Chanperpal v. State

13. The case as set down by the prosecution is that the deceased Kishan Pal was residing at farm Khasra No. 523/2, Neb Sarai, New Delhi along with his family and his brother Chander Pal (appellant herein who was unmarried). Chander Pal and Smt. Sunita developed illicit relations which came to the knowledge of deceased Kishan Pal. On the fateful day i.e. on 11.05.2008 around 11:00 P.M. deceased started abusing and beating his wife. Wife of the deceased received injuries on her body and started weeping. In a fit of rage Chander Pal (appellant) gave four spade blows to the deceased on his vital parts which led to his death. As per the prosecution appellant Chander Pal dug a pit inside the farm house and buried the body of the deceased to screen himself from the legal consequences.

14. Before dealing with the arguments of both the parties it is relevant to peruse the testimony ofthe material witnesses.

15. PW29 Sh. Sravan Bagaria (SDM) deposed that on 21.05.2008 he had received an information from Inspector Balram, Police Station Mehrauli that a dead body was to be exhumed from the plot Khasra Cri AppealNo. 463/2015 Page 6 of19 No. 523/2, Neb Sarai, New Delhi. PW29 further deposed that he reached the place at about 6.00 PM on the same day and after preliminary examination of the area, he ordered the exhumation of the dead body and the digging work started at about 6.15 PM. PW29 also deposed that all the brothers of the deceased were present along with other family members, photographs as well as videography ofthe digging and proceedings were recorded.

16. PW33 Inspector Vinod Pal, has testified that on 21.05.2008 he was posted as In charge Mobile Crime Team, South District and on the directions of South Delhi, Control Room, he along with the team comprising of HC Raj Kumar (Fingerprints Proficient) and Ct. Girdhar (Photographer) visited the spot of the incident where the then SHO/Inspector Balram along with the police officials of P.S Mehrauli, were found present. PW33 also deposed that the public persons had also gathered at the spot and after a while, SDM, Hauz Khas also arrived there. He ftirther deposed that a male dead body in decomposed condition was dug out and the photographs of the body as well as the spot were clicked. Injury marks on the neck of the dead body were also noticed. PW33 next deposed that he prepared scene of crime report bearing no 431/08 which is Ex. PW32/M.

17. PW34 HC Jaiveer Singh testified that he accompanied SI Dinesh Kumar to Khasra No. 523/2, Neb Sarai, New Delhi on 21.05.2008 and also testified on the point of digging out of the dead body. PW34 also deposed that a private tempo was arranged and he took the dead body to the AIIMS mortuary and deposited the same for preservation. Crl. AppealNo. 463/2015 Page 7of19 //

18. PW26 Dr. Susheel Sharma, Senior resident, Department of Forensic Medicines at AIIMS Hospital, New Delhi testified that on 22.05.2008 he along with Dr. T. Millo had conducted the post mortem examination ofthe deceased Kishan Pal who was a 35 year old male. PW26 deposed that a decomposed corpse had been brought by the police for post-mortem examination which was mud stained. With regardto dead body PW26 deposed that rigor-mortis was passed off, post-mortem staining was not present and the corpse was in an advance stage of decomposition, skin and hair were easily removable, bones were exposed but foul smell was not present. PW26 also deposed that the following ante-mortem injuries were found present during post-mortem examination: i, A stab wound measuring 1.[7] x 2 cm present at front of middle of the neck, obliquely placed with outer/upper angle towards left side situated 5.[5] cm below to chin and 6 cm above to sterna angle. A track was established directed upward, backward and towards left passing through thyroid cartilage, through trachea, through oesophagus and terminate in prevertible fascia ofcervical vertebra associated with haemotoma. Total length of track was 4 cm. ii. Alaceration 1.[5] x 1cm present atright aspect ofoccipital region of scalp situated 2 cm from midline and 4 cm above from occipital protuberance associated with hematoma. Crl. Appeal No. 463/2015 \Jiii. A laceration 4 x 2.[5] cm present at occipital region of scalp associated with hematoma situated at middle and 3 cm above from occipital protuberance. iv. A laceration 10 x 4 cm bone deep present at left temporal region ofscalp ofscalp, 6 cm from left mastoid tip and 4.[5] cm from midline associated with hematoma. As per the testimony ofPW26 the cause of death was shock and haemorrhage consequent upon injury No. 1 which is sufficient to cause death in ordinary course ofnature. PW26 also testified that he had examined the weapon of offence and after examining the post mortem report and the spade he opined that injuries No. 1to 4 could be possible withthe givenweapon.

