Culpable Homicide does not amount to murder without intention, even though the prior knowledge exists: Bombay High Court

Ajay IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 582 OF 2015 CRIMINAL BAIL APPLICATION NO. 327 OF 2018 CRIMINAL APPEAL NO. 582 OF 2015 Sagar Bhagwan Dhembre C 16999 Age : 26 Yrs Occu.: Convict presently lodged at Yerwada Central Prison Pune 411 006 Versus State of Maharashtra At the instance of Warje Malwadi Police Station Pune In C.R. No.310 2012  Mr. Harshad Bhadhbade for the Appellant  Mr. S.S. Hulke APP for the Respondent State. CORAM : S.S. SHINDE MILIND N. JADHAV JJ RESERVED ON : DECEMBER 22 2021. PRONOUNCED ON : FEBRUARY 04 2022 Through Video Conferencing JUDGMENT:of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code 1860 Shri. Sunny Paigude P.W. 5) and Shri. Amit R. Saudewere sitting in an open area behind More Petrol Pump Kothrud Pune and were consuming liquor Around the same time the Appellant along with Shri. Rohan Vilas Waghchaureand Ramesh Kamblearrived at the same spot and also started consuming liquor. According to the prosecution the Appellant stared at the deceased with anger for which the deceased questioned him leading to an altercation between the Appellant and the deceased as well as their respective friends. The Appellant and his friends then chased the deceased who was running towards the nearby Netrakiran Society. They caught hold of the deceased in front of the house of one Shri. Sambhaji Shirke made a phone call to Shri. Avinash Joshi father of the deceased) and informed him that the deceased was admitted to the Intensive Care Unit of Shashwat Hospital located at Dhanukar Colony Kothrud Pune for treatment of the injuries sustained during the incident. The deceased was in an unconscious state while in the ICU Thereafter Shri Avinash Joshi approached the Warje Malwadi Police Station and lodged a complaint against the Appellant and his two friends for injuring the deceased. The police authorities recorded the statement of the deceased’s two friends i.e. Shri. Sunny Paigudeand Shri. Amit Saudeunder Section 164 of the Code of Criminal Procedure 1973and Shri. Amit Saude P.W. 6) were summoned to the Police Station on 30.10.2012 itself There they identified the Appellant Accused No. 2 and Accused no 3 as the same persons who had assaulted and beaten up the deceased on On 30.10.2012 the blood stained shirt of the deceased which he was wearing at the time of the incident was seized under panchanama. On the same date the blood stained shirt of the Appellant was produced by his mother and was also seized. The seized items were then sent for chemical analysis Between 29.10.2012 and 17.11.2012 Shri. Shivdas Gaikwad P.W. 14) the Investigating Officer made several visits to the Shashwat Hospital to record the statement of the deceased but could not do so owing to his unconscious state. On 17.11.2012 at about 10:30 AM the deceased succumbed to his injuries while at Shashwat Hospital. Thereafter an inquest panchanama was drawn up by the police authorities in the presence of Shri. Avinash Joshi. The body of the deceased was then sent for autopsy. The viscera of the deceased were preserved and sent for chemical analysis. Dr. S. D. Punpalecertified that the death of the deceased was caused due to the injuries on his head. Based on the complaint lodged earlier by Shri. Avinash Joshi the Police Station registered C.R. No. 3112 initially for offences punishable under Section 323 326 and 504 read with Section 34 IPC. A chargesheet against the Appellant and the Accused No. 2 was filed in the Court of the Judicial Magistrate First Class Pune Accused No. 3 being a minor was prosecuted separately before the Juvenile Justice Court. As the offence was punishable under Section 302 IPC and exclusively triable by the Court of Sessions the learned Judicial Magistrate committed the case to the Court of Sessions Pune under the provisions of Section 209 of the CrPC. Charges were framed against the Appellant and the Accused No. 2 and were read out and explained to them in vernacular language. Both denied their complicity in the offence by a total denial stating that a false case was made out against them This Court released the Accused No. 2 on bail by an order dated 03.05.2013 passed in Criminal Bail Application No. 5613 However the application of the Appellant for bail was rejected by this Court vide order dated 01.09.2014 passed in Criminal Bail Application No. 14414. By the same order the trial of the Appellant was directed to be expedited. By order dated 29.12.2014 the trial of the Appellant was separated from the trial of the Accused No. 2. Charges were framed against the Appellant and were read out and explained to him in vernacular language. The Appellant denied his complicity in the offence by a total denial. The Prosecution examined in all sixteen witnesses in support of its case. No defence witnesses were produced before the Trial Court. The statement of the Appellant was recorded under Section 313 of the CrPC. The Trial Court after recording evidence and hearing the parties was pleased to pass the impugned judgment and order dated 07.03.2015 convicting the Appellant of the offences punishable under Section 302 read with Section 34 IPC Shri. Harshad Badhbade learned advocate appearing on behalf of the Appellant submits that the impugned judgment and order suffers from grave infirmity as it has been passed without considering the evidence on record in its proper