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loyallogic · 5 years ago

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Subsequent Prosecution of Public Servants for Want of Sanction – Double Jeopardy?

This article is written by Gaurav Thote, an advocate. In this article, the author has discussed the doctrine of double jeopardy and the prosecution of public servants.

Introduction

The Doctrine of Double Jeopardy is based on the maxim ‘Nemo Debet Bis Vexari’ which essentially translates as ‘no person should be twice vexed for the same offence’. To quote the Apex Court in State v. Nalini, “The well-known maxim “nemo debet bis vexari pro eadem causa” (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence.”

Article 20 (2) of the Constitution of India incorporates within its scope the plea of “autrefois convict” which is based on the Doctrine of Double Jeopardy stating-

“20. Protection in respect of conviction for offences–

(2) No person shall be prosecuted and punished for the same offence more than once.”

Double Jeopardy under the Code of Criminal Procedure-

Section 300 of CrPC is based on Article 20(2) of the Constitution of India and additionally incorporates the application of “autrefois acquit” which essentially denotes a previous acquittal. Section 300 of the CrPC states-

“300. Person once convicted or acquitted not to be tried for same offence–

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-Section (1) of section 221, or for which he might have been convicted under Sub-Section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-Section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10-of-1897) or of section 188 of this Code.”

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In addition to Section 300 of CrPC, it would be imperative to refer to Section 386 of CrPC, which contemplates powers of the Appellate Court to order a re-trial in certain cases. Nevertheless, it is clear that a person tried for any offence cannot be prosecuted, convicted, and/or punished more than once for the same offence except as contemplated in Sections 300 and 386(a), (b), and (c) [in case of Appeals] of CrPC.

Prosecution of Public Servants

The law is equally applicable to all. Just like any other individual, a public servant committing an offence must face prosecution. The ambit of “Public Servants” is enumerated under Section 21 of IPC essentially asseverating a Public Servant to include any person employed directly or indirectly by the Government. On account of their role in State affairs and the duties/responsibilities that ensue, public servants stand on a different footing and require protection as against any attack levelled on them in discharge of their official duties. In The Prevention of Corruption Act, 1988 protection against prosecution is provided to Public Servants under Section 19 of the Act. In general statutes, protection against prosecution is provided to Public Servants by virtue of Section 197 of the CrPC, a bare perusal of which reads as under-

“197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause-(b) during the period while a Proclamation issued under clause-(1) of article-356 of the Constitution was in force in a State, clause-(b) will apply as if for the expression” State Government” occurring therein, the expression” Central Government” were substituted.

(2) ….

(3) ….

(3A) ….

(3B) ….

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”

Question/Issue of Sanction

The Apex Court in Devinder Singh v. State of Punjab, while holding previous sanction inessential in a fake encounter case, held-

“VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.”

The question of sanction, thus, could arise at a post cognizance/appellate stage which may include the stage of:

(i) framing of charges, (ii) evidence, (iii) final arguments and/or (iv) conclusion of trial/appeal.

In this backdrop, the following questions arise:

Would the issue of sanction be a curable defect?

If the issue of sanction arises at a post-cognizance stage, would the trial be vitiated for want of sanction?

If proceedings are terminated for want of sanction at a post cognizance/appellate stage, can cognizance be taken afresh after obtaining previous sanction without violating the doctrine of double-jeopardy?

Analysis

In State v. B.L. Verma, the Apex Court upheld the decision of the High Court to quash the proceedings for want of sanction as previous sanction was observed to be necessary to prosecute the accused. However, before parting with the order, the Court observed that it would be perfectly valid and open for the Petitioner to activate prosecution if such sanction was obtained. The Court went on to observe-

“The High court has rightly found that that would not oust the necessity of sanction under Section 197 Criminal Procedure Code to take cognizance of the offence. The expression “no court shall take cognizance of such offence except with the previous sanction” occurring in Section 197 Criminal Procedure Code unmistakably shows that the bar on-the exercise of powers by the court to take cognizance is mandatory and the previous sanction from the competent authority for prosecution of the public servant, who is accused of having committed an offence either in the execution of his duties or in the purported execution of his duties is essential to take cognizance. Thus in the absence of sanction under Section 197 Criminal Procedure Code the court of the Chief Metropolitan Magistrate could not have taken cognizance of the offence against the respondent and the High court, therefore, committed no error in directing the dropping of proceedings against him, in the absence of such a sanction.

HOWEVER, before parting with this order, we would like to clarify, lest there be any ambiguity, that the direction of the High court to drop the proceedings against the respondent was on account of want of sanction under Section 197 Criminal Procedure Code, and should the competent authority hereafter grant sanction under Section 197 Criminal Procedure Code, it will be perfectly valid and open to the petitioner herein to activate the prosecution against the respondent and the order of the High court dated 4/12/1996 or this order shall not come in the way of the court to take cognizance nor shall the orders come in the way of the competent authority to grant sanction under Section 197 Criminal Procedure Code, after considering the facts and circumstances of the case if the CBI applies for obtaining sanction. Nothing said hereinabove shall, however, be construed as any expression of opinion on the merits of the case, and the competent authority of the court as the case may be, shall decide the matter on its own merits.”

In State of Mizoram v. C.Sangnghina, the Apex Court while observing the principles of “double jeopardy” inapplicable to subsequent proceedings instituted with a valid sanction, set aside the decision of the High Court wherein the High Court affirmed the order of the Trial Court declining to take cognizance of a subsequent charge-sheet holding it to be barred under the principles of “double jeopardy”. The Court held-

“In the case in hand, the respondent/accused has not been tried nor was there a full-fledged trial. On the other hand, the order of discharge dated 12.09.2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent/accused was so discharged due to lack of proper sanction, the principles of “double jeopardy” will not apply. There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful.

