{"id":253949,"date":"2010-07-30T00:00:00","date_gmt":"2010-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagwati-vs-state-of-u-p-on-30-july-2010"},"modified":"2016-12-16T00:47:23","modified_gmt":"2016-12-15T19:17:23","slug":"bhagwati-vs-state-of-u-p-on-30-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagwati-vs-state-of-u-p-on-30-july-2010","title":{"rendered":"Bhagwati vs State Of U.P. on 30 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Bhagwati vs State Of U.P. on 30 July, 2010<\/div>\n
                                                                     1\n\n                                                             Reserved\n             CRIMINAL APPEAL NO. 669 OF 1981\n\n\n                    Bhagwati vs. State of U.P.\n\n\n\n\nHON'BLE SATYENDRA SINGH CHAUHAN, J.\n<\/pre>\n
HON’BLE SHRI KANT TRIPATHI, J.\n<\/p>\n
            (Delivered by Hon’ble Shri Kant Tripathi, J.)<\/p>\n
  1. The appellant Bhagwati has preferred this appeal against the
\n    judgment and order dated 21.9.1981 rendered by Sri N.B.
\n    Asthana, the then II Additional Sessions Judge, Raebareli in S.T.
\n    No. 6 of 1981, State versus Bhagwati, whereby the learned
\n    Additional Sessions Judge has convicted and sentenced the
\n    appellant under section 302<\/a> IPC to under go imprisonment for
\n    life.\n<\/p>\n
  2. The prosecution story leading to this appeal is that the appellant
\n    Bhagwati and the deceased Vrinda Ban’s daughter PW-3 Dharma
\n    Devi were husband and wife but their relations were strained due
\n    to which PW-3 Dharma Devi was living in the house of her
\n    father and was not agreeable to go and live with the appellant.
\n    According to PW-3 Dharma Devi, she was being ill-treated by
\n    the appellant and his family members, due to which she started
\n    to live with her parents leaving the house of the appellant. It
\n    may, however, be mentioned that PW-3 Dharma Devi had lived
\n    for about six months in all with the appellant before the incident
\n    in question. On 5.11.1979, the deceased Vrinda Ban, his daughter
\n    PW-3 Dharma Devi and his son Goverdhan had visited the house
\n    of the informant PW-1 Shiv Bhajan, who happens to be the
\n    maternal uncle of PW-3 Dharma Devi, in connection with Hatiya
\n    Ka Mela. The appellant Bhagwati had also come there to request
\n    the deceased to “send off” of PW-3 Dharma Devi with him and
\n                                                                   2<\/span><\/p>\n
  stayed in the house of PW-1 Shiv Bhajan in the night. The
\n                                 2.<\/span>
\n  appellant tried to persuade PW-3 Dharma Devi even at the house
\n  of PW-1 Shiv Bhajan but she was not agreeable to go with the
\n  appellant, consequently, the deceased Vrinda Ban refused to
\n  ‘send off’ PW-3 Dharma Devi. It is also alleged that on 6.11.1979
\n  at about 5.30 PM the deceased, his son and daughter (PW-3
\n  Dharma Devi) as well as the appellant left the house of
\n  informant PW-1 Shiv Bhajan for going to their houses. When
\n  they reached the village Kakrahiya Purwa near a well at about
\n  5.30 PM an exchange of hot words took place between the
\n  appellant and the deceased. The appellant, thereupon assaulted
\n  the deceased with a hockey stick, consequently, the deceased
\n  sustained a serious head injury and became unconscious. The
\n  appellant fled away after assaulting the deceased. It is also
\n  alleged that the deceased was immediately taken to the District
\n  Hospital Raebareli for treatment where he succumbed to injuries
\n  on the next morning at about 5.00 AM. After the death of the
\n  deceased Vrinda Ban, his brother in law Shiv Bhajan (PW-1)
\n  lodged the FIR at police station Dalmau on 7.11.1979 at about
\n  12.30 PM, on which basis the police registered the case and held
\n  the investigation.\n<\/p>\n
3. The deceased Vrinda Ban was medically examined on 7.11.1979
\n  at about 4.30 AM by PW-4 Dr. Surendra Singh at the District
\n  Hospital, Raebareli at the time of his admission in the hospital.
