IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1164 of 2011 With CRIMINAL APPEAL No. 28 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- HONOURABLE MR.JUSTICE N.V. ANJARIA Sd/-
========================================================= ========================================================= JAGDISHBHAI JASABHAI MEHTA Versus STATE OF GUJARAT AND ANOTHER ========================================================= Appearance :
Criminal Appeal No.28 of 2010 MR
NIRANJAN DAFTARI for MR ASHISH DAGLI for the Appellant MR PRAKASH JANI PUBLIC PROSECUTOR for Opponent No.1
Criminal Appeal No.1164 of 2011
MR YATIN SONI for the Appellant MR PRAKASH JANI PUBLIC PROSECUTION for Opponent No.1 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 31/01/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) Present Criminal Appeal No.28 of 2010 by the appellant Nikit Jayeshbhai Thakkar is preferred to challenge judgment and order dated 21.12.2009 passed by the learned Presiding Officer & Additional Sessions Judge, IInd Fast Track Court, Rajkot in Sessions Case No.119 of 2008 whereby the appellant is convicted for the offence under section 302 and 326 of Indian Penal Code, 1860. The appellant is sentenced to life imprisonment and fine of Rs.5,000/ and in default to pay fine, to undergo further simple imprisonment of 3 months for the offence under section 302, whereas 3 years rigorous imprisonment and fine of Rs.1,000/ and in default, simple imprisonment for further 1 month. Both the sentences are ordered to run concurrent.
1.1 Criminal Appeal No.1164 of 2011 is a cognate appeal, which is filed by father of deceased victim invoking provisions of section 372 of Code of Criminal Procedure, 1973, with a prayer to confirm the sentence imposed and further to award compensation.
2. The incident resulting into unfortunate death of one Kuldip Jagdishbhai Mehta took place on night of 12th July 2008 in the corridor of the hostel attached to Tourism Management Institute, and arose out of what appeared to be intense scuffle between the appellant and the deceased, who both were students in their youth studying in first year of Hotel Management course, and who had got admission in the hostel of the college barely two weeks ago.
2.1 The prosecution case revealing from the complaint (Exh. 72) filed by Mubarakali Hanifbhai Haji, Principal of Vivekanand Institute of Hotel & Tourism Management, near village Kuchiyad, Taluka, District Rajkot, was that amongst about 65 students in the college hostel, one Nikit Jayeshbhai Thakkar and one Kuldip Jagdishbhai Mehta had been staying in Room No.003 and Room No.007 respectively. It was stated that on the previous night when students had gone to their room after meals, whereas few had gone to the hall to see movie on television, around 9.30 p.m., noise of students was heard from the corridor and when the complainant rushed there, he saw Kuldip Jagdishbhai Mehta in an injured state with injuries on the shoulder and on the backside and bleeding. Kuldip was made to lay on the bench by other students whereas some had caught hold of Nikit Thakkar. When complainant asked Kuldip about incident, he told that Nikit had abused him and then caused injuries with knife. On being asked as to why Nikit did that, Kuldip stated that earlier they had altercation for which Nikit had applied knife and would not tell anything further.
2.2 It was stated in complaint that injured was taken to Wokhard Hospital in the motor car of the college where he was admitted for operation and was in unconscious state. The victim died while under treatment in the hospital. The complaint was lodged by the principal when the victim was in hospital. Accordingly, the case of the prosecution was that student Nikit Jayesh Thakkar and student Kuldip Jagdish Mehta would have scuffle in between them on previous occasion for some reason, in retaliation to which appellant Nikit by quarreling with Kuldip applied knife of the kind used in kitchen on his shoulder and on the back, causing serious injuries.
2.3 Pursuant to FIR registered at No.409/2008 at Rajkot Taluka Police Station, upon investigation by the police, charge sheet came to be filed and Criminal Case No.7394 of 2008 was registered before the learned Chief Judicial Magistrate (First Class), Rajkot, which case was later committed to Court of Sessions as the offences were exclusively triable by Sessions Court.
3. We heard learned advocate Mr.N.S. Daftari appearing for the appellant with learned advocate Mr.Ashish Dagli, and learned Public Prosecutor & Sr. Advocate Mr. Prakash Jani for respondent State. We also permitted learned advocate Mr. Yatin Soni for the appellant in Criminal Appeal No.1164 of 2011 to make submissions in connection with prayers in his appeal.
