Bombay High Court
Jagannath Pralhad Navale vs The State Of Mah. Thr. Pso Ps Dongaon ... on 6 February, 2024
2024:BHC-NAG:1798
J.52.cri.appeal.800.23.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.800 OF 2023
Jagannath Pralhad Navale
Aged about 40 years,
Occupation - Agriculture
R/o Ghatbori, Tah. Mehkar,
Buldhana
...APPELLANT
VERSUS
1. State of Maharashtra,
through P.S.O., P.S. Dongaon,
District Buldhana
2. Prakash Devram Zyate
Aged 55 years,
R/o. Nageshwadi,
Tah. Mehkar, District Buldhana
...RESPONDENTS
_______________________________________________________
Mr. M.N. Ali, Advocate for the appellant.
Ms T.H. Udeshi, APP for the State.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : FEBRUARY 6, 2024.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel for
the parties.
2. By preparing this appeal, the appellant has challenged the
order passed by the Special Judge, Mehkar, District Buldhana in Bail
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Application in Atro. Special Case No.34/2023 dated 01/09/2023 by
which the application of the appellant for grant of bail is rejected.
3. The appellant is prosecuted of the offence punishable under
Section 302 and 201 of the Indian Penal Code read with Section 3(2)(v)
and 3(2)(v)(a) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989 vide Crime No.94/2023 at Dongaon police
station, District Buldhana.
4. The crime is registered on the basis of report lodged by
Prakash Devrao Zyate. It is alleged that on 23 rd April, 2023 at about 6:00
p.m. the younger son of the informant namely Nitin has informed that
quarrel took place between the brother Ankush at Nageshwadi and
somebody has assaulted him. On the basis of information, the informant
Prakash and his wife have gone to village Nageshwadi early in the
morning. Ramdas Khillare and Ramdas Dakhore informed the informant
that on 22th April, 2023 at about 3:00 p.m. when they along with the
appellant Jagannath Navale and deceased Ankush Zyate were consuming
the liquor in the field of Dhondu Chinku Nawale. The quarrel took place
between Ankush Zyate and the present appellant on account of the
amount of mobile. At that time, present appellant has assaulted the
deceased Ankush by means of wooden stick on his head, stomach, face
and hand due to which he sustained the grievous injuries and
subsequently succumbed to the death. On the basis of said report, police
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have registered the crime. During investigation, the Investigating Officer
has recorded the relevant statements including the statements of the
eye-witnesses. The appellant has filed an application for grant of bail.
The learned trial Court has rejected the same by observing that there is a
direct evidence on record against the present appellant which shows that
the deceased was beaten by him mercilessly by means of wooden stick
and thereby caused the death. Being aggrieved and dissatisfied with the
same, present appeal is preferred by the appellant.
5. Learned Counsel for the appellant submitted that even taking
into consideration the facts as it is, at the most case of the present
appellant covers under Section 304 Part II of the Indian Penal Code.
There was a sudden quarrel between the deceased and the present
appellant and the deceased has instigated the present appellant as
present appellant was abused by the deceased. Thus, due to the grave
and sudden provocation, the alleged incident has taken place. The case
of the appellant covers under the Exception (1) given under Section 300
of the Indian Penal Code. Now, investigation is completed and charge-
sheet is filed, further incarceration of the present appellant is not
required and he be released on bail by quashing the order passed by the
trial Court.
6. Learned Additional Public Prosecutor strongly opposed the
appeal on the ground that there is a direct evidence on record
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sufficiently shows that the deceased was mercilessly beaten by the
present appellant. He submitted that even if it is considered that there
was a grave and sudden provocation, but it is not the case of the single
blow. As soon as the aspect of provocation vanishes, the appellant has to
control himself and controls his acts which is not done by the present
appellant, and therefore, the case does not cover under the Exception.
7. Learned Counsel for respondent No.2 also endorsed the same
contention.
8. Learned Counsel for the appellant placed reliance on Ajmal
Vs. State of Kerala [2022 (3) Bom.C.R.(Cri.) 313] and the order of this
Court in Criminal Application (BA) No.61/2023.
9. After hearing both the sides and on perusal of the
investigation papers it reveals that FIR is lodged by the informant on the
basis of information received by him regarding the alleged incident.
