Case BriefsHigh Courts

Rajasthan High Court: Farjand Ali, J. dismissed the bail application of petitioner being accused of honour killing and observed that the investigating agency had left some facts unattended.

The facts of the case are such that the FIR was registered at the instance of the complainant  who is the father of the deceased . The complainant stated that he is a resident of bundi and from last one and a half years his son was  living in Kota. The dead body of his son was observed in “Barda of Jakhmund”. The petitioners were apprehended and were sent to judicial custody after investigation. The present bail application(s) was preferred by accused petitioners who are in judicial custody for the offences punishable under Sections 302, 201, 120- B and 364 of the Penal Code, 1860.

Counsel for the State relied on autopsy report, the last location of the deceased in the company of accused persons, death threats reported by the deceased on numerous occasions, CCTV footage as well as call details to oppose the present bail application.

The Court observed that the instant case has its own peculiar facts which are circumstantially diffusing smell of intent-full homicidal death on account of honour and prestige i.e., having a strong trait of honour killing.

The Court also observed that the substratum of the present case predominantly based upon circumstantial evidence, as no direct evidence or eye-witness is at stand-by for the same. More so, this Court is very well aware of the fact that the present case of the accused petitioner(s) is to be dealt to the extent of adjudication on the issue of bail only. Thus, the appreciation and meticulous evaluation of the facts and circumstances are not ordinarily warranted.

The exercising of judicial discretion as well as invoking the sense for exercising judicial discretion lies with the Court. In order to reach a plausible conclusion, over an issue placed before it, the character of such relevant facts and circumstances of the case are important. As the character of relevant facts and circumstances tends to display two probable sides of an issue; there the judicial discretion recognizes that side of an issue which is closer and more pregnant with sound legal traits based upon the parameters of Rule of Law. Thus, there is a fine distinction in between final hearing on merits and hearing a bail plea under section 439 CrPC.

The Court further noted that that there is no straight jacket formula for grant and dismissal of a bail but guiding by the judicial pronouncements on the issue of bail, it is clear that every case has its own peculiar facts and circumstance attached to it.

The Court observed that after perusing the charge-sheet, the chain of events tentatively showing a well-designed conspiracy and the complicity of every accused person is very much available on record.

The Court thus held the present case is not a fit case for extending bail to the accused petitioners at this stage. Resultantly, both the bail applications filed by the accused (s)are hereby dismissed.

[Bhim Saini v. State of Rajasthan, 2022 SCC OnLine Raj 992, decided on June 10, 2022] 

  

Appearances 

For Petitioner(s): Mr. A.K. Gupta and Mr. Aniket Sharma, Mr. Anil Upman 

For Respondent(s): Mr. Ghanshyam Singh, Mr. Mangal Singh Saini, Mr. R.P. Vijay Mr. Digvijay Singh 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of N. Bandula Karunarathna and R. Gurusinghe, JJ. allowed an appeal which was filed assailing the judgment delivered by the Judge of High Court of Homagama by which accused-appellant was convicted and sentenced to 7 years’ rigorous imprisonment for having committed culpable homicide not amounting to murder of an infant.

The accused-appellant had pleaded guilty of committing offence of murder of an infant who was a new born, an offence punishable under Section 296 of the Penal Code but the High Court Judge decided to commence the trial considering that she pleaded not guilty and opted for a non-jury trial. On behalf of the accused-appellant, her willingness to plead guilty to culpable homicide not amounting to murder under Exception 5 to Section 294 of the Penal Code, was indicated. The State Counsel who prosecuted the trial in the High Court conceded the mitigatory circumstances which the appellant relied on, to bring the case against her within the ambit of the said exception. After plea bargaining, the accused pleaded guilty under exception 5 to Section 294 and in her plea, the trial Judge convicted the appellant for the lesser offence of culpable homicide not amounting to murder punishable under Section 297 of the Penal Code.

The appellant had filed this appeal claiming that this sentence is excessive. The counsel for the accused-appellant informed Court on the date this matter was taken up for the argument that he was not challenging the conviction as the accused-appellant had pleaded guilty. The counsel requested to consider the following mitigating factors to reduce the sentence.

The police statement of the appellant’s husband stated that the appellant did not look like she was bearing a child. It was an undisputed fact that the appellant delivered the baby alone, unattended and unassisted. Counsel for the appellant stated that the Trial Judge has not taken into account the unexpected and sudden turn of events which had taken the appellant by complete surprise when she had abruptly delivered a baby at the toilet of the house where she was serving as a domestic aid.

SSC appearing on behalf of the respondent informed the court that she is objecting to the application of the accused-appellant as the said act was a grave offence as the deceased in this case is a one-day-old infant who was found alive, abandoned near a shrub jungle. The accused-appellant had been identified as the biological mother of the deceased infant through DNA analysis and the relevant DNA report. The deceased infant had sustained several injuries identified as animal bites on the knees and face. It was revealed that the injuries found on the face and limbs are consistent with the ante -mortem injuries sustained after the live birth due to animal attack and ant bites.

Counsel for the appellant states that, following this unfortunate incident, her husband deserted her leaving the burden of both her children aged 11 and 14 on her shoulder. The appellant grieved that, if she was incarcerated in the execution of the custodial sentence imposed on her, her daughter would run the risk of her whole life further being disrupted and disorganised.

