Bombay High Court
Balwan Jodharam vs The State Of Maharashtra on 6 August, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:17104-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 955 OF 2022
Balwan Jodharam,
Age: 34 years, Occu. Driver,
R/o. Pichopa, Kalan (15),
Tq. & Dist. Charkhi Dadari (H.S.) ...Appellant
[Orig. Accused]
Versus
The State of Maharashtra ...Respondent
.....
Mr. Sudarshan J. Salunke - Advocate for the Appellant
Mr. Govind A. Kulkarni - APP for respondent/State
.....
CORAM : R. G. AVACHAT
AND
NEERAJ P. DHOTE, JJ.
DATE OF RESERVING THE JUDGMENT : 08.07.2024
DATE OF PRONOUNCING THE JUDGMENT : 06.08.2024
JUDGMENT [Per : Neeraj P. Dhote, J.] : -
1. By this Criminal Appeal filed under Section 374[2] of the
Code of Criminal Procedure [hereinafter referred to 'Cr.P.C.'], the
Appellant has challenged the Judgment and Order dated 20.12.2021
passed by the learned Additional Sessions Judge, Hingoli, in Sessions
Trial No. 51/2018, convicting him for the offence punishable under
Section 302 of the Indian Penal Code (hereinafter for the sake of brevity
referred to as "IPC") and sentencing to suffer imprisonment for life and
to pay fine of Rs.3,000/- [Rupees Three Thousand], in default to pay the
fine, suffer imprisonment for six months.
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2. The Prosecution's case in nutshell, is as follows : -
2.1. ASI attached to Akhada Balapur Police Station, Dist.Hingoli,
received information on 19.07.2018, around 05:00 p.m., that one
person was lying dead in one container halted at Sher-E-Punjab Dhaba,
which was within the jurisdiction of Mouje Jaroda Pati. The said
information was provided by the owner of Dhaba. The police reached
the said spot. The inquest was drawn. The body was referred to Akhada
Balapur Rural Hospital for post mortem. The Medical Officer opined
provisional cause of death as 'Haemorrhagic shock due to chest injury'.
The A.D.R. No.30/18 came to be registered under Section 174 of the
Cr.P.C. The police conducted an inquiry and recorded statements of the
persons working at the puncture shop and greasing & servicing
workshop situated in front of the Dhaba. It was revealed from the said
persons that on 19.07.2018, around 04:00 p.m., they heard thud, so
they both proceeded towards the container. They noticed quarrel
between two persons. One of them abused them and asked them to
leave. The said person who threatened them, lifted the person who was
lying on the ground and put him in the container. The person who put
the injured in the container left the spot in another container.
2.2. It was revealed from the owner of the container in which
the body was lying, that the another container also belonged to him.
3 APEAL955.2022J.odt
The necessary documents were called from the owner of the container
through electronic medium. It was revealed that the assaulter was the
driver of the container who left the spot. P.W.1 - Police Officer Nagnath
S. Deepak lodged report bearing No. 210/2018 with Akhada Balapur
Police Station, Dist. Hingoli, for the offence punishable under Section
302 of the Indian Penal Code and set the criminal law in motion.
3. The statements of witnesses were recorded. The accused
came to be arrested. Articles which were seized during the course of
investigation were sent for chemical analysis. The statements of
witnesses came to be recorded under Section 164 of the Cr.P.C. The
mobile phone of the deceased came to be seized, call details of the
mobile phone of the accused and the deceased were collected. On
completion of investigation, the Appellant came to be Charge-sheeted.
3.1. The learned trial Court framed the Charge against the
Appellant for the offence punishable under Section 302 of the Indian
Penal Code, vide Exh. 04, to which the Appellant pleaded not guilty and
claimed to be tried. To prove the Charge, the prosecution examined in
all Eleven (11) witnesses and brought on record the documentary
evidence. On completion of prosecution's evidence, the learned trial
Court recorded the statement of Appellant under Section 313(1)(b) of
the Cr.P.C. The Appellant denied the Charge and evidence of
4 APEAL955.2022J.odt
prosecution. On appreciating the evidence on record and hearing both
the sides, the learned trial Court passed the impugned Judgment and
Order.
