Deepak Kumar vs State (G.N.C.T.) Of Delhi
2010 Latest Caselaw 2734 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: May 14, 2010
                            Judgment delivered on: May 24, 2010

+      CRIMINAL APPEAL NO.652/2009

       DEEPAK KUMAR                           ....APPELLANT
                  Through:         Mr. Akshai Malik, Advocate/
                                   Amicus Curiae
                         Versus

       STATE(G.N.C.T.) OF DELHI        .....RESPONDENT
                    Through: Mr. Lovkesh Sawhney, APP

        CORAM:
        HON'BLE MR. JUSTICE A.K. SIKRI
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?              Yes

2.     To be referred to the Reporter or not ?          Yes
3.     Whether the judgment should be
       reported in Digest ?                             Yes

AJIT BHARIHOKE, J.

1. Appellant Deepak Kumar has been convicted vide impugned

judgment dated 27.4.2009 in Sessions Case No. 76/07, FIR No.327/07,

P.S. Moti Nagar for murder of his 40 days old child under Section 302

IPC and sentenced in terms of order dated 29.4.2009 to undergo

imprisonment for life and to pay fine of Rs. 2000/-. We may note that

the learned Additional Sessions Judge has not awarded any sentence in

the event of default of payment of fine. Feeling aggrieved by the

impugned judgment and the order on sentence, Deepak Kumar has

preferred this appeal.

2. Briefly stated, case of the prosecution is that on 19.05.2007 at

about 09:30 p.m., Head Constable Sukhbir, No. 2361 who was on duty

at RML Hospital telephonically informed P.S. Moti Nagar that one child

Umang son of Deepak has been admitted in the hospital in injured

condition by his mother Deepika with the history of having sustained

injury due to fall from hands. This information was recorded in Daily

Diary register as Entry No. 36A. Copy of the DD report was entrusted

to ASI Hari Chand (PW11).

3. On the receipt of the DD report, ASI Hari Chand (PW11) alongwith

Constable Rakesh (PW10) went to RML Hospital and obtained the MLC

of the child Umang who was found admitted there. He met Deepika,

wife of Deepak i.e. mother of the injured child in the hospital and

recorded her statement Ex.PW11/A. ASI Hari Chand sent that

statement alongwith his endorsement to the police station for the

registration of formal FIR and on the basis of said statement, formal FIR

No. 327/07 was initially registered under Section 317/279/304 A IPC.

4. Complainant Deepika in her statement Ex.PW11/A stated that on

19.05.2007, she was present in her house No. WZ-480C, Basai Darapur

alongwith her infant child Umang. At about 06:00 p.m., appellant

Deepak came home after consuming liquor. She asked Deepak to give

her money for expenses and the appellant Deepak saying "Tum Maro

Ya Tumhara Bacha Mare" refused to give money for expenses. He

started fighting with her and suddenly snatched the child Umang from

the complainant and threw him in the street. On this, she ran outside

to pick the child but in the meanwhile, motor cycle No. DL-7SAT-9489

(Black Colour) came at a fast speed and struck against the child.

Thereafter, she alongwith her neighbour Nanno Devi (PW1) and motor

cycle driver Rahul (PW2) took her injured child to Moti Nagar Hospital

and from there to RML Hospital where her child succumbed to his

injuries.

5. After recording the statement of the complainant, ASI Hari Chand

(PW11) reached at the spot of occurrence. In the meanwhile, ASI

Padam Singh (PW12) also reached there, who took over the

investigation under the orders of the SHO. ASI Padam Singh prepared

the site plan Ex.PW12/A on the pointing of the complainant. He

recorded supplementary statement of Deepika and also the

statements of PW1 Nanno Devi and ASI Hari Chand (PW11). The

appellant was arrested by him later in the evening of 19.05.2007 from

his residence. Dead body of the deceased was identified by the

complainant and Nanno Devi (PW1). It was sent for post-mortem

examination and after the post-mortem, the dead body was handed

over to the relatives of the deceased. Further investigation of the case

was taken over by Additional SHO, Inspector Raj Kumar (PW3) on

05.07.2007, who completed the formalities of investigation and filed

charge sheet against the appellants requesting for his trial for the

offence under Section 304 IPC.

