section 302

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

Bombay High Court: The Bench of A.S. Oka and A.S. Gadkari, JJ. modified the judgment of trial court and altered the appellant’s conviction under Section 302 (punishment for murder) to Section 326 IPC (voluntarily causing grievous hurt by dangerous weapons or means).

The deceased, Farukh Shaikh had two wives. He doubted that the appellant and his cousin Saddam (co-accused who was a juvenile) had affairs with his wives. The appellant and Saddam were accused of having injuries to Farukh by giving him blows with a wooden log and stick. Thereafter, Farukh was admitted to Civil Hospital. Dr Appasaheb Ingale, the expert Surgeon informed Farukh’s relatives that his condition was serious who were not willing to continue with his treatment in Civil Hospital. They shifted Faruk to a Neurosurgical Centre against medical advice where he developed a cardiac arrest and expired. The appellant was tried and convicted for murder under Section 302. Aggrieved thereby, the appellant filed the present appeal.

Dr Yug Mohit Chaudhary, counsel for the appellant submitted that the nature of injuries got aggravated by shifting Farukh against medical advice and the real cause of death was not “head injury” but “cardiac arrest”. Per contra, J.P. Yagnik, Additional Public Prosecutor supported the judgment of the trial court.

The question before the High Court was —“what offence the appellant had actually committed?”

The High Court relied heavily on the statement of Dr Ingale who stated that Farukh died due to “cardiac arrest”. According to the Court, “there are so many reasons to develop a cardiac arrest”. The Court found it difficult to hold that Farukh died due to assault caused by the appellant and Saddam. The Court observed, “In view of the evidence of Dr Appasaheb V. Ingale, it is clear that it is due to the causation i.e. shifting of Farukh Shaikh from Civil Hospital, Sangli to another hospital of Dr Sanjeev M. Kukarni, the patient ultimately expired due to ‘cardiac arrest’. As noted earlier, there is no direct co-relation of the head injury with the said cardiac arrest in view of admission given by Dr Sanjeev M. Kukarni.” Thus, the Court held, that the appellant was liable for causing grievous hurt to Farukh and his act would fall within the ambit of Section 326 and he could not be held guilty under Section 302. The impugned judgment was accordingly modified. [Akram Khalil Ahmed Inamdar v. State of Maharashtra, 2019 SCC OnLine Bom 333, decided on 27-02-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment passed by the trial court whereby the appellant was convicted under Section 302 IPC.

The allegation against the convict was that he had murdered his wife. On a fateful day, the appellant himself came to the Police Station and informed about the death of the deceased. The investigation was completed and charge-sheet was filed. The Sessions Judge framed the charge against the appellant under Section 302 to which he pleaded not guilty. The appellant was tried and convicted under the said section. The appellant challenged the decision of Sessions Judge while submitting that the deceased had committed suicide.

The High Court perused the material available on record including the post-mortem report and evidence of the medical expert. It was noted that motive behind the commission of the crime could be gathered from the FIR; the deceased was not doing the work as told by the appellant, they had a regular quarrel, and the appellant was angry with her. The Court was of the view that the nature of injuries and the deposition of the medical expert proved beyond reasonable doubt that the death was homicidal. Death of the deceased occurred in suspicious circumstances. The appellant gave an explanation that the deceased committed suicide, which was wholly falsified by the medical evidence. Relying on the Supreme Court decision in Sharad Birdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116: 1984 SCC (Cri) 487, the High Court held that a non-explanation or a false explanation given by the accused can be used to fortify the finding of guilt already recorded; the false explanation by the appellant was an additional circumstance in fortifying his guilt.  Thus, the appeal was dismissed. [Nazim Rashid Tamboli v. State of Maharashtra,2018 SCC OnLine Bom 1423, dated 28-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ. dismissed a criminal appeal filed under Section 374 CrPC against the order passed by the trial court whereby the appellant was convicted for an offence punishable under Section 302.

