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Wednesday, February 4, 2015

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 175 OF 2015
                   (ARISING OUT OF SLP(Crl.) No.8715/2014)

      Balu S/o Onkar Pund & Others             Appellant(s)


                             VERSUS


The State of Maharashtra                      Respondent(s)

                       WITH

                     CRIMINAL APPEAL Nos.166-167 OF 2015
               (ARISING OUT OF SLP(Crl.) Nos.10109-10110/2014)
                                     AND
                     CRIMINAL APPEAL Nos.164-165 OF 2015
                (ARISING OUT OF SLP(Crl.) Nos.9524-9525/2014)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    These appeals are filed by the accused persons  against  the  judgment
and order dated 03.02.2014 passed   by  the  High  Court  of  Judicature  at
Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215  and   225  of  2011
which arise out of judgment/order dated 11.04.2011 passed  by  the  Sessions
Judge, Parbhani in Sessions Trial No.80 of 2008.
2.    Accused Nos. 5, 8, 9 & 10 have filed appeal @ SLP(Crl.)  No.  8715  of
2014   whereas  appeals  @  SLP(Crl.)  Nos.10109-10110/2014  are  filed   by
accused Nos.1 and 4 and appeals @ SLP(Crl.) Nos.  9524-9525/2014  are  filed
by accused Nos. 2, 3 and 6.
3.    By impugned judgment, the High  Court  confirmed  the  conviction  and
sentences awarded to the appellants by the learned trial Judge.  Suffice  it
to state here that the appellants, apart from other offences were  convicted
under Section 302 read with Section 149 of the IPC and sentenced  to  suffer
life imprisonment and to  pay  fine  of  Rs.10,000/-  each,  in  default  of
payment of fine, to undergo further six months rigorous  imprisonment.   The
sentences imposed in respect of other offences are of below 7 years and  all
the sentences have been directed to run concurrently.
4.    The question, regard being had to  the  submissions  advanced  by  the
learned counsel for the appellants, is whether the learned  trial  Judge  as
well as the High Court was justified  in  convicting  the  appellants  under
Section 302 read with Section 149 IPC considering the genesis of  occurrence
and the facts in entirety or they should have been convicted  under  Section
304 Part-I, IPC.
5.    In order to appreciate the issue involved  in  these  appeals,  it  is
necessary to state the relevant facts in brief.
6.    Apparao Rajaram Pund (A-1) and Madhavrao Rangnathrao  Range  (PW-  3),
both resident of village Itlapur in District Parbhani,  were  good  friends.
Both were agriculturists. Savitribai-the deceased was the wife of  Madhavrao
Range.  Around 25-30 years back, Madhavarao  had  purchased  two  kathas  of
land from Apparao for his cattle shed in the same village and  he  was  also
placed in its possession. However, no sale deed was  executed  between  them
yet Madhavrao continued to remain in possession of cattle shed all through.
7.    In  course  of  time,  both  entered  in  politics  and  formed  their
respective panels to contest the elections for the post of Sarpanch  of  the
village. In the election, panel led by Madhavrao  Range  won  whereas  panel
led by Apparao Pund lost. Due to this  event,  the  relations  between  them
were not as cordial as they used to be  in  the  past.   Thereafter  Apparao
started pressurizing Madhavrao Range to vacate the land and  hand  over  the
possession  of  cattle  shed  else  he  was  threatened  to  face  the  dire
consequences.
8.    On 15.01.2008, the appellants around 7.30  to  8.00  A.M.  armed  with
weapons barged in the cattle shed  and  started  removing  the  iron  sheets
fixed on the roof.  Madhavrao requested the appellants  not  to  remove  the
sheets. Since the appellants did not listen to Madhavrao  and  continued  in
their operation in removing the sheets, Madhavrao resisted and made  attempt
to stop them. At that time,  Savitribai and  Madhavrao's  son  -  Udhav  (PW
-5), who were  also  present  on  the  spot,  intervened  and  resisted  the
appellants from removing the sheets. This led to scuffle between  Apparao  (
A-1), Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3).  Accused Nos.  1,  3
and 4 beat Madhavrao with fist blows and leg kicks  and  threw  him  out  of
cattle shed.  Apparao(A-1),  who  was  having  bottle  containing  kerosene,
poured the entire kerosene on cattle shed and Sachin ( A-4) set  the  cattle
shed on fire.  Savitribai, who was  resisting  the  appellants,  caught   in
contact of fire  and  received  severe  burn  injuries.  On  noticing  this,
Madhavrao tried to enter in cattle shed to save his  wife-Savitribai.  Gopal
(A-2) then inflicted an axe  blow  on  Madhavrao's  head  due  to  which  he
sustained bleeding injury. When Madhavrao cried for help, Navnath and  other
persons reached there and tried to extinguish  the  fire.   Thereafter  they
