{"id":38188,"date":"2007-09-28T00:00:00","date_gmt":"2007-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagwan-bahadure-vs-state-of-maharashtra-on-28-september-2007"},"modified":"2015-12-11T18:05:46","modified_gmt":"2015-12-11T12:35:46","slug":"bhagwan-bahadure-vs-state-of-maharashtra-on-28-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagwan-bahadure-vs-state-of-maharashtra-on-28-september-2007","title":{"rendered":"Bhagwan Bahadure vs State Of Maharashtra on 28 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhagwan Bahadure vs State Of Maharashtra on 28 September, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (crl.)  1304 of 2007\n\nPETITIONER:\nBhagwan Bahadure\n\nRESPONDENT:\nState of Maharashtra\n\nDATE OF JUDGMENT: 28\/09\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CRIMINAL APPEAL NO.   1304 OF 2007
\n(Arising out of SLP (Crl.) No. 3196 of 2006)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the judgment of a Division
\nBench of the Bombay High Court, Nagpur Bench upholding
\nthe conviction of the appellant for offence punishable under
\nSection 302 of the Indian Penal Code, 1860 (in short the ‘IPC’)
\nand sentence of imprisonment  for life and fine of Rs.1,000\/-
\nwith default stipulation.\n<\/p>\n
3.\tBackground facts in a nutshell are as follows:\n<\/p>\n
On 13th March, 2000 Bhagwan Bahadure came to
\nBhendala and stayed with Kachrabai (hereinafter referred to
\nas the ‘deceased’), who was residing with her mother Tuljabai
\n(PW-7).  In the morning, of the day of incident, the appellant
\nstarted quarrelling with the deceased on a flimsy ground.  The
\nappellant asked her to accompany him to his house.  It is
\nalleged that the appellant, who had a stick in his hand,
\nassaulted the deceased by means of the stick.  The deceased
\nfell down on the ground.  The appellant gave a blow with the
\nstick on her head, whereby deceased suffered serious injuries
\nand became unconscious.  The appellant thereafter threw the
\nstick and ran away towards bus stand. Sidharth (PW 1)
\nwitnessed the incident.  He went to the roadside for bringing a
\njeep to carry his mother to the hospital at Pauni.  The Medical
\nOfficer gave first-aid to the victim as the injuries were severe
\nand she was unconscious.  The Medical Officer advised the
\nfamily members to take her to the Govt. Medical College,
\nNagpur.  In the meanwhile, PW 1 lodged a report in the police
\nstation against the appellant.  Police registered a crime.
\nDeceased succumbed to the injuries on way to the hospital at
\nNagpur.\n<\/p>\n
4.\tConsidering the evidence of PWs 1,7 & 8,  trial court
\nfound the evidence to be credible and cogent and accepted the
\nsame.  He did not find any substance in the plea of the
\nappellant that PWs 1 & 7 were related to the deceased and,
\ntherefore, their evidence could not be acted upon.  It also did
\nnot accept the plea that offence under Section 302 IPC was not
\nmade out. Questioning the correctness of the trial court’s
\norder, appeal was preferred before the High Court which as
\nnoted above did not find any substance in the appeal.\n<\/p>\n
5.\tThe stand taken before the trial court and the High Court
\nwas reiterated in this appeal.\n<\/p>\n
6.\tLearned counsel for the State on the other hand
\nsupported the judgment.\n<\/p>\n
7.\tWe shall first deal with the contention regarding
\ninterestedness of the witnesses for furthering prosecution
\nversion.  Relationship is not a factor to affect credibility of a
\nwitness.  It is more often than not that a relation would not
\nconceal actual culprit and make allegations against an
\ninnocent person.  Foundation has to be laid if plea of false
\nimplication is made.  In such cases, the court has to adopt a
\ncareful approach and analyse evidence to find out whether it is
\ncogent and credible.\n<\/p>\n
8.\tIn Dalip Singh and Ors.  v. The State of Punjab (AIR<\/a> 1953
\nSC 364) it has been laid down as under:-\n<\/p>\n
“A witness is normally to be considered
\nindependent unless he or she springs from
\nsources which are likely to be tainted and that
\nusually means unless the witness has cause,
\nsuch as enmity against the accused, to wish to
\nimplicate him falsely.  Ordinarily a close
\nrelation would be the last to screen the real
\nculprit and falsely implicate an innocent
\nperson.  It is true, when feelings run high and
\nthere is personal cause for enmity, that there
\nis a tendency to drag in an innocent person
\nagainst whom a witness has a grudge along
\nwith the guilty, but foundation must be laid
\nfor such a criticism and the mere fact of
\nrelationship far from being a foundation is
\noften a sure guarantee of truth.  However, we
\nare not attempting any sweeping
\ngeneralization.  Each case must be judged on
\nits own facts.  Our observations are only made
\nto combat what is so often put forward in
\ncases before us as a general rule of prudence.
