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PETITIONER: HARENDRA NATH MANDAL

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT02/03/1993

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) ANAND, A.S. (J)

CITATION:  1993 AIR 1977            1993 SCR  (2) 137  1993 SCC  (2) 435        JT 1993 (3)   650  1993 SCALE  (1)745

ACT: Indian Penal Code, 1860. Section  304, Part 1-When can be invoked-Attack by  accused- Victim  surviving injuries inflicted by accused-Trial  Court sentencing   accused   under   section   307134-High   Court converting  sentence  to  one tinder section  304,  Part  1- Whether justified. Sections  101 and 104-Occurrence of incident due to  dispute regarding  harvesting  of crops-Accused  suffering  injuries along  with the victims in the same  incident-Non-disclosure of  true  version  of  occurrence  by  prosecution-Right  of private defence of person and property-Whether available  to the accused-Whether accused entitled to be acquitted.

HEADNOTE: The  prosecution  alleged that when PW 9  and  his  brother, having learnt that the appellant and two other persons  were harvesting  paddy from their plot, went there and  protested as  to  why  their crops were being  harvested,  one  person caught  hold  of  the  hands of  PW  9’s  brother,  and  the appellant,  assaulted him on his head with the back  portion of a Tangi, and at that very time, another person  assaulted PW  9, the informant, with a lathi on his right  hand.   The three persons were charged with attempt to commit murder  of PW  9’s brother, and also theft of the paddy crops from  the plot of PW 9 and his brother. On  consideration  of the evidence on record,  the  Sessions Judge  convicted  the  appellant  and  another  accused  for offence under section 307 read with section 34 of the  Penal Code.  They were sentenced to undergo seven years’ and  five years’   rigorous  imprisonment  respectively.   The   third accused  was  convicted under section 323 and  sentenced  to undergo  rigorous imprisonment for six months.  All of  them were also convicted under section 379 of the Penal Code  and sentenced to one year’s rigorous imprisonment each. 138 During  the  pendency of the appeal before the  High  Court, preferred  by  the three accused, one of them died  and  his appeal abated.  The High Court set aside the conviction  and sentence  under  section 323 of the Penal Code  against  the other  accused and he was acquitted of the charges  levelled

