From the above narration, it is crystal clear that the appellant had committed two acts. The first act was manhandling the deceased by giving a slap. Immediately, she fell down and became motionless, but, still she was alive. The second act was that believing that she had already died, he poured kerosene and set fire to her. The death was only due to the burn injuries. Whether from these two acts of the appellant, can it be concluded that he is guilty of murder or at least guilty of culpable homicide?
13. In English law, every offence is defined based only on general principles of the common law whereas, fortunately, in India, every offence is defined, both as to what must be done and with what intention it must be done, by the section of the penal code which creates it a crime. Section 299 of IPC defines culpable homicide. The opening words of Section 299 of IPC need to be kept strongly in mind. Section 299 reads as follows:-
"299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
14. The death undoubtedly should have been caused by a human being as defined in Section 46 of IPC. Similarly, the act of causing death need not necessarily be by a single act and it may be by a series of acts which, as defined in Section 33 of IPC, may constitute a single act. It is not every such act / acts causing death that makes the act of the accused as an offence of culpable homicide. For a homicide being culpable, it should be further proved that the act of the accused was done with the intention of causing death; or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. These three are the species of mens rea in culpable homicide. Unless it is proved that the act of the accused would fall under any one of these three ingredients, it would not amount to an offence of culpable homicide. With this broad understanding of the definition of culpable homicide, let us again proceed further to analyze the facts of the present case.
15. As we have already concluded , the appellant had committed two acts. One was slapping the deceased and making her motionless/unconscious and the second was pouring kerosene and setting fire to her. Whether two or more acts of an accused would constitute a single act or not depends upon the fact whether there was continuity of action. As defined in Section 33 of IPC, a series of acts may constitute a single act. But, if more than one act are committed, not in series, it would not constitute a single act. In the instant case, going by the evidences available on record, we are of the view that these two acts were committed in a series and, therefore, they constitute a single act as defined in Section 33 of IPC.
16. So far as the first act is concerned, undoubtedly, it will not fall within the ambit of Section 299 of IPC inasmuch as by the said act, the appellant did not cause the death of the deceased though he believed that he had caused death by the first act. Further, the first act of slapping was done not with either intention to cause death or intention to cause such bodily injury as is likely to cause death or with the knowledge as defined in Section 299 of IPC.
17. Now, so far as the second act is concerned, it was only by this act he caused the death of the deceased. At the time when he did the same, according to him, he was under the belief that the deceased was no more. Therefore, when he committed the second act also the appellant had no intention to cause death of the deceased or to cause such bodily injury as is likely to cause death. Since the appellant was under the belief that the deceased was already dead, it cannot be said that the appellant, had intended to cause death or cause such bodily injury as is likely to cause death. Thus, the second act of the appellant, causing the death of the deceased by pouring kerosene and setting fire to the deceased also, would not fall within the first or second limb of Section 299 of IPC at all.
18. Now, turning to the third limb of Section 299 of IPC, it speaks of knowledge that he is likely by such act to cause death. Here again, it can be argued that since the appellant was under the belief that the deceased was no more, knowledge on his part that by his act he was likely to cause death cannot be imputed. But, such argument cannot be countenanced for, such belief can not be farcical or illogical. It should be examined whether the belief of the accused in this case, that the deceased was no more was based on logic and on good faith. If the belief of the appellant that the deceased was already dead is based on due care and attention, then, the knowledge as dealt with in the third limb of section 299 of IPC cannot be imputed to him. But, if the belief that the deceased was dead was not based on due care and attention and such belief was recklessly held, then, certainly, knowledge as defined in Section 299 of IPC can be imputed to the accused. In other words, the belief of the appellant that the deceased was dead must be out of good faith. The term Good faith is defined in Section 32 of IPC which reads as follows:-
52. Good faith . Nothing is said to be done or believed in good faith which is done or believed without due care and attention.
19. In the instant case, the appellant, without taking due care and attention, that is, without fully ascertaining whether the deceased was already dead or not, in haste, had poured kerosene and set fire to the deceased. There was total lack of due care and attention on the part of the appellant. Thus, the belief of the appellant that the deceased was already dead was not based on due care and attention and so, he cannot escape by taking recourse to the plea of good faith as defined in Section 52 of IPC. In such view of the matter, we have to hold that the second act of the appellant in the instant case would squarely fall within the third limb of section 299 of IPC.
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.04.2016
CORAM:
MR . JUSTICE M.JAICHANDREN
MR. JUSTICE S.NAGAMUTHU
Criminal Appeal No.457 of 2013
Rajan Vs State Rep. by
The Inspector of Police,
Citation: 2017 CRLJ 500
