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CASE NO.: Appeal (crl.)  721 of 2007

PETITIONER: Shankar Jaiswara

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 14/05/2007

BENCH: S.H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T  (Arising out of SLP(crl.) No.  4518 of 2006)

B.SUDERSHAN REDDY,J.

       Leave granted.  2.   This appeal by special leave is directed against the  judgment of the Calcutta High Court confirming the  conviction of the appellant under Section 302 IPC and the  sentence of imprisonment for life and a fine of Rs. 5,000/-,  in default of payment of fine to further undergo six months   rigorous imprisonment. The appellant was charged with the  offence punishable under Section 302 IPC of committing  the  murder of Tarak Jaiswara the younger brother of the  informant (PW-1).   

3.      The prosecution story, briefly stated, is that on  14.1.1997 at about 11 or 11.30 p.m.  Bhola Jaiswara (PW-1)  heard a row from outside his bedroom. He heard the  appellant Shankar Jaiswara was shouting and hurling abuse  and in the process started  knocking at the door of the  house of Mohan Jaiswara (PW-3).  Apprehending trouble,    Bhola Jaiswara (PW-1) came out  and requested  the  appellant to leave the place.  The appellant became agitated  and started  moving towards the main road where he found  Tarak Jaiswara (deceased) who was  taking his meal while  sitting in his rickshaw. Bhola (PW-1) also followed the  appellant.  The appellant Shankar Jaiswara started abusing  Tarak Jaiswara (deceased) in obscene and filthy language.   When the deceased Tarak requested the appellant  to leave  him alone the appellant became furious and started stabbing  Tarak with a sharp edged weapon.  Deceased Tarak fell in  the rickshaw.  He was profusely bleeding.   Bhola (PW-1)  took the victim  who is none other than his own brother to  North Suburban Hospital in  the same rickshaw where the  hospital authorities  having regard to the grievous nature of  injuries advised him to take the victim to  the  R.G. Kar  Hospital.  The victim was accordingly taken to  the R.G. Kar  Hospital where he was pronounced dead.  While on his way  back from the hospital Bhola (PW-1) found some police  personnel in the vicinity of occurrence  and he narrated the  incident to the police.  Based  on the statement of Bhola  (PW-1) the Police Station Cossipore issued first information  report   and registered a P.S. Case No. 11 of 1997 under  Section 302 IPC against the appellant.  

4.       After completion of the investigation, the police filed

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charge sheet under Section 302 IPC against the accused  appellant.  The prosecution  in all examined 19 witnesses  (PW-1 to PW-19) and got marked 20 documents in evidence.   The prosecution also produced material exhibits which were  marked as mat. Ext. I to XIII. The statement  of the accused  appellant under Section 313 Cr.P.C. was recorded in which  he took the stand that he was innocent of the charge leveled  against him.  

5.      The learned Sessions Judge upon appreciation of  evidence available on record found the appellant guilty of  the offence punishable under Section 302 IPC and the same  has received its affirmation at the hands of the High Court.  

6.      Hence this appeal by special leave.  

7.      In order to consider as to whether the prosecution  established  the charge against the appellant for the offence  punishable under Section 302 IPC beyond reasonable doubt  it is just and necessary to appreciate the evidence available  on record.  

Evidence:

8.       Bhola Jaiswara (PW-1) who is none other than the  elder brother of the deceased Tarak is the eye witness.  It is  in his evidence that on 14.1.1997 at about 11 p.m. when he  was about to go to sleep he heard a row from outside.  He  came out of his house and found the appellant Shankar  Jaiswara  at the entrance gate abusing and threatening to  kill whoever came in his way. The appellant was found to be  under the influence of liquor.  The deceased Tarak was  taking his meal sitting in his rickshaw on the main road just  about 40 feet away from the house of Bhola (PW-1). The  appellant started proceedings towards main road and Bhola  (PW-1) followed him.  PW-1 heard his brother Tarak  Jaiswara advising the appellant to go away from the place.   The appellant without heeding to the advice started abusing  the deceased in filthy language and struck the deceased with  a knife like weapon.  PW-1  made an attempt to apprehend  but  the appellant fled away from the scene of offence.   He  found two stab injuries on the chest of the victim.  He then  removed the victim to North Subarban Hospital by the same  rickshaw where he was advised to take him to R.G. Kar  Hospital by an ambulance.  The attending doctor at the R.G.  Kar Hospital pronounced Tarak dead.  PW-1 while returning  from the hospital found the police van in the vicinity of the  place of occurrence to whom he made a statement  who  recorded the same.  He signed the report  ext. 1.   PW-1  specifically stated in his evidence that he found stab injuries  on the throat, chest and abdomen of the deceased.  PW-1   has been subjected to intense cross-examination.  He denied  the suggestion that at the time of occurrence the deceased  was also under the influence of liquor.  He denied the  suggestion that he did not witness the occurrence.  He more  or less confirmed what has been stated by him into the  police in his complaint (Ext. 1).  

