Delhi High Court
Mohd. Imran vs State on 26 September, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 31.08.2017
Judgment Pronounced On: 26.09.2017
CRL.A. 1315/2014
MOHD. IMRAN ... Appellant No.1
versus
STATE ... Respondent
CRL.A. 829/2012
MUKESH @ KARKA ... Appellant No.2
versus
STATE ... Respondent
CRL.A. 452/2013
AKRAM ... Appellant No.3
versus
STATE (NCT OF DELHI) ... Respondent
Through: Ms. Saahila Lamba, Advocate for
Appellant No.1
Mr. M.L. Yadav, Advocate for
Appellant No.2
Mr. Narsingh Narain Rai,
Advocate for Appellant No.3
Mr. Ravi Naik, APP for the State
with Inspector Bharat Meena,
SHO, P.S. Swaroop Nagar and
Inspector D.K. Tejwan, P.S.
Pandav Nagar
CRL.A.1315/2014, 829/2012 & 452/2013 Page 1 of 30
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
HON'BLE MR JUSTICE NAJMI WAZIRI
JUDGMENT
SIDDHARTH MRIDUL, J.
1. The present batch of criminal appeals, being Criminal Appeal Nos.
1315/2014, 829/2012 and 452/2013 instituted under the provisions of section
374(2); sections 374(2), 383 read with section 482; and section 374 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC'), assail
the judgment dated 07.09.2011 and order on sentence dated 13.09.2011,
rendered by the Ld. Additional Sessions Judge, Delhi, in Sessions Case
no.144/10, arising out of FIR No.131/10.
2. By way of the impugned judgement dated 07.09.2011 and order on
sentence dated 13.09.2011, Mohd. Imran (hereinafter referred to as
'Appellant No.1'); Mukesh alias Karka (hereinafter referred to as 'Appellant
No.2'); and Akram (hereinafter referred to as 'Appellant No.3'), were
convicted and sentenced as follows:
I) Appellant No.1
i) Rigorous Imprisonment for 7 years and fine of Rs.1,000/-
for the offence punishable under the provisions of Sections
392/34 Indian Penal Code, 1860 (hereinafter referred to as
'IPC'). In default of payment of fine, the Appellant No.1 has
been sentenced to undergo simple imprisonment for a further
period of 1 month.
ii) Imprisonment for Life and fine of Rs.2,000/- for the
offence punishable under the provisions of Sections 302/34 IPC.
In default of payment of fine, the Appellant No.1 has been
sentenced to undergo simple imprisonment for a further period
of 2 months.
The sentences have been directed to run concurrently. Furthermore,
the benefit of Section 428 CrPC has been granted to the Appellant No.1.
II) Appellant No.2
i) Rigorous Imprisonment for 10 years and fine of
Rs.1,000/- for the offence punishable under the provision of
Section 397 IPC. In default of payment of fine, the Appellant
No.2 has been sentenced to undergo simple imprisonment for a
further period of 1 month.
ii) Imprisonment for Life and fine of Rs.2,000/- for the
offence punishable under the provisions of Sections 302/34 IPC.
In default of payment of fine, the Appellant No.2 has been
sentenced to undergo simple imprisonment for a further period
of 2 months.
The sentences have been directed to run concurrently. Furthermore,
the benefit of Section 428 CrPC has been granted to the Appellant No.2.
III) Appellant No.3
i) Rigorous Imprisonment for 7 years and fine of Rs.1,000/-
for the offence punishable under the provisions of Sections
392/34 IPC. In default of payment of fine, the Appellant No.3
has been sentenced to undergo simple imprisonment for a
further period of 1 month.
ii) Imprisonment for Life and fine of Rs.2,000/- for the
offence punishable under the provisions of Sections 302/34 IPC.
In default of payment of fine, the Appellant No.3 has been
sentenced to undergo simple imprisonment for a further period
of 2 months.
The sentences have been directed to run concurrently. Furthermore,
the benefit of Section 428 CrPC has been granted to the Appellant No.3 as
well.
