MOHD. RAFIQ @ KALLU versus THE STATE OF MADHYA PRADESH
[2021] 9 S.C.R. 163, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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MOHD. RAFIQ @ KALLU
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 856 of 2021)
SEPTEMBER 15, 2021
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Penal Code, 1860 – s.302 and s.304 – Prosecution case that
Sub-Inspector (SI) motioned a truck, driven by the accused/
appellant, to stop – Instead of applying brakes, the accused tried
to speed away, upon which SI boarded the truck from its left side –
It was alleged that the appellant warned SI not to do so and that he
would get killed – Nevertheless, SI boarded the truck – Appellant
pushed him, as a result of which SI fell off the truck and he was run
over by the rear wheels of the truck – SI died – Appellant fled with
the truck – However, later he was arrested and charged with
committing murder – The Trial Court convicted the appellant as
charged and sentenced him to rigorous imprisonment for life – The
High Court confirmed his conviction u/s.302 IPC – On appeal, held:
No motive or animus against the deceased was proved – A general
expression of the extreme threat, (without any real intention of
carrying it, since the truck was not laden with any contraband or
was not used for any illegal or suspect activity), cannot be given
too much weight– It was established that SI did fall off the truck,
which continued its movement, perhaps with greater rapidity –
However, this does not prove that the appellant, with deliberate
intent, drove over the deceased and he knew that the deceased would
have fallen inside, so
that the truck’s rear tyre would have gone
over him – The act resulting in SI’s death was not pre-meditated –
The instinctive reaction of the appellant was to resist; he
disproportionately reacted, which resulted in the deceased being
thrown off the vehicle – Such act of throwing off the deceased and
driving on without pausing, appears to have been in the heat of
passion, or rage – On facts, the appellants should be convicted for
the offence punishable under the first part of s.304 IPC, as he had
the intention of causing such bodily harm, to the deceased, as was
likely to result in his death – The conviction recorded by the courts
below, is altered to one u/s.304 Part I, IPC – The sentence too is
[2021] 9 S.C.R. 163
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therefore modified – Instead of rigorous imprisonment for life, the
appellant is hereby sentenced to 10 years’ rigorous imprisonment.
Allowing the appeal, the Court
HELD: 1. On the facts of this case, there can be no serious
dispute that the prosecution established the main elements of its
factual allegations: the receipt of information of the breaking of
the forest barrier; positioning of the deceased Sub-Inspector (SI),
with a posse of policemen on the road; the identification of the
appellant, as one who drove the truck; gesturing by the deceased
to the appellant to stop the truck; the latter slowing down the
vehicle; attempt by the SI to board the vehicle, and his being
shaken off the truck, on account of the driver refusing to stop,
and, on the other hand, speeding the vehicle. Even if the
prosecution version that the appellant having threatened to kill
the deceased were to be accepted, one cannot set much store by
it, because no motive or no animus against the deceased was
proved. A general expression of the extreme threat, (without any
real intention of carrying it, since the truck was not laden with
any contraband or was not used for any illegal or suspect activity),
cannot be given too much weight. What is of consequence, is
that upon the deceased falling off the truck, the appellant drove
on. Here, the prosecution established that the truck was driven,
without heed; however, it did not establish the
intention of the
driver (i.e. the appellant) to run over the deceased. This point,
though fine, is not without significance, because it goes to the
root of the nature of the intention. Did the appellant intend to kill
SI? This Court thinks not. Clearly, he knew that SI had fallen off;
he proceeded to drive on. However, whether the deceased fell in
the direction of the rear tyre, of the truck, or whether he fell
clear of the vehicle, has not been proved; equally it is not clear
from the evidence, that the appellant knew that he did. What was
established, however was that he did fall off the truck, which
continued its movement, perhaps with greater rapidity. This does
not prove that the appellant, with deliberate intent, drove over
the deceased and he knew that the deceased would have fallen
inside, so that the truck’s rear tyre would have gone over him.
In these circumstances, it can however be inferred that the
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appellant intended to cause such bodily injury as was likely to
cause SI Tiwari’s death. [Para 14][174-G-H; 175-A-E]
2. All the essential elements show that the appellant did
not have any previous quarrel with the deceased; there was lack
of animus. The act resulting in SI’s death was not pre-meditated.
