CRL.A./846/2018 of MADAN GOPAL YADAV Vs STATE

*IN THE HIGH COURT OF DELHI AT NEW DELHIReserved on: 03.12.2020%Pronounced on : 07.04.2021

+CRL.A. 846/2018 & CRL.M.(BAIL) 7846/2020MADAN GOPAL YADAV…..Appellant

Through : MS. Rakhi Dubey, Advocate.versus

STATE

..... Respondent

Through : Mr. Ashish Dutta, APP for the State

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE RAJNISH BHATNAGAR

JUDGMENT

RAJNISH BHATNAGAR, J.

1.By this Judgment, we shall dispose of the present appeal which hasbeen filed against the Judgment of conviction dated 28.04.2018 and order onsentence dated 17.05.2018 passed by the Addl. Sessions Judge-02, SouthDistrict, Saket Courts, New Delhi vide which appellant Madan Gopal Yadavhas been convicted U/s 302/324 IPC and sentenced to undergo rigorousimprisonment for life and to pay sum of Rs. 5,000/- as fine for the offenceU/s 302 IPC and in default of payment of fine, simple imprisonment for twomonths. He has also been sentenced to undergo rigorous imprisonment for

CRL.A. 846/2018

Page 1 of 24

01 year and to pay fine of Rs. 1000/- U/s 324 IPC and in default ofpayment of fine, simple imprisonment for 15 days.

2.In brief, the facts of the case are that on receiving DD No.6-B dated07.06.2012, SI Mukesh Kumar Meena alongwith Ct. Surender reached at thespot i.e. Kothi No. A-1/38, SJ Enclave, where he met Varun Lamba. VarunLamba stated that his servant Dinesh and one more person are lying outsidethe servant quarter and their bodies are blood stained and they areunconscious.In the meanwhile,PCR and CAT ambulance also reachedthere. Dinesh Kumar was found dead and injured Shrawan was removed tothe hospital.Blood stains were found till second floor and two mobilephones were also lying there. Blood stained knife was also recovered whichwas lying near the legs of injured.On the second floor of the house, oneperson Gopal (the present appellant) was present and was in panic condition.He was interrogated. On the right hand and on his face, one stab wound wasnoticed.Thereafter ruqqa was prepared and FIR of this case was registeredand investigation went underway.

3.After the completion of the investigation, challan was filed before thecourt of Metropolitan Magistrate, who after completing all the formalitiescommitted the case to the Court of Sessions for trial.

4.Vide order dated 20.09.2012, charges U/s 302/307 IPC were framedagainst the appellant to which he pleaded not guilty and claimed trial. Inorder to prove its case, the prosecution has examined 24 witnesses.

CRL.A. 846/2018

5.We have heard the Ld. counsel for the appellant, Ld.APP for thestate and have also gone through the records of this case.

6.It is urged by the Ld. counsel for the appellant that the prosecution hasnot been able to prove any motive for the crime. It is further submitted thatthe appellant and the deceased had cordial relations for the last 5 to 6 years,so there was no occasion for the appellant to kill Dinesh. It is further urgedthat Shrawan (injured) had come to kill Dinesh as they both werehomosexual and dispute arose between them. It is further urged by the Ld.counsel for the appellant that it was Shrawan (PW 14) who had committedthe murder of Dinesh, inflicted injury upon the appellant and upon himselfand the appellant has no role in giving any injury to deceased Dinesh or toPW-14 Shrawan.It is further argued that it is the appellant who informedPW 2 about the incident and did not try to flee away. It is further argued thatknife, which according to the prosecution was used in the offence and foundat the spot, neither had finger prints nor blood group of either of thedeceased or the appellant.It is further argued that the IO has neither seizedthe CDR of the injured, nor of the accused/appellant so as to co-relate thecall details of injured Shrawan, deceased Dinesh and the appellant.It isfurther argued that PW 1 has not supported the case of the prosecution overthe fight between the appellant, injured and deceased. It is further arguedthat PW 14 is not reliable witness as he is the perpetrator of the crime andhas falsely implicated the appellant and conviction cannot be based on hissole testimony. Ld. counsel for the appellant further submitted that PW 14has even failed to give the measurement of the knife which shows that he is

CRL.A. 846/2018

Page 3 of 24

not telling the truth. It is further argued that there are insertions andimprovements in the postmortem report which creates doubt about theauthenticity of the postmortem report. In the alternative, the Ld. counsel forthe appellant has argued that, at best, the case of the appellant falls withinthe ambit of Section 304 IPC and is not covered U/s 302 IPC.