In Mohammad Safi v. State of West Bengal a full-bench of the Apex Court held that although the prosecution and defence witnesses were examined alongwith the further accused being examined in the previous trial, the proceedings could not have been underpinned to a trial for want of competence of the Trial Court.

While holding the previous order of acquittal to be null and void, the Apex Court held that the subsequent trial and conviction was valid and not barred under the principles of “double jeopardy”.

The relevant para reads as under-

“From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was also examined under s. 342 cannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot in law operate as an acquittal.”

Although the aspect of sanction is not involved in the case of Mohammad Safi (supra), the sole purpose of referencing it is to perceive that proceedings before a Court incompetent to take cognizance of a matter would render such proceedings void.

Conclusion

The cumulative effect of findings above-mentioned help draw an inference that a Court taking cognizance without sanction, where such sanction is essential, would not be competent to try/proceed with the matter and the question of “jeopardy”, therefore, would not arise.

To answer (a), (b) and (c), the issue of sanction would be a curable defect and though the trial/proceedings would be vitiated for want of sanction, cognizance taken afresh after obtaining valid sanction is permissible and subsequent proceedings emanating from such cognizance would not violate the doctrine of Double-Jeopardy.

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siva3155 · 6 years ago

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300+ TOP FORENSIC MEDICINE Objective Questions and Answers

FORENSIC MEDICINE Multiple Choice Questions :-

1.Law does not consider the following doctrine in a charge of criminal negligence a) Vicarious liability b) Contributory negligence c) Resipsa loquitur d) Novus actus interveniens Ans:b 2.The following may be the examples of privileged communication except: a) An impotent person marrying b) A syphilitic taking bath in a public pool c) Engine driver found to be color blind d) Pilot having hypermetropia Ans:a 3.Which of the following sections of IPC are concerned with dowry death? a) 300 b)302 c)304 d)304-A e)304-B Ans:e 4.A civil wrong is known as: a) Mutatis mutandis b) Pari passu c) Tort d) Ultra wires Ans:c 5.A person is declared dead if he is not found for a) 2 years b) 7 years c) 15 years d) 30 years Ans:b 6.Professional death sentence is a) Imprisonment for whole life b) Rigorous imprisonment c) Erasing the name from the panel of RMPs d) None Ans:c 7.Normal courtesy of one doctor towards another is according to a) Medical etiquette b) Medical ethics c) Both d) None Ans:c 8.Patient of head injury, has no relatives, requires urgent cranial decompression Doctor should a) Operate without formal consent b) Take police consent c) Wait for relatives d) Take Ans:a 9.A doctor should not take fees for issuing certificate a) To a govt.employee b) Death certificate c) Poor patient d) Psychiatric patient Ans:b 10.McNaughten's rule: a) Section 84 b) Section 85 c) Section 86 d)Section87 Ans:a