wrapped Savitribai in a piece of cloth and took her to  the  civil  hospital
around 10 A.M.
9.    In the meantime, Mohammad Bashir  Sheikh  Umar  (PW-2)-  Inspector  on
duty to the Nanal Peth Police Station, got an information that a  lady  with
burn injuries was admitted to the Hospital.  Therefore,  he  rushed  to  the
hospital to record her statement.   After  getting  certification  from  the
doctors that Savitribai was in a fit condition to give her  statement,  PW-2
recorded her statement (Ex-45). In the  meantime,  Kishore  Achyut  Deshmukh
(PW-1), In-charge Tahsildar of the area also reached  to  the  hospital  and
recorded the statement of Savitribai (Ex-P-42).
10.   Annasahab Gholap - Assistant Police Inspector (PW-16) then  registered
the crime being Crime No. 6 of 2008 and started investigation.  On the  same
day, five accused were  arrested,   panchnama  (Ex-P-58)  was  prepared  and
several articles were recovered from the spot.  On 16.01.2008 at 6.15  a.m.,
Savitribai succumbed to her injuries while in  the  Hospital.  This  led  to
arrest of some other accused persons and also led to  registration  of  case
of offence punishable under Section 302 of  the   Indian  Penal  Code,  1860
(hereinafter referred to as "IPC")  along  with  other  offences  punishable
under Sections 147, 148, 323,  324,  436,  440,  448,  506  all   read  with
Section 149 IPC against the appellants and other accused persons.  The  case
was then committed to Sessions for trial. The accused  abjured  their  guilt
and claimed trial. The prosecution examined 16 witnesses. The statements  of
the accused persons were recorded under Section 313 of the Code of  Criminal
Procedure, 1973.
11.   The  Sessions  judge  convicted  the  appellants-accused  and  imposed
punishment to each appellant  as  specified  above.   Challenging  the  said
order, the  appellants  filed  appeals  in  the  High  Court  against  their
conviction. The High Court, by impugned judgment,  dismissed  their  appeals
and confirmed the conviction and sentence awarded  by  the  trial  Court  to
each of the  appellants.   Against  the  said  order,  the  appellants  have
preferred these appeals by way of special leave before this Court.
12.   While assailing the legality and correctness of  the  impugned  order,
Mr. Sudhanshu S. Choudhari, learned Counsel for the  appellants  has  argued
only one point.  According to him, taking the prosecution case on  its  face
value, it was not a case of murder of Savitribai so as to enable the  Courts
to convict the appellants under Section 302 IPC but it was  a  case  falling
under Section 304 Part-I IPC. Learned counsel pointed  out  that  there  was
neither any intention on the part of any of the  appellants  to  commit  the
murder of Savitribai nor the appellants had visited the spot with  any  such
intention. Learned Counsel further pointed out that the  only  intention  of
the appellants was to take possession of the  cattle  shed  and  it  was  in
process of taking forcible possession, the sudden fight ensued  between  the
two groups as  also  cattle  shed  caught  fire  causing  burn  injuries  to
Savitribai, which unfortunately resulted in her death.  It was also  pointed
out that if the appellants had  come  to  the  spot  with  an  intention  to
eliminate Savitribai,  they or any member of their group would have  in  the
first instance targeted Savitribai, who was present on  the  spot  with  her
husband (PW-3) and inflicted injury.  It was not done. According to  learned
Counsel, her death was as a result of burn injuries because she  was  inside
the shed, which caught fire.  Therefore, learned  Counsel  urged  that  this
Court should alter the sentence to that of the one punishable under  Section
304 Part-I IPC instead of under Section 302 IPC because it was  not  a  case
of murder but it was a case of culpable homicide not amounting to murder.
13.   Per contra, learned Counsel for the respondent supported the  impugned
order and urged that two courts have rightly held the appellants guilty  for
committing murder of  Savitribai  and  hence  the  appeals  merit  dismissal
calling no interference.
14.   Having heard the learned Counsel for the parties  and  on  perusal  of
the record of the case, we find force  in  the  submission  of  the  learned
Counsel for the appellants.
15.   Before we examine the factual matrix  of  the  case  in  hand,  it  is
apposite to take note of the law laid down by this Court on the question  as
to when culpable homicide is a murder under Section 300 "thirdly"  and  what
are the elements which the  prosecution  should  establish.  This  Court  in
Virsa Singh v. State of Punjab,  1958  SCR  1495,  examined  this  issue  in
detail.
16.   The learned Judge Vivian Bose in his distinctive style of writing  and
speaking for the Court succinctly stated as under:

"13. In considering whether the intention was to inflict  the  injury  found
to have been inflicted, the enquiry necessarily proceeds on broad lines  as,
for example, whether there was an intention  to  strike  at  a  vital  or  a
dangerous spot, and whether with sufficient  force  to  cause  the  kind  of
injury found to have been inflicted. It is,  of  course,  not  necessary  to
enquire into every last  detail  as,  for  instance,  whether  the  prisoner
intended to have the bowels fall out, or whether he  intended  to  penetrate
the liver or the  kidneys  or  the  heart.  Otherwise,  a  man  who  has  no
knowledge of anatomy could never be convicted, for,  if  he  does  not  know
that there is a heart or a kidney or bowels,  he  cannot  be  said  to  have
intended to injure them. Of course, that is not the kind of enquiry.  It  is
broad-based and simple and based on commonsense: the kind  of  enquiry  that
"twelve good men and true" could readily appreciate and understand.
14. To put it shortly,  the  prosecution  must  prove  the  following  facts
before it can bring a case under Section 300 "thirdly";
15. First, it must establish, quite objectively, that  a  bodily  injury  is
present;
16. Secondly, the nature of the injury must  be  proved;  These  are  purely
objective investigations.
17. 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.
18. Once these  three  elements  are  proved  to  be  present,  the  enquiry
proceeds further and,
19. 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.
20. Once these four elements are established by  the  prosecution  (and,  of
course, the burden is on the prosecution throughout) the offence  is  murder
under Section 300 "thirdly". It does not matter that there was no  intention
to cause death. It does not matter that  there  was  no  intention  even  to
cause an injury of a kind that is sufficient to cause death in the  ordinary
course of nature (not that there is any real distinction between  the  two).
It does not even matter that there is no knowledge that an act of that  kind
will be likely to cause death.  Once  the  intention  to  cause  the  bodily
injury actually found to be 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."


