Robert vs State

M.E.N. Patrudu, J.—00. Appellant

1.1. Robert, the first accused in Sessions Case No. 112/1996 on the file of the Principal District and Sessions Judge, Kan-yakumari Division at Nagercoil is the Appellant. He was convicted by the learned Sessions Judge for an offence u/s 302 IPC and sentenced to undergo imprisonment for life.

1.2. The second accused Sundaram was acquitted.

2.00. FACTS

In nutshell, the case of the prosecution is:

2.1. The deceased Selvan and the accused are the residents of Moovottukonam. The Appellant and the second accused are the brothers. Prior to the date of offence, the deceased attacked the Appellant and his father and caused injuries. Thus the accused bore grudge against the deceased and it is the motive.

2.2. While so, on 30.11.1992, the accused attacked the deceased at 6.30pm. near their village junction. The specific overt-act attributed to the Appellant is that he stabbed the deceased on the left side of the chest.

2.3. A report was lodged before the police and a crime was registered and investigated.

2.4. During the trial, 16 witnesses have been examined, 19 documents and 7 Material Objects are marked on behalf of the prosecution.

2.05. The evidence of P Ws. 1, 2, 3 is the direct evidende being witnessed the occurrence. The other witnesses are circumstancial.

3.00. Arguments:

3.01. Learned Counsel Mr, Edmund appearing for the Appellant forcibly contended that there was no intention for the Appellant to commit the murder.

Elaborating the said arguments, Mr. Edmund stated that the accused were coming on their own and the Appellant passed spit in normal course but the deceased questioned the Appellant for spitting and provoked the accused. Then, there was an altercation between the second accused and the deceased and both of them abused each other in filthy language. The deceased attempted to beat A2. But A2 averted the same and the Appellant received the hit and the Appellant questioned the deceased for hitting him and the deceased abused the Appellant and in that fight, the Appellant stabbed on the left side of the chest of the deceased and ran away.

Mr. Edmund further submitted that the evidence of prosecution and their case is clearly establishing that there was no premeditation or a pre-plan for the Appellant to kill the deceased and there was a sudden quarrel and the deceased is the aggressor and he provoked for the incident.

Mr. Edmund during his submission took us through the relevant extract in the evidence and pleaded for alteration of conviction from Section 302 IPC and reduce the sentence.

3.02. Learned Additional Public Prosecutor resisted the arguments of the learned Counsel for the Appellant and contended that the Appellant passed the spit intentionally to annoy the deceased and the Appellant has invited trouble and ultimately committed the murder and it is with intention and knowledge.

4.00. Points:

The points for our determination are:

(1) Whether there was any intention for the Appellant to kill the deceased?

(2) Whether the Appellant had knowledge that the said injury could cause the death of the deceased?

Points 1 and 2:

4.01. Intention - Knowledge:

(a) The intention is the result of working of the brain and can be gathered from judging the act and the circumstances under which it was done. The intention has been defined as the fixed direction of the mind to a particular job or a determination to act in a particular manner and it is distinguishable from both the knowledge as well as the motive.

(b) The intention is one thing, knowledge is a different thing and motive is something.

(c) The intention connotes, a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified and which the human mind conceives and perceives before itself.

(d) Whereas the knowledge contrasted with intention would more properly signified a state of mental realisation in which mind is a passive recipient of certain ideas and impressions arising in it or passing before it. It would refer to a bare state of conscious awareness of certain facts in which human mind might itself remain supine or inactive

(e) Whereas the motive is the act which incites or stimulates an action; the mainspring of human action; some cause or reason that moves the will and induces action; the moving power which impels to action for a definite power.

4.02. We shall now decide whether the Appellant had an intention to kill the deceased whether the Appellant had the knowledge that the injury so inflicted would cause death.

This would be decided on the basis of the evidence of P. Ws. 1, 2 and 3. They are the direct witnesses.

4.3. The evidence of P. Ws. 1 to 3 discloses that on 30.11.1992 Al and A2 are proceeding through the scene of offence and reached there by about 6.30p.m. Then Al passed a spit towards the deceased and the deceased questioned and A2 scolded him in a filthy language. Then the deceased abused him. Then, A2 gave a punch on the stomach of the deceased and in turn the deceased intended to beat A2 and gave a punch but A2 averted the same and unfortunately Al received the punch. Immediately Al stabbed on the chest of the deceased with a knife and both A1 and A2 ran away and the deceased became unconscious, and thereby he was shifted to the hospital where he succumbed to the stab injury.

