Once the existence of the three ingredients forming a part of Section 300 is established, it is irrelevant whether there was an intention on the part of the accused to cause death: Supreme Court
It does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly” as upheld by the Supreme Court through the learned bench led by Justice Abhay S. Oka in the case of Vinod Kumar v. Amritpal @ Chhotu &amp; Ors. (CRIMINAL APPEAL NO. 1519 OF 2021)(Arising out of SLP (Crl.) No.9185 of 2016) The brief facts of the case are that the respondent nos.1 to 5 are the accused who were prosecuted for the offences punishable under Sections 147, 364, 302/149, 201 and 323/149 of the Indian Penal Code . The Sessions Court convicted the accused for all the aforesaid offences. They were sentenced to undergo imprisonment for life for the offence punishable under Sections 302 read with 149 of IPC. For the other offences, lesser punishments were imposed. All the sentences were ordered to run concurrently. They were also directed to pay fine for other offences. Being aggrieved by the Judgment and order of the Sessions Court, the accused preferred an appeal before the High Court of Rajasthan. By the impugned Judgment and order dated 18th July 2016, while maintaining the conviction of the accused for the offences punishable under Sections 147, 364, 201 and 329/149 of IPC, the conviction of the accused for the offence punishable under Sections 302 of IPC was brought down to the offence punishable under Section 304 Part II of IPC and the accused were sentenced to undergo rigorous imprisonment for 8 years. The fine amount was not disturbed. The appellant, who is the first informant, has taken an exception to the impugned Judgment and order of the High Court. He is the brother of a victim of the offence Vijay Singh (PW1). The allegation against the accused is also of committing murder of Balveer Singh. Vijay Singh (PW1) was injured in the incident. The learned counsel appearing for accused without challenging the incident and participation of the accused in the incident, made a submission before the High Court that the offence established against the accused was the one punishable under Section 304 Part II of IPC. The accused did not challenge the conviction for the other offences. After the perusal of the facts and arguments, the Hon’ble Supreme Court held, “The view taken by High Court in the impugned Judgment and order that the offence under Section 300 was not made out is not even a possible view which could have been taken on the basis of the evidence on record. As we are of the view that the High Court has committed a gross error by applying Section 304 Part II of IPC, the Judgment and order of the High Court will have to be set aside and the judgment and order of the Sessions Court will have to be restored. We hold that the learned Additional District and Session Judge was right in convicting the accused for the offence punishable under Section 302/149 of IPC.”
IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1519 OF 2021 Arising out of SLPNo.91816 ..… APPELLANT AMRITPAL @ CHHOTU & ORS ..... RESPONDENTS J U D G M E N T ABHAY S. OKA J 1. The respondent nos.1 to 5 are the accused who were prosecuted for the offences punishable under Sections 147 364 302 149 201 and 323 149 of the Indian Penal Code for all the aforesaid offences. They were sentenced to undergo imprisonment for life for the offence punishable under Sections 302 read with 149 of IPC. For the other offences lesser punishments were imposed. All the sentences were ordered to run concurrently. For the offence punishable under Sections 302 the accused were directed to pay a fine of Rs.10 000 each. They were also directed to pay fine for other offences. Out of the fine amount a sum of Rs.70 000 was directed to be paid to the widow of the 3. Being aggrieved by the Judgment and order of the Sessions Court the accused preferred an appeal before the High Court of Rajasthan. By the impugned Judgment and order dated 18 th July 2016 while maintaining the conviction of the accused for the offences punishable under Sections 147 364 201 and 329 149 of IPC the conviction of the accused for the offence punishable under Sections 302 of IPC was brought down to the offence punishable under Section 304 Part II of IPC and the accused were sentenced to undergo rigorous imprisonment for 8 years. The fine amount was not disturbed. 4. The appellant who is the first informant has taken an exception to the impugned Judgment and order of the High Court. He is the brother of a victim of the offence Vijay Singhwas injured in the incident 5. From the impugned Judgment and order it appears that the learned counsel for the accused while arguing the appeal challenged only the conviction of the accused for the offence punishable under Section 302 of IPC. The learned counsel appearing for accused without challenging the incident and participation of the accused in the incident made a submission before the High Court that the offence established against the accused was the one punishable under Section 304 Part II of IPC The accused did not challenge the conviction for the other offences 6. Mr. Manish K. Bishnoi the learned counsel appearing for the appellant has taken us through the impugned Judgment and order of the High Court. His submission is that the injuries on the person of the deceased were on vital parts of his body. He pointed out that 6th to 10th ribs of the deceased were found to be fractured and right lung was ruptured. Moreover there was an injury to his liver. He pointed out the opinion of the medical board that injuries to the vital parts like right lung and liver led to excessive bleeding and shock which was the cause of death. He submitted that the High Court proceeded on erroneous footing that there were no injuries on the vital parts of the body of the deceased. He further submitted that none of the exceptions to Section 300 of IPC were applicable. He also pointed out that before throwing the body of the deceased into a canal his face was completely smashed by the accused. He submitted that “thirdly” in Section 300 of IPC was applicable. Dr Manish Singhvi the learned Senior Counsel appearing for the State of Rajasthan supported the appellant. 