4. Learned advocate for the appellant submitted that the appellant and victim were students staying in hostel, that there was no enmity between them as such and the incident was outcome of scuffle between the two on a minor issue. He submitted that for the abuses being hurled by the victim on the appellant, the appellant was upset and was going to complain to the rector of the hostel against the conduct of the victim and as the victim tried to prevent the appellant while the appellant was going towards rector’s office, by standing in his way in the lobby, the scuffle took place. It was submitted that the assault committed was not preplanned and the knife which was in the hand of appellant was initially with the victim when he had gone to the room of the appellant and that such aspect was revealed from the statement of the appellant recorded under section 313 of Code of Criminal Procedure, 1973.
4.1 It was submitted that evidence showed that initially the deceased Kuldip was in the room of appellant. It was appellant who came first out of the room and started walking swiftly towards the room of the rector and thereafter the deceased came out of the room, ran after the appellant and stood in his way. It was submitted with reference to the manner of occurrence that under the circumstances scuffle must have taken place between the two when they were together inside the room and the appellant was going to complain about the behaviour of the victim and when the victim pursued, and tried to take knife from the appellant, the injuries came to be inflicted on him. It was also submitted that the use of knife by appellant resulting into injuries on the body of the victim was an act of self defense on part of the appellant.
4.2 He submitted with reference to the evidence of the Doctor at Exh.67 and injury certificate at Exh.68 that nature of injuries on the victim were not such as would be likely to cause death and were not such as would be sufficient to cause death in ordinary course. It was submitted that the appellant had acted without any intention to cause death or to cause such bodily injury as was likely to cause death.
4.3 Learned advocate referred to evidence of PW61 Dharmaraj as well as evidence of PW51 and PW69 and submitted that their evidence corroborated the facts regarding the incident. It was submitted that even in case of those prosecution witnesses who were permitted to be cross examined by the prosecution, they were not hostile witnesses stricto sensu, and in any case, the part of evidence which found corroboration with the other evidence can be taken into account as per the settled law.
4.4 Learned advocate submitted that on total reading of evidence, the offence of murder under section 302 was not made out. It was submitted without prejudice to other contentions that at the best the offence committed was one punishable under section 304, Part II of IPC, and warranted reduction of sentence. Learned advocate submitted that without prejudice to his contention on merits, the appellant was ready to pay compensation of Rs. 3 lacs to the kith and kin of the victim.
4.5 It was also submitted that the appellant belongs to educated family and he is the only son of his parents. He would have never intended to commit murder. It was urged that even if the court holds him guilty of offence, he deserves leniency in award of sentence so that he can build up his future.
4.6 Learned advocate for appellant, in support of his contentions, relied on the following judgments.
(i) Gurupalsing Chandansing vs. The State of Gujarat (Criminal Appeal No.370 of 1982)
(ii) Dominic Varkey vs. State of Kerala (1971 LawSuit (SC) 244)
(iii) B. V. Survade vs. State of Gujarat (1971 (0) GLHELHC 217685
(iv) Yogendra Morarji vs. State of Gujarat (1971 LawSuit (SC) 501)
(v) Munshi Ram vs. Delhi Administration (1967 LawSuit (SC) 330)
(vi) Gagan Kanojia vs. State of Punjab (2006 iLaw(SC) 292)
(vii) Hari Kishan; State of Haryana vs. Sukhbir Singh (1988 LawSuit (SC) 501)
(viii) Ved Prakash vs. State of Haryana (1980 LawSuit (SC) 462)
(ix) MD Monir Alam vs. State of Bihar (2009 LawSuit (SC) 2016)
(x) Kuldeep Singh vs. State of Haryana (1996(0) GLHELSC 15016)
4.7 On the other hand, learned Public Prosecutor vehemently supported the conviction recorded under section 302 of IPC, by relying upon post mortem report (Exh. 55), injury certificate (Exh.68) and evidence of Dr.Dalpat (Exh. 53), who undertook post mortem. He submitted that on conjoint consideration of the medical evidence and the nature of injuries described therein, the conclusion was inevitable that it was an offence under third clause of section 300 and punishable under section 302 of IPC.