3. The fulcrum of the case of the prosecution is that on 18.04.2010, the
Appellant nos.1, 2 and 3 (hereinafter collectively referred to as 'Appellants'),
sharing common intention, caused stab injuries on the body of Dhiraj s/o Mr.
Ram Nandan (hereinafter referred to as 'the deceased') leading to his death.
The injuries were caused with a knife [Ex.P9], whilst committing robbery, at
Sanjay Jheel, Mayur Vihar Phase-II, Delhi (hereinafter referred to as 'Sanjay
Jheel/crime spot'). After committing the murder, the appellants took the
mobile phone, Rs.60/-70/-, and the school ATM card of the deceased and
absconded from the crime spot. The entire incident was witnessed by Ms.
Sapna (PW-6), who was present with the deceased at the time of the incident.
4. A PCR call [Ex.PW13/A] was made at the instance of PW-6 by Mr.
Satish (PW-3); who was playing cricket at some distance from the crime
spot, and Daily Diary No.13A was lodged at Police Station Pandav Nagar,
Delhi (hereinafter referred to as 'the Police Station'). Sub-Inspector Krishan
Pal, PCR, North East zone (PW-15) alongwith Constable Murad Khan
reached at the crime spot where they found the dead body of the deceased
smeared in blood. Inspector B.R. Meena (PW-23/Investigating officer/IO)
also reached at the crime spot, where PW-6 was also present.
Crime team was called at the crime spot. PW-23 recorded the
statement of PW-6 [Ex.PW6/A]; prepared the rukka [Ex.PW23/A] and gave
it to Constable Bahadur Singh (PW-18) for registration of F.I.R. [F.I.R.
being Ex.PW19/A]; and thereafter prepared the site plan [Ex.PW23/B]. The
dead body of the deceased was sent to LBS Mortuary through PW-15 and
Constable Murad Khan. PW-23 took two samples each of blood soaked earth
and earth controls from the crime spot [vide separate memos Ex.PW-6/B to
E]. A P-Cap lying near the body of the deceased was also taken into
possession [vide memo Ex.PW-6/F]. Thereafter, PW-23 alongwith woman
Constable Krishna took PW-6 to her house and took into possession the
blood stained clothes worn by her at the time of the incident [vide memo
Ex.PW6/G].
On 19.04.2010, PW-23 conducted inquest proceedings and the dead
body of the deceased was identified by Mr. Neeraj Kumar and Mr. Ram
Nandan Prasad [vide Ex.PW2/A and Ex.PW1/A, respectively]. Further, PW-
23 requested the doctor for postmortem vide application Ex.PW23/D.
Postmortem was conducted and the dead body of the deceased was handed
over to his relatives [vide Ex.PW1/B]. The clothes as well as the blood
sample of the deceased were taken into possession [vide seizure memo
Ex.PW23/E].
5. It is further the case of the prosecution that the mobile device of the
deceased; being amongst the articles robbed by the Appellants, was placed
under surveillance and it was discovered that another mobile number being
9958103551, activated in the name of one Gulshan Bano R/o Jhuggi Jawahar
Mohalla, Shashi Garden, Delhi (mother of the appellant no.1) was being
used on the said mobile device. On 19.04.2010, upon reaching the area
where the mother of the Appellant No.1 was residing, PW-23 was informed
by a secret informer that the murder of the deceased was committed by
Appellant No.1. On enquiry from the mother of Appellant No.1, the former
pointed towards the latter stating that he was using the said mobile number.
Consequent thereto, the Appellant No.1 was apprehended and made a
disclosure statement [Ex.PW17/A] admitting his involvement in the incident.
Appellant No.1 was arrested [vide arrest memo Ex.PW17/D] and his
personal search was conducted [vide memo Ex.PW17/E]. Appellant No.1 got
recovered from the fridge in his jhuggi, the mobile device of the deceased in
which he was using the said mobile number. The mobile device and the SIM
of the said mobile number being used therein, were taken into possession
[vide seizure memo Ex.PW17/B]. Furthermore, the Apellant No.1 also got
recovered from his jhuggi a bloodstained T-shirt, which he was wearing at
the time of the commission of the offence [vide seizure memo Ex.PW17/C].