perspective in contravention to settled principles of appreciation of evidence in a criminal trial and is based on conjectures and surmises. As such he prays for the impugned judgment and order to be set aside. He the case of the Prosecution is based entirely on circumstantial evidence as there is no eyewitness to the Shri. Avinash Joshiwho lodged the complaint with Police Station is an interested witness as he is the father of the deceased and is in any case not an eyewitness to the the evidence given by Shri. Sunny PaigudeShri Amit Saude and Shri. Sambhaji Shirke based upon which the Trial Court has convicted the Appellant is fraught with inconsistencies it is clear from the evidence given by the friends of the deceased present at the time of the incident i.e. Shri. Sunny Paigudeand Shri. Amit Saudethat it was the deceased who first provoked and quarreled with the the deceased was inebriated while he was running away towards the nearby housing society because of which he tripped and fell down on the brick that eventually caused his the death of the deceased was a mere accident the Appellant has been falsely implicated in the offence solely because of the altercation preceding the deceased’s accident viii. the evidence given by Shri. Sunny Paigude and Shri. Amit Saudeshows that though they were with the deceased at the time of incident they have sustained no injuries they have not even had themselves treated for any injuries at any hospital. Even the police have not conducted any investigation in this regard. On the other hand the same witnesses also deposed that there was a physical altercation between them and the Appellant along with his friends Based on this Shri. Harshad Badhbade points out that there are inconsistencies in the evidence given by the key prosecution witnesses the Appellant had no motive to kill the deceased as the altercation came about at the provocation of the deceased the commission of the act even if proved beyond reasonable doubt was without premeditation or preparation and was committed only in the heat of the moment. PER CONTRA Shri. S. S. Hulke Assistant Public Prosecutor appearing on behalf of the Respondent State supports the impugned judgment and order and submits that the same has been delivered correctly after appreciating the various facts and circumstances on record. He submits that in the present case there are three eyewitnesses to the incident i.e. Shri. Sunny PaigudeShri Amit Saude (the two friends of the deceased) and Shri Sambhaji Shirke(owner of the house in front of which the Appellant hit the deceased with a brick). He submits that the evidence given by these eyewitnesses who were present at the spot of the incident cannot be disbelieved. He submits that their testimony has not been shattered in cross examination and that their depositions are consistent with each other. Based on the evidence given by these witnesses Shri. S. S. Hulke submits that the Prosecution’s case against the Appellant has been proved beyond reasonable doubt. We shall now examine compare and consider the sufficiency and consistency of the evidence given by each of the three witnesses based upon which the Trial Court has come to its conclusion Shri. Sunny Paigude a friend of the deceased present with him at the time of the incident has deposed as under That when the Appellant and his friends started abusing and beating the deceased Shri Amit Saudeand himself he moved away to one side as he is physically handicapped That the Appellant Accused No. 2 and Accused No. 3 chased the deceased as he ran towards the nearby Netrakiran Society iii. That the Appellant picked up a brick and hit the deceased on the head with it after which the deceased shouted loudly and blood started oozing out from his head iv. That after hitting the deceased with the brick the Appellant shouted out that the blow of the brick would not be enough for the deceased and a sickle should be brought to deal with the deceased That the deceased fell to the ground after he was hit by the Appellant with the brick and several persons gathered around including Shri. Amit Saudeand himself vi. That the Appellant Accused No. 2 and Accused No. 3 ran away thereafter 1 vii. That Shri. Amit Saudeimmediately called a friend from his cellphone who arrived at the spot and took the deceasedto Kawade Hospital on his motorcycle viii. That he and one Pasalkarand his friend to Kawade ix. That owing to the deceased’s critical condition it was advised to shift him from Kawade Hospital to Shashwat Hospital at Gandhi Bhavan That Shri. Amit Saude and his friend thereafter shifted the deceased to Shaswat Hospital by autorickshaw while he and his friend Pasalkar followed them on the xi. That he informed Shri. Avinash Joshi about the incident via a phone call who arrived at Shashwat Hospital after some time xii. That he identified the Appellant Accused No. 2 and Accused No. 3 on the following dayat the Uttam Nagar Police Station after they were arrested where his statement was also recorded 1 xiii. That he accompanied the Investigating Officer to the spot of the incident for the conducting of spot panchanama which he has signed xiv. In his cross examination he has given vivid details of the entire incident and more importantly described the reasons as to why he was not able to intervene in the physical altercation between the Appellant and the deceased. He states that he maintained a distance of twenty feet from the spot of the incident in an attempt to