4.8 According to submission of learned Public Prosecutor, the ferocity and force with which the assault was made by the appellant on the body of victim was sufficient to show his intention to kill. He submitted that on combined reading of the evidence, more particularly the nature of incident, the aggression shown by the appellant, kind of weapon (which was a knife) used and the injuries inflicted, considered with evidence of PW5 (Exh.45), who according to him was an eye witness to the incident, the evidence of PW10 and PW14, irresistible conclusion was that it was cold blooded murder committed by the appellant with such motive and intention. He submitted that the injuries were such as would in ordinary course result into death and, therefore, no other evidence was required as the necessary ingredients of clause three of section 300 of the IPC were established. He placed heavy reliance on the decision in Virsa Singh vs. State of Punjab (AIR 1958 SC 468).
4.9 Learned advocate Mr. Yatin Soni adopted the submissions made by learned Public Prosecutor and pressed into service the prayers made in his appeal by raising various contentions. It is relevant to mention here that after the present judgment was kept CAV, the appellant of Criminal Appeal No.1164 of 2011 moved Misc. Criminal Application No.17051 of 2011, praying that the appellantapplicant would like to submit written arguments which he wanted to be taken on record. Since we had heard learned advocate Mr. Soni, permitting him to raise all contentions, even as his appeal was not maintainable, by order dated 14.12.2011, Criminal Misc. Application No.17051 of 2011 was dismissed but we have taken into consideration all the submissions canvassed by him.
5. The oral evidence recorded in course of the trial is listed in paragraph 5, and the documentary evidence is as per the list mentioned in paragraph 6 of the impugned judgment. To mention, some of the relevant evidence, the inquest panchnama (Exh. 25) was recorded by two panchas, of whom Parth Bharatbhai Joshi (PW1, Exh. 24) was examined. The panchnama of the place of incident (Exh. 28) was recorded by two panchas, of whom Mahendrabhai Himatbhai (PW2, Exh.29) was examined. According to panchnama Exh. 28 and evidence of PW2, the knife used as a weapon was recovered from the hedge adjoining on the eastern side of room No.2 of the hostel near which the incident reportedly took place. The blade of the knife was of length of 7 inches and width of 1/2 inches.
5.1 The prosecution examined Vishen Vijaybhai Mistry (PW5, Exh. 45), a 3rd year student staying in the hostel who deposed that on the date of incident when he was in the hostel ground trying to talk to his parents on mobile, he, upon hearing noise from the lobby in the ground floor, rushed there and saw that Nikit had been running with knife after Kuldip. PW5 stated that he caught hold of Nikit and took him to another room. Kuldeep was bleeding. By that time his other friends, the principal and the rector had come. He deposed that Nikit was in anger when he caught hold of him and he threw away the knife in the hedge, taking it from the hand of Nikit. He stated that he did not ask Nikit about the manner of occurrence of the incident while he remained with him. He also stated that room of Nikit was near to the place where he was caught by him and that room of Kuldip was at a distance.
5.1.1 The deposition of PW5 was relied upon by learned Public Prosecutor to submit that he was eyewitness and he saw the accused assaulting the victim. From this evidence, learned Public Prosecutor wanted to emphasize PW5's account about occurrence of incident that the appellant had been running after the victim with knife in hand. However, on close reading of the deposition (Exh. 45), it is seen that eventhough this witness is claimed to be an eye witness, it is not so. He appeared to have reached the scene of offence in the end, was not eye witness to the whole incident from the beginning and at the best seen the happening in its later part only when the act of assault was complete. It is deposed by PW5 that the victim was bleeding and was taken to the nearby bench when he reached there. In this light, the statement of PW5 that appellant was running with knife after the victim does not inspire confidence.
5.2 Dharmaraj Bhikabhai Thakkar (PW6 Exh. 51), a student staying in room No.5 of the hostel had seen the incident. Indisputably, he deposed that at the time of incident he with other students namely Trilok and Sanket were talking in the lobby on the ground floor. He deposed that when Nikit stabbed Kuldip he was very near to Nikit. He stated that Nikit was facing him. He further stated that Nikit was facing towards the direction whereat the room of warden and hall exists. Knife was with Nikit when both (Nikit and Kuldip) had been standing facing each other. A scuffle had taken place between the two. Kuldip had been trying to snatch knife from Nikit, therefore, Nikit had inflicted two blows. According to this witness, Nikit gave one blow on the shoulder and the other on the backside of Kuldip.