Though it cannot be said that there was a quarrel, caused by
sudden provocation, if one considers that the deceased tried to
board the truck, and was perhaps in plain clothes, the instinctive
reaction of the appellant was to resist; he disproportionately
reacted, which resulted in the deceased being thrown off the
vehicle. Such act of throwing off the deceased and driving on
without pausing, appears to have been in the heat of passion, or
rage. Therefore, it is held that the appellant’s conviction under
Section 302 IPC was not appropriate. [Para 15][175-F-G]
3. Section 304 IPC Code provides punishment for culpable
homicide not amounting to murder (under Section 299 IPC). In
the facts of the present case, this court is of the opinion that the
appellants should be convicted for the offence punishable under
the first part of Section 304 IPC, as he had the intention of causing
such bodily harm, to the deceased, as was likely to result in his
death, as it did. Having regard to these circumstances, the
conviction recorded by the courts below, is altered to one under
Section 304 Part I, IPC. The sentence too is therefore modified
- instead of rigorous
imprisonment for life, the appellant is hereby
sentenced to 10 years’ rigorous imprisonment. [Para 16][176-A-
C]
State of Andhra Pradesh v. Rayavarapu Punnayya &
Anr. (1976) 4 SCC 382 : [1977] 1 SCR 601; Pulicherla
Nagaraju @ Nagaraju Reddy v. State of Andhra
Pradesh (2006) 11 SCC 444 : [2006] 4 Suppl. SCR
633 – relied on.
Case Law Reference
[1977] 1 SCR 601
relied on
Para 12
[2006] 4 Suppl. SCR 633
relied on
Para 13
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.856 of 2021.
From the Judgment and Order dated 27.02.2018 of the High Court
of Madhya Pradesh Principal Seat at Jabalpur in Criminal Appeal
No.1570 of 1995.
Ms. Ritu Gangele, Anil Kumar Gautam, Advs. for the Appellant.
Gopal Jha, Shreyash Bhardwaj, Nishant Verma, Advs. for the
Respondent.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. The appellant is aggrieved by a judgment of the Madhya Pradesh
High Court1 which confirmed his conviction for the offence punishable
under Section 302 of the Indian Penal Code (“IPC”), and the sentence
of rigorous imprisonment for life imposed on him.
2. The facts are that Police Station Jabera received information
in the evening of 09.03.1992 that a truck (CPQ 4115) had broken the
Forest Department barrier and collided with a motorcycle. The receipt
of this information (by means of telephonic conversation) alerted the
police. It was further alleged that Sub Inspector (SI) D.K. Tiwari along
with others were stationed at a vantage point, on the main road, when
the truck reached there. SI Tiwari motioned the truck to stop; it was
driven by the appellant. Instead of applying brakes, the accused tried to
speed away, upon which SI Tiwari boarded the truck from its left side.
At that stage, it is alleged that the accused/appellant warned SI Tiwari
not to do so and that he would get killed. Nevertheless, SI Tiwari boarded
the truck. Immediately, the appellant pushed him, as a result of which SI
Tiwari fell off the truck and he was run over by the rear wheels of the
truck. SI Tiwari died. It is further alleged that the appellant fled with the
truck. He was later caught, arrested and charged with committing murder
of SI Tiwari.
3. In the trial before the Addl. Sessions Judge, Damoh, the
prosecution relied upon the depositions of 18 witnesses, besides several
exhibits, including the postmortem report, seizure of articles from the
site and the deposition of medical witness (PW-6). The prosecution
1 Dated 27.02.2018 in Crl. A. 1570/1995
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essentially relied upon the statements of PW-2, PW-10, PW-11, PW-14
& PW-15, i.e. the principal eye witnesses. The accused also led oral
evidence of three witnesses, including that of Majeed, DW-1, who deposed
that he was the conductor who was in the truck when the incident had
occurred.
4. After duly considering the entire evidence and materials led
before it, the Trial Court, by its judgment and order2 convicted the appellant
as charged and sentenced him to rigorous imprisonment for life. The
appeal against the conviction and sentence was rejected by the impugned
order.