7. Gp. Capt. Karan Singh Bhati the learned counsel representing the accused pointed out that there is no evidence on record to show that objects like iron rod and sticks were used to assault the deceased as even PW1 Vijay Singh has not deposed to that effect in his examination in chief. He submitted that no weapons were used to attack the deceased. He submitted that the fact that there was no intention on the part of the accused to kill deceased Balveer Singh is clear from the fact that the accused took Balveer Singh to a doctor. Moreover the accused took PW1 Vijay Singh to a common relative and they had tea in the house of the common relative. He would therefore submit that correct view has been taken by the High Court that the offence punishable under Section 302 of culpable homicide amounting to murder was not made out 8. Before we deal with the submissions we may note here that when the petition was heard on 11th November 2021 we found that before the High Court the accused had not challenged their participation in the incident and the submissions were confined to bringing down the offence punishable under Section 302 to Section 304 Part II. Therefore we made a query to the learned counsel appearing for the respondents accused to ascertain whether the respondents accused want to argue on merits for acquittal. On 16 th November 2021 the learned counsel Gp. Capt. Karan Singh Bhati on instructions stated that the accused wanted to take the same stand which was urged before the High Court CONSIDERATION OF SUBMISSIONS 9. Though the incident has been admitted by the accused for the sake of completion we are referring to the prosecution case which can be gathered from the deposition of Vijay Singh the injured witness. On 5th October 2005 PW1 along with deceased Balveer Singh had been to Hanumangarh. In the evening they took a train for returning to their village Sherekan. While they were walking towards their house from the railway station they found that the accused nos. 1 2 3 and 5 were standing near the railway crossing and they started walking with the deceased Balveer Singh and PW1. On the way a Tata Sumo vehicle was parked in which the accused no.4 was sitting. The accused no.4 pulled hair of Vijay Singh and the accused no.5 pushed him into the vehicle. The accused nos.1 to 3 pushed Balveer Singh into the said vehicle Thereafter the vehicle proceeded towards Hanumangarh. The accused nos. 2 and 3 had put hands on the mouth of Balveer Singh and PW1 respectively. In the vehicle the accused nos.4 and 5 started beating the deceased and PW1. The vehicle was taken to Hanumangarh. The vehicle reached near Saim nullah. Thereafter the vehicle was taken on an unmetalled road and was stopped in an open field. After the vehicle stopped the accused banged Balveer Singh flat on the ground and they started assaulting Balveer Singh The accused no.1 had put hand on the mouth of PW1 and the accused no.5 started assaulting him. PW1 begged before the accused to spare him. They continued to beat Balveer Singh. When the accused noticed a light of a vehicle approaching the place they put both the deceased as well as PW1 in the vehicle. By that time Balveer Singh had become unconscious. They took Balveer Singh to the house of a doctor at Salemgarh Masani. After noticing serious condition of deceased Balveer Singh the doctor advised that Balveer Singh should be taken to Hanumangarh. Thereafter the vehicle was taken to residence of uncle of the accused no.4 where the tank of the vehicle was filled in. The accused thereafter took the vehicle near a canal and stopped the vehicle as the wheel got punctured. By that time Balveer Singh had died. The accused took out the body of Balveer Singh from the vehicle and by using pieces of bricks lying nearby they smashed the face of body so that it could not be identified. Thereafter they threw the body of the deceased to the canal and the clothes were also thrown into the canal by attaching bricks to it. The accused moved with PW1 to the residence of one Kanwar Sain who was related to the parties. As the said relative was not aware about the incident he offered tea to them. After the accused disclosed the incident the said relative asked them to leave his house 10. The accused had threatened PW1 not to disclose the incident to any one. They told him that if he discloses the incident he would suffer the same fate which was suffered by the deceased. When they left the place of Kanwar Sain the accused nos.1 to 3 were in the vehicle. On the way the accused nos.2 and 3 boarded a bus and the accused no.1 took PW1 to Hanumangarh Town Police Station. The police admitted PW1 to hospital. Thereafter the police prepared a report and signatures of PW1 were taken 11. It is necessary to note the injuries found on the body of the deceased. Dr. Jaspal Badappa PW3 deposed that there was a medical board comprising of him and Dr. Brijesh Gaur who was working as a medical officer in a Government Hospital in Hanumangarh town. Both of them conducted autopsy on the body of the deceased. It is necessary to reproduce the