9.      PW-3, Mohan Jaiswara is another eye witness. It is in  his evidence that on the frightful day deceased Tarak was  taking his meal sitting in his own rickshaw at Cossoipore  road. He found the appellant coming from a nearby lane  abusing  the people at random.  He had seen the appellant  stabbing the deceased with a knife like weapon.  The  appellant stabbed the deceased for about 5 or 6 times.  The

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deceased fell in his rickshaw.  The deceased was then taken  to the hospital in the same rickshaw.  In the cross- examination he admitted that he is the Chachato brother of  PW-1 and the deceased.  He denied the suggestion that  the  deceased was the habitual drunkard.  

10.     PW-5 is the Professor of Department of Forensic and  State Medicine, N.R.S. Medical College, Calcutta.  He held  the post mortem examination  over the dead body of the  deceased. On examination of the body he found the body of  the deceased subject with rigor mortis present all over the  body, pupils-fixed, dilated, equal and the cornea hazy.  The  following injuries were found on the body of the deceased:  

1.      One incised wound 1 =" x =" x trachea was found  on the midline on the front of the leg with inverted  bruised margins.  The track was directed backwards  and terminated on the posterior wall of the trachea.  

2.      Another incised wound 1" x =" x left carotid into the  left side of the trachea was found on the left lateral  side of the neck with inverted bruised margins.  The  track was directed obliquely downwards, backwards,  medial wards from the left to right and convergent in  nature and those terminated into the lumen of the  trachea after cutting the corresponding left carotid  vessels through and through.  

3.      One incised penetrating wound with inverted bruised   margins with 1 =" x =" x left chest cavity left lung  which was placed over the left chest wall 2 inch left  of midline.  On dissection it was seen to have passed  in the intercostals space in between 4th and 5th ribs  on the left side to left chest cavity to basal part of  the left apical lobe of the left lung with pleurae to  lower part of the left lateral wall of the heart.  The  injury effected the lateral wall of the heart with  pericardium into the lumen of the left ventricle of the  heart \026 =" x .2" x wall of the heart and it terminated  into left ventricle.  The track of the wound was  directed obliquely downwards, backwards, inwards  and medial wards from the left to right and  convergent in nature.  The wound caused collection  of fluid and clotted blood about 1 = liter inside the  chest cavity.  

4.      One incised wound 2" x 1"  x muscle deep was found  over the front of left shoulder.  

5.      Another incised wound 2" x =" x muscle deep was  found over mid eternal region of the chest.  

6.      Another incised wound =" x .2" x skin deep was  found just above the aforesaid injury.  

7.      Another incised wound 1" x =" x muscle deep was  also found across the left deltoid region of the arm.  

11.    He opined the cause of death was due to the injuries  which were ante-mortem and homicidal in nature.  

12.     PW-9, Mongala Prasad Lal (Sadhu) speaks about the  recovery of the knife (mat. ext. XI).  He states that  the  appellant took out his wearing trousers and shirt  said to

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have been kept by him in the room of PW-9.  The appellant  took out one knife from the plastic bag.  He put his thumb  impression on the panchnama prepared at the time of  recovery of articles.           13.     PW-18, sub-Inspector of police states that he arrested  the appellant at about 2.35 p.m.  on 15.1.1997.  He  accompanied PW-19 the Investigating Officer to the house of  Sadhu (PW-9).  The appellant was also with them.  He states   that on arrival at the house of Sadhu (PW-9) the appellant  brought out one knife hidden under the bag of coal.  The  appellant also brought out one shirt and one trouser hidden  under the pillow kept on the cot in the house of PW-9.  PW- 19 prepared a seizure list in respect of the articles recovered  in the house of PW-9.  He identified the knife seized by the  Investigating Officer (mat. Ext. XI).  14.     PW-19 is the Investigating Officer.  He speaks about  the recording of the information/statement of Bhola (PW-1).   He came to the place of occurrence on receiving a telephonic  information to the effect that one unknown person has been  stabbed by another on Cossipore Road.  It is in his evidence  that on 16.1.1997 he examined the appellant who stated  before him that he concealed the weapon in the house of his  friend, Sadhu (PW-9) at Jatin Nagar Colony.  He made the  statement that he would be able to lead the police party to  the place where he kept the knife concealed. The statement  so made by the appellant has been recorded in exhibit 18.   He speaks about the recovery of the weapon and the seizure  list (ext. 17) prepared by him.  

