Nana vs State Of Rajasthan

Manoj Kumar Garg, J

Instant criminal appeal has been filed by the appellant against the judgment dated 11.06.2002 passed by learned Sessions Judge, Dungarpur, in Sessions Case No.44/2001 by which the learned Trial Court convicted the appellant for offence under Section 302 IPC and sentenced him for life imprisonment along with a fine of Rs.1,000/- and in default of payment of fine to further undergo six months RI.

Brief facts necessary to be noted for deciding the controversy are that 24.04.2001, complainant- Ratni provided an oral information at Police Station- Dungarpur to the effect that an altercation had occurred between her mother-in-law, Phulki, and her brother-in-law (Jeth), identified as the accused-appellant, Nana. During the altercation, the accused-appellant Nana allegedly inflicted a blow with a stone on the head and leg of the deceased, Phulki. Subsequently, he purportedly pushed her from a height of ten feet, resulting in her falling to the ground, where she sustained fatal injuries and died at the scene.

On the said oral report, Police registered the FIR against the accused-appellant and started investigation. On completion of investigation, police filed challan against the accused-appellant for offence under Section 302 IPC. Thereafter, learned Trial Court framed, read over and explained the charges for the offence under Section 302 IPC. He denied the charge and sought trial. During the course of trial, the prosecution examined as many as twelve witnesses and also got exhibited relevant documents in support of its case. The accused appellant was examined under Section 313 Cr.P.C. In defence, five documents Ex-D/1 to Ex-D/5 were exhibited.

Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, vide judgment dated 11.06.2002 convicted and sentenced the accused-appellant for the offence under Section 302 IPC. Hence, this criminal appeal.

Mr. Shambhoo Singh, counsel for the accused-appellant, has contended that there was neither intention nor motive on the part of the accused-appellant to cause the death of the deceased-Phulki. He submits that, even if the entire prosecution case is accepted, the injury inflicted with a stone on the deceased's head was found to be of a simple nature. The deceased ultimately succumbed due to injuries sustained from a fall from a height, which resulted in grievous rib fractures on her chest. These injuries are cited as the cause of her death. This version is corroborated by the testimonies of eye witnesses PW-2 Ratni (the complainant), PW-3 Hurma, and PW-5 Kurki. Therefore, the conviction recorded by the trial court under Section 302 of the Indian Penal Code is alleged to be legally unsustainable. It is contended that the impugned judgment of conviction warrants quashing and setting aside, and that the accused-appellant should be acquitted of the said offence. Counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Mathai Vs. State of Kerala reported in 2005 (3) SCC 260.

Per-contra, the learned Public Prosecutor has vehemently opposed the prayer made by the counsel for the accused-appellant and submitted that specific averment has been made that the accused-appellant inflicted stone injury on the head of the deceased and later on he pushed the deceased from the height of ten feet and due to falling from such a great height, deceased sustained ribs injuries and died on the spot. Thus, the learned trial court has rightly convicted the accused-appellant for the offence under Section 302 IPC. Learned Public Prosecutor thus craves dismissal of the appeal.

We have considered the submissions of the counsel for the parties made at bar and perused the impugned judgment as well as record of the case.

The First Information Report lodged by the complainant-Ratni (PW-2), contains a detailed and specific account of the incident that a heated altercation occurred between the accused-appellant and the deceased- Phulki. During this altercation, the accused-appellant purportedly inflicted a stone blow on the deceased's head. Subsequently, the accused-appellant allegedly pushed the deceased from a height of approximately ten feet, resulting in her fall and immediate death at the scene. The consistency between the FIR account and eyewitness testimonies namely, those of Ratni (PW-2), Hurma (PW-3), and Kurki (PW-5) establishes a coherent narrative of the incident. The medical examination of the deceased shows that deceased- Phulki received fracture of ribs. The medical expert, Dr. B.P. Verma (PW-9), examined the injuries and clarified that Injury No.1, located on the head, was classified as a simple injury and Phulki sustained fractures of the ribs, specifically, ribs Nos. 2 to 8 on the left side and rib No. 9 on the right side. However, the injuries to the ribs particularly Injury No.2 were deemed grievous in nature. He further opined that the injuries sustained, especially the rib fractures and the injury to the lungs, were sufficient to cause death. He explained that the deceased's fatal injuries likely resulted from a fall from a height of approximately 6-7 feet. Therefore, it can be said to have been proved beyond reasonable doubt that the appellant had caused the death of deceased- Phulki and thus committed culpable homicide. The evidence on record clearly shows that the appellant had caused the death by inflicting a blow with a stone on the head and leg of the deceased- Phulki. Subsequently, he pushed her from a height of ten feet, resulting in her falling to the ground, where she sustained fatal injuries and died at the scene.