relevant part of the deposition of PW3 Dr. Jaspal Badappa. He described the injuries on the person of the deceased as under “1. There were multiple blue colour bruise marks over the lower part of right hip to the back and front side of right thigh and 3 4th part of the back and side portion of the right leg 2. There were multiple blue colour bruise marks over the lower part of left hip to the back and front side of left thigh and 3 4th part of the back and inner side portion of the left leg and skin was also ruptured 3. There were multiple blue colour bruise marks on the front side of left thigh and skin was also ruptured on 4. There were multiple blue colour bruise marks at the 1 2th lower part of the chest and also on the back side along with waist 5. There was a wounded cut which crosses through sternal notch of both sides of the neck to mastoid part of the back side of ear. The muscles of neck food pipe and lungs were also ruptured. Both the arteries veins and ears and muscles were ruptured and on the parts of temporal bone frontal bone and forehead skin were ruptured to the extent of visibility of bones The bones of upper and lower jaw nose and face were visible as it was not covered by skin. The back side of neck is attached with one piece of skin and cervical bones of neck are clearly visible 6. Mashed wound admeasuring 2 X 1 inch and bones are visible on the part of left palm 7. Mashed wound admeasuring 1.1 2 X 1 2 inch X deep to the muscles inner part bones are visible on the part of left palm 8. Mashed wound admeasuring 1 X 1 4 inch X deep wound to the side portion of the left leg 9. There were multiple marks of scar over dorsal part of left hand During the internal examination of head and throat there was hair on the head ruptured wound running from sternal notch on both sides of neck were visible and ruptured veins arteries windpipe food pipe and muscles going from front and back side along with the mastoid part of the back side of ear where bone can be seen due to flayed skin. The frontal bone temporal bone face upper jaw nose bone and mandible bone of jaw are clearly visible. The right eye was popped out whereas left eye was closed. The cervical bones of neck are clearly visible and the back side of neck is attached with a piece of skin. The brain and its membrane are in healthy state. During the examination of chest hematoma was found in the muscles of injured part and sixth to tenth bone from the right side were found to be fractured and multiple of right lung with its membrane was also ruptured. The wind pipe and food pipe were ruptured and both sides of chambers of heart were empty. Blood clotting was found during the examination of stomach. There was rupture mark in the stomach and liver admeasuring 1 2 inch X 1 2 inch X 1 2 inch. During the examination of genitals testicles were in swollen condition and penis was not injured. During the examination there was no skin over the face of deceased as bones were visible and food pipe and wind pipe were ruptured.” the offence is murder . It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of natureit does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”. Hence it follows that clause “thirdly” of Section 300 will apply in this case 19. We are constrained to observe that the High Court adopted an easy method of accepting the only contention canvassed that the offence made out was culpable homicide not amounting to murder As noticed earlier the High Court ignored that there were injuries on the vital parts of the body of the deceased. The High Court did not notice that all the elements of “thirdly” in Section 300 were 20. It was argued that the accused took the deceased to a doctor which shows the absence of intention to kill him. Apart from the fact that for the reasons recorded above the absence of intention to kill is not relevant in the facts of the case the injuries found by PW3 on the face of the deceased which were not the ante mortem injuries establish that before throwing the body of the deceased in a canal his face was completely smashed by the accused. The fact that accused after killing deceased Balveer Singh went to a common relative will not be of any assistance to the accused. 21. The view taken by High Court in the impugned Judgment and order that the offence under Section 300 was not made out is not even a possible view which could have been taken on the basis of the evidence on record. As we are of the view that the High Court has committed a gross error by applying Section 304 Part II of IPC the Judgment and order of the High Court will have to be set aside and the judgment and order of the Sessions Court will have to be 22. We hold that the learned Additional District and Session Judge was right in convicting the accused for the offence punishable under Section 302 149 of IPC. Accordingly the appeal is allowed by setting aside the impugned Judgment of the High Court dated 18 th July 2016. We restore the Judgment and order dated 26 th September 2011 in Session Case No.04 2006 passed by the learned Additional District and Session Judge No. 1 Hanumangarh Rajasthan. Therefore the substantive sentence and the fine imposed by the Court of Sessions for the offence punishable under Section 302 149 of IPC is restored. 23. We direct the accused to surrender before the Trial Court within a period of six weeks from today. If they fail to surrender within six weeks from today action be taken by the Trial Court for arresting them in accordance with law. They shall undergo remaining period of sentence in terms of the judgment of the Trial Court dated 26th September 2011. ABHAY S. OKA New Delhi November 30 2021. 