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against  him.  The High Court also set aside the  conviction and  sentence under section 307 read with section 34  passed against  the appellant, but convicted him under section  304 Part  1  of the Penal Code and sentenced him to  two  years’ rigorous imprisonment. In the appeal before this Court on behalf of the  appellant, it  was  urged  that when PW 9 to  whom  the  appellant  was alleged to have given a blow by the back portion of a Tangi, survived the injury, there was no question of convicting the appellant  under section 304 Part 1 of the Penal  Code.   It was also contended that the appellant had sustained injuries during the same occurrence including one at the scalp. Allowing the appeal, this Court, HELD  :  1.1.  Section 304 does not create  an  offence  but provides the punishment for culpable homicide not  amounting to murder.  In view of section 300 of the Penal Code, except in  cases covered by the five exceptions mentioned  therein, culpable  homicide is murder.  If a death is caused and  the case is covered by any one of the five exceptions of section 300, then such culpable homicide shall not amount to murder. Section  304 provides punishment for culpable  homicide  not amounting  to murder and draws a distinction in the  penalty to  be  inflicted  in  cases covered  by  one  of  the  five exceptions  where an intention to kill is present and  where there is only knowledge that death will be a likely  result, but intention to cause death or such bodily injury which  is likely to cause death is absent.  The first part of  section 304  applies  where there is guilty  intention  whereas  the second  part applies where there is guilty  knowledge.   But before  an accused is held guilty and punished  under  first part  or second part of section 304, a death must have  been caused  by him under any of the circumstances  mentioned  in the  five  exceptions to section 300,  which  include  death caused  while deprived of power of self-control under  grave and  sudden provocation, while exercising in good faith  the right  of  private defence of person or property, and  in  a sudden  fight in the heat of passion without  permeditation. [141B-D,F] 1.2. In  the  instant case, when death itself had  not  been caused, there 139 was  no occasion for convicting the appellant under  section 304 of the Penal Code. [141G] 1.3. The appellant, in his examination under section 313  of the Code of Criminal Procedure, stated that he had sustained injuries  during the same occurrence while warding  off  the Bhala  blow  aimed  at  his chest by  PW  9.  The  aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon, who had been examined as a  witness at  the  trial.   The other accused,  who  died  during  the pendency  of the appeal had also been examined by  the  Jail Doctor  and  the  Doctor was examined as a  witness  at  the trial,  who  proved the injuries on the person  of  accused. The  Judge  himself  on consideration of  the  materials  on record  has  come  to  the conclusion  that  the  manner  of occurrence,  as  alleged  by the appellants  in  which  they sustained injuries, has been suppressed and the true version of the occurrence has not been given by the prosecution  and in the circumstances, the right of private defence of person and property cannot be completely ruled out. [142B-CG-H] 1.4. In  view  of  the finding of the High  Court  that  the prosecution  had  not  disclosed the  true  version  of  the occurrence,  and the right of private defence of person  and property  was available to the appellant, the appellant  was entitled to be acquitted. [143A]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 462  of 1985. From the Judgment and Order dated 21.12.84 of the Patna High Court in Crl.  A. No. 146 of 1978 (R). R.C. Kohli Advocate for the Appellant. Pramod Swarup Advocate for the Respondent. The Judgment of the Court was delivered by N.P.  SINGH,  J.  This  appeal is  on  behalf  of  the  sole appellant who has been convicted under section 304 Part 1 of the Indian Penal Code (hereinafter referred to as "the Penal Code")   and   has  been  sentenced  to   undergo   rigorous imprisonment for two years by the High Court. The appellant along with Sitaram Mandal and Tribhanga Mandal 140 were charged for offence under section 307 read with section 34  for  attempting to commit the murder  of  Gopal  Chandra Ravidas, They had also been charged under section 379 of the Penal Code for committing the theft of the paddy crops  from plot  No. 2760 of village Amjhore, P.S.  Baliapur,  District Dhanbad. According  to  the prosecution case, on  26.10.75  at  about 12.00  noon  the  informant Bishnu Ravidas  (PW-9)  and  his brother Gopal Chandra Ravidas having learnt that the accused persons were harvesting their paddy from the plot  aforesaid went there.  When they protested as to why their crops  were being  harvested, accused Sitaram Mandal caught hold of  the hands of Gopal Chandra Ravidas and Harendra Nath Mandal, the appellant, assaulted Gopal Chandra Ravidas on his head  with the  back  portion of a Tangi.  At that very  time,  accused Tribhanga  Mandal  assaulted informant with a lathi  on  his right hand. On  a consideration of the evidence on record,  the  learned Sessions Judge convicted appellant Harendra Nath Mandal  and Sitaram  Mandal  for  offence under section  307  read  with section  34 of the Penal Code and sentenced  the  appellant, Harendra  Nath Mandal to undergo rigorous  imprisonment  for seven  years and accused Sitaram Mandal to undergo  rigorous imprisonment  for five years.  Accused Tribhanga Mandal  was convicted  under  section  323  and  sentenced  to   undergo rigorous imprisonment for six months.  All of them were also convicted under section 379 of the Penal Code and  sentenced to one year rigorous imprisonment each.  The sentences  were directed to run concurrently. During  the  pendency of the appeal before the  High  Court, Sitaram  Mandal  died and his appeal  abated.   The  learned Judge, however, set aside the conviction and sentence  under section  307  read  with  section  34  passed  against   the appellant  Harendra  Nath  Mandal but  convicted  him  under section  304 Part 1 of the Penal Code and sentenced  him  to two  years’  rigorous  imprisonment.   The  conviction   and sentence  under  section  379  were  also  set  aside.   The conviction and sentence under section 323 of the Penal  Code against  Tribhanga  Mandal were also set aside  and  he  was acquitted  of  the  charges levelled against  him.   It  was rightly  urged  on behalf of the appellant that  when  Gopal Chandra  Ravidas to whom this appellant is alleged  to  have given a blow by the back portion of a Tangi, has survived 141 the injury aforesaid, there was no question of covicting the appellant under section 304 Part 1 of the Penal Code. Section  304  does not create an offence  but  provides  the

