R/SCR.A/9248/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9248 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
5 Circulate the judgment amongst subordinate
judiciary
PRATIK JAGDISHBHAI THAKKAR 5….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR Y.S. LAKHANI, SENIOR ADVOCATE WITH MR. ANAND V THAKKAR,
ADVOCATE for the Applicant(s) No. 1 – 6
MR. JAY M THAKKAR, ADVOCATE for the Applicant(s) No. 1 – 6
MR K S CHANDRANI, ADVOCATE for the Respondent(s) No. 2
MS NISAH THAKORE, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
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1. By this application under Article227 of the Constitution of India,
the applicant – original accused nos.1 to 6 have prayed for the following
reliefs:
9(A) to admit and allow this Special Criminal Application;
(B) to quash and set aside the FIR being I C.R. No.79/2011 registered
with Anand Nagar Police Station, Ahmedabad (Annexure’A’) and
Charge Sheet No.64/2012 (Annexure’B’) qua section 304 and 395 of
Indian Penal Code and thereby be pleased to allow the application
below Exh.6 filed in Sessions Case No.153/2016 pending before 6th
Additional District Judge, Ahmedabad (Rural) by quashing and setting
aside the order dated 20.10.2016 passed by 6th Additional District
Judge, Ahmedabad (Rural) in an application below Exh.6 in Sessions
Case No.153/2016 (Annexure’C’) in the interest of justice;
(C) to stay the further proceedings of Sessions Case No.153/2016
pending before learned 6th Additional District Judge, Ahmedabad
(Rural), Ahmedabad in the interest of justice;
(D) to grant such other and further relief/s as may deemed fit, just
and proper in the facts and circumstances of the case, in the interest of
justice;
2. The case of the prosecution may be summarized as under:
2.1 The respondent no.2 herein lodged an FIR on 30/09/2011 for an
incident which occurred on 29/09/2011 at about 11:00 O’clock in the
night. The first informant while at home on 28/09/2011 received an
anonymous phone call at about 11:00 O’clock in the night. He received a
call from the mobile No.8460497647. The person who called him up
inquired as to why the first informant was harassing a girl by name
Sweety. The first informant tried to inquire with the person, who had
called him up about his identity and the reply was “taro baap bolu chhu”.
The first informant thereafter disconnected the phone. Soon thereafter
the first informant again received two to three phone calls from the very
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same mobile number, but he did not answer those calls. The first
informant thereafter called up his friend by name Kapil Pravinbhai
Thakkar, residing at Shikhar Tower, Near Shyamal Cross Roads,
Ahmedabad. Kapil Thakkar informed the first informant that he was
sitting in a canteen situated at the Andhjan Mandal Cross Roads. The
first informant thereafter reached the place where Kapil Thakkar was
sitting and informed him about the phone calls received by him. Kapil
Thakkar is said to have called up on the same number and inquired
about the identity of the person. The person informed Kapil that he was
standing near the Vastrapur Sardar Center and asked Kapil to reach that
place. As that person was talking in a foul language, the first informant
and Kapil also started talking in the same manner.
2.2 On 29/09/2011 at 10:30 in the night, the first informant visited
the house of his friend Kapil. All other friends of the first informant were
present at the house of Kapil. At that point of time, one of the friends of
the first informant by name Darshan gave a call on the same number,
however, the person who was called up did not reveal his identity. He in
turn started hurling abuses. The first informant and his friends were
asked to come to the Kapadiya School, Gurukul Road and accordingly,
all reached at the said place, but none was present at that particular
place. At about 11:30 in the night, the first informant received a phone
call from one Krunal Bharatbhai Thakkar, a resident of the same
apartment informing the first informant that he should lock the main
door of his flat as about 15 20 persons were marching towards the
apartment riding on 7 to 8 motorcycles, armed with weapons like
hockey, sticks, etc. The first informant immediately locked the door from
inside. Two of his friends named Bhumit and Rahul hid themselves in
one room opposite to the toilet. One Anish hid himself in the bathroom
and Kapil, the deceased went out on the balcony and locked the door
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from outside. At that point of time, few unknown persons started kicking
the main door of the flat and were shouting “where is every one, no one
will be spared today”. All those persons broke open the main door of the
flat and stormed inside. Those persons started administering threats. As
the first informant and his friends had hid themselves in the different
rooms, the persons who had come with weapons left the place. At that
point of time, Krunal called up Rahul and informed that Kapil had
jumped from the balcony and had fallen down. Kapil was thereafter
shifted to the hospital in 108 ambulance. It is alleged that the accused
persons who had come at the flat of the first informant while retreiving
took away the mobile phones, which were lying in the drawing room.