\n  The following injury was found on the body of the deceased :\n<\/p>\n
        “Lacerated wound 7 Cm x 1 Cm x skull deep (bone)
\n        over left aspect of scalp 5 Cm above the eye brow
\n        left longitudinally.\n<\/p><\/blockquote>\n
        Margins were red and swollen.”\n<\/p><\/blockquote>\n
4. The injured (deceased) was unconscious at that time. His pupils
\n  were dilated and were not reacting to light. The injury was kept
\n  under observation and an x-ray thereof was advised. According
\n                                                                   3<\/span><\/p>\n
  to Dr. Surendra Singh (PW-4) the injury of the injured
\n  (deceased) was caused by a blunt object and was about a half day
\n                                 3.<\/span>
\n  old at the time of medical examination. The injury report
\n  prepared by Dr. Surendra Singh (PW-4) is on record as Exhibit
\n  Ka-2.\n<\/p>\n
5. The deceased died in the District Hospital, Raebareli on
\n  7.11.1979 at about 6.40 AM. PW-6 Dr. K.N. Mehrotra had made
\n  the postmortem examination on the dead body of the deceased
\n  on 7.11.1979 at about 4.00 PM. The following ante-mortem
\n  injury was found on the dead body of the deceased:\n<\/p>\n
        “Lacerated wound 7 Cm x 1 Cm x bone deep, towards
\n        left side of the head, vertical at a distance of about 4.5
\n        Cm from the left eye brow.”\n<\/p><\/blockquote>\n
6. Upon internal examination fractures of frontal and left parietal
\n  bones of skull were also found. A big haematoma towards the
\n  left side of the brain was also found by Dr. K.N. Mehrotra (PW-\n<\/p>\n
  6). The cause of death was due to shock and haemorrhage as a
\n  result of the head injury, which according to Dr. Mehrotra, was
\n  sufficient in the ordinary course to cause death. Postmortem
\n  examination report prepared by PW-6 Dr. K.N. Mehrotra is on
\n  record as Exhibit Ka-8.\n<\/p>\n
7. PW-5 Kesho Ram Verma (the investigating officer) made
\n  investigation of the case. He visited the place of occurrence and
\n  prepared the site plan (Exhibit Ka-5) and collected blood stained
\n  earth and plain earth from the place of occurrence and prepared a
\n  memo thereof (Exhibit Ka-6) and after concluding the
\n  investigation, submitted the charge sheet (Exhibit Ka-7) against
\n  the appellant.\n<\/p>\n
8. The appellant Bhagwati was charged under section 302<\/a> IPC. He
\n  denied the charge and claimed to be tried.\n<\/p>\n
9. The prosecution examined as many as seven witnesses in support
\n  of its case. PW-1 Shiv Bhajan, who is the real brother in law of
\n  the deceased and was present at the time of the incident, has
\n                                                                   4<\/span><\/p>\n
  proved the FIR (Exhibit Ka-1) and has also given an eye witness
\n  account of the occurrence. It is alleged that this witness was
\n  going to village Kurhwal alongwith the deceased, the appellant
\n                                  4.<\/span>
\n  and PW-3 Dharma Devi. PW-2 Swami Deen, who is alleged to
\n  be an independent witness and a resident of the locality, was
\n  present in a nearby field and witnessed the occurrence therefrom
\n  and also visited the place of occurrence on hearing the quarrel.
\n  He has also supported the prosecution story. PW-3 Dharma Devi,
\n  who was the wife of the appellant and was moving with the
\n  deceased, has also supported the prosecution story. PW-4 Dr.
\n  Surendra Singh, who had medically examined the deceased in
\n  the District Hospital, Raebareli at the time of his admission, has
\n  proved the aforesaid injury sustained by the deceased as well as
\n  the injury report, Exhibit Ka-2. PW-6, Dr. K.N. Mehrotra, who
\n  had done the postmortem examination on the dead body of the
\n  deceased, has proved the aforesaid ante-mortsem injury found on
\n  the dead body of the deceased as well as the postmortem
\n  examination report (Exhibit Ka-8). PW-5, Kesho Ram Verma
\n  (investigating officer) and PW-7, Krishna Niwas Tiwari (head
\n  constable) have given the evidence of formal nature.\n<\/p>\n
10. The appellant was examined under section 313<\/a> CrPC. He has
\n  admitted that PW-3 Smt. Dharma Devi was his wife and after the
\n  marriage she visited thrice to his house and remained there for
\n  about six months in all. He has further admitted that he had gone
\n  to the house of Shiv Bhajan (PW-1) on 6.11.1979 to take back
\n  PW-3 Dharma Devi with him. There was none except him and
\n  the deceased at the time of the incident. On the passage,
\n  exchange of some hot words took place between him and the
\n  deceased regarding vidai of PW-3 Dharma Devi, consequently,
\n  the deceased became furious and inflicted 5-6 injuries on him.
\n  The appellant further pleaded that he assaulted the deceased with
\n  a hockey stick in exercise of the right of private defence.\n<\/p>\n
                                                                    5<\/span><\/p>\n
11. The appellant has examined DW-1 Dr. Deo Kumar Mishra,
\n  Medical Officer, Primary Health Centre, Kathar, Rae Barerli, to
\n  prove the following injuries sustained by the appellant as well as
\n  his injury report Exhibit Kha-1:\n<\/p>\n
                                  5.<\/span><\/p>\n
  (i) Swelling 5 Cm x 2 Cm on lateral aspect of right thigh.
\n  Tenderness was present.\n<\/p>\n
  (ii) Diffused swelling on the dorsum of left palm. Tenderness
\n  was present.\n<\/p>\n
  (iii) Abrasion 1 Cm x .5 Cm on the anterior side of left leg.\n<\/p>\n
  (iv) Swelling 1.5 Cm x 1.5 Cm on the scalp near the right
\n  parietal eminence.\n<\/p>\n
12. Dr. Deo Kumar Mishra (DW-1) has also stated that a complaint
\n  of pain on the right lateral side of chest with no mark of injury
\n  was also made at the time of the medical examination of the
\n  appellant. All the injuries sustained by the appellant were simple,
\n  fresh and caused by some blunt object.\n<\/p>\n
13. No other witness was examined in support of the defence.\n<\/p>\n
14. The learned Additional Sessions Judge held that presence of eye
\n  witnesses namely, PW-1 Shiv Bhajan, PW-2 Swami Deen and
\n  PW-3 Dharma Devi at the time of occurrence was believable and
\n  the defence story that the appellant inflicted fatal injury to the
\n  deceased in exercise of the right of private defence was not
\n  believable. The learned Additional Sessions Judge further held
\n  that the injury sustained by the deceased was sufficient in the
\n  ordinary course of nature to cause death. Accordingly, the charge
\n  under section 302<\/a> IPC was held proved beyond all reasonable
\n  doubts against the appellant, consequently, he was convicted and
\n  sentenced under section 302<\/a> IPC to under go imprisonment for
\n  life.\n<\/p>\n
15. We have heard the learned counsel for the appellant and the
\n  learned AGA for the respondent and perused the record.\n<\/p>\n
16. The incident in question is almost admitted. As already
\n  mentioned, the appellant has admitted under section 313<\/a> CrPC
\n                                                                     6<\/span><\/p>\n
  that it was he who assaulted the deceased with a hockey stick
\n  and was, thus, author of the fatal injury caused to the deceased.