7.On the other hand, it is urged by the Ld. APP for the state that PW 14is an injured eye witness and he has no reason to depose falsely against theappellant.He further submitted that the incident is corroborated by thetestimony of PW 2 who noticed injured and the deceased lying at the topfloor, the fact which was told to PW 2 by the appellant himself. He furtherargued that testimony of PW 14 is totally trustworthy and corroborated bythe MLC and postmortem report. As regards motive, it is argued by the Ld.APP that appellant was jealous of the friendship between injured and thedeceased and therefore, altercation took place and appellant killed Dineshbecause of sexual preferences. Even otherwise, the case is based on eyewitness account.It is further argued that the intention to kill can beattributed to the appellant as he has inflicted not one or two but 12 injuries,some of which are on vital parts of the deceased as well as injured PW 14.It is submitted by the Ld. APP that the contention of the counsel for theappellant that the case of the appellant falls under section 304 IPC, and notU/s 302 IPC, is not correct because the appellant has acted in cruel mannerand inflicted 12 injuries with knife on the deceased and also injured PW 14when he intervened.

CRL.A. 846/2018Page 4 of 24

8.It is the duty of the Court to sift the chaff from the grain and to acceptwhat it finds to be the truth and reject the rest. In appreciating the evidence,inferences should not be drawn by picking up an isolated line or statementfrom here and there; rather the evidence should be examined in the light ofthe total statement of the witnesses. The findings should be on the basis ofobjective assessment of the evidence.It is only where the testimony istainted to the core, the falsehood and the truth being inextricablyintertwined, that the court should discard the evidence.The Court is notmeant to reject the testimony of witness on slightest deflection, but has abounden duty to search the truth.

9.In the instant case, the most material witness of the prosecution isPW 14. Before discussing his testimony in detail, it can be noticed that theappellant has not disputed his presence at the place of incident i.e. A-1/38,SJ Enclave along with deceased Dinesh and injured Shrawan. In this regard,reply given by him in his statement U/s 313 Cr.P.C becomes relevant. Replygiven by him to question No. 1 is as follows:

“Q. 1 It is in evidence against you that you were found present atH. No. A1/38, Safdarjang Enclave on 6/7-6-12, at sometime at 12night to 2:30 a.m. What have you to say?

Ans.Yes, I was present at the aforesaid address.”

His presence at the spot is further fortified by his answer to question No. 32wherein he stated that “witness Sarvan had attacked the deceased and healso attacked me. Later on, he stabbed with the knife on his own body inorder to falsely implicate me in this case.”Therefore, we have no

CRL.A. 846/2018

Page 5 of 24

hesitation to conclude that the appellant was present at the spot at the givendate and time of incident.

10.The material witness of the prosecution is PW 14 who is the injuredwitness.In order to appreciate his testimony, the same is reproduced asunder:

“PW-14 Sarwan @ Shartrughan S/o Sh. Ram DevRam @ Ghinu Ram, Age-23 years, Present R/o X-9, HauzKhas, New Delhi.

ON S.A.

I hail from village Saugar Dist. Madhepura (Bihar).On day of incident I was residing as cook of my employerSh. Amit Makhija at ground floor of H. No. A-1/44, SafdarJung Enclave, New Delhi. One Dinesh was also residing ascook in Kothi No. A-1/38 Safdar Jung Enclave. He was myfriend as we were on visiting term.Premises No. A-1/38Safdarjung Enclave was constructed up to fourth floor.Iam not aware who was residing on the ground floor.Myfriend Dinesh Kumar was residing as cook on the first floor.One Gopal was residing on the second floor and one otherperson whose name I do not remember was residing on thirdfloor. Three room was also constructed at the roof of thirdfloor of premises No. A-1/38. On 06.06.2012 at about 8:00P.M. Gopal had called me on phone and told me that he wasalone at his room as his employer along with his family isabout to go. He further told me that he had arranged partyfor me as he was alone. I replied him I am busy and not inposition to come as wife of my employer is at home.Aforesaid Gopal called me at about 10:30 P.M. on my phoneNo.[REDACTED] through his phone but I cannot tell hisphone no.