FORENSIC MEDICINE MCQs 11.Disciplinary control over registered medical practitioners is under: a) Sate medical council b) Indian medical council c) Director of Medical and Health services d) Health secretary of state Government Ans:a 12. WTio can commute a death sentence: a)High court b) Supreme court c) President d) Any of the above Ans:d 13.Death sentence can be awarded by a)First class magistrate b) Second class magistrate c) Sessions court d) Chief judicial magistrate Ans:c 14. India, inquest is carried out by all except a)lice b) Coroner c) Doctor d) Magistrate Ans:c 15.Criminal responsibility in Indian constitution is included in IPC section: a)84 b)300 c)302 d)304 Ans:a 16.A boy attempts suicide, brought to PRIVATE doctor and he is successfully cured. Doctor should a) Inform police b) Not required to inform c) Report to magistrate d) Call up girl friend and ask her to make up Ans:b 17.Who can be considered as an expert witness: a) Medical men b) Firearm expert c) Chemical examiner d)All Ans:d 18.The power of Amnesty for capital punishment is vested with a) The president b) Supreme court c) High Court d) The Governor Ans:a 19.A cognizable offence signifies: a) Imprisonment upto 2 yrs b) Imprisonment upto 3 yrs + Rs. 1000 fine c) Arrest without warrant d) Only fine upto Rs. 1000 Ans:c 20.Conduct money is paid to expert witness with summons from: a) Civil Court b)Criminal Court c) High Court d) Sub Magistrate Ans:a 21.Leading questions are permitted only in a) Examination in chief b) Cross examination c) Dying declaration d) Re- examination Ans:b 22.For exhumation the order should be passed by a) Chief judicial magistrate b) Executive magistrate c) Police officer d) Sessions judge Ans:a 23.Which of the following is true about Oath? a) Not Compulsory , b) Compulsory and binds witness for evidence given c)Holds witness responsible for consequences of evidence d)Witness is liable for prosecution if he does not take oath Ans:b 24.In case of death in lock up, the inquest is held by: a) A police officer b) A Magistrate c) A panchayat officer d) District Attorney Ans:b 25.Death of a patient due to an unintentional act by doctor, staff or hospital is a) Therapeutic misadventure b) Vicarious liability c) Therapeutic privilege d) Diminished liability Ans:a 26.Medico legal autopsy required the permission of a) Relatives b) Medical Superintendent c) Police d) Magistrate Ans:c 27.An arrested person can request the magistrate for a medical examination of his body by a registered medical practitioner as per the following provision in the code of criminal procedure a) Section 53 b) Section 54 c) Section 56 d) Section 57 Ans:b 28.After post mortem exam body has to be handed over to a) Investigating police officer b) Relatives of victim c) Magistrate d) The civil authorities Ans:a 29.A quack gives a penicillin injection to a patient who dies due to it. Will the quack be relieved for his criminal responsibility by raising a plea of accident? a) Definitely b) Likely to c) Never d) Deserves to be acquitted on the strength of evidence Ans:c 30.The sentence awarded by a court may be enhanced by the: a) Magistrate court b) High court c) Higher court d) None of the above Ans:c 31.Negligence on the part of the father towards the son can be punished undersection a) 319 b)317 c)315 d)318 Ans:b 32.Which carries more weight in a court of law? a) Dying declaration b) Dying deposition c) Both carry the same weight d) Both are not significant Ans:b 33. Dying deposition is more important than dying declaration because it is a) Made to a magistrate b) Oath is taken c) Made in presence of accused d) Cross examination is permitted Ans:d 34.Doctor is a) Expert witness b) Common witness c)Both d) None Ans:c 35.The common type of inquest in India is: a) Coroner's inquest b) Police inquest c) Judicial magistrates inquest d) Medical examiner's inquest Ans:b 36. The inquiry into the circumstances of death is called: a) Homicide enquiry report b) Inquest repot c) Open verdict d) Adjourned verdict Ans:b 37. For dowry death punishment is: a) 3 year imprisonment + Rs. 10,000/- b) 5 year imprisonment + Rs. 15,000/- c) 7 year imprisonment + Rs.20,000/- d) 2 year imprisonment + Rs. 15,000/- Ans:b 38.Criminal responsibility of a person of unsound mind in India is incorporated in the Indian penal code: a) Section 32 b) Section 84 c) Section 85 d) Section 88 Ans:b 39. An order for exhumation can be given by: a) District collector b) Additional district magistrate c) Sub collector d) Any of the above Ans:b 40. Perjury is a) Willful utterance of falsehood b) Grievous injury c) Contributory negligence d) Criminal negligence Ans:a 41. Subpoena is a kind of: a) Decomposed body tissue b) Designation c) Document d) Court tribunal Ans:c 42.Dying declaration can be received by: a) Medical officer b) Lawyer c) Police officer d) All Ans:d 43.Exhumation can be done in India a) After 7 years b) After 2 years c) After 10 years d) At any time Ans:d 44.Repeated advertisement in newspaper by a medical practitioner is an example of a) Infamous conduct b) Ethical negligence c) Criminal negligence d) Privileged Communication Ans:b 45.According to IPC section 320, grievous hurt is a) Permanent privation of one eye b) Permanent privation of one joint c) Emasculation d) All of the above Ans:d 46.Exhumation is usually done in the: a) Early Morning b) Evening d) Any time c) Night Ans:a 47.Section 302 of Indian penal code is for: a) Rape b) Murder c) Grievous hurt d) Attempt to commit suicide Ans:b 48.Coroner's court is present at: a) Bombay b) Delhi c) Madras d) Bangalore e) Chandigarh Ans:a 49.Dying deposition is recorded by: a) Doctor b) Magistrate c) Police officer d) Lawyer Ans:b 50.Summons are served a) With penalty in criminal cases only b) With penalty in civil cases only c) With penalty in all cases d) Without penalty in any type of case Ans:c FORENSIC MEDICINE Objective type Questions with Answers 51. Professional secrecy can be divulged: a) If the doctor feels so b) On demand by a court c) Both d) None Ans:b 52. Medical certificate is: a) Documentary evidence b) Oral evidence c) Hearsay evidence d) Parole Ans:a 53. In case of death in lock up, the inquest is held by: a) A police