\n  The time and place of the occurrence as well as the reason for
\n  the incident are also not disputed. The reason for the occurrence
\n  was that the appellant wanted to take back his wife PW-3
\n                                   6.<\/span>
\n  Dharma Devi but she was neither agreeable nor her father,
\n  namely, the deceased, agreed to send off her, which annoyed the
\n  appellant and he ultimately assaulted the deceased with a hockey
\n  stick. All the three eye witnesses, namely, PW-1 Shiv Bhajan,
\n  PW-2 Swami Deen and PW-3 Dharma Devi, have not only
\n  supported the prosecution story in the witness box but their
\n  statements could not be shaken on any material particular despite
\n  lengthy cross examination. The ocular testimonies of these three
\n  witnesses find corroboration from the medical evidence given by
\n  PW-4 Dr. Surendra Singh and PW-6 Dr. K.N. Mehrotra. The
\n  learned Additional Sessions Judge appears to have rightly
\n  believed the statements of the aforesaid eye witnesses.\n<\/p>\n
17. In regard to the right of private defence set up by the appellant
\n  in his statement under section 313<\/a> CrPC, it may be mentioned
\n  that the injuries of the appellant, as proved by DW-1 Dr. Deo
\n  Kumar Mishra, were almost superficial. DW-1 Dr. Deo Kumar
\n  Mishra has admitted that the appellant’s injuries could be self
\n  inflicted and injury no.1, 2 and 4 were swelling without any
\n  contusion or abrasion etc. In this connection DW-1 Dr. Deo
\n  Kumar Mishra has stated that if someone is assaulted with lathi
\n  or danda, swelling will occur alongwith contusion or abrasion
\n  but he found mere swelling without any injury (without
\n  contusion or abrasion) on the person of the appellant. In view of
\n  these factual aspects of the matter, the appellant’s injuries have
\n  no material relevance on the merits of the case.\n<\/p>\n
18. The law in regard to the right of private defence is well settled.
\n  Nothing is offence which is done in exercise of the right of
\n                                                                      7<\/span><\/p>\n
  private defence. In view of the provisions of section 99<\/a> IPC,
\n  no right of private defence is available in the cases in which
\n  there is time to have recourse to the protection of the public
\n  authorities. In no case, it is permissible for the accused to inflict
\n  more harm than it is necessary to inflict for the purpose of
\n  defence. Section 100<\/a> IPC deals with the right of private defence
\n                                   7.<\/span>
\n  of body extending to cause death according to which right of
\n  private defence of the body extends under the restrictions
\n  mentioned in the last preceding section, to the voluntary causing
\n  of death or of any other harm to the assailant, if the offence
\n  which occasions the exercise of the right be of any of the
\n  descriptions hereinafter enumerated, namely, –\n<\/p>\n
      First.- Such an assault as may reasonably cause the
\n      apprehension that death will otherwise be the consequence
\n      of such assault;\n<\/p><\/blockquote>\n
      Secondly. – Such an assault as may reasonably cause the
\n      apprehension that grievous hurt will otherwise be the
\n      consequence of such assault;\n<\/p><\/blockquote>\n
      Thirdly, – An assault with the intention of committing rape;
\n      Fourthly, – An assault with the intention of gratifying
\n      unnatural lust;\n<\/p><\/blockquote>\n
      Fifthly. – An assault with the intention of kidnapping or
\n      abducting;\n<\/p><\/blockquote>\n
      Sixthly. – An assault with the intention of wrongfully
\n      confining a person, under circumstances which may
\n      reasonably cause him to apprehend that he will be unable
\n      to have recourse to the public authorities for his release.”\n<\/p><\/blockquote>\n
19. In order to claim a right of private defence extending to
\n  voluntarily causing of death, the appellant must show that there
\n  were circumstances giving rise to the reasonable ground for
\n  apprehending that either death or grievous hurt would be caused
\n  to him. The instant case needs to be examined in this
\n                                                                    8<\/span><\/p>\n
  background.\n<\/p>\n
20. There is no evidence on record that the appellant had any
\n  reasonable apprehension of any assault which could reasonably
\n  cause his death or grievous hurt to him and therefore, he had no
\n  right of private defence of the body extending to cause death of
\n  the deceased. Moreover, the appellant has neither lodged any
\n  FIR nor filed any complaint nor adduced any evidence to prove
\n                                  8.<\/span>
\n  the right of private defence. Even nothing material could be
\n  brought on record in support of the story of private defence from
\n  the statements of the prosecution witnesses. Therefore, the story
\n  of right of private defence as set up by the appellant has no
\n  merit.\n<\/p>\n
21. During the hearing, the learned counsel for the appellant did not
\n  challenge the finding of the trial court on merit. The learned
\n  counsel however, submitted that there was even delay of about
\n  19 hours in lodging the FIR. He, further, submitted that from the
\n  facts and circumstances of the case only the offence under
\n  section 304 Part II, IPC<\/a> was made out. The learned counsel
\n  further submitted that the appellant had made a single blow but
\n  unfortunately the blow proved fatal and the deceased died in the
\n  next morning, therefore, the assault was not with intention or
\n  knowledge to cause death of the deceased. The occurrence took
\n  place without premeditation in a sudden manner on account of
\n  heat of passion in connection with vidai of Smt. Dharma Devi.\n<\/p>\n
22. It is no doubt true that the FIR was lodged after about 19 hours
\n  of the occurrence but it does not appear to be significant keeping
\n  in view the fact that the deceased was taken to the District
\n  Hospital, Raebareli for treatment. If PW-1 Shiv Bhajan instead
\n  of going to the police station to lodge the FIR, decided to save
\n  the life of the deceased and took him to the hospital for treatment
\n  and lodged the FIR after the death of the deceased, the delay in
\n  such situation has no material significance. It may not be out of
\n                                                                     9<\/span><\/p>\n
  context to mention that neither PW-1 Shiv Bhajan nor any other
\n  person had any means of conveyance at the time of the incident.
