Jharkhand High Court
Mukesh Topno Son Of Late Lalo Topno vs The State Of Jharkhand on 4 March, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 120 of 2016
[arising out of Judgment of conviction dated 23rd
day of September, 2015 and order of sentence
dated 7th October, 2015 passed by the Additional
Sessions Judge, Simdega in Sessions Trial
No.202 of 2011]
Mukesh Topno son of late Lalo Topno, resident of Village Jaldega,
PO PS Jaldega, District Simdega.
... Appellant
-versus-
The State of Jharkhand ... Respondent
For the Appellant : Ms. Bharti Kumari, Advocate
For the Respondent : Mr. Vineet Kumar Vashistha, A.P.P.
PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
----
JUDGMENT
Per Ananda Sen, J. Appellant has preferred this appeal against the Judgment of
Conviction and Order of Sentence dated 23rd September, 2015 and 7th
October, 2015 passed by the learned Additional Sessions Judge, Simdega in
Sessions Trial No.202 of 2011, whereby and whereunder the appellant has
been convicted under Section 302 of the Indian Penal Code and has been
sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- for the
offence under Section 302 of the Indian Penal Code and in default of payment
of fine, appellant has to suffer three months' additional simple imprisonment.
2. Jashmani Topno (informant) who is wife of the deceased and
mother of the appellant, in her beyan stated that on 23.10.2011 at about 07.00
p.m. her husband Lalo Topno (deceased) and her son Mukesh Topno
(appellant) were taking dinner in the house. In the meantime, her son started
demanding money to purchase one motorcycle, which her husband refused on
the ground that now he does not have money as he spent his entire money
upon them. On this reply appellant, who was under the influence of alcohol,
became ferocious and after leaving food, he rushed towards his room and
brought one hockey stick and started assaulting her husband (deceased). She
tried to save her husband, but the appellant struck hockey stick on the
forehead of her husband, thus, he sustained injury, blood started oozing and
he became senseless. On her alarm, neighbours reached. With their help, she
brought her husband at Jaldega Hospital, where the doctor declared him as
dead. She has further alleged that in the course of saving her husband, she
also sustained injury on her head.
3. On the basis of the fardbeyan of the informant, Jaldega Police
Station Case No.33 of 2011 dated 23.10.2011 was registered under Section
302 of the Indian Penal Code against the appellant. After investigation,
chargesheet was submitted, whereupon the Chief Judicial Magistrate,
Simdega took cognizance of the offence and the case was committed to the
Court of Sessions. Charge was framed against the appellant under Section
302 of the Indian Penal Code and trial was started.
5. Prosecution, in order to bring home the charge, had examined
altogether 10 (ten) witnesses, namely, P.W.1 Rashmi Topno, P.W. Jina
Topno, P.W.3 Jashmani Topno, P.W.4 Dr. Prabhu Sahay Linda, P.W.5 Albert
Bilung, P.W.6 Tarsious Bage, P.W.7 Dr. Aradhana Sanga, P.W.8 Prithibi
Harizan, P.W.9 Ajaj Ahmad Khan. One Court Witness, namely, C.W.1 Manas
Kumar Das was also examined.
P.W.1 Rashmi Topno is the daughter of the deceased and sister
of the appellant. She has stated in her evidence that her mother was serving
food to her father and her brother, but in the meantime, the appellant
demanded money from the deceased to purchase one motorcycle on which
the deceased replied that now he does not have the money and on this issue,
the appellant brought one hockey stick and hit on the head of the deceased
and due to the injuries, he became unconscious. The deceased was brought
to the hospital, where the deceased was declared dead. She further stated
that the appellant used to consume alcohol.