5.2.1 PW6 viz. Dharmaraj Bhikabhai Thakkar deposed that when they were standing in the lobby, he first saw Nikit walking into lobby with knife in hand and would have walked for 10 to 15 feet from his room and was proceeding towards the room of warden. It was further deposed that at that time Kuldip was not sighted. Kuldip was seen coming out of the room of Nikit. First Nikit came out and after his coming out, Kuldip came outside Nikit’s room and had come running. Kuldip ran ahead of Nikit and stood in the way in front of Nikit. He deposed that Kuldip ran and sat on the table. Hostel warden Sanket Sir, Shivang Sir and Viren Saheb as well as principal of the college reached there and Kuldip was taken to hospital. He deposed that the reason for the incident was that Kuldip was often hurling abuses and for that Nikit had also made complaint to Sanket Sir.
5.3 The next witness Tapas Murli (PW10, Exh.61) was Lecturer and also Warden of the hostel who deposed that on the day of the incident when a student came to call him to inform that a scuffle had taken place, he ran to the spot. He stated that student named Kuldip was bleeding and in the lobby Nikit was also sitting and he was weeping. Nikit was telling that he had committed a mistake. He tried to console Nikit who was apologetic and when he gave him water then also he was weeping. Nikit was weeping when the Rector took him to his room. According to PW 10 he had not received any complaint of indiscipline by Nikit. According to him, Nikit was a disciplined student.
5.4 Trilokkumar Lalitkumar Patel (PW14, Exh. 69) was also a student in the same hostel, and he deposed that when he and his colleague Dharmaraj were going to see a movie, the incident took place in the lobby, whereupon all of them including the principal, Viren Sir and Tapas Sir gathered and Kuldip was given primary medical treatment and then was taken to hospital. He stated that all students including the victim and the appellant had joined the college before 15 days only. He stated that Kuldip was abusing Nikit time and again and Sanket Sir had told Kuldip that if he did not stop using abusive language, he may have to be rusticated from the hostel. According to this witness, when they were in the lobby, Kuldip had gone to the room of Nikit, and it was Nikit who came out the room after 45 minutes with knife in his hand and was going towards the room of the Warden. He stated that when anything happens in the hostel, the complaint is made to the Rector. According to him also, the victim came out subsequently, by which time, Nikit had proceeded upto 2025 feet towards the Rector’s room. He stated that the knife of the kind in the hand of Nikit was required to be brought by the student while getting admitted to the hostel as per list of the articles to be brought by the student. This witness was permitted to be cross examined by the prosecution upon request.
5.5 The other evidence was of Shivang S Naik (PW 7, Exh.52), also a student staying in the hostel, who deposed that on the day of incident he was talking on a mobile and saw Kuldip and Nikit making noise and coming out from the room. He deposed that he saw knife in the hand of Nikit and catching hold of him he threw away knife. His version about injury inflicted on Kuldip was that blows were given on the shoulder and backside of Nikit. Prosecution was permitted to cross examine this witness as he was found to be not supporting the prosecution. Similarly Dilipbhai N. Raval (PW 9, Exh.16) Accountant in the College deposed that he knew about the incident on telephone of trustee and his description of the incident was based upon information received from other persons. He stated that Nikit inflicted injuries out of anger as Kuldip was often abusing him.
5.6 Mahendrabhai Himmatlal Mehta (PW 2, Exh.27) working as Librarian in the Institute concerned was one of the two panchas who collected samples and also recovered a knife from the hedge as also pants of victim lying in the room of the Principal and shirt with bloodstains from the place of incident. According to him the term of the college had started just before 1213 days. The native of Kuldip was Motaleliya in Amreli whereas the accused belonged to Surendranagar District. He stated that as per his information Nikit assaulted with knife as Kuldip was hurling abuses on him. This witness accompanied the victim to Wokhardt Hospital soon after the incident. He stated that he saw Kuldip bleeding from his back and hand. His deposition did not throw any light as regards manner of happening of incident except that he stated on the basis of information that Kuldip was abusing Nikit and therefore Nikit assaulted him with knife. He stayed at Wokhardt Hospital till next morning by which time parents of Kuldip had arrived, however, he had no talk with them regarding the incident.
