PRASAD PRADHAN & ANR. versus THE STATE OF CHHATTISGARH on 24 January 2023

[2023] 1 S.C.R. 241

PRASAD PRADHAN & ANR.

v.

THE STATE OF CHHATTISGARH

(Criminal Appeal No. 2025 of 2022)

JANUARY 24, 2023

[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]

Penal Code, 1860 – s.302 r/w s.34 – Murder – Prosecutioncase that appellant/accused and the victim were cousins – On theafternoon of 28.02.2012, when the victim was getting his landlevelled through a JCB machine, the appellants (A-1 and A-2)reached the place and attacked him – It was alleged that A-1 wasarmed with an axe and he attacked the victim on the head – AgainstA-2, the allegation was that he was armed with an axe and hadassaulted the victim on the legs – Regarding A-3, the grandson ofA-1 and son of A-2, the allegation was that he went to the spot andcaught hold of the victim – Victim sustained several injuries includinghead injuries – He was taken to the hospital and was examined bya doctor (PW11) – As serious head injuries were involved, the victimwas operated by another doctor (PW15) – However, the victim couldnot survive and died on 22.03.2012 – PW14, doctor conducted thepost-mortem and, in his report, (Ex. P-28), stated that death wascaused by injuries sustained by the victim on the head – Trial Courtconvicted all the accused and sentenced them to life imprisonment,for the offence of murder, and six months rigorous imprisonmentfor the offence u/s.323 IPC – High Court acquitted A-3 on bothcounts, but affirmed the conviction and sentence of the appellants(A1 and A2) – Held: The nature of the attack by the appellants andthe quality of eyewitness testimony of prosecution witnesses,especially PW1 to PW5, cannot be doubted – The circumstance thatmost of the witnesses were related to the deceased does not per seexclude their testimony – Appellants were armed, a fact which showspre-meditation on their part – Appellants attacked victim on thehead, which is a vital part of the body, thus taking undue advantageof their situation – Lapse of time i.e. victim dying after 20 days,would not per se constitute a determinative factor as to diminish theoffender’s liability from the offence of murder to that of culpable

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Ahomicide, not amounting to murder – Conviction and sentenceimposed on the appellants, upheld.

Dismissing the appeal, the Court

HELD:1. The circumstance that most of the witnesses wererelated to the deceased does not per se exclude their testimony.BAlthough PW1 is the deceased’s daughter, that is insufficient todoubt the veracity of what she recounted during the trial, whichis that she saw the appellants attack her father with axes. Shetried to intervene and save the deceased, upon which she wasalso given axe blows on her leg. There is no explanation on theCpart of the appellants as to why the witness should depose falsely;nor is there any explanation as to how she could have receivedher injuries. Most importantly, her testimony is corroborated byPW2, PW3 and PW4. [Para 14][249-D-F]

2. To determine the culpability of appellants whether theyDare guilty for the offence of murder, punishable under Section302, or whether they are criminally liable under the less severeSection 304, IPC, several previous judgements of this Court maybe relied upon. [Paras 15 and 16][249-G-H]

Virsa Singh v. State of Punjab [1958] SCR 1495; StateEof Andhra Pradesh v. Rayavarapu Punnayya & Anr.[1977] SCR 1 601 and Pulicherla Nagaraju @Nagaraja Reddy v. State of Andhra Pradesh (2006) 11SCC 444 : [2006] 4 Suppl. SCR 633 – relied on.

3. The requirement of Section 300 IPC thirdly is fulfilled if Fthe prosecution proves that the accused inflicted an injury whichwould been sufficient to have resulted in death of the victim.The determinative fact would be the intention to cause such injuryand what was the degree of probability (gravest, medium, or thelowest degree) of death which determines whether the crime isculpable homicide or murder. [Para 18][256-E]G

4. The case law on the issue of the nature of injury being sodangerous as to result in death (Section 300 fourthly), haveemphasised on the accused’s disregard to the consequences ofthe injury, and an element of callousness to the result, whichdenotes or signifies the intention. [Para 19][256-F]

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State of Madhya Pradesh v. Ram Prasad, [1968] 2 SCR522 and Santosh S/o. Shankar Pawar v. State ofMaharashtra (2015) 7 SCC 641 : [2015] 4 SCR 962–relied on.

