R.S. Chauhan, J.@mdashThe joyous occasion of a marriage, suddenly turned into a tragedy, when allegedly the appellant hit Bhairon Lal, a member of the wedding party with a piece of wood and consequently Bhairon Lal died. Convicted for offence u/s 302 IPC and sentenced to life imprisonment and imposed with a fine of Rs. 1,000/- and directed to further undergo one year of simple imprisonment in default thereof, the appellant has challenged the judgment dated 2.12.2002 passed by the Addl. Sessions Judge (Fast Track) No. 1, Kota before this court.
2. Briefly, the facts of the case are that on 16.6.02 one Kishan Lal submitted a written report (Ex. P.4) before the Police Station, Seemlia, District Kota wherein he alleged that he alongwith the appellant and Bhairon Lal had come as members of a wedding party from Lalpura to Gumanpura. According to him there were about 30-40 members in the wedding party. As the wedding procession was proceeding towards the wedding place, the men were dancing before the bridegroom. The appellant had stopped the women from dancing. Therefore, an altercation had taken place between the appellant and the Bhairon Lal. Initially some of the members of the wedding party separated the appellant and Bhairon Lal. However, after a while the appellant pulled out a piece, of wood from a tractor trolly and hit Bhairon Lal on his head. Being struck, Bharon Lal fell on the ground. He was picked up, bundled up, and taken to the hospital. He expired on the next morning. On the basis of the said report a formal FIR, FIR No. 85/02 was registered at P.S. Seemlia, District Kota for offence u/s 302 IPC. In order to prove its case the prosecution examined seventeen witnesses and submitted fifteen documents. Although the defence did not examine any witnesses, but it did submit five documents. After going through the oral and documentary evidence the learned trial court convicted and sentenced the appellant as aforementioned. Thus this appeal before this court.
3. Since this appeal has been filed from the jail, since the appellant does not have any lawyer to argue his case, this Court has appointed Mr. Mahendra Shandilya as Amicus Curiae, in this case.
4. Mr. Shandilya has raised a single, contention before this court, namely that according to the witnesses themselves the alleged crime was committed without any premeditation and that too at the spur of the moment. Suddenly, the appellant had picked up a piece of wood from a tractor trolly and had inflicted a single blow on the head of the deceased. Thus, he had no intention to kill the deceased. Therefore, the case does not travel beyond 304 Part II IPC. Hence his conviction u/s 302 IPC is misplaced.
5. On the other hand, Mr. Ashwini Kumar Sharma, the learned Public Prosecutor, has supported the impugned judgment.
6. We have heard both the learned Counsel for the parties, have perused the impugned judgment and have examined the record.
7. In our view Mr. Shandilya has fairly left the evidence produced by the prosecution untouched. For, the testimonies of Kishan Lal (P.W.2), Dhuli Lal (P.W.5) and Bhura Lal (P.W.6), all of whom were eye-witnesses to the alleged crime, clearly prove that the appellant had struck the deceased on his head with a piece of wood. Their testimony is further corroborated by the Injury Report (Ex.P.9) and by the testimony of Dr. P.K. Tiwari (P.W.11) who had examined the injured Bhairon Lal. These testimonies are further corroborated by the Post-Mortem Report Ex. (P. 15) and by the testimony of Dr. Kedar Sharma (P.W.17) who performed the Post-Mortem of the deceased. According to the Post Mortem Report (Ex.P.15) the deceased had suffered a blunt wound on his head on the left side of the parietal region of his head. He had also suffered a haemotoma in the brain because of the said injury. Thus the prosecution has sufficiently proved that Bhairon Lal died a homicidal death caused by the appellant.
8. The distinction between "culpable homicide not amounting to murder" and "murder" and is thin one, but nevertheless a real one. The distinction has taxed the imagination of the Courts and the Judges. In the case of
A person commits culpable Subject to certain exceptions
homicide if the act by which culpable homicide is muder if
the death is caused is done the act by which the death
caused is done-
INTENTION
(a) with the intention of causing (1) with the intention of
death; or causing death; or
(b).with the intention of causing (2) with the intention of
such bodily injury as is causing such bodily injury as
likely to cause death; or the offender knows to be likely
to cause the death of the person
to whom the harm is caused; or
(3) with the intention of causing
bodily injury to, any person and
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 likely to cause death. act is so imminently dangerous
that it must in all probability cause
death or such bodily injury as is likely
to cause death, and without any excuse
for incurring the risk of causing death
or such injury as is mentioned above.
14 Clause (b) of Section 299 correspondents with Clause (2) and (3) of Section 300. The distinguishing feature of the means are 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 intentional 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 on 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 fraity of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence with not murder, even if the injury which caused the death, was intentionally given.
16. Clause (3) of Section 300, instead of the words ''like 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 dupable 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 "most probable" result of the injury, having regard to the ordinary course of nature.
17. 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 v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point.
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 person in general as distinguished from a particular person or persons - being causing 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.
9. After critically analysing the aforesaid provisions, the Hon''ble Supreme Court prescribed the method for distinguishing these two offences as under:
21. From the above conspectus, it emerges that whenever a court is confronted 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, 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 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 murde'' punishable under the First Part of Section 304, Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the test of the Court. But sometimes the facts are so intertwined and the second and the third stage 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.
10. Applying the method mentioned above, undoubtedly, the appellant had caused the death of Bhairon Lal, however, the question before this Court is whether the offence adds upto "culpable homicide not amounting to murder" or amounts to "murder"? A bare perusal of evidence clearly reveals that the occurrence was preceded by verbal altercation, since the appellant had picked up apiece of wood from a tractor trolly and hit Bhairon Lal on his head, obviously he did not Intend to cause his death. Moreover, the single injury caused by the appellant was not even sufficient in the ordinary course of nature to cause the death of Bhairon Lal. Furthermore, such injury did not amounts "to imminent danger in all probability to cause death of the deceased." Therefore, the appellant''s case does not fall within the four corners or within the four clauses of Section 300. Looking to the circumstances of the case, we can safely infer that while hitting the deceased with piece of wood, on his head, the appellant must have had knowledge that his act is likely to cause death of deceased, Bhairon Lal. Hence, the case of the appellant falls squarely u/s 299 IPC and adds up to only "a culpable homicide not amounting to a murder."
11. For these reasons, we partly allow the appeal and instead of Section 302 IPC, we convict the appellant u/s 304 Part II of the Indian Penal Code. Looking to the fact that the appellant is undergone confinement for a period of five years six months, the ends of justice would-be served in sentencing the appellant to the period already undergone by him in confinement.
Appellant, Satya Narayan @ Sattu, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.
