RESPONDENT: State of Haryana DATE OF JUDGMENT: 03\/04\/2008 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-226191","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDaya Nand vs State Of Haryana on 3 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/daya-nand-vs-state-of-haryana-on-3-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daya Nand vs State Of Haryana on 3 April, 2008 - 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