5. It was argued on behalf of the appellant by Ms. Ritu Gangele,
Advocate that a close reading of the evidence disclosed that the
depositions of PW-2, PW-10, PW-14 and PW-15 contain fatal
contradictions and exaggerations. It was pointed out that the prosecution
version about the deceased boarding the truck from its left side and
being pushed by the appellant was highly improbable given that two
witnesses had clearly deposed that the latter, i.e. the accused continued
to drive the truck. It was submitted that if such was the position, unless
the prosecution established that the deceased had actually boarded the
truck and sat in it near the driver, it was impossible for the accused to
have pushed him with such force that he would have fallen off and
gotten crushed under the rear wheels.
6. Learned counsel also pointed out to depositions of PW-2 and
PW10 and submitted that several
improvements were made to the original
statements, recorded during the course of the investigation. It was stated
that firstly the statement made during the investigation by PW-2 did not
mention how the accused was identified when he was in the truck at
09.45 p.m. whereas the deposition of PW-2 stated that he could identify
the accused in the light of the cabin and tube light on the street. She also
pointed out that PW-2 improved upon his previous statement during the
course of the trial inasmuch as he had not previously stated that the
appellant had freed his left hand to push the deceased and that at the
same time he continued to drive with his right hand. Most crucially, it
was submitted by the learned counsel that the witness nowhere had
stated previously that the truck had sped after slowing down – a position
that he deposed to during the course of trial.
2 Dated 04.11.1995 in SC 123/1992
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7. It was next submitted that the depositions of all the other so-
called eye witnesses were suspicious because they spoke in unison about
the incident in a manner identical to the deposition of PW-2. Learned
counsel pointed out to the improbability of four persons observing an
incident in the same manner, although they were located at different
points or places, but painting the same picture given that the incident had
occurred in the dark. It was submitted that all the witnesses were not
standing at the same spot but dispersed at different points. In these
circumstances, the nature of the light, i.e. how well lit the area was as
well as the distance of the concerned witnesses from the concerned
location, i.e. where the incident occurred, became crucial. The Courts
below ignored these important features and held the appellant guilty of
murder. Learned counsel submitted that there was no material on record
pointing towards any motive on part of the accused. She highlighted that
the deceased was not in uniform but rather in plain clothes and that his
efforts to board the vehicle were resisted by the appellant who did not
know that he was a public servant. It was submitted that the question of
the appellant having any animus or intention to commit murder therefore
did not arise.
8. Mr. Gopal Jha, appearing for the State urged the Court not to
interfere with the concurrent findings and conviction recorded by the
Trial
Court and the High Court. He submitted that both the courts carefully
weighed the evidence and concluded that the appellant deliberately pushed
SI Tiwari when he boarded the truck. What is more, the appellant had
also threatened to kill him if SI Tiwari interfered with the movement of
the truck. When SI Tiwari did not heed and actually boarded the truck,
the appellant, in a cold-blooded manner, pushed him out, and instead of
stopping the truck, deliberately ran over SI Tiwari. The medical evidence
also substantiated the prosecution version that the truck had run over SI
Tiwari since his body disclosed multiple injuries, including ruptured spleen
and intestines and that his skull had cracked open. It was submitted that
the arguments on behalf of the appellant with respect to contradictions
in the depositions of the witnesses could not outweigh the overall effect
of the evidence led before the Court which clearly showed that SI Tiwari
was pushed and deliberately ran over by the appellant. These, submitted,
the learned counsel, established the intention to kill beyond reasonable
doubt.
