Tag: Section 302 in The Indian Penal Code

Supreme Court on Fake Encounter Killing

June 3rd, 2012
Supreme Court of India

Brijlala Pd. Sinha vs State Of Bihar on 13 July, 1998

Author: Pattanaik

Bench: M Mukherjee, G Pattanaik

PETITIONER:

BRIJLALA PD. SINHA

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 13/07/1998

BENCH:

M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRL. APPEAL Nos. 218/98, 279/98 & 280-282/98

JUDGMENT

PATTANAIK,J.

These five appeals are directed against the judgment dated 28.11.1997, of the Patna High Court passed in Criminal Appeal No. 459 of 1996 and Death Reference No. 5 of 1996. All the accused appellants are police officials. All of them were convicted under Section 302/34 IPC and were directed to be hanged till they are dead by the learned Additional Session Judge, Gaya. Accused appellant Dudh Nath Ram, in addition, was convicted under Section 201 IPC but no separate sentence was awarded. The High Court, on appeal, being preferred by the accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal Procedure Code affirmed the conviction of all the accused appellants under Section 302/34, but on the question of sentence while the High Court affirmed the death sentence awarded against Dudh Nath Ram – appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha – appellant in Cr,. Appeal NO. 149 of 1998, and Victor Fedeles – appellant in Crl. Appeal No. 279 of 1998, commuted the death sentence as against accused Dinesh Singh, Deo Narain Ram, Jaikaran Yadav and sentenced them to undergo imprisonment for life, who are the appellants in Criminal Appeal Nos. 280-82 of 1998. The main ground for giving sentence of imprisonment for life as against the aforesaid three appellants is that they were merely the constable and obeyed the commands of their superior officers and, as such, their case would not come within the test laid down by this Court to bring it as a rarest of rare case.

Broadly stated the prosecution case sought to be established through different witnesses is that accused Dudh Nath Ram was the Station House Officer of Barachatti Police Station in the State of Bihar. On the early morning of 5th of December 1993 while Dudh Nath was taking tea Jaikaran informed that a Maruti Van has been speeding up with criminals and there has been indiscriminate firing from the said Maruti vehicle. On getting this information the accused Police Officials immediately left the Police Station to chase the Maruti Van. The Maruti Van, however, was forced to stop on account of a traffic jam. The chasing police officials came near the Maruti Van and started firing at the Van indiscriminately in consequence of which 3 persons from amongst the occupants of the Maruti Van were killed and their dead bodies were then removed in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating therein that as the occupants of the Maruti Van started firing at the police personnel, the police personnel resorted to firing and in course of the occurrence 3 persons were found dead. It may be stated at this stage that prosecution tried to establish a case that the accused police officers after chasing the Maruti Van and finding the van to be immobile on account of traffic jam surrounded the said van and dragged Rajesh and Khedan from the vehicle and demanded a sum of Rs. 1 lakh, but when Rajesh could not accede to the request then he and Khedan were shot dead from the close range and the driver who was sitting on the driving seat was also gunned down. This part of the prosecution case, however, could not be established as none of the prosecution witnesses unfolded this part of the prosecution case. It may be further stated that a written report was submitted to the Superintendent of Police, Gaya on 9.12.1993, alleging therein that the police officials have committed * murder of three persons as their demand of one lakh of rupees could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the investigation of the said case was taken up by the C.I.D. Patna under Government Order and it is on completion of the investigation of the said case chage-sheet was submitted against the accused persons and on being committed to the Court of Sessions the accused persons stood their trial. The accused persons pleaded not guilty and according to them a false case has been foisted. The prosecution examined as many as 65 witnesses and exhibited a large number of documents. The prosecution witnesses who were supposed to unfold the manner in which the incident took place at 71 Mile Post on G.T. Road, namely, PWs 2,4,5,9,10,11,12,17,18,20,22035,40,52,53,54,56,57,60 and 61 all became hostile and were cross-examined by the prosecution. Similarly, PWs 13,15,16,21,30,46,47, and 49 were also tendered by the prosecution cross examined and consequently their evidence could not be pressed into service in establishing the charges against the accused persons. PWs 6,7,8,9,14,19,33,34,38,39,50,51,58,59,62, and 64 are the police personnel examined in this case. PWs 24 and 55 are the formal witnesses to the seizure on the seizure list. There is no dispute that on the date of occurrence of 5.12.1993 at 71 Mile Post at about 7.30 a.m. 3 persons were killed. But in the absence of any direct testimony as to the manner in which they were killed the prosecution case hinges upon the circumstantial evidence. The learned Session Judge relying upon the evidence of PWs 63 and 65 came to hold that deceased Rajesh Dhawan alongwith Khedan Yadav and Vinay Kumar Mishra proceeded from Ranchi to Varanasi in the night of 3.12.1993. On the basis of the evidence of PWs 23,41,42,44,45, and 48 the learned Session Judge came to hold that Rajesh Dhawan had made purchases at Varanasi on 4.12.1993. The witnesses also further revealed that two other persons had accompanied Rajesh Dhawan. PW 65 established the fact that she had a telephonic talk with her husband from Varanasi on 4.12.1993 at 7.00 p.m. On the basis of the evidence of PWs 26,27,28,29,31 and 32 to learned Session Judge came to hold that the vehicle in which deceased Rajesh Dhawan was travelling with other persons developed certain defect and misfiring was noticed at 7.00 a.m. on 5.12.1993. On the basis of the evidence of pWs 7 and 8, who are the two constables present at Barachatti Police Station the learned Session Judge came to hold that early in the morning accused Jaikaran came and informed while Dudh Nath Ram and others were taking tea at the Police Station, that some dacoits are speeding up in a Maruti Van and while speeding up they are also firing from their revolver. Thus the aforesaid prosecution evidence clearly establishes the fact that five accused appellants excepting accused Brij Lala Prasad Sinha moved in a Police Jeep chasing the Maruti Van on being informed that the miscreants are speeding up in a Maruti Van and while so speeding up are indulging in firing from their weapons. The said PWs 7,8 and 9 also stated in the Court that on 5.12.1993, the accused persons returned to Barachatti Police Station with three dead bodies and the damaged Maruti Van No. BR-14b/7407 and this fact is also corroborated by the by the evidence of PWs 58, 59 and PWs 27,28,29,31 and 32. Accused Dudh Nath Ram was the Officer in-charge of Barachatti Police Station. He immediately after arriving at the Police Station got a case registered-Barachatti P.S. Case No. 146/93 stating therein that after chasing the Maruti Van near 71 Mile Post on G.T. Road when they found the van to be stationary they challenged the occupants of the Maruti Van and when the occupants of the said Van started using at the Police personnel, the Police personnel retaliated by firing and in course of such firing 3 occupants of the Maruti Van were killed. This part of the case which could have been accepted as a defence version has not at all been established in as much as there is no iota of material to indicate that the occupants of the Maruti Van had at any point of time fired at the Police officers nor there had been any mark of violence on the Police Van which unhesitatingly point out that false defence plea had been taken by the accused persons more particularly, accused Dudh Nath Ram who was the Officer in-charge of Barachatti Police Station on the relevant date of occurrence. It is significant to notice that though the Officer in-charge accused Dudh Nath Ram is supposed to have made a written report indicating the manner in which the 3 occupants of the Maruti Van were killed in an police encounter, but such written statement or the so called FIR did not reach the higher officers of the Police Department and in fact from the evidence of PWs 58 and 64 the learned Sessions Judge came to hold that until arrival of the higher officers of the State no FIR was lodged by accused Dudh Nath Ram. On examining different seizure lists made by Dudh Nath Ram on the relevant date of occurrence and the inherent inconsistencies in those seizure lists the learned Session Judge came to the conclusion that in order to suppress the truth and to cover up the truth the seizure list was prepared later on as an after thought which indicates the guilty mind of the accused persons. In the aforesaid seizure list two country made pistols and two live cartridges were alleged to have been seized from the Maruti Van and those arms and ammunitions had been sent to Forensic Science Laboratory, Patna, for examination. The evidence of PW 34 and his reports Exhibit 16 and 16/1 clearly indicates that the cartridges found near the dead bodies of the deceased persons could not be fired from the country made pistols seized near the dead bodies and those pistols were defective. The report also further revealed that the said pistols had never been used. The aforesaid evidence clearly belies the defence theory that the occupants of the Maruti Van were speeding up by firing from their arms on the relevant date. The dead bodies of the 3 occupants of the Maruti Van were sent to the Gaya Hospital for post mortem examination and doctor PW 1 conducted the autopsy on the dead bodies of the said 3 persons. The post mortem reports are Exhibits 1, 1/1 and 1/2. The evidence of PW 1 clearly establishes the fact that the appearance * blackening of margins on the wounds on the bodies of the deceased persons is suggestive of the fact that the fire arm has been used approximately within 18 inch. The learned Session Judge, therefore, came to the conclusion that the deceased persons had been shot at from a very close range. The learned Session Judge also relied upon Exhibits 13/22, 13/23 and 13/24 which happened to be the photographs of the deceased persons and on that basis read with the evidence of doctor PW 1 came to hold that it cannot be the result of an encounter in which case there should have been some distance between both the parties but in the case in hand the distance between the parties was very close. The evidence of PWs 58 and 59 who had visited the place of occurrence on 6.12.1933 alongwith Dudh Nath Ram, Victor Fedles and Brijlala Pradsad establishes the fact that they did not find any mark of violence at a distance of 25 meters from the G.T. Road in the north side where it was alleged one dead body was found in the bush. They also did not find any mark of blood or mark of violence. The learned Session Judge analysed the evidence of PWs 58, 59 and 62 and then held that the story of encounter as alleged by the defence could not be believed. Exhibit 17/1 is the Register indicating the supply of fire arms to the accused persons Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fedles. PW 38 examined by the prosecution indicated in his evidence that the rounds of cartridges which he had supplied to the aforesaid accused police officers. Even the Register Exhibit 18 series corroborates the aforesaid factum of supply of cartridges. Later on the accused persons have surrendered their arms and ammunitions together with empty cartridges from which the learned Sessions Judge came to hold that the accused persons must be held to have utilised those cartridges in killing the 3 persons who were the occupants of Maruti Van on the relevant date occurrence. The photograph of Maruti Van BR- 14B/7407 in which the deceased persons were travelling clearly demonstrated the fact that the glasses of the said Van were broken and there were marks of firing on the Van. On the other hand, there was not an iota of damage to the vehicle in which the police officers were chasing and the learned Sessions Judge, therefore, came to the conclusion that the firing was made only by the accused persons and not from the side of the deceased persons. The learned Session Judge relying upon the evidence of PW 58 came to the conclusion that even though the Supdt. Of Police, Gaya had ordered that PW 58 would investigate into the case but Dudh Nath Ram never handed over the charge of investigation to him for quite some time. His evidence further indicated that when he searched for the Station Diary and asked about it from Munshi Shabir Ahmad, the Station Diary was not available at the Police Station and he was told that Dudh Nath Ram had taken away the same. Even the Station Diary was not available on 8.12.1993 when PW 58 wanted the same. Non availability of the Station Diary at the Police Station and the reply of Munshi Shabir Ahmad to PW 58 that the same has been taken away by the accused Dudh Nath Ram was relied upon by the learned Session Judge as an additional link in the chain of circumstances to establish the case beyond reasonable doubt and in completing the chain. The learned Session Judge also relied upon the evasive answer which the accused persons had given in their examination under Section 313 Cr. P.C. and ultimately came to hold that these police officials have brutally fired at the stationary vehicle on account of which 3 occupants of the vehicle were killed. After noticing the law on the question of circumstantial evidence and on the circumstances established in the case by the prosecution witnesses the learned Sessions Judge came to hold that there is no hesitation in mind that the accused persons committed brutal murder of 3 innocent persons who had no criminal antecedents and rather they were civilised persons of the society. The learned Session Judge, therefore, held the accused persons guilty under Section 302/34 IPC. Though accused persons stood charged under Section 379/149 but the learned Sessions Judge came to hold that the said allegations of theft of Rs. 20,000/- had not been satisfactorily proved by the prosecution and as such he acquitted the accused persons of the said charge. So far as the charge under Section 120B IPC is concerned the learned Sessions Judge came to hold that the prosecution had failed to prove said charge beyond any reasonable doubt and acquitted them of this charge. So far as the charge under Section 201 IPC is concerned on an analysis of the prosecution evidence the learned Sessions Judge came to hold that the accused Dudh Nath Ram alone is guilty of the said offence and other accused persons cannot be held guilty of those charges and as such they were acquitted of the said charges. Coming to the question of sentence the learned Sessions Judge was of the opinion that 3 innocent civilians having been killed brutally in the hands of the accused persons who are police personnel and on whose shoulder the safety of the civilians lies and who are deemed to be the protector of the society and they have killed the 3 civilians without any provocation and resistance the case should be held to be one of the rarest of rare cases in which the accused persons deserve capital punishment and accordingly directed that each of them should be hanged till they are dead.

On appeal by the accused persons and a reference having been made for confirming the sentence of death under Section 366 of the Code of Criminal Procedure, the High Court by the impugned judgment came to the conclusion that the prosecution in this case has been handicapped in adducing the evidence regarding the actual manner of occurrence and also regarding the participation of individual accused in the commission of the crime for which they have been charged, tried and convicted. But on re-appreciating evidence establishing the circumstances, the High Court agreed with the conclusion of the learned trial Judge that the prosecution has been able to establish that the accused persons brutally murdered three occupants of the Maruti Van by resorting to fire from a close range. The High Court further came to the conclusion that it appears to be the absurd proposition and it indicates that there has been good deal of fabrication and manipulation for distorting and destroying the evidence in this case from the very beginning and it further appears that the police personnel in this case were very much conscious of this fact that innocent persons have been killed and in order to save their neck, they started making preparation of their defence at that very stage. On re-appreciation of the evidence the High Court agreeing with the learned Sessions Judge held that the stand of the defence that the occupants of Maruti Van BR- 14B/7407 had opened fire at the police party necessitating opening of fire by the police party at the Maruti Van is wholly falsified. The further plea that two country-made pistols were recovered near the dead body of the deceased is also falsified from the report Ex. 16/1. Ultimately, the High Court came to the conclusion that the victims have been killed by the police in a show of fake encounter and it appears that the circumstances leading to this occurrence are most unfortunate for a civilized society and the police force is meant for protecting the law abiding citizens from anti-social elements and to come to the rescue of the citizens of onslaught from the mighty and influential persons but the role of police in this case appears to have been reversed. On a scrutiny of evidence, the High Court also came to the conclusion that it appears to be true that actually the killing had taken place in a deliberate manner because the deceased failed to fulfil their demand of money. The High Court ultimately came to the conclusion: “it is thus clear that all the six appellants in this case have participated in the commission of this ghastly and gruesome murder which was committed in a most indecent manner which was likely to shake the confidence of people in the law and order machinery of the State.” Having come to the aforesaid conclusion and going to the question of sentence the High Court was of the view that the sentence of death awarded against three accused, namely, Dudh Nath Ram, Brijala Prasad Sinha and Victor Fideles does not require any interference but so far as the sentence of death awarded against the other three accused, namely, Dinesh Singh, Deo Narayan Ram and Jaikaran Yadav are concerned, they being subordinate policemen and were acting under the order and direction of their superiors, the extreme penalty of death sentence cannot be awardee to them, and therefore, it commuted their sentence to life imprisonment. Thus by the impugned judgment of the High Court in case of 3 of the accused persons, namely, Dudh Nath Ram, Brijlal Prasad Sinha and Victor Fideles the sentence of death was confirmed and in case of other three accused persons the sentence of death was commuted to life imprisonment.

Mr. Rajinder Singh, learned senior counsel appearing for appellant Dudh Nath Ram, Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lala Prasad Sinha, Mr. V.A. Mohta, learned senior counsel appearing for appellant Victor Fideles, assailed the conviction of their respective clients, inter alia on the ground that in the absence of any direct evidence as to the occurrence at 71 Mile Post and the prosecution having relied on the circumstantial evidence, the circumstances proved cannot be held to be a conclusive nature so as to exclude every hypothesis but that of guilt and as such, the conviction under Section 302/34 is wholly unwarranted. It was further contended that the ballistic expert’s report being to the effect that the revolvers of these police officers had not been used and the post mortem report of the three deceased persons having established that death occurred on account of injuries caused by pellets which are from the rifles used by the constables, the learned Session Judge and the High Court committed serious error in convicting the police officers under Section 302/34. On the question of sentence it was contended, that even if a conviction under Section 302/34 can at all be sustained but the case cannot be held to be a rarest of rare case warranting extreme penalty of death. According to the learned senior counsel the High Court as well as the learned Session Judge have been swayed away by the fact that the case is a sensational one in the State of Bihar as three innocent citizens have been killed from the gun shots of the police officers. It the sensation and emotion of the Courts are taken out from the purview of consideration, of the evidence adduced, no aggravating circumstances have been established so as to inflict the extreme penalty of death sentence. It was also urged by the learned senior counsel that the Courts below committed error in coming to the conclusion that the police officials must have used their revolvers from the mere fact that certain cartridges have been supplied to them but the number of cartridges deposited is less than the number of cartridges supplied. According to the learned senior counsel there is not an iota of material to establish any prior planning or meeting of mind of the accused police officers and the prosecution evidence clearly establishes that since Jaikaran stated That some dacoits are fleeing away in a Maruti Van the police officials chased them and then came back with the dead bodies of three persons and, therefore, there is no material evidence to attract Section 34 even if a common intention could develop at the spur of the moment. Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lal Prasad Sinha, in addition, to the aforesaid arguments also contended that ASI Brij Lala did not go with accused Dudh Nath Ram as has been indicated by PWs 7 and 8. He went in a private jeep which had been kept at the Police Station and the prosecution is guilty of suppressing the evidence of the said driver of the jeep. There is no evidence of any ballistic expert that the revolver of Brij Lala was used on the date of occurrence and merely for non-explanation of 9 rounds of cartridges no conclusion can be arrived at that those 9 rounds of cartridges had in fact been used at 71 Mile Post, particularly when there has been no seizure of such cartridges from the place of occurrence. According to Mr. Lalit, learned senior counsel it has no doubt been established that the dead bodies of three persons were brought to the Police Station in the jeep in which Brij Lala had gone but that by itself cannot bring home the charge under Section 302/34 as against accused Brij Lala Prasad. Mr. Lalit, learned senior counsel also contended that the examination of accused Brij Lala under Section 313 Cr. P.C. has been perfunctory and the relevant incriminating materials have not been put which has caused serious prejudice and, therefore, the conviction of accused Brij Lala Prasad under Section 302/34 is vitiated.