5.7 Dr. Kamleshbhai Chhantbar, who was visiting doctor at Wokhardt Hospital (P.W. 13, Exh. 67) deposed about the injuries on the body of the victim. According to his evidence and the post mortem report (Exh.55) read with injury certificate (Exh.68) and deposition of Dr. Dalpat (PW8 Exh.53) who conducted postmortem of the body of the victim, there were three injuries. First was the ante mortem wound of the size of 5 cm X 2 c.m. and of the depth of 78 inches on the backside of the body of the victim and found to be reaching upto part of intestine. The second wound was in the middle of stomach which was round in shape and of the size of 15cm x 1cm. The third injury was on the left shoulder and of the size of 5cmx2cm which was a slanting muscle deep wound of 4 cm. He stated that injuries were such which would necessarily cause death. He however stated that only the doctor who performed operation could say about the kind and nature of original injury no.1 on the back. He could not say whether the wound or injury would be altered in its shape or size because of an operation.
5.8 P. W. 13, inter alia, stated that injuries in question were such that they were likely to result into death.
6. As for the contention of learned advocate for the appellant that the act of assaulting was for his own defence, there is no circumstance emerging from the record or pointed out by learned advocate that there was any provocation or assault from the victim as would compel the appellant to use knife against the victim and cause him the injuries.
Therefore, we reject that defence at the outset.
7. For appreciating rival contentions in light of the above relevant evidence, it is necessary to have a look at the statutory provisions and the law governing the subject.
7.1 Section 299 of I.P.C. defines offence of culpable homicide. Section 300 defines murder and states that except in the cases mentioned in the Exception clauses 1 to 5, culpable homicide is murder.
7.2 The offence under Section 299 is ruled by “intention” and “knowledge”. The offence of culpable homicide has three fold parts. First is that the act done with intention to cause death is culpable homicide. Secondly, the act is done with intention of causing such bodily injury as is likely to cause death. In this part there may not be intention to cause death itself. However, if the intention is of causing bodily injury of such nature as is likely to cause death, the offence of culpable homicide is made out. The third limb making out the offence is the knowledge of the doer of an act that by such act he is likely to cause death. The distinction between “intention” and “knowledge” is one of degrees.
7.3 In the scheme of the IPC 'culpable homicide' is genus and 'murder' its specie. The position of law is explained by the Supreme Court in Budhi Lal vs. State of Uttarakhand [AIR 2009 SC 87] as under:
“For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree”. This is the gravest 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 among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
7.4 It was further observed, in para:13, as under:
“The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion 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. 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”
7.5 Budhi Lal (supra) explained that the ingredients of clause "Thirdly" of Section 300, IPC brought out by the Apex Court in Virsa Singh (supra) as follows :
“To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 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."
7.6 It is further observed in Budhi Lal (supra) that the test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause three of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, and that the injury found to be present was the injury that was intended to be inflicted.
7.7 The essential feature for offence of 'murder' under section 300 of IPC is the 'Intention'. The word 'Intention' to connote the ‘Intention to kill’ is explained by the Supreme Court in Jai Prakash v. State (Delhi Administration) [JT 1991 (1) SC. 288]. Following are the relevant observations.
“We may note at this stage that ‘intention’ is different from ‘motive’ or ‘ignorance’ or ‘negligence’. It is the ‘knowledge’ or ‘intention’ with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these provisions”.
7.8 In Jai Prakash (supra), the Supreme Court relied on Kenny in “Outlines of Criminal Law” (17th Edition at page 31), quoting with the approval as under:
“Intention: To intend is to have in mind a fixed purpose to reach a desired objective; the noun ‘intention’ in the present connexion is used to denote the state of mind of a man who not only foresees but also desires the possible consequence of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that the both foresees the victim’s death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed”.
7.9 It further relied on that Russell on Crime (12th Edition at Page 41)quoting it with approval as under:
“ In the present analysis of the mental element in crime the word ‘intention’ is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.”