15.     The prosecution case is narrated by the two eye  witnesses \026 PW-1, Bhola Jaiswara and PW-3, Mohan  Jaiswara.  This evidence has been elaborately dealt with by  the trial court as well as the High Court.  Their evidence has  been properly appreciated by the courts below.  Suffice it to  note that both of them (PW-1 & PW-3) stated clearly that  the appellant stabbed the deceased repeatedly.  PW-1,  Bhola Jaiswara  found stab injuries on the  throat, chest,  abdomen of the deceased. PW-3, Mohan Jaiswara spoke that  the deceased Tarak was stabbed  by the appellant  repeatedly by 5 or 6 times.  PW-12, Dr. Sruti Kr. Bera before  whom the deceased was brought dead on the day of  occurrence found multiple stab injuries.  He further deposed  that PW-1 gave a statement that  the deceased  was  severely stabbed by the appellant.  PW-5 Prof. B.C.  Mazumdar, Head of the Department of Forensic and State  Medicine, Calcutta who held the post-mortem  examination  on the body of the deceased on  15.01.1997 found as many  qaas 7 injuries which we have noticed herein above.  The  injuries were ante-mortem and homicidal in nature.  He  opined that injury nos. 4 and 7 might have been caused  while the victim  was defending himself.  He was of the  opinion that the injuries found by him could be caused by  the weapon of offence (mat. Ext. XI) which was shown to  him.  16.     We find the medical evidence available on record and  the ocular evidence of PW-1 and PW-3 were absolutely in  conformity with each other which clearly establishes the  prosecution case.  

17.     There has been some criticism about the evidence of  recovery of the weapon of offence (mat. Ext. XI).  There is  no doubt whatsoever the recovery of weapon seized under  seizure list (ext. 17) but the recovery itself would not be  enough and sufficient to connect the appellant  with the

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crime unless it is established  that the said weapon has been  used by  the appellant for commission of the offence.  But it  cannot be denied that the recovery of the said article is a  fact discovered at the instance of the appellant.  We have  the evidence of PW-5, Prof. B.C. Mazumdar who in  categorical terms stated that the injuries  found on the  deceased could be caused by such a type of knife (mat. Ext.  XI).  The Ocular evidence of PW-1 and 3  which is consistent  reveals the appellant carrying a knife.  The sequence of  events and the material available on record clearly  

establishes that the weapon of offence (mat. Ext. XI) has  been used for the commission of the murder of Tarak  Jaiswara by the appellant.   The recovery, made under  Section 27 of the Evidence Act by PW-19 Supriya Kumar Pal  from the house of PW-9, Mongala Prasad Lal ( Sadhu) is  required to be taken into consideration.  The process of  recovery in our considered opinion which is based upon the  statement of the appellant made to PW-19 is in accordance  with Section 27 of the Evidence Act.  

18.     Upon appreciation of the evidence the Trial Court  convicted the appellant for the offence punishable under  Section 302 IPC and sentenced to undergo life  imprisonment.  

19.     The incident and the involvement of the appellant in  the commission of offence is not in dispute.  

Submission:

20.     The stand taken by the appellant before the High Court  and reiterated in this appeal was that the appellant was in a  state of drunkenness and did not know the consequences  what he did and, therefore, cannot be convicted for the  offence punishable under Section 302 IPC.  It was contended   that at the most the appellant could be convicted and  sentenced under Section 304 Part II IPC.  This was the only  contention urged before us.  