Mr. Mohta, learned senior counsel appearing for Victor Fideles in addition to the arguments advanced by Mr. Rajinder Singh, learned senior counsel contended that the plea of alibi raised by accused Victor ought to have been accepted, since admittedly, he had been transferred since July 1993 to Gaya and the Courts below committed error in rejecting the pleas of alibi. He also contended that the cartridges have been issued to Victor on 19.11.1992 and the cartridges deposited in Malkhana was on 30.12.1993 and any shortage of cartridges during this period of more than a year would not lead to the conclusion that the cartridges were used on the date of occurrence. According to Mr. Mohta, learned senior counsel, positive evidence of the ballistic expert being the revolver of Victor had not been used the Courts below committed error in convicting him under Section 302/34 even if it is established that he had accompanied Dudh Nath Ram from the Police Station in chasing the Maruti Van, and at any rate the award of extreme penalty of death, according to Mr. Mohta, learned senior counsel, is wholly unjustified.

Mr. Sibbal, learned senior counsel appearing for the three constables attacked the judgment of the High Court on the ground that it proceeds on mere conjectures and not on legal evidence adduced in the case. According to Mr. Sibbal, the learned senior counsel the circumstances established through prosecution evidence do not unhesitatingly point out towards the guilt of the accused persons and, therefore, the conviction of the accused appellant under Section 302/34 is unsustainable in law.

Mr. Sinha, learned senior counsel appearing for the State of Bihar, on the other hand, contended that no doubt, there is no direct evidence as to the manner in which three occupants of Maruti Van were killed and all the prosecution witnesses who were to establish the same turned hostile and does not support the prosecution case. But according to Mr. Sinha, learned senior counsel the circumstances established in the case in hand are sufficient to prove the charge beyond reasonable doubt and the entire chain of circumstances is complete, and therefore, no error has been committed in finding the accused appellants guilty of offence under Section 302/34. According to Mr. Sinha, learned senior counsel, the chain of evidence as against the accused persons is so complete that it does not leave any reasonable ground for a conclusion consistent with innocence of the accused and on the other hand, it only points out that within all human probability it is the accused persons who are the perpetrators of the crime who have killed the three innocent persons who were occupants of the Maruti Van on the fateful day. According to Mr. Sinha when the dead bodies of three innocent persons were brought to the Police Station which has been established beyond reasonable doubt by the evidence of PWs 7 and 8 and the explanation offered by accused persons that there was an encounter in which these persons have been killed has not been established at all and no other explanation is forthcoming in such a case an additional link is established in the chain of circumstances to complete the chain and, therefore, the High Court was wholly justified in recording a conviction under Section 302/34 IPC. Mr. Sinha, learned senior counsel also urged that looking at the brutality with which three innocent persons were murdered from a close range by firing at them by police officers the High Court was justified in affirming the death sentence as against three accused persons and this Court should not interfere with the said sentence of death. According to Mr. Sinha, learned senior counsel, the evidence of PWs 7 and 8 clearly establishes the fact that Jaikaran came and narrated that Some miscreants are speeding on a Maruti Van and are simultaneously firing from the said vehicle and on hearing the same all the accused persons except accused Brij Lala Prasad moved together being fully armed with their respective revolvers and rifles. The prosecution evidence also is categorical to the fact that the speeding Maruti Van was forced to stop at 71, Mile Post on account of traffic jam. The evidence of PWs 7 and 8 further indicates that the police party headed by Dudh Nath Ram returned back with three dead bodies on the private jeep in which Brij Lala Prasad had proceeded to the place of occurrence after Dudh Nath Ram and others had left. The prosecution evidence also further establishes the fact that the Maruti Van was found to be having marks of bullets which establishes the fact that the police party had fired at the Maruti Van. The Inquest Report prepared by Dudh Nath Ram at 8.00 a.m. at the Police Station Exhibits 3, 3/1 and 3/2 indicates that Dudh Nath Ram knew the names of the victims and, therefore, it is not a case of unknown persons fleeing away on a Maruti Van as deposed to PWs 7 and 8. Though the prosecution evidence indicates that from the scene of offence some arms and ammunitions were recovered but the report of the Forensic Science Laboratory Exhibit 16 establishes the fact that those arms had only been implanted as those were not in a condition to be used. According to Mr. Sinha, learned senior counsel, the prosecution evidence indicating replacement of Exhibit 7 by its copy to office of CID suggests the guilty mind of accused Dudh Nath Ram. The learned senior counsel also urged that the evidence of PW 58 clearly indicates that pieces of bones and blood marks were found from the Maruti Van. Then against the Kurta and Pyjama of deceased Rajiv on being examined was found to have been shot at with copper and lead bullet as per exhibit 16/2. According to the learned senior counsel PW 38 establishes the fact that revolvers and rifles were entrusted to the accused persons and these accused persons also deposited their revolvers and rifles as well ass the cartridges and no explanation was offered for the shortage of cartridges. Mr. Sinha, learned counsel also submitted that the post mortem report exhibit 1 series as well as the evidence of PW 1 clearly establishes the fact that firing at the deceased had taken place from a very close ranges. Dudh Nath Ram, in addition, made an extra judicial confession to PW 25. Mr. Sinha also submitted that Statement recorded by Dudh Nath Ram contains an admission on his part that as there was an encounter the police party fired at the Maruti Van and ultimately three people were killed but the so called encounter is falsified by the fact that the police jeep did not have a single mark of violence. On these circumstances established by the prosecution evidence the only conclusion that can be arrived at is that the accused persons mercilessly fired at the Maruti Van in consequence of which three innocent persons were killed, and therefore, all of them could be held liable under Section 302/34 IPC. On the question of sentence Mr., Sinha, learned senior counsel submitted that three officers have been rightly awarded the death sentence and the High Court perhaps was justified in commuting the sentence of death to imprisonment for life in case of three subordinate police officers who had obeyed the commands of their superiors.

Before we examine the correctness of the rival submissions in the light of evidence adduced and the circumstances established, it would be appropriate to notice one feature in this case, namely, the examination of the accused persons under Section 313 Cr.P.C. has been highly perfunctory. In course of hearing, therefore, we had called upon the counsel appearing for the accused persons to indicate whether they would prefer the matter being remitted to the Sessions Judge for proper examination of the accused under Section 313 Cr.P.C. by bringing to their notice all the relevant incriminating material against them which the prosecution seeks to rely upon. But all the counsel appearing for different accused persons unanimously state that they would not like the matter to be remanded again in view of protraction of the litigation since they feel that no prejudice can be said to have been caused to the accused persons for such a perfunctory examination of the accused under Section 313 Cr. P.C. In view of the aforesaid State of affairs we proceed to examine the correctness of the rival submissions at the Bar.

As has been stated earlier there is no evidence to indicate the manner in which the three persons in the Maruti Van were killed. Conclusion on the same, therefore, has to be arrived at from the circumstantial evidence. In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances should be conclusive in nature all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused [See (1992) 2 SCC 300]. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decision of this court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. It is not necessary to delve into any further, on the law on the subject which has now been crystallised by several decisions of this Court. Bearing in mind the aforesaid principles let us examine the circumstances said to have been proved by the prosecution by unimpeachable evidence. Since three of the appellants have been sentenced to death by the learned Sessions Judge and said sentence had been affirmed by High Court, we thought it appropriate to examine the reliability of the prosecution evidence and the circumstances so proved by such evidence to find out whether all the links in the chain are complete or not. PWs 7 and 8 are the two Constables, who had been posted at Barachatti police station on the relevant date of occurrence. These two witnesses have been believed by the learned Sessions Judge as well as by the High Court and nothing has been pointed out to us in this Court to discard their testimony, in fact no argument has been advanced on that score. According to PW7 on the early morning of 5th December, 1993, while Dudh Nath Ram and Victor were at the police Station, Jaikaran Yadav came there and said that criminals are moving ahead firing shots. Getting this information the Officer In-charge, Dudh Nath Ram, Victor and two Constables and a Havildar went on a Maruti Van and Brij Lala later on went by a private jeep which used to remain at the police station. Further evidence of PW7 is that when these officers returned back to the police station they had brought three dead bodies in the jeep with them and they had also brought one Maruti Van by toeing. This evidence of PW7 has been fully corroborated by PW8 who was also posted at the police station on the date. On the evidence of the aforesaid two witnesses it can be safely held that the prosecution has established beyond reasonable doubt that all the police officers excluding Brij Lala Prasad on getting information from Jaikaran went together in a Maruti Van with their arms and ammunitions chasing the alleged criminals and then returned back with three dead bodies as well as another Maruti Van. The evidence of PW7 further establishes the fact that the Maruti Van which had been brought by toeing was found to be damaged and blood marks were also seen on the said vehicle. He further stated that the dead bodies brought by the police people had bullet injuries on them. The prosecution evidence clearly establishes the fact that the speeding vehicle had to stop at 71 Mile Post on account of a traffic jam and the police personnel could easily approach the said vehicle, which was immobile. It is also established beyond reasonable doubt that the vehicle in which the deceased persons were moving had several bullet marks at its body and pieces of bones and blood marks has also been found in the said vehicle as stated by PW – 58.

So fat as accused Dudh Nath Ram is concerned, he was the officer in-charge of Barachatti Police Station and he made several fabrications and manipulations which the High Court itself has found and his own statement which is Exhibit 25/1 clearly indicates that the police personnel resorted to firing when the occupants of Maruti Van started firing at them. The statement that occupants of Maruti Van started firing at the police personnel has been falsified by the fact that the police vehicle did not have a single mark of bullet on its body. Then again the two country made pistols which were supposed to have been seized from the Maruti Van by Dudh Nath Ram under Exhibit 17/1 had been sent to the ballistic expert for examination and the report of the expert Exhibit 19/2 was that it was not at all in fit condition to be used. It is further established on examination of the cartridges which had been sent to Forensic Science Laboratory supposed to have been used from the country made pistols by the occupants of the Maruti Van that those cartridges have not been fired from the country made pistols which clearly falsifies the statement of Dudh Nath Ram that occupants of Maruti Van had opened fire at the Police party which necessitated the opening of fire by the police party itself. That part of the statement of Dudh Nath thus having been falsified the further admission of Dudh Nath that police party fired at the Maruti Van remains and can be utilised as against Dudh Nath as an admission, though the other accused persons will not be bound by any such admission of Dudh Nath. Cloths seized from the Maruti Van as well as the cloths of the deceased from their person had been sen to Forensic Science Laboratory for being examined and the report Exhibit 16/2 indicates user of copper bullets and lead bullets which corroborates the statement of Dudh Nath that police party had resorted to fire at the Maruti Van. When the police personnel left the Police Station with arms in their hands and returned to the Police Station with three dead bodies, it was for them to explain under what exact circumstances three people were killed. The exact Circumstances pleaded in defence by Dudh Nath Ram to the fact that when occupants of Maruti Van started firing at the police party the police party also fired at them has been belied, as already discussed. Non-explanation of the members of the police party indicating the circumstances under which three people were killed is an additional link in the chain of circumstances completing the chain to indicate that three people were killed on account of firing by the police party. In this connection it would be appropriate to notice that the post mortem examination held by PW 1 through the post mortem reports Exhibit 1 series as well as the oral evidence of PW 1 and his findings unequivocally indicates that the police party resorted to firing at the three deceased persons from a very close range. This also runs counter to the defence case that it is an encounter in which the police personnel resorted to firing when the occupants of the Maruti Van started firing at the police personnel. In addition to all these circumstances unerringly pointing to the fact that three people were killed on account of firing from the police part, the conduct and behaviour of Dudh Nath Ram in taking away the Station Diary Book from the Police Station, which was made available only on 9.12.1993, which is also established from the evidence of PW 58 and the conclusion of the High Court that there has been a good deal of fabrication and manipulation in distorting and destroying the evidence from the very beginning goes a long way to establish the culpability of accused Dudh Nath Ram. It is true that on the circumstances proved the conclusion is irresistible that three occupants of Maruti Van were killed at 71 Mile Post on account of firing from the police personnel, but when the police personnel left the Police Station on being informed by jaikaran that miscreants are speeding up in a Maruti Van they had no intention of killing those persons. At least there is nothing in the evidence of PW 7 and 8 to indicate that the police personnel left the Police Station with the intention of killing the miscreants. The question, therefore, arises whether all the police personnel can be held guilty by taking recourse to Section 34 of the Indian Penal Code in the killing of the three occupants of the Maruti Van or only some of them can be held responsible? The liability of one person for an offence committed by another in the course of a criminal act perpetrated by several persons will arise under Section 34 of the Indian Penal Code only where such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention will, of course be difficult to get and such intention can only be inferred from the circumstances. But the existence of a common intention must be a necessary inference from the circumstances established in a given case. A common intention can only be inferred from the acts of the parties. Unless a common intention is established as a matter of necessary inference from the proved circumstances the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt that a meeting of minds and a fusion of ideas had taken place amongst difference accused and in prosecution of it the overt acts of the accused persons flowed out as if in obedience to the command of a single mind. If on the evidence there is doubt as to the involvement of a particular accused in the common intention, the benefit of the doubt should be given to the said accused person. There is no dispute with the proposition that a common intention can develop at the spur of the moment and in the case in hand in view of the evidence of PWs 7 and 8 there being no intention to kill the occupants of Maruti Van when the police personnel left the Police Station on being informed that miscreants are speeding up in a Maruti Van, such a common intention could have developed at 71 Mile Post but the question for consideration is what is the evidence in the present case to indicate that in fact such common intention had developed at 71 Mile Post and further what are the overt acts committed by some of the accused persons to rope in all the police officers, as has been stated earlier. All the accused persons excepting Brij Lala Prasad left together in a vehicle with their arms and ammunitions on being informed that some miscreants are speeding up in a Maruti Van. Dudh Nath Ram was the Station House Officer of Barachatti Police Station. The three police officers, namely, Dudh Nath Ram, Victor Fedels and Brij Lala Prasad were armed with revolvers which has been established from the entries in the Register of Arms and ammunitions maintained in the office and Exhibited as Exhibit 18 series. The other 3 constables had been supplied with rifles and after the incident those rifles had been seized. Report of the Director of Forensic Science Laboratory Exhibit 16/6 indicated that the 303 calibre rifles bearing nos. 35893, AA-0511 and 28896, which had been supplied to the three constables were in working order and can be used for effective fire arms. As a result of microscopic examination of fired shells it was concluded that the fired shells had been fired from the three rifles. So far as the three revolvers which had been supplied to the three police officers, namely, Dudh Nath Ram, Victor and Brij Lala Prasad, the report indicated that those also can be used as an effective fire arm but the sign of the firing can not be detected as barriers and chambers had clearly been cleaned after firing. The said report also indicated that the firing had been done at least 8 rounds on the Maruti Van through 303 barrel weapons in downward Direction.

From the post-mortem report it further transpires that from the dead bodies of three deceased persons missiles were recovered and on examination of those missiles in the Forensic Science Laboratory it is established that the same had been fired form 303 rifles. This fact establishes that death of three persons occurred on account of firing from 303 rifles which had been used by the three Constables but at the same time the vehicle in which the three deceased persons were moving as well as the bundles of sarees inside the vehicle on being examined was found to have been fired at by 38 Revolvers which Revolvers had been given to accused Dudh Nath Ram and accused Victor, as per the statement of PW – 38. From the aforesaid circumstances proved, the conclusion becomes irresistible that at 71 Mile Post the police party resorted to firing from a close range on the Maruti Van and its occupants which was immobile and this firing had been made not only from the rifles possessed by the three constables but also from the revolvers possessed by the police officials though factually the three persons got killed on receiving bullet shots from 303 rifles. It is also established that the cartridges supplied to accused Dudh Nath Ram and Victor and cartridges received back did not tally and there was no explanation for the shortage of such cartridges. These bundle of circumstances clearly established the fact that all the accused persons except accused Brij Lala Prasad who went together with their respective arms and ammunitions in the police vehicle though initially went to chase the miscreants who were told to have been speeding up in a Maruti Van but at 71 Mile Post finding the said Maruti Van stationary, indiscriminately started firing through their respective weapons which ultimately resulted in the killing of three persons and as such intention to finish up the occupants of the Maruti Van developed at the very place suddenly and therefore the two police officers would be equally liable as the three constables notwithstanding the fact that death occurred on account of receiving shots from 303 rifles used by the three Constables. In addition to the aforesaid clinching circumstances against the five police officials excepting accused Brij Lala Prasad, so far as Dudh Nath Ram is concerned the additional links in the chain of circumstances have been established from the fact that he had taken away the stationary entry from the police station, he had prepared seizure list which contradicts each other, he had manipulated the records and documents and he had introduced the story of encounter which has not been established. Such manipulation of the police papers and the special diary entries made by Dudh Nath Ram together with his own statement that the police party fired at the Maruti Van make out a full proof case so far as accused Dudh Nath Ram is concerned. Dudh Nath Ram was the leader of the police party being Station House Officers, he took other police official team and chased the Maruti Van and then ultimately started firing at the Maruti Van from a close range as a result of which these three people killed. From the aforesaid circumstances established by the prosecution, we have no hesitation in affirming the conviction of all the accused persons excepting accused Brij Lala Prasad under Section 302/34 I.P.C. It would be appropriate to consider the arguments of Mr. Mohta, the learned senior counsel appearing for accused Victor that the Courts below had committed error in rejecting the plea of alibi. According to Mr. Mohta, the learned senior counsel Victor Fedles had been transferred to Gaya since July 1993 and the Station Diary of the Police Station indicated that he was on duty from 8.00 a.m. to 2.00 p.m. and it is, therefore, apparent that on the date of occurrence and at that relevant point of time he was present elsewhere in the Civil Lines Police Station and, therefore, the prosecution has failed to establish that he was at Barachatti Police Station on the early morning of 5th December, 1993. When a plea of alibi is raised by an accused it is for the accused to establish the said by positive evidence. Under Section 11 of the Evidence Act collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words the facts proved as such which make the existence of the fact so highly improbable as to justify the inference that it never existed, but such fact has to be established by the person who takes the plea. In other words if Victor by evidence has established that he was present elsewhere at the relevant point of time when the occurrence took place then Victor cannot be held guilty of the offence. But in the present case the presence of accused Victor at Barachatti Police Station on 5.12.1993 has been stated by PWs 7,8,17,19,28,58,59, and 64. Even PW 64 the then S.P. of Gaya also stated about the presence of accused Victor at Barachatti Police Station on 5.12.1993. No attempt was made by Victor to call for and prove the Station Diary of Civil Lines Police Station dated 5.12.1993 to establish that he was present at Civil Lines Police Station on the relevant date. Though the prayer was made in course of hearing of the argument to call for the Station Diary such prayer was rightly rejected by the learned Sessions Judge. There is thus not an iota of material available on record to establish the plea of alibi of accused Victor and under such circumstances the Courts below had no other option than to reject such a plea. We are, therefore, unable to accept the submission of Mr. Mohta, learned senior counsel appearing for Victor that the plea of alibi has been illegally rejected. In our considered opinion, in the absence of any materials such a plea cannot be sustained. The question whether award of extreme penalty of death to accused Dudh Nath Ram and Victor is at all justified will be considered later.