2.3 Kapil ultimately succumbed to the injuries sustained by him on
account of a fall from the balcony of the fourth floor of the building. In
such circumstances, the FIR came to be registered at the concerned
Police Station for the offence punishable under Sections304, 395, 452,
342, 506(2), 294(b), 427 and 201 of the IPC and Section135 of the
Bombay Police Act.
2.4 At the end of the investigation, the police filed chargesheet for the
offence enumerated as above and the filing of the chargesheet
culminated in the Sessions Case No.153 of 2016.
2.5 It appears that the applicants herein preferred an application
Exh.6 for discharge and the said application came to be rejected by the
learned sixth Additional District Sessions Judge, Ahmedabad Rural
vide order dated 20/10/2016. It may not be out of place to state that the
discharge application was confined only to the offences punishable
under sections304 and 395 of the IPC.
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3. Being dissatisfied with the order passed by the trial Court, the
applicants have come up with this application.
4. Mr. Lakhani, the learned senior counsel appearing for the
applicants vehemently submitted that even if the entire case of the
prosecution is believed or accepted to be true, none of the ingredients to
constitute the offence punishable under Section304 of the IPC or
Section395 of the IPC are spelt out. It is submitted that the applicants
herein did not even touch any of the witnesses including the deceased.
They might have created fear in the minds of all and more particularly,
the deceased who tried to make good his escape by jumping from the
balcony of the apartment to the other apartment situated bank opposite.
However, in the process, fell down and sustained serious injuries.
According to Mr. Lakhani, the act would not fall within the ambit of
culpable homicide not amounting to murder. Mr. Lakhani submits that
none of the ingredients to constitute the offence of dacoity are spelt out.
The chargesheet could not have been filed for the offence under Section
395 of the IPC on the charge or allegations that the accused persons
took away mobile phones, which were lying in the flat. According to Mr.
Lakhani by any stretch of imagination it cannot be said that the
common object of the unlawful assembly was to commit dacoity.
According to Mr. Lakhani, even if the entire case of the prosecution is
believed or accepted to be true, the dispute between the applicants and
the deceased and his friends was relating to a girl by name Sweety. On
the date of the incident, the writapplicants stormed into the flat of the
first informant with the intention to thrash all those persons who were
hiding themselves. According to Mr. Lakhani, if out of fear, the deceased
tried to make good his escape by jumping from the balcony of the fourth
floor to the other building and in the process fell down, it cannot be said
that such act of the accused persons being so imminently dangerous that
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it caused the death of the deceased.
5. Mr. Lakhani, in support of his submissions has placed reliance on
the following decisions:
1) 2013 (2) GLH 706
Lashuben Chemabhai Chaudhary Vs. State of Gujarat
2) 2014 (3) GLR 2216
Laljibhai Maganbhai Vasava Vs. State of Gujarat
3) AIR 1977 SC 45
State of Andrapradesh Vs. Rayavarapu Punnayya Anr.
4) AIR 1968 SC 881
State of Madhya Pradesh Vs. Ram Prasad
5) 2005 (2) GLH 481
Chetankumar Shankarlal Patel Vs. State of Gujarat
6) 1961 (2) GLR 678
Himatsing Shivsing Vs. State of Gujarat
6. In such circumstances referred to above, Mr. Lakhani prays that
there being merit in this application, the same be allowed and the
applicants be discharged from the offence punishable under Sections
304 and 395 of the I.P.C. respectively.
7. On the other hand, this application has been vehemently opposed
by Mr. Chandrani, the learned counsel appearing for the first informant
and the learned APP appearing for the respondentState. Both the
learned counsel submitted that at this stage, the Court may not go into
the question whether the offence under Sections304 and 395 of the IPC
is made out or not. Primafacie, the materials on record is sufficient for
the trial Court to frame the charge accordingly. Mr. Chandrani submitted
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that ultimately it is the act of the applicants in storming into the flat
armed with deadly weapons that created a panic and fear in the mind of
the deceased, which forced him to jump from the balcony and in the
process, fell down sustaining serious injuries resulting into his death.