7.10 In Jai Prakash (supra) it was further observed by the Supreme Court that:
“It can thus be seen that the ‘knowledge’ as contrasted with ‘intention’ signify a state of mental realization with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, ‘intention’ is a conscious state in which mental faculties are aroused into an activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one’s conduct so as to bring about a certain event. Therefore in the case of ‘intention’ mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause three of Section 300 of IPC, the words “intended to be inflicted”, are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not neessarily follow that the offender intended to cause the injury of that nature.”
(emphasis supplied)
7.11 In Virsa Sing's case (supra) itself, the Apex Court explained the third clause of section 300 as under.
“ 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. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.”(emphasis supplied)
7.12 In Ghelabhai Jagmalbhai Bhawad and others vs. State of Gujarat [ (2008) 17 SCC 651], the facts involved were comparable to the present case. Therein the appellantaccused persons assaulted the victim as a sequel to some wrangle with PW4. One of the injuries caused by the third accused was found directly responsible to cause haemorrhage in brain resulting in victim's death. Despite that, as the entire incident took place on the spur of the moment, immediately as an aftermath of a heated altercation between PW4 and first appellant, and since there was no evidence showing any premeditation or prior planning or intention to cause death or any such injury as was likely to cause death in the normal course or any knowledge that the injury likely to be caused may result in death, the Supreme Court, on such facts and circumstances, held that offence under Section 304 PartII alone was made out.
7.13 In paragraph6 of that judgment, the Apex Court's observations for appreciating the kind of offence with reference to evidence on record, are relevant to be noticed, as under:
“Murder is considered to be an aggravated form of culpable homicide and to render it a murder the case must come within the four clauses of Section 300. Consequently, it needs consideration at the threshold as to whether any of the accused has done any act by which he has caused the death of another person. Incidentally, it requires a consideration as to whether such act(s) amounted to culpable homicide, as envisaged under Section 299. If the evidence on record could evoke a positive answer in affirmation, the stage for consideration of the applicability or otherwise of Section 300 in the light of the clauses elucidating the offence as well as the exceptions engrafted therein arise. If the facts proved by the prosecution do not satisfy any one of the clauses contained in Section 300, it would only be a case of culpable homicide not amounting to murder, punishable under Section 304, the further question as to under which part of the said provision depending upon the nature of evidence and the necessary ingredients proved to attract one or the other of such part. Even, if the prosecution is able to prove that one or the other clauses of Section 300 is satisfied, yet if the evidence could establish that the case falls under any one of the exceptions still the offence said to have been committed would only culpable homicide not amounting to murder punishable under Section 304 of the Penal Code. Thus, culpable homicide will not also amount to murder if the case falls within any of the exceptions in Section 300 and only by such process of reasoning and elimination, a case for murder can be held proved.”
8. Thus, proposition of law which emerges is that whether there was an intention to commit offence under Section 300 punishable under Section 302 of IPC is a question of fact to be gathered from the facts and circumstances of each case. For deducing an 'intention', therefore, no straightjacket rule or formula can be evolved and the question has to be decided with reference to the facts of the case and the evidence on record.
8.1 From the evidence on record in the present case, it transpires that the victim was in the habit of using abusive language towards the appellant and appellant had also made complaint in that regard before the rector of the hostel. The sequence of happenings in course of incident is brought out by the evidence of PW6 (Exh.51) who was eyewitness and whose account about occurrence of incident is found to be natural and trustworthy, as also corroborated by evidence of PW10 (Exh.61), PW14 (Exh.69) and other evidence. Conjoint reading of relevant evidence clearly suggests that before minutes of assault by the appellant, both appellant and victim were together in the room of the appellant as the victim had gone there. What transpired in the room while they were together in the hostel room has not come in evidence. However, it is possible to reasonably infer and comprehend, in the context of victim abusing the appellant and the appellant having complained to the rector and the rector having also reprimanded the victim in that regard, that verbal altercation might have taken place between the two when they were inside the room. The happenings thereafter show that it was the appellant who first came out from the room holding the knife in his hand and walked swiftly across the lobby of the hostel and went towards room of the rector. Apparently, he was proceeding to the rector's office to complain about the behaviour of the victim. The victim subsequently came out from the room, overtook the appellant Nikit and stood in front of the appellant to stop him from proceeding further. Evidently, the victim wanted to prevent the appellant from going to rector's office. In the process, a scuffle between the two took place, the victim attempted to snatch away the knife out of hand of the appellant and the appellant then injured the victim with that knife.