17.   Relying on the aforesaid principle of  law,  recently  this  Court  in
Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of  Andhra  Pradesh  (2006)11
SCC 444, again examined the issue as to  what  relevant  factors  should  be
kept in consideration while deciding the question  as  to  whether  case  in
hand falls under Section 302 or 304 Part-I or  Part-II.  Justice  Raveendran
speaking for the Court held in para 29 as under:
"29. Therefore, the court should proceed to decide the pivotal  question  of
intention, with care and caution, as  that  will  decide  whether  the  case
falls under Section 302 or 304  Part  I  or  304  Part  II.  Many  petty  or
insignificant matters - plucking of a fruit, straying of cattle, quarrel  of
children, utterance of a rude word or  even  an  objectionable  glance,  may
lead to altercations and group clashes culminating in deaths. Usual  motives
like revenge, greed, jealousy or suspicion may be  totally  absent  in  such
cases. There may be no intention. There may be no  premeditation.  In  fact,
there may not even be criminality. At the other end of the  spectrum,  there
may be cases of murder where the accused attempts to avoid the  penalty  for
murder by attempting to put forth a case that  there  was  no  intention  to
cause death. It is for the  courts  to  ensure  that  the  cases  of  murder
punishable  under  Section  302,  are  not  [pic]converted   into   offences
punishable under Section 304 Part I/II, or cases of  culpable  homicide  not
amounting to murder, are treated as murder  punishable  under  Section  302.
The intention to cause death can be gathered generally  from  a  combination
of a few or several  of  the  following,  among  other,  circumstances:  (i)
nature of the weapon used; (ii)  whether  the  weapon  was  carried  by  the
accused or was picked up from the spot; (iii) whether the blow is  aimed  at
a vital part of the body; (iv) the  amount  of  force  employed  in  causing
injury; (v) whether the act was in the course of sudden  quarrel  or  sudden
fight or free for all fight; (vi) whether the incident occurs by  chance  or
whether there was any premeditation;  (vii)  whether  there  was  any  prior
enmity or whether the deceased was a stranger; (viii) whether there was  any
grave and sudden provocation, and if so, the  cause  for  such  provocation;
(ix) whether it  was  in  the  heat  of  passion;  (x)  whether  the  person
inflicting the injury has taken undue advantage or has acted in a cruel  and
unusual manner; (xi) whether the accused dealt  a  single  blow  or  several
blows. The above list of circumstances is, of  course,  not  exhaustive  and
there  may  be  several  other  special  circumstances  with  reference   to
individual cases which may throw light on  the  question  of  intention.  Be
that as it may."

18.   Applying the aforesaid principle of law to the facts of  the  case  in
hand and keeping the same in consideration when we examine the  evidence  of
the prosecution, we find that this is a case  where  the  appellants  should
have been convicted for the offence  punishable  under  Section  304  Part-I
instead of Section 302 IPC.
19.   It is for the reason that firstly, neither there was  any  motive  and
nor any intention on  the  part  of  any  of  the  appellants  to  eliminate
Savitribai. Secondly, there was no enmity of any  kind  with  Savitribai  in
person with any of the appellants. Thirdly, the appellants  had  gone  there
to take possession of the cattle shed and not with an intention to kill  any
member of the family of Madhavrao Renge. Fourthly, if at all, if  there  was
some kind of animosity or jealousy then it was towards A-1 whose  panel  had
won the election.  Savitribai had nothing to do with  election  because  she
never contested the election.  Fifthly, despite the  appellants  armed  with
weapons, none of them inflicted any injury or gave blow  to  Savitribai  but
single blow was inflicted  only  on  Madhavrao,  who  fortunately  survived.
Sixthly, Savitribai died due to  sustaining  of  burn  injuries,  which  she
suffered because the appellants ablazed the cattle shed by pouring  kerosene
on it. In other words, if the appellants had not  ablazed  the  cattle  shed
then the incident of death of Savitribai would not have occurred.  Eighthly,
it was a fight on a spur of moment between the two male groups on the  issue
of taking possession of cattle shed with no intention to kill  any  one  and
lastly, in the absence of any overt act attributed to any of the  appellants
towards Savitribai for inflicting any injury to her,  the  appellants  could
not have been convicted for an offence of committing  murder  of  Savitribai
so as to attract the rigour of Section 302 IPC and instead they should  have
been convicted for an offence of culpable homicide not amounting  to  murder
under Section 304 Part I IPC.
20.   In the light of foregoing discussion, we allow the  appeals  in  part.
The appellants are accordingly convicted for  an  offence  punishable  under
Section 304  Part-I  IPC  instead  of  Section  302  IPC  and  each  of  the
appellants is hereby awarded 7 years RI.
21.   So far as the conviction and sentence  awarded  by  the  courts  below
under various other sections, as specified above, are  concerned,  they  are
upheld calling no interference.  All the sentences shall  run  concurrently.

                 .............................................J.
                                  [DIPAK MISRA]


               .................................................J.
                               [ABHAY MANOHAR SAPRE]
      New Delhi;
      February 2, 2015.


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