According to Mr. Chandrani, such act of the accused persons could be
termed as imminently dangerous so as to in all probability cause death
or such bodily injury.
8. Mr. Chandrani seeks to rely on the following averments made in
the affidavitinreply filed on behalf of the respondent no.2.
15. I would further submit that in view of the above what was the
intention of the accused in the present case is also to be presumed in
light of the aforesaid judgments and observations. I would submit that
in the present case the dispute admittedly started before two days of
the incident followed by threatening on phone, abusing the deceased
and witnesses, asking them to meet and thereafter chasing them up to
their residence on 5th floor and thereafter entering into their residence
by breaking up the main door, armed with deadly weapons and further
trying to break upon the door of the rooms and gallery wherein the
witnesses and the deceased were trying to hide themselves to save their
lives, suggest that the accused were intending to cause bodily injuries
to the witnesses and deceased.
16. I would respectfully submit that it is not the case of the
prosecution or defense that the deceased jumped on his on voluntarily
to caught hold of something and met with an accident as usually
happens on Sankarant, that one with an intention to catch a flying
kite may risk his own life and accidentally die, in the present case the
deceased was threatened, induced, compelled, instigated or motivated
to do a particular act which the otherwise would not have done if he
would not have been so threatened, induced, compelled, instigated or
motivated by the accused.
17. I would submit that the act of entering into someone’s house
after preparation of hurt and assault is an illegal act punishable under
section 452 of Indian Penal Code and thereafter any incident pursuant
to that illegal act of the accused occurs which may be may not be
premeditated, resulting into such bodily injuries which finally results
into the death of a person would fall under the definition of section
300 of Indian Penal Code.
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18. I would also submit that what is necessary is the intention of
the accused which can be presumed by the surrounding circumstances
and illegal act of entering into the residence of the witnesses and the
deceased with an intention to cause bodily injury and in furtherance of
that if a person sustains any type of injury which results in his death,
the accused are to be prosecuted for the offence of committing culpable
homicide.
19. I would submit the act pursuant to which the incident has
occurred is an illegal act and the incident which has occurred is in
furtherance of the act, in the present case the deceased tried to save
himself by hiding inside the gallery locking the door from inside and
would not have tried to escape or jump if the accused would not have
entered into the house by breaking the main door armed with deadly
weapons.
20. It is further submitted that three intention of the accused is also
to be seen and presumed from the view point of a layman as seen and
felt by the deceased in the present case before attempting to save
himself from the clutches of the accused and to save himself from the
injury likely to be caused by the accused persons. Meaning thereby that
the intention of the accused was to cause bodily injury which may
result into the death of the deceased is to be presumed from the view
point of the deceased and therefore with an intention to save himself
the deceased made an attempt, which resulted in his death, just
because the manner in which the deceased died was not the manner in
which the accused intended, they cannot come out of the embrace of
section 299 of IPC but it is because of their illegal act the incident
occurred as once the criminal act is set in to motion by the accused the
end result is irrelevant and they cannot be absolved from the final
outcome of their illegal act.
21. I would further beg to elaborate my submission by way of
certain examples:
A) 2 to 3 adult male at night hours breaks the door and enters into a
house where a lady resides alone, the lady with an intention to save
herself tries to escape from his gallery to the adjoining gallery and falls
from the gallery sustaining deadly injuries and later on dies, than in
that case there would be a presumption that the accused entered the
house with an intention to commit an offence while on the other side
the deceased had a thought that she would be raped or murdered and
thus, only with an intention to save herself tried to escape, than in that
case the accused cannot be held responsible for the offence of house
trespass as the ultimate outcome was the death of the lady as the death
would not have occurred if the accused would not have committed an
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offence of house trespass, what is required to be seen is the fear and
apprehension in the mind of the deceased at that particular point of
time pursuant to which he acted in a particular way to save herself
and died.
B) That 5 persons with an intention to commit dacoity tried to stop a
car on the highway in the mid night but the driver moves speedily and
thereafter the accused persons chases the car and during this cahse, the
car collides resulting in death of driver the case would fall under
section 300 of Indian Penal Code and it cannot be said that the
intention of the accused was not of committing any murder but was of
committing dacoity and hence, shall be punishable under section 395
of Indian Penal Code.