After hearing both the parties, the Court was of the view that the Trial Judge, in assessing a proper sentence for the appellant, has not duly appreciated the post conduct of the appellant by which she did not attempt to exonerate her. The appellant herself identified the dead body of the baby before Judicial Medical Officer, and confessed to the police. Then she readily surrendered to genus comparison thereby facilitating to truncate of what otherwise would have followed a daunting, prolonging and complex investigation process and demonstrating her remorse from the earliest. The appellant had pleaded guilty to the indictment at the very instance. During the trial, she did not raise any affirmative defence.

The Court held that since she has no previous convictions, the accused-appellant should be given some relief by this court and considering the circumstances of the case the Court decided to impose years of rigorous imprisonment instead of 7 years and suspend it for 10 years from today which would allow the appellant to re-integrate with the society.[Gamwarige Premawathie v. Attorney General, CA/HCC/ 225/2020, decided on 06-05-2022]


Kasun Liyanage AAL for the Accused-Appellant

Maheshika de Silva SSC for the Complainant-Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Court also remarked that,

“The mother died, and the father was thrown to the gallows by his own act.”

In the present matter, appellant was convicted under Section 302 of the Penal Code, 1860 and sentenced to life imprisonment and a fine of Rs 1,000 by the lower Court. On being aggrieved with the same, present appeal was filed.

Background

Pravin Khimji Chavan had visited Police Station with blood-stained clothes on his person and informed PW2 that he suspected the character of his wife and on that count due to quarrel he killed his wife by assaulting her with a knife.

The informant led the police to his house and upon entering the house they saw the dead body of his wife in a pool of blood with injuries all over the body.

It was submitted that the accused has seen a stranger leaving his house hurriedly on 23-4-2011 and on inquiring about the same, his wife lost temper and started abusing him. Later she started creating ruckus and brought a knife while directing it towards his husband. Handing over the knife to husband, she started challenging him to show as to whether he had the courage to assault her and that was the juncture when the husband lost his mental balance resulting into mounting assault with the knife.

After the above episode, he went to the police station and informed them of the said incident.

Analysis, Law and Decision

High Court noted that the present matter was a case of custodial death.

Open and Shut Case

The Bench found that at the time of the incident, the accused, as well as the deceased, had consumed alcohol. It was true that the Police had not investigated the statement of accused, as if to say that it was an open and shut case.

In the accused’s view, he maintained his cool for quite sometime, however, he lost it when she brought the knife from the kitchen and provoked him to hurt her if he could.

The Court stated that “Probably the chauvinism in him had risen.”

Further, the deceased wife expressed disgust and abhorrence at his very manliness and had forgotten for a moment that he was the father of their two daughters.

The Bench stated that it is rightly said that,

“If you are patient in one moment of anger, you will escape hundred days of sorrow.”

High Court remarked that, 

“The statement of the accused recorded by the police would show that he was left with a feeling of mortification. According to him, he was left with a wounded pride, which resulted in the brutal death of his wife.”

Elaborating further, the Court expressed that in a very alternative case wherein murder of the wife at the hands of the husband was the subject, it was in a moment of the grave and sudden provocation by the wife resulting in husband violently attacking the wife.

“There is physical violence, there is sexual violence, however, this sort of physical violence is less seen amongst women even in a moment of anger and in all probabilities, it is the mother in a woman which supersedes her element of physical violence.”

In view of the facts and circumstances of the case, High Court expressed that the Indian Penal Code would define the above act not as murder but as culpable homicide not amounting to murder, as the offence was committed in a heat of passion, but the accused had acted in a cruel and unusual manner.

Therefore, appeal was partly allowed and the conviction of the appellant for the offence punishable under Section 302 IPC was quashed and set aside and the appellant was convicted for the offence punishable under Section 304(I) of the IPC with imprisonment for 10 years. [Pravin Khimji Chauhan v. State of Maharashtra, 2022 SCC OnLine Bom 309, decided on 15-2-2022]


Advocates before the Court:

Ms. Farhana Shah, Advocate for the Appellant.

Mr. Arfan Sait, APP for the Respondent – State.

Case BriefsSupreme Court

Supreme Court: In a case relating to murder versus culpable homicide legal controversy, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., held that the Uttaranchal High Court had erred in observing that the case would fall under Fourth exception to Section 300 IPC and had failed to properly appreciate the multiple injuries sustained by the deceased. The Bench expressed,

“…exception Fourth to Section 300 IPC ought not to have been applied by the High Court at all considering the fact that the main second incident had taken place subsequently at 12:00 in the night, much after the first incident of altercation was over in the mehendi ceremony. The impugned judgment and order passed by the High Court is unsustainable both, on facts as well as on law.”

The instant appeal was filed by the State to assail the order of the Uttranchal High Court by which the High Court had held that culpable homicide in the instant case was not murder and consequently converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, some altercations took place between the deceased Virendra Singh and the accused Sachendra Singh Rawat but due to intervention of the villagers, the matter did not proceed further. Thereafter, at about 12:00 in the night, the accused attacked the deceased by giving him blows by a “Phakadiyat”–a rough piece of wood.  The deceased sustained multiple injuries on the head leading to skull fracture which ultimately caused death of the deceased after a few days.