save himself as he was also being kicked and beaten below the neck along with Shri. Amit Saudein his deposition has outlined the sequence of events in the same manner as Shri. Sunny Paigude P.W. 5). In his lengthy cross examination all attempts were made by the Defence to shatter the evidence given by him. However it can be seen from the cross examination that the Defence has not been successful in doing so. The deposition of P.W. 6 is consistent with and corroborates the deposition of Shri. Sunny Paigude We had not received the beatings after Harshal s lying on the spot. When the incident of giving hand blows and kick blows was in progress for 5 10 minutes nobody had come to rescue us When Harshal had run away from the spot he was caught hold of and beaten for about 5 minutes that time. At that time I might be at the distance of about 20ft from Harshal. It took about 2 minutes for me to reach near Harshal when he fell on the ground. I had not tried to apprehend the assailants The assailants had run towards Saraswatinagar. I had not asked any other persons present at the spot to apprehend the assailants. So also those persons present there on their own had not chased the assailants to apprehend them Shri. Sambhaji Shirkeis an independent eyewitness to the incident and is not connected with the Appellant and the deceased but is the owner of the house in front of which the Appellant has been said to have hit the deceased on the head with a brick. He has deposed as under That he heard a lot of noise and commotion outside his house and rushed out to see what was happening That he saw two to three boys beating and kicking one boy iii. That one of the three boys thereafter lifted a brick and hit it on the head of the boy that he was kicking iv. That some persons gathered at the spot by which time the assailants had run away 1 In his cross examination he has confirmed the duration of the incident and stated that after the incident was over he returned to his house and was resting on his bed as he was vi. That after the incident he did not inform the police or unwell at the time inquire about the incident vii. Throughout his deposition he has categorically maintained that he is an eyewitness to the actual incident when the deceased was being beaten We shall now scrutinize the minor inconsistencies in the Prosecution’s case that have been pointed out to us by the Defence The medico legal certificate that has been issued by Dr. Karvestates that the assault was committed by an unknown person. The Defence has tried to utilize this statement to assert the possibility of the assault on the deceased not having occurred in the first place. However we find that the identity of the assailant has been sufficiently established by the Prosecution based on the direct evidence given by the eyewitnesses. As such the said statement in the medico legal certificate cannot exonerate the assailant who has been identified to be the Appellant. 1 The evidence given by each of the three eyewitnesses i.e. Shri. Sunny Paigude Shri. Amit Saude and Shri Sambhaji Shirkeis consistent with each other. The chain of causation of the actual incident is thus established beyond reasonable doubt. In Paragraphs 44 to 52 of the impugned judgment and order the Trial Court has gone into the evidence given by P.W. 5 P.W.6 and P.W. 7 in detail. The findings of the Trial Court conform with our reappraisal of the evidence on record. The inconsistencies in the Prosecution’s case that are pointed out to us by the counsel for the Appellant are minor. However there is another important consideration which cannot be lost sight of. This consideration pertains to the very offence that the Appellant has been convicted of and sentenced for by the Trial Before we state our observations and findings on the above it will be apposite to refer to the relevant provisions of the IPC Sections 299 and 300 IPC define the offences of culpable homicide and murder respectively and read thus . — Whoever causes death by “299. Culpable homicide doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide. 1 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 3.—The causing of the death of a 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— 2ndly.—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— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or— 4thly.—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. 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 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 1 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. 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 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. . — 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 s having taken undue advantage or acted in a cruel or unusual 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 Sections 302 and 304 IPC prescribe the punishment for the offence of murder and that of culpable homicide not amounting to 1 murder respectively and read thus “302. Punishment for murder.—Whoever commits murder shall be punished with death or 1[imprisonment for life] and shall also be liable to “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.” The Trial Court has convicted and sentenced the Appellant for the offence of murder under Section 302 IPC. This conviction and sentence passed by the Trial Court calls for reconsideration in view of the following: Exception 4 to Section 300 IPC outlines a situation where culpable homicide does not amount to murder. There are three requirements for this exception to apply: the act of killing is committed without premeditation the act of killing is committed in a sudden fight in the heat of passion upon a sudden quarrel and iii) the offender should not have taken undue advantage or acted in a cruel or unusual manner. 