NEUTRAL CITATION
R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1077 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANCHALBEN NARROTAMBHAI PATEL & 1 other(s)
Versus
STATE OF GUJARAT
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Appearance:
MR. HARDIK K RAVAL, ADVOCATE for the Appellants
MR K.M. ANTANI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 20/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present criminal appeal preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as "the Cr.P.C." for short) is directed against the judgment of Page 1 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined conviction and order of sentence dated 08.09.2015 passed by 2nd (Ad hoc) Additional Sessions Judge, Ankleshwar, Dist. Bharuch in Sessions Case No.116 of 2013, wherein and whereby, the appellants i.e. the accused No.1 and accused No.2 are convicted for the offences punishable under Sections 302 read with Section 114 of the Indian Penal Code, 1860 (hereinafter referred as "the IPC", for short) and sentenced for rigorous imprisonment for life and a fine of Rs.500/- each and in default of payment of fine, a simple imprisonment for 15 days is imposed. In addition to the aforesaid sentence, the accused Devendrabhai @ Deepakbhai Narrottambhai Patel is also convicted for the offence under Section 135 of the Gujarat Police Act, 1951 (the G.P. Act) and sentenced to undergo one month simple imprisonment.
BRIEF FACTS:
2. The case of the prosecution as per the charge at Exh.5 is that on 27.04.2013 at 21:30 hours, the accused No.2 - Chanchalben Narrotambhai Patel caught hold of the deceased Ganpatbhai and the accused No.1 - Devendrabhai @ Deepak Narrottambhai Patel, inflicted a blow of iron pipe on the head of the deceased, which resulted into his death. The deceased was immediately taken into 108 ambulance to the Hansot Government Hospital, where he was declared as dead. The accused No.1 was arrested on 29.04.2013 and the accused No.2 was arrested on 28.04.2013. Both the accused have undergone almost 10 years of incarceration. As per the case of the prosecution the incident has occurred for the reason that Page 2 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined the deceased believed that the accused No.1-Deepakbhai was involved in theft of battery and he also, threatened to take away the rickshaw. When the deceased was going to confront both the accused, the accused - Chanchalben caught hold of the deceased behind his back and thereafter, the accused - Deepak inflicted iron pipe on his head. A complaint was registered by the brother of the deceased - Mohanbhai Narsinhbhai Patel, who is an eye-witness of the incident. He is examined as PW-1 at Exh.9. The Trial Court, after examining the ocular evidence of 19 witnesses as well as documentary evidences, convicted and sentenced the accused, as mentioned hereinabove.
SUBMISSIONS ON BEHALF OF APPELLANTS/CONVICTS: -
3. Learned advocate Mr.Hardik K. Raval, appearing for the appellants / accused has submitted that the Trial Court fell in error in convicting and sentencing the accused for the offences punishable under Sections 302 and 114 of the IPC. It is submitted that the story of the prosecution is unbelievable to the extent that the accused - Chanchalben caught hold of the deceased so firmly that either the deceased or the first informant could not get him freed, especially when the accused lady is of 55 years of age and the deceased was having strong built.
4. Learned advocate Mr.Raval, has further submitted that the Panchnamas, which are prepared and carried out by the prosecution, do not inspire confidence. It is submitted that the discovery panchnama at Exh.37 loses its credibility inasmuch Page 3 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined as PW-11, Kakuji Sindhi, has admitted that he has signed the discovery panchnama, after reaching the police station and has not signed it at the place from where the weapon was discovered and, therefore, the discovery panchnama could not have been relied upon whilst convicting the accused.
5. Learned advocate Mr.Raval, has further submitted that the first informant has disclosed in his deposition that the accused has inflicted first blow on the head of the deceased and thereafter, when he was released by the lady accused, another two blows were given on the head of the deceased, whereas the medical evidence, more particularly the postmortem report (PM report) does not reveal two injuries and was only a single injury, which was found on the head of the deceased. Thus, it is submitted that the first informant can be said to be the unreliable witness.
6. Learned advocate Mr.Raval, has further submitted that in fact, the deceased was going towards the house of the accused and they met on the way and it cannot be said that there was a premeditation on behalf of the accused to commit the murder of the deceased.