The trial Court held that the culpable homicide was murder and thereby convicted the accused for the offence punishable under Section 302 IPC and imposed the sentence of life imprisonment. However, in appeal the High Court opined that since it was not a cold blooded murder; rather a sudden fight which ensued in the heat of passion between the two; as a result of a sudden quarrel in the marriage ceremony and that the weapon used was “Phakadiyat” which was a rough piece of wood, therefore it could not be said that there was any intention on the part of the accused to kill the deceased. Accordingly, opining that the case would fall under the Fourth exception to Section 300 IPC making it a case of culpable homicide instead of murder, the High Court converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, the incident took place in two places. The first incident of altercation between the accused and the deceased was at the place of mehendi ceremony, thereafter at about 12:00 in the night, which could be said to be the actual incident which happened when the accused attacked the deceased by “Phakadiyat” and gave several blows to the deceased. The Bench opined,

“The second incident cannot be said to be a result of sudden fight in the heat of passion upon a sudden quarrel. The accused chased the deceased at about 12:00 in the mid night and even after the deceased reached his house, he was beaten by the accused in front of his house which is witnessed by his wife, PW1.”

Therefore, the Bench held that the High Court had erred in observing that the incident had taken place due to a sudden fight in the heat of passion upon a sudden quarrel in the mehendi ceremony. The main cause of death was injuries sustained by the deceased on his head since the accused used the “Phakadiyat” with such a force that it resulted in skull fracture at the frontal wound on the left side; stitched wounds with 34 stitches with left side of the skull. The Bench remarked,

“…having caused the grievous injuries with such a force, how can the accused get the benefit of fourth exception to Section 300 IPC. The case would certainly fall under Clauses Thirdly and/or Fourthly to Section 300 IPC.”

Applying the law as laid down in Virsa Singh v. State of Punjab, AIR 1958 SC 465, that 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, the Bench held that the High Court had committed a grave error in observing that culpable homicide did not amount to murder, by applying exception Fourth to Section 300 IPC.

In the light of the above, the Bench set aside the impugned order and restored the findings of the Trial Court. The accused was held guilty for the offence under Section 302 IPC and was sentenced to undergo life imprisonment.

[State of Uttarakhand v. Sachendra Singh Rawat, 2022 SCC OnLine SC 146, decided on 04-02-2022]


*Judgment by: Justice M.R. Shah


Appearance by:

For the State: Virendra Rawat, Advocate

For the Respondent: Neha Sharma, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

On being convicted for the offence punishable under Section 302 of the Penal Code, 1860 the appellant was sentenced and imprisoned for life to pay a fine of Rs 5,000. Aggrieved with the same, the present appeal was filed.

Facts leading to the case

In 2009, Narayan Salunkhe lodged a report alleging that his daughter (deceased) was married to the appellant and due to discordant note, she started residing with her parents. On one occasion she went to visit her sister to another village. On the bus stop the husband of the deceased abused and assaulted her and it was noticed that the deceased had sustained incised wound on her neck due to which she succumbed injuries.

In view of the above, crime was registered for the offence punishable under Section 302 of Penal Code, 1860.

Analysis and Discussion

In the present matter, husband and wife were married for almost more than 15 years and the appellant was the father of three grown-up children.

Almost 4 years prior to the said incident, the couple had parted ways and started living independently. On an unfateful day, upon seeing the accused by chance, the deceased had not just obstructed his way by holding his neck, by pulling his shirt but had started hurling abuses and had levelled scathing remarks by which self-esteem of the accused was not only lowered in his own eyes but in public.

High Court expressed that,

The loud allegations made by the deceased were heard by one and all. It was quite natural for the man to feel ashamed upon being referred as impotent.

Stating that the act was not pre-mediated, Bench added that it was true that the incident of the assault was the outcome of a grave and sudden provocation and the accused was deprived of his self-control and hence, he could not have any restraint upon himself while mounting assault.

Since the accused was on his way to work, he was carrying a sickle in his bag. The offence committed by the accused fell under Exception 4 to Section 300 which reads thus:

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

High Court held that the accused was in custody since 2009 and had almost undergone 12 years imprisonment.

In view of the above discussion, the appellant deserved to be convicted for the offence punishable under Section 304(II) of IPC which would serve the ends of justice.[Nandu Dada Survase v. State of Maharashtra, 2022 SCC OnLine Bom 275, decided on 3-2-2022]


Advocates before the Court:

Ms Shraddha Sawant, Appointed Advocate for the Appellant.

Ms Veera Shinde, APP for the Respondent – State

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

Factual background

One Vijay Singh, along with deceased Balveer Singh were forcibly taken in a vehicle. When the vehicle reached unmetalled road, it was stopped. Thereafter, the accused banged deceased Balveer Singh flat on the ground. While the accused no.1 was holding Balveer Singh, the accused nos.4 and 5 started assaulting deceased Balveer Singh. There was no scope for Balveer Singh to resist. Thus, he was taken out of the vehicle and was forced to lie down on the ground. Thereafter, the accused started assaulting him. Apart from the injuries on non-vital parts, there was a fracture of 6th to 10th ribs on the right side and the right lung was ruptured. Even the windpipe and food pipe were ruptured. There was an injury to liver. The cause of death as certified by the Board was excessive bleeding due to injuries on vital parts like right lung as well as liver and the resultant shock.