CRL.A. 846/2018

Gopal told me on my phone that I should reach at hisresidence he further told me Dinesh is also coming.Iimmediately reached at his residence at the third floor ofpremises No.A-1/38.I found Gopal there. I asked fromGopal about Dinesh as he was not present.In my presenceGopal made telephone call through his phone to Dinesh.Dinesh replied him he is busy and he would come after sometime.Gopal was having three beer bottles, one quarterliquor bottle, empty bottle and three glasses when I hadreached there. Gopal prepared three pegs for us as Dineshwas about to come. I consume half glass beer on the requestof Gopal also consume liquor and thereafter we both startedtalks in the mean time at about 11:15 PM Dinesh came to us.Dinesh also consume beer on the request of Gopal I alsoconsume my balance beer and we all three started talks. Iwent near the bathroom and combing my hair while standingin front of the mirror of bathroom. At that time I felt thathottalkstookplacebetweenGopal&Dinesh.Iimmediately saw towards them and it came into my noticethey were talking “aaj kal Sharvan (this PW) tumse (Dinesh)jayada lagaav rakhta hai or us se (Gopal) kam rakhta hai”.Gopal was uttering that Dinesh used to talk me more whilegap between Gopal and Dinesh has come.But Dineshreplied he is treating Sharvan and Gopal in same manner.After aforesaid discussion between Dinesh & Gopal quarreltook place. Dinesh started to go but Dinesh did not go fromthere on my request.In the mean time Gopal slap Dinesh.Dinesh went toward up stair I followed him.Gopal alsofollowed us Dinesh & Gopal both were in angry mood.Gopal stabbed on chest of Dinesh when we were in themiddle of stair case to go toward top floor.I becamenervous on seeing the blood oozing out form the injury ofDinesh.

Injured Dinesh rushed to the top floor I and Gopalfollowed him. Gopaldragged injured Dinesh by catchinghold his hand when Dinesh was near the door of top floor.

CRL.A. 846/2018

Dinesh fell down in front of the door of top floor. Dineshstand up and he tried to take out the key from his paint toopen his room on the top floor.Room of Gopal is alsosituated near the Room of Dinesh. Gopal had again causedthree – four injury with knife when Dinesh was in theprocess to stand up to go his room. I tried to save Dineshand I wanted to take him towards the bathroom for hisdefence immediately Gopal also stabbed on my chest.Dinesh had fell down in front of the bathroom. I also felldown at the top floor in front of the bathroom on sustainingthree-four stabbed injury caused by Gopal.I becameunconscious I do not know what happened thereafter.Witness correctly identify accused present in court as aassailant by name as Gopal. I can not tell the phone No. onwhich accused Gopal had made calls to me.I had toldpresent phone no. in my aforesaid examination. I regainedmy consciousness.Gopal had used his kitchen knife tocause injury me and my friend Dinesh.After about twodays from the day of incident that injured Dinesh wasdeclared dead in the Hospital. This fact was told to me bythe brother of deceased.”

11.This witness was cross examined at length but nothing material couldbe extracted from his cross examination, rather it was suggested to him thatthe appellant was not present at the place of incident to which he gave apositive reply that appellant was present at the spot and it is also evidentfrom the records of this case that the appellant had himself admitted hispresence at the place of incident. The prosecution has been able to prove onrecord that the appellant, deceased Dinesh and injured Shravan had gatheredin the intervening night of 6/7-06-2012 at house No. A-1/38, SJ Enclave fora party where the incident took place.PW 14 had given very

CRL.A. 846/2018

Page 8 of 24

descriptive/detailed narration of the sequence of events which took placeand the manner in which the appellant stabbed the deceased and him.

12.PW 14 has also stated in his testimony as to the manner in which thefight started.He has stated that they were taking liquor in lobby andDinesh joined them lateron.He also stated that during quarrel appellantslapped Dinesh. Dinesh started moving towards staircase in order to leavethe room. PW 14 further stated that he also followed Dinesh, and appellantalso came after them. PW 14 further stated that on stairs, appellant stabbedDinesh and stabbed him near the servant quarter. He further stated that hehad seen the knife but cannot give its measurement.

13.Ld.defence counsel has argued that there was no motive for theappellant to have murdered Dinesh and it was injured Shravan who hadcommitted the offence and later inflicted injury upon himself. First of all, asfar as the question of motive is concerned, the case of the prosecution is notbased on circumstantial evidence. This is case of direct evidence in whichwe have an injured eye witness who has categorically deposed against theappellant and there is nothing in the cross examination to disbelieve thiswitness.The motive may be the liking between deceased and Shravanwhich did not go down well with the appellant. Further, in the facts andcircumstances of this case, and the fact that we have reliable injured eyewitness account, motive pales into insignificance.

