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CASE NO.: Appeal (crl.) 132-134  of  2000

PETITIONER: RAMASHRAYA & ANR.

       Vs.

RESPONDENT: STATE OF  MADHYA PRADESH

DATE OF JUDGMENT:       23/02/2001

BENCH: U.C. Banerjee & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellants  herein challenge their  conviction  and sentence  under  Section 302 IPC read with Section  34  IPC. They were tried by the Fourth Addl.  Sessions Judge, Raipur, alleging  that  they  caused the death of  one  Ajeet.   The prosecution  case  was that on 19.12.1987 when the  deceased Ajeet  and  his son, Laljee, were doing some work  in  their paddy  field,  the  appellants came there in  their  bullock cart.   Deceased  Ajeet was grazing his buffaloes  near  his field  and  a  little away, his son Laljee,  was  collecting bundles  of  paddy.  It seems that the appellants wanted  to drive  their  bullock  cart through the Tewda field  of  the deceased.  Deceased Ajeet, objected to this and there ensued a quarrel between Ajeet and the appellants.  Appellant Kripa Ram  tried to hit the deceased on his head but the blow fell on  the shoulder of the deceased.  Seeing this, Laljee  came near  the deceased to save him, but Ajeet shouted, "Run away son,  they  are  waiting  for you, do not  come  this  way." According  to the prosecution, both the appellants inflicted severe  injuries  on the deceased Ajeet and he fell down  on the  ground.  Seeing the altercation and beating being given to  his  father, Laljee ran away and on the way  met  Hirday Kumar.  They returned to the place of incident and saw Ajeet lying dead on the ground.  Later, the matter was reported to the Police.  The Inquest Report was prepared and the body of Ajeet  was  subjected to post- mortem.  The recovery  report was  also prepared.  Two broken pieces of the tooth of Ajeet were  recovered from the place of incident along with  blood stained  earth and the ’lathi’ alleged to have been used  to kill the deceased.

   PW-1,  Laljee;  PW-2, Sukalu;  and PW-6, Basant are  the witnesses  who were examined on the prosecution side.   PW-1 narrated  the  whole  incident in detail.  PW-2  only  spoke about  the  presence  of  the accused at the  place  of  the incident.   PW-6,  Basant  deposed that he had  heard  Ajeet shouting  that  he was being killed and saw  the  appellants assaulting   him  with  ’lathi’.    The  evidence  of  these witnesses was satisfactorily proved by the prosecution.

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   We  heard  the learned counsel for the  appellants,  who contended that these witnesses were interested-witnesses and the  courts  below  erred  in   placing  reliance  on  these witnesses.  We do not find much force in this contention.

   The  learned counsel further contended that the offence, if  at all committed by the appellants, will not come within the definition of ’murder’, but only ’culpable homicide’ and the  appellants are liable to be punished under Section  304 Part  II,  IPC.  It was urged by learned counsel that  there was  no  pre-meditation and the quarrel took place all of  a sudden   pursuant  to  a   wordy  altercation  between   the appellants  and the deceased and that the appellants had not taken  undue advantage of the situation.  It was also  urged that there was no intention on the part of the appellants to cause  the  death  of  the deceased.   The  learned  counsel submitted  that  the circumstances of the case do  not  also indicate  that  there  was  knowledge on  the  part  of  the appellants  that the injuries caused by them were likely  to cause death.  Reference was made to a series of decisions by learned  counsel  for  the  appellants  in  support  of  her contention.

   In  State  of  Madhya Pradesh vs.  Jhaddu &  Ors.   1991 Supp.   (1)  SCC  545,  this Court held that  there  was  no intention to kill, but the accused could be imputed with the knowledge that death was the likely result and therefore the conviction  of the accused under Section 304 Part II IPC was affirmed.   The deceased had sustained injuries on the chest resulting  in  fracture  of  ribs and  laceration  of  lungs leading  to  death.  This was on the basis of the nature  of injuries that such a finding was recorded.