Analysis

The Court took note of the ruling in Virsa Singh v.  State of Punjab[1], wherein the Court had explained the facts that the prosecution must prove to bring a case under Section 300 “thirdly”.

“12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 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.

13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, “Thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.”

Hence, in the facts of the case, the Court held that it is impossible to say that the injuries on the chest which resulted into fracture of 5 ribs and rupture of right lung were accidental or un-intentional. From the medical evidence, it was clear that the injuries on the vital parts like right lung and liver which resulted into bleeding and shock were sufficient to cause the death in the ordinary cause of nature.

The Court noticed that the factum of bodily injuries, its nature and the intention to inflict the particular bodily injuries have been established in the case at hand.

[Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150, decided on 30.11.2021]


Counsels

For appellant: Advocate Manish K. Bishnoi

For accused: Advocate Gp. Capt. Karan Singh Bhati


*Judgment by: Abhay S. Oka

[1] 1958 SCR 1495

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph and S. Ravindra Bhat*, JJ has reiterated the factors to be considered while deciding the question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC.

The Court explained that the use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death.

“It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.”

The following two cases are noteworthy for understanding the difference between the two terms:

State of Andhra Pradesh v Rayavarapu Punnayya, 1976 (4) SCC 382

In the said case, the Court noticed that the confusion between “murder” and “culpable homicide not amounting to murder” 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. Hence, 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.

It explained,

“In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice- versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.”

Read more…

Pulicherla Nagaraju v State of Andhra Pradesh, (2006) 11 SCC 444

The Court laid down the considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder and observed that 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 of a fruit, straying of cattle, quarrel of children, utterance of a 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 of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death.”

Hence, it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 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 generally from a combination of a few or several of the following, among other, circumstances;

  1. nature of the weapon used;
  2. whether the weapon was carried by the accused or was picked up from the spot;
  3. whether the blow is aimed at a vital part of the body;
  4. the amount of force employed in causing injury;
  5. whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
  6. whether the incident occurs by chance or whether there was any premeditation;
  7. whether there was any prior enmity or whether the deceased was a stranger;
  8. whether there was any grave and sudden provocation, and if so, the cause for such provocation;
  9. whether it was in the heat of passion;
  10. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
  11. 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.

Read more…

[Mohd. Rafiq v. State of Madhya Pradesh, 2021 SCC OnLine SC 731, decided on 15.09.2021]


*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

For Appellant: Advocate Ritu Gangele

For State: Advocate Gopal Jha

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing an issue with respect to culpable homicide expressed that:

“…crucial to determine whether the accused had intention or knowledge that the injuries inflicted on the victim would cause the death and as a result thereof the accused could be guilty of committing culpable homicide not amounting to murder.”

The instant revision petition was filed under Section 397/401 of Criminal Procedure Code directed against the order passed by the Additional Session Judge, framing charges against the petitioner for offences under Section 308, 385 and 34 of the Penal Code, 1860.

A piece of information was received that a man had been stabbed in front of Okhla Sabzi Mandi.

Further, it was added that the petitioners came to the complainant, Anwar/petitioner 4 was armed with a Danda Imran/petitioner 3 and Sharukh/petitioner 2 were armed with iron rods and Salman was armed with a knife. They demanded money from the complainant.

Further, it was stated that all four petitioners started hitting the complainant, later petitioners’ brother, Nazim rescued him.

The accused left after threatening the complainant of dire consequences.

From the investigation, sufficient evidence for filing charge-sheet against the petitioners under Sections 308, 384 and 24 of Penal Code 1860 was found.

Additional Sessions Judge found that prima facie a case under Section 308 IPC was made out against the accused. The said order has been challenged in the present revision petition.

What is Section 308 of Penal Code, 1860?

Attempt to commit culpable homicide:

 Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

In the decision of Rajiv Sharma v. State, 2015 SCC OnLine Del 12138, it was held that:

“4. To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder…”

Case of Scuffle

 It was noted in the view of facts and circumstances of the present case that it was a simple case of scuffle/quarrel between the parties where injuries were inflicted voluntarily and the High Court opined that the assailants could be proceeded for causing hurt under Section 323/324 IPC.

Complainant has submitted that the petitioner used to demand money for conducting business from that place and four of them attacked the victim.

Culpable Homicide

To secure conviction under Section 308 IPC the prosecution must prove that the accused had requisite intention or knowledge to cause culpable homicide.

With regard to determining the intention of whether the accused had intention or knowledge that injuries inflicted by him on the victim would cause death can be determined only at the stage of trial and not at the time of discharge.

Elaborating on the aspect of discharge in a case under Section 308 IPC, Bench referred to the decision of Supreme Court in Sunil Kumar v. N.C.T. of Delhi, (1998) 8 SCC 557.

High Court stated that APP, Meenakshi Chauhan was right in her submissions that the injury alone sustained by the accused at the time of framing charge cannot be the only criterion to discharge a person from an offence under Section 308 IPC. The attempt of that nature may or may not actually result in injury.