6. Learned Additional Sessions Judge, on consideration of the

challan, charged the appellants for having committed the offence of

murder punishable under Section 302 IPC. The appellant pleaded

innocence and claimed to be tried.

7. In order to prove the guilt of the appellant, prosecution has

examined 12 witnesses in all. Material witnesses who have given eye

witness account of the occurrence are PW1 Nanno Devi and PW2 Rahul

Sarin. The medical evidence is provided by PW6 Dr. Pawan Kumar,

Medical Officer, RML Hospital, who prepared the MLC Ex.PW6/A of the

deceased, Dr. Manpreet Kaur Sethi, Autopsy Surgeon (PW7), who

conducted post-mortem examination on the dead body of the

deceased and prepared the report Ex.PW7/A and PW8 Jaswant Singh,

Medical Record Technician, RML Hospital, who has proved the

complete case sheet pertaining to the treatment of Umang Ex.PW8/A.

All other witnesses are police officials, who participated in investigation

of the case at different stages after the occurrence.

8. The prosecution, however, could not examine complainant

Deepika, who had left Delhi after the occurrence and could not be

traced.

9. PW1 Nanno Devi has testified that on the relevant day i.e. about

nine months prior to her examination in court, she was present in her

house which is located across the gali on opposite side of the house of

the complainant and the appellant. At around 06:00 p.m., a quarrel

ensued between the appellant and his wife. Appellant was drunk and

she noticed from her house that the appellant snatched the child

Umang from his wife and threw the child out of the home on the road

saying 'Tu Mar, Tera Bacha Mar, Main Kharchae Ke Paise Nahi Dunga'.

Thereafter, the appellant fled away on a scooter. She also stated that

when the child was thrown out, a motor cycle was coming on the road

but the motor cycle did not hit the child. In the cross-examination, she

admitted that her house is located on the third floor of a building,

whereas the house of the accused is located on the ground floor. She

denied the suggestion given to her by the amicus that the child had

been put on the road by the complainant Deepika or that while leaving

the child on the road, she commented „let the child die‟. She also

denied the suggestion that the child had sustained injuries because of

the impact of the motor cycle.

10. PW2 Rahul Sarin has stated that on 19.05.2007 at about

06:00/06:15 p.m., he was going to Moti Nagar on his motor cycle No.

DL-7SAT-9489. When his motor cycle reached in front of house No.

WZ-480C Basai Darapur, a child was suddenly thrown out from the said

house. The child landed in front of his bike and he immediately applied

the brakes. The mother of the child immediately rushed out of the

house. Some neighbours also collected there and PW1 Nanno Devi

was one of them. He further stated that the appellant came out of the

house. He was hurling abuses at his wife and child and he started his

scooter and went away. According to this witness, the complainant

Deepika told that accused was drunk and he had thrown the child

outside the house. On humanitarian ground, he took the complainant

and the child on his bike to the hospital. Later on, Nanno Devi (PW1)

also reached there. He has also denied the suggestion that he had

taken the child to the hospital on the asking of the complainant and

other residents as he was at fault or that he had bribed the police to

twist the facts.

11. PW7 Dr. Manpreet Kaur Sethi is the Autopsy Surgeon who

conducted the post mortem on the body of the deceased. She

observed following injuries on external and internal examination of the

dead body:

"1. Rub abrasion, irregular shape, redish on left knee 1 x 1 cm.

2. Abrasion 3x2 cm.m, present on right knee irregular, redish in colour.

3. Abrasion on front of right side upper abdomen at subcostal area 3x3 cm in size, irregular in shape.

4. Abrasion irregular in shape present on right side frontomedial aspect to dorsal aspect of right forearm in an area 10 cm.x3 to 4 Cm.

5. Swelling and deformity at right arm. On cut section fracture right humerus mid shaft with localised collection of hematoma at fracture site. On internal examination, following injuries were found:-

1. Head: Swelling in an area of 7x6 Cm at right side occipito-parietal region. On incision underneath right red coloured subscalp hematoma alongwith sub periosteal hematoma present along with fracture of parietal bone.

(depressed type), subdural and subarachnoid hematoma underneath with corresponding contused brain matter. Blood vessels dilated and engorged.