But at this stage it will be appropriate to consider the sustainability of the conviction of accused Brij Lala Prasad under Section 302/34 I.P.C. The two star prosecution witnesses PWs 7 and 8 unequivocally indicate that Brij Lala Prasad did not accompany Dudh Nath Ram and other police officials in chasing the Maruti Van but left the police station after about half an hour by a private jeep which had been stationed at the police station.

As has been indicated earlier when the police party left the police station they had no intention to kill anybody much less the three occupants of the Maruti Van and they had left for the purpose of arresting these persons who were alleged to be miscreants/dacoits and who were state to have been speeding up in a Maruti Van by firing from the same Maruti Van. Neither the ballistic report nor the forensic Science Laboratory report indicate that the revolver that had been given to Brij Lala Prasad had at all been used at 71 Mile Post. It is of course true that when the police party came Brij Lala Prasad also came together and the three dead bodies had been brought by them. The only evidence which possibly can be said to have been established, so far as, accused Brij Lala Prasad is concerned is that there was some shortage of cartridges which had been supplied to him and no explanation had been offered by him. But merely for such shortage of 9 rounds of cartridges, which had been supplied to Brij Lala Prasad, a year before the date of occurrence, it is difficult to come to the conclusion that at 71 Mile Post, Brij Lala Prasad who left the police station half an hour after Dudh Nath Ram and others had left, had at all used his revolver and therefore from the circumstances established against Brij Lala Prasad it is difficult to hold that he also shared the common intention which developed at 71 Mile Post. Not only the prosecution evidence established the fact that he left the police station half an hour after the police party headed by Dudh Nath Ram had left chasing the Maruti van but also there is no iota of material so far as accused Brij Lala Prasad is concerned to establish any meeting of mind of said Brij Lala Prasad with the other police party who resorted to firing at 71 Mile Post. Then again the jeep with which the Brij Lala Prasad went was being driven by a private driver and he would have been the best person to indicate the role played by such Brij Lala Prasad but unfortunately the prosecution has not examined the said driver had not been examined. In the aforesaid circumstances, we entertain considerable doubt as to the involvement of accused Brij Lala Prasad in sharing the common intention of killing three persons in the Maruti Van, and therefore, in our considered opinion he is entitled to the benefit of doubt. We accordingly set aside the conviction and sentence passed against accused Brij Lala Prasad for the offence under Section 302/34 I.P.C. and direct that he be set at liberty unless required in any other case.

Coming to the question as whether for conviction under Section 302/34 I.P.C. the courts below are justified in awarding death sentence to accused Dudh Nath Ram and Victor, we find that the learned Sessions Judge as well as the High Court have not kept in view the principles enunciated by this Court in awarding of death sentence but on the other hand being swayed away by their own emotions on the ground that police officials took recourse to firing to helpless citizens. As has been discussed the death of three persons occurred not from the firing from revolvers held by Dudh Nath Ram and Victor but on account of firing from the 303 rifles held by the three Constables. It is true that the prosecution evidence establishes the fact that firing has taken place from a very close range but that by itself would not make out the case to be a rarest of rare cased justifying the extreme penalty of death. No aggravating circumstances have been indicated so far as accused Dudh Nath Ram and accused Victor are concerned to award the extreme penalty of death sentence. The judgment of the High Court starts with the expression that the case may be treated ” as one of the most sensational trials of the recent years, so far as the State of Bihar is concerned and according to the High Court the murder is a diabolical one because three innocent persons have been killed by the police officers who were supposed to be the protectors of law abiding citizens.” We are constrained to observe that the High Court has not kept in view the several decisions of this Court and has not examined the circumstances proved while considering the question of sentence but on the other hand have been swayed away with the fact that trial is a sensational one, and therefore, the officials must be awarded the extreme penalty of death. We do not find that it is a correct appreciation of the law on the subject dealing with award of death penalty, even if a conviction under Section 302/34 I.P.C. is sustained. The learned Sessions Judge also came to the conclusion that the case can be treated to be a rarest of rare cases as police officials on whose shoulders the safety of citizens lie and are being the protectors of the society are accused for killing of three civilians without any provocation and resistance. From the facts narrated and discussed in this judgment and the circumstances established through the prosecution evidence we do not find any aggravating circumstances as against Dudh Nath Ram and Victor to award death sentence against them merely because they happened to be the police officers and the constables at their comands might have resorted to fire from 303 rifles at their possession. In this view of the matter, while we uphold the conviction of accused Dudh Nath Ram and Victor under Section 302/34 I.P.C., we set aside the sentence of death awarded against them and commute the same to imprisonment for life. In the ultimate analyses, therefore, the conviction of appellant Brij Lala Prasad under Section 302/34 I.P.C. is set aside and he is acquitted of the said charge and is directed to be set at liberty forthwith unless required in any other case. Criminal appeal No. 149 of 1998 is accordingly allowed. conviction of appellant Dudh Nath Ram and appellant Victor under Section 302/34 I.P.C. is upheld but the award of death sentence against them is commuted to imprisonment for life. Criminal Appeal No. 218 of 1998 and Criminal Appeal No. 279 of 1998 are disposed of accordingly. The conviction of appellants – Dinesh Singh, Deo Narain Ram and Jaikaran Yadav under Section 302/34 I.P.C. and the sentence of imprisonment for life is upheld and Criminal Appeal Nos. 280-82 of 1998 stand dismissed.
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Murder Conviction on testimony of interested witnesses

June 2nd, 2012
In this murder case the court was faced with a situation where a grandson murdered his grandfather when the latter tried bringing sense into him not to indluge in rowdyism and to work. The Court convicted on the basis of clinching testimony of 3 eye witnesses/Recovery/Disclousure Statement/Strained Relations and subsequent conduct of the offendor. The Court repelled objections that witnesses were interested witnesses and thus were partisan, because they withstood lengthy cross. Secondly court on account of injuries put the the offence in category of Murder cls.1 of S.300 as it was done With the intention to cause death. The Desire of the accused to cause death of an unarmed man was apparent manifest from the nature and quantum of injuries, some of which were alone and together cumulatively sufficient in the ordinary course of nature to cause death.

Rajasthan High Court

Gura Singh vs State Of Rajasthan on 20 December, 1983

Equivalent citations: 1984 CriLJ 1423

Author: S Byas

Bench: D Mehta, S Byas

JUDGMENT

S.S. Byas, J.

1. By his judgment, dt. 8.3.78, the learned Sessions Judge, Ganganagar convicted the accused Gura Singh under Section 302, I.P.C. and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.

2. Briefly stated, the prosecution case is that deceased-victim Gandasingh had two sons Paharasingh and P.W. 1 Mohansingh. The appellant is the son of Paharasingh. Paharasingh passed away nearly 20 years ago. Gandasingh had forty bighas of agricultural land for cultivation. After the death of Paharasingh he gave thirteen bighas of land to the appellant, thirteen bighas of land to Mohansingh (PW 1) and retained the remaining thirteen bighas or so for himself. Gandasingh lived with Mohansingh (PW 1). As such Mohansingh was cultivating 26 bighas of land. The accused was not serious about the work and gathered a company of bad elements around him. Gandasingh used to ask the accused off and on to be serious at the work and give up the company of bad associates. In the morning of the day of occurrence 6.8.76, Gandasingh asked the accused to give up rowdyism and be careful about the work as he had to support his mother and wife. This led to a wordy wrangle between the two. Mohansingh intervened and the matter got sub-sided. Gandasingh lay down on a cot in his Bethak shown by mark “1” in site plan Ex. P. 2. The accused went away. Mohan Singh (PW 1) went to bring cattle fodder stacked in a Kotha, shown by mark “19” in Ex. P.

2. His wife Mst. Surjeet Kaur (PW 2) started cooking food in the courtyard situate just in front of the Bethak of Gandasingh. While she was cooking the food, the accused came with a ‘Tamba’ (lathi) and struck blows to Gandasingh with it. Surjeet Kaur raised cries. PW 1 Mohansingh and PW 3 Jogendra Singh, who were passing that way, rushed to help the victim. Mohansingh challenged the accused and the accused then went away. There was profuse bleeding from the wounds of the victim. Many persons from the locality gathered there. Gandasingh did not survive and succumbed to the injuries after a little while. P.W. 1 Mohansingh went on foot to Police Station Kesarsinghpur and verbally lodged report Ex. P. 1 of the occurrence at about 1.30 P.M. The Police registered a case and took up the investigation. Narainsingh (PW 9), A.S.I. arrived at the place of occurrence and while he was inspecting the site, PW 8 Prem Narain, Station House Officer, also, reached there. The site was inspected and the site plan was prepared. The inquest report of the victim’s dead body was also prepared. The accused was arrested and in consequence of the information furnished by him whilst under police custody, Tamba was recovered. The bloodstained articles were also seized and sealed. The post-mortem examination of the victim’s dead body was performed at about 10.30 A.M. on 7.8.76 by PW 6 Dr. Ram Lai Beniwal, the then Medical Officer in charge. Government Dispensary, Guiabewala. On examination, the doctor found the following injuries:

1) A contusion on chest wall anteriorly left side upper part 4″ x 1″.

2) A contusion with fracture of the left forearm in its lower part 2″ x 1″.

3) Lacerated wound on right hand dorsally at the base of thumb 2″ 1/4″ x 1/8″.

4) A lacerated wound on right maxilla lateral part 3/4″ x ” x 1/8″.

5) A lacerated wound on the left maxilla below eye lid 2″ x ” x ” with fracture of underlying bone.

6) A contusion on the base of nose ” x ” with fracture of nasal bone.

7) Four lacerated wounds on the forehead (with fracture of frontal bone) 1 x bone deep.

8) Fracture of lower jaw on the right side of mid line and on left side at the angle of mandible with a contusion at the angle of mandible 2″ x 1″.

9) Laceration of membranes of brain at the sites of frontal bone fractures.

10) Laceration of frontal lobes of brain.

In the opinion of Dr. Beniwal, the cause of death of Gandasingh was multiple injuries on the body with fracture of bones and injury to vital organ brain leading severe haemorrhage and shock.

After when the investigation was over, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Karanpur, who in his turn committed the case for trial to the Court of Sessions Judge, Ganganagar. The learned Sessions Judge framed a charge under Section 302, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. Denouncing the prosecution case as fabricated piece of concoction he claimed absolute innocence. According to him, Gandasingh had executed a will in favour of the wife and sons of his uncle Mohan Singh (PW 1). He has been falsely implicated because Mohansingh wants to take the entire land of Gandasingh. During trial, the prosecution examined nine witnesses and filed some documents. In defence, no evidence was adduced by the accused. On the conclusion of trial, the learned Sessions Judge held the charge duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.

3. There is no room for doubt that the death of victim Gandasingh was not natural but homicidal. According to Dr. beniwal (PW 6), as stated above, as many as ten antemortem injuries were found on the victim’s dead body. He further deposed that the injuries were sufficient in the ordinary course of nature to cause death.

4. In assailing the conviction, the first contention raised by the learned Counsel for the accused is that the evidence of the three witnesses viz., PW 1 Mohan Singh, PW 2 Mst. Surjeet Kaur and PW 3 Jogindersingh was not rightly weighed and scanned. It was argued that there was no occasion for PW 3 Jogindersingh to reach the place of occurrence. His services were borrowed by PW 1 Mohansingh to falsely implicate the accused. Jogindersingh was only a chance witness and no reliance could be placed on what he testified. It was further argued that PW 1 Mohansingh was in a Kotha situate nearly at a distance of 250 feet away from the place of occurrence and it was not possible for him to hear the cries of Surjeet Kaur. He, therefore, could not reach the site when the occurrence was taking place. So also, the testimony of PW 2 Mst. Surjeet Kaur could not be believed. She was the wife of PW 1 Mohan Singh and naturally she was at his disposal to state what he wanted her to depose. In reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the testimony of the three witnesses should not be discarded on the ground mentioned above. We have taken the respective contentions into consideration.

5. PW 2 Mst. Surjeet Kaur is the daughter-in-law of the deceased-victim. She stated that at about 9.00 or 9.30 A.M. on the day of occurrence, Gandasingh rebuked the accused for his rowdyism and advised him to be particular about his work. She was then, cooking the food. Accused Gurasingh went to his Kotha. Her husband Mohansingh (PW 1) went in another Kotha to bring cattle fodder from there. Accused Gurasingh came back with a Tamba and started beating Gandasingh in his Bethak. She was cooking food nearly at a distance of 25 feet from there. She raised cries and Jogindersingh (PW 3), who was passing nearby came there. Hearing the out-cries, her Husband Mohansingh (PW 1) also came there. Her husband challenged the accused and the accused ran away taking his Tamba with him. Gandasingh sustained a number of injuries on his person including the head. There was profuse bleeding from his wounds. Meharsingh, Modansingh and many other persons thereafter came. Gandasingh did not survive and succumbed after 15 or 20 minutes. She was cross-examined at length but she remained consistent throughout and stuck on her version that accused Gurasingh inflicted a number of blows to Gandasingh with his Tamba. She refuted the suggestion that she and her husband were not present at the place of occurrence and were away to their field. She also dismissed the suggestion that she and her husband got Gandasingh killed by somebody else and they were falsely implicating the accused for killing him. It is true that she is the wife of PW 1 Mohansingh but her testimony cannot be discarded merely on that count. Her presence on the spot is most natural. It was the time of cooking the morning meals and as such she could not be expected to go to her field, as suggested by the learned Counsel for the accused. Her name has been mentioned in the First Information Report-lodged without any delay.

6. PW 1 Mohansingh is the son of the deceased-victim. He deposed that the accused was not serious about his job and his father used to rebuke him off and on and used to ask him to be more particuar about his job as he had to support his wife and mother. At about 9.00 or 9.30 A.M. on the day of occurrence, his father Gandasingh again asked the accused to be particular about his job. It resulted in verbal wrangling between the two. He intervened and the matter got subsided. Thereafter Gurasingh went to his Kotha and Gandasingh lay on a cot in his Bethak. He (witness) went to a Kotha to bring cattle fodder from there. There he heard the cries of his wife. He rushed to the spot and saw the accused striking blows to Gandasingh with his Tamba. Jogindersingh (PW 3) was also present there. He challenged the accused and the accused ran away taking his Tamba with him. There were multiple wounds on the person of Gandasingh, including on his head. There was profuse bleeding from the wounds. Mohansingh, and Meharsingh and many other persons of the locality came there thereafter. Gandasingh did not survive and passed away after a few minutes. He went on foot to Police Station, Kesarsinghpur and lodged report Ex. P. 1 there at about 1.30 P.M. In cross-examination he denied the suggestion that he and his wife Surjeet Kaur were not present in their house when the occurrence took place and were at their field. He also refuted the suggestion that he has falsely implicated the accused. There is nothing in his cross-examination which may induce us to disbelieve his testimony.

7. It is true that the accused was living separately from PW 1 Mohansingh. The relations between them were not very happy. Mohansingh had lodged a proceeding under Section 107, Cr.P.C. against the accused before this occurrence. But this fact is not sufficient to discard the testimony of PW 1 Mohansingh or his wife PW 2 Mst. Surjeet Kaur. The fact that they are the son and daughter-in-law of the deceased-victim does not detract from the value to be attached to their testimony.

8. PW 3 Jogindersingh deposed that at about 9.00 or 9.30 A.M. on the day of occurrence he was going to the house of Gulabsingh (PW 4) to recover his labour charges from him. The house of Gulabsingh is situate just opposite to that of Mohansingh. When he remained 4 or 5 paces away, he saw that accused Gurasingh took up a Tamba, went to the Bethak of Ganda Singh and started striking blows to him with it. Mst. Surjeet Kaur was there in the house. He and she raised cries. Mohansingh also came there 1 and challenged the accused. The accused thereafter ran away taking the Tamba with him. Many persons came there. The name of this witness has been mentioned in First Information Report. In cross-examination he admitted that a criminal case relating to illicit liquor was pending against him. He denied the suggestion that it was he who had killed Gandasingh at the behest of Mohansingh (PW 1). We find no force in the contention of the learned Counsel that the testimony of this witness should be disbelieved as he has bad antecedents. Simply because some criminal case is pending against him, his testimony does not become incredible. It is true that he was examined by police two days after the occurrence, but that is immaterial specially when his name has been mentioned in the First Information Report which was promptly lodged without any delay. Gulabsingh (PW 4) of course denied that he owed any labour-charges to this witness. But the hostile attitude of PW 4 Gulabsingh does not persuade us to dismiss the testimony of this witness Jogindersingh. We also find no merit in the contention of the learned Counsel that Jogindersingh is only a change witness. He had given reasons as to how he happened to pass in the Courtyard of the victim. A look into site plan Ex. P. 2 will reveal that the house of Gulabsingh (PW 4) is situate just opposite to that of the victim and anybody can pass freely from west to east.