What is relevant for framing charges under Section 308 IPC is that an act done by the accused with intention or knowledge that under such circumstance’s death could have been caused or not.

Fact that the injury suffered by the victim is simple might not be a very relevant circumstance at this juncture in view of the circumstances of the Supreme Court decision cited above.

Hence, High Court upheld the decision of the Additional Sessions Judge. [Salman v. State, Crl.,  2021 SCC OnLine Del 1247, decided on 12-03-2021]


Advocates before the Court:

For the Petitioners: Ajayinder Sangwan, Advocate

For the Respondents: Meenakshi Chauhan, APP for the State

Sumer Kumar Sethi, Advocate for respondent 2

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a chilling case where a 21-year-old man was sentenced to death under Sections 302 and to life imprisonment under 376A of IPC for raping and killing his 2.5 years-old niece, the 3-judge bench of Justice UU Lalit*, Indu Malhotra and Krishna Murari, JJ has commuted the punishment to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The Court also affirmed the conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act.


Sentencing under Section 302 IPC


The Court found the Appellant guilty of having committed the offence of culpable homicide amounting to murder under Section 300 IPC Fourthly. In such cases, according to the Court, it is very rare that the death sentence is awarded.

Considering the age of the victim i.e 2.5 years, the Court said that the accused must have known the consequence that his sexual assault on the child would cause death or such bodily injury as was likely to cause her death.

“The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.”

However, it could not be held that the appellant consciously caused any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC.


Sentencing under Section 376A IPC


The case at hand was a peculiar one as the offence was committed just a week after the amended Section 376A was brought into force in the year 2013. Hence, the question before the Court was whether awarding life imprisonment in the present case would mean “the remainder of that person’s natural life or with death” or not.

Two important conclusions were made by the Court:

  • The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution.
  • In view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty or life imprisonment for the remainder of his life for said offence, however, considering the nature and enormity of the offence, the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.

To understand what led to this conclusion, let’s first take a look at the legislative developments that took place around the time when the crime was committed:

  • On 03.02.2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India which substituted Sections 375, 376 and 376A of IPC;
  • The Criminal Law (Amendment) Act, 2013 received the assent of the President and was published on 02.04.2013 but was given retrospective effect from 03.02.2013.
  • The offence was committed on 11.02.2013 when the provisions of the Ordinance were in force

Here’s what the coming into force of the Ordinance and subsequently the Amendment Act meant:

  • Before 03.02.2013, the offence under Section 375 could be committed against a woman. The Ordinance sought to make the provision gender neutral and this gender-neutral provision remained in force from 03.02.2013 till 02.04.2020. However, the earlier position was restored through the Amendment Act.
  • Before 03.02.2013, the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.
  • As a result of the Ordinance, the sentences for offences under Sections 376(1) and (2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub- section (1) or sub-section (2) of Section 376, a person “inflicts an injury which causes the death” of the victim, the accused could be punished with rigorous imprisonment for a term “which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life or with death”. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.
  • Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that person’s natural life.
  • Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

In the present case, when the crime was committed, the victim was about two and half years of age and the Ordinance which was holding the field. However, the sentence prescribed by Section 376(2) as amended by the Amendment Act, provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life”. In such a case, the Court was posed with the question that whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.”

The Court explained,

“An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated.”

It was further held that since Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman, hence, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.

It was, hence, declared that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.

[Shatrughna Baban Meshram v. State of Maharashtra, 2020 SCC OnLine SC 901, decided on 02.11.2020]


*Justice UU Lalit has penned this judgment

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault.  If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred.

BACKGROUND OF THE CASE


The Court was hearing the matter where the appellants, convicted under Section 302/34 and sentenced to life imprisonment, had sought acquittal in a case where 2 men died as a result of assault by the appellants. Out of 5, 2 accused were acquitted by the Sessions Court giving them benefit of doubt. While the eye witnesses had deposed of assault upon the two deceased by appellants nos.2 and 3 only. There was no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. It was, hence, contended that there is no material to infer common intention with regard to appellant no.1.

COMMON INTENTION


The Court explained that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established.

“There can hardly be any direct evidence of common intention.  It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.”

The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case.

“The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.”

CONCLUSION ON FACTS


The Court took note of the facts that

  • appellant no.1 lay in wait along with the other two appellants who were armed.
  • appellant no.1 stopped the two deceased who were returning from the market. The assault commenced after the deceased had halted.
  • While one deceased died on the spot as a result of the brutal assault, the other was injured in the first assault upon him by appellant no.3, after which he tried to flee.
  • Appellant no 1 along with the other accused chased him, caught hold of him after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.

The Court, hence, said,

“To our mind no further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question.”

It, hence, refused to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.

[Subed Ali v. State of Assam, 2020 SCC OnLine SC 794, decided on 30.09.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted and that the same depends upon the facts and circumstances of each case.

“The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not.”

In the case before the Court, it was argued that s it is a case of a single blow, Section 302 IPC shall not be attracted. Rejecting the contention, the Court said that it cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.

It was further argued that the motive alleged for the incident is prior to four months of the incident in question and, therefore, as such, the prosecution has failed to establish and prove the motive for the accused to kill the deceased.