\n  All of them were moving on foot. It has also come in evidence
\n  that one passer by arrived at the place of occurrence along with
\n  his bullock-cart on which, PW-1 Shiv Bhajan escorted the
\n  deceased to the village of a relative of the deceased for taking his
\n  cart to escort the deceased to the district hospital, Raebareli. PW-
\n  1 Shiv Bhajan has very clearly stated that he reached the District
\n                                  9.<\/span>
\n  Hospital alongwith the deceased at about 3.00 AM on the next
\n  day, i.e. 7.11.1979. According to the Hospital record, the
\n  deceased died in the hospital at 6.40 AM and after the death of
\n  the deceased, PW-1 Shiv Bhajan proceeded to the police station
\n  Dalmau at about 7.00 AM on a hired taxi for lodging the FIR but
\n  the taxi developed some mechanical defect in the passage,
\n  consequently, he reached the police station at about 12.00 noon.
\n  The FIR was lodged within half an hour of reaching the police
\n  station. In view of the fact that the deceased had sustained a
\n  serious head injury and had become unconscious, the
\n  complainant was not expected to leave the deceased uncared of
\n  and proceed to the police station to lodge the FIR. The
\n  complainant Shiv Bhajan appears to have been fully justified in
\n  taking the deceased to the District Hospital, Raebareli for
\n  treatment instead of going to the police station to lodge the FIR.
\n  Despite the delay in lodging the FIR, the prosecution story,
\n  which is almost admitted, does not appear to be concocted in any
\n  way and as such the delay in lodging the FIR has no relevance
\n  and can not be made a basis to discard the prosecution story.\n<\/p>\n
23. The second submission of the learned counsel for the appellant
\n  that no offence under section 302<\/a> IPC is made out seems to have
\n  some substance. The learned trial court has examined this aspect
\n  of the matter and held that the head injury sustained by the
\n  deceased was sufficient to cause his death, therefore, the offence
\n                                                                    10<\/span><\/p>\n
  under section 302<\/a> IPC was made out. It appears that according to
\n  the learned trial court the instant case falls under clause (iii) of
\n  section 300<\/a> IPC. The learned counsel for the appellant submitted
\n  in this connection that it was not proper on the part of the trial
\n  court to hold that the offence under section 302<\/a> IPC was made
\n  out merely on the ground that according to PW-6 Dr. K.N.
\n  Mehrotra, the injury was sufficient to cause death of the
\n  deceased. It was further required to consider whether or not the
\n  appellant intended to cause the bodily injury sustained by the
\n                                  10.<\/span>
\n  deceased and if the appellant intended to cause that injury then
\n  and then alone the medical evidence that the injury was
\n  sufficient in the ordinary course of nature to cause death could
\n  have been relevant otherwise not. The learned counsel further
\n  submitted that the learned trial court has even overlooked the
\n  Exception – 4 of section 300<\/a> IPC which was fully applicable.
\n  According to the learned counsel for the appellant, if a case falls
\n  within the purview of clause (iii) of section 300<\/a> IPC and is also
\n  covered by any of the exceptions, the act, in that event, would
\n  fall within the category of ‘culpable homicide not amounting to
\n  murder’ and not ‘murder’.\n<\/p>\n
24. In order to appreciate the aforesaid submission of the learned
\n  counsel for the appellant, it seems to be proper to refer to the
\n  provisions of section 299<\/a> IPC as well as section 300<\/a> IPC.\n<\/p>\n
25. Section 299<\/a> IPC defines ‘culpable homicide’, according to
\n  which, whoever causes death by doing an act with the intention
\n  of causing death, or with the intention of causing such bodily
\n  injury as is likely to cause death, or with the knowledge that he is
\n  likely by such act to cause death, commits the offence of
\n  culpable homicide.\n<\/p>\n
        Illustrations: (a) ….\n<\/p>\n
        (b) ….\n<\/p>\n
        (c) ……\n<\/p>\n
                                                                           11<\/span><\/p>\n
        Explanation 1- A person who causes bodily injury to
\n        another who is labouring under a disorder, disease or
\n        bodily infirmity, and thereby accelerates the death of that
\n        other, shall be deemed to have caused his death.\n<\/p>\n
        Explanation 2- Where death is caused by bodily injury,
\n        the person who causes such bodily injury shall be
\n        deemed to have caused the death, although by resorting
\n        to proper remedies and skillful treatment the death might
\n        have been prevented.\n<\/p>\n