14.As held in the case of "Jafel Biswas v. State of West Bengal" (2019)12 SCC 560, the absence of motive does not disperse prosecution case ifthe prosecution succeed in proving the same. The motive is always in the

CRL.A. 846/2018Page 9 of 24

mind of person authoring the incident. Motive not being apparent or notbeing proved only requires deeper scrutiny of the evidence by the courtswhile coming to conclusion. When there are definite evidence proving anincident and eyewitness account prove the role of accused, absence inproving of the motive by prosecution does not affect the prosecution case.

15.In the matter of "Bipin Kumar Mondal Vs. State of West Bengal"reported in AIR 2010 SC 3638 the Hon’ble Apex Court held as under:

“In case the prosecution is not able to discover an impellingmotive, that could not reflect upon the credibility of witnessproved to be reliable eye-witness. Evidence as to motivewould, no doubt, go long way in cases wholly dependent oncircumstantial evidence. Such evidence would form one of thelinks in the chain of circumstantial evidence in such case. Butthat would not be so in cases where there are eye- witnesses ofcredibility, though even in such cases if motive is properlyproved, such proof would strengthen the prosecution case andfortify the court in its ultimate conclusion. But that does notmean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.”

16.As far as the arguments of the Ld. counsel for the appellant thatinjured Shrawan had murdered Dinesh or inflicted injury upon the appellantand upon himself, and that the appellant did not try to abscond, has also noforce in it. First of all no such questions were put to PW-14 Shrawan duringhis cross examination and it has only been suggested to PW 14 that hisinjuries were self inflicted to which he denied.When Dr. Sanjeev BhoiCRL.A. 846/2018Page 10 of 24

(PW-19) who had proved the MLC of PW-14 Shrawan appeared in thewitness box, he was not cross examined and his cross examination wastreated as "Nil Opportunity given". His testimony has gone unrebutted andunchallenged.According to PW 2, the appellant had come to his house atabout 2:20 a.m. and informed him about the incident. According to PW 21-SI Mukesh Kumar, who was the first police official to reach the place ofincident and while he was making inquiries, Inspector Sanjay Sharma (PW-23) with other police staff also reached the spot and when Inspector SanjaySharma knocked the door of the flat on the second floor, appellant openedthe door of the flat. PW 21 SI Mukesh Kumar further deposed that he hadobserved injury marks on the right arm and the right side of the neck of theappellant and when Inspector Sanjay Sharma (PW-23) inquired about thesaid injury marks from the appellant, he got scared and could not explainthe injury marks on his body, therefore, he was brought to the police stationfor enquiry.This was the first opportunity with the appellant to haveexplained about the injuries on his person but he failed to do so.Theappellant was also got medically examined vide MLC Ex. PW 19/C and thenature of injurieson his person were opined as simple caused by sharpobject. As per the testimony of PW 20 Dr. Adarsh Kumar, on the requestletter of IO dated 04.08.2012 Ex. PW 10/H, Dr. S. Janani gave opinion thatpossibility of the injuries on the person of appellant being self inflictedcannot be ruled out. Therefore, in our opinion, the trial court has rightlyobserved in the judgment that the appellant himself reported the incident andwas found at the spot itself in suspicious condition.The injury on thebody of the appellant, as opined, are superficial in nature and could be self

CRL.A. 846/2018Page 11 of 24

inflicted. The appellant cannot be given benefit of the circumstance that hedid not try to abscond from the spot despite opportunity. Entire sequence ofevents of the prosecution case is also duly corroborated through thetestimony of PW 2, PW 4, PW 8 and to some extent by PW 1.

17.During the course of the arguments, it has been vehemently argued bythe Ld. counsel for the appellant that the conviction cannot be based on thesole testimony of an eye witness. This argument of the Ld. counsel for theappellant is totally against the canons of law.The Court is concerned withthe quality of the evidence and not the quantity. If the testimony of the soleeye witness is believable then definitely the conviction can be based uponsuch testimony.