The Court rejected this contention as well and said that

“motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence.”

Considering that in the case at hand there were three eye­witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye­witnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution.

Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, the Court held that it is to be presumed that causing such bodily injury was likely to cause the death.  Therefore, the case would fall under Section 304 Part I of the IPC and not under Section 304 Part II of the IPC.

[Stalin v. State, 2020 SCC OnLine SC 723, decided on 09.09.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ., directed that the persons who are aggrieved with regard to the care and treatment amidst the COVID-19 Pandemic can approach the Court directly.

Court has taken suo moto cognizance to see that all the authorities from all the districts which are under Court’s jurisdiction become active and they remain active till the virus is active.

Bench further observed that, the Court had earlier in of the orders directed the authorities to supply information with regard to the steps taken by them to contain the spread of virus in the village area.

“…on one hand the number of infected persons in city area is coming down on the other hand the number of infected persons from rural area is going up and the trend is still in upward direction.”

Though the inter-district travel has been prevented till 31-08-2020, yet, persons from cities like Pune, Mumbai, Mumbai Metropolitan Region (MMR), etc. returned to their native places also some have bought properties in smaller cities and shifted themselves due to the virus spread.

In the line with the observations, another observation by the Court was when Justice T.V. Nalawade went for Court inspection to Jalna. He went with necessary pass and at the entry point of Jalna, he noticed that there was no strict checking and police force posted there were not asking to show pass to anybody. Casual inquiry was being made with the travellers and they were allowing the vehicles from Aurangabad side to Jalna side. This approach must have helped in spreading of the virus in the parts of this region.

Strict vigil needs to be kept and unless that is done, the authorities will not be in a position to control the things.

Further with regard to public servants, Court stated that,

“…in the situation which is created by the virus the public servants need to be tested and the servants who are useless need to be removed from the service by fling complaints against them in police station under the special Enactments like Epidemic Disease Act, 1897, Disaster Management Act, 2005 etc.”

Further, the Court expects that every order made by this Court is communicated to the authorities from all the districts which are under the jurisdiction of this Court. These orders need to be communicated to the private institutions like private hospitals as action can be taken against them under the provisions of Special Enactments.

Another complaint that the Court noted was of an infected person who had no supply of oxygen and was complaining about breathlessness, but nobody was there to supply oxygen to him. Eventually, he died that night.

Culpable Homicide not amounting to Murder

Bench stated that, when such grievance as stated above are present, it becomes the duty of the authorities concerned to fix the responsibility and give the complaint to police as such conduct is not less offence of than culpable homicide not amounting to murder.

CCTV System

Court wants affidavit of all the authorities or concerned officers to show that there is an installation of a CCTV system in isolation centers. CCTV systems should be installed in private hospitals also where the treatment is being given to infected persons.

Court added that, in our society, there are many who cannot afford to pay charges of private hospitals. It is learned that many poor persons and the persons who have no influence are not able to get admissions in hospitals even when they are infected.

Hence, in view of the above circumstances, the Court allows all those persons who have a grievance with regard to the care and treatment of infected persons to approach the Court directly.

State to supply information in respect of reservation of beds in designated hospitals and use of those beds. Information about the availability of ventilators and the deaths due to the non-availability of ventilators also needs to be supplied.

Information on action taken against negligence shown in treatment to be given to the Court.[Registrar (Judicial) v. UOI, 2020 SCC OnLine Bom 836, decided on 31-07-2020]

Case BriefsSupreme Court

Supreme Court: In a case where 2 persons died after being shot during a celebratory firing in a wedding ceremony, a furious 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ said,

“Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self­ protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”

In the incident dating back to 2007, celebratory gunshots were fired by the accused due to which, out of the 5 injured persons, 2 succumbed to their injuries. Pleading not guilty, the accused argued that he had no intention to cause anyone’s death. He stated that the firing was accidental and was caused by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots.

Refusing the accept the submission, the Court noticed that the version of eye­witnesses completely belies such a defence story.

“Otherwise also, it does not appeal to common sense that a ball would strike the gun in appellant’s hand resulting in an undersigned firing. Unless the safety lock of the gun was moved forward, the gun wouldn’t go off automatically even if its butt was hit by a play­ball.”

The Court took note of the evidence on record which showed that the appellant aimed the gun towards the roof and then fired. It noticed that though it was an unfortunate case of mis­firing, the appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gun­shot injuries to the nearby persons even if a single shot was fired.

“Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

The appellant was, thus, held guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to ‘culpable homicide’ within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.

[Bhagwan Singh v. State of Uttarakhand, CRIMINAL APPEAL NO. 407 OF 2020, decided on 18.03.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.M. Gavhane and T.V. Nalawade, JJ., while partially allowing the appeal, held that,

“…with regard to offence under Section 498-A IPC, prosecuton has to prove that the accused in furtherance of their common intention caused cruelty within the meaning of cruelty given under explanation A and B of Section 498-A IPC.”

The present appeal was filed to challenge the judgment and order of Sessions Judge that had passed conviction and sentence for offence punishable under Section 498-A read with Section 34 of Penal Code, 1860, along with punishment under Section 302 read with 34 IPC.