officer b) A magistrate c) A panchayat officer d) District attorney Ans:b 54. In esse of malpractice punishment is given by a) State medical council b) MCI c)IMA d) High court Ans:a 55.All the following are the conditions of defense available for a doctor against allegation of negligence except a) Medical maloccurrence b) No fee for treatment charged c) Therapeutic misadventure d) Res Judicata e) Error of judgment Ans:b 56. Medico legal autopsy requires the permission of a) Police b) Magistrate c) Relatives d) Medical superintendent Ans:a 57. Grievous hurt is punishable under section a) 320 b)354 c)321 d)402 Ans:a 58. Criminal negligence is punishable under: a) 306 IPC b) 376 IPC c)304-AJPC d)304-BIPC Ans:c 59.Second molar erupts at a) 6 years b) 12 years c) 18 to 22 years d) 25 to 28 years Ans:b 60.Identical twins may not have a) Same DNA finger print b) Same finger print pattern c) Same blood group d) Same HLA system Ans:b 61.What is'DNA'finger printing a)Identification of a person finger printing by using genetic engineering method b)A record of a persons genetic make up c)Identification of persons by genetic analysis d) None of the above Ans:c 62.Skull of a male differs from that of a female by all of the following except a) Capacity greater than 1500 c.c b) Muscular markings over occiput are less marked c) Orbits square d) Frontal eminence small Ans:b 63.Eruption of temporary teeth will be completed by: a) One to one and half years b) Two to two and half years c) Three to four years d) Four to five years Ans:b 64.The age of a 15 year old female is best determined by the radiograph of: a) Lower end of Radius and Ulna b) Upper end of Humerus c) Upper end of radius and ulna d) Xiphisternum Ans:c 65.First finger loop bureau was established in a) London b) Paris c) Calcutta d) Madras Ans:c 66.Closure of coronal sutures starts at the age of: a) 20 years b) 21 years c) 30-35 years d) 50-60 years Ans:c 67.Brachiocephaly is due to fusion of a) Saggital suture b) Coronal suture c) Parietal suture d) Lambdoid suture Ans:b 68.Cephalic index is useful in determining a) Age c) Race d) Stature Ans:c 69.Union of epiphysis at the age of 17 occurs in: a) Head of femur b) Head of humerus c) Lower end of femur d) All the above Ans:b 70. 100% sure differentiation of s is possible by pelvic assessment of all except a) Subpubic angle b) Obturator foramen c) Preauricular sulcus d) Greater sciatic notch Ans:d 71. Foetal parts can be detected by X-ray usually by: a) 8 weeks b) 12 weeks c) 14 weeks d) 16 weeks Ans:d 72. To determine the age of a 16 year old girl which of the following is to be radiographed? a) Wrist b) Knee c) Ankle d) Elbow Ans:d 73.A girl of 10 years will have permanent and temporary teeth: a) 8,12 b)8,16 c) 12,12 d) 16,8 Ans:d 74. Multiplying factor of estimating stature from femur (male) is: a) 3.6-8.8 b) 4.1-4.8 c) 4.9-5.6 d) 5.8-6.2 Ans:a 75.If angle of mandible is obtuse it means that the bone belongs to a) Adult male b) Adult female c) Young female child d) Elderly person Ans:d 76. Best method for identification of a person is by a) Scars b) Blood group c) DNA Analysis d) Finger prints Ans:d 77.Super imposition technique is used in: a) Skull b) Pelvis c) Femur d)Ribs Ans:a 78.Patella completely ossify by the age of: a) 6 years b) 10 years c) 14 years d) 21 years Ans:c 79.Human hair differs from animal hair by that a) Cuticle has scales b) Medulla is thick c) Medulla is broader than cortex d) Pigment is central Ans:a 80.A female pelvis differs from male pelvis by that: a) Obtuse subpubic angle b) Broad greater sciatic foramen c) Broad lesser sciatic foramen d) Prominent muscle markings Ans:d 81.The center of ossification appears in the lower end of femur by a) 36 weeks of intrauterine life b) 34 weeks of intrauterine life c) 32 weeks of intrauterine life d) 30 weeks of intrauterine life Ans:a 82.Female pelvis is differentiated from male pelvis by a) Iliac crest b) Preauricular sulcus well marked c) Preauricular sulcus less differentiated d) Pubic symphysis Ans:b 83.Absent fragmented medulla in hair is seen in all except a) Negroid b) Aryans c) Mongoloids d) Caucasians Ans:a 84.Pre-auricular sulcus is used for: a) Determination of race b) Determination of age c) Determination of s d) None of the above Ans:c 85. Pure Aryans have which type of skull: a) Measticephalic b) Bradycephalic c) Dolicocephalic d) None of the above Ans:c 86.Pearson's formula is used for: a) Cephalic index b) Stature c) Race d) Age Ans:b 87.Best specimen of bone for s determination is a) Femur b) Pelvis c) Skull d) Mandible Ans:b 89.Which of the following is best for establishing identity a) Anthropometry b) Dactylography c) Hair examination d) Blood Ans:b 89. The period of mixed dentition is between the ages of a) 2-5 years b) 6-11 years c) 12-14 years d) 15-17 years Ans:b 90. Multiplying factor for estimating stature from humerus is (males): a) 10-12 b)5-6 c)7-9 d)9-10 Ans:b 91. Estimation of age examination of teeth is by a) Pearson's method b) Gustafson's method c) Galton's method d) Bertillon's method Ans:b 92. Most reliable method of identification of a person is a) Gustafson method b) Galton method c) Anthropometry d) Scars Ans:b 93. A child at the age of 7 years has how many teeth: a) 16 b)20 c)24 d)28 Ans:c 94.The most reliable bones for the purpose of medullary index are the following except: a) Humerus b) Tibia c) Radius d) Sternum Ans:d 95.Ossification centre appearing just hefjpre birth is: a) Lower end of femur b) Lower end of tibia c) Upper end of humerus d) Scaphoid Ans:a 96.To make a positive identification with the help of a partial finger point, the points of similarity should be at least: a) 10 b) 12 c)16 d)20 Ans:c 97.Best method to determine age upto ,14 years is a) Ossification centres b) Dentition c) Anthropometry d)head circumference Ans:b 98.Best method for identification of human is a) Blood grouping b) Dactylography c) Anthropometry d)gustafson'sformula Ans:b 99.Lower end of the femur can help to determine the: a) Age b) Height c) Weight d)stature Ans:a 100. Most common type of finger print is a) Loop b) Arch c) Composite d)whorl Ans:a FORENSIC MEDICINE Questions and Answers pdf Download Read the full article