2. Neck:- NAD.

3. Chest:- As mentioned and on incision-redish coloured hematoma collection present vertically in right side chest muscles extending from 3rd rib to 7th rib in an area of 14 Cmx3to4Cm and underneath 3rd,

4th, 5th, 6th ribs found fractured at posterior axillary line with collection of hematoma locally.

4. Abdomen:- NAD with 15 ml. of curd inside the stomach with rancid smell".

12. She opined the cause of death as the result of craniocerebral

damage (head injury) which was sufficient to cause death in ordinary

course of nature and according to her, all the injuries were fresh in

time and ante-mortem in nature. She opined the nature of the death

to be homicide. In cross-examination by learned amicus, she

specifically denied the suggestion that the injuries found on the person

of the deceased could have been caused by the impact of a speedy

motor cycle.

13. Appellant Deepak Kumar in his examination under Section 313

Cr.P.C. denied the prosecution version and explained thus:

"Q.29.........

Ans. I am innocent. I have been implicated falsely. I left my wife and child at home, I had clothes for embroidery work for customers and I left the home on my scooter. I came back to my residence at about 9.30 pm, there was gathering of crowd. I was apprised that my child received injuries in an accident and child has been taken to the hospital. I went to hospital in Hari Nagar where I did not find any child. I came back to my home and in the meantime, I received telephonic call on the mobile phone, since my wife's mobile phone was with me that all the persons have come to home and I shall also come home. The persons who called me on the mobile phone, there was a female voice. Then I came to my residence. When I reached my residence, my wife was at home, Nanno was also present but my child was not there. I inquired about my child and I was apprised that he was admitted in the hospital. I was arrested by the police at about 11/11.30 pm on 19.05.2007 and I have been implicated falsely.

I do not want to produce any witness in defence".

14. The learned Trial Judge, on consideration of the material on

record and the submissions made on behalf of the rival parties, found

the appellant guilty of murder of child Umang mainly on the strength of

testimony of PW1 Nanno Devi and PW2 Rahul Sarin and convicted the

appellant under Section 302 IPC.

15. Defence of the appellant is that he has been falsely implicated

and he was not even present at the place of occurrence when the

incident took place. Learned amicus curiae has submitted that the

instant case has been registered on the complaint Ex.PW11/A of

Deepika, mother of the child who claimed to be the only person

present in the room when the child was thrown out in the street by the

appellant. Thus, she was the best witness to prove the charge.

However, prosecution has failed to produce her and this fact, by itself,

is sufficient to extend the benefit of doubt to the appellant.

16. We are not convinced with the argument. On perusal of the

record, it is clear that prosecution cannot be faulted for non-

examination of the complainant Deepika as a witness as she could not

be produced as she was not available at the given address. Ex.PW5/B

is the service report dated 07.01.2009 pertaining to the summons

issued by the court for appearance of complainant Deepika as a

witness. In this report, ASI Padam Singh of P.S. Moti Nagar has stated

that he visited the address at District Jalpaigudi, West Bengal on

05.12.2008 to serve the summons on Deepika at the residence of her

maternal uncle Suleman where he met Mr. Suleman and his wife Anees

Mins who told him that Deepika was daughter of late sister of Suleman.

Deepika had visited the village nine months earlier, thereafter she left

the village without leaving her address at Delhi and they assured that

as and when she would visit the village, they would tell her about the

summons. From the aforesaid service report, it is obvious that despite

of efforts made by the prosecution to procure the presence of Deepika

as a witness she could not be served with the summons for want of her

current address. Since non-production of Deepika as a witness was

beyond the control of the prosecution, it cannot be taken as a

circumstance to outrightly reject the testimony of the other two eye

witnesses examined by the prosecution, namely, PW1 Nanno Devi and

PW2 Rahul Sarin.