The appellant was convicted for the murder of a lady by stabbing her with a knife and was sentenced to undergo life imprisonment by the trial court. The appellant challenged the said order in the appeal to the High Court submitting that he was having an illicit relationship with the deceased. On the day of the incident, the husband of the appellant caught both of them red-handed and had a fight with the appellant which resulted in the death of the deceased. In the alternative, learned counsel for the appellant suggested that even if the accused was held guilty, his case would fall under Section 304 Part II and not under Section 302 IPC.

The High Court perused the record and held that the impugned order required no interference. The Court observed that to bring a case under Exception 4 to Section 302, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. However in the present case, based on examination of the weapon used, the severity of blows, etc., the Court held that the benefit of the said exception was not available to the appellant. Further, the incident took place in the room of the deceased, this showed that the appellant carried the knife, which was not a normal kitchen knife, to the room of the deceased to fatally injure her. In the circumstances, the Court held that no interference was necessary with the order of the trial court. The appeal was, therefore, dismissed.  [Ajay v. State,2018 SCC OnLine Del 9633, dated 05-07-2018]

Case BriefsSupreme Court

Supreme Court: In the review petition filed in the Soumya Rape and Murder case where the Court had set aside the death sentence awarded to the accused by the Kerala High Court, the 3-Judge Bench of Ranjan Gogoi, P.C. Pant and U.U. Lalit, JJ issued notice to Justice Markandey Katju, former Supreme Court Judge and requested him to appear in Court in person and participate in the proceedings on 11.11.2016 as to whether the judgment and order dated 15.09.2016 suffers from any fundamental flaw so as to require exercise of the review jurisdiction.

Justice Katju had, in a blog published on Facebook, expressed his views that the Supreme Court has grievously erred in law by not holding Govindaswamy guilty of murder. He had said that the Court had overlooked is that Section 300 IPC, which defines murder, has 4 parts, and only the first part requires intention to kill. If any of the other 3 parts are established, it will be murder even if there was no intention to kill. It is regrettable that the Court has not read Section 300 carefully. The judgment needs to be reviewed in an open court hearing. Taking note of the said post, the Bench said that such a view coming from a retired Judge of this Court needs to be treated with greatest of respect and consideration.

Justice Katju by a post on his Facebook page said that he would be delighted to appear and discuss the matter in open court, but would only like the Judges to consider whether, being a former Supreme Court Judge he is debarred from appearing by Article 124(7) of the Constitution. If the Judges hold that it does not debar him, he would be happy to appear and place his views.

On 15.09.2016, the Court had held that no case of murder was made out against Govindaswamy. It was held that regarding keeping of the deceased in a supine position for commission of sexual assault, the Court held that to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position was for the purposes of the sexual assault. Further, the fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. [Sumathi v. Govindaswamy, 2016 SCC OnLine SC 1145, decided on 17.10.2016]

Case BriefsSupreme Court

Supreme Court: In the case where 5 appellants, convicted under Section 302 read with Section 149 IPC, had approached the Court with the plea of setting aside the order of conviction, the Court, rejected the plea and held that once it is found that the witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased.

In the present case, the informant’s uncle was killed while saving him from the appellants who had intended to kill him over a property dispute. The appellants had argued that no independent witnesses were examined in the present case and all the witnesses who were examined were related to the deceased. The Court rejected the said contention and said that in the cross-examination or otherwise it has not even been brought out by the defence that there were other persons at the scene of occurrence who were independent persons. It was further noticed that there were six eye witnesses and three of them were injured eye witnesses, which is a weighty factor to show the actual presence of these witnesses at the scene of occurrence.

The Bench of Dr. A.K. Sikri and N. V. Ramana, JJ. said that the credibility and trustworthiness of the eye witnesses could not be shaken by the accused persons. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed and the same has been done by the Trial Court and the Patna High Court in the present case. [Kamta Yadav v. State of Bihar, 2016 SCC OnLine SC 1112, decided on 06.10.2016]