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CASE NO.: Appeal (crl.)  309 of 1997

PETITIONER: Shankar Narayan Bhadolkar                                        

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 09/03/2004

BENCH: Y.K. SABHARWAL & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Pandurang Varambale (hereinafter referred to as the  ’deceased’) would not have in his wildest dreams on 8.5.1982  dreamt when he left home to attend the invitation extended  by the appellant Shankar Narayan Bhadolkar (hereinafter  referred to as accused A-1), that he would never return  alive. The appellant allegedly shot him dead by a gun when  the deceased was in his house in response to his invitation  to attend a marriage celebration. The appellant along with  his wife Laxmibai (A-4), son Dinkar (A-3) and one Sambhaji  Mahadeo Patil (A-2) faced trial. They were charged for  commission of offences punishable under Sections 302, 201  read with Section 34 of the Indian Penal Code, 1860 (in  short the ’IPC’). Appellant was alternatively charged for  commission of offence punishable under Section 302, 201 and  Section 25(1A) of the Arms Act, 1959 (in short the ’Arms  Act’).  

       The trial Court found the appellant guilty of the  offences punishable under Sections 302, 201 IPC and 25 of  the Arms Act. The other three co-accused persons were  acquitted. Appellant was sentenced to undergo life  imprisonment, two years and six months respectively, with  fines and default stipulations.    

       Prosecution version as unfolded during trial is as  follows:                  Complainant Dilip Shripati Dalavi (PW-2) had a laundry  in the Shivaji Chowk, Kohlapur. There was also a hair  cutting shop adjoining his laundry, which was run by  Shantaram Mane (PW-4) and Ramchandra Mane.  They are  friends.  The deceased was coming to the said hair cutting  saloon and hence he had become their friend.  Accused no.1- appellant was also visiting the said saloon and he had also  become their friend. On 2.5.1982, accused no.1 had come to  the shop of Dilip Dalavi (PW-2) and gave him invitation for  dinner arranged in his house at Vadanage, near the limits of  Nigave Dumala Village.  The said invitation was for the  dinner arranged on 8.5.1982. Besides the complainant,  accused no.1 also invited Rajendra the brother of the  complainant, Shantaram Mane (PW-4) and his brother Rama and  another friend Dattu Kurane.  Accused no.1 told him that in  case they did not attend the dinner, then they will have to  pay a penalty of Rs.100/-.  At that time, deceased had come  to the saloon where this talk was going on.  The deceased

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was also invited by accused no.1 for the said dinner.

       On 8.5.1982 about 5.30 p.m. the complainant and others  left for Vadanage to the village of accused no.1.  After  reaching the Mace, they moved around and thereafter took  meals.  A bus was to leave at about 8.00 p.m. for their  return journey to Kolhapur.  They finished their meals at  about 7.30 p.m.  Thereafter all the invitees came out of the  house and they wanted to catch the bus.

       One Sambhaji Patil (A-2) and one unknown person entered  the house of accused no.1. Deceased also followed them and  went inside. As there was some time for catching the bus,  the complainant also entered the house of accused no.1 for  chewing betal leaves. The bus stop was just in front of the  house of accused no.1.  The complainant sat on the cot. The  deceased was standing on the threshold of the house.  The  unknown person was standing close to them.  Accused no.2 was  sitting on the chair in front of him.   