4. It is submitted by learned advocate for the Appellant that
the prosecution failed to prove the Charge with cogent evidence. The
injuries found on the person of deceased were not imminently fatal.
Even if the evidence available on record is taken as it is, it fall short of
intention on the part of Appellant to commit Murder. At the most the
crime would fall under Section 325 of the IPC. He submitted that the
conviction for the offence punishable under Section 302 IPC be quashed
and set aside. In support of his submissions, he relied on the judgment
of the Hon'ble Supreme Court of India in the case of Shri Kishan and
others v State of U.P., AIR 1972 SC 2056.
5. The learned APP submitted that the case is based on the
testimony of eye-witnesses. Considering the nature of assault and the
injuries on the deceased, the intention to commit Murder was writ large.
There was sufficient evidence on record to prove the Charge and the
learned trial Court has rightly appreciated the evidence and convicted
the Appellant and no interference is warranted. In support of his
submissions, he relied upon the judgment of the Hon'ble Supreme Court
of India in the case of Prasad Pradhan & Anr. versus The State of
Chhattisgarh in Criminal Appeal No. 2025 of 2022 on 24.01.2023.
5 APEAL955.2022J.odt
6. Scrutiny of the evidence on record show that, P.W.2 - Vithal
Chandu Bhise and P.W.5 - Sahebrao Manikrao Maske were examined as
the eye-witnesses to the incident, P.W.7 - Sarjitsingh Jagtarsingh Sandhu
was the owner of Dhaba in front of which the incident had taken place,
P.W.8 -Rameshchandar Dhulichand Bhalotiya was the transporter and
owner of container, P.W.3 - Gautam Ramrao Bahatare was running the
Pan Shop near the Dhaba, P.W.1 - Nagnath Shankarrao Dipak was the
Police Officer, who reached the spot of incident after receiving the
information, P.W.6 - Rajeshwar Suryakant Vyawahare was the
Photographer, who clicked the photographs, P.W.10 - Dr. Sangram Bhivaji
Narote was the Medical Officer, who conducted the post mortem,
P.W.9 - Kanha @ Radheshyam Narayan Kokare before whom one mobile
was seized, P.W.4 - Rani Balwansing Tawar, wife of deceased and
P.W.11 - Tanaji Digambar Cherle, who conducted the investigation.
7. The evidence of P.W.8 - Rameshchandar Dhulichand
Bhalotiya show that he was the Transporter at Badoda in Gujarat State.
He owned many containers. Containers No. GJ-06-AZ-1728 and
GJ-14-W-2827 belonged to him. The appellant and the deceased were
working as the driver with his transport company. The deceased was
working with him since fifteen (15) days prior to the incident. The
deceased was introduced to him by the Appellant. On 18.07.2018,
6 APEAL955.2022J.odt
Container No.GJ-06-AZ-1728 was engaged for transportation from
Hyderabad to Indore, which was being driven by the Appellant and
Container No.GJ-14-W-2827 was engaged for transportation from
Hyderabad to Ahmedabad, which was being driven by the deceased.
The deceased was addicted to liquor. Deceased changed the route and
brought the container, which was being driven by him, on the route of
container which was being driven by the Appellant.
8. His further evidence show that on 28.07.2018, he was
informed by one driver - Ramnivas that the container which was being
driven by the deceased was halted at Sher-e-Punjab Dhaba and driver
was lying dead. These aspects are the omissions in his previous
statement, however, they are not material so as to affect his above
referred testimony. It is established from the evidence of this witness
that the Appellant and deceased were knowing each other and it was the
Appellant at whose instance the deceased got the employment as the
driver in the Transport Company of this witness.
9. The evidence of P.W.3 - Gautam Ramrao Bahatare show that
he was having Pan Stall near Sher-e-Punjab dhaba, which was given on
rent to one person. On 20.07.2018, he went to his said shop where he
learnt from P.W.5 - Sahebrao Manikrao Maske about quarrel between
two drivers of the containers (Relevant under Section 6 of the Evidence
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Act) and he saw the driver in a dead condition inside the Container
bearing No.GJ-14-W-2827. The police arrived and removed the dead
body from the container, which was taken to the hospital. Not knowing
the container numbers by this witness is natural. The attempt in the
cross-examination to show that, his evidence that he learnt from PW5 -
Sahebrao Manikrao Maske about the quarrel between two drivers of the
containers was the omission failed, as the same was not put to P.W.11 -
Tanaji Digambar Cherle, Investigating Officer, who recorded his
statement.