Facts of the case were that the deceased was married to accused 1 about five months before the incident. While the deceased and accused 1 were cohabiting, the deceased sustained 86% burn injuries on 17-11-2007.

Later, dying declarations were recorded in which it was stated that since the marriage accused were harassing the deceased and asking her to bring Rs 10,000 from her parents. On account of the same, the deceased was assaulted and harassed.

On 16-11-2007, accused had beaten her by fist and kick blows and stick and on the morning of 17-11-2007, her father-in-law and mother-in-law caught hold her and her husband poured kerosene on her person and set her on fire by lighting the match stick and thus attempted to commit her murder.

Advocate for the appellants/accused 1 submitted that when both the dying declarations were recorded the deceased was not in a position to make a statement due to 86% burns suffered by her. Further, he stated that both the written dying declaration are not voluntary and trustworthy.

APP submitted that there was no material to show that dying declarations were the result of the product of imagination, tutoring or prompting.

Analysis & Decision of the Court

High Court stated that the death of the accused was not natural.

Looking to the defence of the accused and case of the prosecution it is to be seen whether the death of the deceased is homicidal, suicidal or accidental and if the death of deceased is homicidal whether the accused are responsible for causing burns to the deceased and to her death.

Nothing was found in favour of the accused in the cross-examination of medical officer. Court also noted that the contents of the dying declarations were not specifically put to the accused in the statement under Section 313 CrPC and as such no opportunity was given to the accused to explain the circumstances appearing against them in both the dying declarations.

Further Court found that kerosene residues were present on the burnt clothes of the deceased. If the deceased would have caught fire accidentally no kerosene would have been found on the clothes on her person. Evidence of the defence witness is not believable and sufficient to state that the deceased sustained burns accidentally.

Thus, accused 1 was responsible for causing burn injuries to the deceased and ultimately to cause her death.

Findings of the trial court that the prosecution has proved offence under Section 302 IPC against accused 2 & 3 father-in-law and mother-in-law of deceased is not correct and sustainable.

Hence in the above view, the appeal was partly allowed. [Dadarao v. State of Maharashtra, 2020 SCC OnLine Bom 346, decided on 03-03-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. disposed of a criminal appeal where he altered the conviction of the appellant from the one under Section 302 (punishment for murder) to that under Section 304 Part I (punishment for culpable homicide not amounting to murder) of the Penal Code.

The appellant was convicted for the murder of her sister-in-law. The appellant had developed a fancy for the deceased. The marriage of the deceased was fixed on the day previous to the incident. On the morning of the day of the incident, the appellant inflicted axe blow on the deceased in the field. She went to her house and after some time she was taken to the police station where she registered FIR. After that, she was taken to the hospital but she died on the way. The appellant was tried and convicted by the trial court for the offence of murder punishable under Section 302. Aggrieved thereby, the appellant filed the present appeal.

The High Court noted that the deceased having died immediately after lodging FIR, it was required to dwell on the legal character of the said FIR, as to whether the same was admissible in evidence as dying declaration. Relying on Dharam Pal v. State of U.P., (2008) 17 SCC 337, the Court observed: “The legal position is therefore well settled that the FIR lodged by the deceased would attain the character and legal status of dying declaration if the victim dies before his/her examination in the Court.” Considering the same, the Court upheld the finding that the appellant committed the act that resulted in the death of the deceased.

However, the Court considered medical opinion of the doctor who conducted the post-mortem on the deceased, who stated that the deceased would have been saved if she would have been administered treatment immediately after the incident. The relatives of the deceased committed mistake by taking her first to the police station, rather taking her to the hospital. Considering such mitigating circumstances, the High Court altered the conviction of the appellant mentioned above. Also, the sentence of life imprisonment awarded to him by the trial court was reduced to 10 years, as already undergone by the appellant.[Ram Kumar v. State of Chhattisgarh, 2019 SCC OnLine Chh 83, decided on 22-07-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed against the order of the trial court whereby it had rejected petitioner’s application filed under Section 227 CrPC seeking discharge in a criminal case.

The case against the petitioner was that he along with the co-accused tried to intervene in a road rage fight between the complainant and a third party. The complainant was admittedly drunk at the time and slapped the co-accused. The co-accused called for the petitioner to bring the iron rod to teach a lesson to the drunk complainant. Thereafter, the co-accused attacked the complainant and he sustained multiple injuries. The petitioner was charge-sheeted under Section 308 (attempt to commit culpable homicide) read with Section 34 (acts done by several person in furtherance of common intention) of the Penal Code.

D.N. Goburdhun, Advocate representing the petitioner contended that there was an absence of mens rea or common intention or conspiracy on part of the petitioner. Per contra, Meenakshi Dahiya, APP appearing for the State submitted that the petitioner had been rightly charged as aforesaid.

Relying on State of M.P. v. Saleem, (2005) 5 SCC 554, the High Court noted: “though common intention should be anterior in time to the commission of crime and involves a pre-arranged plan or a prior concert, however, intention is to be gathered from the act, conduct, relative circumstances, and the attendant situations that cropped up”.It was reiterated that common intention may develop at spur of the moment.