21.     The nature, scope and applicability of Section 86 IPC

       Section 86 IPC which was elaborately considered by the  High Court runs in these terms:  

       "86. Offence requiring a particular intent  or knowledge committed by one who is  intoxicated \026 In cases where  an act done is  not an offence unless done with a particular  knowledge or intent, a person who does the  act in a state of intoxication shall be liable to  be dealt with as if he had the same knowledge  as he would have had if he had not been  intoxicated, unless the thing which intoxicated   him was administered to him without his  knowledge or against his will. "

22.     This Court in Basdev Vs. The State of Pepsu [ 1956  SCR 363 while construing Section 86 IPC observed:          "It is no doubt true that while the first part of

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the section speaks of intent or knowledge, the  latter part deals only with knowledge and a  certain element of doubt in interpretation may  possibly be felt by reason of this omission.  If in  voluntary drunkenness knowledge is to be  presumed in the same manner as if there was  no drunkenness, what about those cases where  mens rea is required.  Are we at liberty to place  intent on the same footing, and if so, why has  the section omitted intent in its latter part?   This is not the first time that the question  comes up for consideration.  It has been  discussed at length in many decisions and the  result may be briefly summarized as follows:-

So far as knowledge is concerned, we must  attribute to the intoxicated man the same  knowledge as if he was quite sober.  But so far  as intent or intention is concerned, we must  gather it from the attending general  circumstances of the case paying due regard to  the degree of intoxication.  Was the man beside  his mind altogether for the time being? If so it  would not be possible to fix him with the  requisite intention.  But if he had not gone so  deep in drinking, and from the facts it could be  found that he knew what he was about, we can  apply the rule that a man is presumed to intend  the natural consequences of his act or acts.  

Of course, we have to distinguish between  motive, intention and knowledge.  Motive is  something which prompts a man to form an  intention and knowledge is an awareness of the  consequences of the Act.  In many cases  intention and knowledge merge into each other  and means the same thing more or less and  intention can be presumed from knowledge.   The demarcating line between knowledge and  intention is no doubt thin but it is not difficult to  perceive that they connote different things.   Even in some English decisions, the three ideas  are used interchangeably and this has led to a  certain amount of confusion."

23.     The learned Amicus Curiae, however, relied upon the  judgment in Mandru Gadaba [ 1916 AIR Madras 489]  in  support of his submissions.    It is not necessary to consider  the judgment to the effect of the observations inasmuch as  the charge against the accused therein  was under Section  304 and not under Section 302.  

24.     On consideration of various authorities including the  decision rendered by the House of Lord’s in Director of  Public Prosecutions Vs. Beard [1920 AC 479]  the law is  neatly summarized in Russel on Crime in the following  words:  

"There  is  a distinction, however, between the  defence  of insanity in the true sense  caused by excessive drunkenness and  the  defence of drunkenness which produces  a   condition  such  that  the      drunken man’s   mind  becomes  incapable of  forming a  specific intention.  If actual insanity  in  fact

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supervenes as the result of alcoholic excess it  furnishes as complete answer to a criminal  charge as insanity  induced  by any other  cause.  But in cases falling short of  insanity  evidence of drunkenness which renders the  accused incapable of  forming the specific  intent essential  to constitute the crime  should  be taken into consideration  with        the  other facts  proved  in order to determine  whether or not  he      had this  intent, but  evidence of drunkenness which falls  short  of   proving such incapacity and merely establishes  that the mind  of the accused was so affected  by drink that  he  more readily gave way to  some violent passion does not  rebut  the   presumption     that  a  man  intends  the   natural  consequences of his act".

25.     In Bablu @ Mubarik Hussain Vs. State of Rajasthan  [ 2006 (14) SCALE 15]  this Court held:  

"The defence of drunkenness can be availed of  only when intoxication produces such a  condition as the accused loses the requisite  intention for the offence. The onus of proof  about reason of intoxication due to which the  accused had become incapable of having  particular knowledge in forming the particular  intention is on the accused.  Basically, three  propositions as regards the scope and ambit of  Section 85 IPC are as follows:

(i)             The insanity whether produced by  drunkenness or otherwise is a defence to the  crime charged;

(ii)    Evidence of drunkenness which renders  the accused incapable of forming the specific  intent essential to constitute the crime should  be taken into account with the other facts  proved in order to determine whether or not he  had this intent; and

(iii)   The evidence of drunkenness falling  short of a proved incapacity in the accused to  form the intent necessary to constitute the  crime and merely establishing that his mind is  affected by drink so that he more readily give to  some violent passion, does not rebut the  presumption that a man intends the natural  consequences of his acts."

This Court while construing the expression "without his  knowledge" stated that it simply means an ignorance of the  fact that what is being administered to him is or contains or  is mixed with an intoxicant.  