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muralimohan · 6 years ago

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Exception 4 to Section 300 IPC is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. Therefore, in the facts and circumstances of the case, the High Court has materially erred in applying Exception 4 to Section 300 IPC by holding that it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of moment. Considering the material/evidence on record discussed hereinabove, we are of the firm opinion that the case falls underClause fourthly to Section 300 IPC and, therefore, the Trial Court was right in convicting the accused for the offence punishableunder Section 302 IPC, more particularly, when the accused fired from a countrymade firearm on the deceased from a close range. By the accused firing from a close range, the accused was supposed to know that it is so imminently dangerous that itmust, in all probability, cause death or such bodily injury as is likely to cause death.

1 REPORTABLE IN THE SUPREME COUR OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1670 OF 2019 [Arising out of SLP (Crl.) No. 1299 of 2016] Awadhesh Kumar .. Appellant Versus State of U.P. & Anr. .. Respondents J U D G M E N T M. R. SHAH, J.

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postolo · 7 years ago

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2018 SCC Vol. 7 September 7, 2018 Part 4

Arbitration Act, 1940 — Ss. 29 and 13 — Pendente lite interest: An arbitrator has the power to award interest unless specifically barred from awarding it; and the bar must be clear and specific. [Raveechee & Co. v. Union of India, (2018) 7 SCC 664]

Arbitration and Conciliation Act, 1996 — S. 34 r/w S. 5 — Award — Interference with, when the same causes injustice to either of the parties, contrary to terms of contract — When permissible: The parties are free to decide their own terms and conditions in case of a contract. Once respondent voluntarily agreed that no escalation would be reimbursed even in case of regulation before accepting the contract, respondent could not claim reimbursement of excess of minimum wages on account of hike due to the notification of Government. Further, any departure from the terms and conditions of the contract, unless such condition is arbitrary, would destroy the basic purpose of the contract. [Union of India v. Varindera Constructions Ltd., (2018) 7 SCC 794]

Companies Act, 2013 — S. 59 — RTI Circular No. 1 dt. 9-5-2001: Rectification of register, as opposed to filing of a civil suit to prove title over shares, permissible when fraud is perpetuated on the shareholder in possession of original share certificates by issuance of duplicate shares, without following proper procedure, in favour of impersonator. [Adesh Kaur v. Eicher Motors Ltd., (2018) 7 SCC 709]

Constitution of India — Arts. 26, 32, 35, 38, 49 and 51-A(f) & (g) — Jagannath Temple, Puri — Mismanagement and difficulties by visitors — Directions: Interim directions issued for management and upkeep of Shri Jagannath Temple at Puri. [Mrinalini Padhi v. Union of India, (2018) 7 SCC 785]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail — Whether should be for a limited period of time: Due to conflicting opinions of different Benches of Supreme Court, matter referred to larger Bench of Supreme Court for authoritative decision. [Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC 731]

Criminal Procedure Code, 1973 — Ss. 211 to 213 — Framing of charge — Proper framing of charge — Cardinality and necessity of — Explained: Accused persons are entitled to know with precision what charge they are required to defend. [Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel, (2018) 7 SCC 743]

Criminal Procedure Code, 1973 — Ss. 482 and 245: Rejection of application under S. 482 CrPC for quashment, when discharge application already stood rejected, proper. [Nayan Prasad v. State of Bihar, (2018) 7 SCC 713]

Employees’ Compensation Act, 1923 — Ss. 3 and 4 — Accident arising out of and in course of employment: As deceased driver was treated as employee and his death treated on duty and there was consistency in statement of dependants and there were no contradictions, compensation awarded to claimants. [Tebha Bai v. Raj Kumar Keshwani, (2018) 7 SCC 705]

Family and Personal Laws — Hindu Law — Joint Hindu Family/Hindu Undivided Family (HUF)/Coparcenary/Co-owner/Survivorship: Property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. Essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and rights attached to such property at the moment of their birth. Share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, property in hands of a son continues to be ancestral property and son of that son (whether natural or adopted) takes interest in it and is entitled to it by survivorship. [Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646]

Government Contracts and Tenders — Conduct of auction/Evaluation/Acceptance/ Rejection of Bid/Tender/Scope of judicial review: Directions to Evaluation Committee qua valuation and bids and conditions required to be met by bidders for revival of Super Bazar at New Delhi, issued. [Super Bazar Karamchari Dalit Sangh v. Union of India, (2018) 7 SCC 617]

Importance of maintaining sanctity of DNA samples: This article is primarily intended to emphasise upon the importance of maintaining sanctity of forensic samples by timely conducting forensic medical examination (FME) of individuals or relevant spots to maintain sanctity and reliability of samples. [Management of DNA Sampling in Rape Incidents by G.K. Goswami and Siddhartha Goswami, (2018) 7 SCC (J-4)]

Income Tax Act, 1961 — S. 11 [as existing prior to amendment made in S. 11(6) of the Act vide Finance Act 2 of 2014]: Regarding grant of depreciation claimed by charitable institutions on capital assets, even when the expenditure on acquisition of the assets had been treated earlier as application of income for charitable purposes, approving the ruling in Institute of Banking, Personnel Selection, 2003 SCC OnLine Bom 642, wherein the Court rejecting the view that S. 32 was the only section granting benefit of deduction on account of depreciation, had inter alia held that the income of the Trust is required to be computed under S. 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust, in the present case, orders of the High Courts granting benefit of depreciation on the assets acquired by the respondents assessees/charitable institutions upheld. Further held, the amendment made in S. 11(6) of the Act vide Finance Act 2 of 2014 effective from Assessment Year 2015-16, was prospective in nature. Also, held, that once the assessee is allowed depreciation, he shall be entitled to carry forward the depreciation as well. [CIT v. Rajasthani and Gujarati Charitable Foundation, (2018) 7 SCC 810]

Income Tax Act, 1961 — S. 194-H (w.e.f. 1-6-2001) r/w S. 201 — Tax at source — Deduction of, on payments made by appellants (Prasar Bharati Doordarshan Kendra) to advertising agencies: Payments made by appellants (Prasar Bharati Doordarshan Kendra) to advertising agencies is to be construed as commission to agents not as payments between principal-to- principal. [Prasar Bharati v. CIT, (2018) 7 SCC 800]