       Accused no.1 lifted the gun, loaded it with cartridge  and pointed it towards the deceased and then fired it.  The  said shot hit on the left side chest of the deceased, who  collapsed and blood started oozing. As soon as deceased   fell down, he died instantaneously.  As the complainant was  afraid, he came out of the house. Rajendra, Shantaram,  Ramchandra and Dattu Kurane were outside the house.  As soon  as he came out of the house, those persons enquired from him  about the sound. He disclosed to them that accused no.1 had  fired a gun hitting Pandurang.  Thereafter they all started  towards Vadanage. They went to the house of Sadashiv Khadaka  to whom they narrated the incident, because he was their  friend.  The distance between his house and the house of  accused no.1 is about 2 to 3 kms.  The brother-in-law of the  deceased resides in the same village. Khadake had taken them  in his house. Then they went to village Kerli in the bus  belonging to the society of Vadanage, because the deceased  was from Kerli. Then they went to Mahadeo Varsmble who is  the cousin brother of the deceased. They woke him up and  told him about the incident. Thereafter they all went to  Shripati Chougule and disclosed to him the incident. Then he  himself alongwith five others who were present for the  dinner came to Karvir Police Station in jeep. Shripati  Chougule came to the police station by motorcycle. Complaint  was lodged in the Karvir Police Station. It was reduced into  writing. On the basis of the said first information report,  the Police Inspector Shirawekar registered the offence u/s  302 IPC and also under Section 25 of the Arms Act.  Thereafter Police Inspector visited the spot along with the  complainant and his staff in the jeep.  The complainant  pointed out the house of accused no.1. Police Inspector  called out accused no.1 by standing near door. Accused no.1  who came out by opening the latch of the door was arrested.  A green lungi which was on the person of accused no.1 was  attached under panchanama (Ex.12). On interrogation accused  no.1 expressed his willingness to show the well where the  corpse of the deceased was thrown.  The said well is situate  at village Kerli.  Accordingly a memorandum was prepared  vide Ex.23 in presence of the panchas.  Accused no.1 then  led them to the well and the dead body of deceased was taken  out from the well.  It was wrapped in a gunny bag. After  opening the gunny bag, the dead body was taken out.  It was  identified by Sadashiv and others.  Accordingly panchanama  (Ex.24) was prepared. Under the panchanama muddemal articles  nos. 2 and 3 were also attached.  Then inquest on the dead

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body was drawn (Ex.30). The dead body was sent to the doctor  for autopsy. Then the Police Inspector arrested accused  no.2. He also attached a white Dhoti and Nehru shirt (Art. 4  & 5) of deceased no.2 under panchanama (Ex.14). Then he  visited the scene of offence in the morning and drew  panchanama (Ex.15). He found some blood stains on the  threshold and also on the bench.  The floor was cleaned with  cow dung. Soiled cow dung was found at the backyard of the  house of accused no.1. It was also attached. Statements of  witnesses were recorded.

       On 30.5.1982 he sent the muddemal articles nos. 1 to 30  and also the viscera and plastic like material forwarded by  the Medical Officer, along with his forwarding letter to the  Chemical Analyser Pune so also, muddemal article, no.10 the  gun was sent to the Ballistic Expert for examination and his  opinion. On enquiry it was revealed that the gun (Art.10)  was in the name of accused no.3 having a valid licence.  The  same was attached by him.  He obtained a permission from the  District Magistrate, Kolhapur (Ex.21) against accused no.1  for having used the gun without valid licence. for his  prosecution under the Arms Act. After conclusion of the  investigation, charge sheet was submitted in the Court of  Chief Judicial Magistrate, Kolhapur.

       The charge was framed against accused nos. 1 to 4 and  they pleaded not guilty.                                                                          Accused appellant took the plea that on the date of  occurrence he had invited 30/40 persons to attend the dinner  and the deceased was one of them. He was heavily drunk and  was not in a position to walk and also unable to control  himself. Apprehending that the deceased might create  problems and fall on the road, the appellant dissuaded him  from returning to his place and advised him to go on the  next day. But the deceased paid little heed. To scarce him,  the appellant picked up a gun lying there, loaded the same  with blank cartridges which only create noise. But the  deceased tried to snatch it from him. In the scuffle when  the deceased pulled the barrel of the gun accidentally it  got fired and deceased sustained injuries on his chest.  After seeing the injury, the appellant was totally shocked  and fled away. The other accused persons denied their  involvement in the occurrence. The trial Court as noted  above, found the co-accused not guilty but recorded the  conviction so far as the appellant is concerned under  Sections 302, 201 IPC and Section 25(1A) of the Arms Act,  and imposed sentences.           The plea before the High Court which, did not find  acceptance, was that there was no offence involved as the  act was covered by Section 80 IPC. In any event, there was  no element of culpability to bring home accusations of  Section 302. At the most it was covered by Section 304A.  Finally, it was submitted that even if the prosecution  version is accepted in its toto, the case would be covered  under Section 304 Part II. The trial Court held that though  intention may not be attributed for causing death, it cannot  be said that the accused did not have the requisite  knowledge and the case was covered under clause fourthly of  Section 300. In appeal by the impugned judgment, the High  Court upheld the conviction and sentence. It, however, held  that the case was really covered by clauses Firstly  and  Thirdly of Section 300.