P.W.2 is Jina Topno is the son of the deceased and brother of the
appellant. He has stated in his evidence that on 23.10.2011 at about 07.00
p.m. her mother (P.W.3) was providing food to her father (deceased), to him
and her brother Mukesh Topno (appellant), but in the meantime, the appellant
demanded money from the deceased to purchase one motorcycle on which
deceased replied that now he does not have the money as he has spent his
entire money upon them. Out of rage, the appellant brought one hockey stick
and hit on the head of the deceased and he died spontaneously. He further
stated in his cross-examination that the appellant is mentally fit and he used to
consume alcohol and appellant has given single blow on the head of the
deceased.
P.W.3 Jashmani Topno is the informant. She is wife of the
deceased and mother of the appellant. She has stated in her evidence that on
the date of occurrence at about 07.00 p.m. she was in her house and at the
time when she was providing food to her husband (deceased) and to her son
(appellant). In the meantime, the appellant demanded money from her
husband to purchase one motorcycle, but her husband replied that the entire
money has been spent upon him and he has no money. Then the accused
brought one hockey stick from his room and hit on the head of the deceased
whereafter he died. She further stated that she does not know whether the
appellant is mentally unstable or not and whether he used to consume alcohol
or not.
P.W.4 Dr. Prabhu Sahay Linda is the Medical Officer, who
conducted Postmortem Examination of the deceased. He found the following: -
a. On General Examination : Physique was average built, nutrition
was good, rigor mortis was present in all four limbs, body was not
decomposed.
b. External Examination:
i. Both eyes were closed, mouth was closed and tongue inside the
mouth.
ii. Lacerated wound 2" x ½ x bone deep over right posterior side of
head just behind the right ear
iii. Small abrasion over left elbow ½" x 1".
c. Internal Examination
i. The right occipital bone is fractured (depressed fractures)
adjacent to the wound.
ii. Cranial cavity containing blood.
iii. Brain and maninges adjacent to the wound are hyperaemic and
injured.
d. Weapon used: Hard and blunt surface object.
As per opinion of the doctor, conducting the postmortem
examination, the cause of death is cardio respiratory failure due to
neurogenic and haemorphagic shock caused by above mentioned
injury. He further opined that such injuries are possible if one falls
from a long height forcefully.
P.W.5, Albert Bilung is the tenant of the deceased. He deposed
that as on 23.10.2011 at about 07.00 p.m. he was at village Jalasrinager Near
Jaldega and on hearing alarm, he came out from his house and saw that the
deceased was lying on the ground sustaining injury on his head. Then he
informed the relatives of the deceased. Thereafter he came to know that on
the same evening while taking dinner some hot exchange of words took place
in between the deceased and his son (appellant) and on this issue the
accused took out one hockey stick from his room and struck a blow with
hockey stick on the head of the deceased, resulting in his death. The fact of
the occurrence was disclosed to him by Rashmi Topno (P.W.1).
P.W.6 Tarcious Bage deposed that on 23.10.2011 at 07.00 p.m.
he was in the market and at about 08.00 p.m. when he returned from market,
he heard that the deceased has been taken to the hospital because he
sustained injuries.
P.W.7 Aradhana Sanga is the Medical Officer. She examined the
injured namely Jashmani Topno (P.W.3) and found the following injuries: -
a. Lacerated wound on right side of the scalp: 2" x ¼" x ¼"
As per the opinion of the doctor examining the injured,
weapon used was blunt object and nature of injuries has
been opined to be simple. She has stated that such injury
may be possible on fall.
P.W.8, Prithibi Harizan is the Investigating Officer of the case. He
has stated in his evidence that on 21.10.2011, he took the charge of further
investigation of Jaldega P.S. Case No.23 of 2011 and in the course of his
investigation, he received the injury report and postmortem report and as per
direction of superior police officer, he submitted chargesheet in this case.
P.W.9 Ajaj Ahmad Khan is also an Investigating Officer of the
case. He has stated in his evidence that in course of investigation, he recorded
the statement of the concerned witness in the case diary, inspected the place
of occurrence, recovered a hockey stick from the room of the appellant and
seized the said hockey stick. Thereafter on 21.11.2011, he handed over the
investigation to the Officer-in-charge. During his evidence, he stated that the
inquest report of deceased was prepared by S.I.B.D Manjhi but the copy of the
said inquest report is not available in the case diary.
