Surender Kumar @ Happy And Sanjeev ... vs The State
2000 Latest Caselaw 989 Del

ORDER

Arijit Pasayat, CJ.

1. These two appeals, which are interlinked being directed against a judgment of learned Additional District Judge, Delhi, in Sessions Case No. 226/96, are disposed of by this common judgment. At an age when the appellants and their coaccused were to push pen in pursuit of education, they are alleged to have pushed a knife to the chest of another youngster of their age, causing his homicidal death. A sad case of juvenile delinquency. It is not easy to precisely define juvenile delinquency. Major hurdle in the way of providing a definite definition is one which is normally encountered while defining crime in general i.e. the choice between the social and legal definitions.

2. Juvenile delinquency is not uncommon or peculiar to any particular age. It is, in almost every age regarded as contemporary problem. Like adult criminal behaviour it has always existed in some form or other. As observed by the author of "Criminology Problems & Perspectives", this problem has a two dimensional basis. Firstly, the violations of any code of conduct, whether for adults or for young persons, is inevitable. Secondly the definitions of juvenile delinquency as deviant child behaviour itself depends upon the norms laid down by the society, in other words by the elders, Clash of values due to generation gap is bound to occur. Edwin H. Stalker in his article "Misconception about Javelin Delinquency" published in Journal of criminal Law, Criminology and Police Science, 1956 Volume 46) has made reference to two quotations which succinctly sum up the continuing nature of the problem.

   A. An Egyptian priest about 6000 years ago wrote on the walls of    a tomb: 
 

   "Our earth is degenerate in these latter days. These are signs    that the world is coming to an end because children no longer    obey their parents." 
 

   B. Socrates wrote a paragraph over 2400 years ago that might well    have appeared in a morning paper of today. 
 

   "Children now love luxury, they have bad manners, contempt for    authority, they show disrespect for elders, and love chatter in    place of exercise. Children no longer rise when elders enter the    room., They contradict their parents, chatter before company,    gobble up dainties at the table, cross their legs and tyrannize    over their teachers."    

Certain statistical data throw considerable light on the grim situation. In a publication crimes in India, 1988, made by the Ministry of Home Affairs, Govt. of India, total number of juveniles apprehended for congnizable crimes under the penal code and local laws in the year 1987 and 1988 were Rs. 1,79,962 and 38168. There is a purpose for which we are referring to the decade old figures. The sudden change was due to enactment of Juvenile Justice Act, 1986 which defined a "Juvenile" as "male below 16 years and female bellows 18 years", prior to which age was same both for males and females i.e. 21 years. This reason has been given in the publication "Crimes of India". Crimes by Juveniles and teenagers are increasing at an alarming pace which is certainly a cause for concern.

3. Appellants, hereinafter described as accused by their respective names, faced trial for offences punishable under Sections 302/307 read with Section 34 Indian Penal Code, 1860 (in short, IPC). Prosecution version as unfolded during trial is essentially as follows:-

Prem Lal @ Billu, hereinafter referred to as the deceased, is stated to have paid the price for his good Samaritan's act. Sushil Kumar @ Kaku is stated to have incurred wrath of accused Surinder Kumar @ Happy, Sanjeev and one Gagan. The trouble started at 4:15 pm on 5th January, 1989 over a very trifle matter of the aforesaid Kaku refusing to give lift to some of the accused on his two wheeler scooter. When he raised a cry for help, the deceased came there and tried to pacify the ruffled feelings but his efforts did not yield any result and they continued assaulting Sushil. The deceased gave slaps to Surinder and this enraged the accused Surinder and his friends who went away. They decided to teach him a lesson. Around 5:15 p.m. the two appellants, one Sanjay and Gagan came there. Sanjay was shouting to teach a lesson to the deceased. Acting on such call, Sanjiv and Gagan caught hold of deceased and the accused gave a dagger blow to the left side of chest of the deceased. Promod Kumar, (PW1) and Bihari Lal (PW2) tried to help the deceased but they were not successful. On the contrary, Promod Kumar, (PW1), received some injuries on account of assaults by accused Happy. After giving a dagger blow, the accused persons ran away. Deceased was taken to hospital by Satish Kumar, (PW4), but he was declared dead. Information was lodged with police, investigation was undertaken and on completion thereof chargesheet was placed. As Gagan and Sanjay were below 16 years of age, they were sent to Juvenile C court to face trial. Accused persons pleaded to be innocent. In order to further its case, 17 witnesses were examined by prosecution. Placing reliance on evidence of witnesses, Promod Kumar, (PW1) and Bihari Lal (PW2), learned trial Judge found accused persons guilty of offences punishable under Section 302 IPC read with Section 34 thereof. Sentence of imprisonment of life and fine of Rs. 5,000/ each with default stipulation of one year rigorous imprisonment was awarded.