   Morcha  vs.  State of Rajasthan ( 1979) 1 SCC 161 was  a case where the accused husband went to fetch his wife at his in-laws  village  and  on  her   refusal  to  accompany  him immediately  attacked her causing fatal injuries.  The trial court  held  that the accused had no intention to  kill  and convicted  him under Section 304 Part II.  On appeal by  the State, the High Court converted the conviction to that under Section  302.   This Court held that the circumstances  show that  the appellant went armed with a dagger and despite the willingness  expressed  by  the wife to accompany  him  next morning the accused inflicted two injuries on her person and the  evidence  indicated  that the wound  on  the  posterior axillary  line caused injury to the liver and perforation of the large colon and was sufficient in the ordinary course of nature  to cause death and it was held that the whole affair appeared  to  be  pre-planned and pre-meditated.   That  the accused  intended  to  cause the death of  the  deceased  is further  clear from the fact that he inflicted such a severe injury.

   In  Madanlal vs.  State of Punjab 1992 Supp (2) SCC 233, the accused caused serious injuries to the deceased with the handle  of  a  pump due to which the deceased  died  3  days thereafter.   The  motive of the crime was that the  accused was hungry for three days and when he demanded food from the deceased  ’Sewadar’ of the ’Dera’, where free food was being served,  the deceased refused and consequently, the accused, in  a fit of anger, attacked the deceased suddenly on  being deprived of the power of self-control.  This Court held that the offence would come under Section 304 Part II IPC instead of 302.

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   In  Ramesh  Vithalrao  Thakre  &  Anr.   Vs.   State  of Maharashtra  AIR 1995 SC 1453, there was only one injury  on the  deceased.  The accused had given a single blow by knife on  the abdomen of the deceased while the latter was  trying to  intervene  to  save her brother being  attacked  by  the accused.   This Court held that the accused could be clothed with  knowledge and not intention that the injury was likely to  cause  death  and,  therefore, the  offence  fell  under Section 304 Part II IPC and not Section 300 IPC.

   In  Santosh  vs.  State of Madhya Pradesh (1975)  3  SCC 727,  the Sessions Judge, relying on an earlier case in  AIR 1956  SC 654 (Kapur Singh vs.  State of Pepsu) convicted the appellant  under  Section 304 Part-I IPC on the ground  that the  injuries  were inflicted on the limbs of the 3 men  who died  of bleeding, but infliction of injuries on vital parts of  the  body  was deliberately avoided and,  therefore,  an intention  to  murder was not established.  This Court  held that  the learned Sessions Judge appeared to have overlooked the  various  clauses of Section 300 IPC.  An  intention  to kill  is  not  required in every case.  Knowledge  that  the natural  and probable consequences of an act would be  death will suffice for a conviction under Section 302 IPC.

   In  W.  Slaney vs.  State of Madhya Pradesh AIR 1956  SC 116,  the  accused,  a 22 years old, was in  love  with  the sister  of the deceased who did not like this intimacy.   On the  day  of  occurrence  there was a  quarrel  between  the deceased  and  the accused and the accused was asked to  get away  from the house of the sister.  Shortly afterwards, the accused  returned  with his younger brother and  called  the sister  to  come  out.  Instead, the deceased came  out  and there  was a heated exchange of words.  The accused  slapped the  deceased  on the cheek.  The accused lifted  his  fist. The accused snatched a hockey stick from his younger brother and  gave  one  blow on the head of the  deceased  with  the result  that his skull was fractured.  The deceased died  in the  hospital  ten days later.  It was held that  where  the accused,  causing the death of another, had no intention  to kill,  then  the  offence would be murder only  if  (i)  the accused  knew  that the injury inflicted would be likely  to cause  death  or  (ii) that it would be  sufficient  in  the ordinary  course of nature to cause death or (iii) that  the accused  knew  that  the act must in all  probability  cause death.   On the facts and circumstances of the case, it  was held  that  the offence fell under Section 304 Part -II  IPC and not under Section 302 as there was no pre-meditation and there was a sudden fight.  The nature of the injury was such that  the  accused could not be attributed with the  special knowledge  required  by Section 300 IPC, nor was the  injury sufficient in the ordinary course of nature to cause death.

   Reference  was also made to the decisions of this  Court in AIR 1960 SC 1390 (Laxman Kalu vs.  State of Maharashtra); 1994  Supp.(1)  SCC 116 (Ramesh Kumar vs.  State of Bihar  & Ors.);   and  AIR 1964 SC 1263 (Afrahim Sheikh &  Ors.   vs. State of West Bengal).