                                    11.<\/span><\/p>\n
        Explanation 3- The causing of the death of child in the
\n        mother’s womb is not homicide. But it may amount to
\n        culpable homicide to cause the death of a living child, if
\n        any part of that child has been brought forth, though the
\n        child may not have breathed or been completely born.\n<\/p>\n
26. Section 300<\/a> IPC defines ‘murder’, which provides that:\n<\/p>\n
        “Except in the cases hereinafter excepted, culpable
\n        homicide is murder, (i) if the act by which the death is
\n        caused is done with the intention of causing death, or<\/p>\n<\/blockquote>\n
        (ii) if it is done with the intention of causing such bodily
\n        injury as the offender knows to be likely to cause the
\n        death of the person to whom the harm is caused, or,<\/p>\n<\/blockquote>\n
        (iii) if it is done with the intention of causing bodily injury
\n        to any person and the bodily injury intended to be
\n        inflicted is sufficient in the ordinary course of nature to
\n        cause death, or<\/p>\n<\/blockquote>\n
        (iv) if the person committing the act knows that it is so
\n        imminently dangerous that it must, in all probability,
\n        cause death or such bodily injury as is likely to cause
\n        death, and commits such act without any excuse for
\n        incurring the risk of causing death or such injury as
\n        aforesaid.\n<\/p><\/blockquote>\n
                                                               12<\/span><\/p>\n
Illustrations: (a)….\n<\/p>\n
                (b) ………\n<\/p>\n
                (c) ……….\n<\/p>\n
                (d) ……….\n<\/p>\n
Exception I- When culpable homicide is not murder-
\nculpable homicide is not murder if the offender, whilst
\ndeprived of the power of self-control by grave and sudden
\nprovocation, causes the death of the person who gave the
\nprovocation or causes the death of any other person by
\n                                 12.<\/span><\/p>\n
mistake or accident.\n<\/p>\n
        The above exception is subject to the following
\nprovisos :–\n<\/p>\n
First- That the provocations not sought or voluntarily
\nprovoked by the offender as an excuse for killing or doing
\nharm to any person.\n<\/p>\n
Secondly-That the provocation is not given by anything
\ndone in obedience to the law, or by a public servant in the
\nlawful exercise of the powers of such public servant.\n<\/p>\n
Thirdly-That the provocations not given by anything done
\nin the lawful exercise of the right of private defence.\n<\/p>\n
Explanation-Whether the provocation was grave and
\nsudden enough to prevent the offence from amounting to
\nmurder is a question of fact.\n<\/p>\n
Illustrations:………\n<\/p>\n
Exception 2-Culpable homicide is not murder if the
\noffender, in the exercise in good faith of the right of
\nprivate defence of person or property, exceeds the power
\ngiven to him by law and causes the death of the person
\nagainst whom he is exercising such right of defence
\n                                                                     13<\/span><\/p>\n
        without premeditation, and without any intention of doing
\n        more harm than is necessary for the purpose of such
\n        defence.\n<\/p>\n
        Exception 3-Culpable homicide is not murder if the
\n        offender, being a public servant or aiding a public
\n        servant acting or the advancement of public justice,
\n        exceeds the powers given to him by law, and causes death
\n        by doing an act which he, in good faith, believes to be
\n        lawful and necessary for the due discharge of his duty as
\n        such public servant and without ill-will towards the
\n        person whose death is caused.\n<\/p>\n
                                   13.<\/span><\/p>\n
        Exception 4-Culpable homicide is not murder if it is
\n        committed without premeditation in a sudden fight in the
\n        heat of passion upon a sudden quarrel and without the
\n        offender having taken undue advantage or acted in a
\n        cruel or unusual manner.\n<\/p>\n
        Explanation-It is immaterial in such cases which party
\n        offers the provocation or commits the first assault.\n<\/p>\n
        Exception 5-Culpable homicide is not murder when the
\n        person whose death is caused, being above the age of
\n        eighteen years, suffers death or takes the risk of death
\n        with his own consent.\n<\/p>\n
        Illustration:……….”\n<\/p>\n
27. In the case of State of A.P. vs. Rayavarapu Punnayya<\/a>, (1976) 4
\n  SCC 382, the Apex Court observed as follows:\n<\/p>\n
        “12. In the scheme of the Penal Code<\/a>, “culpable
\n        homicides” is genus and “murder” its specie. All
\n        “murder” is “culpable homicide” but not vice versa.