On facts of the case, it was held that the petitioner actively participated in the act by procuring the iron rod and handing it over to the co-accused. Therefore, it could not be said that there was no common intention among the accused. As such, it was held that there was no infirmity with the order of the trial court, and the petition was dismissed.[Manish Sharma v. State (NCT of Delhi), 2019 SCC OnLine Del 9031, decided on 03-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.C. Sharma, J. allowed a criminal appeal, filed against the order of conviction under Ss. 304, 323 and 149 of IPC, 1860 passed by Trial Court.

Prosecution narrated that, daughter of appellant got sick one day; he suspected that deceased and his wife had practiced ‘witchcraft’ on her. To take revenge of such alleged act of the deceased, the appellant along with others assaulted the deceased along with his family. Deceased lodged an FIR under relevant sections of IPC against the accused. After the alleged FIR was lodged, police performed the medical examination of the victim, recorded the statements of witnesses and also prepared a spot map. Prosecution submitted that, the victim during his treatment, ten days after assault died as he suffered grievous hurt which resulted in his death which is also stated in panchnama and postmortem report. Eventually accused was duly arrested.

All witnesses along with the Medical Officer testified against the appellant and had narrated the crime in brief. The medical examination report stated that injuries were caused by heavy, hard and blunt objects and, Cause of death of the injured was cardio respiratory failure as a result of multiple injuries over the body.

Learned counsel for the appellants, Siddharth Jain, contended that there was an anomaly in the statements of the witnesses on the point that which accused assaulted the deceased and other injured persons. He further contended that appellants were not guilty and were falsely implicated in the aforementioned case. He argued that the testimony of witnesses were not in conformity with each other as to which respondent inflicted injuries to the deceased.

The Court observed that the injuries could not have been caused on account of an accident and were not self-inflicted, and therefore, the death of the deceased was neither accidental nor suicidal, hence, it was homicidal in nature. Court stated that, appellant gave a blow of Tangiya (axe) on the non-vital part of the deceased, therefore, it would be apparent that he has assaulted the deceased, and therefore, it cannot be said that there was no intention on the part of the appellant to kill the deceased. Court held that the trial court has not committed any error in convicting the appellant for the offence punishable under Section 304 (II) IPC for causing culpable homicide. It was established based upon the evidence that he inflicted grievous injuries to the wife of deceased also, and therefore, his conviction under relevant sections does not warrant any interference by Court. The participation of the other co-accused persons has not been proved beyond a reasonable doubt; hence, offence under Sections 147 and 148 automatically goes.[Anokhilal v. State of M.P., 2019 SCC OnLine MP 842, decided on 14-05-2019]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: A Bench of Achintya Malla Bujor Barua and Mir Alfaz Ali, JJ., modified a conviction for murder to that of conviction for culpable homicide not amounting to murder in light of the convict’s inebriated condition at the time of the commission of offence and his subsequent conduct.

The appellant was convicted under Section 302 IPC for the murder of the deceased (his sister-in-law). He backed her with a dao from behind. It clearly came out from the record that at the time of the commission of offence, the appellant was in an intoxicated condition. Also, after the incident, he brought a vehicle and took the injured (now deceased) to hospital.

The High Court noted that after inflicting the injury, the appellant thought about providing treatment to the deceased. It was noted, “there are materials to show that the accused was in an inebriated condition and the incident took place at the spur of the moment and immediately after the incident took place, it was the accused, who himself went out to bring a vehicle and took the deceased to the hospital…” Relying on the Supreme Court decisions in Deepak v. State of U.P.,(2018) 8 SCC 228 and Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, the High Court found similarity in the present circumstances and converted the appellant’s conviction from that under Section 302 to one under Section 304 Part II IPC. Further, in view of the period of imprisonment already undergone by him, the appellant was directed to be released forthwith if not required in any other offence. [Nara Kanta Dutta v. State of Assam, 2019 SCC OnLine Gau 1671, dated 02-04-2019]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., allowed a criminal appeal and acquitted the appellants who were convicted under Section 304 Part-II IPC by the trial court.

The appellants were accused of killing one Abul Hussain. On the basis of FIR filed by Abul’s parents, a case was registered and they were charge-sheeted under Section 302 and 149 IPC. The trial court did not find any intention or motive on appellant’s part to commit murder. However, they were convicted for culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. Aggrieved thereby, the appellants filed the present appeal.

A.Y. Chaudhary, Advocate for the appellants contended that there was no chain of facts to establish the hypothesis of appellants’ guilt. Per contra, B.J. Dutta, Additional Public Prosecutor, appearing for the State supported the trial court’s judgment.

The High Court noted that the trial court basically relied on the fact that Abul accompanied Bapan (one of the accused) while other accused were along with him.  This according to the Court, may be one of the circumstances for the prosecution, but there was no chain of facts as regards the other incriminating circumstances. It was observed that, “from the totality of the evidence on record, it can be held that the evidence is totally insufficient to hold the present appellant to be guilty under any of the offence, while the deceased died due to drowning as per the report of the Medical Officer. Although there is genuine ground of suspicion on the part of the informant but there is a lack of legal evidence to sustain the conviction of the accused persons.” In such view of the matter, the Court held that the appellants deserved to be acquitted. Therefore, the appeal was allowed. [Akbar Hussain Laskar v. State of Assam, 2019 SCC OnLine Gau 1027, decided on 05-03-2019]