19. The last submission of the learned Counsel for the appellant is that in any event, the present case does not fall within Section 302 of the Indian Penal Code and the appellant be given benefit of Section 304 of the Indian Penal Code. In order to consider the contention of learned Counsel for the appellant, it would be fiiiitftil to have a look at the law relating to culpable homicide and murder. Section 299 of IPG Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 300 of IPC Murder.—^Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or CrL AppealNo. 463/2015 Page 9of19 [3 Secondly- Ifit is done witli the intention of causing such bodily injury as the offender knows to be likely to cause the death ofthe person to whomthe harm is caused, or Thirdly- Ifit is done with the intention ofcausing 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 committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, or Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death orsuch bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk ofcausing death or such injury as aforesaid.

20. To understand what constitutes Culpable homicide and Murder it will be useful to refer to the following judgments passed by the Apex Court: In the case of Chacko @Aniyan Kunju and Ors. Vs. State of Kerala: (2004) 12 SCC 269, it was held by Hon'ble Supreme Court that: All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics ofmurder is culpable homicide not amounting to murder". For the purpose offixing punishment, proportionate to the gravity of the generic ojfence, 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 Crl. AppealNo. 463/2015 Page 10 of19 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 ispunishable under thefirst part of Section 304. Then, there is "culpable homicide of the thirddegree". This is thelowest type

10. The academic 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 ofSection 304. Distinction between "murder" and "culpable homicide not amounting to murder" has always vexedthe courts. The confusion is caused, ifcourts 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 infocus 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:

1. 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 knowledgepossessed by the offender regarding the particular victim being in such a peculiar condition or state ofhealth that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way ofnature be sufficient to cause death ofa 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 Crl AppealNo. 463/2015 Page 11 of19;. J I victim is sufficient to bring the killing within the ambit ofthis clause.

2. Clause (b) ofSection 299 does notpostulate 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 afist-blow intentionally given knowing that the victim is sufferingfrom 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 thefailure ofthe heart, as the case may be. Ifthe assailant had no such knowledge about the disease or specialfrailty of the victim, nor an intention to cause death or bodily injury sufficient in theordinarycourse ofnature to causedeath, the offence will not be murder, even ifthe 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 ofnature" 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 isfine but real and if overlooked, may result in miscarriage ofjustice. The difference between Clause (b) of Section 299 and Clause (3) ofSection 300isone of degree ofprobability 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) ofSection 299 conveys the sense ofprobability as distinguishedfrom a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "mostprobable" result Crl. AppealNo. 463/2015 Page 12 of19 u ofthe injury, having regard to the ordinary course ofnature In another case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444y the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part ofthe accused. The Court observed: "...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking ofa fruit, straying of cattle, quarrel of children, utterance ofa rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases ofmurder where the accused attempts to avoid the penalty for murder by attempting to putforth a case that there was no intention to cause death. It is for the courts to ensure that the cases ofmurder punishable Under Section 302, are not converted into offences punishable UnderSection 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generallyfrom a combination ofa few or several ofthefollowing, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (Hi) whether the blow is aimed at a vital part of the body; (iv) the amount of Crl.Appeal No. 463/2015 Page 13 of19 Sf force employed in causing injury; (v) whether the act was in the course ofsudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and ifso, the causefor such provocation; (be) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..." Similarly in Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 see 528 and Sukbhir Singh v. State of Haryana (2002) 3 SCC 327, it was observed that:...After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused Appellants had come prepared and armedfor attacking the deceased....