During investigation, the Investigating Officer has recorded the various
statements of the eye-witnesses from which it reveals that the deceased
and present appellant both were consuming the liquor and during that
the quarrel took place between them. As per the statement, it was the
deceased who started abusing the present appellant and both were
under the influence of liquor. Thereafter present appellant has picked up
the wooden log and assaulted the deceased repeatedly. Thereafter
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deceased sustained the injuries and was lying at the said place and
subsequently his dead body was found. The postmortem report is also
placed on record which shows that the deceased has sustained in all 12
injuries which are in the nature of CLW just above right eyebrow
laterally of size 9 x 2 x bone deep, laceration over forehead and other
injuries. The internal injuries like haematoma under scalp frontal region
of size 10 x 6 cm corresponding to frontal bone fracture are also
observed. There is a laceration to the lower lobe laterally with
corresponding to 8th, 9th rib fracture of size 5 x 1 x 1 cm. The death of
the deceased is caused due to the head injury. Thus, the direct evidence
as well as medical evidence sufficiently shows that death of the deceased
is caused due to the assault at the hands of the present appellant. The
statements of the eye-witnesses sufficiently shows that there was
repeated blows on the person of the deceased.
10. In Ajmal Vs. State of Kerala (supra) the Honourable Apex
Court has distinguished the culpable homicide amounting to murder and
not amounting to murder and while distinguishing the same in para
No.17 it is observed that distinctive features and the considerations
relevant for determining a culpable homicide amounting to murder and
distinguishing it from the culpable homicide not amounting to murder
has been a matter of debate in large number of cases. Instead of
referring to several decisions on the point reference is being made to a
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recent decision in the case of Mohd. Rafiq Vs. State of M.P. [(2021) 10
SCC 706], wherein Justice Ravindra Bhatt, speaking for the Bench,
relied upon two previous judgments dealing with the issue as narrated in
paragraph nos.11, 12 and 13 of the report which are reproduced below:
"11. The question of whether in a given case, a homicide is
murder 3, punishable under section 302 IPC, or culpable
homicide, of either description, punishable under section 304
IPC has engaged the attention of courts in this country for over
one and a half century, since the enactment of the IPC; a
welter of case law, on this aspect exists, including perhaps
several hundred rulings by this court. The use of the term
"likely" in several places in respect of culpable homicide,
highlights the element of uncertainty that the act of the
accused may or may not have killed the person. Section 300
IPC which defines murder, however refrains from the use of
the term likely, which reveals absence of ambiguity left on
behalf of the accused. The accused is for sure that his act will
definitely cause death. It is often difficult to distinguish
between culpable homicide and murder as both involve death.
Yet, there is a subtle distinction of intention and knowledge
involved in both the crimes. This difference lies in the degree
of the act. There is a very wide variance of degree of intention
and knowledge among both the crimes.
12. The decision in State of (Andhra Pradesh v Rayavarapu
Punnayya & anr.) 1976 (4) SCC 382 notes the important
distinction between the two provisions, and their differing, but
subtle distinction. The court pertinently pointed out that: "12.
In the scheme of the Penal Code, "culpable homicide" is 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 this generic
offence, the Code practically recognises three degrees of
culpable homicide. The first is, what may be called, "culpable
homicide of the first degree". This is the greatest form of
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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.. 13. The academic distinction between "murder" and
"culpable homicide not amounting to murder" has vexed the
courts for more than a century. 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."
13. The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or culpable
homicide, not amounting to murder, were outlined in
(Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra
Pradesh) (2006) 11 SCC 444. This court observed 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
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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;
(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."
Thus, the academic distinction between "murder" and
"culpable homicide not amounting to murder" has vexed the courts for
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more than a century. 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. Therefore, the considerations which are
required to be taken into consideration while ascertaining whether an
act is punishable as "murder" or "culpable homicide" not amounting to
murder. 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. 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. 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
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there was any grave and sudden provocation, and if so, the cause for
such provocation.
11. For the above said reasons, if the facts are examined
admittedly, the material on record shows that during investigation, the
Investigating Officer has recorded the statements of the eye-witnesses
which shows that the present appellant has given repeated blow on the
person of the deceased due to which deceased has sustained the injuries
all over the body. One of the injury which is sustained by the deceased is
on the head which proves to be fatal and due to which the death of the
deceased is caused. Thus, the intention of the appellant can be gathered
from the circumstances that he has given a repeated blows i.e. also on
the vital part of the body due to which the deceased has succumbed to
the death. At this stage, this evidence is sufficiently shows there was an
intention on the part of the accused and therefore, it is difficult to accept
the contention of the learned Counsel for the appellant that the case
covers under Section 304 Part I or 304 Part II of the Indian Penal Code.
12. In view of that, the present appeal is devoid of merits and
liable to be dismissed.
13. Hence, the appeal is dismissed accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