9. The learned Sessions Judge accepted the evidence of these witnesses as true arid on a careful consideration we are unable to take a different view. The evidence of the witnesses should be properly assessed, sifted, scanned, scrutinized and appreciated keeping in view the surrounding circumstances and the background in which the offence is alleged to have been committed. Mere suggestions in cross-examination, however, ingenious are of no evidentiary value unless accepted by the witness or proved by other evidence. There must be something inherent in the statement of a witness to disentitle him to be believed. There is no presumption of perjury against the oral testimony of a witness. But before acting upon such testimony its credibility should be tested both. intriguingly intrinsically and extrinsically. There is nothing inherent in the statement of these three witnesses to disentitle them to be believed. It does not appear from the circumstances that PW 3 Jogindersingh was a chance witness or that his services were procured and purchased by PW 1 Mohansingh to falsely depose against the accused. Gandasingh was living with Mohansingh. He was an old man and it was Mohansingh and the members of his family who were looking after him. It is beyond our comprehension, that Gandasingh would be done to death by Mohansingh or at his behest by Jogindersingh or somebody else. We cannot assume the facts merely on conjectures and surmises as was suggested by the learned Counsel for the accused. In our opinion, the evidence of these three witnesses is beyond reproach. Their testimony is free from suspicion and above board. No risk is involved in convicting the accused on the strength of what they testified on oath.

10. It is true that deceased Gandasingh had made a will of all his agricultural lands including that in possession of the accused in favour of the wife and sons of PW 1 Mohansingh. The wife of Mohansingh has filed a suit on the basis of will against the accused and others after this incident. But it is not sufficient to persuade us that Mohansingh wanted to finish Gandasingh as soon as possible. It was he and his family who were to be benefited by that will. We are, therefore, unable to accept the contention that Gandasingh could be put to death by Mohansingh or by somebody else at his investigation.

11. It was next contended by the learned Counsel that the offence made out is not covered by Section 302, I.P.C. It was argued that when the background in which the offence was committed is kept in mind, it appears that there was an exchange of hot words and abuses between the accused and the deceased-victim. In the First Information Report it was mentioned that an exchange of abuses had taken place between them. It was argued that these circumstances point out that Gandasingh was killed by the accused without premeditation in a sudden fight and upon a sudden quarrel. Learned Counsel tried all his efforts to bring the case within Exception (4) of Section 300, I.P.C. We are again unable to accept his contention. In order to bring a case within Exception (4), it must be proved that the act was done (1) without premeditation, (2) in a sudden fight, (3) in the heat of passion, (4) upon a sudden quarrel and (5) without offender’s taking undue advantage or without acting in a cruel and unusual manner. All these five elements must exist in order to bring the case within Exception (4). If any of them is missing, this Exception cannot be brought into play. Here in the instant case, all these five elements of Exception (4) are completely missing. After a verbal wrangling the accused went and came back with a Tamba. He then struck blows to the victim. There was no fight between him and the victim. The fight implies an exchange of blows or mutual attack by both the parties. Where it is as one-sided affair, there is no fight at all to bring the case within Exception (4). The very word ‘fight’ implies that it is a bilateral act and excludes the case where violence is used by one of the parties.

12. Mr. Garg appearing for the accused strenuously contended that exchange of blows is not necessary to constitute a fight and words may be as provocative as blows. Reliance was placed on certain observations made in Hans Raj Singh v. Emperor AIR 1946 Lah 41 : 47 Cri LJ 234. We are unable to accept the contention. Mere exchange of abuses and hot words (which is even not present here in the instant case) does not constitute fight within the meaning of Exception (4). Where it is all an one-sided affair and only the accused caused injuries to the victim who does not retaliate, there is no fight at all to attract the exception. We are fortified in our view by the observations of their Lordships of the Supreme Court in Bhagwan Munjaji v. State of Maharashtra1978 SCC (Cri) 428 : 1979 Cri LJ 49 and, Mohammad Mytheen Shanhud Hammed v. State of Kerala 1979 SCC (Cri) 1010 : 1980 Cri LJ

192. In face of the pronouncement of their Lordships of the Supreme Court, the view taken by the Lahore High Court cannot be regarded as a good law. It may be mentioned that the view taken by the Lahore High Court is solitary view on the point and has not been followed by any other High Court. Since there was no fight, exception (4) cannot be brought into play for the rescue of the accused. Reliance was also placed on certain observation made in Chamuru Budhwa v. State of Madhya Pradesh and Babulal v. State of Rajasthan 1976 Raj LW 345 : 1977 Cri LJ 59 by Mr. Garg to bring the case within exception (4). It may be stated at once that these two authorities do not cover a case of ‘fight’ as contemplated by Exception (4). These were the cases where only one blow was caused to the victim, and it was taken that it was due to exchange of abuses and hot words. There is nothing so like that in the instant case.

13. We have also examined the contention of Mr. Garg whether the case is covered by exception 1 of Section 300, I.P.C. The facts of the case do not permit us to apply this exception, either. The provocation is an external stimulus which should be objectively gained. Merely uttering abusive words would not amount to grave and sudden provocation. It is true that at times words and gestures may under certain circumstances cause grave and sudden provocation but in the instant case the facts do not disclose any cause of grave and sudden provocation for the accused. None of the three eye-witnesses stated that the victim addressed any abusive words to the accused nor any of them was cross-examined in this light. Of course, there is a reference in the FIR that there was “Gali Galauch” between the victim and the accused but there is no evidence to show that there was really an exchange of abuses between the victim and the accused. Even if we assume that there was “Gali Galauch”, in our opinion, it was not sufficient to cause grave and sudden provocation. Moreover, as has been stated by PW 1 Mohansingh and PW 2 Surjeet Kaur, the victim asked the accused to give up rowdyism and to be particular about his work as he had to support his mother and wife. It was a grand-parent’s advice to a grandson and if the, grandson makes a murderous assault on the grandfather because of his parental advice, we are unable to make out a case of grave and sudden provocation for the accused.

14. It was then argued that the offence made out is not covered by any of the first two clauses of Section 299 or Clauses 1 to 4 of Section 300, I.P.C. The victim was the real grandfather of the accused. He, therefore, could not be attributed the intention to kill him. What can be attributed to him is simply the knowledge. As such the case is covered by Clause III of Section 299 and the offence made out would fall under Clause II of Section 304, I.P.C. We are unable to accept this contention too. The victim was landed as many as ten blows. The frontal bone was found completely fractured. The lower jaw was also found fractured. The injuries were caused to vital organs. In cross-examination, Dr. Beniwal (PW 6) stated that external injury No. 7, which resulted in injuries Nos. 9 and 10, was in itself sufficient in the ordinary course of nature to cause death. The intention of the accused to kill is manifest when he inflicted mortal blows on the head of the victim resulting in the fracture of skull bones. The victim was an old man fully unarmed and defence less. The head injury was found to be sufficient in the ordinary course of nature to cause the death. The case is, therefore, squarely covered by Clause III of Section 300 and the offence made out is punishable under Section 302, I.P.C.

15. We are quite conscious that fouler the crime is, the clearer and plainer ought the proof of it to be. All the probabilities that appear from the evidence and surrounding circumstances should be taken into consideration while judging the question of the guilt and innocence of the accused. The evidence of the three eye witnesses cannot be put at discount when it is judged in the circumstances and background in which the offence was committed. The accused had a grudge against his grandfather who used to rebuke him off and on.

16. No other contention was raised. From what has been discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced.

17. The appeal of accused Gurasingh is consequently dismissed.
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Women convicted of murder on jumping in well with children…

April 15th, 2012
Comment : In this case a women driven to despair and torture jumped into a well with her three children, was convicted u/s 300 (4) for causing death by act with knowledge that such act is so imminently dangerous that it must in all probability cause death. The defence took the specios plea that such act was justified in the facts of the case – i.e there was a circumstantial compulsion – the court turned down the plea – differentiating the case from likes of Emproer v. Dhirajia and convicted for murder – but gave the lesser punishment for life.

Madhya Pradesh High Court

Gyarsibai W/O Jagannath vs The State on 23 October, 1952

Equivalent citations: 1953 CriLJ 588

Author: Dixit

Bench: Dixit, Chaturvedi

JUDGMENT

Dixit, J.

1. The appellant has been convicted by the Sessions Judge of Shajapur of an offence under Section 302, Penal Code, for the murder of her three children and also of an offence under Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to transportation for life under Section 302 Penal Code, and to six months simple imprisonment under Section 309, Penal Code. Both these sentences have been directed to run concurrently. She has now preferred this appeal from Jail against the convictions and sentences.

2. The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years and 1 years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai’s harassment.

3. The facts have been amply established by the prosecution evidence. From the statement of Kaisar Bai and Narayan it is Clear that on the morning of the day ox occurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai, and during this quarrel when Kaisar Bai asked the appellant to leave the house, she left the house with her three children, saying that she would jump into a well. Kaisar Bai also admits that some times Jagannath used to give two or three slaps to the appellant for quarrelling with her. The other prosecution witnesses deposed to the recovery of the bodies of three children and to the rescue of the appellant. There is no eye-witness of the fact that the appellant jumped down the well herself together with her three children. But from the statements of Kaisar Bai, Narayan and the statement of the appellant herself before the Committing Magistrate and the Sessions Judge, I am satisfied that the version given by the appellant in her own statement is correct and that she jumped into the well herself along with her three children in order to escape harassment at the hands of her sister-in-law Kaisar Bai.

4. On these facts the only question that arises for consideration is whether the appellant is guilty of the offence of murder of the three children and of attempted suicide. The learned Sessions Judge has found her guilty under Section 302, Penal Code, but he has not stated under which clause of Section 300, Penal Code, the act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code, which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses 1, 2 and 3 of Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300. Penal Code, which then remains for consideration is the 4th clause. This clause says:

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.

5. It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability, cause death, then the act is not murder as is defined in Clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed “without any excuse for incurring the risk of causing death or such bodily injury”. The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was “without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in Clause 4 of Section 300, Penal Code. Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any Knowledge of the nature of her act.

Every sane person – and in this case we are bound to take it that the appellant was sane – is presumed to have some knowledge of the nature of his act. This knowledge is not negatived by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant’s act of jumping into a well with her children.

The words used in Clause 4 of Section 300, Penal Code are “without any excuse for incurring the risk of causing death or such injury as aforesaid”. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act, then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death or such injury as is likely to cause death. Here there is no material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant’s act is clearly murder under Clause 4 of Section 300, Penal Code.

6. I must, however, notice two cases in which the question of the offence constituted by an act of a woman deliberately jumping into a well with a child in circumstances somewhat different to those present in this case has been considered. The first case is one reported in – Emperor v. Dhirajia ILR (1940) All 647. In this case a village woman left her home with her six months old baby in her arms on account of her husband’s illtreatment; after she had gone some distance from the home, she turned round and saw her husband pursuing her. She became panicky and jumped down into a well nearby with the baby in her arms. The baby died, but the woman survived. On these facts, the learned Judges of the Allahabad High Court held that an intention to cause the death of the child could not be attributed to the woman, though she must be attributed with the knowledge that such an imminently dangerous act as jumping down the well was likely to cause the child’s death.

But the learned Judges held that considering the state of panic she was in, the culpable homicide did not amount to murder as there was an excuse for incurring the risk of causing death. Mst. Dhirajia was thus found guilty under Section 304, Penal Code. It is not necessary to consider whether upon the facts of that case, the conclusion that the woman was guilty of culpable homicide not amounting to murder was justified. But it must be observed that the learned Judges of the Allahabad High Court thought that the fear of her husband and the panic into which she was thrown could be an excuse for incurring the risk of causing death. Here there is no question of any panic or fright of the appellant. It is, no doubt, true, as the learned Judges of the Allahabad High Court say that in assessing what is excuse or is not excuse, we must consider the state of mind in which the accused person was.

But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law’s attitude towards her. The other decision is of the Bombay High Court in – Supadi Lukada v. Emperor AIR 1925 Bom 310. In that case too, a girl of about 17 years of age who was carrying her baby on her back jumped into a well because her husband had ill-treated her and had prevented her from returning to her parents.

The learned Judges of the Bombay High Court held that when the girl attempted to commit suicide by jumping into a well she could not be said to have been in a normal condition and was not, therefore, even aware of the child’s presence and that as she was not conscious of the child, there was not such knowledge as to make Section 300(4) applicable. The learned Judges of the Bombay High Court found the girl guilty under Section 304A. The Bombay case is clearly distinguishable on the facts. In the present case when the evidence shows that the appellant left her home saying that she would jump into a well with her three children, it cannot clearly be held that she was not aware that her children were with her. In my opinion, these two cases are not of much assistance to the appellant.

7. As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into the well, she did so in a conscious effort to take her own life.

8. The appellant has been sentenced to transportation for life under Section 302, Penal Code, This is the only sentence which could legally be passed in this case. But having regard to the fact and circumstances of the case and also to the fact that the appellant though not legally insane was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to the Government to commute the sentence of transportation for life to one of three years rigorous imprisonment. The sentence of six months’ simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate.

9. In the result this appeal is dismissed.

Chaturvedi, J.

10. I agree.
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Transmigration of motive/Transfer of Malice – S.299/300/301 IPC

April 15th, 2012
Comment : A case where a person shoots to kill his adversary but ends up killing his wife – is convicted of murder by aid of S.301 – The Court holds that his malice/intention transferred to the wife of intended victim – it is also pertinent to note that S.299/300 talks about whoever causes death of a person with intention of causing death etc. Here also death was caused of a PERSON with the intention of causing death, the section nowhere makes it an imperative requirement that actual death caused and intention to cause it should be as regards the same person. This construction is further aided by S.301.

Supreme Court of India

Jagpal Singh And Others vs The State Of Punjab on 6 December, 1990

Equivalent citations: AIR 1991 SC 982, 1991 CriLJ 597, 1991 (1) Crimes 177 SC

Bench: S Pandian, K J Reddy

JUDGMENT

1. This criminal appeal is preferred by the three appellants challenging the correctness and validity of the judgment, rendered by the High Court of Punjab & Haryana in Criminal Appeal No. 108/76 on its file convicting the three appellants under Section 302 read with sections. 149, 307 read with Section 149 and 148 of the Indian Penal Code and sentencing each of the appellants to undergo life imprisonment, three years’ rigorous imprisonment and two years rigorous imprisonments respectively. According to the prosecution, these three appellants along with two others on 26.3.1971 at village Govindpura at about 7 or 8 p.m. formed themselves into an unlawful assembly with a common object of causing the death of one Kapur Singh, committed rioting, attempted to cause the death of Kapur Singh and caused the death of Mrs. Surjit Kaur. The Trial Court on the evaluation of the evidence found these three appellants (who were tried separately since they had been absconding for a long time) guilty under all the charges and convicted and sentenced them. The High Court confirmed the judgment of the Trial Court. It is brought to our notice during the hearing of the appeal that the two other accused were separately tried and convicted and sentenced. It is not known as to whether those two appellants have preferred any appeal before this Court or not.

2. To substantiate the charges levelled against these appellants, two eye witnesses were examined, namely, Kapur Singh (PW 2) and Dalip Singh (PW 3). The evidence discroses that these appellants and the other two came to the house of Kapur Singh (PW 2) to attack him and fired shots. But Kapur Singh to save his life went into the house of Udham Singh, husband of the deceased Surjit Kaur. The appellants along with the two other accused went in front of the house of the deceased and fired shots from their weapons. At that time, Surjit Kaur was standing by the side of the door of a room. It is said that one of the shots fired by the first appellant, Jagpal Singh, hit at the deceased who succumbed to the injuries, sustained by her. Though Kapur Singh (PW 2) has admitted that he could not state as to who shot at the deceased, PW 3, Dalip Singh, has deposed that it was the first appellant, Jagpal Singh. The defence has examined the husband of the deceased as DW 1. The husband of the deceased (DW 1) has categorically stated that the deceased was not shot by any one of the appellants and that both the eye witnesses were not in his house at the time of occurrence. But both the Courts below have not placed any reliance on the evidence of Udham Singh.

3. On going through the entire evidence and other connected records placed before us, we are fortified in holding that the first appellant, Jagpal Singh shot at Surjit Kaur even though he aimed at only Kapur Singh. Therefore, under the doctrine of transfer of malice as contemplated under Section 301 of the IPC, Jagpal Singh has made himself punishable under Section 302 IPC (simplicitor). So far as the rest of the appellants are concerned, the allegations are omnibus. On a careful analysis of the entire evidence particularly of Udham Singh, we are of the opinion that it is not safe to convict the other two appellants, namely, Baldev Singh and Gurmel Singh s/o Chanan Singh.

4. In the result, we convict Jagpal Singh alone under Section 302(simplicitor) and 307 (simplicitor) instead of 302 read with Sections 149 and 307 read with 149 IPC and retain the sentence of imprisonment for life and the sentence of three years rigorous imprisonment. The conviction under Section 148 IPC as against this appellant, Jagpal Singh, is set aside. As we have now come to the conclusion that it is not safe to convict the other appellants, we set aside the conviction recorded against these two appellants under Sections 302 read 149, 307 read with 149 and 148 IPC as well the sentences imposed on them therefor. Accordingly, the appeal of Jagpal Singh is dismissed subject to the above modification and the appeal so far as the other two appellants are concerned is allowed.