10. The evidence of P.W.7 - Sarjitsingh Jagtarsingh Sandhu
show that he was running Hotel / Dhaba by name Sher-e-Punjab near
the spot of incident. On 20.07.2018, when he was at the Dhaba, the
container bearing No. GJ-14-W-2827 was parked adjacent to the said
Dhaba. P.W.3 - Gautam Ramrao Bahatare had gone near the said
container and since it was halted for a long time, he came to him and
they both went near the said container. He opened the cabin door and
went inside. He found the deceased therein. The cell phone number of
container owner was written on the container and so he gave a call on
the said number and informed as to what he saw inside the cabin.
Thereafter, he informed Akhada Balapur Police. Police came on the spot.
His statement [Exh.56] was recorded. He identified the printed report
of unnatural death bearing his signature registered by the concerned
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Police Station. Nothing has come in the cross-examination to discard his
testimony.
11. There is medical evidence on record in the nature of
testimony of the Medical Officer - Dr. Sangram Bhivaji Narote, who is
examined as P.W.10. His evidence show that, on 20.07.2018, he was
working as a Medical Officer at Rural Hospital, Akhada Balapur,
Dist.Hingoli. On that day, he received the dead body of Balwan
Havasingh. He noted the following aspects and injuries while
performing the post mortem : -
i) The condition of the dead body was moderately nourished
and it was cold body.
ii) Noticed rigor mortis slightly present over upper and lower
limbs.
iii) No sign of decomposition. Post-mortem lividity present over
buttock and back region.
iv) Eyes were semi opened. Pupils were dilated and fixed. The
mouth was semi opened. The tongue was inside mouth.
Teeth were intact.
v) No injuries to external genitals. No indication of purging.
vi) Both upper limbs were flexed at the elbow and slightly
pronoted. Both lower limbs were flexed at knees and supine.
External Injuries : -
i) Contused abrasion situated over left chest ad-measuring
6 c.m. x 2 c.m., 3 c.m. x 2 c.m., 2 c.m. x 1 c.m.
ii) Contused abrasion situated over mid sternal region
admeasuring 6 c.m. x 1 c.m.
iii) Compound fractures of 6th, 7th, 8th and 9th ribs on the left side.
9 APEAL955.2022J.odt
iv) Palpation compound fractures to left ribs 6th, 7th, 8th and 9th.
ix) The injuries noted in column No.17 and 18 were ante
mortem.
Internal Injuries : -
(i) Skull vault was intact and brain matter was congested.
(ii) Upon examination of thorax region, found compound
fracture left 6th, 7th, 8th and 9th ribs. Found blood in plural
cavity (haemo thorax). The right lung was congested and
the left lung was found contusion over middle and lower
lobes. The right chamber of the heart was empty and the
left chamber of the heart found 200 ml blood around. He
did not notice any clots in left chamber of the heart.
(iii) The abdomen was haemoperitoneum. The mouth was semi
opened and the tongue was inside mouth and the teeth
were intact. He noticed semi solid, semi liquid food
particles in the stomach. The small intestines were empty.
The large intestines were empty with gases. The liver and
gal bladder were congested. The pancreas and suprarenals
were congested. The spleen was congested. The kidneys
were congested. The bladder was empty.
11.1. The Medical Officer opined that the injuries noted in
column No. 17 and and 18 were ante mortem and the cause of death as
'Haemorrhagic shock due to chest injury'. He prepared post mortem
report at Exh. 67. He opined that the injuries mentioned in column
nos.17 and 18 were possible in case of assault by fist and by putting
down a person on the hard surface after lifting. He opined that, there
might be forceful fist blow. He further opined that, the death of the
person is possible in case of forceful fist blow and lifting a person and
putting down on the hard surface. The evidence further show that he
could not opine whether the death was homicidal or suicidal.
