Monday, 17 August 2020

Bombay HC: Factors to be considered by the court to ascertain that accused intended to cause death of victim

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 premeditation; (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. Be that as it may.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 314 OF 2018

Mr. Hivraj Kewatram Uikey, Vs   State of Maharashtra,

CORAM :- A. S. CHANDURKAR AND
AMIT B. BORKAR, JJ.
DATE :- 14.08.2020
 (PER : AMIT B. BORKAR, J.):-

1. Hearing was conducted through video conferencing and the
learned counsel agreed that the audio and video quality was proper.
2. Through this appeal the appellant challenges the judgment
and order dated 23.04.2018, passed by Additional Sessions Judge,
Gadchiroli in Sessions Case No. 79 of 2015 convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to pay the fine to suffer R.I. for six months for offence under Section 302 of Indian Penal Code.
3. In short, the prosecution case runs as under :
The incident happened on 07.04.2015 in the barren field
near the field of accused. On the day of incident Punnibai-(PW-2) along
with her sister-in-law Vanita-(PW-3) were in the field at about 7 A.M. At
that time the accused approached them and asked as to who has stolen
wood from his field. When PW-2 and PW-3 denied it, the accused abused
them by saying that they were daughters of landlord and collector. While
the accused was abusing PW-2, PW-3, deceased came on spot and made
enquiry with Punnibai and Vanita, PW-2 and PW-3 told deceased about
the incident. Then the deceased asked the accused as to why accused
abused PW-2 and PW-3. At that time accused asked deceased to come
near him so that the accused would disclose the reason to the deceased.
When the deceased went near the accused, the accused assaulted the
deceased with axe on his head. The deceased fell on the ground and was
declared dead on arrival in hospital. The accused thereafter himself went
to police station along with axe and confessed crime by lodging the
report. The police station Jaravandi registered a crime bearing
No.03/2015 against the Accused.

4. The Investigating Officer submitted Investigation Complete
Report under Section 173 of Criminal Procedure Code before the Judicial
Magistrate First Class, Aheri after completing the investigation. The
learned Judicial Magistrate First Class, Aheri, committed the case to the
Sessions Court as it being exclusively triable by the Sessions Court by its
order dated 07.07.2015. The trial court framed the charge against the
accused, which was denied by the accused and the prosecution was called
upon to open the case. The prosecution in all examined 12 witnesses, out
of which PW-2 and PW-3 are eyewitnesses. In the statement of the
accused recorded under Section 313 of Criminal Procedure Code, the
accused raised defence of rivalry against the deceased, hence the accused
was falsely implicated in the case. The accused did not step into the
witness box however examined his father as defence witness to prove that
the applicant had Psoriasis to his right hand.
5. The learned trial court believed the witnesses examined by
the prosecution and convicted the accused for offences punishable under
Section 302 of Indian penal Code and sentenced for life imprisonment.
6. We have heard Ms. Kirti S. Deshpande, learned counsel for
the appellant and Mr. N. S. Rao, learned APP for the state. We have also
perused the depositions of prosecution witnesses, material exhibits

rendered and proved by the prosecution, the statement of appellant
recorded under Section 313 of Criminal Procedure Code and the
impugned judgment.
7. Ms. Kirti Deshpande learned advocate for the appellant
submitted that on account of sudden and grave provocation the incident
took place. The injury was without any intention. There was only single
blow. It is also submitted that there was a delay of six days in recording
statements of eyewitnesses. It is also submitted that the accused was not
immediately arrested which cast doubt on the theory of prosecution.
There is over writing about date and time in the FIR. The eye-witnesses
were related to the deceased and hence were interested. It is submitted
that in case the Court comes to the conclusion about involvement of
appellant, at the most the offence can be under Section 304 part II and
accordingly the sentence be reduced. In support of her contentions, the
learned counsel placed reliance on the decisions in Aghnoo Nagesia Vs.
State of Bihar reported in AIR 1966 SC 119, Sampath Kumar Vs.
Inspector of Police, Krishnagiri reported in (2012)4 SCC 124 and
Laxman alias Laxmayya Gangaram Zinna Vs. The State of Maharashtra
reported in 2012 All MR (Cri.) 1998.
8. Mr. N.S. Rao learned APP submitted that PW-2 and PW-3 are