5. Counsel for the appellants is not able to say as to whether those two appellants have preferred any appeal before this Court or not. Therefore, we extend the benefit of acquittal to Bhupinder Singh and Gurmel Singh s/o Kehar Singh provided they have not preferred any appeal before this Court with regard to this case. In case any appeal is preferred by them challenging their convictions concerning this case is pending or dismissed then the benefit of acquittal extended by us to them cannot be enured.

6. In the result, the appeal of Jagpal Singh is dismissed as indicated above and the appeal in respect of the other two appellants is allowed. As we have now extended the benefit of acquittal to the other two accused, namely, Bhupinder Singh and Gurmel Singh s/o Kehar Singh and their convictions and sentences recorded as against them are also set aside and they are directed to be set at liberty forthwith provided their convictions are not confirmed by the dismissal of SLP, if any preferred by them, or in an appeal or if any appeal is pending before this Court.

7. The bail bonds are discharged.
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for a charge u/s 212 – knowledge of commission of offence sine qua non

April 15th, 2012
Supreme Court of India

Sanjeev Kumar vs State Of Himachal Pradesh on 22 January, 1999

Equivalent citations: AIR 1999 SC 782, 1999 (1) ALD Cri 322, 1999 CriLJ 1138

Author: G Pattanaik

Bench: G P Shah

ORDER

G.B. Pattanaik, J.

1. These three appeals arise out of one Sessions Trial being Sessions Trial No. 9-B/7 of 1990 and were heard together and are being disposed of by this common judgment. Appellant Sanjiv Kumar stood charged under Sections 120B, 302 and 201 IPC. Appellant Kamlesh Tyagi stood charged under Sections 120B, 302 read with Section 120B and 201 IPC. Appellant Lekh Raj Gupta stood charged under Section 120B, 302 read with Section 120B and 212 IPC. It was alleged that all three of them hatched a criminal conspiracy to kill the deceased Rajesh Sharma and in furtherance of the said conspiracy accused Sanjiv Kumar caused murder of the deceased whereafter accused Sanjiv and accused Kamlesh caused disappearance of the evidence of the offence. Accused Lekh Raj is alleged to have harboured accused Sanjiv Kumar knowing him to have committed the offence with the intention of saving him from legal punishment. The learned Sessions Judge on a thorough analysis of the evidence on record convicted accused Sanjiv Kumar under Section 120B, 302 IPC and 201 IPC. He was sentenced to undergo imprisonment for life for the conviction under the first two charges and 7 years R.I. for his conviction of the last charge. In addition, he was directed to pay a fine of Rs. 5,000 for each of the offences with the further direction that the sentences would run concurrently. Accused Kamlesh Tyagi was also convicted under Section 120B, and Section 302 read with Section 120B IPC and was sentenced to undergo imprisonment for life for each of the offences and pay a fine of Rs. 5,000 on each count. She was also further convicted under Section 201 and was sentenced to imprisonment for 7 years and to pay a fine of Rs. 5,000. Accused Lekh Raj was convicted only under Section 212 IPC and was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 5,000, Against their conviction the accused persons preferred two appeals -Criminal Appeal No. 121/93 and Criminal Appeal No. 125/93. The State also preferred two appeals against accused Sanjiv and accused Kamlesh and other against accused Lekh Raj for enhancement of sentence awarded by the learned Sessions Judge. These 4 appeals stood disposed of by the High Court by judgment dated 20th September, 1996, whereunder the conviction and sentence of accused Sanjiv Kumar under Sections 302/120B and 201 was affirmed. Similarly the conviction and sentence passed against accused Kamlesh Tyagi was also affirmed. But, so far as accused Lekh Raj is concerned, though his conviction under Section 212 IPC was upheld but the sentence was modified to the period already undergone. The appeals filed by the State for enhancement of sentence were also dismissed and hence the present appeals.

2. At the outset it may be stated that there is no eye witness to the commission of murder and case accordingly hinges upon the circumstantial evidence. The prosecution case in nutshell is accused Sanjiv Kumar is nephew of accused Kamlesh being her brother’s son. The father of the deceased was at relevant point of time posted as Additional District Attorney-cum-Public Prosecutor at Bilaspur. Accused Kamlesh had 4 daughters. The eldest daughter Chanchal, was a classmate of the deceased and the family of the accused and the family of the deceased were on visiting terms. Both the families of the deceased were on visiting terms. Both the families were residing in the same colony in Bilaspur. Sometimes later the family of the deceased shifted themselves from agricultural colony to Dhora as PW 19 the father of the deceased got an official accommodation at Dhora. The further prosecution case is that deceased had developed some intimacy with Chanchal which was not approved of by the father of the deceased. PW 19 in fact met Kamlesh on one occasion and requested her to refrain her daughter from meeting the deceased. But Kamlesh told PW 19 that he should restrain his son from meeting Chanchal. It was also alleged that several threats were given by Kamlesh and Sanjiv to the deceased. On the fateful day on 25.5.90 a telephonic message was received from PW 1 that the son of the Additional District Attorney has been murdered by somebody with knife which information was entered in Daily Diary Report in the Police Station Sadar Bilaspur. The District Inspector of Police PW 36 transmitted the message on telephone to the Incharge City Police which was received by PW 35 who was directed to proceed to the spot. Said PW 35 then immediately proceeded and at the place of occurrence recorded the statement of Rajeev-PWl which was treated as an FIR, The police then started investigation and after completion of investigation filed the chargesheet as already stated. The accused persons on being committed stood their trial and were ultimately convicted by the learned Sessions Judge, as already indicated. In the absence of any direct evidence relating to the murder of the deceased the learned Sessions Judge as well as the High Court based their conviction on the circumstantial evidence.

3. Learned Sessions Judge relied upon the following circumstances to bring home the charge against accused Sanjiv Kumar.

(i) Sanjiv was seen going in the house of the deceased at about 10.15 a.m. by PW 34 and he was seen coming out of the house of the deceased immediately after the occurrence by PW 1.

(ii) Shortly after the occurrence Sanjiv Kumar went to the house of PW 2 Sapna when his clothes were blood-stained and he requested Sapna to get clothes for being changed from the house of the second accused Kamlesh.

(iii) Conduct of accused Sanjiv Kumar in leaving the place and roaming under suspicious circumstances and on being enquired by PW 22 giving a false explanation.

(iv) Recovery of knife Exhibit P 4 at his residence while in custody.

(v) Recovery of clothes of the accused Sanjiv Kumar which he was wearing at the time of occurrence from the house of Kamlesh which on chemical examination were found to be stained with human blood.

(vi) The medical evidence corroborating that the knife could be used for causing the injury on the deceased and the identification of Sanjiv Kumar by the prosecution witness.

4. On these circumstances the Sessions Judge came to hold that the prosecution case as against accused Sanjiv Kumar has been proved beyond reasonable doubt.

5. So far as accused Kamlesh is concerned, the learned Sessions Judge relied upon the following circumstances for establishing the charges:

(i) Hurling of threats by her against deceased;

(ii) She came to the house of PW 2 Sapna and then sent clothes of accused No. 1 for changing his blood stained clothes;

(iii) her subsequent act and conduct when prosecution witnesses reached her residence;

(iv) her going to the shop of PW 12 and making enquiries about whereabouts of Sanjiv Kumar and giving false explanation that accused No. 1 had been given beating by some boys and was not traceable.

6. So far as accused Lekh Raj is concerned, the learned Sessions Judge came to the positive conclusion that he was not involved in the criminal conspiracy alleged to have been made by accused No. 1 and 2 and, therefore, the charges against him under Sections 120B and 302/120B must fail.

7. But so far as charge under Section 212 IPC is concerned, namely, harbouring accused No. l after commission of the crime the learned Sessions Judge relied upon the fact that Lekh Raj took Sanjiv on his scooter and thereby permitted accused No. 1 Sanjiv Kumar from evading arrest which is sufficient to establish the charge under Section 212 and accordingly convicted him of the same offence.

8. On appeal the High Court re-appreciated the materials on record and being of the opinion that the circumstances found to have been established by the Sessions Judge complete the entire chain for proving the charge against Sanjiv Kumar and Kamlesh upheld the conviction and sentence passed by the learned Sessions Judge. And so far as Lekh Raj is concerned, while the High Court upheld the conviction but modified the sentence to the period already undergone. The High Court in the impugned judgment came to hold:

Therefore, from the chain of circumstances proved on record the only hypothesis which we can think of is that it was accused Sanjiv Kumar who had killed Rajesh, as such, he is guilty of offence under Section 302, but in view of the other circumstances proved on record, if was done by him as a result of conspiracy hatched between him and accused Kamlesh Tyagi.

9. Mr. Lalit, learned senior counsel appearing for accused Sanjiv Kumar contended in this Court that in a case of circumstantial evidence each incriminating circumstance must be proved beyond reasonable doubt and all such circumstances taken together must complete the chain leaving no missing link from which it can be conclusively said that it is the accused who is the perpetrator of the crime and nobody else, and applying this principle to the circumstances sought to be established by prosecution it cannot be held that the prosecution case as against accused Sanjiv Kumar has been proved beyond reasonable doubt. According to the learned Counsel unless and until various links in the chain of evidence led by the prosecution have been proved which would unhesitatingly point to the guilt of the accused the prosecution case cannot be held to have been established. It is the further submission of Mr. Lalit learned senior counsel that all the links in the chain must be conclusively established by cogent and unimpeachable evidence. The learned Counsel submitted that the circumstantial evidence must be of a conclusive nature and the circumstances must not be capable of duality of explanation. In elaborating this submission Mr. Lalit, learned Counsel placed before us the evidence of PW 34 and PW 1 both of whom proved the two most vital pieces of evidence and pointed out several infirmities and contended that if the evidence of these two witnesses are unreliable and cannot be taken into account then whatever may be the residue of the evidence the prosecution case cannot be said to have been established beyond reasonable doubt as against accused Sanjiv Kumar. On the question of charge under Section 120B of the Indian Penal Code Mr. Lalit, learned senior counsel submitted with force that there is hardly any material on record to establish the aforesaid charge and both the learned Sessions Judge as well as the High Court committed serious error in recording a finding that the charge under Section 120B has also been established beyond reasonable doubt. The learned Counsel submitted with force that the necessary ingredients for the offence under Section 120B being a party to a criminal conspiracy and in the absence of an iota of material in support of the same the conviction under Section 120B or Section 302 read with 120B cannot be upheld. According to Mr. Lalit the only circumstance for establishing the charge under Section 201 IPC so far as accused Sanjiv Kumar is concerned, is changing of clothes and handing over the same to PW 2 for being handed over to accused Kamlesh and on this circumstance even if it is held to have been established the offence cannot be said to have been proved beyond reasonable doubt.

10. Mr. Jitender Sharma, learned senior counsel appearing for accused Kamlesh reiterated the submissions made by Mr. Lalit, so far as the charges under Section 302 read with Section 120B Indian Penal Code is concerned. According to the learned Counsel neither the materials on record established any prior meeting of mind between Kamlesh and Sanjiv Kumar nor any of the circumstance established in the case would fasten the liability of the offence of murder on accused Kamlesh and, therefore, the conviction of Kamlesh by taking recourse to Section 120B is wholly unsustainable in law.

11. So far as her conviction under Section 201 is concerned, Mr. Sharma contends that the only piece of evidence relied upon by the prosecution in this regard is when the prosecution witness reached her house she protested and wanted whether any search warrant is there and thereafter from her bathroom blood stained clothes of the accused were recovered which at that point of time were being washed and on that circumstance alone the conviction of Kamlesh under Section 201 Indian Penal Code cannot be upheld. Lastly Mr. Sharma urged that even if her conviction is upheld she has already undergone imprisonment for more than 4 years and 8 months and the sentence should be reduced to the period undergone.

12. Mr. Prem Malhotra, learned Counsel appearing for accused Lekh Raj submitted that the prosecution has not led any evidence to come to the conclusion that Lekh Raj knew about the commission of offence of Sanjiv Kumar when he took him on scooter and that being so, his conviction under Section 211 Indian Penal Code is wholly unsustainable.

13. Mr. Kochher, learned senior counsel appearing for the respondents very fairly stated that on the circumstances established by the prosecution it would be difficult to sustain the conviction under Section 120B IPC as there has been no material to prove the alleged conspiracy between Sanjiv Kumar and Kamlesh. The learned senior counsel also fairly stated that the conviction of Lekh Raj under Section 212 IPC may not be sustainable since the materials on record do not justify a finding that Lekh Raj knew about the commission of offence by Sanjiv Kumar when he took him on the scooter and the only item of evidence is that shortly after the occurrence he gave lift to Sanjiv Kumar on his scooter whereafter Sanjiv Kumar remained absconding for some period. But he argued with force that the circumstances established in the case unequivocally proved the charge under Section 302 IPC so far as Sanjiv Kumar is concerned, and Section 201 IPC so far Kamlesh is concerned, and on the materials on record it must be held that these charges have been proved beyond reasonable doubt.

14. To appreciate the correctness of the rival submissions it would be necessary for us to first enumerate the circumstances which can be said to have been established by the prosecution and then examine whether the different ingredients of different offence charged can be said to have been duly established or not?

15. It is apparent from the evidence of PW 34 that on 25.5.1990 at 10.15 a.m. when he had been to the house of deceased Rajesh while Rajesh was alone accused Sanjiv Kumar reached the place and introduced himself as Sanjiv Kumar resident of Dhora and even the deceased also told him the identity of accused Sanjiv Kumar. He also categorically stated that Sanjiv was wearing yellow T-shirt and blue jeans and sports shoes. According to his evidence Rajeev Rawat PW 1 came to his house and told him that Rajesh has been killed by somebody and further he has seen the boy coming out of the house of Rajesh and running who had knife in his hand. He also stated that Rajeev told him that the boy was wearing yellow T-shirt and blue jeans and he replied Rajeev that he also saw a boy in the house of Rajesh and thereafter when they went to the house of the deceased Rajesh they found blood on the floor and Rajesh was lying on the dining chair. Mr. Lalit pointed out to us several omissions from his earlier statement to the police in as much as he had not stated to the police that in his presence Rajiv told the police that he is the same boy who was seen by him running from the house of Rajesh after committing murder. He had also not stated to the police that Rajeev told him about seeing a boy going out of the house wearing yellow T-shirt and blue jeans and those omissions were also duly confronted to him. The question, however, remains as to whether such omissions can be said to be material omissions tantamounting to contradiction and whether on such material omission the evidence of PW 34 should be discarded from the purview of consideration? But having scrutinised the evidence of PW 34 in detail we find it difficult to discard the same from the consideration totally, and in our view, the so called omissions in his earlier statement to police cannot be held to be material ones totally impeaching his evidence. There has been no omission or contradiction relating to the fact that while he was in the house of Rajesh, Sanjiv came there and introduced himself as Sanjiv and even the deceased also introduced Sanjiv Kumar to him. From his evidence it can be safely concluded that Sanjiv was seen in the company of the deceased Rajesh in his house while Rajesh was alone at 10.15 a.m. on the date of occurrence on 25.5.1990

16. The next circumstance which has been relied upon by the prosecution is the fact that PW 1 saw somebody leaving the place of occurrence with knife in his hand wearing yellow T-shirt and blue jeans and said PW 1 identified accused Sanjiv Kumar to be the said person in T.I. parade. It is not the prosecution case that PW 1 knew Sanjiv Kumar, and therefore, unless the identify of Sanjiv Kumar is established to be the person who was seen by PWl to have left the place of occurrence with a yellow T shirt and blue jeans and knife in his hand the said circumstance cannot be of any use. The High Court in the impugned judgment while discussing the identification of Sanjiv Kumar by PW 1 in the T.I. Parade held on 13.7.1990 came to the conclusion that the said T.I. Parade loses its importance and the possibility of his seeing Sanjiv Kumar or his photograph is not ruled out as he was brought to the house of Rajesh on the very next day and used to be taken to the Courts and was also paraded in the bazar of Bilaspur alongwith accused Kamlesh. If the identification of accused Sanjiv Kumar by PW 1 in T.I. Parade held on 13.7.1990 is held to be invalid as has been held by the High Court then the second circumstance to the effect that PWl saw Sanjiv Kumar leaving the scene of occurrence with knife in his hand cannot be said to have been established.

17. The next circumstance which can be said to have been established beyond reasonable doubt through the evidence of PW 2 is that on the date of occurrence accused Sanjiv Kumar with blood stained clothes on his person reached the house of PW 2 and requested her to go to the house of accused Kamlesh and bring a set of clothes for his change and in fact said PW 2 went to the house of Kamlesh and informed her as desired by Sanjiv Kumar. This is a rather clinching circumstance against accused Sanjiv Kumar who was seen by PW 2 with blood stained clothes on his person immediately after the occurrence and nothing has been pointed out to us by Mr. Lalit, learned Counsel to discard this piece of evidence.

18. The next circumstance which can be said to have been established by the prosecution is the alleged search of the house of accused Kamlesh and recovery of blood stained clothes of the accused Sanjiv Kumar from the bathroom which were being washed. This circumstance is established from the evidence of Sapna-PW 2, R.L. Chauhan – PW 7 and Vipan Sharma – PW 11. The relevant seizure list is Exhibit PG. The report of the Chemical Examiner and that of the Serologist is Exhibit PX/2. PW 1, PW 34, and PW 2 categorically deposed that these were clothes which had been used by accused Sanjiv Kumar on the relevant date at the relevant point of time. The report of Chemical Examiner and report of the Serologist indicate the presence of human blood on the wearing apparels of Sanjiv Kumar which were seized from the house of accused Kamlesh and the accused has not offered any explanation for the same in his examination under Section 313 Cr.P.C. From the evidence of PWs 16 and 17 it has been established that accused Sanjiv Kumar while in custody, made a statement in relation to the weapon of offence Exhibit P-4 and pursuant to such statement the knife was recovered under Exhibit PV. The said knife also on chemical examination and serologically tested was found to be stained with human blood. The two Courts of fact have believed the evidence of PWs 15 and 17 and nothing has been pointed out as to why the said evidence should not be relied upon. The aforesaid circumstance also is another clinching piece of evidence as against accused Sanjiv Kumar. On the aforesaid circumstances, being established by the prosecution the conclusion is irresistible that the chain of circumstances so proved is complete and the charge of murder against accused Sanjiv Kumar is proved beyond reasonable doubt. Said accused Sanjiv Kumar, therefore, has to be convicted under Section 302 IPC and for said conviction he is sentenced to imprisonment for life.