\n        Speaking generally, “culpable homicide” sans “special
\n        characteristics of murder”, is “culpable homicide not
\n                                                                        14<\/span><\/p>\n
        amounting to murder”. For the purpose of fixing
\n        punishment, proportionate to the gravity of this generic
\n        offence, the Code<\/a> practically recognises three degrees of
\n        culpable homicide. The first is, what may be called,
\n        “culpable homicide of the first degree”. This is the
\n        greatest form of culpable homicide, which is defined in
\n        section 300<\/a> as “murder”. The second may be termed as
\n        “culpable homicide of the second degree”. This is
\n        punishable under the first part of section 304<\/a>. Then, there
\n        is “culpable homicide of the third degree”. This is the
\n        lowest type of culpable homicide and the punishment
\n        provided for it is, also, the lowest among the punishments
\n        provided for the three grades. Culpable homicide of this
\n                                   14.<\/span>
\n        degree is punishable under the second part of section
\n        304<\/a>“.\n<\/p><\/blockquote>\n
28. Placing strong reliance on the aforesaid decision, the Apex
\n  Court in the case of Abdul Waheed Khan v. State of A.P<\/a>., (2002)
\n  7 SCC 175, observed as follows at page 184:\n<\/p>\n
        “13. Clause (b) of section 299<\/a> corresponds with Clauses
\n        (2) and (3) of section 300<\/a>. The distinguishing feature of
\n        the mens rea requisite under clause (2) is the knowledge
\n        possessed by the offender regarding the particular victim
\n        being in such a peculiar condition or state of health that
\n        the internal harm caused to him is likely to be fatal,
\n        notwithstanding the fact that such harm would not in the
\n        ordinary way of nature be sufficient to cause death of a
\n        person in normal health or condition. It is noteworthy
\n        that the “intention to cause death” is not an essential
\n        requirement of clause (2). Only the intention of causing
\n        the bodily injury coupled with the offender’s knowledge
\n        of the likelihood of such injury causing the death of the
\n        particular victim, is sufficient to bring the killing within
\n                                                                   15<\/span><\/p>\n
the ambit of this clause. This aspect of Clause (2) is
\nborne out by illustration (b) appended to section 300<\/a>.\n<\/p><\/blockquote>\n
14. Clause (b) of section 299<\/a> does not postulate any such
\nknowledge on the part of the offender. Instances of cases
\nfalling under clause (2) of section 300<\/a> can be where the
\nassailant causes death by a fist-blow intentionally given
\nknowing that the victim is suffering from an enlarged
\nliver, or enlarged spleen or diseased heart and such blow
\nis likely to cause death of that particular person as a
\nresult of the rupture of the liver, or spleen or the failure of
\nthe heart, as the case may be. If the assailant had no such
\nknowledge about the disease or special frailty of the
\nvictim, nor an intention to cause death or bodily injury
\nsufficient in the ordinary course of nature to cause death,
\n                            15.<\/span><\/p>\n
the offence will not be murder, even if the injury which
\ncaused the death, was intentionally given. In clause (3) of
\nsection 300<\/a>, instead of the words “likely to cause death”
\noccurring in the corresponding clause (b) of section 299<\/a>,
\nthe words “sufficient in the ordinary course of nature”
\nhave been used. Obviously, the distinction lies between a
\nbodily injury likely to cause death and a bodily injury
\nsufficient in the ordinary course of nature to cause death.
\nThe distinction is fine but real and if overlooked, may
\nresult in miscarriage of justice. The difference between
\nclause (b) of section 299<\/a> and clause (3) of section 300<\/a> is
\none of degree of probability of death resulting from the
\nintended bodily injury. To put it more broadly, it is the
\ndegree of probability of death which determines whether
\na culpable homicide is of the gravest, medium or the
\nlowest degree. The word “likely” in clause (b) of section
\n299<\/a> conveys the sense of probable as distinguished from
\na mere possibility. The words “bodily injury … sufficient
\n                                                                16<\/span><\/p>\n
in the ordinary course of nature to cause death” mean
\nthat death will be the “most probable” result of the injury,
\nhaving regard to the ordinary course of nature.\n<\/p>\n
15. For cases to fall within clause (3), it is not necessary
\nthat the offender intended to cause death, so long as the
\ndeath ensues from the intentional bodily injury or injuries
\nsufficient to cause death in the ordinary course of nature.
\nRajwant Singh v. State of Kerala is an apt illustration of
\nthis point.\n<\/p>\n
16.    In Virsa Singh v. State of Punjab, Vivian Bose, J.
\nspeaking for the Court, explained the meaning and scope
\nof clause (3). It was observed that the prosecution must
\nprove the following facts before it can bring a case under
\nsection 300<\/a> “thirdly” . First, it must establish quite
\n                           16.<\/span><\/p>\n
objectively, that a bodily injury is present; secondly, the
\nnature of the injury must be proved. These are purely
\nobjective investigations. Thirdly, it must be proved that
\nthere was an intention to inflict that particular injury,
\nthat is to say, that it was not accidental or unintentional
\nor that some other kind of injury was intended. Once
\nthese three elements are proved to be present, the enquiry
\nproceeds further, and fourthly, it must be proved that the
\ninjury of the type just described made up of the three
\nelements set out above was sufficient to cause death in
\nthe ordinary course of nature. This part of the enquiry is
\npurely objective and inferential and has nothing to do
\nwith the intention of the offender.\n<\/p>\n
17. The ingredients of clause “thirdly” of section 300<\/a> IPC
\nwere brought out by the illustrious Judge in his terse
\nlanguage as follows:(AIR p.467, para 12)<\/p>\n
       “12. To put it shortly, the prosecution must prove
\n                                                                17<\/span><\/p>\n
      the following facts before it can bring a case under
\n      section 300<\/a> ‘thirdly’;\n<\/p>\n
      First, it must establish, quite objectively, that a
\n      bodily injury is present;\n<\/p>\n
      Secondly, the nature of the injury must be proved;