Land Acquisition Act, 1894 — S. 11-A — Object of — Re-emphasised: Exclusion of time spent in stay has to be considered based on facts of each case. [Raj Kumar Gandhi v. Chandigarh Administration, (2018) 7 SCC 763]

Language of the Law: In this article the author emphasis the need to simplify the language of the law in India. [Whereof They’re Ipso Facto Words: India Needs to Simplify the “Language of the Law” by Jyoti Sagar, (2018) 7 SCC (J-1)]

Limitation Act, 1963 — S. 5 — Sufficient cause for condonation of delay in filing appeal — What is: Aggrieved persons not made a party before court against whose order they had appealed, is sufficient cause for condonation of delay in filing appeal. [Hetal Chirag Patel v. State of Gujarat, (2018) 7 SCC 703]

Motor Vehicles Act, 1988 — S. 166 — Fatal accident — Compensation of — Income of deceased: There is nothing in law which requires Tribunal to assess income of deceased only on basis of a salary certificate for arriving at a just and fair compensation to be paid to claimants for loss of life. [United India Insurance Co. Ltd. v. Indiro Devi, (2018) 7 SCC 715]

Motor Vehicles Act, 1988 — Ss. 166 and 165, 2(28), 2(44) and Statement of Objects and Reasons — Compensation claims under the Act — Maintainability: “Use of motor vehicle”, includes non-traffic use. However, causal relationship should exist between the violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident, though the “use” of the motor vehicle concerned need not have an intimate and direct nexus with the accident. [Kalim Khan v. Fimidabee, (2018) 7 SCC 687]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: As ingredients of S. 300 Exception 4 were present, conviction converted from S. 302 to S. 304 Pt. II. [Tularam v. State Of M.P., (2018) 7 SCC 777]

Penal Code, 1860 — S. 306 — Abetment of suicide — Ingredients for invoking of S. 306 — Not made out: As allegations in FIR, relating to mental torture of deceased at the hands of his higher officers, in this case, were completely inadequate not satisfying requirements under S. 306, proceedings initiated against accused quashed. [Vaijnath Kondiba Khandke v. State of Maharashtra, (2018) 7 SCC 781]

Penal Code, 1860 — Ss. 302, 498-A and 506: In this case appellant-accused was convicted for murder of his wife. It was held by the Supreme Court that the due to some extenuating circumstances like, after killing his wife, appellant tried to kill himself, etc., portion of impugned order, prescribing life sentence for minimum period of 30 yrs, deleted, making it a case of life imprisonment simpliciter. [Nitin Balkisan Gaikwad v. State of Maharashtra, (2018) 7 SCC 685]

Penal Code, 1860 — Ss. 302/149 — Murder trial: In this case due to rivalry between two factions in village led to attack using country-made bombs, hunting sickles and iron pipes and there was death of four persons but all respondent-accused were acquitted by High Court. It was held by the Supreme Court that the High Court erred in eschewing testimonies of witnesses in toto. Minor contradictions and omissions in evidence of witnesses were to be ignored. All eyewitnesses including one who turned hostile consistently spoke about attack on one deceased and his supporters. Witness who gave vivid description of incident was corroborated by other witnesses. However, on oral evidence of witnesses and medical evidence, High Court rightly acquitted some respondents giving them benefit of doubt but acquittal of other respondents by High Court, set aside, convicting them under S. 302 IPC and sentencing them to undergo life imprisonment. [State of A.P. v. Pullagummi Kasi Reddy Krishna Reddy, (2018) 7 SCC 623]

Penal Code, 1860 — Ss. 84, 302 and 324 — Murder trial — Applicability of S. 84: Reasonable doubt regarding mental condition of accused at the time of incident was created in the mind of court from materials and evidence available. As prosecution failed to lead any evidence in rebuttal and was not able to establish its case beyond reasonable doubt, conviction of accused under Ss. 302 and 324 IPC, reversed. [Devidas Loka Rathod v. State of Maharashtra, (2018) 7 SCC 718]

Registration Act, 1908 — Ss. 17(1-A) and 49 proviso — Requirement of registration: If document containing contract to transfer right, title or interest in immovable property for consideration is not registered but exhibited, it will bear an endorsement that it is admissible only as evidence of agreement to sell in suit for specific performance under Specific Relief Act and shall not have any effect for purposes of S. 53-A of TP Act. Genuineness, validity and binding nature of document or whether it is hit by any provisions of TP Act or Stamp Act, will have to be adjudicated at appropriate stage after parties adduce oral and documentary evidence. [Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, (2018) 7 SCC 639]

Service Law — Allowances — Special (duty) allowance — Entitlement to — Special duty allowance to CRPF personnel posted in North-Eastern region — Date of reckoning: Respondents are entitled to special (duty) allowance for period during which they were posted in North-Eastern region not w.e.f. 3-8-2005 when office memorandum was issued by Government to that effect. [CRPF v. Janardan Singh, (2018) 7 SCC 656]

Service Law — Departmental Enquiry — Natural justice — Noncompliance — Inference — When warranted: There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable authorities to make appointment or are silent. When statutory rules are silent with regard to applicability of any facet of principles of natural justice, applicability of principles of natural justice which are not specifically excluded in statutory scheme are not prohibited and can be made applicable in given case to advance cause of justice. Furthermore, Enquiry Officer has to be independent and not representative of disciplinary authority. If he starts acting in any other capacity and proceeds to act in manner as if he is interested in eliciting evidence to punish employee, principle of bias comes into play. [Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670]

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thenorthlines · 8 years ago

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Sex with minor wife is rape: SC