10 APEAL955.2022J.odt
11.2. His cross-examination show that, he further opined that the
injuries mentioned in column nos. 17 and 18 were possible by fall from
the cabin of the truck. It is further brought in the cross-examination
that the death was possible in case a person falls from the cabin of the
truck, and upon sustaining the above referred injuries the death was
possible.
11.3. Though the Medical Officer opined the possibilities of death
as referred above and he could not give clear opinion whether the death
was homicidal or suicidal, the injuries are proved.
12. Now coming to the evidence of the eye-witnesses, what is
seen is that P.W.2's elder brother was having the shop for removing
puncture of the tyres, in front of said dhaba. He occasionally used to go
to the said shop to help his brother. On 19.07.2018, he had been to the
said shop and he was there for whole day as his brother went home. In
the cross-examination, the clarification for his presence at the shop on
the said day is brought on record. It show that, on that day he had taken
leave from his school by submitting an application to Mane Sir of the
School and on that day he was shown absent in the school. Thus, from
the said evidence in the cross-examination, the presence of this witness
at the puncture shop cannot be doubted. The evidence of P.W.5 show
11 APEAL955.2022J.odt
that he was engaged in the work of applying grease to the trucks which
halted at the said Dhaba. He corroborates the testimony of P.W.2 that
P.W.2's brother was running a puncture shop and P.W.2 used to work
there to clean the filters of the truck.
13. The scrutiny of the evidence of P.W.2 and P.W.5 show that,
on 19.07.2018 when they were chatting, they heard sound from nearby
containers/trucks. They went near the container/truck. They saw the
Appellant assaulting the deceased with fist blows. Though PW5's
evidence show that the Appellant sat on the driving seat and started the
vehicle and gave dash to the deceased who was on the ground, P.W.2
nowhere deposed about the dash by the vehicle to the deceased. The
common thread in their evidence is that the Appellant was assaulting
the deceased with fist blows and when they reached near the spot of
incident, the Appellant abused them and asked them to leave and the
Appellant put the deceased in the cabin of container. The evidence of
P.W.5 show that after the Appellant abused them and asked them to go,
they ran away at some distance and witnessed the incident from that
spot. Their evidence show that, thereafter, they both left for their
respective houses.
14. The evidence of P.W.2 show that, on the next day the Police
Officer (P.W.1 - Nagnath S. Dipak) came at the Dhaba and made inquiry.
12 APEAL955.2022J.odt
During inquiry, P.W.1 showed one photo from the Aadhaar Card, which
was identified by P.W.2 as that of the Appellant. Whatever omissions are
brought in paragraph no. 7 of the evidence of P.W.2, they are from his
statement recorded under Section 164 of the Cr.P.C. His evidence do not
show that there were omissions/material omissions in his previous
statement under Section 161 Cr.P.C. recorded by the Police.
15. The evidence of P.W.5 show that, on the next day, out of two
trucks standing on the previous day, only one truck was seen and the
other one was not seen. One more truck of the same transport company
had come there. When they went near the truck which was standing
from the previous day, they saw the person who was assaulted, lying
dead in the cabin. His further evidence show that, Dhaba Operator
informed the Police. The Police came and made inquiry. He identified
the Appellant as the assaulter from the photo shown by the Police. His
statement was recorded by the Police.
16. Whatever omissions are shown in paragraph nos. 10 and 11
of the evidence of P.W.5, they do not affect the core of his evidence.
What can be seen from the cross-examination of P.W.5 is that, question
was put to him as to which colour clothes were worn by the accused at
the time of incident and he responded that, at the time of incident, the
accused was wearing white colour under-pant and T-shirt. There is no
denial to the said aspect in the further cross-examination. The said
13 APEAL955.2022J.odt
version in the cross-examination fortifies his testimony that he witnessed
the incident. He not only witnessed the incident but was able to watch it
closely so as to register the same in his mind.
17. From the cross-examination of P.W.2 and P.W.5, it is tried to
suggest that they did not report the incident to anyone in their village or
the Police Patil of their village and, therefore, they cannot be said to be
the eye-witness to the incident. The said evidence will not affect their
evidence for the reason that their evidence go to show that on the very
next day they informed the police about the incident. They denied the
suggestions put to them that they did not witness the incident. Both
these witnesses identified the Appellant as the same person who
assaulted the deceased on the fateful day. The incident is of 19.07.2018
and the testimony of P.W.2 was recorded on 30.11.2019 and that of P.W.5
on 7.01.2020, which show that they deposed after a period of one (1)
year four (4) months and one (1) year seven (7) months, respectively.