   In  all  the  cases  referred to above,  the  facts  and circumstances  show that the occurrence took place all of  a sudden  and  there was no pre-meditation on the part of  the accused.   From  the nature of the injury also, it would  be observed  that  the accused had only the knowledge that  the injury  was  likely  to cause death, but intention  as  such

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cannot  be  attributed to them.  The second part of  Section 304 speaks of ’knowledge’ and does not refer to ’intention’, which  has  been  segregated  in the first  part.   But  the knowledge is knowledge of the likelihood of death.  In order to  bring  the offence under clause (3) of Section 300,  the prosecution must establish, quite objectively, that a bodily injury is present and the nature of injury must be proved.

   In   Virsa Singh vs. State of Punjab   AIR 1958  SC 465, it was held as under :

   "In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds  on broad lines as, for example, whether there  was an  intention to strike at a vital or a dangerous spot,  and whether  with  sufficient force to cause the kind of  injury found  to  have  been  inflicted.  It  is,  of  course,  not necessary  to  enquire  into  every   last  detail  as,  for instance,  whether the prisoner intended to have the  bowels fall  out, or whether he intended to penetrate the liver  or the  kidneys  or  the heart.  Otherwise, a man  who  has  no knowledge  of  anatomy could never be convicted, for, if  he does  not know that there is a heart or a kidney or  bowels, he  cannot  be  said to have intended to  injure  them.   Of course,  that is not the kind of enquiry.  It is broad-based and  simple  and based on commonsense:  the kind of  enquiry that "twelve good men and true" could readily appreciate and understand.

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

   First,  it  must  establish, quite objectively,  that  a bodily injury is present;

   Secondly,  the  nature of 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-element 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.

   Once   these  four  elements   are  established  by  the prosecution   (and,  of  course,  the   burden  is  on   the prosecution  throughout)  the offence is murder under  S.300 "thirdly".   It does not matter that there was no  intention to  cause  death.   It  does not matter that  there  was  no intention  even  to  cause  an  injury of  a  kind  that  is sufficient  to cause death in the ordinary course of  nature (not  that  there is any real distinction between the  two). It  does not even matter that there is no knowledge that  an act  of  that kind will be likely to cause death.  Once  the intention  to  cause the bodily injury actually found to  be

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present  is  proved,  the  rest of  the  enquiry  is  purely objective  and the only question is whether, as a matter  of purely  object  inference, the injury is sufficient  in  the ordinary  course  of  nature to cause death.  No one  has  a licence   to  run  around   inflicting  injuries  that   are sufficient  to cause death in the ordinary course of  nature and  claim  that  they are not guilty of  murder.   If  they inflict   injuries  of  that  kind,   they  must  face   the consequences;   and they can only escape if it can be shown, or  reasonably  deduced, that the injury was  accidental  or otherwise unintentional."

   Argument of the appellants’ counsel is that the incident happened pursuant to a sudden quarrel and the appellants had no  pre-meditation  to cause the death of the  deceased  and therefore,  the offence would come under ’culpable homicide’ punishable  under  Section 304 IPC.  In order to decide  the question,  the  nature  of  the injuries  sustained  by  the deceased and the circumstances under which the incident took place are relevant factors.  From the nature of the injuries and  the  origin  and genesis of the incident, it  could  be spelt  out that all the ingredients of the offence of murder defined  under  Section 300 IPC are made out and it  is  not possible  to  bring  the  offence within  any  of  the  five exceptions  of Section 300 IPC.  Therefore, Section 304  IPC cannot  be invoked.  The argument of the appellants’ counsel that  there  was no intention on the part of the accused  to cause  the death of the deceased cannot be accepted in  view of the nature of injuries sustained by the deceased.  Though the  quarrel  between  the accused and the  deceased  ensued after  a wordy altercation, a series of injuries were caused by  the  accused on the skull and all over the body  of  the deceased.   Both  the appellants had brutally  attacked  the deceased.   Having regard to the nature of the injuries  and the  circumstances  under  which  the injuries  came  to  be inflicted, it is clearly established that the appellants had the  intention  to cause the death of the deceased  and  the injuries  caused  were sufficient in the ordinary course  of nature  to  cause death.  The appellants have  been  rightly convicted  under Section 302 IPC.  We see no merit in  these appeals, which are dismissed.

(U.C. Banerjee) @@ IIIIIIIIIIIIIIII

(K.G. Balakrishnan) @@ IIIIIIIIIIIIIIIIIIII

February  23, 2001.