Case: Jagriti Devi Vs. State of H.P

2. The accused-appellant herein was tried for an offence of murder punishable under Section 302, IPC for allegedly committing the murder of her co-wife Shama Devi, on 02.06.1996 at her house in Village Atgaon, Tehsil Chirgaon, District Shimla.3. The accused-appellant Jagriti Devi is the legally wedded wife of one Mohinder Singh who was a resident of village Atgaon. Out of the aforesaid wedlock, the accused-appellant gave birth to five children, four daughters and one son. The husband of the accused-appellant, however, married for a second time and brought the second wife- Shanti Devi home who was the deceased in the present case.4. The aforesaid marriage with the deceased-Shanti Devi took place about 2-3 months prior to the date of occurrence. On 02.06.1996, the husband of the accused-appellant was out of station as he had gone to Rohru on the previous day. The deceased-Shanti Devi slept outside the house in veranda on the night intervening 01.06.1996 and 02.06.1996. When the said deceased was sleeping in the veranda on 02.06.1996 at about 6 a.m., the accused-appellant assaulted her with a `Khukri. A number of blows appeared to have been given on her head and one blow on her neck. The deceased-Shanti Devi, however, survived for about few hours of the infliction of the injuries, and thereafter she died. The accused-appellant immediately after committing the crime fled away with the weapon of offence after washing her hands at the water tap in front of her house.5. The Police was informed by Naresh, the brother of the deceased-Shanti Devi who lived in a separate village but not very far from the village of the husband of the accused-appellant. Being informed by a boy named Rajesh, Naresh came to the spot and saw his sister lying un-conscious with a number of bleeding injuries on her head and neck. Naresh informed the police. On being informed, Sub Inspector Dhanpat Rai who was the Additional Station House Officer at Police Station, Rohru, went to the spot of occurrence. By the time he reached the spot, the deceased-Shanti Devi had died. The body of the deceased was sent for post mortem examination.6. During the course of investigation, the police arrested the accused- appellant in Chirgaon Bazar, when she was going towards her parents village in the company of her brother. On being interrogated, the accused-appellant told the Police that she had kept the `Khukri hidden in a field. On the basis of the aforesaid statement, the `Khukri was subsequently recovered and sealed in a parcel. The Police completed the investigation and submitted a charge sheet against the accused-appellant-appellant under Section 302 IPC.7. The accused-appellant pleaded not guilty to the charge of Section 302 IPC and claimed to be tried. During the course of the trial, the prosecution examined 21 witnesses. After completion of the recording of evidence of the prosecution witnesses, the accused-appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short "the CrPC"). In the said examination, the accused-appellant did not deny having caused fatal injuries to the deceased, but she stated that she had killed the deceased in exercise of her right of private defence. The accused-appellant also filed a written statement under Section 233 of the Cr.PC in which she stated that on the fateful day, there was altercation between her and the deceased upon which deceased took out the `Khukri kept under her pillow and attacked the accused-appellant with the same to which the accused-appellant received some injuries on her head, but luckily through the handle of the `Khukri. It was also stated by the accused-appellant that in order to prevent the deceased from further assault, she snatched the `Khukri from the deceased and had given a few blows of `Khukri to the deceased.8. The Trial Court, after going through the evidence on record found the accused-appellant guilty of the offence alleged against her and convicted her for the offence of murder punishable under Section 302 of the Indian Penal Code. The learned Sessions Judge, Shimla thereafter passed an order of sentence against the accused-appellant to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine, directed her to undergo further simple imprisonment for a period of one year.9. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant filed an appeal before the High Court of Himachal Pradesh which entertained it and by a detailed judgment and order dated 31.8.2000 upheld the order of conviction and sentence by affirming the same.10. The accused-appellant being aggrieved by the aforesaid concurring judgments of conviction and sentence filed the present appeal on which we have heard the learned counsel appearing for the parties. Our attention was drawn to the statements of the prosecution witnesses as also the medical evidence and also to the statement of accused-appellant under Section 313 of the CrPC as also her written statement under Section 233 of CrPC.

Reasoning: 16. We have examined the evidence of19 carefully and on a reading thereof, we are of the considered view that both19 came to the scene of occurrence when thehad assaulted the deceased with the `Khukri.came to the place of occurrence when he sawstanding in the veranda.was informed by18 went inside to informby that time the incident must have been over as it took only few minutes for theto give blows to the deceased and then running away from the scene of occurrence. Therefore, it is crystal clear thathas seen the entire incident from the starting point namely altercation taking place between theand the deceased and thereafterWe find no reason to disbelieve the statement ofIn our considered opinion both the trial court and the High Court discarded her evidence without any cogent reason. The trial court and the High Court took the view that the injuries received by thewere not explained by the prosecution in the trial. It is true that those injuries were received by thewhile there was a grappling going on between theand the deceased for snatching `Khukri which was the weapon of murder. On appreciation of the entire evidence on record, we are satisfied that there was an altercation preceding the incident of murder in whichwas insulted by the deceased and by doing so the deceased provoked theant snatched away the `Khukri from the hands of the deceased due to which thealso received the injuries.18. Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which thes insulted by the deceased and by doing so the deceased provoked theThe deceased also took out the `Khukri which was under the pillow with the intention of assaulting theant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by theFurther, it is also established in evidence that the `Khukri used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of theto kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.