eye-witnesses, who have seen the accused assaulting the deceased. Their
testimonies are not shaken in the cross examination. The suggestion that
the distance between PW-2 and PW-3 and accused, while assaulting the
deceased, was such that they could not see the incident, has been denied
by PW-2 and PW-3. PW-4 has corroborated testimony of PW-2 and PW-3
and has seen accused running with Axe. The C.A. Report supports case of
prosecution, which confirms blood of deceased on the axe. There is no
cross of Investigating Officer on the point of overwriting in FIR. It is
submitted that the trial court has rightly come to the conclusion that the
offence is squarely under Section 300 and not under Section 304 part II of
Indian Penal Code. In support of his submission that the witnesses merely
being related to the deceased, their testimonies need to be considered on
its own merits, relied upon following judgments State of Rajasthan Vs.
Kalki and Another reported in 1981(2) SCC 752, Marandu and Another
Vs. State by Inspector of Police, Tamilnadu reported in 2008(16)SCC 529,
Mallikarjun and Others Vs. State of Karnataka reported in 2019(8) SCC
359. The learned APP in support of his submission that Section 304 part
II of Indian Penal Code, will not apply relied upon judgments of the
Hon’ble Apex Court in the case of State of Rajasthan versus Leela Ram
alias Leeladhar, reported in 2019(13) SCC 131, 2006 (11) SCC 444 in the
case of Pulicherla Nagarju V/s State of A.P. and AIR 1958 Supreme Court
465 in the case of Virsa Singh versus State of Punjab.

9. The conviction of the appellant is founded on the testimonies
of two eyewitnesses namely Punnibai-(PW-2) and Vanita- (PW-3). From
their statements it emerges that on 07.04.2015 at about 7 A.M. Punnibai-
(PW-2) along with her sister-in-law Vanita-(PW-3) were in their field. At
that time, accused came near them and asked about stolen wooden sticks
from his agricultural field, which is adjacent to the field of Vanita-(PW-3).
Punnibai-(PW-2) and Vanita-(PW-3) denied having taken wooden sticks
from the field of accused. On this the accused abused them by saying they
are the daughters of moneylender and collector. At that time deceased
came at the spot and asked as to what happened. Punnibai-(PW-2) and
Vanita-(PW-3) narrated to the deceased the aforesaid. Thereupon the
deceased sought explanation from accused as to why the accused was
abusing Punnibai-(PW-2) and Vanita-(PW-3) who happened to be
daughter-in-law and daughter of the deceased respectively. The accused
asked the deceased to come with him to get explanation as to why the
accused was abusing Punnibai-(PW-2) and Vanita-(PW-3). When the
deceased accompanied the accused, the accused assaulted the deceased
by means of Axe as a result of which deceased fell on the ground and
became unconscious. Punnibai-(PW-2) and Vanita-(PW-3) shouted for
help. Due to call from them, Madhav-(PW-4) came at the spot and after
seeing Madhav-(PW-4), accused fled the spot. Madhav-(PW-4) has
corroborated oral Testimony of Punnibai-(PW-2) and Vanita-(PW-3).