Thereafter, the Appellant No.1 led the police officials to EB-231,
Jawahar Mohalla, Shashi Garden, Delhi and pointed towards Appellant No.2.
Appellant No.2 was apprehended and during interrogation he also made a
disclosure statement admitting his involvement in the incident [Ex.PW21/C].
Appellant No.2 was arrested [vide arrest memo Ex.PW21/A] and his
personal search was conducted [vide memo Ex.PW21/B]. Appellant No.2
got recovered from his jhuggi the knife [Ex.P9] used in the commission of
the offence [vide memo Ex.PW21/E]. Furthermore, the Appellant No.2 also
got recovered a white coloured blood stained T-shirt, which he was wearing
at the time of the commisison of the offence [Ex.PW21/F].
Subsequent thereto, at the instance of Appellant Nos.1 and 2,
Appellant No.3 was arrested. Pursuant to his arrest, Appellant No.3 also
made a disclosure statement admitting his involvement in the incident
[Ex.PW18/PX2]. Appellant No.3 was arrested [vide arrest memo
Ex.PW18/A] and his personal search was conducted [vide memo
Ex.PW18/PX1]. Appellant No.3 got recovered a shirt having bloodstains
from his jhuggi, which he was wearing at the time of the commission of the
offence [vide memo Ex.PW18/PX4].
6. On 20.04.2010, an application was moved by PW-23 for T.I.P.
proceedings of the Appellants and the date for the proceedings was fixed as
21.04.2010. However, the Appellants refused to participate in the TIP
proceedings [Ex.PW9/E to G]. On 04.05.2010, PW-23 recorded
supplementary statement of PW-6 qua the identity of the Appellants, and on
05.05.2010 statement of PW-6 was recorded under the provisions of Section
164 of CrPC [Ex.PW6/H].
The Exhibits were sent to the Forensic Science Laboratory (hereinafter
referred to as 'the FSL'). In the FSL examination [Ex.PX2] it was discovered
that human blood was present on the clothes recovered at the instance of the
Appellants as well as on the knife, however, the blood group could not be
detected. Insofar as the post-mortem report is concerned [Ex.PW5/A], it has
been stated therein that the following injuries were present on the body of the
deceased:
i) Incised stab wound 3.3 x 1.9 cms obliquely present over left
side at chest 112 cms above heel and 8 cms from midline, chest
cavity deep, margins sharp and regular, lower end acute,
directed downwards, inwards and medially (hereinafter referred
to as 'Injury No.1');
ii) Incised wound .5 x .1 cms oblique, present over dorsum of left
hand, skin deep, margin sharp and regular (hereinafter referred
to as 'Injury No.2');
iii) Abrasion 0.5 x .03 cms present 1 cm above medial end of right
eyebrow on forehead (hereinafter referred to as 'Injury No.3').
It has been opined by Dr. Vinay Kumar Singh (PW-5) that the cause of
death was haemorragic shock consequent upon stab injury to the chest; all
injuries were antemortem in nature. Injury No.1 was sufficient to cause death
in the ordinary course of nature and Injury Nos.1 and 2 were caused by a
single edge and sharp weapon/knife. Furthermore, on internal examination
the following injuries were discovered:
"In continuation of Injury No.1, skin, subcutaneous tissue,
muscle, in between 6th and 7th ribs, upper body at 7th rib,
pleurae left side, pericardium and left ventricular of heart
above apex, 2.8 x 1.5 cms were incised, about 2.5 litres of
blood in cavity, all layers of muscle at left vertical were
incised, cavity deep, chambers empty."
PW-5 in his opinion [Ex.PW5/C] has stated that Injury Nos.1 and 2
could have been caused by the knife/weapon of offence [Ex.P9] recovered at
the instance of Appellant No.2. As per the sketch drawn by PW-5 of the
knife, the length and width of the blade thereof is 20.3 cms and 3.7 cms (at
most), respectively. It has also been deposed by PW-5 that Injury Nos.1 and
2 have been caused from the same weapon of offence.