7. While referring to the evidence of Dr.Hariprasad Durlabhram (PW-12), learned advocate Mr.Raval has submitted that in fact, the doctor has admitted that if the deceased was immediately medically treated, he would have survived.
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8. Learned advocate Mr.Raval, has further submitted that assuming that the offence has been committed, however, the Trial Court has misdirected itself in convicting the accused for the offence punishable under Section 302 of the IPC by treating the culpable homicide as a murder, whereas looking to the facts of the case, the offence will amount to culpable homicide not amounting to murder, as it would fall within the parameter of Exception 4 to Section 300 of the IPC. It is thus submitted that since the accused has undergone almost 10 years of incarceration, they should be released by convicting them under the provisions of Section 304, Part II of the IPC. In support of his submissions, reliance is placed on the judgment of the Supreme Court in the case of Anbazhagan vs The State represented by the Inspector of Police passed in Criminal Appeal No.2043 of 2023 dated 20.07.2023.It is urged that the present appeal may be allowed.
SUBMISSIONS ON BEHALF OF THE STATE: -
9. In response to the aforesaid submissions, learned Additional Public Prosecutor Mr.K.M. Antani, has submitted that the conviction and the sentence imposed by the Trial Court does not require inference as the same is appropriately passed after examining the oral as documentary evidence. Learned Additional Public Prosecutor has submitted that the evidence reveals that there was a premeditation on behalf of the accused to commit murder since the lady accused had caught hold of the deceased, whereas the accused No.1 inflicted blow on the head of the deceased with such intensity that he died on the spot.
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10. Learned Additional Public Prosecutor, while referring to the deposition of PW-1 - first informant, who is the brother of the deceased and was present at the scene of the offence, has submitted that his evidence is more than enough to convict the accused for the offence punishable under Section 302 of the IPC.
11. Learned APP has further submitted that if the evidence of PW-1 is read with conjunction with the PM report, the same would reveal that the accused No.1 had inflicted blow on the head of the deceased with such an intensity that he died intensely on the spot and it can be presumed that the accused had intention as well as the knowledge that their act would result into the death of the deceased. Learned APP has further submitted that the opinion of the doctor relating to the prompt medical treatment for survival of the deceased will not dent the case of the prosecution since after the assault on the deceased, he was immediately taken in 108 ambulance and was declared as dead. It is submitted that the accused had committed the offence at around 21.30 hours on 27.04.2013 and his postmortem was initiated on the very same day i.e. on 27.04.2013 at 23:45 hours. It is submitted that the offence has been registered on 22:45 hours on 27.04.2013 at the Hansot Police Station.
12. Learned APP has further placed reliance on the deposition of the PW-3 - Satishbhai Khumanbhai Patel and has submitted that his deposition also reveals that the accused No.1 has inflicted blow on the head of the deceased, whereas the accused No.2 caught hold of the deceased. He has submitted Page 6 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined that the said witness has seen accused No.1 - Deepakbhai holding an iron pipe in his hand. Learned APP has further submitted that the accused will not get the benefit of Exception 4 to Section 300 of the IPC, since the evidence does not reveal that the offence has occurred in a sudden fight in the heat of passion upon a sudden quarrel and without premeditation and thus, it is urged that the conviction and sentence recorded by the Trial Court does not require any interference.
ANALYSIS OF EVIDENCE:
13. We have heard the learned advocates appearing for the respective parties and also examined the evidence threadbare as well as the judgment of the Trial Court.
14. The facts, which are established from the evidence is that on 27.04.2013 at 21:30 hours, accused No.1 - Devendrabhai @ Deepak Narrottambhai Patel and accused No.2, Chanchanlben, who is the mother of the accused No.1, committed the offence punishable under Section 302 of the IPC read with Section 114 of the IPC. It is the case of the prosecution that the accused No.2 caught hold of the deceased from behind, whereas the accused No.1 inflicted a blow of the iron pipe on the head of the deceased, which resulted into his death. The accused were charged and prosecuted for committing the offence under Section 300 of the IPC, which defines murder and after examining the oral as well as documentary evidence, as mentioned hereinabove, the trial convicted both of them and sentenced to rigorous imprisonment for life.