5. In the present case, there is no difficulty in acceptingthe concurrent findings that are firstly, the appellants wereaggressors; secondly, they attacked the deceased, with axes;thirdly, the deceased was unarmed; fourthly, during the attack,the victim’s daughter, PW1 reached the spot, and tried to dissuadethe appellants; fifthly, the appellants continued their assault onthe victim and also attacked the witness with an axe; sixthly, sincethree injuries sustained by the appellant, were on the head, hefell down; seventhly, the victim was rushed to the hospital, andhad to be shifted to another speciality hospital, for surgery.Eighthly, the deceased was not able to record his statement; hewas never discharged and died in the hospital, after 20 days.Lastly, the doctor who conducted the post-mortem (PW-14),stated that the injuries were caused by a hard and blunt object,and death of the deceased was due to cardio respiratory failure“as a result of multiple injuries on his body and their complications”.Apart from the head, there were several other injuries, in theform of abrasions, contusions on the elbow, the lower back,fracture of rib cage, etc. [Para 20][257-F-H; 258-A-B]

6. Then, the issue is whether in this case the factual matrixis covered by Exception 4 of Section 300. It is clear that thetestimonies of the two important eyewitnesses, PW1 and PW2,establish that when the deceased was levelling the septic tankon his property, the accused/appellants started abusing him; heasked them not to. The appellants, who were in the adjacentproperty, climbed the wall, entered the deceased’s house, andattacked him with axes. These facts do not constitute a “suddenquarrel”, given that the appellants abused the deceased, in anunprovoked manner, and then they went to where he was, armedwith axes, and assaulted him. Arguendo, even if the facts areassumed to disclose that there was a sudden fight, it cannot besaid that the accused failed to act in a cruel manner, or did nottake undue advantage. This is because they were armed: a factwhich shows pre-meditation on their part. Moreover, they both A

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Aattacked the victim on the head, which is a vital part of the body,thus taking undue advantage of their situation. It is also, likewise,not clear whether the deceased said anything to the appellantswhich triggered their ire, leading to loss of self-control as to resultin “grave and sudden provocation”. [Paras 22 and 24][258-D-G;260-B]B

K.M. Nanavati v. State of Maharashtra 1962 SCRSuppl. (1) 567- relied on.

7. Several judgments emphasize that a lapse of time,(between the attack and death) would not per se constitute aCdeterminative factor as to diminish the offender’s liability fromthe offence of murder to that of culpable homicide, not amountingto murder. There can be no stereotypical assumption or formulathat where death occurs after a lapse of some time, the injuries(which might have caused the death), the offence is one of culpablehomicide. Every case has its unique fact situation. However, whatDis important is the nature of injury, and whether it is sufficient inthe ordinary course to lead to death. [Para 25 and 26][260-D,E-F]

Om Parkash v. State of Punjab, [1992] 3 SCR 921;Patel Hiralal Joitaram v. State of Gujarat 2002 (1) SCCE22 : [2001] 4 Suppl. SCR 378 and Sudershan Kumar v.State of Delhi, 1975 (3) SCC 831 : [1975] 2 SCR 520– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2025 of 2022

From the Judgment and Order dated 20-02-2019 of the High CourtOf Chhattisgarh at Bilaspur in CRA No. 178/2013.

Ravi Prakash Mehrotra, Sr. Adv., Apoorv Srivastava, Jogy Scaria,Advs. for the Appellants.

Sourav Roy, Dy. AG, Mahesh Kumar, Kaushal Sharma, NikhileshKumar, Ms. Devika Khanna, Mrs. V. D. Khanna, Vmz Chambers, Advs.for the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. This appeal, by special leave, arises from the judgment andorder of the Chhattisgarh High Court[1], affirming the conviction recorded,and the sentence imposed, upon the present appellants.

2. The State of Chhattisgarh (hereafter “the state”) prosecutedthe appellants in relation to an incident, leading to the death of oneVrindawan. The prosecution’s allegation was that the appellant/accusedand Vrindawan, the deceased, were cousins. On the afternoon of28.02.2012, when the deceased was getting his land levelled through aJCB machine, the appellants reached the place and attacked him.Vrindawan sustained several injuries including head injuries. He wastaken to the hospital and was examined by Dr. Bhageshwar Patel (PW11).As serious head injuries were involved Vrindawan was operated uponby Dr. S.N. Madhariya (PW15). However, Vrindawan could not surviveand died on 22.03.2012. Dr. S.K. Bagh (PW14) conducted the post-mortem and in his report (Ex. P-28), stated that death was caused byinjuries sustained by the deceased on the head.

3. The police registered a case under Section 302 read with 34Indian Penal Code (hereafter “IPC”) against all accused, based on afirst information report (hereafter ‘FIR’) lodged by Aarti Pradhan (PW1)the deceased Vrindawan’s daughter. The FIR (Ex. P-1) alleged that theappellants reached the spot, abused Vrindawan and then assaulted him.The allegation against A-1 Prasad Pradhan was that he was armed withan axe and attacked the deceased on the head. Against A-2 LingrajPradhan, the allegation was that he was armed with an axe and had1 Dated 20.02.2019 in Cr. A. No. 178/2013

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Aassaulted the deceased on the legs. Regarding the third accused person- Soudagar Pradhan, who is grandson of A-1 and son of A-2, the allegationwas that he went to the spot and caught hold of the deceased. SoudagarPradhan, however, is not an appellant before this court.