Furthermore, PW-5 has also tendered subsequent opinion with respect
to Injury No.3 [Ex.PW5/B]. It has been stated therein that the Injury No.3
could have been caused due to surface friction against a rough surface.
7. At the trial, the prosecution has examined 23 witnesses in support of
its case.
8. The Appellant No.1 in his defence has chosen not to lead any
evidence. However, it has been stated by him in his statement under the
provision of Section 313 CrPC that he found the mobile phone from the
bushes of the park at Sanjay Jheel; where he was playing football. It has been
further stated by him that he has been falsely implicated in the present case.
Moreover, the recovery of the T-shirt at his instance has been denied by him.
The Appellant No.2 in his statement under the provision of Section
313 CrPC, whilst disputing the recoveries made at his instance, has also
stated that he has been falsely implicated in the present case. The Appellant
No.2 in his defence has produced Mr. Nasir Ahmed (DW-1), his employer,
who asserted that at the time of the incident Appellant No.2 was present with
him in Rewari, Haryana.
The Appellant No.3 in his statement, under the provision of Section
313 CrPC, whilst disputing the recovery made at his instance, has also stated
that he has been falsely implicated in the present case. The Appellant No.3 in
his defence has produced Md. Yasin (DW-2), his employer. It has been
deposed by DW-2 that Appellant No.3 was working with him at the time of
the incident.
9. The Trial Court whilst rejecting the defence set up by the Appellants,
convicted them as stated hereinbefore. Broadly, the grounds that have
contributed towards the conviction of the Appellants before the Trial Court
are as follows:
i) The testimony of PW-6, the sole eyewitness, being consistent,
credible and truthful;
ii) PW-6 has identified the Appellants in Court. Furthermore, PW-
6 has assigned the specific role played by each of the Appellants
in the commission of the crime;
iii) The recovery of the mobile phone of the deceased from the
Appellant No.1;
iv) Recovery of the weapon of offence [Ex.P9] at the instance of
Appellant No.2 and the opinion of Dr. Vinay Kumar Singh
(PW-5) that the stab injuries could have been caused by the said
weapon;
v) Refusal on the part of the Appellants to participate in the T.I.P.
proceedings;
vi) Common intention shared by the Appellants whilst committing
robbery, in causing the injuries present on the body of the
deceased;
vii) The stab injury on the chest i.e. Injury No.1, being sufficient to
cause death in the ordinary course of nature.
10. Learned counsel appearing on behalf of the Appellants whilst limiting
her arguments to the conviction and sentence under Section 302 of the IPC,
would invite the attention of the Court to the nature of injuries caused to the
deceased. It would be urged that only one fatal blow was caused to the
deceased that too of the nature "likely to cause death", so as to bring the
instant case within the purview of clause (b) of Section 299 IPC; and not
under Section 300 IPC. It would then be contended that there was no
intention to cause any fatal injury sufficient in the ordinary course of nature
to cause death.
11. In order to buttress this submission reliance would be placed on the
decisions of the High Court of Delhi in Tajinder Singh @ Kaka v. State
reported as (2013) 2 JCC 1164, Chamela v. State being Criminal Appeal
No.545 of 2004, Shiv Kumar v. State of Delhi reported as (2015) 2 JCC
806, and Shiv Kumar v. State (NCT) of Delhi reported as (2014) 2 JCC
1282; and of the Hon'ble Supreme Court in Mavila Thamban Nambiar v.
State of Kerala reported as (2009) 17 SCC 441,
12. Furthermore, it would be asserted that no injury has been proved to be
caused to the deceased by Appellant Nos.1 and 3, and therefore, they are
liable to be acquitted of the charge under Section 302 IPC.
13. Per contra, learned Additional Public Prosecutor whilst supporting the
impugned judgment in its entirety, would urge that the findings of the Ld.