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15. The case of the prosecution is primarily premised on the eye-witness, Mohanbhai Narsinhbhai Patel (PW-1), who is the brother of the deceased. A close reading of his deposition at Exh.9 reveals that he was present at the time of the incident. He has narrated that he met his brother on the way on that day (at 9:30 p.m.) and inquired as to 'where he was going', and he informed that accused No.1 - Deepakbhai has stolen the battery of the rickshaw of Bhupatbhai and he is going to sell the rickshaw also. He has specifically narrated that while he was talking with the deceased at that time the accused no.1 and the accused No.2 came there. Accused No.1 was holding a shining iron pipe in his hand and accused No.2, who is the mother of the accused No.1 came from behind and caught hold of the deceased and at that time, the accused No.1 inflicted a blow on the head of the deceased and the deceased fell down immediately and after falling down, the accused No.1 again inflicted two more blows on the head of the deceased. It is further narrated that at the same time, one Govindbhai Vasantbhai Patel (PW-2) had come on the spot and called 108 ambulance and at that time, the deceased was taken into the ambulance at the Hansot Government Hospital, where he was declared as brought dead.
16. The cross-examination does not dent the evidence of the eye-witness PW-1. Thus, PW-1, who is the witness of the incident, his evidence at Exh.9 appears to be of a sterling quality. It is the case of the accused the version of this witness does not reconcile with the PM report. It is contended that the PM report (Exh.41) reveals injury of a single blow on the head of the deceased, whereas the present witness says about total Page 8 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined three blows. In the cross-examination of this witness, it is elicited that other two blows were inflicted on the same spot. Thus, the PM report, though may indicate a single injury, but the same can also be caused by repeated blows inflicted on the same area. So far as the weapon of offence is concerned, he has referred it as iron pipe as well as iron rod. Such reference of the weapon will not impact his testimony. Thus, this witness has actually seen the accused No.1 inflicting the blow of the iron pipe on the head of the deceased, whereas the accused No.2 holding him from behind. PW-3 - Satishbhai Khumanbhai Patel, in his evidence at Exh.13, who has arrived on the scene of incident and has seen the deceased collapsing on the ground and in the state of severe bleeding. He has seen both the accused and the accused No.1 holding the iron pipe in his hand.
17. It is also noticed by us that the FIR has been registered at around 10:45 p.m. and the deceased was brought dead at the dispensary, when he was taken to the Government Hansot Hospital by 108 ambulance. The PM report indicates that the postmortem was initiated at 23:45 hours, after the inquest panchnama was carried out at 11:00 p.m. Thus, the time gap between the assault on the deceased by the accused and he being taken in 108 ambulance to the Civil Hospital Dispensary is very short. The postmortem at Exh.41 indicates the following injuries on the head of the deceased :-
"Injury
1.CLW-10.0 x 1.0 cms skinfull thickneas deep.
frontal region Right side right to midline 3.0 cm above cenal part of Right eye Brow."Page 9 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023
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18. Doctor (PW-12), who has undertaken the postmortem in his deposition at Exh.39, has narrated the injury, which was found on the deceased. The cause of death as per PM report and as per the deposition of the doctor reveals that "cause of death in this case is cardio respiratory arrest as a result of Hemorrhagic shock following Head Injury fracture Right frontal bone & Intracerebral hemorrhage frontal bone Right of Brain."
19. In his cross-examination, it is elicited from him that as per his opinion the blow was inflicted with a great force. It is also elicited from him that if the deceased was immediately treated, he would have survived. Such an opinion of the doctor cannot lessen the gravity of offence. The facts reveal that after the deceased was assaulted, he was immediately taken in the ambulance and he was brought dead to the hospital. The offence occurred at around 9:30 p.m. at around 21.30 hours on 27.04.2013 and his postmortem was initiated on the very same day i.e. on 27.04.2013 at 23:45 hours. The offence has been registered on 22:45 hours on 27.04.2013 at the Hansot Police Station. Thus, the time gap between the assault and the death of the deceased is very short. The availability of immediate and timely treatment to a patient, who has received fatal injury will depend on various factors. The evidence does not reveal any laxity on the part of the witnesses for getting immediate treatment to the deceased. The ambulance was immediately called by dialing 108, and the deceased was thereafter rushed to the nearest hospital, but he was already dead. Looking to the fact and circumstances of the present case, a bare negligible statement of the doctor, as made above without Page 10 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined explaining the lack of medical treatment which could have saved the deceased, cannot rescue the accused from the guilt.