26.     In the present case a plea of drunkenness and the mind  of the accused was so affected by the drink with the result  that he acted in a way in which he would not have done had  he been sober, is not set up by the appellant accused.    Reliance is sought to be placed upon the statement  given  by Bhola Jaiswara (PW-1) to the police and as well as his  evidence wherein he stated that the appellant was shouting  under the influence of liquor  and abused the deceased and

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as well as the evidence of  PW-9, Mongala Prasad Lala  (Sadhu)  a friend of the appellant in whose house he had  kept his wearing  apparels (mat. Ext. XII & XIII) and  weapon of offence (mat. Ext. XI)  to the effect that the  appellant was under the influence of liquor when he came to  conceal the weapon after the commission of offence.  Based  on the sequence of events it was urged that the appellant  was under the influence of liquor and the injuries inflicted by  him on the deceased was devoid of any intention.           27.     We are unable to persuade ourselves to agree with the  submissions. There is no evidence available on record  as to  the quantity of the alcohol consumed  by the appellant   except the observation of  PW-1 and PW-3 that he was  under the influence of liquor.   No one stated that he was  not in his senses and lost self control. There is no evidence  as regards the degree of intoxication. There is no evidence  of any attending general circumstances to arrive at any  conclusion that the appellant was beside his mind altogether  temporarily at the time of incident.  He was apparently  conscious and fully capable of understanding the  consequences of his act as it is evident that immediately  after the incident he walked the distance to the house of  PW-9, Mongala Prasad Lal (Sadhu) and concealed the  weapon of offence and wearing apparels.  

28.     Prof. Mazumdar (PW-5) found seven grievous injuries  which according to him were the cause of death being ante- mortem and homicidal in nature.  We are required to notice  the evidence of PW-5 with a particular reference to injuries  no. 4 and 7 which according to him  may have been caused  while the victim   was defending himself.   In the  circumstances, it cannot be said that there was no intention  on the part of the appellant and he was out of his senses on  account of intoxication.  The evidence of PW-1 and PW-3  who are eye witnesses to the incident is consistent. Both of  them have seen the appellant stabbing the helpless victim  who was sitting in his own rickshaw and eating his evening  food.  There was no provocation as such caused by the  deceased leading to any sudden attack.   The appellant was  carrying weapon and attacked the deceased, caused  grievous injuries resulting in his death.  The intention on the  part of the appellant can easily be gathered from the  evidence of PW-1 and PW-3 which is supported by medical  evidence.  There is absolutely no reason whatsoever to  disbelieve  their evidence. There is nothing on record   suggesting that at the time the appellant attacked the victim  his mind was so affected by the drink he had voluntarily  taken that he was incapable in forming the intention  requisite for making his act the offence charged against him.  The taking of drink cannot itself excuse the commission of a  crime; and it is not a defence to prove that a man’s mind  was so affected by drink that he more readily gave way to  passion, or that he would not have acted as he did had he  been sober \026 nor will drunkenness be a defence in case of  strict liability, since, if an honest and reasonable mistake by  a sober person cannot afford a defence, a mistake while  drunk cannot do so. (see Vol. II, Fourth Edition, Halsbury’s  Law of England page 26)

29.     We have perused the relevant evidence for our own  satisfaction though the Sessions Court as well as the High  Court upon proper appreciation of evidence found the  appellant guilty of the charged offence punishable under  Section 302 IPC.  Upon appreciation of the evidence we are

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unable to persuade ourselves and agree that the appellant  was devoid of his actual senses and he was unable to  comprehend his action. On the other hand the manner in  which the appellant attacked the deceased resulting in as  many as 7 grievous injuries suggests that the appellant was  quite conscious of the consequences of his act.  The  appellant as is apparent from the evidence had control over  his senses and tried to make good his escape after the  incident in a calculated manner. This is clear from the  evidence of PW-9 that he came immediately after the  incident to conceal his wearing apparels and the weapon of  offence.  It is not possible to accept the theory propounded  by the learned Amicus that due to drunkenness the  appellant lost his senses and self control. The intention  on  the part of the appellant is clearly evident from the evidence  and all attending circumstances.  

30.     The prosecution proved the charge against the  appellant beyond any reasonable doubt.  The Trial Court as  well as the Appellate Court came to the right conclusion in  convicting and sentencing the appellant for the offence  punishable under Section 302 IPC.  

31.     Before parting with the case, we must record our  appreciation of the assistance rendered by Shri Vijay  Panjwani, advocate to the court as learned Amicus Curiae  and we direct  the payment of Rs. 1,500/-  as fee to him.  

32.     The appeal is accordingly dismissed.