17. Learned amicus curiae has criticised the testimony of PW1 Nanno

Devi on the ground that as per her own admission, she could not have

been the eye witness to the occurrence. Dilating on the argument,

learned amicus curiae submitted that as per the testimony of PW1

Nanno Devi, the appellant and his wife Deepika were residing on the

ground floor of a building on one side of the street and her house was

located at the third floor of another building across the street opposite

the house of the appellant. He submitted that Nanno Devi claims to

have heard the appellant uttering the words "'Tu Mar, Tera Bacha Mar,

Main Kharchae Ke Paise Nahi Dunga" and she also saw him throwing

the child Umang out on the street immediately after uttering those

words. This, according to learned amicus curiae, is an impossibility,

given the location of the house of Nanno Devi. Thus, he has contended

that it is not safe to rely upon the testimony of Nanno Devi. Regarding

testimony of PW2 Rahul Sarin, learned amicus curiae has submitted

that he also is not a reliable witness because he obviously had a

reason to falsely depose against the appellant in order to save his own

skin. In support of this contention, he has drawn our attention to the

FIR of this case Ex.PW9/C which was initially registered under Section

317/279/304A IPC, which tended to implicate the witness for causing

death of Umang due to rash and negligent driving.

18. We do not find merit in this contention. In order to properly

appreciate the criticism of the amicus curiae against the testimony of

PW2 Rahul Sarin, it is necessary to have a look on the contents of the

FIR. The FIR was recorded on the basis of statement made by Deepika,

mother of the deceased child wherein she had stated that on the

fateful evening of 19.05.07 at about 06:00 p.m., when she asked

money for expenses from her husband i.e. the appellant, he refused to

give her money and said "Tum Maro Ya Tumhara Bacha Mare" and

started fighting with her and he suddenly snatched the child Umang

from her and threw him in the street. On this, she (the complainant)

rushed outside to pick her child but in the meanwhile, motorcycle DL-

7SAT-9489 came at a fast speed and struck against the child.

Thereafter, she took the child alongwith the motorcycle driver Rahul

Sarin to the hospital where the child was declared dead. From the

aforesaid facts narrated in the FIR, there could be no doubt about the

presence of PW2 Rahul Sarin at the spot when the child was thrown in

the street. From the FIR, it is also clear that by no stretch of

imagination, Rahul Sarin could be faulted for the incident even if his

motorcycle had actually struck the child because as per the facts

narrated in the FIR, the child was suddenly thrown in the street and

PW2 Rahul Sarin could not have comprehended that someone would

throw the child in front of his motorcycle. Thus, under the given facts,

PW2 Rahul Sarin was not under threat of being held responsible for the

death of Umang to prompt him to depose falsely against the appellant.

Thus, we find no reason to suspect his version. On the other hand, the

contents of the FIR do tend to show his presence at the spot at the

time of occurrence.

19. Coming to the testimony of PW1 Nanno Devi. As referred to

above, she testified in the Court that she saw the incident of throwing

of child by the appellant from her third floor room and she also heard

appellant uttering "'Tu Mar, Tera Bacha Mar, Main Kharchae Ke Paise

Nahi Dunga". Contention of learned amicus curiae is that PW1 Nanno

Devi being at third floor of the building across the street could not

have heard the above utterances by the appellant from such a

distance. Under normal circumstances, this contention may hold force,

but whether or not Nanno Devi could have heard said utterances

depended upon the decibel level of speech of the appellant when he

uttered those words. From the material on record, it is obvious that

the appellant had uttered those words while he was having an

argument regarding household expenses with his wife Deepika.

Therefore, it is not surprising that he uttered those words in a loud

voice which could be overheard by PW1 Nanno Devi. As regards the

other limb of argument that Nanno Devi could not have seen the

appellant throwing the child outside the room, it is suffice to say that it

would depend upon the width of the street and the fact whether or not

there was any building or structure within the line of vision from the

third floor room of Nanno Devi to the room in which the occurrence

took place. Of course, the Site Plan Ex.PW12/A proved on record by

the Investigating Officer leaves much to be desired and it does not

show the location of houses of the appellant and the witness Nanno

Devi (PW1), but this by itself cannot be taken as a circumstance to

discard the testimony of the otherwise reliable witness PW1 Nanno

Devi, which finds corroboration from the testimony of PW2 Rahul Sarin

who has stated that Nanno Devi was amongst the persons who

immediately collected at the spot. We may note that, according to the

Nanno Devi, she had overheard the argument between the appellant

and his wife. Therefore, it is not surprising that on hearing the

utterance by the appellant in an angry tone, as a matter of curiosity

PW1 Nanno Devi tried to see what was happening and was able to see

the appellant throwing the child on the street. Thus, under the

circumstances, we find no reason to suspect the testimony of PWs

Nanno Devi and Rahul Sarin.