19. Coming to the question of charge under Section 120B IPC to establish a conspiracy between accused Sanjiv Kumar and accused Kamlesh, apart from the relationship, namely, Sanjiv was the nephew of Kamlesh the prosecution evidence is totally silent to establish a criminal conspiracy between them for committing the murder of deceased Rajesh. The offence under Section 120B is an agreement between the parties to do a particular act. There is not an iota of material to establish the alleged agreement between accused Sanjiv Kumar and accused Kamlesh. In the absence of such evidence the mere fact that Sanjiv Kumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy. Association of Sanjiv Kumar with Kamlesh being a relation is not enough to establish that both of them entered into a conspiracy to kill deceased Rajesh. In the aforesaid premises, the learned Counsel appearing for the respondent State was right in his submission that the charge of conspiracy cannot be sustained. We accordingly, set aside the conviction of accused Sanjiv Kumar as well as of accused Kamlesh under Section 302/120B of India Penal Code.

20. So far as the conviction of accused Kamlesh under Section 201 IPC is concerned, from the prosecution evidence it is established that when Sapna-PW 2 informed that Sanjiv Kumar is in her house with blood stained clothes Kamlesh was perturbed and by the time Chanchal and Sapna proceeded towards the house of Sapna they met Kamlesh on the way who was returning from the direction of the house of Sapna and requested Sapna to come back so that Kamlesh can give clothes for Sanjiv Kumar which he could change in the house of Sapna. It is also established that she handed over a set of clothes for Sanjiv Kumar which PW 2 Sapna carried. The further circumstance which is established from the prosecution evidence is that when the police with other witnesses knocked the door of Kamlesh who was found in a very perturbed condition and initially resisted the entry of police into her house even though the police said her house would be searched ultimately the blood stained clothes of accused Sanjiv Kumar were recovered from the bath room of her house which had been soaked with water in a bath tub. These two circumstances fully establish the charge under Section 201 IPC, so far as accused Kamlesh is concerned. In the aforesaid circumstances, we have no hesitation in affirming the conviction of accused Kamlesh under Section 201 IPC. But, so far as the sentence is concerned, she has already undergone imprisonment for about 4 years and 8 months, as stated to us in the course of hearing, by Shri Sharma, learned Counsel appearing for accused Kamlesh, and we think that the justice will be fully met if her sentence is modified to the sentence already undergone.

21. So far as accused Lekh Raj is concerned, we do not find an iota of material to indicate that he knew about the commission of offence by accused Sanjiv Kumar when he took him on his scooter and, therefore, the conviction of accused Lekh Raj of the offence under Section 212 IPC is wholly unsustainable in law. It may be stated that to attract the provisions of Section 212 IPC it is necessary to establish commission of an offence, harbouring or concealing the person known or believed to be the offender, and such concealment must be with the intention of screening him from legal punishment. The evidence adduced by the prosecution in this regard is wholly insufficient to establish either of the aforesaid ingredients, though all the ingredients are necessary to be proved. In this view of the matter the conviction of accused Lekh Raj for the offence under Section 212 is unsustainable and, we accordingly set aside the conviction and sentence and acquit him of the charge.

22. In the net result, therefore, the conviction of accused Sanjiv Kumar and accused Kamlesh under Section 302/120B IPC and the sentence passed thereunder is set aside. Accused Sanjiv Kumar, however, is convicted under Section 302 IPC and sentenced to imprisonment for life. The conviction of accused Kamlesh under Section 201 IPC is upheld; but the sentence is modified to the period already undergone. She may be released forthwith unless required in any other case. The conviction and sentence of accused Lekh Raj under Section 212 IPC is set aside and is acquitted of the charge leveled against him.

23. All the appeals are disposed of accordingly.
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Father in law convicted u/s 202 for failure to inform the authorities as to DIL’s suicide

April 15th, 2012
Comment : In this case of unnatural death of a DIL – notwithstanding failure of prosecution to bring home offences 302/306/304B against the accused – convicted the FIL u/s 202 for failure to inform the police – intentional ommission to give information having reason to believe that an offence is committed.

Supreme Court of India

Bhagwan Swarup And Anr vs State Of Rajasthan on 28 August, 1991

Equivalent citations: 1991 AIR 2062, 1991 SCR (3) 820

Bench: Reddy, K Jayachandra

PETITIONER:

BHAGWAN SWARUP AND ANR.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT28/08/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 2062 1991 SCR (3) 820

1991 SCC (4) 54 JT 1991 (6) 309

1991 SCALE (2)414

ACT:

Penal Code, 1860–Sections 302, 201 and 120-B—Charges-Conviction by High Court–Modification of sentence by convicting accused no. I u/s. 202. IPC for making illegal omission to inform the authorities and ac- quitting the accused of the offences by Supreme Court u/s. 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

Supreme Court (Enlargement of General Appellate Juris- diction) Act, 1970–Section 2(a)–Appeal–Appreciation of evidence–conspiracy cannot be proved by conjectures and surmises–Absence of evidence to connect accused with the offences–Modification of sentence by convicting accused no. 1 u/s. 202, IPC. for making illegal omission to inform the authorities.

Evidence Act, 1872—Section 3–Appreciation of evi- dence-Failure of prosecution to prove guilt of accused–Conviction of accused no. 1 u/s. 202, IPC for making illegal omission to inform the authorities. Penal Code, 1860—Section 202–Ingredients to prove by prosecution indicated.

Penal Code, 1860–Sections 202, 306–Suicide–Whether offence of abatement punishable–Whether father-in-law has obligation to inform the authorities the suicide of daugh- ter-in-law.

HEADNOTE:

The appellants-father and son (A 1 and A 2)-were tried under Sections 302, 201 and 120-B I.P.C. for causing murder of the wife of A.2.

The deceased was married to A 2 in 1961. Two sons and one daughter were born to them. Their matrimonial fife was not smooth. There were frequent quarrels. It was in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in

821

mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admitted- ly A 2 was not in the house and he was at Suratgarh. On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead. Thereaf- ter A 1 informed P.W. S, the father of the deceased. The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. The investigation was taken up, held the inquest, exam- ined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2, who conducted the post-mortem, opined that the death was due to head injury and pressure in the neck region.

After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prose- cution. The accused denied the offences. A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, the neighb- out of A 1’s daughter and his grand-danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them ‘denied the allegations of the pfrosecution. The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de- ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court. The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.

The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.

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The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.

Disposing of the appeal by making modification in the sentence, this Court,

HELD: 1. The second accused was not present in the scene-house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter’s house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. Therefore, they were not present in the house when the deceased died. The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also. Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth- er-in-law of the deceased who was not even charge-sheeted. The letter Ex.P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter. P.Ws. 4, 9 and 10 have not supported the prosecu- tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-in-law of the deceased, was not even suspected. Therefore having given anxious and careful con- sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants. [835A-E]

2. Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular- ly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit- ted to give information respecting that offence and (3) that the accused was legally bound to give that information. [836G-H]

3. A 1 was at least under an obligation to give infor- mation about the death of the deceased since the same was unnatural. From the

823

medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe ‘that such a suicidal death has occured, to give information. [835G-836A]

4. In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or at least had reason to believe that an offence had been commit- ted even if, at that stage, be thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at. that stage. [838B-D]

5. The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec- tion 202 I.P.C. [838D]

Kalidas Achamma v. The State ofA.P S.H.O. Karimnagar, I Town P.S., [1987] 2 ALT 937, Approved.

Harishchandrasing Sajjansingh Rathod and Another v. State of Gujarat, [1979] 4 SCC 502, Distinguished.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 1984.

From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983. R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants. Sushil Kumar and AruneShwar Gupta for the Respondent. The Judgment of the Court was delivered by

824

K. JAYACHANDRA REDDY, J. There are two appellants. They are father and son respectively and they figured as A 1 and A 2 before the trial court. They were tried for offences punishable’ under Sections 302, 201 and 120-B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter-in-law of A 1, the deceased in the case. They were acquitted by the trial court. The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

The deceased was married to A 2 in the year 1961. Two sons and one daughter were born to them. A 1, father of A 2, was a practising lawyer after retiring from the Government Service. The matrimonial life of the deceased and A 2 was not smooth. There were frequent quarrels. The accused lived in their own house alongwith the deceased. It is in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admittedly A 2 was not in the house and he was at Suratgarh. On ‘being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam- ined the deceased and declared her to be dead. Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de- ceased. P.W. 5 went there and enquired. A 1 told P.W. 5 that the deceased be cremated at 9 A.M. The brother of the de- ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. P.W. 22 took up the investiga- tion, held the inquest, examined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2 conducted the postmortem. He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth. He found an injury on the head. He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck. He opined that the death was due to head injury and pressure in the neck region. He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the

825

pathologist could not give opinion regarding the piece of skin and the tissues of the trachea. The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality. The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is. result of neck injury. The pressure on the left and front of the neck was apparent. After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prosecu- tion. The accused dented the offences. A 1 stated that he was away from 14.3. 1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1’s daughter, was exam- ined. He also examined his grand-daughter D.W. 2, namely the daughter of A 2 and the deceased. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them denied the allegations of the prosecution.

The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira- cy between the A 1 and A 2 for murdering the deceased. It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder. The trial court. however, severely criticised about the iII-treatment and hard behaviour of A 1 and A 2 towards the deceased. The High Court, however, took a different view. The High Court mainly relied on the evidence regarding the ill-treat- ment of the deceased by A 1 and A 2 and held that the ac- cused had strong motive. The High Court has also referred to the earlier incidents in some of the letters. The High Court accepted the medical evidence in to and reached the con- clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck. Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur- dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120-B I.P.C.

Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder

The prosecution examined 22 witnesses. P.W. 1 an Assistant 826

School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ‘ of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus- band. On 18.3.82 P.W. 1’s neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die. On that P.W. 1 and others went to the house of the deceased. They opened the room from where bad smell was coming and in that room they saw the dead body of the de- ceased which was decomposed. A 1 who was present there told them that they would cremate the dead body that night. On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to. P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased. P.W. 2 is the Doctor, who conducted the post-mortem and we shaft advert to his evidence later. P.W. 3 is the eider sister of the deceased. She only stated that she got the information about the death of the deceased. P.W.. 4 is the son of the deceased and A 2. He deposed that on 11th March, 1982 his father A 2 came with him to the bus-stand to see him off. P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her. At that time the condi- tion of the deceased was very weak and she was unhealthy. P.W. 4 also deposed that his father A 2 was to go to Surat- garh by the evening of 11.3.82. This witness was treated hostile.In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and-that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her. P.W. 4 further deposed that D.W. 2 also told the same to her grand-mother. P.W. 5 is the father of the de- ceased. He also deposed about the iII-treatment of the deceased by the accused and their demand for dowry. He further deposed that the neighbour told them that he re- ceived a telephone message from A 1 that the deceased was ‘ about to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house. Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead. ThereUpon P.W. 5 wanted to know the name of the Doctor. Thereupon A 1 told him that the deceased would be cremated. A little later P.W. 6 also came and told him that the de- ceased had died before many days and her dead body was giving rotten smell. P.W. 6 is brother of the deceased and son of P.W. 5. He also.deposed about the ill-treatment meted out to the deceased. He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of

827

the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police. The police arrived and prepared a panchnama. P.W. 7 is the neighbour of the accused. He only attested the site plan prepared by the police. P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him’ at about 5.30. P.M. and told him that his daughter-in- law namely the deceased was in serious condition. Thereupon he went to the house and saw the deceased. He examined the deceased and declared her to be dead. P.W. 9 also was exam- ined to speak about the cruelty but he was treated hostile. P.W. 10 also belongs to the same locality. He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police. P.W 11 is a photographer who took the photographs of the room and the dead body. P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in- formed P.Ws 1, 5 and 6. P.W. 13 is the cousin of the de- ceased. He also deposed about the cruelty meted out to the deceased. He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased. He was informed by A 1 that the body would be cremated. Thereupon he and P.W. 6 went and .gave a report to the police. P.Ws 14 to 21 are the formal official witnesses. Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2. The sum and substance of their evidence is that A 2 was posted as expert of plant protec- tion in Suratgarh and that leave was granted to him on 11.3.82. This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased. P.W. 22 is the Sub-inspector who investigated the case. He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem. He also speaks the seizure of some letters.

In the examination under Section 313 Cr. P.C. both the accused stated that they are innocent. A 1’s case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter’s house and he’ came to Jaipur only on 18th March, 1982 and then he was told about ‘the death of the deceased. Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead. He denied about the allegations of iii-treatment of the deceased. A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter. He also stated that he was a Gazetted Officer in Agriculture Depart- ment and he was transferred to various places and he also took the deceased with him. He further

828

stated that the deceased was sick and unhealthy and was staying at Jaipur. He also stated that his daughter used to give food to the deceased. On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased. The accused examined D .Ws 1 to 3 on their behalf. D .W. 1 is a Doctor at Jodhpur. He deposed that he knew A 1 and that he was staying in his daughter’s house in Jodhpur from 15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2 and the deceased aged about 13 years. She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her. She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness. Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food. She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982. On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong. When her grand-father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead. D.W.2 further stated that the relations between the deceased namely her mother and grand-mother were not good. In the cross-examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother. She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982. D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur. He also deposed that A 1 came to Jodhpur and stayed from 15th on- wards upto 17th March, 1982.

From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence. The dead body was found in the house of A 1 and A 2, where admittedly the deceased’ was also living but she used to confine her- self to that room where the dead body was found- She was sick and unhealthy and that she was not even coming out of the room. From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature. Some of the wit- nesses, no doubt, have deposed that the accused used to ill-treat the deceased. But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed. From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982. Therefore he was also not in the house at the time of death. There is no other evidence to

829

show that as to who could have caused the death of the deceased if it is held to be homicidal. The trial court has doubted the prosecution case that the death was homicidal. The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal. But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death. Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it ‘to be homicidal, the accused A 1 ‘and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly. However, we shall first consider the medical evidence regarding the cause of the death.

P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante-mortem. Many of them were in the shape of bruises and swellings. He found the dead body as highly decomposed and had reached an advanced stage of putrefaction. In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia. He was cross-examined at length. He admitted that since the brain was decomposed and was in semi-liquid condi- tion no injury therein could be traced. He also admitted that the swelling of the eye was not due to the injury.on the forehead. Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed. In further cross- examination he admitted that he did not make the culture of the maggots crawling on the head. He also stated that he could not say definitely whether the death in the circum- stances should’ have occurred before four days. He, however, denied the suggestion that he could not form a definite opinion. As far as this medical evidence is concerned, the trial court also considered the same at length. The learned Sessions Judge noted the details in the post-mortem certifi- cate Ex. P, 1,. There he found against the column cause of death, the Doctor has put only a question mark. It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination. After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor- tem. In nature and at any rate P.W. 2’s evidence has not proved beyond reasonable doubt that the death of the de- ceased was due to injuries causing asphyxia and that the death was homicidal. The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days’ earlier ,as shown in the post-mortem certificate. The learned Judges observed thus:

830

“It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a ‘senior Medical Jurist of the S.M.S. Hospital. According to him there was’ sub-dural hammatoma over occipital region. Bruises were found on the forehead left side …………

We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death ….. ……………. In ‘our considered opinion, all these injuries wereanti-mortem in nature.”

The learned Judges thereafter explained away the dis- crepancies between the post-mortem and the medical evidence. We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: “In substance, we are convinced that it was a case of homicidal death. We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers- ing it and holding that the finding is not based on just and proper appreciation of the evidence.”

We have also gone through the medical evidence carefully and we may observe that ‘we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona- ble. However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence. Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty. The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed. We ,have already given a brief resume of the evidence’ adduced on behalf Of the prosecution. We have ,noticed that both the accused were not in the house on the day the occur- rence is said ‘to have taken place even assuming that, the same took place on 14.3.82. the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur- rence probably took place on 15th or 16th March, 1982. It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from Jodhpur and A 2 admittedly was 831

away on official duty- The D.W. 2 also speaks to the same. The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased. In the first instance the High Court held that the accused has a strong motive to get rid of the accused. For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat- ment meted out to the deceased by the accused. The learned Judges have also relied on some letters written by the deceased. P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de- ceased. Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money. The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased. The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty. The High Court, after considering the above evidence, ob- served as under:

“Now the question is whether in these circum- stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum- stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.”

Then the learned Judges proceeded to consider the evidence of P.W. 8 and others. P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter-in-law was serious. He went and examined the de- ceased and pronounced her to be dead. P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition. Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter-in-law was at her last breathing and he must inform P.W. 5, the father. Then the High CoUrt proceeded to consider some other circum- stances which took place from 11th March onward namely A 2 leaving on official duty. The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi. Then there is reference to a letter Ex. P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned. Judges Ex. P. 15 a letter of A 1

832

on the alleged death of the deceased, written by him to his son is a significant feature. This letter is dated 18th March, 1982. In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro- nounced her dead and that on the next day they are going ahead with cremation. This letter which is on a post-card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty- conscious. We think we need not refer to the further sur- mises made by the High Court. Suffice it to say that in the rest of the entire judgment only such suspicions and sur- mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.. At one stage the learned Judges observed thus:

“The more and more we read this letter Ex. P. 15 dated 18.3.82 more and more we are con- vinced that it was a case of pre-planned, pre-determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her. It is also not Without significance that Suratgath is in Ganganagar District and a far. place from Jaipur and post-card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place. The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in- volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire. The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par- meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death. We are, there- fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy

833

to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th. These were all preplanned pre-determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin- ued later on account of various other reasons.”