Trial Court require no interference. It would be asseverated that even in a
case of a single injury resulting in death, the accused can be convicted under
the provision of Section 302 of the IPC.
14. Further, it would be submitted that the prosecution by way of evidence
on record has established beyond reasonable doubt that the Appellants
shared the common intention to cause the fatal blow on the chest of the
deceased, and therefore the mandate of the provisions of Section 34 IPC
would apply to the facts of the present case.
15. We have heard the learned counsel appearing on behalf of the parties
and perused the entire case record.
16. In the present case the solitary question that has been raised for our
consideration is whether the act of the Appellants in causing stab injuries to
the deceased, leading to his death, would amount to "murder" under clause
(3) of Section 300 IPC or not.
17. On the facts of a case, whenever the Court is confronted with the
question whether the offence is "murder" or "culpable homicide not
amounting to murder", it would be necessary to approach the problem in
three stages. The question to be considered at the first stage being, whether
the accused has done an act resulting into 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 prima facie the act of the accused
amounts to "culpable homicide", as defined under the provision of Section
299 IPC. If the answer to this question is also answered in the affirmative, it
would lead to the last stage viz. for consideration of the application of the
provision of Section 300 of the IPC. At this stage, 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 IPC. If this question is answered in the negative, the offence
would be "culpable homicide not amounting to murder"; punishable under
the first or the second part of Section 304 IPC, depending, respectively, on
whether the second or the third clause of Section 299 IPC is attracted.
However, even if this question is answered in the positive, but the case falls
under any of the exceptions enumerated in Section 300 IPC, the offence
would still be "culpable homicide not amounting to murder", punishable
under the first part of Section 304 IPC [Ref: State of A.P. v. Rayavarapu
Punnayya, reported as (1976) 4 SCC 382]
18. For the purpose of adjudication of the question posed before us, it
would be relevant to refer to the subject of distinction between the provisions
under Sections 299 and 300 of the IPC viz. "culpable homicide not
amounting to murder" and "murder", respectively; and, in particular,
between clause (b) of Section 299 IPC with clause (3) of Section 300 IPC.
The Hon'ble Supreme Court in Abdul Waheed Khan and Ors. v. State of
A.P. reported as (2002) 7 SCC 175, whilst elucidating upon this subject
observed as follows:
"11. This brings us to the crucial question as to which was the appropriate
provision to be applied. In the scheme of IPC culpable homicide is the 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 the generic offence,
IPC practically recognizes three degrees of culpable homicide. The first is,
what may be called, "culpable homicide of the first degree". This is the
gravest 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.
12. 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 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 the death is
death is caused is done-- cause is done--
INTENTION
(a) with the intention of (1) with the intention of causing death; or
causing death; or
(b) with the intention of (2) with the intention of causing such bodily injury as the
causing such bodily offender knows to be likely to cause the death of the
injury as is likely to person to whom the harm is caused; or
cause death; 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 (4) with the knowledge that the act is so imminently
that the act is likely dangerous that it must in all probability cause death or
to cause death. such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the
risk of causing death or such injury as is mentioned
above.
13. 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.
14. 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 Section 299 and clause (3) of Section 300 is one of
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.
15. 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 Singh v. State of Kerala [AIR 1966
SC 1874 : 1966 Cri LJ 1509] is an apt illustration of this point.
16. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ
818] Vivian Bose, J. speaking for the Court, explained the meaning and
scope of clause (3). It was observed that 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. Thirdly, it must be proved 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.
17. The ingredients of clause "thirdly" of Section 300 IPC were brought
out by the illustrious Judge in his terse language as follows: (AIR p. 467,
para 12)
"12. To put it shortly, 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.
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."
18. The learned Judge explained the third ingredient in the following
words (at p. 468): (AIR para 16)
"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 to inflict it. Whether he
knew of its seriousness, or 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 or the circumstances
warrant an opposite conclusion."
19. These observations of Vivian Bose, J. have become locus classicus.
The test laid down by Virsa Singh case [AIR 1958 SC 465 : 1958 Cri LJ
818] 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 i.e. (a) that the act which causes death
is done with the intention of causing death or 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.