20. Even if, for the sake of argument, it is assumed that Nanno Devi

did not see the appellant throwing the child on the street, the fact

remains that as per the statement of Rahul Sarin (PW2) and Nanno

Devi (PW1), immediately after the occurrence, the appellant came out

of the house and went away on his two-wheeler scooter. The aforesaid

conduct of the appellant by itself points towards the guilt of the

appellant. Had he not thrown the child on the street, under the natural

course of circumstances, he was expected to rush and pick up his child

from the street instead of escaping from the place of occurrence.

21. There is one more aspect to this case. The appellant in his

statement under Section 313 Cr.P.C. took the defence that at the time

of occurrence, he was not present at the spot and actually he had left

his house at 05:30 p.m. for his work. His explanation is that he had left

his wife and child at home as he had clothes for embroidery work for

customers. If this explanation was true, then the appellant could easily

have examined anyone of those customers whom he had visited on the

fateful evening to substantiate his defence. He, however, has not

produced any witness to establish this half-hearted plea of alibi. This

circumstance also goes against the appellant.

22. It is further submitted by learned amicus curiae that actual cause

of death of child Umang is doubtful in this case. Dilating on the

argument, learned amicus curiae took us through the cross-

examination of PW6 Dr. Pawan Kumar of RML Hospital who prepared

the MLC of the deceased and who testified that the injuries found on

the person of the deceased could have been due to fall or due to

impact of some vehicle or a hard blunt substance. Learned amicus

curiae submitted that from this, a possibility cannot be ruled out that

the deceased Umang sustained fatal injuries due to fall from hands,

which fact is also recorded in DD No.36A(Ex.PW5/A) recorded at the

Police Station on the basis of information conveyed on telephone by

Head Constable Sukhbir who was on duty at RML Hospital at the

relevant time. Learned amicus curiae, in view of the aforesaid facts,

has urged us to extend the benefit of doubt to the appellant because a

possibility of the deceased having suffered injuries by fall from hands

cannot be ruled out and also because the complainant Deepika, who

was the best witness in this case, has not been produced as a witness

to clarify the position.

23. We are not convinced with the above argument. As regards the

facts referred in DD No. 36A (Ex.PW5/A), it is suffice to say that this

information is recorded by the Duty Officer in Daily Diary on the basis

of information given by Head Constable Sukhbir who was on duty at

RML Hospital. Head Constable Sukhbir is not an eye witness,

therefore, the content of DD report is nothing but a hearsay evidence

which is inadmissible. Otherwise also, it is not clear in the DD report

as to what is the basis of this information. Thus, no importance can be

attached to this fact. Even the above referred version of Dr. Pawan

Kumar regarding the possible cause of the injuries sustained by the

child Umang also does not help the appellant because it is only an

opinion and does not rule out the possibility of the child having

suffered fatal injuries because of having been thrown in the street by

the appellant. The testimony of PW1 Nanno Devi and PW2 Rahul Sarin

referred to above, in our considered view, firmly establishes that it was

the appellant who had thrown the child Umang from the room into the

street which resulted in fatal injuries to the child. Thus, we find no

merit in the above contention.

24. Further, it is argued that as per the testimony of Dr. Pawan

Kumar, a possibility cannot be ruled out that the child had died due to

injuries sustained on being hit by the motorcycle, therefore, the

appellant cannot be held guilty for murder of child and he is entitled to

benefit of doubt.

25. This argument is misconceived. Dr. Manpreet Kaur, Autopsy

Surgeon was examined as PW7. She conducted post-mortem

examination on the body of the child and she has categorically ruled

out the possibility of the child having been run over by the motorcycle

by stating that had there been an impact of motorcycle, there would

have been tyre marks on the body of the child, which were not found

at the time of post-mortem examination. She also denied the

possibility of the child having been left on ground by someone and

thereafter hit by a speeding motorcycle. Once the possibility of the

child having been hit by a motorcycle is ruled out, there is no reason

for nursing any doubt about the cause of death of the child. We may

also note that even if it is assumed that the child, after being thrown in

the street, was hit by the motorcycle of Rahul Sarin, then also the

appellant is responsible for causing death of the child because the

incident, in such an eventuality, is the direct consequence of the act of

the appellant in throwing the child into the street. In view of the

discussion above, we have no hesitation in concluding that the learned

Trial Court has rightly relied upon the testimony of PW1 Nanno Devi

and PW2 Rahul Sarin to return the finding that the child Umang

sustained fatal injuries as a result of his being thrown into the street by

the appellant.

