WITNESS ALSO GOT INJURED – WITNESS PRESENCE HIGHLY PROBABLE
14. In this case, the nature of the attack by the appellants and the quality of eyewitness testimony of prosecution witnesses, especially PW1 to PW5, cannot be doubted. This court is of the opinion that the circumstance that most of the witnesses were related to the deceased does not per se exclude their testimony. The test of credibility or reliability when applied, is fully satisfied in respect of the strength of their testimonies. Although PW1 is the deceased’s daughter, that is insufficient to doubt the veracity of what she recounted during the trial, which is that she saw the appellants attack her father with axes. She tried to intervene and save the deceased, upon which she was also given axe blows on her leg. There is no explanation on the part of the appellants as to why the witness should depose falsely; nor is there any explanation as to how she could have received her injuries. Most importantly, her testimony is corroborated by PW2, PW3 and PW4. Therefore, this court is of the opinion that all the material aspects of the factual accusations against the appellants and how they attacked the deceased in an unprovoked manner, cannot be doubted.
DIFFERENCE BETWEEN SECTION 302 & SECTION 304 IPC:
15. The question, then, is whether the appellants are guilty of the offence of murder, punishable under Section 302, or whether they are criminally liable under the less severe Section 304, IPC. As noted in several judgments, this question has engaged the courts for over a century. The distinction between these two is 9 discernible in the manner they are defined, under Section 2996 IPC and Section 3007 IPC. In a decision, which is now considered to be the locus classicus on the issue, Virsa Singh v. State of Punjab [[1958] S.C.R. 1495] this court stated as follows:
“The prosecution must prove the following facts before it can bring a case under S. 300 ‘3rdly’. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. 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 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 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.”
16. In State Of Andhra Pradesh v. Rayavarapu Punnayya & Anr. [1977 SCR (1) 601] another often cited judgment, this court observed as follows:
“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 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 (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 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. 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 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 course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. 8 [1958] S.C.R. 1495 9 1977 SCR (1) 601 12 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 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 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” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 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 v. State of Kerala [AIR 1966 SC 1874: 1966 Supp SCR 230: 1966 Cri LJ 1509.] is an apt illustration of this point.”
The court then quoted the decision in Virsa Singh (supra), and held that:
“Thus according to the rule laid down in Virsa Singh’s case (supra) 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 (c) appended to S. 300 clearly brings out this point. Clause (c) of S. 299 and clause (4) of S. 300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of S. 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 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 injury as aforesaid.”
A later decision, Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh [(2006) 11 SCC 444] considered these aspects and held 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 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.”
17. The question in cases, like the present one is, therefore, whether the injury caused due to the attack is one which falls within the description of Section 300 thirdly (“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 if it falls within the mischief of Section 300 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”).
18. The requirement of Section 300 thirdly is fulfilled if the prosecution proves that the accused inflicted an injury which would been sufficient to have resulted in death of the victim. The determinative fact would be the intention to cause such injury and what was the degree of probability (gravest, medium, or the lowest degree) of death which determines whether the crime is culpable homicide or murder.
19. The case law on the issue of the nature of injury being so dangerous as to result in death (Section 300 fourthly), have emphasised on the accused’s disregard to the consequences of the injury, and an element of callousness to the result, which denotes or signifies the intention. In State of Madhya Pradesh v. Ram Prasad, [1968 (2) SCR 522] this court held that:
“Although Clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the Clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of Section 300, Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.”
Similarly, three Judges of this Court, in Santosh S/o. Shankar Pawar v. State of Maharashtra [(2015) 7 SCC 641] observed,
“13. Even assuming that the Accused had no intention to cause the death of the deceased, the act of the Accused falls under Clause Fourthly of Section 300 Indian Penal Code that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death.”