What is seen from the evidence of P.W.5 is that, the incident was of
05:00 p.m. or so. The evidence of both the above witnesses show that
they had closely watched the incident. The place of incident, as is clear
from the evidence on record, was in front of Dhaba where the trucks are
parked. The working places of P.W.5 and P.W.2 were on the said spot i.e.
near Dhaba. Their reaching the spot of incident after hearing the sound
was natural. Nothing has come in their cross-examination to doubt their
testimony in respect of witnessing the incident.
14 APEAL955.2022J.odt
18. In the cross-examination of P.W.5 it has come that the
Investigating Officer met him in the court, day before and two (2) days
before the day when he deposed before the trial Court and since two (2)
to three (3) days before, he had seen the accused in the court, cannot be
the reason to discard his testimony regarding the identification of the
Appellant. Though it has come that, he identified the Appellant in the
court as he had seen him for two (2) to three (3) times in the court, he
immediately volunteered that he had seen the Appellant while
assaulting.
19. It is true that there is no evidence that during the course of
investigation the Investigating Officer arranged for the Test
Identification Parade (T.I.P.), however, it is the settled position in law
that T.I.P. is for the investigation purpose and not the substantive
evidence. Thus, the identification aspect cannot be discarded for want
of T.I.P. The identification in the court is the substantiate piece of
evidence. The evidence discussed above establishes that P.W.2 and P.W.5
had the opportunity to witness the incident from such distance, that they
could very well identify the assaulter at the later point of time. We see
no infirmity in the evidence of these two (2) eye witnesses. We find
their testimony natural and acceptable. From the evidence on record,
the prosecution has successfully established the identity of the Appellant
as the assaulter.
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20. Then there is evidence of wife of deceased - Rani
Balwansing Tawar, who is examined as P.W.4. She deposed that her
husband was working as a driver of the truck belonging to
Rameshchandra Bhalotiya (P.W.8) since prior to 20 (twenty) days from
the incident. On 19.07.2018, around 03:00 p.m., her husband called on
her mobile phone and informed that he was in Maharashtra. Between
07:30 p.m. and 08:00 p.m., she received a phone call from mobile
number 9755380284 and her husband's friend spoke to her in improper
manner. She disconnected the call. Again she received two to three
calls from the said mobile number, however, she did not respond to the
same. She received two vulgar messages from the said friend of her
husband. Thereafter, she received a call from the mobile number of her
husband and twice heard moaning of her husband. Thereafter, she
received a call from the mobile number of her husband and she again
heard moaning of her husband.
21. Her further evidence show that, on the next day i.e.
20.07.2018, between 07:00 p.m. and 07:30 p.m., she received a call
from the transporter (P.W.8) and he informed her the news of her
husband's death. She deposed of receiving the dead body of her
husband on 22.07.2018 and performance of funeral. The police inquired
with her and recorded her statement. Her mobile came to be seized.
Her evidence show that she never saw the accused and, therefore, did
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not identify the accused/appellant while giving her testimony. The only
omission in her previous statement is in respect of, 'her husband's friend
Balwan'. Her further evidence go to show that she had preferred Claim
Petition under the Motor Vehicles Act before the concerned Court at
Parbhani, though she denied the said fact therein.
22. As regards the phone calls to wife of deceased are
concerned, the prosecution brought on record the CDRs of mobile
numbers of the deceased's wife, deceased and of the Appellant in the
evidence of P.W.11 - Tanaji Digambar Cherle, who investigated the
Crime. The said CDRs though exhibited by the learned trial Court
cannot be taken into consideration and relied upon because the
prosecution has not examined the Nodal Officer from the service
providers of the mobile numbers. It is needless to state that for want of
evidence of the concerned Nodal Officer and certificate under Section
65-B of the Indian Evidence Act, the CDRs/phone calls details cannot be
relied.