New Delhi, October 11 The Supreme Court on Wednesday ruled that sexual intercourse with a minor wife would amount to rape. A Bench of Justice Madan Lokur and Justice Deepak Gupta read down exception under Section 375 of the IPC that defines rape. The Bench said the age of consent (which is 18 years) can’t be lowered. A minor wife would have to file rape complaint within a year of the alleged…

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sclaw · 8 years ago

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2007(4) LAW HERALD (SC) 3318 IN THE SUPREME COURT OF INDIA Before The Hon’ble Mr. Justice Arijit Pasayat The Hon’ble Mr. Justice D.K. Jain Criminal Appeal No. 1221 of 2001 Phulia Tudu v. The State of Bihar (now Jharkhand) {Decided on 14/09/2007} For the Appellants : Mr. Arup Banerjee and Ms. Aparna Jha, Advocates. For the Respondent : Mr. Manish Kumar Saran, Advocate. IMPORTANT POINT ‘Murder’ and ‘culpable homicide not amounting to murder’ distinction between explained. Culpable Homicide—Single blow—No rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. (A) Penal Code, 1860, Section 302 r/w 34 and 304 Part I—Culpable homicide—Single blow—Held; It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC. (Para 20) (B) Penal Code, 1860, Section 299 and 300--Culpable Homicide—Murder--If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury............sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. (Para 8) (C) Penal Code, 1860—Section 299 and 300--Culpable Homicide—Murder--The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. (Para 10) (D) Penal Code, 1860—Section 299 and 300--Culpable Homicide—Murder--Even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. (Para 16) CASES CITED : 1. Rajwant v. State of Kerala, AIR 1966 SC 1874. (Para 11) 2. Virsa Singh v. State of Punjab, AIR 1958 SC 465. (Para 12) 3. State of Andhra Pradesh v. Rayavarapu Punnayya, 1976 (4) SCC 382. (Para 19) 4. Abdul Waheed Khan @ Waheed v. State of Andhra Pradesh, JT 2002 (6) SC 274. (Para 19) 5. Augustine Saldanha v. State of Karnataka, 2003 (10) SCC 472. (Para 19) JUDGMENT Dr. Arijit Pasayat, J.- Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand High Court upholding conviction of the appellants for offence punishable under Section 302 IPC read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). 3. Background facts according to the prosecution in a nutshell are as follows: Bitia Soren (PW-8) is the sister-in-law of Biti Murmu (hereinafter referred to as ‘the deceased’). The first appellant’s son fell ill and the appellants/accused were under the impression that since the deceased, Biti Murmu, is a witch, she has caused a spell on the son of the accused and, therefore, they were nurturing a grievance against the deceased. On the date of incident, when the villagers had gone to the cremation ground to cremate the dead body of a villager, Jhora Hansda, appellants Phulia Tudu and Malgo Soren, chased the deceased, Biti Murmu, and she took asylum in the house of Bitia Soren (PW-8). The appellants entered the house and caught hold of the deceased, Biti Murmu. Bitia Soren (PW-8) at that time, was engaged in dehusking paddy. The first accused caught the hands of the deceased and pulled her out and the deceased fell down. The first accused, Phulia Tudu, assaulted her with lathi and when PW-8 attempted to intervene, she was threatened with her life. The other accused was present there at that time and after the occurrence, they ran away from the place. After the return of the villagers including the husband of PW-8, information was passed on to them. Thereafter, fardbeyan, Ext.3, was given by PW-8 at Raneshwar police station at 2.30 p.m., which was registered as a crime and Ext.5 is the first information report and investigation was taken up by Bijendra Narain Singh (PW-9). PW-9, on taking up the investigation, reached the scene of occurrence, prepared the inquest report, Ext.5, and sent the dead body to the hospital with a requisition to the Doctor to conduct autopsy. On completion of investigation, charge-sheet was filed. As accused persons pleaded innocence trial was held. 4. The trial Court believed the evidence of PW-8 and recorded conviction under Section 302 read with Section 34 IPC and sentenced each to undergo imprisonment for life. However, the accused Kisto Kisku was acquitted. 5. Matter was carried in appeal before the High Court. Before the High Court it was submitted that only accusation was that A2 held the hands of the deceased while A1 inflicted a lathi blow. It is submitted that lathi blow attributed to A1 could not have caused fatal injuries. In any event, only one blow was given and, therefore, Section 302 has no application. 6. Learned counsel for the State on the other hand supported the judgment of the High Court, which as noted above, dismissed the appeal filed before it. 7. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest 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. 8. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. --------------------------------------------------------------------------------------------------------- Section 299 Section 300 A person commits culpable homicide Subject to certain exceptions culpable homicide if the act by which the death is caused is murder if the act by which the death is done - is caused is done - --------------------------------------------------------------------------------------------------------- INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or --------------------------------------------------------------------------------------------------------- (1) with the intention of causing death or (2) 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 --------------------------------------------------------------------------------------------------------- (3) 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 --------------------------------------------------------------------------------------------------------- KNOWLEDGE --------------------------------------------------------------------------------------------------------- (c) with the knowledge that the act is (4) with the knowledge that the act is so likely to cause death. imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above. --------------------------------------------------------------------------------------------------------- 9. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 10. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury.......sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 11. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point. 12. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. The ingredients of clause “Thirdly” of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: “To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” 14. The learned Judge explained the third ingredient in the following words (at page 468): “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” 15. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh’s case (supra) for the applicability of clause “Thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. 16. Thus, according to the rule laid down in Virsa Singh’s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 17. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 18. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 19. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274), and Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472). 20. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC. 21. Therefore, each of the appellants is convicted under Section 304 Part I read with Section 34 IPC and not Section 302 IPC read with Section 34 IPC. Custodial sentence of ten years would meet the ends of justice. 22. The appeal is allowed to the aforesaid extent.

