f _ J

BHAGWA"l\J BAHADURE A

STATE OF MAHARASHTRA

SEPTEMBER 28, 2007

(DR. ARIJIT PASAYAT AND LOKESHW ARSINGHP ANT A, JJ.]

J-- Penal Code, 1860-ss. 299, 300, 302 and 304 (Part I)- )

Prosecution for murder-Stick blow given on the head of the deceased, causing serious injuries, which resulted in her death-Trial Court c

relying on evidence of eye witness and related witness convicting accused under s. 302 and imposed life imprisonment-Justification of-Held: Jn the light of the facts of the case and legal principles laid down in ss. 299 and 300; and that witness being close relative does not affect credibility of witness, convictiOn altered to one under s. 304 D

l._ (Part /)-Custodial sentence of I 0 years awarded-Evidence-Related '-.. witness-Evidentiary value.

According to the prosecution case, K was residingwith her mother P.W-7. Appellant had come to stay with K. On the fateful day, the E appellant had a quarrel with Kon a flimsy ground and assaulted K with the stick, giving blow on her head. K suffered serious injuries which later resulted in her death. Son ofK-PW 1 witnessed the incident and lodged

<!- FIR. Appellant contended that PW 1 and 7 were related to Kand thus, their evidence could not be acted upon. Tal Court found the evidence F of PWs 1, 7 and 8 to be credible and cogent and convicted the appellant under s. 302 IPC and sentenced him to life imprisonment High Court upheld the conviction. Hence, the present appeal.

Partly allowing the appeal, the Court G

HELD: 1. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, Court H 397

A has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. The ground that the witness being a close relative and consequently a partisan witness, should not be relied upon, has no substance. [Paras 7and10] [402-F, G; 403-E]

B Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; Guli Chand and Ors. v. State of Rajasthan, (1974] 3 SCC 698; Vadivelu Thevarv. State of Madras, AIR (1957) SC 614; Masalti and Ors. v. State of UP., AIR (1965) SC 202; State of Punjab v. Jagir Singh, ;µR (1973) SC 2407 ;-Lehna v. State of Haryana, (2002] 3 SCC 76; Gangadhar Behera c and Ors. v. State ofOrissa, [2002] 8 SCC 381; Babula! Bhagwan Khandare andAnr. v. State of Maharashtra, [2005] 10 SCC 404 and Salim Sahebv.

State of MP., [2007] SCC 99, referred to.

2.1. In the scheme of the IPC, culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice- D 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, 'culpable homicide of the first degree'.

E This is the gravest form of culpable homicide, which is defined in Section

300 as 'murder'. The second is 'culpable homicide of tbe second degree'.

This is punishable under the first part of Section 304. Then 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 F punishments provided for the three grades. It is punishable under the second part of Section 304. [Para 14] [404-F, G, H; 405-A)

2.2. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under G clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not ii!_ he ordinary way of nature be sufficient to cause death of a person in normal health or condition. The H 'intention to cause death' is not an essential requirement of clause (2).

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Only the intention of causing the bodily injury coupled with the offender's A knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. [Para 16]

2.3. Clause (b) of Section 299 does not postulate any such B

)- knowledge on the part of the off ender. Instances of cases falling under '

clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow c is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such k.'lowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be D &,_ murder, even if the injury which caused the death, was intentionally "" given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a E bodily injury sufficient in the ordinary course of nature to cause death.

The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299

....... and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is F the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ....... sufficient in the ordinary course of nature to cause death" G " mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

[Para 17] [406-F, G, H; 407-A, B, C]

2.4. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the H

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A intentional bodily injury or injuries sufficient to cause death in the >- ordinary course of nature. [Para 18) [407-D)

Rajwant and Anr. v: State of Kera/a, AIR (1966) SC 1874, relied on.

B 2.5. The test laid down by *Virsa Singh 's case for the applicability of clause 'thirdly is now ingrained in Indian legal system and has become part of the rule oflaw. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e.

(a) thatthe act which causes death is done with the intention of causing C death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be D present was the injury that was intended to be inflicted.