\nThere is no such general rule. Each case must
\nbe limited to and be governed by its own
\nfacts.”\n<\/p>\n
9.\tThe above decision has since been followed in Guli
\nChand and Ors. v. State of Rajasthan<\/a> (1974 (3) SCC 698) in
\nwhich Vadivelu Thevar v. State of Madras (AIR<\/a> 1957 SC 614)
\nwas also relied upon.\n<\/p>\n
10.\tWe may also observe that the ground that the witness
\nbeing a close relative and consequently being a partisan
\nwitness, should not be relied upon, has no substance.  This
\ntheory was repelled by this Court as early as in Dalip Singh’s
\ncase (supra) in which surprise was expressed over the
\nimpression which prevailed in the minds of the Members of the
\nBar that relatives were not independent witnesses. Speaking
\nthrough Vivian Bose, J. it was observed:\n<\/p>\n
“We are unable to agree with the learned
\nJudges of the High Court that the testimony of
\nthe two eyewitnesses requires corroboration.
\nIf the foundation for such an observation is
\nbased on the fact that the witnesses are
\nwomen and that the fate of seven men hangs
\non their testimony, we know of no such rule.
\nIf it is grounded on the reason that they are
\nclosely related to the deceased we are unable
\nto concur.  This is a fallacy common to many
\ncriminal cases and one which another Bench
\nof this Court endeavoured to dispel in
\n‘Rameshwar v. State of Rajasthan’ (AIR<\/a> 1952
\nSC 54 at p.59).  We find, however, that it
\nunfortunately still persists, if not in the
\njudgments of the Courts, at any rate in the
\narguments of counsel.”\n<\/p>\n
11.\tAgain in Masalti and Ors.   v.  State of U.P.  (AIR<\/a> 1965 SC\n<\/p>\n
202) this Court observed: (p. 209-210 para 14):\n<\/p>\n
“But it would, we think, be unreasonable to
\ncontend that evidence given by witnesses
\nshould be discarded only on the ground that it
\nis evidence of partisan or interested
\nwitnesses…….The mechanical rejection of
\nsuch evidence on the sole ground that it is
\npartisan would invariably lead to failure of
\njustice.  No hard and fast rule can be laid
\ndown as to how much evidence should be
\nappreciated.  Judicial approach has to be
\ncautious in dealing with such evidence; but
\nthe plea that such evidence should be rejected
\nbecause it is partisan cannot be accepted as
\ncorrect.”\n<\/p>\n
12.\tTo the same effect is the decision in State of Punjab v.
\nJagir Singh (AIR<\/a> 1973 SC 2407), Lehna v. State of Haryana<\/a>
\n(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of
\nOrissa<\/a> (2002 (8) SCC 381).\n<\/p>\n
13.\tThe above position was highlighted in  Babulal Bhagwan
\nKhandare and Anr. V. State of Maharashtra<\/a> [2005(10) SCC
\n404] and in Salim Saheb v. State of M.P.  (2007(1) SCC 699).\n<\/p>\n
14.\tThis brings us to the crucial question as to which was
\nthe appropriate provision to be applied.  In the scheme of the
\nIPC culpable homicide is genus and ‘murder’ its specie.  All
\n‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking
\ngenerally, ‘culpable homicide’ sans ‘special characteristics of
\nmurder is culpable homicide not amounting to murder’. For
\nthe purpose of fixing punishment, proportionate to the gravity
\nof the generic offence, the IPC practically recognizes three
\ndegrees of culpable homicide.  The first is, what may be called,
\n‘culpable homicide of the first degree’. This is the gravest form
\nof culpable 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
15.\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\t\tSection 300<\/p>\n
A person commits culpable homicide\t\t\tSubject to certain exceptions
\nif the act by which the death is caused is done-\tculpable homicide is murder
\n\t\t\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  \t\tcausing such bodily injury
\n    to cause death; or \t\t\t\tas the offender knows to be
\n\t\t\t\t\t\t\tlikely to cause the death of
\n\t\t\t\t\t\t\tthe person to whom the harm
\n\t\t\t\t\t\t\tis caused;\n<\/p>\n
or<\/p>\n
\t\t\t\t\t\t\t(3) With the intention of
\n\t\t\t\t\t\t\tcausing bodily injury to any
\n\t\t\t\t\t\t\tperson and the bodily injury
\n\t\t\t\t\t\t\tintended to be inflicted
\n\t\t\t\t\t\tis sufficient in the
\n\t\t\t\t\t\tordinary course of nature
\n\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\tdangerous that it must in all
\n\t\t\t\t\t\t\tprobability cause death or
\n\t\t\t\t\t\t\tsuch bodily injury as is
\n\t\t\t\t\t\t\tlikely to cause death, and
\n\t\t\t\t\t\t\twithout any excuse for
\n\t\t\t\t\t\t\tincurring the risk of causing