The crucial question however is, whether he had the intention to cause death of deceased- Phulki or had the intention to cause such bodily injury which was likely to cause death or whether he had the conscious knowledge that it was imminently dangerous that in all probability, it would cause death, or such bodily injury as is likely to cause death and committed the act without any excuse for incurring the risk of causing death or such injury?

At the outset, it would apposite to deal with the relevant legal provisions, which reads as under:-

"300. Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.--When culpable homicide is not murder.-- 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.

......x.....xx.....xx..... x..........

......x.....xx.....xx..... x..........

......x.....xx.....xx..... x.......…

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.

.......…

304, Part II. Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death; but without any intention to cause death or to cause such bodily injury as is likely to cause death."

The ingredients constituting an offence under Section 304

Part II IPC are as follows:

(i)         he must commit culpable homicide not amounting to murder;

(ii)        the act must be done with the knowledge that it is likely to cause death;

(iii)       but such act is done without any intention to cause death or to cause such bodily injury as is likely to cause death.

Therefore, under the provisions of Section 304 Part II of the IPC, an individual may be held liable for culpable homicide not amounting to murder when the act is committed with the knowledge that it is likely to result in death, yet without any intention to cause death or to inflict such bodily injury as is likely to cause death. The essential criterion for establishing an offence under this section is thus twofold: firstly, the presence of knowledge on the part of the accused that their conduct is likely to cause death or such bodily injury as could lead to death; and secondly, the absence of any intention to cause death. Thus, core

element of Section 304 Part II IPC is the mental state of the accused, specifically, the conscious awareness of the potential consequences of their act, without the accompanying intent to bring about death. The reasoning underlying this legal framework is rooted in the  principle  of  moral  culpability  and  the  recognition  that  an individual can be deemed criminally liable even if they did not aim to  kill,  but  nonetheless  engaged  in  conduct  that  foreseeably endangers life. Such an approach ensures that individuals cannot escape liability merely because they lacked the intent to kill, especially  when  their  actions,  by  their  very  nature,  posed  a substantial risk of resulting in death. It emphasizes accountability for reckless or negligent conduct that, while not intended to cause death, nonetheless leads to fatal outcomes, thereby upholding the principles of justice and societal protection. The  thin  line  difference  between  the  offence  punishable under “Section 302” and “Section 304” of IPC has been succinctly explained by the

Hon’ble Apex Court in State of A.P. v. Rayavarapu Punnayya reported in (1976) 4 SCC 382 in the following words:

“12. 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.”

The difference was further elucidated in Rampal Singh v. State of U.P., reported in (2012) 8 SCC 289 in the following words:

“18. This Court in Vineet Kumar Chauhan v. State of U.P. [(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915] noticed that academic distinction between “murder” and “culpable homicide not amounting to murder” had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] where it was observed as under: (Vineet Kumar case [(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915], SCC pp. 665-66, para 16)   “16. … that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to ‘culpable homicide’ as defined in Section 299. … If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the First or the Second Part of Section Page 8 of 29 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.

Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really “murder”, but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.) ”

In Pulicherla Nagaraju @ Nagaraja vs State Of A.P. reported  in  (2006)  11  SCC  444,  Hon’ble  Apex Court  has observed as under :-

“Therefore, 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 a 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 pre-meditation. 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. 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 : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) 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.”