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punishment  for culpable homicide not amounting  to  murder. In  view  of section 299 of the Penal Code,  whoever  causes death  by doing an act with the intention of causing  death, or  with the intention of causing such bodily injury  as  is likely  to  cause death, or with the knowledge  that  he  is likely  by such act to cause death, commits the  offence  of culpable  homicide.   In view of section 300  of  the  Penal Code,  except  in  cases  covered  by  the  five  exceptions mentioned therein, culpable homicide is murder.  It is well- known  that if a death is caused and the case is covered  by any  one  of the five exceptions of section  300  then  such culpable  homicide shall not amount to murder.  Section  304 provides  punishment for culpable homicide not amounting  to murder  and  draws  a  distinction  in  the  penalty  to  be inflicted  in cases covered by one of the  five  exceptions, where  an  intention to kill is present and where  there  is only  knowledge  that  death will be a  likely  result,  but intention  to  cause death or such bodily  injury  which  is likely to cause death is absent.  To put it otherwise if the act of the accused falls within any of the clauses 1, 2  and 3  of  section  300  but  is covered  by  any  of  the  five exceptions  it  will be punishable under the first  part  of section  304.  If, however, the act comes under clause 4  of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all  probability cause death but without any intention to cause death and  is covered  by  any of the exceptions, it  will  be  punishable under  the  second  part.  The first  part  of  section  304 applies  where there is guilty intention whereas the  second part applies where there is guilty knowledge.  But before an accused  is  held guilty and punished under  first  part  or second part of section 304, a death must have been caused by him  under  any of the circumstances mentioned in  the  five exceptions to section 300, which include death caused  while deprived  of  power of self-control under grave  and  sudden provocation,  while  exercising in good faith the  right  of private defence of person or property, and in a sudden fight in  the heat of passion without premeditation.  So  far  the present  case is concerned, when death itself had  not  been caused,  there was no occasion for convicting the  appellant under section 304 of the Penal Code. Now the next question is as to whether the appellant  should be  convicted  for causing injury on the head  of  aforesaid Gopal Chandra 142 Ravidas  with the back portion of a Tangi.  It  was  pointed out  that  the appellant has sustained injuries  during  the same  occurrence including one at the scalp.  The  aforesaid injuries on the person of the appellant were examined by the Civil  Assistant Surgeon, Sadar Hospital, Dhanbad,  who  has been  examined as a witness at the trial.  The appellant  in his  examination under section 313 of the Code  of  Criminal Procedure  stated that he had sustained  injuries  aforesaid while  warding off the Bhala blow aimed at his chest by  the aforesaid Gopal Chandra Ravidas.  The other accused  Sitaram Mandal  who died during the pendency of the appeal had  also been  examined  by the jail Doctor in the Dhanbad  jail  and said  Doctor  was examined as a witness at  the  trial,  who proved the injuries on the person of accused Sitaram Mandal. The learned Judge himself on consideration of the  materials on recored has come to the following conclusion :-               "From   the   aforesaid  discussion   of   the               evidence,  in the facts and  circumstances  of               the  case, it appears that since  long  before               the occurrence both the parties were  claiming

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             title  and possession over the  disputed  land               and  the occurrence took place  regarding  the               harvesting  of  the paddy crop.  In  the  same               occurrence   the  informant  (PW-9)  and   his               brother  Gopal Ravidas sustained injuries  and               the  first  and second  appellants  were  also               injured.   According to the  appellants  Gopal               Ravidas  aimed a ’Bhala’ blow on the chest  of               the  first appellant but he warded it off  and               sustained injuries at his hand.  The first and               the  second appellants were also assaulted  by               lathis.  The injuries were examined and proved               by the doctor (DW-8).  Likewise, the  injuries               of  the second appellant were examined by  the               jaid  doctor,  (DW-7), who proved  the  injury               report.  May be, that their injuries were  not               severe  but it was a matter of luck  that  the               first  appellant could avoid and ward off  the               ’Bhala’  blow aimed at his chest.  The  manner               of occurrence as alleged by the appellants  in               which   they  sustained  injuries   has   been               suppressed   and  the  true  version  of   the               occurrence   has   not  been  given   by   the               prosecution.  In the circumstances, the  right               of  private  defence of  person  and  property               cannot be completely ruled out." 143 Once the finding aforesaid was recorded that the prosecution has not disclosed the true version of the occurrence and the right  of  private  defence  of  person  and  property   was available  to the appellant then the appellant was  entitled to be acquitted. Accordingly,  the  appeal is allowed.   The  conviction  and sentence passed against the appellant are set aside. N.P.V. Appeal allowed. 144