4. In support of the appeal, learned counsel for the accused persons submitted that the entire prosecution version is shrouded with mystery, exaggeration and unexplained discrepancies and even the authenticity of FIR is not free from doubt. Evidence of PW1 and PW2 cannot be said to be of disinterested persons and learned trial Judge should not have placed any credence on their evidence. Alternatively, it is submitted that only one blow was given and factual scenario as projected by the prosecution does not bring in application of Section 302 IPC. Learned counsel for the State, on the other hand, submitted that on detailed analysis of evidence tendered by the prosecution, learned trial Judge has found the accused persons guilty. No infirmity in the process of reasoning has been established to warrant a different conclusion about guilt of the accused persons. According to her, the case is clearly covered by Section 302 IPC, as merely because one blow was given, that does not automatically rule out application of the said provision.

In the scheme of the IPC 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 IPC practically recognises three degrees of culpable homicide.

The first is, what may be called, 'culpable homicide of the first decree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

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

   Section 299
 

   A person commits culpable homicide if the act By which the death    is caused is done_
 

   Section 300
 

   Subject to certain exceptions culpable homicide is murder if the    act by which the death is caused is Done-
 

   INTENTION
 

   (a) with the intention of causing death; or
 

   (b) with the intention of causing such bodily injury as is likely    to cause death; or
 

   (1) with the intention of causing death; or
 

   (2) with the intention of causing such bodily injury as the    offender known to be likely to cause the death of the person to    whom the harm is caused; 
 

   (3) with the intention of causing bodily injury to any person and    the bodily injury intended to be inflicted is sufficient in the    ordinary course of nature to cause death; or
 

   KNOWLEDGE
 

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

   (4) with the knowledge that the act is so imminently dangerous    that it must in all probability cause death, or such bodily    injury as is likely to cause death, and without any excuse for    incurring the risk of causing death or such injury as is mentioned above.   
 

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

7. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases failing 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.

8. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree., The word 'likely' in clause (b) of Section 299 conveys the sense of 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.

9. 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 is sufficient to cause death in the ordinary course of nature. Rajwant Vs. State of Kerala, AIR 1966 SC 1874 is an apt illustration of this point.

10. In Virsa Singh Vs. State of Punjab, , Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3), thus (at p.1500):

"The prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be provided that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

   The ingredients of clause Thirdly of Section 300 IPC were brought    out by the illustrious Judge in his terse language as follows: 
 

   "To put it shortly, the prosecution must prove the following    facts before it can bring a case under Section 300, 3rdly".
 

   First, it must establish, quite objectively, that a bodily injury    is present. 
 

   Secondly, the nature of the injury must be proved. These are    purely objective investigations. 
 

   Thirdly, it must be proved that there was an intention to inflict    that particular bodily injury, that is to say that it was not    accidental or unintentional, or that some other kind of injury    was intended. 
 

   Once these three elements are proved to be present, the enquiry    proceeds further and, 
 

   Fourthly, it must be proved that the injury of the type just    described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part    of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".
 

   The learned Judge explained the third ingredient in the following    words: (at page 468). 
 