18.In the instant case, the eye witness is an injured eye witness. Nothinghas been shown or proved on record by the defence that PW 14 had anyanimosity with the appellant.Rather, it was the appellant who was nothappy with the relations between the deceased and Shrawan which is evidentfrom these words uttered by him:"Aajkal Shravan (PW 14) tumse (dececased Dinesh) jyadalagav rakhta hai aur usse(appellant) kam rakhta hai".

19.The testimony of the injured witness inspires much more confidencebecause it is highly improbable that man would let go his real assailant andwould name someone else. We have perused the judgments relied upon bythe Ld. Trial Court titled as "Manjit Singh Vs. State (NCT of Delhi)" Crl.Appeal No. 51/1998 dated 19.03.2014 and "State of U.P. Vs.KishanCRL.A. 846/2018Page 12 of 24

Chand" reported in (2004) 7 SCC 629 and are of the opinion that the Ld.Trial Court has rightly placed reliance on the said judgments and has rightlyconcluded as follows in para No. 34 of the judgment:

“34.This injured witness PW 14 able to provide fullaccountofincident,defencemiserablyfailedtoimpeach the credibility and the trustworthiness of thisinjured witness.I find no reason to disbelieve thetestimony of injured (PW 14) who remained consistentand coherent on the core issue that the accused inflictedmultiple injuries to deceased consequent to which hedied.”

20.So we also find no reason to differ with findings of the Ld.TrialJudge and see no reason to disbelieve the otherwise reliable and trustworthytestimony of PW 14 whose testimony is duly corroborated by Ex. PW 19/Bwhich is his MLC.

21.It has been argued by the Ld. counsel for the appellant that the CDRrecord were not collected by the IO in order to seek the location. In ouropinion, even if that has not been done by the IO no prejudice has beencaused to the appellant as his presence and presence of deceased and injuredShravan has not been disputed by him as observed by us hereinabove.

22.It has been contended by the Ld. counsel for the appellant that kniferecovered at the spot could not be connected with the crime as there wereno finger prints on it and PW14 was not able to tell its measurement. In ouropinion, the contention of the defence counsel that because PW 14 has failedto give the measurement of knife, it makes him an unreliable witness has noforce because, even if, the injured witness has failed to give the

CRL.A. 846/2018Page 13 of 24

measurement of the knife that does not make him an unreliable witness. It ishighly improbable that person who is being attacked with knife would bein position to notice the measurement of the knife. Rather, in such asituation his first concern would be to save himself or the person who isbeing attacked. His testimony and cross examination clearly establishes themanner in which the incident took place and how the stab injuries wereinflicted by the appellant to him as well as to the deceased Dinesh.

23.The knife was seized vide seizure memo Ex. PW 10/C, however,there is nothing in the testimony of police officials examined by theprosecution to doubt the recovery of the knife from the spot. Blood stainswere noticed on the knife but as per FSL report, there was no reaction overthe blood found on the knife and no finger prints were lifted from the knife.Here, it is worthwhile to say that the scientific investigation in criminalcases in the country is not up to the mark, which also appears to be the casehere also.Experience has shown that crime team officials are notprofessionals in forensics and are not well equipped/qualified in collectingthe blood samples and other objects from the scene of crime. That is why inmost of the cases, the finger prints are not detected on the weapon used inthe crime and the blood samples are found to be putrefied. In our opinion,when such heinous crime takes place, it should be the responsibility of theSHO of the concerned Police Station to take assistance from scientificofficer from the nearest FSL Laboratory and to take him along to the crimescene so that the exhibits are lifted and preserved in scientific manner,otherwise, it would be very difficult to collect the scientific evidence from

CRL.A. 846/2018

Page 14 of 24

the scene of crime in proper manner. We have seen that in many casespublic witnesses do not support the case of the prosecution which leadsundesired results, but if proper scientific investigation is undertaken then inthat case the prosecution will have scientific evidence to fall back upon evenif witnesses are not supporting.Therefore, IO/SHO should be veryparticular and see to it that the case is not lacking in collection of scientificevidence. We say this at the cost of repetition, that the Delhi police officialswho are made in-charge of the crime teams and fellow members of the crimeteam are highly ill-equipped and not properly qualified to collect samples,lift exhibits and preserve them in proper manner so thatthey can beexamined properly in the FSL.It is high time that the authorities shouldlook into this aspect and constitute crime teams with the personnel’spossessing the requisite expertise and qualification.