From the above extracts, it becomes evident that a key criterion in distinguishing whether a particular act constitutes “murder” or “culpable homicide not amounting to murder” punishable under Sections 302 and 304 IPC, respectively is the presence or absence of the offender’s intent. Specifically, if the offender possesses the intention to cause death or to inflict such bodily injury as is likely to cause death, or alternatively, if they are consciously aware of the perilous nature of their conduct recognizing that their actions are so inherently dangerous that they will, in all likelihood, result in death or such injury the act is more appropriately classified as “murder” under Section 300 of the IPC. In such cases, the corresponding penal provision of Section 302 IPC, which prescribes the punishment for murder, would be applicable. Conversely, if the intention to cause death or such grievous bodily injury is not clearly established the act should be categorized under the lesser offense of “culpable homicide not amounting to murder,” punishable under Section 304 IPC. This classification recognizes the gravity of the act but acknowledges the absence of the requisite mens rea (guilty mind) for murder. The reasoning behind this distinction is rooted in the principles of criminal law, which aim to attribute liability proportionate to the mental state and culpability of the offender. Intention and knowledge are fundamental elements that differentiate between degrees of criminal liability. When the offender intentionally commits an act with full awareness of its dangerous potential, it signifies a higher degree of moral culpability, warranting the harsher penalty prescribed for murder. Conversely, in cases where the offender’s conduct lacks such deliberate intent or conscious knowledge, the law considers the act less blameworthy, thereby justifying a comparatively lenient punishment under Section 304 IPC. This nuanced approach ensures that the legal response is both fair and proportionate to the offender’s mental state and the circumstances of the act.

Upon examination of the injuries sustained by the deceased and the postmortem report Ex.P/9 indicates that injury No.2 was identified as the fatal and the primary cause of death.

Furthermore, the circumstances under which the assault occurred, including the motivations behind causing the injuries, there is no evidence to suggest that the assault was premeditated or carried out with a deliberate plan to kill the deceased. The absence of evidence indicating premeditation is a significant factor.

Considering the absence of proof of premeditation, including the lack of undue advantage or cruelty on the part of the appellant as well as the fact that the assault was the result of a sudden altercation between the parties, the act can be characterized as culpable homicide not amounting to murder, aligning with the provisions of Section 304 Part II of the IPC. This court is of the opinion that the actions of the accused demonstrated a reckless disregard for human life rather than an outright intention to murder. The nature and extent of the injuries, coupled with the circumstances of the incident, support this conclusion.

In view of the aforesaid aspects and upon assessment of evidence, we are of the considered opinion that the finding of guilt recorded by learned trial Court under Section 302 IPC is not sustainable in the eyes of law because there is a clear absence of pre-meditation or motive to kill deceased Phulki and it is a case of culpable homicide not amounting to murder. Therefore, we are inclined to alter the conviction of the accused-appellant from Section 302 IPC to Section 304 Part II, IPC.

Resultantly, the conviction and sentences passed against the accused appellant for the offence under Section 302 IPC is quashed and set aside and the same is hereby altered to the offence punishable under Section 304 Part II, IPC.

However, considering the facts that the accused-appellant was arrested on 30.04.2001 and his sentence was suspended on 01.09.2005, but due to weak economic condition, he could not furnish the bail bonds and subsequently, he was released on bail only on 16.03.2009 and accordingly, he has undergone the incarnation for more than eight years & six months, we think it proper to reduce the sentence of the accused-appellant to the period already undergone by him.

Thus, while maintaining conviction of the appellant offence under Section 304 Part II IPC, his sentence for the said offence is hereby reduced to the period already undergone by him. The fine amount, if not deposited, is hereby waived. The accused-appellant is on bail. He need not surrender. His bail bonds are cancelled.

Accordingly, the criminal appeal is partly allowed.

The record of the trial court be sent back forthwith.