8.2 The actual assault and act of inflicting injuries happened within moments. The incident was abrupt in nature and was not the incident which can be said to have been preplanned so as to fulfill any motive or intention on the part of the appellant. The act on part of the appellant was in spur of moment without any intention. There is no evidence on record, nor a possible inference can be drawn from the evidence on record about existence of any premeditation or prior planning to attack the victim. Though the injuries were serious, there was no intention on the part of accused to cause death or any such injury as is likely to cause, in the normal course the death, nor could the accused be attributed with knowledge that the injury likely to be caused by his act may result in death.
8.3 It is pertinent to note that in his written statement in continuation of statement recorded under section 313 of Code of Criminal Procedure, 1973, ('Cr.P.C.', for short) it was the case of the appellant that on the previous day the rector had taken the victim to task for his using abusive language and instructed him not to repeat such abuses and that it was victim Kuldip who had first gone to the room of the appellant with knife on the day of incident. The sequence of events noted hereinabove do not militate against the above case of the appellant. Apart from that, the incident had happened on the spur of moment, without any premeditation. The injuries which were inflicted were the result of a scuffle and not one which could be said to have been intended to be inflicted. It is also borne out from the evidence that appellant was crying after the incident and was apologizing further that he was a well disciplined student (P. W. 10, Exh.61). There was no complaint against him about any indiscipline. He was a fresh student and could hardly have any motive or intention to kill a costudent.
8.4. It is also held in Kesar Singh and Another vs. State of Haryana, [ (2008) 15 SCC 753], that the fact that injury inflicted was serious one, it by itself may not be decisive. Therefore, the injuries alone cannot be taken as independent criteria to pin the ingredient of intention in making out the offence of murder, when other circumstances proved on evidence on record suggest otherwise. When we have found on evidence that intention or motive to kill was absent on part of the appellant, merely because the injuries inflicted by him turned out to be serious injuries, it cannot be concluded that he had harboured intention to cause such injuries or that because of the serious injuries, intention will be presumed. Thus, the contention on behalf of the respondent State that nature of injuries by themselves is an evidence of intention or that the intentions is required to be presumed in the act of assault by the appellant is not acceptable. As noted above, the test laid down in the case of Virsa Singh (supra), is with rider that unless the evidence or the circumstances warrant an opposite conclusion. As discussed above, we have noticed ample evidence on this count to find that the attack was “instantaneous sans intention.” In view of the above position of the evidence on record and the legal position, it is not possible to conclude that there was an intention on the part of the appellant to cause death or to cause such bodily injury as would in ordinary course cause death.
8.5 In Maniben v. State of Gujarat [ AIR 2010 SC 1261], the Supreme Court, with reference to the facts of that case, observed as under:
“There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased.”
9. There can not be two opinions about the fact that the incident in question in the present case was unfortunate and reprehensible as well. Nevertheless, in view of position of the facts, evidence on record and legal parameters discussed above, we are convinced that appellant could not have been convicted for offence under Section 302 of Indian Penal Code. The offence made out is that of culpable homicide punishable under Section 304 PartII of the Indian Penal Code.
10. In the result, the conviction and sentence of the appellant under Section 302 of IPC recorded by the trial Court is set aside, and the appellant is convicted for the offence under Section 304 PartII of IPC and he is sentenced to undergo simple imprisonment for six years and pay fine of Rs.3,00,000/, in default of paying which, the appellant shall undergo further imprisonment for 18 months. Remaining part of the impugned order and sentence for the other offence are not interfered. The amount of fine of Rs. 3,00,000/ shall be paid by way of compensation to the heirs of the victim through his father, i.e the appellant in Criminal Appeal No.1164 of 2011. Accordingly and subject to the above order, Criminal Appeal No.28 of 2010 is partly allowed and Criminal Appeal No.1164 of 2011 is dismissed.
[D. H. WAGHELA, J.] Amit [N. V. ANJARIA, J.]