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       In support of the appeal, learned counsel for the  accused appellant reiterated the stand taken before the  trial court. It is relevant to note at this juncture that  before the High Court the plea that the case was covered  under Section 304A was not specifically pressed into  service. However, the other two pleas raised before the  trial Court i.e. applicability of Section 80 IPC or in the  alternative Section 304 Part II IPC were urged. According to  him, the first plea was available to be urged. He further  submitted that the scenario clearly rules out any  culpability and the act was merely accidental. The accepted  position being that there was no motive to kill the  deceased, both the accused and the deceased were friendly,  there was large number of people invited for the dinner and  the invitees included the deceased, the pleas of the accused  appellant, should have been accepted. It was urged that the  case at hand bears great resemblance to factual position in  Sadhu Singh Harnam Singh v. The State of Pepsu (AIR 1954 SC  271). In that case it was held that the case was covered by  Section 304A and the custodial sentence was restricted to  the period of custodial sentence already undergone.  

       Residually it was submitted that even if as projected  by the prosecution, its case is accepted offence under  Section 302 IPC is not made out and it would be a case under  Section 304 Part II. With reference to the age of the  accused it was pointed out that he is now nearly 80 years  and the sentence should be restricted to the period already  undergone.  

       In response, learned counsel for the respondent-State  submitted that the two courts have analysed the factual   position in great detail and have rejected the pleas  presently being urged. The case is one where Section 302 IPC  is clearly applicable. The conduct of the accused after the  occurrence shows the deliberateness in his action. If it was  accidental as pleaded, the normal reaction after the gun  shot would have been to save the deceased and not to cause  disappearance of his dead body by carrying it in gunny bag  and throwing it into a well. These factors clearly establish  that the gun was fired deliberately with clear intention to  kill the deceased.

       Section 80 IPC is a part of Chapter IV IPC dealing with  "General Exceptions". The "general exceptions" contained  in Sections 76 to 106 make an offence a non-offence. The  "general exceptions" enacted by IPC are of universal  application and for the sake of brevity of expression,  instead of repeating in every section that the definition is  to be taken subject to the exceptions, the Legislature by  Section 6 IPC enacted that all the definitions must be  regarded as subject to the general exceptions. Therefore,  general exceptions are part of definition of every offence  contained in IPC, but the burden to prove their existence  lies on the accused.  

       Section 80 protects an act done by accident or  misfortunate and without any criminal intention or knowledge  in the doing of a lawful act in a lawful manner by lawful  means and with proper care and caution. The primordial  requirement of Section 80 is that the act which killed the   other person must have been done "with proper care and  caution". In Bhupendrasinh A. Chaudasama v. State of  Gujarat (1998 (2) SCC 603) it was held by this Court that  where the accused shot his own colleague at close range

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without knowing the identity of his target, the act smacked  of utter dearth of any care and caution.  

       The amount of care and circumspection taken by an  accused must be one taken by a prudent and reasonable man in  the circumstances of a particular case. Where the act of the  accused is itself criminal in nature the protection under  Section 80 is not available.    If the accused pleads  exception within the meaning of Section 80 there is a  presumption against him and the burden to rebut the  presumption lies on him. (See K.M. Nanavati v. State of  Maharashtra (AIR 1962 SC 605).

       Here the evidence on record as substantiated by the  testimony of PWs 2 and 3 shows that the accused picked up  the gun, unlocked it, loaded it with cartridges and shot the  gun from a close range of about 4/5 ft. aimed at his chest.  Certainly in view of unimpeachable evidence of PWs 2 and 3,  Section 80 has no application.  