23. The above discussed evidence establishes that the Appellant
and the deceased were working as driver with the transport company of
P.W.8 - Rameshchandar Dhulichand Bhalotiya. The deceased was
introduced in the employment by the Appellant. The Appellant assaulted
the deceased when the containers driven by both of them were halted at
17 APEAL955.2022J.odt
the dhaba of P.W.7 - Sarjitsingh Jagtarsingh Sandhu. The testimony of
eye-witnesses finds corroboration from the medical evidence, which
proved the injuries on deceased. The evidence of eye-witnesses as
discussed above, establishes assault by fist blows and banging of
deceased against the surface. The conjoint reading of the evidence of
the eye-witnesses and the Medical Officer firmly establishes that the
injuries and the cause of death was the result of assault on deceased by
the Appellant. The cross-examination of the witnesses examined by the
prosecution could not create any dent in the testimony of the witnesses.
The medical evidence established that the injuries caused to the
deceased by the Appellant proved fatal.
24. Now coming to the authorities cited by both the sides, in
the Judgment relied upon by the learned APP the issue was whether the
appellants therein were guilty of the offence of murder, punishable
under Section 302, or whether they were criminally liable under the less
severe Section 304, IPC. The relevant paragraphs are reproduced as
follows : -
16. In State Of Andhra Pradesh v. Rayavarapu Punnayya & Anr.
another oft-cited judgment, this court observed as follows:
"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
18 APEAL955.2022J.odt
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.
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
19 APEAL955.2022J.odt
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 "probable" 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. 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. Rajwant v. State of Kerala [AIR 1966 SC 1874: 1966
Supp SCR 230: 1966 Cri LJ 1509.] is an apt illustration of this
point."
. The court then quoted the decision in Virsa Singh (supra), and
held that:-
. "Thus according to the rule laid down in Virsa Singh's case
(supra) even if the intention of 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 S. 300 clearly
brings out this point. Clause (c) of S. 299 and clause (4) of S. 300
both require knowledge of the probability of the 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 cl. (4) of S. 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
20 APEAL955.2022J.odt
by the offender without any excuse for incurring the risk of causing
death or such injury as aforesaid."
. A later decision, Pulicherla Nagaraju @ Nagaraja Reddy v.
State of Andhra Pradesh10 considered these aspects and held that :-
"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 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;
21 APEAL955.2022J.odt
(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."
25. Perusal of the Judgment relied upon by the learned
advocate for the Appellant show that in the said case there was no
previous enmity between the accused and the deceased and the
occurrence was the offshoot of a trifling incident. In the said case, the
Hon'ble Apex Court altered the conviction to the offence punishable
under Section 325 r/w 34 of the Indian Penal Code.
26. Coming to the case in hand, the evidence on record
established that no weapon was used by the Appellant while assaulting
the deceased. The assault was by fist blows and dash by the container.
There is no evidence that the deceased was run over by the container.
There is no evidence to show that there was any previous enmity
between the Appellant and the deceased. The evidence further show
22 APEAL955.2022J.odt
that after the assault the deceased was put in the cabin of truck. These
circumstances do not show that the Appellant had any intention to kill
the deceased. Culpable homicide is defined under Section 299 and
Murder is defined under Section 300 of the IPC. The proved
circumstances or the evidence on record, fall short of intention on the
part of the Appellant to cause the death. However, the manner of assault
attributes the knowledge to the Appellant that the deceased was likely to
die by the act of assault. In view of above discussion, in our considered
view, the offence would fall under Section 304 Part-II of the IPC.
Therefore, the conviction and sentence need alteration. Hence, we pass
the following order:-
ORDER
(i) Criminal Appeal No. 955 of 2022 is hereby partly allowed.
(ii) The conviction recorded by the learned Additional Sessions
Judge, Hingoli, vide Judgment and Order dated 20.12.2021
passed in Sessions Trial No. 51/2018, convicting the Appellant
for the offence punishable under Section 302 of the Indian
Penal Code is hereby converted to Section 304 Part II of the
Indian Penal Code and the Appellant is sentenced to suffer
imprisonment for Seven (7) years with fine and default
sentence for non-payment of fine, as imposed by the learned
trial Court.
[NEERAJ P. DHOTE] [R. G. AVACHAT]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 07/08/2024 10:54:59