10. Diwanji Tirki-(PW-5) and Maniram -(PW-6) deposed that
they went to the police station along with villagers after coming to know
about the incident. At that time the accused came in the police station
with bloodstained axe and stated that he has killed the deceased. He
further stated that the accused has killed the deceased out of dispute over
the field.
11. Somnath-(PW-9) deposed that police seized the plane as well
as bloodstained earth from the field of village Kurumwada where the
incident took place below Seizure Panchnama Exhibit -32.
12. Yogeshwar Pardhi-(PW-11) Investigation Officer deposed that
on 07.04.2015 the accused came to the police station along with Axe and
he reduced his report as per direction of the accused. The I.O. recovered
bloodstained axe from the accused in presence of Panchas below
Exhibit13 and also recovered clothes of deceased. Got prepared map of
spot from Circle Inspector below Exhibit -50.
13. The account furnished by Punnibai-(PW-2) and Vanita-
(PW-3) is corroborated by medical evidence in as much as Dr. Unmesh
Selukar-(PW-12) found a solitary incised wound on right parital area
admeasuring 8 x 1.5 x 5c.m. which was passing through skull and brain at  the angle of 45° in medial and inferior direction which according to his statement could be caused by axe at Article-C. Dr. Unmesh further stated that the injury to the right parital bone was sufficient to cause death in ordinary course of nature.
14. Apart from ocular evidence of Punnibai-(PW-2) and Vanita-
(PW-3), eyewitnesses, the lodging of a FIR by accused himself
substantially eliminates the possibility of embellishment and concoction in the prosecution case and also that of false implication of the accused named therein.
15. The testimony of PW-2 and PW-3 eye witnesses has not been
shaken in the cross-examination and inspires implicit confidence. The said
testimony is corroborated by PW-4 who was present at the spot
immediately after the incident and had seen accused fleeing away from
the spot. The complicity of the appellant in assaulting the deceased has
been proved by the prosecution beyond reasonable doubt.
16. For the said reasons, in our view, the learned trial court
correctly recorded the finding as regards the involvement of the appellant
established in the incident. The conviction of the appellant, therefore,
does not call for any interference.

17. This leaves us with the question namely the nature of the
offence. Ms. Kirti Deshpande learned Counsel for the appellant
strenuously urged that there was sudden provocation and the appellant in
the heat of moment inflicted solitary axe blow on the deceased, the
offence would therefore fall within the ambit of section 304 part II of
Indian Penal Code. Mr. N. S. Rao learned A.P.P. strenuously urged that
the offence would fall squarely within four corners of clauses thirdly of
section 300 of Indian Penal Code the breach of which is punishable under
section 302 of Indian Penal Code. Mr. N. S. Rao submitted that this is not
the case of sudden quarrel and solitary blow on the skull of deceased
which was a deep incised wound on right parital area admeasuring
8 x 1.5 x 5 c.m. which resulted in almost instantaneous death of the
deceased. In Mr. Rao's contention since both the eye witnesses have
categorically stated that the appellant inflicted the blow on this skull of
deceased, he had requisite intention to cause death of deceased in terms
of firstly of section 300 of Indian Penal Code. In Mr Rao’s contention
clause thirdly of section 300 would be attracted because the appellant
inflicted the injury intentionally which in the opinion of Dr. Unmesh was
sufficient in the ordinary course of nature to cause death.
18. In Mr. Rao’s contention since both the eye witnesses have
stated that the appellant intentionally inflicted axe on the skull of the deceased and since medical expert Dr. Unmesh has categorically stated that the said injury was sufficient in ordinary course of nature to cause death, third Clause of Section 300 will be squarely applicable.
19. The Supreme Court in the oft-referred decision of Virsa Singh versus State of Punjab reported in AIR 1958 SC page 465 has held that for the application of clause thirdly of section 300 of Indian Penal Code it is essential that there should be intention to inflict the external injury inflicted and be the injury inflicted should be sufficient in ordinary course of nature to cause death.
20. It would also be apposite to refer to the judgement of Hon’ble
Apex Court in the case of Pulicherla Nagarju Alias Nagaraja Reddy V/s. State of A.P. reported in 2006(11) SCC 444. Speaking for the bench R.V. Raveendran, J. in para 29 observed thus:
“29. 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 cattle, quarrel of children,
utterance of a rude word or even an objectionable
glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be
totally absent in such cases. There may be no
intention. There may be no premeditation. In

fact, there may not even be criminality. At the
other end of the spectrum, there may be cases of
murder where the accused attempts to avoid the
penalty for murder by attempting to put forth a
case that there was no intention to cause death. 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 premeditation; (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. Be that as it may.”