4. After the final report was filed, the trial court charged all threeBaccused persons of sharing common intention and then committing themurder of Vrindawan – they were charged for offences under Section294, 323 read with 34, 302 read with 34, IPC. The appellants, havingabjured guilt, were put to trial. The prosecution examined as many as 15witnesses. Aarti Pradhan (PW1), Narrotam (PW2), Safed Pradhan(PW3), Rukni (PW4), Ayodhya Bai (PW5) and Navin Sahu (PW6) areCrelatives of the deceased. The appellants examined two defencewitnesses. The court held all the appellants guilty of commission of theoffence alleged against them and sentenced them: life imprisonment, forthe offence of murder, and six months rigorous imprisonment for theoffence under Section 323 IPC. The appellants’ appeal before the HighDCourt was partly allowed by the impugned judgment. The High Courtacquitted Soudagar Pradhan on both counts, but affirmed the convictionand sentence of the present appellants (A1 and A2). They are, resultantly,before this court.

Contentions of the appellantsE

Arguments

Contentions of the appellantsE

5. The appellants argue that the prosecution evidence ought to bediscarded. The credibility of the three eyewitnesses is impeached, asthey were related to the deceased and further, according to the appellants,their statements otherwise suffer from material contradictions and areimplausible. Learned counsel submitted that taken as a whole, theFevidence cannot lead one to conclude that the finding of common intentionis made out. Learned counsel argued that the dispute arose in a flash,suddenly at the spot when the deceased -Vrindawan started getting thedisputed land levelled, due to which the appellants (who lived in thesame locality in adjacent houses) went out of their houses, and allegedlyassaulted the deceased. Therefore, in these circumstances, it is argued,Gthe appellants are liable only to the extent of their individual overt acts.It was argued alternatively, that the incident happened all of a suddenand without premeditation. The appellants had no intention to cause deathbut deter Vrindawan from doing any activity on the disputed land.Therefore, the conviction of the appellants may not travel beyond Section304 Part-II IPC.H

6. Learned counsel for the appellants also argues that the deathof Vrindawan took place after about 20 days of the incident on accountof complication in the surgery and it cannot be said that the cause ofdeath was injury as the prosecution could not prove that injury caused tothe deceased, in ordinary course of nature, was sufficient to cause death.Learned counsel highlighted that the injury caused by the appellants,particularly the head injury, was stitched in and had healed. Learnedcounsel emphasized that Vrindawan died as a result of cardio-respiratoryfailure, as stated by PW14. Such being the case, the finding of the courtsbelow that the appellants were guilty of the offence of Section 302 IPCwas clearly in error of law. It was argued that arguendo, if theprosecution could be said to have proved the attack by the appellants onthe deceased, the cause of death neither being immediate nor a directresult of it, there is no question of the ingredients of the offence ofmurder under Section 302 IPC having been proved beyond reasonabledoubt.

7. It was submitted that taken together, the appellants could, atthe highest, be convicted of the offence of culpable homicide notamounting to murder under Section 304 Part I IPC since it was neithertheir intention to kill the deceased nor was the injury sufficient to causedeath in the ordinary course of nature – which was borne out by thecircumstance of him surviving the attack for 20 days. It was submittedthat the appellants should be granted the benefit of a modified convictionto one, under that provision. Justifying the submission, the learned counselstated that there was a prior history of disputes between the appellantsand the deceased. The deceased’s conduct in calling for a heavy JCBmachine, to get the tank on the property repaired, was a suddenprovocation, given the history of bad blood, which the prosecution witnessPW1 in fact, deposed to. Therefore, the exception to Section 300 IPCwas attracted to the facts of this case.

8. It was submitted that the High Court erred in failing to give thebenefit of doubt to the appellants, in the manner that it did to the thirdaccused - Soudagar Pradhan. It was contended that the evidence andmaterials in respect of his alleged involvement were the same as in thecase of the appellants; therefore, they too, were entitled to be treated ina like manner and acquitted.

Contentions of the state/respondent

9. It was argued, on behalf of the state, that the concurrent findingsof the courts below - as well as the sentence imposed, do not call for A

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Ainterference, as they do not contain any glaring infirmity or error. Learnedcounsel relied on the depositions by the two doctors and also highlightedthat the victim never recovered from his injuries; he was not even in aposition to record a statement. It was also argued that for the entireduration that the victim was alive after the incident, he was in the hospital,where he never recovered and died there itself.B

10. It was argued that the credibility of PW1 as an eyewitnesscannot be questioned; she was, in fact, also a victim of the attack andhad received injuries on her leg, due to an axe blow given by one of theaccused/appellants. Likewise, learned counsel stated that PW2, anotherbrother of the deceased, had corroborated the evidence of PW1 on allCmaterial aspects. He had seen both accused, armed in the manner deposedto by PW1, attacking the deceased. Further, PW3, the wife of thedeceased also corroborated the testimonies of the other two witnesses.Though she did not witness the actual assault, she had seen the twoappellants armed with axes. PW4, sister-in-law of PW3, too, deposedDthat Vrindawan was attacked by the accused whilst he was engaged incleaning near the septic tank and that the two appellants attacked himwith axes.