20. The accused want to take shelter under the provisions of Section 304 of the IPC by contending that their case would fall under Exception 4 of Section 300 of the IPC.
21. It is the case of the prosecution that the evidence reveals that the accused have committed murder as defined under Section 300 of the IPC. Section 300 of the IPC reads as under: -
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
2ndly.--If it is done 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--
3rdly.--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, or--
4thly.--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.
Exception 1.-- When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.Page 11 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023
NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault ."
22. On the appreciation of the evidence - both oral as well as medical, in our considered opinion, the offence of murder is established, more particularly in light of the clauses secondly and thirdly of Section 300 of the IPC. The injury was inflicted using such a force and precision that it can be safely presumed that the accused had intention of causing such deadly injuries, which they knew that it would likely to cause death of the deceased or it would be sufficient in ordinary course of nature to cause death. The deceased had immediately succumbed to death after the blows were inflicted on his vital part of the body.
23. The ingredients of Exception 4 of Section 300 of the IPC would indicate that a culpable homicide is not a murder, if it is committed without premeditation or sudden fight in the heat of the passion upon a sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner.
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24. We do not find that evidence satisfies the ingredients of Exception 4 in the present case. There was no sudden fight or sudden quarrel between the deceased and the accused. The accused No.1 was already armed with an iron pipe in his hand and accused No.2 caught hold of the deceased and restricted his movement and having taken advantage of such situation, the accused No.1 inflicted a deadly blows on the head of the deceased with precision, which resulted into his death. Thus, in no circumstance, the case of the accused will fall under the provisions of Exception 4 of Section 300 of the IPC and hence, the accused cannot be given the benefit of such exception.
25. The provisions of Section 304 of the IPC read as under :-
"Section 304. Punishment for culpable homicide not amounting to murder.
304. Punishment for culpable homicide not amounting to murder.-- Whoever commits culpable homicide not amounting to murder shall be punished with 1*[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death. or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. "
26. The provisions of Section 304 would only get attracted, where the culpable homicide does not amount to murder, which is defined in the exceptions to Section 300.
27. The appellant, in support of their submissions, placed reliance on the judgment in the case of Anbazhagan (supra), the Supreme Court, after threadbare analysis of the provisions of Section 300 its exceptions and Section 304 of the IPC and Page 13 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined after survey of various judgments, has prescribed the principles in paragraph No.16.
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is guilty intention, whereas the second part would apply when there is no such intention, but there is guilty knowledge.Page 14 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023
NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, Istly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to Page 15 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023 NEUTRAL CITATION R/CR.A/1077/2015 JUDGMENT DATED: 20/09/2023 undefined cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
28. Paragraph Nos.9, 10 and 11 of afore-noted principles clarify that even single injury, which is inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause of death, or that particular injury, which resulted in the death of the victim will not cause death. It is also held that when the prosecution proves that the accused had intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury, which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. In the present case, though the PM report reveals single injury, however the ocular evidence reveals that that three blows are inflicted on the same spot of the head of the deceased.
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29. As noted hereinabove, we are of the opinion that the evidence does not even remotely suggest that any of the exception of Section 300 of the IPC will get attracted. Hence, the present appeal fails and the same is rejected. We do not find any infirmity in the impugned judgment and order passed by the Trial Court recording the conviction and sentence of the accused suffers from any perversity.
30. Record and proceedings, if any, shall be sent back to the concerned trial Court, forthwith.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(M. R. MENGDEY,J) MAHESH/41 Page 17 of 17 Downloaded on : Wed Sep 27 20:30:28 IST 2023