\n      These are purely objective investigations;\n<\/p>\n
      Thirdly, it must be proved that there was an
\n      intention to inflict that particular bodily injury,
\n      that is to say, that it was not accidental or
\n      unintentional, or that some other kind of injury
\n      was intended.\n<\/p>\n
      Once these three elements are proved to be
\n      present, the enquiry proceeds further and,<\/p>\n
      fourthly, it must be proved that the injury of the
\n                          17.<\/span>
\n      type just described made up of the three elements
\n      set out above is sufficient to cause death in the
\n      ordinary course of nature. This part of the enquiry
\n      is purely objective and inferential and has nothing
\n      to do with the intention of the offender.\n<\/p>\n
18. The learned Judge explained the third ingredient in
\nthe following words (at p. 468):(AIR para 16)<\/p>\n
      “The question is not whether the prisoner intended
\n      to inflict a serious injury or a trivial one but
\n      whether he intended to inflict the injury that is
\n      proved to be present. If he can show that he did
\n      not, or if the totality of the circumstances justify
\n      such an inference, then, of course, the intent that
\n      the section requires is not proved. But if there is
\n      nothing beyond the injury and the fact that the
\n      appellant inflicted it, the only possible inference is
\n                                                               18<\/span><\/p>\n
       that he intended to inflict it. Whether he knew of
\n       its seriousness, or intended serious consequences,
\n       is neither here nor there. The question, so far as
\n       the intention is concerned, is not whether he
\n       intended to kill, or to inflict an injury of a
\n       particular degree of seriousness, but whether he
\n       intended to inflict the injury in question; and once
\n       the existence of the injury is proved the intention
\n       to cause it will be presumed unless the evidence or
\n       the   circumstances      warrant     an    opposite
\n       conclusion.”\n<\/p>\n
19.    These observations of Vivian Bose, J. have become
\nlocus classicus. The test laid down by Virsa Singh case
\nfor the applicability of clause “thirdly” is now ingrained
\nin our legal system and has become part of the rule of
\nlaw. Under clause thirdly of section 300<\/a> IPC, culpable
\n                          18.<\/span><\/p>\n
homicide is murder, if both the following conditions are
\nsatisfied i.e. (a) that the act which causes death is done
\nwith the intention of causing a bodily injury; and (b) that
\nthe injury intended to be inflicted is sufficient in the
\nordinary course of nature to cause death. It must be
\nproved 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
20. Thus, according to the rule laid down in Virsa Singh
\ncase even if the intention of the accused was limited to
\nthe infliction of a bodily injury sufficient to cause death
\nin the ordinary course of nature, and did not extend to the
\nintention of causing death, the offence would be murder.\n<\/p>\n
                                                                      19<\/span><\/p>\n
        Illustration (c) appended to section 300<\/a> clearly brings
\n        out this point.\n<\/p>\n
        21. Clause (c) of section 299<\/a> and clause (4) of section
\n        300<\/a> both require knowledge of the probability of the act
\n        causing death. It is not necessary for the purpose of this
\n        case to dilate much on the distinction between these
\n        corresponding clauses. It will be sufficient to say that
\n        clause (4) of section 300<\/a> would be applicable where the
\n        knowledge of the offender as to the probability of death
\n        of a person or persons in general as distinguished from a
\n        particular person or persons – being caused from his
\n        imminently dangerous act, approximates to a practical
\n        certainty. Such knowledge on the part of the offender
\n        must be of the highest degree of probability, the act
\n        having been committed by the offender without any
\n        excuse for incurring the risk of causing death or such
\n        injury as aforesaid.\n<\/p>\n
                                    19.<\/span><\/p>\n
        22. The above are only broad guidelines and not cast-
\n        iron imperatives. In most cases, their observance will
\n        facilitate the task of the court. But sometimes the facts
\n        are so intertwined and the second and the third stages so
\n        telescoped into each, that it may not be convenient to
\n        give a separate treatment to the matters involved in the
\n        second and third stages.”\n<\/p>\n
29. The aforesaid principles have been consistently applied by the
\n  Apex Court in several decisions. Reference in this regard may be
\n  made to the decision of the Apex Court in Ruli Ram v. State of
\n  Haryana<\/a> (2002) 7 SCC 691, Augustine Saldanha v. State of
\n  Karnataka<\/a> (2003) 10 SCC 472, State of U.P. v. Virendra Prasad<\/a>
\n  (2004) 9 SCC 37, Chacko v.State of Kerala<\/a> (2004) 12 SCC 269
\n  and S.N. Bhadolkar v. State of Maharashtra<\/a> (2005) 9 SCC 71.\n<\/p>\n
                                                                     20<\/span><\/p>\n
30. The aforesaid decisions have almost settled the legal position
\n  involved in this case. Section 299<\/a> defines culpable homicide as
\n  the act of causing death; (i) with the intention of causing death or\n<\/p>\n
  (ii) with the intention of causing such bodily injury as is likely to
\n  cause death or (iii) with the knowledge that such act is likely to
\n  cause death. The bare reading of the section makes it crystal
\n  clear that the first and the second clause of the section refer to
\n  intention apart from the knowledge and the third clause refers to
\n  knowledge alone and not intention. Both the expression “intent”
\n  and “knowledge” postulate the existence of a positive mental
\n  attitude which is of different degrees. The mental element is
\n  culpable homicide i.e. mental attitude towards the consequences
\n  of conduct is one of intention and knowledge. If that is caused in
\n  any of the aforesaid three circumstances, the offence of culpable
\n  homicide is said to have been committed. Section 300<\/a> IPC,
\n  however, deals with murder although there is no clear definition
\n  of murder provided in section 300<\/a>, IPC<\/a>. It has been repeatedly
\n  held by the Apex Court that culpable homicide is the genus and
\n  murder is species and that all murders are culpable homicide but
\n                                   20.<\/span>