C.W.1 Manas Kumar Das, a Court Witness, is a local police
constable. He produced one hockey stick which was exhibited as Material
Exhibit I.
6. Upon conclusion of the evidence of the prosecution, appellant's
statement was recorded under Section 313 of the Code of Criminal Procedure.
He did not choose to lead evidence.
7. After hearing the parties, upon conclusion of the trial, the
appellant has been convicted and sentenced by the Judgment of Conviction
and Order of Sentence dated 23rd September, 2015 and 7th October, 2015, as
mentioned in paragraph 1 of this judgment.
8. Challenging the aforesaid judgment of conviction and order of
sentence, the appellant has preferred this appeal.
9. Learned counsel appearing on behalf of the appellant submits that
there is lack of motive or intention on the part of the appellant, which is one of
the important ingredients of Section 302 of the Indian Penal Code. The
incident occurred in sudden spur of moment and it was not a planned action.
He further submits that the Trial Court has not considered the aforesaid fact
while convicting the appellant under Section 302 of the Indian Penal Code.
The intention of the deceased was not to commit murder would be evident
from the fact that only one blow was given by the appellant and that too under
the influence of liquor. Thus, he prays for acquittal from the charges under
Section 302 of the Indian Penal Code.
10. Learned counsel appearing on behalf of the State submits that all
the prosecution witnesses have duly supported the case of the prosecution,
which is corroborated by the Postmortem Report, Injury Report of the
informant, seizure list and other documents presented by the prosecution,
thus, the conviction must be sustained.
11. After hearing the counsel for the parties, we have gone through
the records of the case and evidence.
12. The appellant was convicted under Section 302 of the Indian
Penal Code. On going through the deposition of prosecution witnesses, we
find that at the time of occurrence, the appellant and deceased were having
dinner together and informant was serving food to them. They were also
drinking liquor. In the meantime, the appellant asked the deceased for money
to purchase one motorcycle to which deceased denied and stated that he does
not have money as he has spent his entire money upon them. Upon this reply,
appellant became ferocious and leaving food, he rushed towards his room and
brought one hockey stick and gave a blow on head of the deceased, resulting
in his death. This is the consistent evidence led by the prosecution witnesses,
who are also the eye witnesses. It appears that out of rage the appellant struck
the deceased. It is also admitted that only one blow was given.
13. Since there is no dispute with regard to homicidal death of the
deceased, we do not find it necessary to refer to the medical evidence.
14. The question that falls for consideration is as to whether the
conviction under Section 302 of the Indian Penal Code would be required to be
maintained or whether the case would fall under a lesser offence.
15. The Supreme Court, in the case of State of A.P. versus
Rayavarapu Punnayya, reported in (1976) 4 SCC 382 has held that while
dealing with distinction between Section 299 and Section 300, in order to
decide whether an offence is 'murder' or 'culpable homicide not amounting to
murder', the Courts to approach the problem in three stages. Firstly, whether
the accused has done an act which 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
in the affirmative, the Court should determine whether the facts bring the case
within the ambit of any of the four clauses of the definition of 'murder' under
Section 300. If the answer 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 the answer is 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.
16. The Supreme Court in the case of Anbazhagan v. State
represented by Inspector of Police, reported in 2023 SCC OnLine SC 857
has succinctly explained the fine distinction between the cases that would fall
under Section 302, Section 304 Part 1 and Section 304 Part II of the IPC. It is
necessary here to quote para 66 of the judgment. It is here as under:-
66. Few important principles of law discernible from the aforesaid
discussion may be summed up thus:--
(1) When the court is confronted with the question, what offence
the accused could be said to have committed, the true test is to
find out the intention or knowledge of the accused in doing the act.