21. In view of the aforesaid dictum, let us now examine the present case in the light of abovementioned settled law. We may say that the appellant gave four blows on the vital part of the deceased, the incident took place without any premeditation, at the spur of the moment and the appellant did not act in a cruel or unusual manner Crl. AppealNo. 463/2015 Page 14 of19 / ir so the case is clearly covered under Section 304 of the IPG which is defined as under- Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonmentfor life], or imprisonment ofeither description for a term which may extend to ten years, and shall also be liable tofine, ifthe act by which the death is caused is done with the intention of causing death, or of causing such \j' bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to tenyears, or withfine, or with both, ifthe act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

22. Section 304 ofthe Indian Penal Code consists oftwo parts, the first dealing with second degree culpable homicide and the second dealing with third degree culpable homicide as has been noted above. The distinction between Section 304 Part I and Part II has been drawn by the Hon'ble Supreme Court in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the following words: For punishment Under Section 304 Part I, the prosecution mustprove: the death ofthe person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act ofhis was likely to cause death... Crl.Appeal No. 463/2015 Page 15 of19 /;

23. In the case of Vijay Ramkrishan Gaikwas V. State of Maharashtra (2012) 11 SCC 592, it was observed that.... The occurrence thus has the features of an incident in which an injury is inflicted in a sudden fight withoutpremeditation in the heat ofpassion upon a sudden quarrel within the contemplation of \j' exception 4 to Section 300 ofmurder as defined in the said section. It is true that only one injury was caused to the deceased but the same is not conclusive by itself for even a single injury can in a given case constitute murder, having regard to the weapon used and the part of the body chosen for inflicting the injury. The legal position in this regard is wellsettled by the decision ofthis Court in Bavisetti Kameshwara Rao alias Babai v. State ofAndhra Pradesh: 2008 (15) SCC 725: (Para 13) It is seen that where in the murder case there only a single injury is, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II Indian Penal Code. The nature'of offence where there is a single injury could not be decided ^ merely on the basis ofthe single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court tofind outdefinitely about the intention on the part ofthe accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature ofweapon used; (Hi) the nature' of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the Learned Counsel urged that it was only an accidental use on the spur of the moment and, therefore, there Crl AppealNo. 463/2015 16of19 could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as ifits user would be innocuous. In another case of Jai Prakash v. State (Delhi Administration), 1991(2) see 32: the Apex Court held as under: "...when a person commits an act, he ispresumed to expect the natural consequences. Butfrom the merefact that the injury caused is sufficient in the ordinary course of nature to cause death, it does not necessarilyfollow that the offender intendedto cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will varyfrom case to case. However, as pointed out in Virsa Singh case the weapon used, the degree offorce released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number ofinjuries inflicted and their nature and thepart of the body where the injury was inflicted are some of the relevant factors. These andotherfactors which may arise in a case have to be consideredand ifon a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has togo to the accused...

24. In Shiv Kumar Vs. State (NCT) ofDelhi: 2014(2) JCCl 282, it was held that in dealing with Exception 4 to section 300 in Crl. AppealNo. 463/2015 ^j V,. Mahesh Balmiki versus State of Madhya Pradesh, (2000) 1 see 310, it has been observed:-

party offers the provocation or commits the first assault. The requirements ofthis exception are: (a) withoutpremeditation in a suddenfight; (b) in the heat ofpassion upon a sudden quarrel;

(c) the offender has not taken undue advantage;

(d) the offender has not acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would not be murder. "

25. While deciding the present appeal the aforestated principles culled out by the Apex Court are to be kept in view. In our view all the requirements of exceptions as extracted hereinabove are satisfied. Ill the present case it is in evidence that the incident took place on the heat ofthe moment or upon a sudden quarrel and it cannot be said that the appellant had any intention to actually murder his own real brother. The fight was sudden and not preplanned. Accordingly, we find force in the submission oflearned counsel for the appellant that the incident occurred on the heat ofthe moment on account of beatings given by the deceased to his wife Smt. Sunita under the influence ofthe liquor.

26. For the reasons stated above, we alter the conviction of the appellant from Section 302 ofthe Indian Penal Code to one under Crl. AppealNo. 463/2015 18of19 27.

28. 2^: Section 304 Part I of the Indian Penal Code. The order of sentence is accordingly modified to eight years. Accordingly, the appeal is partly allowed in the aforestated terms. Copy of this order be sent to Superintendent Jail. Copy of thejudgment along with Trial Court Record be sent back forthwith.