20. Thus, according to the rule laid down in Virsa Singh case [AIR 1958
SC 465 : 1958 Cri LJ 818] even if the intention of the 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.
21. 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.
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.
(Emphasis suppled)"
19. Further, it would be relevant to note that there is no principle in law
that in all cases of single blow, resulting into the death of the victim, the
vigour of Section 302 IPC is not attracted. Each case of single blow has to be
decided on the facts and circumstances obtaining in that case [Ref: Mahesh
Balmiki @ Manna v. State of Madhya Pradesh reported as (2000) 1 SCC
319, and Raj Kumar v. State of Madhya Pradesh reported as (2009) 15
SCC 292].
20. On a plain reading of the decision in Abdul Waheed Khan (supra);
which takes into consideration the observations made by Vivian Bose J. in
Virsa Singh v. State of Punjab reported as AIR 1958 SC 465, the test on the
anvil of which the Courts should consider the application of clause (3) of
Section 300 IPC, can be summarized as follows:
a) The subject injury must have been intended and should not have
been caused by an accident or otherwise should not be
unintentional; and
b) The injury should be sufficient in the ordinary course of nature to
cause death.
21. Broadly, PW-6 (the eyewitness) has deposed to the incident as
follows:
That on 18.04.2010, at about 10 A.M., while she was on her way to
her friend's house she met the deceased. The deceased was her cousin
brother. They both got engaged into a conversation and whilst
simulataneously conversing and walking reached Sanjay Jheel. They both sat
down there on a bench when the Appellants approached the deceased and
asked him for the time. Thereafter, the Appellants asked the deceased to
stand up and both of them stood up. On their standing up, the Appellants
asked the deceased to hand over everything in his possession, however, PW-
6 and the deceased told the Appellants that they do not have anything and
asked for them to be left alone. Appellant No.2 took out a knife and asked
for the deceased to hand over everything in his possession or otherwise he
will be killed. On the other hand, Appellant No.3 threatened PW-6 to leave
from there or otherwise she too will be killed. PW-6 started walking away
from the crime spot and after walking a few steps again requested to the
Appellants to leave them alone. The deceased also requested the Appellants
to leave them.
The Appellant Nos.1 and 3 caught hold of the deceased and the
Appellant No.2 stabbed the deceased on his chest. On being stabbed, the
deceased started crying and after taking a few steps fell down on the ground.
Thereafter, the Appellants took away the money and mobile phone of the
deceased and absconded from the crime spot. PW-6 went up to the deceased
while he was bleeding from his chest and asked him to get up. However, the
deceased couldn't speak and was breathing heavily. PW-6 approached some
boys, which included PW-3, and asked them for their help. At her request,
PW-3 made the call to the police to report the incident, pursuant to which the
police arrived and took the dead body of the deceased to the hospital.
22. One of the contention which was raised by the Appellants before the
Trial Court in order to discredit the testimony of the sole eye-witness, PW-6
was that she has only deposed of one stab wound viz. Injury No.1, whereas
the postmortem records two stab wounds on the body of the deceased. The
Trial Court whilst rejecting this contention and holding the testimony of PW-
6 to be consistent, credible and truthful, observed as follows:
"25. ...It is stated that as per PW6, only one stab wound was caused
but as per P/M report Ex.PW5/A, deceased sufferred two stab wounds.