[Para 22) [409-B, C, DJ

Virsa Singh v. State of Punjab, AIR (1958) SC 465, relied on.

2.6. Clause (c) of Section 299 and clause (4) of Section 300 both E require knowledge of the probability of the act causing death. Clause

(4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty.

F Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender

w:thoutanyexcuseforincurringtheriskofcausingdeathorsuchinjury. [Para 24) [409-E, F, G)

G State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., [1976)

4 SCC 382; Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, JT (2002) 6 SC 274 and Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472, referred to.

3. In view of the legal principles, the factual position is to be

I /-

examined. It cannot be said as a rule of universal application that A whenever one blow is given Section 302 IPC is ruled out It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. Considering the background facts involved, the appropriate B conviction would be under Section 304 Part I IPC, and conviction is accordingly altered. Custodial sentence oflO years would meet the ends of justice. [Para27 and 28] [410-C, D, E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1304of2007.

From the Judgment and Order dated 29.04.2005 of the High Court of Judicature Bombay, Nagpur Bench at Nagpur in Crl. Appeal No. 149 of2001.

June Chaudhary, Lalit Chauhan, Rajeev Mishra and Many Mitty (for D Mis. P.H. Parekh & Co.) for the Appellant.

K.K. Adsure for the Respondent.

The Judgment of the Court was delivered by E

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of

-~ _ the Bombay High Court, Nagpur Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal F Code, 1860 (in short the 'IPC') and sentence of imprisonment for life and fine of Rs. 1,000/- with default stipulation.

3. Background facts in a nutshell are as follows:

On 13th March, 2000 Bhagwan Bahadure came to Bhendala and G stayed with Kachrabai (hereinafter referred to as the 'deceased'), who was residing with her mother T uljabai (PW-7). In the morning, of the day of incident, the appellant started quarrelling with the deceased on a flimsy ground. The appellant asked her to accompany him to his house. It is alleged that the appellant, who had a stick in his hand, assaulted the H

deceased by means of the stick. The deceased fell down on the ground.

The appellant gave a blow with the stick on her head, whereby deceased suffered serious injuries and became unconscious. The appellant thereafter threw the stick and ran away towards bus stand. Sidharth (PW 1) witnessed the incident. He went to the roadside for bringing a jeep to carry his mother to the hospital at Pauni. The Medical Officer gave-firstaid to the victim as the injuries were severe and she was unconscious.

The Medical Officer advised the family members to take her to the Govt.

Medical College, Nagpur. In the meanwhile, PW 1 lodged a report in the police station against the appellant. Police registered a crime. Deceased succumbed to the injuries on way to the hospital at Nagpur.

4. Considering the evidence of PWs 1,7 and 8, trial court found the evidence to be credible and cogent and accepted the same. He did not find any substance in the plea of the appellant that PWs 1 & 7 were related to the deceased and, therefore, their evidence could not be acted upon.

It also did not accept the plea that offence under Section 302 IPC was . not made out. Questioning the correctness of the trial court's .order, appeal was preferred before the High Court which as noted above did not find any substance in the appeal.

5. The stand taken before the trial court and the High Court was reiterated in this appeal.

6. Learned counsel for the State on the other hand supported the judgment.

7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

8. In Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364 it has been laid down as under:-

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"A witness is normally to be considered independent unless he or A she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and B there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along _with the guilty, but oundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any C sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." D

9. The above decision has since been followed in Guli Chand and Ors. V. State of Rajasthan, [1974] 3 sec 698 in which Vadivelu Thevar

v. State of Madras, AIR (1957) SC 614 was also relied upon.

10. We may also observe that the ground that the witness being a E close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh 's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian F Bose, J. it was observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.

If the foundation for such an observation is based on the fact that G the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in- H

'Rameshwar v. State of Rajasthan 'AIR (1952) SC 54 at p.59).

We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

11. Again in Masai ti and Ors. v. State of UP., AIR (1965) SC B 202 this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ....... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciate, d.

Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

12. To the same effect is the decision in State of Punjab v. Jagir ~·

Singh, AIR (1973) SC 2407, Lehna v. State of Haryana, [2002] 3 sec 76 and Gangadhar Behera and Ors. V. State ofOrissa, [2002] s sec 381.

13. The above position was highlighted in Babula! Bhagwan Khandare and Anr. v. State of Maharashtra, [2005] I 0 SCC 404 and in Salim Saheb v. State of MP., [2007] I SCC 699.

14. This brings us to the crucial question as to which was the F appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable 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 G of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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 H first part of Section 304. Then, there is 'culpable homicide of the third

I t-

[PASAYAT, J.]

degree'. This is the lowest type of culpable homicide and the punishment A 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.

15. The academic distinction between 'murder' and 'culpable B homicide not amounting to murder' has always vexed the Courts. 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 C focus the keywords used in the various clauses of Sections 299 and 300.

The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

A person commits culpable homicide if the act by which the death is caused is done-

INTENTION

(a) with the intention of causing death; or

(b) with the intention of ca1.1sing

such bodily injury as is likely to cause death; or likely to cause the death

Section 300

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done -

(l) with the intention of causing death; or

(2) with the intention of causing such bodily injury

as the offender knows to be F of the person to whom the harm is caused;

(3) 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

KNOWLEDGE )-


(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act .. is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

16. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the D particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient .. "'' to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause E (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular vic:tµTI, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.

17. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an G enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary H course of nature to cause death, the offence will not be murder, even if

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BHAGW AN BAHADURE v. STATE OF MAHARASHTRA 407

the injury which caused the death, was intentionally given. In clause (3) A of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but B real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the C lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ....... sufficient in the ordinary course of nature to cause death" means that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

18. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kera/a, AIR (1966) SC E 1874 is an apt illustration ofthis point.

19. In Virsa Singh v. State of Punjab, AIR (1958) SC 465, Vivian Bose, 1. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must F establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these G three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinaiy course of nature. This part of the enquiry is purely objective H

A and inferential and has nothing to do with the intention of the offender.

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

"To put it shortly, the prosecution must prove the following facts B before it can bring a case under Section 300, "thirdly".

Fjrst, it must establish, quite objectively, that a bodily injury is present. -(

Secondly, the nature of the injury must be proved. These are purely C objective investigations.

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

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause E death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

21. The learned Judge explained the third ingredient in the following words (at page 468):

'The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an infer':!nce, then of G course, the intent that the section requires is not proved-. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.

Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the H intention is concerned, is not wheth.er he intended to kill, or to inflict

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an injury of a particular degree of seriousness but whether he A intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be preswned unless the evidence or the circwnstances warrant an opposite conclusion."

22. These observations of Vivian Bose, J. have become locus B classicus. The test laid down by Virsa Singh 's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule oflaw. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention C of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordiruuy course of nature, was sufficient to cause death, viz., that the injury found to be D present was the injury that was intended to be inflicted.

23. Thus, according to the rule laid down in Virsa Singh 's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration E

(c) appended to Section 300 clearly brings out this point.

24. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction F between these corresponding clauses. It will be sufficient to say that clause ( 4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such G knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injwy as aforesaid.

25. The above are only broad guidelines and not cast iron H

A imperatives. In most cases, their ob.servance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

26. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh V. Rayavarapu Punnayya and Anr., [1976] .4 sec 382, Abdul Waheed Khan@ Waheed and Ors. v. State of Andhra Pradesh, JT (2002) 6 SC 274 and Augustine Saldanha .v. State of C Karnataka, [2003] 10 SCC 472 and Thangaiya v. State of Tamil Nadu, [2005] 9 sec 650.

27. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out It would depend D upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body whre the blow was given are some ef the factors to be considered.

28. Considering the background facts involved, the appropriate conviction would be under Section 304 Part I IPC, and conviction is accordingly altered. Custodial sentence of 10 years would meet the ends of justice.

29. The appeal is allowed to the aforesaid extent.

N.J.

Appeal partly allowed.

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