11. Learned counsel argued that the medical examination of thedeceased was conducted by Dr. Bhageshwar Patel (PW11), whoEprepared the medical report (Ex. P-21). The Surgeon, Dr. S.N.Madhariya (PW15) deposed that the back of the deceased’s skull wasbroken and was operated upon. Dr. S.K. Bagh (PW14), who conductedpost-mortem, clearly stated regarding cause of the death, in the presentcase, which pointed out to cardio- respiratory failure, due to multipleinjuries. In the cross examination, the appellants could not elicit from theFwitness that the injury caused to the deceased in the ordinary course ofnature was insufficient to cause death or that the death occurred due tosurgical complication and not because of injury.

12. Learned counsel for the state relied on this court’s decisionsin Sudershan Kumar v. State of Delhi[2], State of Rajasthan v. ArjunGSingh & Ors.[3], State of Rajasthan v. Kanhaiya Lal[4], and State ofRajasthan v. Leela Ram[5]to urge that the facts of this case, do not 2 1975 (3) SCC 8313 2011 (9) SCC 1154 2019 (5) SCC 639H5 2019 (13) SCC 131

support the appellants’ contention that the offence of culpable homicideunder Section 304 Part II is made out. It was submitted that the pre-existing dispute, in this case, could not be said to constitute a “grave andsudden” provocation. Further, the circumstance that the victim survivedfor some length of time, ipso facto is an irrelevant factor since theprosecution established that the cause of the death was directly linked tothe injuries sustained, which in turn were inflicted by the appellants.

13. Learned counsel submitted that Exception 4 to Section 300IPC is clearly not attracted in the facts of this case because the appellantshad, in fact, behaved in an unusual and cruel manner and also took undueadvantage of the situation because they were fully armed, and inflictedserious injuries upon the deceased, who was neither armed nor provokedthem.

Analysis and conclusions

14. In this case, the nature of the attack by the appellants and thequality of eyewitness testimony of prosecution witnesses, especially PW1to PW5, cannot be doubted. This court is of the opinion that thecircumstance that most of the witnesses were related to the deceaseddoes not per se exclude their testimony. The test of credibility or reliabilitywhen applied, is fully satisfied in respect of the strength of theirtestimonies. Although PW1 is the deceased’s daughter, that is insufficientto doubt the veracity of what she recounted during the trial, which is thatshe saw the appellants attack her father with axes. She tried to interveneand save the deceased, upon which she was also given axe blows on herleg. There is no explanation on the part of the appellants as to why thewitness should depose falsely; nor is there any explanation as to howshe could have received her injuries. Most importantly, her testimony iscorroborated by PW2, PW3 and PW4. Therefore, this court is of theopinion that all the material aspects of the factual accusations againstthe appellants and how they attacked the deceased in an unprovokedmanner, cannot be doubted.

15. The question, then, is whether the appellants are guilty of theoffence of murder, punishable under Section 302, or whether they arecriminally liable under the less severe Section 304, IPC. As noted inseveral judgments, this question has engaged the courts for over a century.

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AThe distinction between these two is discernible in the manner they aredefined, under Section 299[6] IPC and Section 300[7] IPC. In a decision, 6 Section 299 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 theknowledge that he is likely by such act to cause death, commits the offence of culpablehomicide.BIllustrations (a) A lays slicks and turf over a pit, with the intention of thereby causing death, or withthe knowledge that death is likely to be thereby caused. Z believing the ground to befirm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowingit to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. HereB may be guilty of no offence; but A has committed the offence of culpable homicide.C(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush;A not knowing that he was there. Here, although A was doing an unlawful act, he wasnot guilty of culpable homicide, as he did not intend to kill B, or to cause death by doingan act that he knew was likely to cause death.

Explanation I.—A person who causes bodily injury to another who is labouring undera disorder, disease or bodily infirmity, and thereby accelerates the death of that other,Dshall be deemed to have caused his death.Explanation 2.—Where death is caused by bodily injury, the person who causes suchbodily injury shall be deemed to have caused the death, although by resorting to properremedies and skilful treatment the death might have been prevented.Explanation 3.—The causing of the death of child in the mother’s womb is not homicide.But it may amount to culpable homicide to cause the death of a living child, if any partof that child has been brought form, though the child may not have breathed or beenEcompletely born.

7 300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, ifthe 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 theoffender knows to be likely to cause the death of the person to whom the harm iscaused, or—

Thirdly.—If it is done with the intention of causing bodily injury to any personFand the bodily injury intended to be inflicted is sufficient in the ordinary courseof nature to cause death, or—

Fourthly.—If the person committing the act knows that it is so imminentlydangerous that it must, in all probability, cause death or such bodily injury as islikely to cause death, and commits such act without any excuse for incurring therisk of causing death or such injury as aforesaid.

GIllustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commitsmurder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause hisdeath, strikes him with the intention of causing bodily injury. Z dies in consequence ofthe blow. A is guilty of murder, although the blow might not have been sufficient in theHordinary course of nature to cause the death of a person in a sound state of health. But PRASAD PRADHAN & ANR. v. THE STATE OFCHHATTISGARH [S. RAVINDRA BHAT, J.]

if A, not knowing that Z is labouring under any disease, gives him such a blow as wouldnot in the ordinary course of nature kill a person in a sound state of health, here A,although he may intend to cause bodily injury, is not guilty of murder, if he did not intendto cause death, or such bodily injury as in the ordinary course of nature would causedeath.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of aman in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder,although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one ofthem. A is guilty of murder, although he may not have had a premeditated design to killany particular individual.

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

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender asan 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 theright of private defence.

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

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionallykills. Y, Z”s child. This is murder, in as much as the provocation was not given by thechild, and the death of the child was not caused by accident or misfortune in doing an actcaused by the provocation.

(b) Y gives grave and sudden provocation to, A, A, on this provocation, fires a pistol atY, neither intending nor knowing himself to be likely to kill Z, who is near him, but outof sight. A kills Z. Here A has not committed murder, but merely culpable homicide.(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by thearrest, and kills Z. This is murder, in as much as the provocation was given by a thingdone by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a wordof A’s deposition, and that A has perjured himself. A is moved to sudden passion by thesewords, and kills Z. This is murder.

(e) A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays holdof A to prevent him from doing so. A is moved to sudden and violent passion inconsequence, and kills Z. This is murder, in as much as the provocation was given bya thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intendingto take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand forthat purpose. B kills Z with the knife. Here B may have committed only culpable homicide,but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if the offender, in the exercise in goodfaith of the right of private defence of person or property, exceeds the power given to him A

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Awhich is now considered to be the locus classicus on the issue, VirsaSingh v. State of Punjab,[8]this court stated as follows:

“The prosecution must prove the following facts before it canbring a case under S. 300 ‘3rdly’. First, it must establish,quite objectively, that a bodily injury is present; secondly theBnature of the injury must be proved. These are purely objectiveinvestigations. It must be proved that there was an intentionto inflict that particular injury, that is to say that it was notaccidental or unintentional or that some other kind of injurywas intended. Once these three elements are proved to bepresent, the enquiry proceeds further, and, fourthly it must beCproved that the injury of the type just described made up ofthe three elements set out above was sufficient to cause deathin the ordinary course of nature. This part of the enquiry ispurely objective and inferential and has nothing to do withthe intention of the offender.”

Dby law and causes the death of the person against whom he is exercising such right ofdefence without premeditation, and without any intention of doing more harm than isnecessary for the purpose of such defence.Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A drawsout a pistol. Z persists in the assault. A believing in good faith that he can by no otherEmeans prevent himself from being horsewhipped, shoots Z dead. A has not committedmurder, but only culpable homicide.Exception 3.—Culpable homicide is not murder if the offender, being a public servant oraiding a public servant acting for the advancement of public justice, exceeds the powersgiven to him by law, and causes death by doing an act which he, in good faith, believesto be lawful and necessary for the due discharge of his duty as such public servant andwithout ill-will towards the person whose death is caused.FException 4.—Culpable homicide is not murder if it is committed without premeditationin a sudden fight in the heat of passion upon a sudden quarrel and without the offenderhaving taken undue advantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the provocation orcommits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose death is caused,being above the age of eighteen years, suffers death or takes the risk of death with hisGown consent.”Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commitsuicide. Here, on account of Z”s youth, he was incapable of giving consent to his owndeath; A has therefore abetted murder.8 [1958] S.C.R. 1495

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16. In State Of Andhra Pradesh v. Rayavarapu Punnayya &Anr.[9] another oft- cited judgment, this court observed as follows:

“Clause (b) of Section 299 corresponds with clauses (2) and(3) of Section 300. The distinguishing feature of the mens rearequisite under clause (2) is the knowledge possessed by theoffender regarding the particular victim being in such apeculiar condition or state of health that the internal harmcaused to him is likely to be fatal, notwithstanding the factthat such harm would not in the ordinary way of nature besufficient to cause death of a person in normal health orcondition. It is noteworthy that the “intention to cause death”is not an essential requirement of clause (2). Only the intentionof causing the bodily injury coupled with the offender’sknowledge of the likelihood of such injury causing the deathof the particular victim, is sufficient to bring the killing withinthe ambit of this clause. This aspect of clause (2) is borne outby Illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any suchknowledge on the part of the offender. Instances of casesfalling under clause (2) of Section 300 can be where theassailant causes death by a fist blow intentionally givenknowing that the victim is suffering from an enlarged liver, orenlarged spleen or diseased heart and such blow is likely tocause death of that particular person as a result of the ruptureof the liver, or spleen or the failure of the heart, as the casemay be. If the assailant had no such knowledge about thedisease or special frailty of the victim, nor an intention tocause death or bodily injury sufficient in the ordinary courseof nature to cause death, the offence will not be murder, evenif the injury which caused the death, was intentionally given.In clause (3) of Section 300, instead of the words “likely tocause death” occurring in the corresponding clause (b) ofSection 299, the words “sufficient in the ordinary course ofnature” have been used. Obviously, the distinction liesbetween a bodily injury likely to cause death and a bodilyinjury sufficient in the ordinary course of nature to causedeath. The distinction is fine but real, and, if overlooked,may result in miscarriage of justice. The difference between ABC

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clause (b) of Section 299 and clause (3) of Section 300 isone of the degree of probability of death resulting from theintended bodily injury. To put it more broadly, it is the degreeof probability of death which determines whether a culpablehomicide is of the gravest, medium or the lowest degree. Theword “likely” in clause (b) of Section 299 conveys the senseof “probable” as distinguished from a mere possibility. Thewords “bodily injury … sufficient in the ordinary course ofnature to cause death” mean that death will be the “mostprobable” result of the injury, having regard to the ordinarycourse of nature.

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For cases to fall within clause (3), it is not necessary that theoffender intended to cause death, so long as the death ensuesfrom the intentional bodily injury or injuries sufficient tocause death in the ordinary course of nature. Rajwant v. Stateof Kerala [AIR 1966 SC 1874: 1966 Supp SCR 230: 1966Cri LJ 1509.] is an apt illustration of this point.”

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The court then quoted the decision in Virsa Singh (supra), andheld that:

“Thus according to the rule laid down in Virsa Singh’s case(supra) even if the intention of accused was limited to theinfliction of a bodily injury sufficient to cause death in theordinary course of nature and did not extend to the intentionof causing death, the offence would be murder. Illustration(c) appended to S. 300 clearly brings out this point.

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Clause (c) of S. 299 and clause (4) of S. 300 both requireknowledge of the probability of the causing death. It is notFnecessary for the purpose of this case to dilate much on thedistinction between these corresponding clauses. It will besufficient to say that cl. (4) of S. 300 would be applicablewhere the knowledge of the offender as to the probability ofdeath of a person or persons in general—as distinguishedfrom a particular person or persons—being caused from hisGimminently dangerous act, approximates to a practicalcertainty. Such knowledge on the part of the offender mustbe of the highest degree of probability, the act having beencommitted by the offender without any excuse for incurringthe risk of causing death or such injury as aforesaid.”

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A later decision, Pulicherla Nagaraju @ Nagaraja Reddy v.State of Andhra Pradesh[10]considered these aspects and held that:

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“29. Therefore, the Court should proceed to decide the pivotalquestion of intention, with care and caution, as that will decidewhether the case falls under Section 302 or 304 Part I or304 Part II. Many petty or insignificant matters plucking of afruit, straying of cattle, quarrel of children, utterance of arude word or even an objectionable glance, may lead toaltercations and group clashes culminating in deaths. Usualmotives like revenge, greed, jealousy or suspicion may betotally absent in such cases. There may be no intention. Theremay be no premeditation. In fact, there may not even becriminality. At the other end of the spectrum, there may becases of murder where the accused attempts to avoid thepenalty for murder by attempting to put forth a case that therewas no intention to cause death. It is for the courts to ensurethat the cases of murder punishable under Section 302, arenot converted into offences punishable under section 304 PartI/II, or cases of culpable homicide not amounting to murderare treated as murder punishable under Section 302. Theintention to cause death can be gathered generally from acombination of a few or several of the following, among other,circumstances; B

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(i) nature of the weapon used;(ii)whether the weapon was carried by the accused or waspicked 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;F(v)whether the act was in the course of sudden quarrel orsudden fight or free for all fight;(vi)whether the incident occurs by chance or whether therewas any premeditation;(vii)whether there was any prior enmity or whether theGdeceased 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; 10 (2006) 11 SCC 444

A(x)whether the person inflicting the injury has taken undueadvantage or has acted in a cruel and unusual manner;(xi)whether the accused dealt a single blow or severalblows.

The above list of circumstances is, of course, not exhaustiveBand there may be several other special circumstances withreference to individual cases which may throw light on thequestion of intention.”