1 In our considered opinion the three requirements for Exception 4 of Section 300 IPC to be applicable have been satisfied in the present case: No evidence has been brought on record to prove that there was any premeditation or preparation or an intention harborued by the Appellant to commit the act of killing the The evidence given by eyewitnesses prove that the incident occurred because of a sudden altercation which in turn was caused due to the provocation by the deceased. The Appellant hit the deceased on his head with the brick in the spur of the moment owing to the intense altercation between the Appellant and the deceased iii. Because the deceased and the Appellant were both inebriated and the quarrel between them was sudden and heated it cannot be reasonably said that the Appellant has acted in an unusual manner. On the basis of the above we may state that though the Appellant had absolute knowledge that his act of hitting the deceased on the head with a brick would be likely to cause the death of the deceased he had no intention to do so. Such an act does not travel 1 beyond the offence of culpable homicidenot amounting to murder. The punishment for culpable homicide not amounting to murder has been prescribed under Part II of Section 304 IPC. The facts alluded to hereinabove alongwith our observations come within the ambit of Part II of Section 304 IPC. As such the Trial Court erred in convicting and sentencing the Appellant for the offence of murder under Section 302 IPC In view of the above discussion and findings we are of the firm opinion that the Appellant in a heat of passion acted in a manner that he knew is likely to cause the death of the deceased but without the intention to kill him. In view of the same the conviction of the Appellant for the offence of murder is hereby altered to that of culpable homicide not amounting to murder as defined under Section 299 IPC read with Exception 4 of Section 300 IPC. The Appellant under Part II of Section 304 is hereby sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.20 000.00 and in default thereof to undergo imprisonment for an additional period of six months. The duration of imprisonment that the Appellant has already undergone i.e. from the date of his arresttill date shall be counted towards the period of imprisonment stipulated in the 2 sentence passed hereinabove. The Appellant shall be released on the completion of the sentence unless required in any other case cases. Criminal Appeal stands partly allowed in the above terms. In view thereof no orders are passed as to Criminal Bail Application No 3218 and the same stands dismissed. [ S.S. SHINDE J. 2

Summary: Culpable Homicide does not amount to murder without intention, even though the prior knowledge exists, this has been upheld in the recent case of Sagar Bhagwan Dhembre v. State of Maharashtra [CRIMINAL APPEAL NO. 582 OF 2015], listed in the Bombay High Court. The judgement was pronounced on February 4th 2021, and the said proceedings were presided by a division judge bench of Justice S.S. Shinde and Justice Milind N. Jadhav. The facts, as presented before the court of law, are as follows. The deceased along with two others was consuming liquor in an open area. The appellant along with two others arrived at the same spot and also started consuming liquor. The Appellant stared at the deceased with anger, leading to an altercation.   In furtherance to the above the Appellant and his friends then chased the deceased and they caught hold of the deceased in front of a house. At that spot, the Appellant and his friends started beating and kicking the deceased. The Appellant then picked up a brick lying nearby and hit the deceased on his head with it. Several persons residing in the vicinity arrived at the spot while the Appellant and his friends had run away. It was certified that the death of the deceased was caused due to the injuries on his head. Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, held that: “We may state that though the Appellant had absolute knowledge that his act of hitting the deceased on the head with a brick would be likely to cause the death of the deceased, he had no intention to do so. Such an act does not travel beyond the offence of culpable homicide (as defined in Section 299 IPC) not amounting to murder.” The court also opined that “We are of the firm opinion that the Appellant, in a heat of passion, acted in a manner that he knew is likely to cause the death of the deceased but without the intention to kill him. In view of the same, the conviction of the Appellant for the offence of murder is hereby altered to that of culpable homicide not amounting to murder” In addition to the above, the court related the case with the principle and held that “We are of the firm opinion that the Appellant, in a heat of passion, acted in a manner that he knew is likely to cause the death of the deceased but without the intention to kill him. In view of the same, the conviction of the Appellant for the offence of murder is hereby altered to that of culpable homicide not amounting to murder.” Judgment reviewed by Pranav Sharma