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Analysis and Conclusions
9. Having carefully considered the record, the evidence of the
trial court and the High Court, as well as the contentions made before
this court, the only question which arises is as to the precise nature of
the criminal liability of the appellant. There can be no serious dispute
about the occurrence of the incident; all the eye witnesses – especially
PW-2 deposed about the receipt of information about a speeding truck
which had run through a Forest Department barrier and which was also
involved in an incident with a motorcycle. SI Tiwari was alerted about
this information and therefore positioned himself along with a few others,
on the road. The evidence also discloses that the incident occurred in
the close vicinity of a police station. By the side of the police station,
there was a medical store. The incident apparently occurred at 09.45
P.M. according to the eye witnesses; in any case, the copy of the First
Information Report reveals that it was recorded at 10:10 PM; it reflects
the time of the incident to be 9:50 PM. There is some contradiction
between the statements made during the investigation by the prosecution
witnesses about the source of light: PW-2 admitted that he had not
mentioned about any light and that he deposed about it for the first time
in court and that he could identify the accused from a distance of about
50 feet due to the light source within the truck’s cabin. There cannot be
serious dispute on this
aspect because there is no argument that the
appellant was in fact driving the truck. What is more important however,
is the exact sequence of events. The depositions of PW-2, PW-14 and
PW-15 are consistent in that the truck had slowed and that SI Tiwari
asked the appellant to stop it. When the appellant did not pay heed, SI
Tiwari attempted and did board the truck. The appellant at that point
allegedly pushed SI Tiwari. This point becomes crucial because the
witnesses consistently deposed that SI Tiwari boarded the left side of
the truck. If so, the accused would have had to use both his hands
depending on how secure SI Tiwari was in the truck. However, PW-2’s
deposition discloses that the accused appellant continued to drive with
his right hand and used his left hand to push SI Tiwari.
10. The High Court, we notice, did not go by the prosecution
version entirely and observed in the impugned judgment that SI Tiwari
fell off the truck on account of “excessive speed of the truck”. If that is
the position, the prosecution’s version that the appellant pushed him and
deliberately ran over SI Tiwari is implausible. The deposition of PW-10
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says that the appellant on being asked to stop had in fact slowed the
truck after which a short altercation with SI Tiwari took place and then
the deceased boarded the truck. PW-10 also deposed that the truck was
driven “in an oblique manner”. Given all these factors, the propensity
of the eye witnesses, PW-2, PW-10, PW-14 and PW-15 to improve
upon the actual incident and introduce exaggerations cannot be ruled out
as they were the deceased’s colleagues and subordinates. There can
however, be no doubt that the incident broadly occurred in the manner
the prosecution alleged: upon receipt of the information of the truck
being involved in a previous incident with the forest department barrier,
SI Tiwari positioned himself along with others in front of the police station.
When the appellant arrived at the spot in the truck, SI Tiwari gestured
him to stop. Momentarily, he stopped down; after this SI Tiwari boarded
from the left side of the truck. It is after this point that the prosecution
version seems improbable and somewhat riddled with contradictions. If
one considers the fact that at least two eye witnesses turned hostile and
that depositions of PW-2 and PW-10 disclose clear improvements, much
importance cannot be given to the words uttered by the appellant to SI
Tiwari, warning that if he tried to board, he would be killed. Likewise,
there is no discussion about the map or the course that the truck took
after SI
Tiwari fell from the truck, i.e., whether it speeded up and that
the appellant intended to drive over and crush SI Tiwari, and that the
position where SI Tiwari fell was known by the appellant to be within
the line of the rear tyre of the moving truck.
11. The question of whether in a given case, a homicide is murder3,
punishable under Section 302 IPC, or culpable homicide, of either
description, punishable under Section 304 IPC has engaged the attention
of courts in this country for over one and a half century, since the
enactment of the IPC; a welter of case law, on this aspect exists, including
perhaps several hundred rulings by this court. The use of the term “likely”
in several places in respect of culpable homicide, highlights the element
of uncertainty that the act of the accused may or may not have killed the
person. Section 300 IPC which defines murder, however refrains from
the use of the term likely, which reveals absence of ambiguity left on
behalf of the accused.  The accused is for sure that his act will definitely
cause death. It is often difficult to distinguish between culpable homicide
3 Sections 299 and 300 IPC define the two offences. They are extracted below :
299. Culpable homicide.—Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause
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and murder as both involve death. Yet, there is a subtle distinction of
intention and knowledge involved in both the crimes. This difference lies
in the degree of the act. There is a very wide variance of degree of
intention and knowledge among both the crimes.
death, or with the knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with
the knowledge that death is likely to be thereby caused. Z believing the ground to be
firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing
it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here
B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c)  A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush;
A not knowing that he was there. Here, although A was doing an unlawful act, he was
not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing
an act that he knew was likely to cause death.