PW6 has talked about only one stab injury inflicted by accused
Mukesh on the chest of deceased. As per P/M report Ex.PW5/A, there
is another stab injury present over dorsum of left hand and doctor
opined that both injury No.1 and 2 are caused by single edged sharp
weapon/knife. PW6 has stated that he pleaded with accused persons to
leave them as they are not having any thing. On this, accused Akram
threatened her to go away from there otherwise she will be killed. She
started leaving from the spot, after taking few steps she again
requested accused persons to leave them. As per PW6, she saw
accused Imran and Mukesh caught hold deceased Dhiraj and accusecd
Mukesh stabbed Dhiraj on his chest. Injury on the dorsum of left hand
of the deceased shows that while being assaulted with knife as natural
reaction to defend, deceased must have brought his hand in-between,
as result of which he sustained this injury. Since PW6 was leaving
from the spot and from some distance she saw accused stabbing
deceased, it looks probable that she did not see accused inflicting
injury No.2 i.e. on left hand of the deceased. Statement of PW6 is
consistent. She was cross-examined by both the Ld. Defence counsels
but nothing has come on record either to discredit her testimony or to
establish that she is not an ocular witness to the incident and was
planted as an eye witness. Ex.PW6/H is the statement of PW6
recorded by Ld. M.M. PW8 Vivek Kumar Gulia under section 164
Cr.P.C., which is exactly the same as deposed by PW6 before this
Court. I therefore do not agree with the contention raised by Ld.
Defence counsels. Statement of PW6 is consistent, credible and
appeared to be truthful."
Having considered the statements made by PW-6 in Court as well as
before the Ld. Metropolitan Magistrate, we also are of the view, in keeping
with the observations made by the Trial Court, that the testimony of PW-6 as
to how the incident transpired has remained consistent and unshattered, and
can therefore be relied upon. The Trial Court rightly concluded that the
possible reason for PW-6 not having testified to the injury on the dorsem of
the left hand (Injury No.2) could be that it was caused when she started
walking away from the crime spot.
23. There were two stab injuries on the body of the deceased (Injury
Nos.1 and 2) and an abrasion near the right eyebrow (Injury No.3). We are
not concerned with Injury No.3 as the same is opined to have been caused
due to the deceased falling, after being stabbed by the Appellants. Insofar as
as Injury Nos.1 and 2 are concerned, they are stab injuries caused by the
knife recovered at the instance of Appellant No.2; Injury No.1 being
sufficient in the ordinary course of nature to cause death.
24. As rightly observed by the Trial Court, Injury No.2 could have been
caused as a consequence of the deceased exercising his right of defending
himself by a natural reflex action against assault by Appellant No.2 with a
knife. Even otherwise, it seems only logical to conclude that Appellant No.2
was not aiming for the dorsum of his left hand.
25. However, insofar as the fatal injury is concerned i.e. Injury No.1, the
same was caused by the Appellant No.2 using the knife [Ex.P9] recovered at
his instance, whilst Appellant Nos.1 and 3 had caught hold of the deceased.
The Injury No.1 was on a vital part of the body viz. left side of the chest,
with a force so great that it resulted into an incise wound as large as 3.3 x 1.9
cms, and as a consequence thereof, several grave and internal injuries also
resulted.
The Injury No.1 so caused cannot be said to be accidental, unlike
Injury No.2, as with two persons holding the deceased and a stab wound
already present on the dorsum of his left hand (Injury No.2), there was not
much scope of movement for a young boy of an average physique.
Therefore, it cannot be disputed that Injury No.1, which was sufficient in the
ordinary course of nature to cause death, was caused intentionally and not
accidentally.
26. The reliance placed by learned counsel on certain decisions of this
Court as well as the Hon'ble Supreme Court to establish that the present is a
fit case for modifying the conviction of the Appellants from section 302 IPC
to section 304 IPC, is completely misplaced, inasmuch as, they are
distinguishable, having been rendered on the basis of the facts and
circumstances as well as the evidence adduced therein.
27. In Ramesh Singh v. State of A.P. reported as (2004) 11 SCC 305, the
Hon'ble Supreme Court was pleased to discuss the object of incorporating
section 34 IPC as follows:
"12. ... As a general principle in a case of criminal liability it is the
primary responsibility of the person who actually commits the offence
and only that person who has committed the crime can be held guilty.
By introducing Section 34 in the Penal Code the legislature laid down
the principle of joint liability in doing a criminal act. The essence of
that liability is to be found in the existence of a common intention
connecting the accused leading to the doing of a criminal act in
furtherance of such intention. Thus, if the act is the result of a common
intention then every person who did the criminal act with that common
intention would be responsible for the offence committed irrespective
of the share which he had in its perpetration. Section 34 IPC embodies
the principle of joint liability in doing the criminal act based on a
common intention. Common intention essentially being a state of mind
it is very difficult to procure direct evidence to prove such intention.