We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion. We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body. Such a conclusion should be based on acceptable evidence. There is absolutely no material that the deceased was murdered on 11th March, 1982 itself. The medical evi- dence simply states that the death could have taken place 4 to 8 days prior to post-mortem. D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises. Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder. In our view there is no evidence worth men-, tioning to establish these offences. Naturally in a case of this nature, the question that arises from a layman’s point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and ‘both of them would have been under an obligation to give an explana- tion and the-absence of a plausible explanation or giving a false explanation could have been very much incriminating against them. The same coupled with other circumstances would have perhaps brought home the guilt to the accused. But the circumstances

834

are different now. A 1 and A 2 were away from the house. The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court. If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder. That being so unless conspiracy as such is established, they cannot be held liable. Then the other inmates in the house are only the mother-in-law and the children of the deceased. None of them was suspected and at any rate no one of them was charge-sheeted or tried. Therefore the question of any one of them being held responsible for the death does not arise. No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house. D.W. 2’s evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March. It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself. If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell. One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody. On the other hand D.W. 2’s evidence is different and she categorically stated that the deceased was alive upto 16th March. That appears to be natural and there is no reason whatsoever to doubt the same. As indicated supra we are inclined. to agree with the Sessions ‘Court that the medical evidence does not establish the death to be one of homicidal. At any rate there is a grave doubt in this regard. The evidence on record clearly shows that the deceased was not mentally sound. The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move- ments to the four corners of the room. 15th March, 1982 was the last day when D.W. 2 served food to the deceased. There- after she did not go inside the room and on 18th March, 1982 the dead body was discovered. The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe. In view of these and other admissions the trial court right- ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused. From the above discussion the following important points 835

emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter’s houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. There- fore they were not present in the house when the deceased died- The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the de- ceased and was very much in the house throughout ategorical- ly stated that her mother was alive on 15th March also. Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother-in-law of the deceased who was not even charge-sheeted. The letter Ex. P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec- tures and surmises drawn from the letter. P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-ln-law of the deceased, was not even suspected. Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal. The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120-B I,P.C. only and in our view the trial court rightly held that none of these charges-were proved against them.

The learned counsel for the respondent State of Rajas- than, however, submitted that the accused would atleast be liable of having committed other offences. It may be noted that the question whether they would be liable under Section 498-A or 304-B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence. However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural. Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. There- 836

fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information. In Kali- das Achamma v. The State of A.P., S.H.O. Karimnagar. I Town P.S., [1987] 2 ALT 937 it was observed as under: “In the case of every suicide abetment is inherent. Whether ultimately it is proved or not, it is a different aspect. Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr. P.C. the Police have to hold an inquest Since it is an unnatu- ral death. ‘ ‘

In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi- tion. Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead. However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated. To the same effect is the evidence of P.W. 13. P.W. 6, the brother of the deceased, on his own went and gave a report to the police. It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give. Section 202 I.P.C. is in the following .terms: “202. Intentional omission to give information of offence by person bound to inform–Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl- edge or reason to believe that some offence had been commit- ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. Shri R.K. Jain, however, relied

837

on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther v. State of Gujarat, [ 1979] 4 SCC 502 and contended that the word “Whoever” occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence- In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted..On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus:

“We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore- said ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa- tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person’ liable under this section. The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word ‘whoever’ occurring at the

opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al- leged to have committed the principal offence. This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not

appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.”

(emphasis supplied)

From these observations it is clear that there was .no evidence to show

838

that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders. In such a situation the ingredients of Section 202 can not be said to have been made out. It is in this context that the meaning of the word “whoever” has been considered. But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly commit- ted the offence’ punishable under this Section at that stage. The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced. Therefore his-case stands on a different footing. In the result the convictions and sentences awarded against A 1 and A 2 are set aside. A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months’ R.I. The appeal is disposed of ac- cordingly.

V.P.R. Appeal disposed

1

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Emporer v. Dhirajia – On Murder S.300 IPC

April 3rd, 2012
Allahabad High Court

Emperor vs Mt. Dhirajia on 4 June, 1940

Equivalent citations: AIR 1940 All 486

Author: Braund

JUDGMENT

Braund, J.

1. This is an appeal of some little interest. The appellant is a young woman of 20 who was tried for murder by the Sessions Judge of Benares and who was tried at the same time for attempted suicide by a jury. The result of the trial by the Sessions Judge with the aid of his assessors-who were of course the same people who constituted the jury-was that he convicted the appellant of murder under Section 302, I.P.C. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge, as logically he was bound to do, was unable to agree with the verdict of not guilty upon the charge of attempted suicide and he has therefore referred the case to us under Section 307, Criminal P.C., with the recommendation that the jury’s verdict should be set aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way we have before us the appellant’s own appeal against her conviction and sentence under Section 302, I.P.C., and the learned Sessions Judge’s reference recommending us to set aside the verdict of the jury and to substitute a conviction upon the charge of attempted suicide as well.

2. We need hardly say that this is one of those cases common in these provinces in which a young woman with her baby in her arms had jumped or fallen down a well. The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and when he reached a point close to the railway line he saw her making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury. Upon these facts Mt. Dhirajia was, as we have said, charged with the murder of her baby and with an attempt to commit suicide herself. At that stage it is desirable that we should look at her own statements. She has put forward her version of the affair on three separate occasions: first by a statement in the nature of a confession; secondly, before the committing Magistrate, and thirdly in the Court of the Sessions Judge. The first two of these are identical and we need only, therefore, actually discuss the one before the Magistrate. She was asked:

Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to commit suicide?

3. This was her answer:

There had been a quarrel in my house for three or four days. My husband threatened to beat me. Thereupon I fled away. He followed me. When I saw my husband coming after me, I through fear jumped into the well.

4. And later in another answer she said:

Yes, I jumped into the well. I did not know that she would the (by doing so). I jumped into the well through fear of my husband.

5. That was perfectly clear and to our minds, quite straightforward statement of fact and we cannot but regret that in the Sessions Court her statement was changed. There-possibly on advice-she changed her story and alleged that she did not jump into the well at all but fell into it by accident. In those circumstances she was tried. The only issue to which the learned Sessions Judge appears to have addressed his mind, either in his own deliberations upon the charge under Sec. 302 or in his charge to the jury under Section 309 was whether as a fact Mt. Dhirajia jumped into the well or fell into it. His conclusion as expressed in his own judgment is:

I am, therefore, of opinion that the evidence of Jhagga supported as it is by the two previous statements of the accused clearly shows that the accused had jumped down into the well and had not fallen down accidentally.

6. He then assumes that it is a case of murder. In the same way the whole purport of his charge to the jury was that they had merely to decide whether she had jumped deliberately or fallen by accident into the well. We ourselves, having read the evidence with considerable care, are satisfied that the story of the falling into the well by accident is not true. We are satisfied upon the fact that the story told by the appellant in her own statement before the Magistrate is in substance the true version of what happened. It is, indeed, supported by the prosecution evidence itself because one cannot read her husband’s evidence without coming to the conclusion that the woman was in a panic when she saw her husband coming after her. And we believe that what she did, she did in terror for the purpose of escaping from her husband.

7. Now, upon those facts, what we have to consider-and what we think the learned Sessions Judge ought to have considered-is whether this satisfies the charges of murder and of attempted suicide, and if not what the woman has been guilty of. This raises questions which are not altogether free from difficulty and are of some interest. To take first the charge of murder, as we all know, according to the scheme of the Penal Code, ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300, Penal Code, is designated ‘murder’ or whether it falls within that residue of cases which are covered by Section 304 and are designated ‘culpable homicide not amounting to murder.’ In order to ascertain whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says:

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.

8. In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia an intention to cause the death of her baby. We are satisfied that no such intention was ever present in her mind. Indeed we think there was no room in her mind for any such intention having regard to the panic that she was in. But we have to consider whether what she did, she did with the ‘knowledge’ that she was likely by such act to cause death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that we cannot in this case having regard to all the circumstances attribute to this unfortunate woman the ‘knowledge’ of anything at all at that particular moment. We desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on behalf of the Government, has very properly and with great ability represented the appellant herself who was not otherwise represented. We are grateful for his argument from which we have derived great assistance. The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had no ‘intention’ but she could have had no knowledge either. We regret that we are unable to go as far as this. ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to be a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us-treating Mt. Dhirajia as a sane person, which we are bound to do-to conclude that she could possibly have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that baby’s death. We do not think we can.

9. We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. We have been pressed with cases by Mr. Saran in which when blows have been struck, it has been discussed whether knowledge of the likely consequences of those blows can be attributed to the striker. But we venture to think that such cases as these are fundamentally different from the case before us. A blow is not per se a necessarily fatal act, especially if the blow be given with the fist or with one of the less lethal weapons. This is a question of degree, a question of force, a question of position and so forth, and therefore in these cases there is ample room for argument as to whether in any particular case, having regard to the manner in which the particular blow or blows in that case was or were delivered, there was behind it knowledge that it was likely to result in death. But, in this case, the character of the act is in our opinion, fundamentally different. The act of jumping into a well with a six-months old baby in one’s arms can, in our opinion, but for a miracle, have only one conclusion and we regret that we have to assume that consequence must have been within the knowledge, but not within the intention of Mt. Dhirajia.

10. For these reasons we think that this was a case of culpable homicide. We must now proceed to consider whether or not it was murder. We do not propose to set out verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that in four cases culpable homicide is always murder, subject to certain specified exceptions. The first three cases in which culpable homicide is designated as murder are all cases in which there is found a positive ‘intention’ in the doer of the act. We need not waste time on these because, as we have already said, we do not think that in the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or active intention at all. The only case we need discuss is the fourth which is in these words:

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.

11. That is the fourth case in which culpable homicide is murder. We have already found that Mt. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that “such act” must be “without any excuse for incurring the risk of causing death….” The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it is so imminently dangerous that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred-even a risk of the gravest possible character which must normally result in death-the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse. We must consider in assessing what is excuse or is not excuse the state of mind she Was in. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. We think she had excuse and that excuse was panic or fright or whatever you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of murder.

12. Upon this reasoning however we cannot escape from Section 304. It must inevitably follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the charge upon which she should have been convicted and not upon the charge of murder. Before we leave this part of the case we desire to refer to one more authority to which our attention has been called by Mr. Saran. That is Supadi Lukadu v. Emperor (25) 12 AIR 1925 Bom 310. The case was a curious one in which a girl of 17 years of age, who too was ill-treated by her husband jumped with her baby into a well when she found that her husband prevented her from returning to her parents. In that case she was carrying the baby on her back and the learned Judges who tried it in the Bombay High Court on appeal came to the conclusion that on the facts of that case she was not aware at all that she even had a baby with her. No doubt upon the facts of that particular case that conclusion was justified. But we desire to say that we are not ourselves prepared to apply it to the case before us. The facts in the case before us are different and we should not be justified, we think, in looking for evidence which does not exist in order to enable us to come to a conclusion which the facts do not warrant. There is nothing upon this record which could enable us upon any reasonable view of the matter to assume that Mt. Dhirajia was not aware that she had he baby with her. We have found it necessary to resist the temptation in this case to adopt the facts to what our own desires might be because we think that such a course must necessarily be dangerous and wrong.

13. As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was rightly acquitted. To our minds, the word ‘attempts’ connotes some conscious endeavour to do the act which is the subject of the particular section. In this case the act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take her own life. We do not think she did. She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned therefore, the result of the appeal is that the appellant’s conviction under Section 302, I.P.C., is set aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned Judge’s reference to us is concerned, we are unable to accept it and the verdict of not guilty passed by the jury must stand.

14. There only remains the question of sentence upon the conviction under Section 304 which we have substituted for the conviction under Section 302, I.P.C. It is obvious that this is not a case deserving of a severe punishment. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months’ rigorous imprisonment which in effect means that she will be at once released unless she is required upon some other charge.
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Virsa Singh v. State of Punjab – SC on Murder S.300 IPC

April 3rd, 2012
Comment : The Court held that to bring a case under section 300 IPC Part 3 – the prosecution need not prove that the accused knew the injury to be sufficient in the ordinary course of nature to cause death – this would be too onerous – and would be tantamount to requiring a direct intention to cause death – which is already provided in clause 1, two clauses in the same section can’t be made to cater to same situation. Hence in these cases only these things need to be proved :-

i) Quite objectively – bodily injury present;

ii) This particular injury intended to be caused (that is – it is not accidental)

iii) then begins the objective examination – expert opinion – whether sufficient in the ordinary course of nature to cause death or mere likely to cause death – here the difference is merely the probability of fatality from injury. Former – is murder. Latter is Culpable Homicide not amounting to Murder

Supreme Court of India

Virsa Singh vs The State Of Punjab on 11 March, 1958

Equivalent citations: 1958 AIR 465, 1958 SCR 1495

Bench: Bose, Vivian

PETITIONER:

VIRSA SINGH.

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT:

11/03/1958

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

IMAM, SYED JAFFER

GAJENDRAGADKAR, P.B.

CITATION:

1958 AIR 465 1958 SCR 1495

ACT:

Criminal Trial–Culpable homicide amounting to murder– Prosecution to Prove-Presence and Nature of Injury -Intention to cause that Particular Injury, which was not accidental or unintentional and was sufficient to cause death in the ordinary (course of nature–Indian Penal Code (Act XLII of 1860), s. 300, 3rdly.

HEADNOTE:

The accused thrust a spear into the abdomen of ,he deceased. This injury caused his death. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. It was found by the Sessions judge that the accused intended to cause grievous hurt only. In his opinion however the third clause Of S. 300 Indian Penal Code applied. He accordingly convicted and sentenced the accused under S. 302 India, Penal Code. The High Court upheld the conviction, It was argued that the third clause Of s. 300 Indian Penal Code did not apply as it was not proved that the accused intended to inflict a

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bodily injury that was sufficient to cause death in the ordinary course of nature as s. 300 Indian Penal Code third clause states, ” 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

Held, that the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.

(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved; these are purely objective investigations.

(3) 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.

(4) 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 third clause of S. 300 Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words ” and the bodily injury intended to be inflicted ” are merely descriptive. All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature ; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90 of 1957.

Appeal by special leave from the judgment and order dated November 21, 1956, of the Punjab High Court in Criminal Appeal No. 326 of 1956 arising out of the judgment and order dated June 26, 1956, of the Court of the Sessions Judge at Ferozepore in Sessions Case No. 8 of 1956. Jai Gopal Sethi and R. L. Kohli, for the appellant. N. S. Bindra and T. M. Sen, for the respondent. 1958. March 11. The Judgment of the Court was delivered by

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BOSE J.-The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to ” the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner.”

The appellant was tried with five others under sss. 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302.

The other, were acquitted of the murder charge by the first Court but were convicted under ss. 326, 324 and 323 read with s. 149, Indian Penal Code. On appeal to the High Court they were all acquitted.

The appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld by the High Court.

There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was ” a punctured wound 2″ x 1/2″ transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that

” Three coils of intestines were coming out of the wound.” The incident occurred about 8 p. m. on July 13, 1955. Khem Singh died about 5 p. m. the following day. The doctor who conducted the postmortem described the injury as-

” an oblique incised stitched wound 21/2″ on the lower part of left side of belly, 13″ above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines

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and there were six cuts……… at various places, and digested food was flowing out from three cuts.” The doctor said that the injury was sufficient to cause death in the ordinary course of nature.

The learned Sessions Judge found that the appellant was 21 or 22 years old and said-

” When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer.”

Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code.

The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting “. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted:

” 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.”

It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary 1499

course of nature, then the intention is to kill and in that event, the “thirdly ” would be unnecessary because the act would fall under the first part of the section, namely- ” If the act by which the death is caused is done with the intention of causing death.”

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: “If it is done with the intention of causing bodily injury to any person.”

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. Once that is found, the enquiry shifts to the next clause- ” and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.” The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining 190

1500

” and the bodily injury intended to be inflicted ” is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly 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, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on common sense: 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, 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.

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.

1501

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. 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, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do 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 present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective 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. We were referred to a decision of Lord Goddard in R v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: (1) [1947] 1 All E. R. 813, 816.

1502

“if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.”

We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment:

“No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.”

That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (1) where Beaman J. says that- ” where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended.”

With due respect to the learned Judge he has linked (1) (1917) I. L. R. 41 Bom. 27,29.

1503

up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. 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 be can show that he did not, or if the totality of 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 nor 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.- But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not One of law but

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one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.

The appeal is dismissed.

Appeal dismissed.
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Appraisal of Testimony of Child Witness

March 31st, 2012
Comment :

Allahabad High Court

Panchhi And Ors. vs State Of U.P. on 17 February, 1998

Equivalent citations: 1998 CriLJ 3305

Author: K Shahi

Bench: G Mathur, K Shahi

JUDGMENT

K.D. Shahi, J.

1. Appellants Panchhi, Manmohan and Smt. Ram Shree have preferred this appeal against their conviction under Section 302 read with Section 34 IPC and death punishment awarded by the Additional Sessions Judge, Mahoba in S.T. No. 47 of 1991 vide judgment and order dated 3-3-1997 for having murdered Bankey Lai, his mother Smt. Halki and wife and daughter Smt. Pan Kunwar and Km. Sonu on 26-10-1989 at 11.00 A.M. in village Tingara Police Station Mahoba district Hamirpur.

2. The brief facts of the case which emerge out from the F.I.R. Police papers and other evidence on the record are that the accused persons were the next door neighbour of the deceased persons. Accused Panchhi is the father of Manmohan and Smt. Ram Shree. There was yet another accused Smt. Kalia wife of Panchhi. She died during the trial. Before 12 or 13 days of the occurrence, wife of deceased Bankey Lal was beaten by the wife and daughter of Panchhi. After this, deceased Bankey Lal and his wife had beaten Smt. Ram Shree. Due to this enmity, accused Panchhi, his wife Smt. Pan Kuriwar, his mother Kalia and his son Manmohan attacked the house of the deceased persons on 26-10-1989 at 11.00 a.m. Smt. Kalia alias Ram Kali was armed with Hansiya while the other accused persons were armed with Kulahri. They entered the house of the deceased persons and started assaulting Bankey Lal. Bankey Lal cried whereupon his mother Smt. Halki rushed to save him. The accused persons started assaulting her also with their respective weapons. The wife of Bankey Lal went outside the house and raised hue and cry for help. After having assaulted Bankey Lal and his mother inside the house, the accused persons came out of the house and started assaulting Smt. Pan Kunwar at the Chabutra. Km. Sonu the daughter of Bankey Lal started weeping bitterly and she was also killed by the accused persons. Having heard the alarm, the village people rushed to the spot to save them but the assailants told them that if they interfered, they would meet the same fate. Ram Khelawan son of Banky Lal some how escaped and ran towards the village and the village people saved him. The victims were being killed but no body dared to save them.