2007(4) LAW HERALD (SC) 3318 IN THE SUPREME COURT OF INDIA Before The Hon’ble Mr. Justice Arijit Pasayat The Hon’ble Mr. Justice D.K. Jain Criminal Appeal No. 1221 of 2001 Phulia Tudu v. The State of Bihar (now Jharkhand) {Decided on 14/09/2007} For the Appellants : Mr. Arup Banerjee and Ms. Aparna Jha, Advocates. For the Respondent : Mr. Manish Kumar Saran, Advocate. IMPORTANT POINT ‘Murder’ and ‘culpable homicide not amounting to murder’ distinction between explained. Culpable Homicide—Single blow—No rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. (A) Penal Code, 1860, Section 302 r/w 34 and 304 Part I—Culpable homicide—Single blow—Held; It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC. (Para 20) (B) Penal Code, 1860, Section 299 and 300–Culpable Homicide—Murder–If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury…………sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. (Para 8) (C) Penal Code, 1860—Section 299 and 300–Culpable Homicide—Murder–The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. (Para 10) (D) Penal Code, 1860—Section 299 and 300–Culpable Homicide—Murder–Even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. (Para 16) CASES CITED : 1. Rajwant v. State of Kerala, AIR 1966 SC 1874. (Para 11) 2. Virsa Singh v. State of Punjab, AIR 1958 SC 465. (Para 12) 3. State of Andhra Pradesh v. Rayavarapu Punnayya, 1976 (4) SCC 382. (Para 19) 4. Abdul Waheed Khan @ Waheed v. State of Andhra Pradesh, JT 2002 (6) SC 274. (Para 19) 5. Augustine Saldanha v. State of Karnataka, 2003 (10) SCC 472. (Para 19) JUDGMENT Dr. Arijit Pasayat, J.- Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand High Court upholding conviction of the appellants for offence punishable under Section 302 IPC read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). 3. Background facts according to the prosecution in a nutshell are as follows: Bitia Soren (PW-8) is the sister-in-law of Biti Murmu (hereinafter referred to as ‘the deceased’). The first appellant’s son fell ill and the appellants/accused were under the impression that since the deceased, Biti Murmu, is a witch, she has caused a spell on the son of the accused and, therefore, they were nurturing a grievance against the deceased. On the date of incident, when the villagers had gone to the cremation ground to cremate the dead body of a villager, Jhora Hansda, appellants Phulia Tudu and Malgo Soren, chased the deceased, Biti Murmu, and she took asylum in the house of Bitia Soren (PW-8). The appellants entered the house and caught hold of the deceased, Biti Murmu. Bitia Soren (PW-8) at that time, was engaged in dehusking paddy. The first accused caught the hands of the deceased and pulled her out and the deceased fell down. The first accused, Phulia Tudu, assaulted her with lathi and when PW-8 attempted to intervene, she was threatened with her life. The other accused was present there at that time and after the occurrence, they ran away from the place. After the return of the villagers including the husband of PW-8, information was passed on to them. Thereafter, fardbeyan, Ext.3, was given by PW-8 at Raneshwar police station at 2.30 p.m., which was registered as a crime and Ext.5 is the first information report and investigation was taken up by Bijendra Narain Singh (PW-9). PW-9, on taking up the investigation, reached the scene of occurrence, prepared the inquest report, Ext.5, and sent the dead body to the hospital with a requisition to the Doctor to conduct autopsy. On completion of investigation, charge-sheet was filed. As accused persons pleaded innocence trial was held. 4. The trial Court believed the evidence of PW-8 and recorded conviction under Section 302 read with Section 34 IPC and sentenced each to undergo imprisonment for life. However, the accused Kisto Kisku was acquitted. 5. Matter was carried in appeal before the High Court. Before the High Court it was submitted that only accusation was that A2 held the hands of the deceased while A1 inflicted a lathi blow. It is submitted that lathi blow attributed to A1 could not have caused fatal injuries. In any event, only one blow was given and, therefore, Section 302 has no application. 6. Learned counsel for the State on the other hand supported the judgment of the High Court, which as noted above, dismissed the appeal filed before it. 7. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest 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. 8. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. ——————————————————————————————————— Section 299 Section 300 A person commits culpable homicide Subject to certain exceptions culpable homicide if the act by which the death is caused is murder if the act by which the death is done – is caused is done – ——————————————————————————————————— INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or ——————————————————————————————————— (1) with the intention of causing death or (2) 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 ——————————————————————————————————— (3) 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 ——————————————————————————————————— KNOWLEDGE ——————————————————————————————————— (c) with the knowledge that the act is (4) with the knowledge that the act is so likely to cause death. imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above. ——————————————————————————————————— 9. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 10. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury…….sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 11. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point. 12. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. The ingredients of clause “Thirdly” of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: “To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” 14. The learned Judge explained the third ingredient in the following words (at page 468): “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” 15. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh’s case (supra) for the applicability of clause “Thirdly” is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. 16. Thus, according to the rule laid down in Virsa Singh’s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 17. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 18. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 19. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274), and Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472). 20. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC. 21. Therefore, each of the appellants is convicted under Section 304 Part I read with Section 34 IPC and not Section 302 IPC read with Section 34 IPC. Custodial sentence of ten years would meet the ends of justice. 22. The appeal is allowed to the aforesaid extent.

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