If the intention or knowledge was such as is described in Clauses
(1) to (4) of Section 300 of the IPC, the act will be murder even
though only a single injury was caused. To illustrate:'A' is bound
hand and foot. 'B' comes and placing his revolver against the head
of 'A', shoots 'A' in his head killing him instantaneously. Here,
there will be no difficulty in holding that the intention of 'B' in
shooting 'A' was to kill him, though only single injury was caused.
The case would, therefore, be of murder falling within Clause (1) of
Section 300 of the IPC. Taking another instance, 'B' sneaks into
the bed room of his enemy 'A' while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in
the left chest of 'A' and runs away. 'A' dies shortly thereafter. The
injury to 'A' was found to be sufficient in ordinary course of nature
to cause death. There may be no difficulty in holding that 'B'
intentionally inflicted the particular injury found to be caused and
that the said injury was objectively sufficient in the ordinary
course of nature to cause death. This would bring the act of 'B'
within Clause (3) of Section 300 of the IPC and render him guilty of
the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall
within Clauses (1) to (4) of Section 300 of the IPC, the act of the
accused which would otherwise be murder, will be taken out of the
purview of murder, if the accused's case attracts any one of the
five exceptions enumerated in that section. In the event of the case
falling within any of those exceptions, the offence would be
culpable homicide not amounting to murder, falling within Part 1 of
Section 304 of the IPC, if the case of the accused is such as to fall
within Clauses (1) to (3) of Section 300 of the IPC. It would be
offence under Part II of Section 304 if the case is such as to fall
within Clause (4) of Section 300 of the IPC. Again, the intention or
knowledge of the accused may be such that only 2nd or 3rd part of
Section 299 of the IPC, may be attracted but not any of the clauses
of Section 300 of the IPC. In that situation also, the offence would
be culpable homicide not amounting to murder under
Section 304 of the IPC. It would be an offence under Part I of that
section, if the case fall within 2nd part of Section 299, while it
would be an offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls
within the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable under the first
part of Section 304. If, however, it falls within the third clause, it is
punishable under the second part of Section 304. In effect,
therefore, the first part of this section would apply when there is
'guilty intention,' whereas the second part would apply when there
is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly
to Section 300 of the IPC, are fulfilled and the offence would be
murder.
(5) Section 304 of the IPC will apply to the following classes of
cases : (i) when the case falls under one or the other of the
clauses of Section 300, but it is covered by one of the exceptions
to that Section, (ii) when the injury caused is not of the higher
degree of likelihood which is covered by the expression 'sufficient
in the ordinary course of nature to cause death' but is of a lower
degree of likelihood which is generally spoken of as an injury
'likely to cause death' and the case does not fall under Clause (2)
of Section 300 of the IPC, (iii) when the act is done with the
knowledge that death is likely to ensue but without intention to
cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of
Section 304 of the IPC is that under the first part, the crime of
murder is first established and the accused is then given the
benefit of one of the exceptions to Section 300 of the IPC, while
under the second part, the crime of murder is never established at
all. Therefore, for the purpose of holding an accused guilty of the
offence punishable under the second part of Section 304 of
the IPC, the accused need not bring his case within one of the
exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from
more 'possibly'. When chances of happening are even or greater
than its not happening, we may say that the thing will 'probably
happen'. In reaching the conclusion, the court has to place itself in
the situation of the accused and then judge whether the accused
had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of
the IPC) and murder (Section 300 of the IPC) has always to be
carefully borne in mind while dealing with a charge under
Section 302 of the IPC. Under the category of unlawful homicides,
both, the cases of culpable homicide amounting to murder and
those not amounting to murder would fall. Culpable homicide is
not murder when the case is brought within the five exceptions to
Section 300 of the IPC. But, even though none of the said five
exceptions are pleaded or prima facie established on the evidence
on record, the prosecution must still be required under the law to
bring the case under any of the four clauses of Section 300 of
the IPC to sustain the charge of murder. If the prosecution fails to
discharge this onus in establishing any one of the four clauses of
Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder
would not be made out and the case may be one of culpable
homicide not amounting to murder as described under
Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If
Clause thirdly of Section 300 is to be applied, the assailant must
intend the particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct evidence. Inevitably, it
is a matter of inference to be drawn from the proved
circumstances of the case. The court must necessarily have
regard to the nature of the weapon used, part of the body injured,
extent of the injury, degree of force used in causing the injury, the
manner of attack, the circumstances preceding and attendant on
the attack.