26. Lastly, it is submitted by learned amicus curiae that even if the

case of the prosecution is taken to be a gospel truth, then also the

conviction of the appellant for the offence of murder of child Umang

punishable under Section 302 IPC is not justified and at best, the

wrongful act of the appellant falls within the purview of the offence of

culpable homicide not amounting to murder punishable under Section

304 IPC.

27. Killing of a human being by another human being is homicide.

Such killing may be lawful or it may be unlawful. When the killing is

unlawful, it is culpable homicide. Indian Penal Code classifies culpable

homicide into two categories, namely, "culpable homicide not

amounting to murder" punishable under Section 304 IPC and "murder",

which is a graver form of culpable homicide punishable under Section

302 IPC. What distinguishes these two offences is the presence of

mens rea which comprises of different forms of mental states as

defined under Section 300 IPC. The distinction between culpable

homicide not amounting to murder and murder has been set forth by

the Supreme Court in the matter of State of A.P. Vs. Rayavarapu

Punnayya, (1976) 4 SCC 382, inter alia, in the following terms:

"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 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 minutae 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. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

             Section 299                                      Section 300

             A person commits culpable          Subject to certain exceptions, culpable

homicide if the act by which the homicide is murder if the act by which death is caused is done - the death is caused is done -

INTENTION

a) With the intention of causing 1) with the intention of causing death; or death; or 2) with the intention of causing such

b) With the intention of causing bodily injury as the offender knows to such bodily injuries as is likely to be likely to cause the death of the cause death; or person to whom the harm is caused; or

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 4) with the knowledge that the act is so act is likely to cause death 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 of such injury as is mentioned above.

14. 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.

15. 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.

16. 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.

.............

..............

20. 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 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 by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section

299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the

third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.

22. 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 other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."

28. On perusal of the FIR Ex.PW9/C which was recorded on the basis

of the complaint of Deepika, mother of the deceased child Umang

which also finds support from the testimony of PW1 Nanno Devi, it

transpires that as per the case of the prosecution, on the relevant day

at about 6:00 pm, the appellant came home after consuming liquor.

Complainant Deepika demanded money from him for meeting the

expenses, which request was declined by the appellant. This resulted

in a quarrel/heated arguments and in the process, the appellant

uttered the words ""Tum Maro Ya Tumhara Bacha Mare" and thereafter

snatched the child from the mother and threw him in the street. As a

consequence thereof the child suffered fatal injuries and died. From

the aforesaid factual matrix, it is apparent that the incident took place

suddenly without any premeditation as a result of the heated

arguments and quarrel between the appellant and his wife. Therefore,

no intention to kill the child on the part of the appellant can be

inferred. The child was thrown into the street from a ground floor

room, therefore, we find it difficult to attribute the knowledge to the

appellant that his act was so grave and dangerous that it would in all

probabilities result in death of the deceased. Therefore, in our view,

the requisite ingredients of Section 300 IPC, which defines the offence

of murder, are lacking in this case. Thus, we find it difficult to sustain

the conviction of the appellant under Section 300 IPC and convert it

into conviction for the offence of culpable homicide not amounting to

murder, punishable under Section 304 Part I IPC.

29. This brings us to the question of sentence. The appellant is a

young man who is in incarceration for the last about three years. As

per his nominal roll, his conduct in Jail is satisfactory. He, because of

the unfortunate act committed by him in a fit of anger, has lost his

young child. Keeping in view the aforesaid facts and the other

accompanying circumstances, we, while maintaining the fine imposed

by the learned Additional Sessions Judge, convert the sentence of

imprisonment of the appellant from life to 10 years rigorous

imprisonment. In our view, this will meet the ends of justice.

30. The appeal is disposed of in aforesaid terms.

AJIT BHARIHOKE, J.

MAY 24, 2010                                   A.K. SIKRI, J.
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