21. The third authority and very apposite one is the decision of
Supreme Court in the case of State of Rajasthan versus Leela Ram Alias Leela Dhar reported in 2019(13) SCC 131 where Dr. D.Y. Chandrachud, J. speaking for the bench in para 19 has observed thus:
“19. In seeking to place the facts of the present
case within Exception 4, the High Court has
dwelt on whether the incident took place without
premeditation. Exception 4 is extracted below:
“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.”
(emphasis supplied)
Under Exception 4, culpable homicide is not
murder if the stipulations contained in that
provision are fulfilled. They are: (i) that the act
was committed without premeditation; (ii) that
there was a sudden fight; (iii) the act must be in
the heat of passion upon a sudden quarrel; and
(iv) the offender should not have taken undue
advantage or acted in a cruel or unusual
manner.”
22. The conspectus of the decisions can summarised thus:
The offence to fall within Exception 4 of section 300 of The
Indian Penal Code 1860 following ingredients must be fulfilled Viz.(i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.

23. The intention to cause death as contemplated by thirdly of
Section 300 of The Indian Penal Code 1860 can be gathered from
following factors:
(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 premeditation;
(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.

24. The above list of circumstances is not exhaustive. There may
be several other special circumstances with reference to individual cases.
25. Coming back to the facts of the present case, it cannot be
conclusively said that act was without premeditation as the accused was already carrying axe with him. The axe was not taken from the spot. There was no fight between accused and the deceased before accused
assaulted the deceased. The eye-witnesses have stated that the accused
had called the deceased towards him and thereafter had assaulted him.
From the evidence on record, it cannot be said that act was committed in
the heat of passion or upon sudden quarrel as the deceased accompanied
the accused at the instance of accused. Therefore, present case does not
fall within Exception 4 of section 300 of The Indian Penal Code, 1860.
26. The other circumstances to prove intention as contemplated
by Section 300 are that the accused was carrying axe which at times is
deadly weapon. The accused was carrying the axe before incident. The
blow was on the head of the deceased which is vital part of the body.
There is no evidence of any prior enmity between the accused and the
deceased. Though the accused examined his father, said witness has not
stated anything about prior enmity. There was no sudden and grave
provocation. Medical expert Dr. Unmesh has categorically stated that the

said injury was sufficient in ordinary course of nature to cause death.
The age of deceased was 60 years and age of accused was 35 years on the
date of incident.
27. Ms. Kirti Deshpande, the learned counsel for the appellant,
strenuously urged that the offence would fall within the four corners of
Section 304 part II of Indian Penal Code. We regret we cannot accede to
her submission.
28. It is also necessary to consider the submission that the ocular
account which is the foundation of conviction of the appellant comprises
of testimony of two extremely interested witnesses namely Punnibai and
Vanita PW-2 and PW-3 who are daughter-in-law and daughter of the
deceased respectively and hence it is unworthy of acceptance. Way back
in 1965 in the case reported in AIR 1965 SC page 202, Masalti versus
State of Uttar Pradesh, the Supreme Court has held that the mere
circumstances that witnesses are interested would only make the court to
evaluate their evidence with caution and not mechanically reject it. We
have exercised the necessary caution in evaluating the testimony of two
eyewitnesses and we find it implicitly truthful.

29. Another submission was to the effect that the statement of
eyewitnesses were recorded after lapse of six days from the date of
incident and there is overwriting in date and time in FIR. In our
considered view testimony of eye witnesses has not been shaken in their
cross- examination. Apart from their testimony, PW-4 has corroborated it
by stating that he had seen accused fleeing from the spot immediately
after the incident. The accused himself had launched FIR at the police
station immediately after the incident which has been witnessed by PW-5
and PW-6. There is no cross-examination of the I.O. on the point of
overwriting in FIR, therefore, now it is not open for appellant to raise
issue of overwriting in FIR. Considering these factors delay of six days in
recording statements of eye witnesses and overwriting in date and time of
FIR fades into insignificance.
30. In the result, we find no merit in this appeal and dismiss the
same. Appellant is in jail and shall undergo the sentence awarded to him.
31. The order be communicated to the counsel appearing for the
parties, either on the email address or on WhatsApp or by such other
mode, as is permissible in law.

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