24.Now coming back to this case, no doubt, there were no finger printsfound on the knife, the blood group was also not detected and, above all, forthe reasons best known to the prosecution the knife was not shown to PW 14but, in our opinion, if the prosecution has failed to prove that the knifewhich was recovered from the spot had no connection with the offence thenalso, in our opinion, the appellant cannot draw any benefit from the same, inview of the reliable testimony of PW 14.At best, it can be said to be aminor lacuna in the case of prosecution, but no benefit of it can be extendedto the appellant in the facts and circumstances of this case.

CRL.A. 846/2018

Page 15 of 24

25.The case of the prosecution primarily rests on the testimony of PW 14which we have found to be unflinching, reliable and wholly trustworthy andnothing has come out in his testimony to render him unreliable.

26.The Ld.Trial Court has convicted the appellant for the murder ofDinesh U/s 302 IPC. The Ld. defence counsel has argued in the alternativethat the case of the appellant at best falls within the ambit of section 304 IPCand not U/s 302 IPC. Sections 300 IPC and Section 304 IPC are as follows:

300. Murder. —Except in the cases hereinafterexcepted, culpable homicide is murder, if the act bywhich the death is caused is done with the intentionof causing death, or—

Secondly. —If it is done with the intention of causingsuch bodily injury as the offender knows to be likelyto cause the death of the person to whom the harm iscaused, or—

Thirdly. — If it is done with the intention of causingbodily injury to any person and the bodily injuryintended to be inflicted is sufficient in the ordinarycourse of nature to cause death, or—

Fourthly. —If the person committing the act knowsthat it is so imminently dangerous that it must, in allprobability, cause death or such bodily injury as islikely to cause death, and commits such act withoutany excuse for incurring the risk of causing death orsuch injury as aforesaid.

304.Punishmentforculpablehomicidenotamountingtomurder.—Whoevercommitsculpable homicide not amounting to murder shall bepunishedwith1[imprisonmentforlife],orimprisonment of either description for term whichmay extend to ten years, and shall also be liable tofine, if the act by which the death is caused is done

Page 16 of 24

CRL.A. 846/2018

with the intention of causing death, or of causingsuch bodily injury as is likely to cause death,

or with imprisonment of either description for termwhich may extend to ten years, or with fine, or withboth, if the act is done with the knowledge that it islikely to cause death, but without any intention tocause death, or to cause such bodily injury as islikely to cause death.

27.In order to appreciate the submissions of the Ld. defence counsel, wehave reproduced the two sections hereinabove.

28.The crucial question is as to which was the appropriate provision to beapplied. In the scheme of the IPC culpable homicide is genus and 'murder'its ''specie''. All 'murders' are 'culpable homicide' but not vice-versa.Speaking generally, 'culpable homicide' sans 'special characteristics ofmurder is culpable homicide not amounting to murder'. For the purpose offixing punishment, proportionate to the gravity of the generic offence, theIPC practically recognizes three degrees of culpable homicide. The first is,what may be called, 'culpable homicide of the first degree'. This is thegravest form of culpable homicide, which is defined in Section 300 as'murder'. The second may be termed as 'culpable homicide of the seconddegree'. This is punishable under the first part of Section 304. Then, there is'culpable homicide of the third degree'. This is the lowest type of culpablehomicide and the punishment provided for it is also the lowest among thepunishments provided for the three grades. Culpable homicide of this degreeis punishable under the second part of Section 304. The academic distinctionbetween 'murder' and 'culpable homicide not amounting to murder' hasalways vexed the Courts. The safest way of approach to the interpretation

CRL.A. 846/2018Page 17 of 24

and application of these provisions seems to be to keep in focus thekeywords used in the various clauses of Sections 299 and 300. Thefollowing comparative table will be helpful in appreciating the points ofdistinction between the two offences.

Section 299

Section 300

person commits culpable homicideSubject to certain exceptions culpableif the act by which the death is causedhomicide is murder if the act by whichis done -the death is caused is done -

INTENTION

(a) with the intention of causing death;(1) with the intention of causing death;oror

(b) with the intention of causing such(2) with the intention of causing suchbodily injury as is likely to causebodily injury as the offender knows todeath; orbe likely to cause the death of theperson to whom the harm is caused;or

KNOWLEDGE

(3)With the intention of causingbodily injury to any person and thebodily injury intended to be inflictedis sufficient in the ordinary course ofnature to cause death; or

(C) with the knowledge that the act islikely to cause death.