Explanation 1.—A person who causes bodily injury to another who is labouring under
a disorder, disease or bodily infirmity, and thereby accelerates the death of that other,
shall be deemed to have caused his death.
Explanation
2.—Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to proper
remedies and skilful treatment the death might have been prevented. Explanation
Explanation 3.—The causing of the death of child in the mother’s womb is not homicide.
But it may amount to culpable homicide to cause the death of a living child, if any part
of that child has been brought forth, though the child may not have breathed or been
completely born.
300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing death, or—
Secondly —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be in
-flicted is sufficient in the ordinary course of nature to cause death, or—
Fourthly —If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death
or such injury as aforesaid.
Illustrations
*******
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******
Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder
if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes the
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12. The decision in State of Andhra Pradesh v Rayavarapu
Punnayya & Anr4 notes the important distinction between the two
provisions, and their differing, but subtle distinction. The court pertinently
pointed out that:
“12. In the scheme of the Penal Code, “culpable homicide”
is genus and “murder” its specie. All “murder” is “culpable
death of any other person by mistake or accident. The above exception is subject to the
following provisos:—
First —That the provocation is not sought or voluntarily provoked by the offender as
an excuse for killing or doing harm to any person.
Secondly —That the provocation is not given by anything done in obedience to the law,
or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly —That the provocation is not given by anything done in the lawful exercise of
the right of private defence. Explanation.—Whether the provocation was grave and
sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
*******
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******
Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good
faith of the right of private defence of person or property, exceeds the power given to him
by law and causes the death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not in
such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the a
ssault. A believing in good faith that he can by no other means prevent himself from
being horsewhipped, shoots Z dead. A has not committed murder, but only culpable
homicide.
Exception 3.—Culpable homicide is not murder if the offender, being a public servant or
aiding a public servant acting for the advancement of public justice, exceeds the powers
given to him by law, and causes death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of his duty as such public servant and
without ill-will towards the person whose death is caused.
Exception 4.—Culpable homicide is not murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or
commits the first assault.
Exception 5.—Culpable homicide is not murder when the person whose death is caused,
being above the age of eighteen years, suffers death or takes the risk of death with his
own consent.
Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of
age to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent
to his own death; A has therefore abetted murder.’’
4 1976 (4)
SCC 382
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homicide” but not vice- versa. Speaking generally, “culpable
homicide” sans “special characteristics of murder”, is
“culpable homicide not amounting to murder”. For the
purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises three
degrees of culpable homicide. The first is, what may be called,
“culpable homicide of the first degree”. This is the greatest
form of culpable homicide, which is defined in Section 300 as
“murder”. The second may be termed as “culpable homicide
of the second degree”. 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 culpable homicide and the
punishment provided for it is, also, the lowest among the
punishments provided for the three grades. Culpable homicide
of this degree is punishable under the second part of Section
304..
13. The academic distinction between “murder” and “culpable
homicide not amounting to murder” has vexed the courts for
more than a century. The confusion is caused, if courts losing
sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn
into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to
be to keep in focus the keywords used in the various clauses
of Sections 299 and 300.”
13. The considerations that should weigh with courts, in
discerning
whether an act is punishable as murder, or culpable homicide, not
amounting to murder, were outlined in Pulicherla Nagaraju @
Nagaraja Reddy v State of Andhra Pradesh5. This court observed
that:
“29. Therefore, the Court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or
304 Part II. Many petty or insignificant matters - plucking of
a fruit, straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual
5 (2006) 11 SCC 444
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motives like revenge, greed, jealousy or suspicion may be
totally absent in such cases. There may be no intention. There
may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the
penalty for murder by attempting to put forth a case that there
was no intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302, are
not converted into offences punishable under Section 304
Part I/II, or cases of culpable homicide not amounting to
murder are treated as murder punishable under Section 302.