Coming to the plea of the applicability of Section 304A  it is to be noted that the said provision relates to death  caused by negligence. Section 304A applies to cases where  there is no intention to cause death and no knowledge that  the act done in all probabilities will cause death. The  provision relating to offences outside the range of Sections  299 and 300 IPC. It applies only to such acts which are rash  and negligent and are directly the cause of death of another  person. Rashness and negligence are essential elements under  Section 304A. It carves out a specific offence where death  is caused by doing a rash or negligent act and that act does  not amount to culpable homicide under Section 299 or murder  in Section 300 IPC. Doing an act with the intent to kill a  person or knowledge that doing an act was likely to cause a  persons’ death is culpable homicide.  When the intent or  knowledge is the direct motivating force of the act, Section  304A IPC has to make room for the graver and more serious  charge of culpable homicide.   In order to be encompassed the protection under Section  304A there should be neither intention nor knowledge to  cause death. When any of these two elements is found to be  present, Section 304A has no application. The accused- appellant not only picked up the gun, unlocked it for user  but also put the cartridges and fired from very close range,  aiming at a very vital part of the body.   

       In the background facts as highlighted above the  inevitable conclusion is that Section 304A has no  application.

       The decision in Sadhu Singh’s case (supra) has no  application because in that case the evidence indicated that  the gun was not aimed at the victim and there was evidence  of scuffle between the accused and the deceased. In the  present case though such plea was taken, it has not been  substantiated. On the contrary the evidence of PWs 2 and 3  shows that there was no scuffle as claimed by the accused.                        The only other point which needs to be considered is  whether Section 302 IPC has been rightly made applicable.     

This brings us to the crucial question as to which was  the appropriate provision to be applied.  In the scheme of  the IPC culpable homicide is genus and ’murder’ its specie.  

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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 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 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.

The academic distinction between ’murder’ and ’culpable  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 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                                     Section 300

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

INTENTION

(a) with the intention of causing                       (1) with the intention of      death; or                                   causing death; or

(b) with the intention of causing                       (2) with the intention of      such bodily injury as is likely                     causing such bodily injury      to cause death; or                          as the offender knows to be                                                         likely to cause the death of                                                         the person to whom the harm                                                          is caused; or

                                                       (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                     (4) with the knowledge that          is likely to cause death.                      the act is so imminently                                                         dangerous that it must in all

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                                                       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.     

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. 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 degrees 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 and Anr.  v. State of Kerala, (AIR 1966 SC

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1874) is an apt illustration of this point.

In Virsa Singh v. State of Punjab, (AIR 1958 SC 465),  Vivian Bose, J. 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  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 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.

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 before it  can bring a case under Section 300,  "thirdly". 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.

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 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."

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

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the circumstances justify such an  inference, then of 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 intention is concerned, is  not whether he intended to kill, or to  inflict an injury of a particular degree  of seriousness but whether he intended  to inflict the injury in question and  once the existence of the injury is  proved the intention to cause it will be  presumed unless the evidence or the  circumstances warrant an opposite  conclusion."

These observations of Vivian Bose, J. have become locus  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 of law.   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 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 ordinary course of nature, was sufficient to cause  death, viz., that the injury found to be present was the  injury that was intended to be inflicted.

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

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 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 \026 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.

The above are only broad guidelines and not cast iron  imperatives. In most cases, their observance will facilitate  the task of the Court.  But sometimes the facts are so

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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.

The position was illuminatingly highlighted by this  Court in State of Andhra Pradesh v. Rayavarapu Punnayya and  Anr. (1976 (4) SCC 382) and in Abdul Waheed Khan @ Waheed  and Ors.   v. State of Andhra Pradesh (JT 2002 (6) SC 274).

       Looked at the scenario as described by PWs 2 and 3 and  evidence of ballistic report, in our considered view the  offence committed by accused is covered by Section 304 Part  II.  

So far as the other convictions are concerned the  conclusions of the trial Court and the High Court do not  warrant any interference. For the conviction under Section  201 it has been established beyond even a shadow of doubt  that dead bodies were carried in a gunny bag. It was  discovered on the basis of the discovery statement in terms  of Section 27 of the Indian Evidence Act, 1872 (in short the  ’Evidence Act’) which is also relevant. The conviction is  well merited. So far as offence under Section 25 (1A) of the  Arms Act is concerned, the admitted position being that the  gun belonged to the son of the appellant, and that he had no  license to hold the gun, the evidence has clearly made out  the offence. The District Magistrate, Kohlapur had accorded  sanction under Section 39 of the Arms Act for the  prosecution. Therefore, the conviction under Section 25 (1A)  is also well merited. Custodial sentence of 8 years would  meet the ends of justice. The appeal is allowed to the  extent indicated above.