(4) With the knowledge that the act isso imminently dangerous that it mustin all probability casus death or suchbodily injury as is likely to causedeath,and without any excuse forincurring the risk of causing death orsuch injury as is mentioned above.

CRL.A. 846/2018

29.Clause (b) of Section 299 corresponds with clauses (2) and (3) ofSection 300. The distinguishing feature of the mens rea requisite underclause (2) is the knowledge possessed by the offender regarding theparticular victim being in such peculiar condition or state of health that theinternal harm caused to him is likely to be fatal, notwithstanding the fact thatsuch harm would not in the ordinary way of nature be sufficient to causedeath of person in normal health or condition. It is noteworthy that the'intention to cause death' is not an essential requirement of clause (2). Onlythe intention of causing the bodily injury coupled with the offender’sknowledge of the likelihood of such injury causing the death of theparticular victim, is sufficient to bring the killing within the ambit of thisclause. This aspect of clause (2) is borne out by illustration (b) appended toSection 300.30.Clause (b) of Section 299 does not postulate any such knowledge onthe part of the offender. Instances of cases falling under clause (2) of Section300 can be where the assailant causes death by fist blow intentionallygiven knowing that the victim is suffering from an enlarged liver, orenlarged spleen or diseased heart and such blow is likely to cause death ofthat particular person as result of the rupture of the liver, or spleen or thefailure of the heart, as the case may be. If the assailant had no suchknowledge about the disease or special frailty of the victim, nor an intentionto cause death or bodily injury sufficient in the ordinary course of nature tocause death, the offence will not be murder, even if the injury which causedthe death, was intentionally given. In clause (3) of Section 300, instead of

CRL.A. 846/2018

Page 19 of 24

the words 'likely to cause death' occurring in the corresponding clause (b) ofSection 299, the words "sufficient in the ordinary course of nature to causedeath" have been used. Obviously, the distinction lies between bodilyinjury likely to cause death and bodily injury sufficient in the ordinarycourse of nature to cause death. The distinction is fine but real and ifoverlooked, may result in miscarriage of justice. The difference betweenclause (b) of Section 299 and clause (3) of Section 300 is one of the degreeof probability of death resulting from the intended bodily injury. To put itmore broadly, it is the degree of probability of death which determineswhether culpable homicide is of the gravest, medium or the lowest degree.The word 'likely' in clause (b) of Section 299 conveys the sense of probableasdistinguishedfromamerepossibility.Thewords"bodilyinjury.......sufficient in the ordinary course of nature to cause death" meanthat death will be the "most probable" result of the injury, having regard tothe ordinary course of nature.

31.For cases to fall within clause (3), it is not necessary that the offenderintended to cause death, so long as the death ensues from the intentionalbodily injury or injuries sufficient to cause death in the ordinary course ofnature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is anapt illustration of this point.

32.In "Virsa Singh v. State of Punjab", (AIR 1958 SC 465), VivianBose, J. speaking for the Court, explained the meaning and scope of clause(3). It was observed that the prosecution must prove the following factsbefore it can bring case under Section 300, "thirdly". First, it must

CRL.A. 846/2018Page 20 of 24

establish quite objectively, that bodily injury is present; secondly thenatureoftheinjurymustbeproved.Thesearepurely objectiveinvestigations. Thirdly, it must be proved that there was an intention toinflict that particular injury, that is to say, that it was not accidental orunintentional or that some other kind of injury was intended. Once thesethree elements are proved to be present, the enquiry proceeds further, andfourthly it must be proved that the injury of the type just described made upof the three elements set out above was sufficient to cause death in theordinary course of nature. This part of the enquiry is purely objective andinferential and has nothing to do with the intention of the offender.

33.The ingredients of clause "Thirdly" of Section 300, IPC were broughtout by the illustrious Judge in his terse language as follows:

"To put it shortly, the prosecution must prove the following factsbefore it can bring case under Section 300, "thirdly".

First, it must establish, quite objectively, that bodily injury is present.

Secondly, the nature of the injury must be proved. These are purelyobjective investigations.

Thirdly, it must be proved that there was an intention to inflict thatparticular bodily injury, that is to say that it was not accidental orunintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiryproceeds further and, Fourthly, it must be proved that the injury of thetype just described made up of the three elements set out above issufficient to cause death in the ordinary course of nature. This part ofthe enquiry is purely objective and inferential and has nothing to dowith the intention of the offender."