\n\t\t\t\t\t\t\tdeath or such injury as is
\n\t\t\t\t\t\t\tmentioned above.\n<\/p>\n
16.\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
17.\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” have been used.  Obviously, the distinction lies
\nbetween a bodily injury likely to cause death and a bodily
\ninjury sufficient in the ordinary course of nature to cause
\ndeath. The distinction is fine but real and if overlooked, may
\nresult in miscarriage of justice.  The difference between clause\n<\/p>\n
(b) of Section 299 and clause (3) of Section 300 is one of the
\ndegree of probability of death resulting from the intended
\nbodily injury.  To put it more broadly, it is the degree of
\nprobability 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” means that death will be the “most probable”
\nresult of the injury, having regard to the ordinary course of
\nnature.\n<\/p>\n
18.\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
19.\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
\nobjectively, that a bodily injury is present; secondly the nature
\nof the injury 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
20.\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 the
\nfollowing facts before it can bring a case under
\nSection 300, “thirdly”.\n<\/p>\n
First, it must establish, quite objectively, that a
\nbodily injury is present.\n<\/p>\n
Secondly, the nature of the injury must be proved.
\nThese are purely objective investigations.\n<\/p>\n
Thirdly, it must be proved that there was an
\nintention to inflict that particular bodily injury, that
\nis to say that it was not accidental or unintentional,
\nor that some other kind of injury was intended.
\nOnce these three elements are proved to be present,
\nthe enquiry proceeds further and,<\/p>\n
Fourthly, it must be proved that the injury of the
\ntype just described made up of the three elements
\nset out above is sufficient to cause death in the
\nordinary course of nature.  This part of the enquiry
\nis purely objective and inferential and has nothing
\nto do with the intention of the offender.”\n<\/p>\n
21.\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
22.\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
23.\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 be murder.  Illustration (c)
\nappended to Section 300 clearly brings out this point.\n<\/p>\n
24.\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
\noffender must be of the highest degree of probability, the act
\nhaving been committed by the offender without any excuse for
\nincurring the risk of causing death or such injury as aforesaid.\n<\/p>\n
25.\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
26.\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 (JT<\/a> 2002 (6) SC 274), and
\nAugustine Saldanha v. State of Karnataka<\/a> (2003 (10) SCC 472)
\nand Thangaiya v. State of Tamil Nadu<\/a> (2005 (9) SCC 650).\n<\/p>\n
27.\tKeeping the aforesaid legal principles in view, the factual
\nposition is to be examined. It cannot be said as a rule of
\nuniversal application that whenever one blow is given Section
\n302 IPC is ruled out. It would depend upon the facts of each
\ncase. The weapon used, size of the weapon, place where the
\nassault took place, background facts leading to the assault,
\npart of the body where the blow was given are some of the
\nfactors to be considered.\n<\/p>\n
28.\tConsidering the background facts involved, the
\nappropriate conviction would be under Section 304 Part I IPC,
\nand conviction is accordingly altered.  Custodial sentence of
\n10 years would meet the ends of justice.\n<\/p>\n
29.\tThe appeal is allowed to the aforesaid extent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhagwan Bahadure vs State Of Maharashtra on 28 September, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (crl.) 1304 of 2007 PETITIONER: Bhagwan Bahadure RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 28\/09\/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U D […]<\/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-38188","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhagwan Bahadure vs State Of Maharashtra on 28 September, 2007 - 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\/bhagwan-bahadure-vs-state-of-maharashtra-on-28-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagwan Bahadure vs State Of Maharashtra on 28 September, 2007 - 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