Raj Pal And Others v. State Of Haryana .

Arijit Pasayat, J.— Leave granted.

2. Challenge in this appeal is to the judgment of the learned Single Judge of the Punjab and Haryana High Court dismissing the appeals filed by the appellants. The learned Additional Sessions Judge, Gurgaon had convicted the appellants and one Dharam Singh for the offence punishable under Section 304 Part I read with Section 34 of the Penal Code, 1860 (in short “IPC”). They were also convicted for the offence punishable under Section 325 read with Section 34 IPC as well as Section 323 read with Section 34 IPC. They were sentenced to undergo RI for ten years and to pay a fine of Rs 2000; in default of payment of fine they were directed to undergo RI for six months for the first named offence. They were further sentenced to undergo RI for two years and six months respectively for other two offences. Fine of Rs 500 with default stipulation was imposed. Two other accused persons, namely, Vijay Singh and Rattan Singh were released on probation for a period of two years under Section 4 of the Probation of Offenders Act, 1958 (in short “the Probation Act”) in respect of their conviction under Section 323 IPC. Accused Vijay Singh died on 22-5-1992.

3. Accused Raj Pal, Bir Singh and Chhater Pal question their conviction and sentences imposed.

4. The factual background in a nutshell is as follows:

The appellants are sons of one Bhanwar Singh, and grandson of one Ariya alias Arimal. The complainant and party are their collateral. Arimal had another son Hira Singh. Sube Singh (hereinafter referred to as “the deceased”) and Pirthi Singh (PW 7) are sons of Hira Singh. The said Hira Singh had two more sons, namely, Suraj Bhan and Om Parkash. Sanjay (PW 6) is son of Pirthi Singh (PW 7).

5. The betrothal ceremony of Ajit, son of deceased Sube Singh was to take place on 27-2-1990. On 24-2-1990, Sanjay (PW 6) went to the house of his uncle, the deceased, to help him in making preparations for the occasion. An iron gate fixed in the boundary wall of the house of Sube Singh (the deceased) had got dislocated. They were refixing it by applying cement. The time was about 10 a.m The appellants — Raj Pal, Bir Singh, Chhatter Pal and Dharam Singh (since deceased) came there armed with lathis and jellies. They desisted Sanjay and the deceased from repairing the gate asserting that they also had a share in the property. The deceased told them that they had no right over the property and they had got their property in the partition. The appellants and Dharam Singh abused the deceased. In a fit of anger, Raj Pal gave a lathi-blow on the head of the deceased. Chhatter Pal also gave a lathi-blow on his head. Bir Singh gave a jelli-blow on the left leg of the deceased. Sanjay (PW 6) intervened to rescue the deceased. Bir Singh gave a jelli-blow on the right wrist of Sanjay; Dharam Singh gave a lathi-blow on the left hip of Sanjay. Thereafter, Rattan Singh and Vijay Singh, the appellants also came there armed with jelli and lathi respectively and joined the fray. Vijay Singh gave a lathi-blow on the right side of the jaw of Sanjay and Rattan Singh gave jelli-blow on his right thigh. Pirthi Singh (PW 7), father of Sanjay along with Randhir Singh, cousin of Sanjay came there on hearing the alarm raised by Sanjay. Raj Pal gave a lathi-blow on the head of Pirthi Singh (PW 7); Chhatter Pal gave a lathi-blow on his right shoulder. Bir Singh gave a jelli-blow on the head of Randhir Singh. Tej Pal and Mahender Singh arrived at the place of occurrence and rescued the victims from the attack of the accused persons. The injured persons were taken to the hospital. The deceased breathed his last on 25-2-1990 at about 8.40 p.m at Safdarjung Hospital.

6. After completion of investigation, charge-sheet was filed. As the accused persons pleaded innocence and denied the charges, trial was held.

7. Fifteen witnesses were examined. The statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short “CrPC”). As noted above, the accused persons pleaded innocence. It was their plea that the deceased with the help of some PWs was raising construction on the disputed plot claiming his share in the plot. When they objected, the deceased who wanted to grab their share assaulted the accused persons along with others. They acted in self-defence of person and property. The trial court on consideration of the evidence on record directed the conviction and imposed sentence as aforementioned. Appeal filed before the High Court was dismissed. The trial court noted that there was no intention to commit murder and the accused persons did not repeat the blows on the head of the deceased. But knowledge can be clearly attributed to them that by giving blow on the head of the deceased death was the only consequence. As the accused persons acted in furtherance of the common intention they were punishable under Section 304(1) IPC read with Section 34 IPC. The High Court did not accept the plea of exercise of right of private defence and also did not accept the plea that death was not intended. The appeal filed by the accused persons was dismissed; so was the appeal filed by the complainant for alteration of conviction.

8. In support of the appeal, learned counsel for the appellants submitted that the trial court and the High Court did not take note of the fact that the accused persons had suffered serious injuries. In any event, the trial court having noted that there was no intention to cause homicidal death should not have convicted the accused in terms of Section 304 Part I IPC.

9. Learned counsel for the respondent State supported the judgments of the trial court and the High Court.

10. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar (1976) 4 SCC 394, AIR 1976 SC 2263.) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right of private defence comprises the body or property (i) of the person exercising the right, or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.

11. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (1963) 3 SCR 489, AIR 1963 SC 612, (1963) 1 Cri LJ 495 it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

12. The above position was highlighted in Rizan v. State of Chhattisgarh (2003) 2 SCC 661 and Sucha Singh v. State of Punjab (2003) 7 SCC 643.

13. Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons has been rightly discarded.

14. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC “culpable homicide” is the genus and “murder”, its specie. All “murder” is “culpable homicide” but not vice versa. Speaking generally, “culpable homicide” sans “special characteristics of murder is culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the gravest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

15. The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done— Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done—

Intention

(a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

Knowledge

(c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act 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 is mentioned above.

16. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

17. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3)†† of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.

18. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Kalarimadathil Unni v. State of Kerala 1966 Supp SCR 230, AIR 1966 SC 1874, 1966 Cri LJ 1509 is an apt illustration of this point.

19. In Virsa Singh v. State of Punjab 1958 SCR 1495, AIR 1958 SC 465, 1958 Cri LJ 818 Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

20. The ingredients of clause “thirdly” of Section 300 IPC were brought out by the illustrious Judge in his terse language (in AIR para 12) as follows: (SCR pp. 1500-01)

“[12.] To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 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.

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.”

21. The learned Judge explained the third ingredient in the following words (at AIR p. 468): (SCR p. 1503)

“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of 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.”

22. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case 1958 SCR 1495, AIR 1958 SC 465, 1958 Cri LJ 818 for the applicability of clause “thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.

23. Thus, according to the rule laid down in Virsa Singh case 1958 SCR 1495, AIR 1958 SC 465, 1958 Cri LJ 818 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

24. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

25. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate and clear-cut treatment to the matters involved in the second and third stages.

26. The position was illuminatingly highlighted by this Court in State of A.P v. Rayavarapu Punnayya (1976) 4 SCC 382 and Abdul Waheed Khan v. State of A.P (2002) 7 SCC 175

27. Taking the totality of the evidence into consideration and the special features noticed, it would be appropriate to convict the accused persons in terms of Section 304 Part II read with Section 34 IPC instead of Section 304 Part I read with Section 34 IPC. Custodial sentence of 7 years would meet the ends of justice.

28. The appeal is partly allowed to the extent indicated.