17. The question in cases, like the present one is, therefore, whetherthe injury caused due to the attack is one which falls within the descriptionof Section 300 thirdly (“If it is done with the intention of causingCbodily injury to any person and the bodily injury intended to beinflicted is sufficient in the ordinary course of nature to causedeath”) or if it falls within the mischief of Section 300 fourthly (“If theperson committing the act knows that it is so imminently dangerousthat it must, in all probability, cause death or such bodily injury asDis likely to cause death, and commits such act without any excusefor incurring the risk of causing death or such injury as aforesaid”).

18. The requirement of Section 300 thirdly is fulfilled if theprosecution proves that the accused inflicted an injury which would beensufficient to have resulted in death of the victim. The determinative factwould be the intention to cause such injury and what was the degree ofEprobability (gravest, medium, or the lowest degree) of death whichdetermines whether the crime is culpable homicide or murder.

19. The case law on the issue of the nature of injury being sodangerous as to result in death (Section 300 fourthly), have emphasisedon the accused’s disregard to the consequences of the injury, and anFelement of callousness to the result, which denotes or signifies theintention. In State of Madhya Pradesh v. Ram Prasad,[11]this courtheld that:

“Although Clause fourthly is usually invoked in those caseswhere there is no intention to cause the death of any particularperson (as the illustration shows) the Clause may on its termsGbe used in those cases where there is such callousness towardsthe result and the risk taken is such that it may be stated thatthe person knows that the act is likely to cause death or suchbodily injury as is likely to cause death. In the present case,Ram Prasad poured kerosene upon the clothes of Mst. Rajji H11 1968 (2) SCR 522

and set fire to those clothes. It is obvious that such fire spreadsrapidly and burns extensively. No special knowledge is neededto know that one may cause death by burning if he sets fire tothe clothes of a person. Therefore, it is obvious that RamPrasad must have known that he was running the risk ofcausing the death of Rajji or such bodily injury as was likelyto cause her death. As he had no excuse for incurring thatrisk, the offence must be taken to fall within 4thly of Section300, Indian Penal Code. In other words, his offence wasculpable homicide amounting to murder even if he did notintend causing the death of Mst. Rajji. He committed an actso imminently dangerous that it was in all probability likely tocause death or to result in an injury that was likely to causedeath. We are accordingly of the opinion that the High Courtand the Sessions Judge were both wrong in holding that theoffence did not fall within murder.”

Similarly, three Judges of this Court, in Santosh S/o. ShankarPawar v. State of Maharashtra[12]observed, “13. Even assuming that the Accused had no intention to causethe death of the deceased, the act of the Accused falls underClause Fourthly of Section 300 Indian Penal Code that is theact of causing injury so imminently dangerous where it will inall probability cause death. Any person of average intelligencewould have the knowledge that pouring of kerosene andsetting her on fire by throwing a lighted matchstick is soimminently dangerous that in all probability such an act wouldcause injuries causing death.”

20. Turning back to the facts of this case, the concurrent findingswhich this court sees no difficulty in accepting are that firstly, theappellants were aggressors; secondly, they attacked the deceased, withaxes; thirdly, the deceased was unarmed; fourthly, during the attack,the victim’s daughter, PW1 reached the spot, and tried to dissuade theappellants; fifthly, the appellants continued their assault on the victimand also attacked the witness with an axe; sixthly, since three injuriessustained by the appellant, were on the head, he fell down; seventhly,the victim was rushed to the hospital, and had to be shifted to anotherspeciality hospital, for surgery. Eighthly, the deceased was not able torecord his statement; he was never discharged and died in the hospital, AB

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Aafter 20 days. Lastly, the doctor who conducted the post-mortem (PW-14), stated that the injuries were caused by a hard and blunt object, anddeath of the deceased was due to cardio respiratory failure “as a resultof multiple injuries on his body and their complications”. Apartfrom the head, there were several other injuries, in the form of abrasions,contusions on the elbow, the lower back, fracture of rib cage, etc. At theBtime of death, Vrindawan was aged 55 years.

21. There is evidence in the form of statements of both PW1(Vrindawan’s daughter) and PW2 (Vrindawan’s brother, Narottam) thatthe deceased and the appellants had pre-existing disputes. However,both these witnesses corroborated each other and stated that the quarrelCor dispute pertained to land had existed for a long time. PW2, in fact,stated that partition of properties had taken place amongst the brothers,despite which these quarrels had persisted.

22. The question then is - was there a “sudden quarrel” betweenthe deceased and the appellants so that the case would not be murder,but culpable homicide, in terms of Exception 4 (“if it is committed withoutDpremeditation in a sudden fight in the heat of passion upon a suddenquarrel and without the offender having taken undue advantageor acted in a cruel or unusual manner”). In the opinion of this court,there was no “sudden quarrel”. The testimonies of the two importanteyewitnesses, PW1 and PW2, establish that when the deceased wasElevelling the septic tank on his property, the accused/appellants startedabusing him; he asked them not to. The appellants, who were in theadjacent property, climbed the wall, entered the deceased’s house, andattacked him with axes. These facts do not constitute a “sudden quarrel”,given that the appellants abused the deceased, in an unprovoked manner,and then they went to where he was, armed with axes, and assaultedFhim. Arguendo, even if the facts are assumed to disclose that there wasa sudden fight, it cannot be said that the accused failed to act in a cruelmanner, or did not take undue advantage. This is because they werearmed: a fact which shows pre-meditation on their part. Moreover, theyboth attacked Vrindawan on the head, which is a vital part of the body,Gthus taking undue advantage of their situation.