3. Ghanshyam Chaukidar (P.W. 2) was informed about the occurrence by the villagers. He went to the Police Station and lodged the F.I.R. on 26-10-1989 while the police station was at a distance of 7 miles from the place of occurrence. Looking to the fact that there was murder of four persons and Ghanshyam Chaukidar was an outsider, the F.I.R. lodged by him cannot be said to be delayed. It may be taken to be prompt one. The original F.I.R. is Ext. Ka-1, which he had verbally dictated at the police station.

4. S.I. Vijai Singh took the investigation in his hand and reached village Tingara. He recorded the statement of the Chdukidar. As it had become dark, the Investigating Officer could not inspect the spot. The next morning at the pointing of the informant, he inspected the place of occurrence and prepared the site plan. He found two dead bodies at the Chabutra and two dead bodies in the house of the deceased. He took blood stained and simple earth. He recorded the statement of Shambhu Dayal (P.W. 5), an eye witness. He prepared the inquest report, challan lassh, photo lassh, and letter to the C.M.O. in respect of all the four dead bodies and sent them for postmortem examination. He arrested Smt. Ram Shree and Kalia alias Ram Kali on 27-10-1989 at 4.15 P.M. and on their pointing, the Investigating Officer recovered Hansiya and Kulahri used by them. He also took the clothes of the accused persons in his possession, which were blood stained. He inspected the spot from where the recovery was made and prepared the site plan Ext. Ka-33. Accused Panchhi and Manmohan surrendered in the court. The Investigating Officer took them into police custody through court and on the pointing of these two accused persons recovered Kulahris used by them in the commission of the crime and prepared Fard Ka-35. After the investigation was complete, the Investigating Officer submitted the charge-sheet in the court.

5. Dr. A.P. Pandey (P.W. 4) conducted the postmortem examination on the dead body of Smt. Pan Kunwar on 27-10-1989 at 4.30 p.m. and found the following ante mortem injuries :-

1. Incised wound 5 cm x 2 cm x carnial (cranial) vertebrae deep between the right side of face over Rt. mandible 2 cm lateral to the chin. The injury causes to cut of great vessels of Rt. side of neck partial cut of Trachea and oesophagus also present.

2. Incised wound 3 cm x 1.5 cm x muscle deep present on the right side of nose 3 cm below Rt. angle of mandible great vessels of neck cut.

3. Incised wound 3 cm x 1.5 cm bucal cavity deep present on the left side of face 1 cm below left hygomatic poomineuce.

4. Incised wound 2.5 cm x 1 cm x muscle deep present on the left side of face 1 cm below Inj. No. (3).

5. Incised wound 2.5 cm x 1 cm bone deep present over head just above hair line on the middle.

6. Incised wound 2.5 cm x 1 cm x bone deep present on the head 3 cm above Inj. No. 5.

7. Incised wound two present at right angle each measuring 3 cm x 1 cm x bone deep at the occipital below adjoining bones.

6. In the opinion of the doctor, the death was caused due to shock and haemorrhage.

7. Dr. A.P. Pandey also conducted autopsy of the dead body of Bankey Lal deceased on 27-10-1989 at 4.36 p.m. and found the following ante mortem injuries :-

1. Five incised wound each measuring 6 cm x 2 cm x carnial (cranial) vertebrae deep present on the back & right side of neck and face in area of 22 cm x 12 cm. Rt. mandible cut and vessels of right side of neck. The trachea and oesophagus also cut on right side.

2. Two incised wounds each bearing 3 cm x 1 cm x muscle deep present on the left side of neck 4 cm above left clavicle.

3. An incised wound 3 cm x 1 cm x bone deep present over the front of head just above hair line on the middle.

4. An incised wound 6 cm x 2 cm x brain deep present on the right side of head 2 cm right to inj. No. (3).

5. Incised wound 3 cm x 0.5 cm x muscle deep present over the dorsum of right hand 3 cm below right wrist joint 2 cm tailing present.

6. Incised wound 4 cm x 1.5 cm x muscle deep present on the outer aspect of left leg 8 cm below left knee joint.

7. Multiple abrasion present on the dorsum of Rt. forearm in whole area.

8. Multiple abrasion present on the dorsum of left forearm in whole area. The doctor opined that the death was caused due to shock and haemorrhage.

8. Dr. A.P. Pandey conducted the postmortem examination on the dead body of Smt. Halki deceased on 28-10-1989 at 2.15 p.m. and found the following ante mortem injuries on her person:-

1. An incised wound 5 cm x 1 cm x brain deep present on the left side of head, 6 cm above left ear.

2. An incised wound 5 cm x 2 cm x carnial (cranial) vertebrae deep present on the front of neck trachea, oesophagus and both side great vessels cut. Injury is present at the root of the neck.

3. Incised wound 5 cm x 2 cm x muscle-deep present on the Rt. shoulder at the top.

4. Incised wound 3 cm x 2 cm x bone deep present on the right side of face on the Rt. mandible 3 cm lateral to the chin.

9. The doctor reported that the death was caused due to shock and severe haemorrhage as a result of cut of neck vessels.

10. Dr. A.P. Pandey, who had conducted the autopsy of the dead bodies of three deceased persons, had conducted the postmortem examination on the dead body of Km. Sonu also he ound the following ante mortem injuries on her person:-

1. An incised wound 8 cm x 3 cm x carnial (cranial) vertebrae deep present on the left side of neck. All great vessels on the left side of neck is cut off. Trachea oesophagus cut.

2. Incised wound 6 cm x 2 cm x muscle deep present just post lateral to injury No. 1.

3. Incised wound 5 cm x 2 cm x muscle deep present on the post as pect of left shoulder.

4. Incised wound 5 cm x 2 cm x bone deep present on the back of head 3 cm below occipital.

11. In the opinion of the doctor, the death was caused due to severe haemorrhage as a result of cut of vessels of neck.

12. After the committal of the case to the (of sessions, all the four accused persons charged under Section 302 read with Section 34 IPC. The charges were read over and explained to the accused persons in Hindi. They pleaded not guilty and claimed to be tried.

13. The prosecution examined PW-1, Ram Khilawan. He was the son of the deceased Bankey Lal. He was residing in the same house in which the occurrence had taken place. He stated his age about 13 or 14 years, but the Court found him aged about 11 or 12 years. The Court tested the mental capacity of the boy by putting him certain questions. The Court found him a competent witness. He narrated the entire prosecution story. He stated that one by one his father, mother, sister and grandmother had been brutally murdered by the accused persons. He specifically stated that it was about 11.00 a.m. He knew the accused persons from before, as they were the residents of the same village. In the cross-examination, he stated that he was taking his meals in the back room of the house. This room was being used as a kitchen and from there he came out and went towards the house of Pujari. He was cross-examined that he had seen only the murder of his father and grandmother. Even if he did not see the actual assault on his mother and sister, still his evidence is sufficient to find out the guilt of the accused persons because there was no case that any other person had murdered the other two victims. He stated that the villagers did not enter the house and were witnessing the occurrence from the Chabutra.

14. PW-2, Ghanshyam was the Chaukidar of the village. He had lodged the F.I.R. He had not actually seen the occurrence but just after the occurrence he reached the spot and saw the dead bodies. He gathered information from the villagers and went to the police station and lodged the F.I.R. There was nothing for which this witness could be disbelieved. He was a reliable witness firstly because he was Chaukidar of the village and secondly had he to give any false statement, he would have become an eye witness.

15. PW-3, Lakhan Lal, was an independent eye witness. He stated that he was going to shave his beard at the shop of Halkai barber. In the cross-examination, it was suggested that he was not going to shave his beard at the shop of Halkai barber, but was going at the shop of other barber. This cross examination suggests that the going of this witness for shaving of the beard is admitted. The witness stated that Halkai barber was not at the shop. He was waiting for him. He saw the accused persons coming armed with weapons and murdering the victims.

16. PW-4, Dr. A.P. Pandey, proved the post mortem reports of the deceased persons and stated that the death of all the victims were possible to have been caused on 26-10-1989 at 11.00 A.M.

17. PW-5, Shambhu Dayal was aged about 80 years. He was also an eye witness, he also corroborated the statement of Ram Khelawan (P.W. 1). He was present at his house at the time of occurrence. His house has been shown in the site plan in the north-west of the house of the victims. He heard the cry and went towards the house of Naththu and from there he had seen the occurrence. He also stated that one small child was lying beneath the Paalna. He had also seen the assault of Kulahri at the Paalna. From this statement, it appears that the accused persons had tried to kill the small child in the Paalna as well as gave assault which came at the wood of the Paalna. This statement may or may not be correct that there was any effort to kill that small child as well, but at least the other part of the statement of this witness that all the four victims had been murdered by the appellants is fully believable.

18. PW-6, S. I. Vijai Singh, was the Investigating Officer. He had proved the investigation and the police papers.

19. PW-7, S. I. Bare Lal Misra, was the Head Constable, who had recorded the chik report and made entry in the general diary. After this the prosecution closed its evidence.

20. The statements of the accused persons were recorded under Section 313, Cr.P.C. They denied the entire prosecution story and alleged false implication. They did not lead any evidence in their defence.

21. The learned sessions Judge heard the learned counsel for the parties. He found all the three accused persons guilty of the charge under Section 302 read with Section 34 IPC for having murdered all the four victims. After hearing on the question of sentence, the learned Sessions Judge was of the view that death punishment alone would meet the ends of justice and therefore he awarded death punishment to all the three accused persons. Being aggrieved by their conviction and the award of death punishment, the accused persons have preferred this appeal.

22. We have heard the learned counsel for the parties and have gone through the record. This is a case of broad daylight murder of four persons. The factum of death of Bankey Lal, Smt. Halki, Smt. Pan Kunwar and Km. Sonu has not been disputed. Their identity has also not been challenged. The appellants have only alleged false implication in the case. At the very outset we may observe that the learned counsel for the appellants did not seriously challenge the conviction of the appellants. He only prayed for mercy and pleaded that instead of death punishment, the appellants may be awarded life imprisonment only.

23. We will discuss this aspect of the case later on but by way of abundant caution, we will also like to enter into the merits of the case.

24. We have seen the site plan prepared by the Investigating Officer. He recovered the dead body of Km. Sonu from place ‘A’ and that of Smt. Pan Kunwar from place ‘B’. ‘A’ and ‘B’ were at the Chabutra. He also recovered the dead bedy of Bankey Lal from place ‘C’ and that of Smt. Halki from place ‘D’. These two places were inside the house of the victims. The F.I.R. of the occurrence had been lodged by the Chaukidar of the (village at 5.00 p.m. after six hours of the occurrence. The distance of the police station was 7 miles from the place of occurrence. The cruel manner in which the entire family, except one or two small children, had been murdered, the informant was bound to take so much time in collecting information and lodging the report. The F.I.R. cannot in any manner be said to be delayed or ante timed. We have also found that the F.I.R. was prompt one. The informant did not state in the examination-in-chief how he visited the police station, but it has specifically come in the cross examination that on that particular day there was strike of the bus operators and he had gone to the police station on foot. He was cross examined why he did not go to the police station on a cycle. He specifically stated that he did not know to drive cycle. He further stated that though there was tractor in the village but no one offered him tractor for the purpose. Although the informant was not an eye witness, but his conduct was very natural. As a Chaukidar of the village, he was duty bound to report the matter to the police.

25. The motive of the occurrence has been specifically alleged in the F.I.R. There is no evidence of the earlier dispute between the family of the appellants and the victims, but it is specifically alleged in the F.I.R. that before 12 or 13 days of the occurence, the wife of victim Bankey Lal was beaten by the wife of accused Panchhi and his daughter Smt. Ram Shree and thereafter the wife of Bankey Lal and Bankey Lal himself had beaten Smt. Ram Shree. This was the enmity between the parties. Although this motive was not very strong, but when Ram Khelawan (P.W. 1) and Ghanshyam entered into the witness-box neither of the parties examined or cross examined them on this point. In the cross examination of Ghanshyam (P.W. 2), it was suggested that Bankey Lal had got enmity with others and that there were two sons of Chandaniya wife of the father of Bankey Lal, but this was a mere suggestion. It was not at all said that the persons other than the accused had killed the four victims at one time. The occurrence is of broad day light. There are eye witnesses who are believable. The absence of motive is immaterial.

26. The weapon of assault in this case is said to be Hansiya and Kulahri. The injuries to all the four victims are incised wounds. These injuries were possible to have been caused by Hansiya and Kulahri. It has not been challenged by the accused person that the injuries were caused by any other weapon. Hansiya and Kulahri had been recovered by the Investigating Officer on the information given by the accused persons themselves. That part of the information is admissible under Section 27 of the Evidence Act.

27. The time of occurrence has also not been challenged. The doctor also stated that the death of all the four victims were possible to have been caused at 11.00 A.M.

28. As regards the ocular testimony, PW-1, Ram Khelawan was a child witness. He was the son of deceased Bankey Lal and Smt. Pan Kunwar. He was taking his meals in the kitchen at the time of occurrence. Therefore, he could be saved. He had seen the occurrence. The witness was suggested that he was not present in the house and could not see the occurrence. The suggestion was refuted. The presence of this witness in his own house was very much natural and probable. He had got no reason to give false statement to implicate innocent persons and screen out the real offenders.

29. PW-3, Lakhan Lai, was another eye witness. On 26-10-1989 at 11.00 A.M. he had gone to the house of Halkai barber to shave his beard. He had seen the occurrence from place ‘D’ in the site plan i.e. from infront the Chabutra of the house of Halkai barber. A bare perusal of the site plan will show that just in the south of the house of the accused persons there was a house of barber and the witness could have easily seen the occurrence from there. It was not at all suggested in the cross examination that the witness had not gone for the purpose of shaving his beard, but the only suggestion was that he had gone to the shop of another barber to get his beard shaved. The exact words are “Yeh kahna galat hai ki mai kisi doosray nai sey daarhi banwaney gaya tha. Yeh bhi kahna galat hai ki mai kisi aur nai ka intezar kar raha tha.” The witness was assertive that there was no other barber in the village except Halkai Nai. The accused side could not inform that there was any other barber in the village. In the circumstances, this witness was fully believable witness and his presence in his own house at the time of occurrence was fully natural and probable.

30. The three eye witnesses examined in this case are fully believable and explicit reliance can be placed on the ocular testimony of these witnesses. There is nothing for which their statements can be disbelieved. The ocular testimony is fully corroborated and cemented by the medical evidence. The case of the prosecution is fully established. There is also extra judicial confession about recovery of weapons. The Investigating Officer had recovered the weapons on the pointing of the accused persons. There is no law that the Investigating Officer should always be disbelieved. If his statement is trustworthy and believable, even corroboration by independent witnesses is not required, but in this particular case the statement of the Investigating Officer is fully supported by the statements of them dependent witnesses. There is nothing on the record to show that the investigation was tainted and not believable. The case of the prosecution is fully proved against the accused persons and the learned Sessions Judge was fully justified in convicting them under Section 302 read with Section 34 IPC and awarding them death punishment for having murdered Bankey Lal, Smt. Pan Kunwar, Smt. Halki and Km. Sonu.

31. We have heard the learned counsel for the parties on the question of sentence. The main thrust of the argument of the learned counsel for the appellants was that in the circumstances of the case the death punishment may be converted into imprisonment for life. Smt. Kalia ailas Ram Kali is already dead. She had got justice by God, but we have to consider the case of all the three accused persons. The age of accused Panchhi as stated by him on the date of statement was 75 years. A person who has grown so old becomes very cool and generous and is not expected to commit such heinous crime. Since accused Panchhi (who is also head of the family) had taken the law in his hand, he does not deserve any lienancy, sympathy or mercy on the ground of age. It was argued that Smt. Ram Shree is a lady. Her age was also 30 years on the date of her statement. She appears to be married, but she was the root cause of this occurrence. She had also attacked the entire family of Bankey Lal along with her parents. She was also armed with Kulhari and had taken active part in the commission of murder of the entire family of Bankey Lai. She like a man took Kulhari and took equal part in the crime. Therefore, she also does not deserve any lienancy, sympathy or mercy by this Court.

32. The appellants were the next door neighbours of the deceased persons. They should have lived like good neighbours, but all the four persons took Kulhari and Hansiya, went inside the house of Bankey Lal and butchered all the four persons one by one. We have seen the injury reports and it is apparent that all the four persons had been butchered like goat. The persons who have become so cruel do not deserve any lienancy or mercy by the Court. The attack was deliberate, calculated and the appellants fully knew what they were doing. Today, the appellants are seeking mercy on the ground of old age and lady but they never thought that the persons whom they were killing were also old and ladies. Two ladies had been murdered in this case. Smt. Halki was as old as accused Panchhi. The appellants did not show any lienancy or mercy to the victims. No sense of human virtue prevailed when they murdered a small child of 5 years, who had not even seen the full light of the day. Therefore, the appellants deserve nothing else but death punishment and the learned Sessions Judge was fully justified in awarding death punishment to the appellants.

33. In the result, the appeal is liable to be dismissed and is accordingly dismissed. The conviction and sentence recorded by the learned Sessions Judge vide judgment and order dated 3-3-1997 are hereby confirmed. The reference made by the learned Sessions Judge is accepted and the death punishment awarded to the appellants for having murdered Bankey Lai, Smt. Halki, Smt. Pan Kunwar and Km. Sonu is hereby confirmed.
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Tag: Section 302 in The Indian Penal Code

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