(9) Intention to kill is not the only intention that makes a culpable
homicide a murder. The intention to cause injury or injuries
sufficient in the ordinary cause of nature to cause death also
makes a culpable homicide a murder if death has actually been
caused and intention to cause such injury or injuries is to be
inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the
death of the victim, no inference, as a general principle, can be
drawn that the accused did not have the intention to cause the
death or that particular injury which resulted in the death of the
victim. Whether an accused had the required guilty intention or
not, is a question of fact which has to be determined on the facts
of each case.
(11) Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily injury to
him and the intended injury is sufficient in the ordinary course of
nature to cause death, then, even if he inflicts a single injury which
results in the death of the victim, the offence squarely falls under
Clause thirdly of Section 300 of the IPC unless one of the
exceptions applies.
(12) In determining the question, whether an accused had guilty
intention or guilty knowledge in a case where only a single injury
is inflicted by him and that injury is sufficient in the ordinary
course of nature to cause death, the fact that the act is done
without premeditation in a sudden fight or quarrel, or that the
circumstances justify that the injury was accidental or
unintentional, or that he only intended a simple injury, would lead
to the inference of guilty knowledge, and the offence would be one
under Section 304 Part II of the IPC.
17. The Supreme Court very recently, in the case of Nirmala Devi vs
State of Himachal Pradesh reported in 2023 SCC OnLine SC 899 has
altered the conviction from Section 302 of the Indian Penal Code to that of 304
part 1 of the Indian Penal Code and held that the possibility of the appellant
causing the death of the deceased while being deprived of the power of self-
control, due to the provocation on account of the deceased cannot be ruled
out. The weapon used in the crime is a stick which was lying in the house, and
which, by no means, can be called a deadly weapon. It will be also necessary
to take into consideration the background in which the offence took place.
There used to be persistent quarrels between the deceased and the appellant.
18. The Supreme Court in the case of Mariappan v. State
represented by Inspector of Police reported in 2023 SCC OnLine SC 1594
applying Exception 4 of Section 300, convicting the accused for culpable
homicide not amounting to murder due to a killing in a fit of anger during a
passionate verbal quarrel. The Court found the act was impulsive, lacking
clear intent for murder.
19. In the present case, while looking at the facts which surfaced
during evidence, it is proved that the appellant had suddenly in the outrage hit
on the head of the deceased during a heated verbal argument with the
deceased. There is no element of a pre-planned attack with the sole intention
of causing the death of the deceased. The appellant had acted "suddenly", in
the heat of passion and without a pre-planned approach. Further, the appellant
was consuming alcohol. Admittedly, only one blow was given and there was
no repetition.
20. Hence, it can be safely concluded from the evidence led in the
present case that the appellant's overt act of killing the deceased happened
during a fit of anger in the heat of a passionate verbal quarrel and would fall
under Exception 4 to Section 300 of the Indian Penal Code. Moreover, the
clear intent indeed to prove culpable homicide amounting to murder has also
not been established by the prosecution in this case.
21. Thus, the conviction under Section 302 of the Indian Penal Code
and the sentence is set aside. The conviction under Section 302 of the Indian
Penal Code is converted to that of Section 304 Part-I with sentence of 10
years Rigorous Imprisonment.
22. Since the appellant has already served the sentence, he is
ordered to be released forthwith, if not wanted in any other case.
23. This appeal is, thus, allowed in part. Pending interlocutory
applications, if any, stand disposed of.
24. Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 4th March, 2024
Kumar/Cp-03