23. Again, on the question of whether the facts of this case arecovered by the first exception to Section 300, i.e., that the accused/appellants did what they were accused of (which is to attack and inflictgrave injuries that led to the death of Vrindawan), because of their lossof self-control, on account of a grave and sudden provocation – theHanswer must be the same, which is that the provision (Exception 1 to

Section 300) cannot be attracted. Apart from a long-standing pre- existingdispute, what caused “sudden” provocation to the appellants, has notbeen shown by them. Neither did they lead any evidence, to fall withinException 1, nor did the evidence on record substantiate such a contention.Speaking of what is grave and sudden provocation, this court in K.M.Nanavati v. State of Maharashtra[13]explained the standard ofreasonableness for applying the “grave and sudden” provocation, in thefollowing manner:

“84. Is there any standard of a reasonable man for theapplication of the doctrine of “grave and sudden”provocation? No abstract standard of reasonableness can belaid down. What a reasonable man will do in certaincircumstances depends upon the customs, manners, way oflife, traditional values etc.; in short, the cultural, social andemotional background of the society to which an Accusedbelongs. In our vast country there are social groups rangingfrom the lowest to the highest state of civilization. It is neitherpossible nor desirable to lay down any standard withprecision: it is for the court to decide in each case, havingregard to the relevant circumstances. It is not necessary inthis case to ascertain whether a reasonable man placed inthe position of the Accused would have lost his self-controlmomentarily or even temporarily when his wife confessed tohim of her illicit intimacy with another, for we are satisfied onthe evidence that the Accused regained his self-control andkilled Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may bestated thus: (1) The test of “grave and sudden” provocationis whether a reasonable man, belonging to the same class ofsociety as the Accused, placed in the situation in which theAccused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, undercertain circumstances, cause grave and sudden provocationto an Accused so as to bring his act within the First Exceptionto Section 300 of the Indian Penal Code. (3) The mentalbackground created by the previous act of the victim may betaken into consideration in ascertaining whether thesubsequent act caused grave and sudden provocation forcommitting the offence. (4) The fatal blow should be clearlytraced to the influence of passion arising from that A

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Aprovocation and not after the passion had cooled down bylapse of time, or otherwise giving room and scope forpremeditation and calculation”

24. If one were to apply the above tests to the present case, whatis evident is that while there were pre-existing disputes of some vintage,between the appellants and the deceased, there is nothing to show thatBthey had been aggravated. It is also, likewise, not clear whether thedeceased said anything to the appellants which triggered their ire, leadingto loss of self-control as to result in “grave and sudden provocation”. Inany case, if there were something, the appellants ought to have broughtthe relevant material or evidence on record, as what facts did exist, waswithin their peculiar knowledge.C

25. During the hearing, the appellants counsel had urged thatVrindawan died 20 days after the attack, and the lapse of such a timeshows that the injuries were not sufficient to cause death in the ordinarycourse of nature. On this aspect, there are several judgments, whichemphasize that such a lapse of time, would not per se constitute adeterminative factor as to diminish the offender’s liability from the offenceDof murder to that of culpable homicide, not amounting to murder. In OmParkash v. State of Punjab,[14] the death occurred 13 days after theattack; the accused was convicted of murder. Similarly, in Patel HiralalJoitaram v. State of Gujarat,[15]the death occurred a fortnight after theattack, and in Sudershan Kumar (supra), the death occurred 12 daysafter the attack.E26. There can be no stereotypical assumption or formula that where

26. There can be no stereotypical assumption or formula that wheredeath occurs after a lapse of some time, the injuries (which might havecaused the death), the offence is one of culpable homicide. Every casehas its unique fact situation. However, what is important is the natureof injury, and whether it is sufficient in the ordinary course to leadto death. The adequacy or otherwise of medical attention is not a relevantFfactor in this case, because the doctor who conducted the post-mortemclearly deposed that death was caused due to cardio respiratory failures,as a result of the injuries inflicted upon the deceased. Thus, the injuriesand the death were closely and directly linked.

27. In view of the above discussion, this court is of the opinionthat there is no infirmity in the impugned judgment. The conviction andGsentence imposed on the appellants do not therefore, call for interference.The appeal is consequently dismissed, without order on costs.

Bibhuti Bhushan Bose(Assisted by : Kritika, LCRA)

14 1992 (3) SCR 921

H15 2002 (1) SCC 22

Appeal dismissed.