APPRECIATION OF FACTS:
20. Turning back to the facts of this case, the concurrent findings which this court sees no difficulty in accepting are that firstly, the appellants were aggressors; secondly, they attacked the deceased, with axes; thirdly, the deceased was unarmed; fourthly, during the attack, the victim’s daughter, PW1 reached the spot, and tried to dissuade the appellants; fifthly, the appellants continued their 12 (2015) 7 SCC 641 16 assault on the victim and also attacked the witness with an axe; sixthly, since three injuries sustained by the appellant, were on the head, he fell down; seventhly, the victim was rushed to the hospital, and had to be shifted to another speciality hospital, for surgery. Eighthly, the deceased was not able to record his statement; he was never discharged and died in the hospital, after 20 days. Lastly, the doctor who conducted the post-mortem (PW-14), stated that the injuries were caused by a hard and blunt object, and death of the deceased was due to cardio respiratory failure “as a result of multiple injuries on his body and their complications”. Apart from the head, there were several other injuries, in the form of abrasions, contusions on the elbow, the lower back, fracture of rib cage, etc. At the time of death, Vrindawan was aged 55 years.
FACTS DOES NOT CONSTITUTE SUDDEN QUARREL:
22. The question then is – was there a “sudden quarrel” between the deceased and the appellants so that the case would not be murder, but culpable homicide, in terms of Exception 4 (“if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having 17 taken undue advantage or acted in a cruel or unusual manner”). In the opinion of this court, there was no “sudden quarrel”. The testimonies of the two important eyewitnesses, PW1 and PW2, establish that when the deceased was levelling the septic tank on his property, the accused/appellants started abusing him; he asked them not to. The appellants, who were in the adjacent property, climbed the wall, entered the deceased’s house, and attacked him with axes. These facts do not constitute a “sudden quarrel”, given that the appellants abused the deceased, in an unprovoked manner, and then they went to where he was, armed with axes, and assaulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a cruel manner, or did not take undue advantage. This is because they were armed: a fact which shows pre-meditation on their part. Moreover, they both attacked Vrindawan on the head, which is a vital part of the body, thus taking undue advantage of their situation.
23. Again, on the question of whether the facts of this case are covered by the first exception to Section 300, i.e., that the accused/appellants did what they were accused of (which is to attack and inflict grave injuries that led to the death of Vrindawan), because of their loss of self-control, on account of a grave and sudden provocation – the answer must be the same, which is that the provision (Exception 1 to Section 300) cannot be attracted. Apart from a long-standing preexisting dispute, what caused “sudden” provocation to the appellants, has not 18 been shown by them. Neither did they lead any evidence, to fall within Exception 1, nor did the evidence on record substantiate such a contention. Speaking of what is grave and sudden provocation, this court in K.M. Nanavati v. State of Maharashtra [1962 SCR Supl. (1) 567] explained the standard of reasonableness for applying the “grave and sudden” provocation, in the following manner:
“84. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an Accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the Accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the Accused regained his self-control and killed Ahuja deliberately. 85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the Accused, placed in the situation in which the Accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an Accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation”.
24. If one were to apply the above tests to the present case, what is evident is that while there were pre-existing disputes of some vintage, between the appellants and the deceased, there is nothing to show that they had been aggravated. It is also, likewise, not clear whether the deceased said anything to the appellants which triggered their ire, leading to loss of self-control as to result in “grave and sudden provocation”. In any case, if there were something, the appellants ought to have brought the relevant material or evidence on record, as what facts did exist, was within their peculiar knowledge.
xxx
26. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. However, what is important is the nature of injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor in this case, because the doctor who conducted the post-mortem clearly deposed that death was caused due to cardio respiratory failures, as a result of the injuries inflicted upon the deceased. Thus, the injuries and the death were closely and directly linked.
27. In view of the above discussion, this court is of the opinion that there is no infirmity in the impugned judgment. The conviction and sentence imposed on the appellants do not therefore, call for interference. The appeal is consequently dismissed, without order on costs.
PARTY: PRASAD PRADHAN & ANR. …APPELLANT(S) VERSUS THE STATE OF CHHATTISGARH …RESPONDENT(S) – CRIMINAL APPEAL NO(S). 2025 OF 2022 – JANUARY 24, 2023.
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