The intention to cause death can be gathered generally from
a combination of a few or several of the following, among
other, circumstances; (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was picked
up from the spot; (iii) whether the blow is aimed at a vital part
of the body;(iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel
or sudden fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;(viii) whether there was any grave
and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x)
whether the
person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive
and there may be several other special circumstances with
reference to individual cases which may throw light on the
question of intention.”
14.  Coming back to the facts of this case, as observed earlier,
there can be no serious dispute that the prosecution established the main
elements of its factual allegations: the receipt of information of the breaking
of the forest barrier; positioning of the deceased SI Tiwari, with a posse
of policemen on the road; the identification of the appellant, as one who
drove the truck; gesturing by the deceased to the appellant to stop the
truck; the latter slowing down the vehicle; attempt by the SI to board the
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vehicle, and his being shaken off the truck, on account of the driver
refusing to stop, and, on the other hand, speeding the vehicle. Even if the
prosecution version that the appellant having threatened to kill the
deceased were to be accepted, one cannot set much store by it, because
no motive or no animus against the deceased was proved. A general
expression of the extreme threat, (without any real intention of carrying
it, since the truck was not laden with any contraband6 or was not used
for any illegal or suspect activity), cannot be given too much weight.
What is of consequence, is that upon the deceased falling off the truck,
the appellant drove on. Here, the prosecution established that the truck
was driven, without heed; however, it did not establish the intention of
the driver (i.e. the appellant) to run over the deceased. This point, though
fine, is not without significance, because it goes to the root of the nature
of the intention. Did the appellant intend to kill SI Tiwari? We think not.
Clearly, he knew that SI Tiwari had fallen off; he proceeded to drive on.
However, whether the deceased fell in the direction of the rear tyre, of
the truck, or whether he fell clear of the vehicle, has not been proved;
equally it is not clear from the evidence, that the appellant knew that he
did. What was established, however was that he did fall off the truck,
which continued its movement, perhaps with greater rapidity. This does
not prove that the
appellant, with deliberate intent, drove over the deceased
and he knew that the deceased would have fallen inside, so that the
truck’s rear tyre would have gone over him.   In these circumstances, it
can however be inferred that the appellant intended to cause such bodily
injury as was likely to cause SI Tiwari’s death.
15. All the essential elements show that the appellant did not have
any previous quarrel with the deceased; there was lack of animus. The
act resulting in SI Tiwari’s death was not pre-meditated. Though it cannot
be said that there was a quarrel, caused by sudden provocation, if one
considers that the deceased tried to board the truck, and was perhaps in
plain clothes, the instinctive reaction of the appellant was to resist; he
disproportionately reacted, which resulted in the deceased being thrown
off the vehicle. Such act of throwing off the deceased and driving on
without pausing, appears to have been in the heat of passion, or rage.
Therefore, it is held that the appellant’s conviction under Section 302
IPC was not appropriate.
6 In fact the owner of the truck deposed during the trial.
MOHD. RAFIQ @ KALLU v. THE STATE OF MADHYA
PRADESH [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
176
SUPREME COURT REPORTS
[2021] 9 S.C.R.
16. Section 304 IPC7 Code provides punishment for culpable
homicide not amounting to murder (under Section 299 IPC). In the facts
of the present case, this court is of the opinion that the appellants should
be convicted for the offence punishable under the first part of Section
304 IPC, as he had the intention of causing such bodily harm, to the
deceased, as was likely to result in his death, as it did. Having regard to
these circumstances, the conviction recorded by the courts below, is
altered to one under Section 304 Part I, IPC. The sentence too is therefore
modified - instead of rigorous imprisonment (“RI”) for life, the appellant
is hereby sentenced to 10 years’ RI. The direction to pay fine, is however,
left undisturbed.
17. The appeal succeeds and is allowed in the above terms. No
costs.
Ankit Gyan
Appeal allowed.
7 304. Punishment for culpable homicide not amounting to murder.—Whoever commits
culpable homicide not amounting to murder shall be punished with 1[imprisonment for
life], or imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to cause death, or
with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to
cause death,
but without any intention to cause death, or to cause such bodily injury as is likely to
cause death..”