\n  not vice versa. Section 300<\/a> IPC further provides for the
\n  exceptions which will constitute culpable homicide not
\n  amounting to murder and punishable under section 304<\/a>. When
\n  there is intent and knowledge then the same would be a case of
\n  section 304 Part I and if it is only a case of knowledge and not
\n  the intention to cause murder and bodily injury, then the same
\n  would be a case of section 304 Part II.\n<\/p>\n
31. The instant case needs to be examined in the light of the
\n  aforesaid legal principles. The incident in question did not take
\n  place in a preplanned manner.          In fact according to the
\n  statements of the prosecution witnesses, the occurrence took
\n  place without premeditation in a sudden manner on account of
\n  heat of passion in connection with the request of the appellant
\n                                                                  21<\/span><\/p>\n
for vidai of his wife Smt. Dharma Devi (PW-3). The appellant
\nmade a single hockey stick blow on the deceased without any
\nrepetition and fled away immediately after hitting the blow. The
\nappellant, according to the prosecution evidence, had stayed in
\nthe house of PW-1 Shiv Bhajan in the preceding night where the
\ndeceased and his daughter PW-3 Smt. Dharma Devi had also
\nstayed and an exchange of hot words also took place there in
\nconnection with the vidai. But at that time the appellant did not
\nloose the temper nor made any attempt to assault on the
\ndeceased.    It may also be mentioned that the appellant, the
\ndeceased, PW-1 Shiv Bhajan and PW-3 Smt. Dharma Devi all
\nproceeded together from the house of PW-1 Shiv Bhajan on the
\ndate of occurrence. But the appellant again insisted for vidai of
\nhis wife while they were on way but the deceased told that it was
\nnot possible to send off PW-3 Smt. Dharma Devi as she was not
\nwilling to go and live with the appellant. At this juncture too, an
\nexchange of hot words took place between the appellant and the
\ndeceased, which caused a sudden annoyance to the appellant and
\nhe accordingly assaulted the deceased with a single hockey stick
\nblow. In these circumstances, it can easily be inferred that in the
\n                                21.<\/span>
\ninstant case both the intention and the knowledge are lacking. It
\nappears that the appellant intended to inflict some injury to the
\ndeceased but unfortunately the injury inflicted by him proved
\nfatal.   The learned Sessions Judge was of the view that the
\noffence under section 302<\/a> IPC was made out because the injury
\nsustained by the deceased was sufficient in the ordinary course
\nof nature to cause death. In our opinion, this view of the learned
\nSessions Judge was not correct.       In order to constitute the
\noffence of murder in the light of the provisions of section 300(3)<\/a>
\nIPC it is not only necessary to prove that the bodily injury
\ninflicted was sufficient in the ordinary course of nature to cause
\ndeath but it is also necessary to prove that the accused intended
\n                                                                   22<\/span><\/p>\n
  to cause the particular injury.    If the intention to cause the
\n  particular injury is lacking in any case, the accused can not be
\n  held guilty of committing murder only on the basis that the
\n  injury inflicted by him was sufficient in the ordinary course of
\n  nature to cause death. Therefore, the finding of the learned
\n  Sessions Judge that the offence under section 302<\/a> IPC was made
\n  out on the ground that the injury inflicted by the appellant was
\n  sufficient in the ordinary course of nature to cause death, suffers
\n  from material illegality and can not be upheld. It may also be
\n  mentioned that the learned Sessions Judge has completely
\n  overlooked the Exception 4 of section 300<\/a> IPC. According to
\n  that Exception culpable homicide is not murder if it is committed
\n  without premeditation in a sudden fight in the heat of passion
\n  upon a sudden quarrel and without the offender having taken
\n  undue advantage or acted in a cruel or unusual manner. The
\n  facts of the instant case, as extracted hereinbefore squarely falls
\n  within the Exception IV of section 300<\/a> IPC and as such from the
\n  proved facts no offence under section 302<\/a> IPC is made out
\n  against the appellant. In our view, from the facts and evidence
\n  on record only the offence under section 304<\/a> Part II IPC is made
\n  out.\n<\/p>\n
                                  22.<\/span><\/p>\n
32. Accordingly, the appellant is liable to be convicted and
\n  sentenced under section 304 Part II, IPC<\/a> instead of section 302<\/a>
\n  IPC.\n<\/p>\n
33. In view of the fact that the occurrence is of the year 1981 and
\n  the appellant had acted on account of a sudden quarrel without
\n  premeditation and had no criminal background, the ends of
\n  justice would be met if the appellant is sentenced under section
\n  304<\/a> Part II of the Indian Penal Code to undergo rigorous
\n  imprisonment of five year only.\n<\/p>\n
34. The appeal is, therefore, partly allowed. The conviction and
\n  sentence recorded against the appellant under section 302<\/a> IPC
\n                                                                    23<\/span><\/p>\n
       are set aside. The appellant Bhagwati is however convicted and
\n       sentenced under section 304<\/a> Part II of the Indian Penal Code to
\n       undergo rigorous imprisonment of five year.\n<\/p>\n
   35. The Chief Judicial Magistrate concerned is directed to take the
\n       appellant in custody and send him to jail to serve out the
\n       sentence awarded and send the compliance report to this Court
\n       within a month.\n<\/p>\n
   36. Let a copy of this judgment along with lower court record be
\n       transmitted to the court concerned for compliance.
\nDated:-\n<\/p>\n
RKSh\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Bhagwati vs State Of U.P. on 30 July, 2010 1 Reserved CRIMINAL APPEAL NO. 669 OF 1981 Bhagwati vs. State of U.P. HON’BLE SATYENDRA SINGH CHAUHAN, J. HON’BLE SHRI KANT TRIPATHI, J. (Delivered by Hon’ble Shri Kant Tripathi, J.) 1. The appellant Bhagwati has preferred this appeal against the judgment and order […]<\/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":[9,8],"tags":[],"class_list":["post-253949","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nBhagwati vs State Of U.P. on 30 July, 2010 - 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\/bhagwati-vs-state-of-u-p-on-30-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagwati vs State Of U.P. on 30 July, 2010 - 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