4.4. All the three direct witnesses deposed about the incident more or less in the above manner in different words, but the substance of the evidence is consistent.

4.5. Ex.P.10 is the post-mortem certificate. P.W.10 is Mrs. Pon Kumari, Medical Officer, Govt. Hosptial, Kuzhithurai conducted autopsy on the dead body of the deceased. The contents of Ex.P. 10 and the evidence of P.W. 10 discloses that the deceased sustained one stab injury of 5 x 2cm x l5cm (the wound goes downwards towards the area of the heart over) over front of lower end of left shoulder and upper joint of center axillary fold slantingly vertical in shape. The medical evidence discloses that the injury entered into the thoraxic cavity in between 3rd and 4th inter-coastal space and pierced the lung and heart. The medical evidence clarifies that there are no other external injury except the injury described above. The death is due to injury to the heart and the lung.

4.6. The incised injury sustained by the deceased is proved to be fatal and there are no two views about.

4.7. The factual finding recorded by the trial Court clearly indicate the role played by each of the accused and the deceased at the time of offence.

4.8. Before us, the learned Counsel appearing for the Appellant very fairly conceded the fact of incident. It is further stated with all fairness that after analysing the evidence of witnesses in detail and keeping the fact that how the evidence and the incident was related to the deceased, there was nothing for any further careful or close scrutiny of the evidence of eye witnesses but pleaded for application of the exceptions to Section 300 IPC and argued that the entire incident occurred due to sudden quarrel and sudden fight.

4.9. We have minutely perused the evidence of P. Ws. 1 to 3 and we feel that there is nothing for us for further careful scrutiny as the Trial Court has rightly commented them as truthful witnesses. Their evidence is cogent, credible, reliable and trustworthy. In great detail, we have verified the depositions of P. Ws. 1 to 3 and we hold that their testimony is acceptable.

4.10. Now, we have to consider whether the plea of the learned Counsel appearing for the accused is probable and should be considered or to be discorded.

4.11. Culpable Homicide:

(A) Section 300 of I.P.C. is an expanded form of definition of culpable homicide. There are four clauses and they expand that the act which causes death should be done intentionally or with the knowledge of means of anything that death is a natural consequence of the act. The mental element in homicide i.e. the mental attitude of the agent towards consequence of his conduct is one of intention or knowledge. Motive is not very material insofar as the offence is concerned and in fact, it need not be established if the act of murder is proved through the direct evidence of worth credience.

(B) There are three pieces of mens-rea of culpable homicide.

They are -

(i) an intention to cause death

(ii) an intention to cause a dangerous injury

(iii) knowledge that the death is likely to happen due to the said injury.

(C) The intention or knowledge is necessary in order to render killing as culpable homicide and these elements must be clearly proved by the prosecution, which can usually be done by proof of circumstances or the evidence which prove the act or omission in question for the prosecution that a man knows the probable result of his conduct. Therefore, the mental element in a culpable homicide is one of the intention and knowledge.

(D) An offence cannot amount to murder unless it falls within the definition of culpable homicide. But an offence may amount to culpable homicide without amounting to murder. It does not fall that a case of culpable homicide is murder because it does not fall within any of the exceptions to Section 300 of I.P.C.

(E) Therefore, to render culpable homicide as murder, the case must come within the provisions of clauses 1 to 4 of Section 300 and also must not fall within any one of the five exceptions attached thereto.

(F) Now, in the instant case, the learned Counsel appearing for the Appellant has made every effort to bring the act of accused under the 1st exception to Section 300 of I.P.C.

(G) For the sake of convenience, we reproduce the 1 exception of Section 300 of I.P.C.

Exception 1 - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos.-

Firstly - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

(H) The contention of the counsel is that since the deceased questioned A1 for spitting and it caused provocation and thereby both

(I) We do not accept this argument. The evidence on record disclose that the deceased questioned the accused for spitting on him and in fact as per evidence after spitting, Al started using filthy language on the deceased and then only the deceased questioned the high-handed behaviour of the accused. Therefore, there was no provocation from the deceased and hence, we hold that this case is not falling under exception 1.