Therefore, in most cases it has to be inferred from the act like, the
conduct of the accused or other relevant circumstances of the case. The
inference can be gathered from the manner in which the accused
arrived at the scene and mounted the attack, the determination and
concert with which the attack was made, and from the nature of injury
caused by one or some of them. The contributory acts of the persons
who are not responsible for the injury can further be inferred from the
subsequent conduct after the attack. In this regard even an illegal
omission on the part of such accused can indicate the sharing of
common intention. In other words, the totality of circumstances must
be taken into consideration in arriving at the conclusion whether the
accused had the common intention to commit an offence of which they
could be convicted. (See Noor Mohammad Mohd. Yusuf
Momin v. State of Maharashtra [(1970) 1 SCC 696 : 1970 SCC (Cri)
274 : AIR 1971 SC 885] .)
13. Since common intention essentially being a state of mind can only
be gathered by inference drawn from facts and circumstances
established in a given case, the earlier decisions involving almost
similar facts cannot be used as a precedent to determine the
conclusions on facts in the case in hand..."
28. A plain reading of the above decision clearly postulates that section 34
IPC embodies the principle of joint liability in doing a criminal act with
common intention. The common intention being a state of mind has to be
inferred from the facts and circumstances of a case. If common intention is
attributed to each of the accused and the act is a result thereof, then every
person who did the criminal act with that common intention would be
responsible for the offence committed irrespective of the share which he had
in its perpetration.
29. Furthermore, in order to attract section 34 IPC it is not necessary that
each one of the accused must assault the deceased. It would suffice if it is
established that all the accused shared a common intention to commit the
offence and in furtherance thereof each one played his assigned role by
doing separate acts, similar or diverse. [Ref: Nandu Rastogi v. State of
Bihar, reported as (2002) 8 SCC 9]
30. The Appellants were carrying the weapon of offence/knife [Ex.P9]
when they arrived together at the crime spot to commit robbery. The
Appellant Nos.1 and 3 caught hold of the deceased while Appellant No.2
caused stab injuries using the said knife. This circumstance coupled with the
conduct of Appellant No.3, threatening to kill PW-6, conclusively
establishes the fact that the Appellants shared the common intention to cause
fatal injuries in furtherance of their intended object to commit robbery, and
Injury No.1 was a consequence of the said shared common intention, in
causing which all the Appellants played their respective assigned role.
31. Even if we presume that the Appellants did not pre-meditate causing
of any fatal injury to the deceased, the presumption would be of no
assistance to the Appellants, inasmuch as, intention need not necessarily
involve pre-meditation.
32. Therefore, the principle of joint liability, embodied in Section 34 IPC,
would apply to the act of the Appellants in causing Injury No.1 with shared
common intention. The Injury No.1 being sufficient in the ordinary course of
nature to cause death.
33. The question posed before us is answered in the affirmative. Injury
No.1 being the result of the common intention shared by the Appellants; the
injury being the one intended to be caused; and the said injury being
sufficient in the ordinary course of nature to cause death, would bring the
commission of the act of the Appellants in causing the said injury within the
purview of clause (3) of Section 300 IPC i.e. "Murder".
34. In view of the foregoing, there appears to be no circumstance that
warrants an interference of this Court with the findings of the Ld. Trial
Court.
35. Consequently, the conviction of the Appellants as recorded in the
impugned judgment as well as the sentence awarded to each one of them by
way of the order on sentence, are upheld.
36. The present appeals are accordingly dismissed, with no order as to
costs.
37. Copy of the judgment be supplied to the Appellants through the
Superintendent, Central Jail, Tihar and also be sent for updation of the
records.
SIDDHARTH MRIDUL, J.
NAJMI WAZIRI, J.
SEPTEMBER 26, 2017
dn/ap