CRL.A. 846/2018

34.The learned Judge explained the third ingredient in the followingwords (at page 468):

"The question is not whether the prisoner intended to inflict aserious injury or trivial one but whether he intended to inflictthe injury that is proved to be present. If he can show that he didnot, or if the totality of the circumstances justify such aninference, then of course, the intent that the section requires isnot proved. But if there is nothing beyond the injury and the factthat the appellant inflicted it, the only possible inference is thathe intended to inflict it. Whether he knew of its seriousness orintended serious consequences, is neither here or there. Thequestion, so far as the intention is concerned, is not whether heintended to kill, or to inflict an injury of particular degree ofseriousness but whether he intended to inflict the injury inquestion and once the existence of the injury is proved theintention to cause it will be presumed unless the evidence or thecircumstances warrant an opposite conclusion."

35.The test laid down by Virsa Singh’s case (supra) for the applicabilityof clause "Thirdly" is now ingrained in our legal system and has becomepart of the rule of law. Under clause thirdly of Section 300 IPC, culpablehomicide is murder, if both the following conditions are satisfied: i.e. (a)that the act which causes death is done with the intention of causing death oris done with the intention of causing bodily injury; and (b) that the injuryintended to be inflicted is sufficient in the ordinary course of nature to causedeath. It must be proved that there was an intention to inflict that particularbodily injury which, in the ordinary course of nature, was sufficient to causedeath, viz., that the injury found to be present was the injury that wasintended to be inflicted.

36.Thus, according to the rule laid down in Virsa Singh’s case, even ifthe intention of accused was limited to the infliction of bodily injury

CRL.A. 846/2018

Page 22 of 24

sufficient to cause death in the ordinary course of nature, and did not extendto the intention of causing death, the offence would be murder. Illustration(c) appended to Section 300 clearly brings out this point.

37.Clause (c) of Section 299 and clause (4) of Section 300 both requireknowledge of the probability of the act causing death. It is not necessary forthe purpose of this case to dilate much on the distinction between thesecorresponding clauses.Clause (4) of Section 300 would be applicablewhere the knowledge of the offender as to the probability of death of aperson or persons in general as distinguished from particular person orpersons being caused from his imminently dangerous act. Such knowledgeon the part of the offender must be of the highest degree of probability, theact having been committed by the offender without any excuse for incurringthe risk of causing death or such injury as aforesaid.

38.This position was illuminatingly highlighted by Supreme Court inState of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4)SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of AndhraPradesh (2002 (7) SCC 175), Augustine Saldanha v. State of Karnataka(2003 (10) SCC 472) and in Thangiya v. State of T.N. (2005 (9) SCC 650).

39.Factual background of this case is now to be analyzed on the basis ofprinciples set out hereinabove.In the instant case, the prosecution has beenable to successfully prove that PW 14-Shrawan who is the injured eyewitness is totally trustworthy. As per the postmortem report which is Ex.PW 7/A, there were 12 stab wounds on the body of the deceased.As perthe testimony of PW 7 Dr. Sanjay Kumar-II, who had proved theCRL.A. 846/2018Page 23 of 24

postmortem report, the cause of death in this case was Haemorrhagic shockas result of multiple antemortem injuries produced by pointed sharp edgedobject and were sufficient to cause death in ordinary course of nature. Theappellant had inflicted 12 stab injuries on the person of deceased Dinesh andwhen PW-14 Shrawan tried to save deceased Dinesh at the hands of theappellant, the appellant even inflicted knife blows on the person of PW-14Shrawan.As per the postmortem report of deceased Dinesh, the injuriescaused upon him were sufficient to cause death in the ordinary course ofnature. Therefore, it can be said that the appellant had acted in most crueland unusual manner. So, the inevitable conclusion is that the case at hand iscovered under Section 302 IPC.

40.Therefore, in view of the discussions mentioned hereinabove, we areof the opinion that the appellant is guilty of committing murder of Dineshand causing knife injuries to PW-14 Shrawan.The appeal is accordinglydismissed. Impugned judgment dated 28.04.2018 and order on sentencedated 17.05.2018 passed by the Ld. Trial Court are, upheld. All pendingapplications (if any) are disposed of.Trial court record be sent backforthwith alongwith certified copy of this judgment.

RAJNISH BHATNAGAR, J

VIPIN SANGHI, J

April 07, 2021

Sumant

CRL.A. 846/2018

Page 24 of 24