(J) However, we are of the opinion that the entire incident happened due to sudden quarrel in a sudden fight without any premeditation. Therefore, in our considered opinion, this case is attracting exception 4 to Section 300 of I.P.C.

(K) For easy understanding and for better judgment exception 4 is reproduced with its explanation:

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.

Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.

(L) In the recent judgment in Babulal Bhagwan Khandare and Anr. v. State of Maharashtra [2005 (10) Supreme Court Cases 404], it is held-

The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1.(Para 17)

(Para 18) "The help of Exception 4 can be invoked if death is caused(a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within exception 4, all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the party had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage."

(Para 19) "Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken.

(M) The evidence of P. Ws. 1 to 3 clearly establish that on reaching the scene of offence and on observing the accused spitting and scolding, the deceased questioned and on which the second accused gave a punch on the deceased and in turn the deceased intend to hit the second accused but the hit fell on the Appellant and immediately, he took out the knife and stabbed the deceased and ran away.

(N) This fact of the case clearly set out through the evidence of the witnesses clarifies how the incident occurred and this piece of evidence is sufficient to attract 4th exception to Section 300 IPC.

(O) A careful analysis of the circumstances discloses that there was a sudden quarrel and the was also a sudden fight between the deceased and the accused and immediately the Appellant took out the knife and stabbed the deceased and ran away. It is a case of only one injury.

(P) As the totality of the facts and the attending circumstances of the case spell out that the Appellant did not intend to cause the death of the deceased but he caused the injury due to sudden quarrel and sudden fight without any premeditation without taking any undue advantage though the deceased is unarmed and only one injury is inflicted on the body of the deceased and in view of the aforesaid factual position, we are of the opinion that exception 4 to 300 IPC is to be rightly applicable.

(Q) Accordingly, we hold that the Appellant is guilty for inflicting the injury on tie body of the deceased resulting the death of the deceased but this act is committed without any premeditation and in sudden fight in a heat of passion upon sudden quarrel.

5.00. Findings:

5.01. Section 304 IPC provides punishment for culpable homicide not amounting to murder. u/s 304 IPC there are two kinds of punishments applying to different circumstances and they are (1) if the act, by which death is caused, is done, with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life or imprisonment of either description for a term, which may extend to 10 years and fine. (2) if the act is done with knowledge that is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which extend to 10 years or with fine or with both.

5.02. While so, the punishment prescribed for murder u/s 302 IPC is death or in the alternative imprisonment for life and shall also liable for fine.

Thus, 1st part of 304 IPC applies to a case where the act, by which death is caused, is done with the intention and the second part of Section 304 IPC applies when it is likely to cause death but without any intention to cause death.

5.03. In the instant case, the Appellant had given one stab but the blow no doubt proved to be fatal. It is however, crystal clear that the Appellant had not planned for causing the said injury. He had no intention to kill the deceased at that point of time and he was involved because of altercation between the deceased and A2. The scenario in which the Appellant has given one blow on the deceased has been stated by P. Ws. l to 3. After careful analysis of their evidence, it is difficult to hold that the Appellant gave the blow in question either with the intention of causing murder of the deceased or with an intention such injury would cause the death of the deceased. But the very nature of the assault unmistakably, prove the knowledge of the Appellant that such injury, which was inflicted with a knife near the chest would cause death.

5.04. In our considered opinion, he can be said to have requisite knowledge that the death would otherwise, inevitably result of the injury. In such a situation, by accepting the entire case of the prosecution, we hold that the accused did not commit the offence under

5.05. Decision:

The conviction and the sentence of the Appellant u/s 302 IPC is set aside and the Appellant is convicted u/s 304 (ii) IPC and he is sentenced to undergo 7 years rigorous imprisonment with a fine of Rs. 1,000/-. The Appellant is also directed to pay the amount of Rs. 9,000/- (Rupees nine thousand only) by way of compensation u/s 357 IPC and the said amount shall be paid to the mother of the deceased within a period of four weeks from the date of the judgment, in default of which, the Appellant shall undergo rigorous imprisonment for a further period of one year.

5.06. Result:

In the result, the appeal is partly allowed.