   The question is not whether the prisoner intended to inflict a    serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show    that he did not, or if the totality of the circumstances justify    such an inference, then, of course, the intent that the section    requires is not proved. But if there is nothing beyond the injury    and the fact that the appellant inflicted it, the only possible    inference is that he intended serious consequences, is neither    here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an    injury of a particular degree of seriousness but whether he    intended to inflict the injury in question and once the existence    of the injury is proved the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion."    

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

11. Thus according to the rule laid down in Virsa Singh's case, 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 Section 300 clearly brings out this point.

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

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

14. The position was again illuminatingly highlighted by the Apex Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Anr.

15. It is desirable to deal with the contention relating to interestedness or relationship of the witness with victim or injured.

Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dilip Singh Vs. State of Punjab , it has been laid down as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not in sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward is cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".

This decision has since been followed in Guli Chand and Ors. Vs. State of Rajasthan in which Vadivelu Thevar Vs. The State of Madras was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by Apex Court as early as in Dilip Singh's case (supra) in which Apex Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., the Apex Court observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. It is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another bench of this Court endeavoured to dispel in Rameshwar Vs. The State of Rajasthan (AIR 1950 SC 54). We find, however, that it unfortunately still persists, if not in the judgment of the courts, at any rate in the arguments of counsel."

In this case, Apex Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and mere fact of relationship far from being a foundation is often a sure guarantee of truth."

Again in Masalti Vs. State of U.P. , Apex Court observed:-

"Again it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."

To the same effect is the decision of Apex Court in State of Punjab Vs. Jagir Singh (AIR 1973 SC 1407).

16. There is no probation in law that a person who is related to the deceased has to be termed as an unreliable witness. More often than not, a relation is supposed to be a truthful witness. That is because a relation would not normally implicate an innocent person and would shield real culprit. Interestedness should be to get a person convicted. When allegation of interestedness is made, the accused is required to establish it and to show that the witnesses had partisan approach. In such a case, the Court is required to make a careful analysis of the evidence to find out whether allegation of partisan approach is borne out from materials on record. Facts showing that the witness is biased or partial in relation to the parties or the cause has to be elicited in cross examination or if denied independently proved. It has always been permissible to call evidence to contradict a witness's denial of bias or partiality towards one of the parties and to show that he is prejudiced so far as the case being tried is concerned. In Attorney General Vs. Hitchcock (1947) 1 Exct. 99 Pollock CB observed as follows:

"It is certainly allowable to ask a witness in what manner he stands effected towards the opposite party in the cause and whether he does not stand in such a relation to that person as is likely to affect him and prevent him from having an unprejudiced state of mind."

It is not sufficient to plead bias or interestedness solely on the basis of relationship. In the case at hand, learned trial judge has elaborately dealt with and analysed evidence of PWs 2,3 and 4. Additionally, P.W.1 is a co villager on whom accused appellant could repose confidence to make a confession. He has no reason to falsely implicate the accused. Therefore, there is an additional piece of evidence in the form of extra judicial confession to implicate the accused appellant. There is no substance in the plea raised by the accused appellant that he has been falsely implicated. The evidence of P.Ws. 2, 3 and 4 does not suffer from any infirmity. So far as PW1 is concerned, his evidence has also been analysed with great detail. He has been rightly accepted by learned trial judge to be a truthful witness. Learned trial judge was justified in his conclusion that accused was the author of the crime.

17. The only other plea that merits consideration is whether infliction of a single blow would make out application of Section 302 IPC. There is no probation that whenever a single blow has resulted in death, Section 302 is not to be applied. It would depend upon the facts and circumstances involved in the particular case. Nature of weapon used, the part of the body where the assault is made, background facts leading to the assault, the material to show that particular injury was intended have to be kept in mind.

18. Considering the materials brought on record, we are of the view that this is a case covered by Section 304 part II and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence of eight year rigorous imprisonment would meet the ends of justice with the sentence of fine and consequential default sentence remaining unaltered.