C) A, owner of a house is aware about the short circuit in his electric
switches ask the deceased to switch on the electric lights, and on
touching the electric switch if the deceased dies, in that case the owner
of the house i.e. A would be held liable for the offence of culpable
homicide as the deceased would not have voluntarily on his own would
have done the act if he was not so asked, encouraged, induced,
compelled, instigated or motivated to do that particular act which
resulted in his death, now whether there was any intention or
knowledge on part of the accused is to be proved by the prosecution
during the course of trial.
D) A with an intention to cause bodily injury threatens B by showing
knife, B with an intention to save himself jumps from running train
and because of that act B falls down and train passes over him and he
dies in any other manner, here A would be liable for the offence of
culpable homicide, though he may not have intended that the B should
jump.
E) Accused persons deploys a bomb in a busy market area and because
of the blast certain persons dies because of the blast injuries and a few
persons succumbs to their injuries which they sustained because of the
stampede created because of the terror on the crowd, the accused
would also be held responsible for the offence of culpable homicide even
though the deceased may not have sustained any injuries by way of the
bomb blast but as the act of the accused which is illegal instigated,
abetted, encouraged, induced and compelled the crowd to run in all the
directions to save their lives which resulted in death of a few persons
and causing injuries to others, the accused in that case cannot be
absolved from their liability that they injury caused to those persons
were not at all intended or very caused by way of the bomb blast.
22. I would therefore submit that in the above illustrations the
intentions of the accused may be may not be of committing murder but
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their intention was of committing a particular offence which they were
not able to commit and because of their illegal act the victim died and
hence, the same would not absolve them from the final outcome of
their illegal act in furtherance to which the persons has died as the
incident or the death is the outcome of their preparation, intention,
illegal act and other attending circumstances.
23. I would submit that as the person has died in the present case,
if the case of the accused does not fall under section 302 04 304 of
Indian Penal Code and it may fall under section 306 of Indian Penal
Code and the illegal act of the accused cannot go unpunished and as
such the act of the accused is not as such that which would go beyond
the scope of the Indian Penal Code.
24. I would submit that act of chasing the witnesses and the
deceased and entering into their residence may also amount to
instigation and abetment to commit suicide than in that case the
accused would be held liable for the offence punishable under section
306 of Indian Penal Code but as it is not the case of the prosecution or
even the defense that the deceased attempted to commit suicide on his
own, voluntarily and hence the death of the deceased is because of
some external factor, instigation, apprehension or threat attributed to
the accused persons.
25. I would therefore submit that, the way the accused entered the
premise with an intention of causing injury and knowledge of
committing criminal tresspass, is sufficient to show that a prima facie
case exists against the accused that the accused entered into premises
with an intention to cause such bodily injuries which may result in to
death.
26. I would further submit that the incident may be seen as an
overact of the terror which has caused fear in the mind of the deceased
and others who were present in the flat and were hiding from the
accused persons, and it was this fear due to which the deceased tried to
evade the situation, but was unfortunate to loss his life out of the said
effort to evade fear and terror.
27. I would also submit that not only the intention and knowledge
of the accused about the circumstances created are to be seen but also
the thought processes going in the mind of the deceased is to be
presumed and are to be taken into consideration as to what was his
intention when he made an attempt to jump from the gallery.
28. I would submit that it may kindly be appreciated that once the
intention with which the criminal act is set into motion, the end result
is not to be considered as the same shall not isolate the accused against
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the framing of charges for the same.
29. I would also submit that though the chargesheet came to be
filed for offences punishable u/s. 304, 395, 452, 342, 506(2), 294(B),
427 and 201 of the IPC r/w Section 135 of the GP Act, however the
application came to preferred only with a view to not let the charge
u/s.395 and charge u/s.304 of IPC be framed, whereas admittedly rest
of the offences as alleged are kept untouched meaning there by that as
far as 452 and 506(2) of IPC is accepted by the accused at this stage,
giving a prima facie stage for building a case which is fit to be
considered for framing of charge under all the sections which are
invoked and charge sheeted by the concerned Investigating Officer.
30. It is further submitted that as far as the offence u/s. 395 is
concerned, merely because the articles which were looted/ robbed were
not recovered, shows lacuna on the part of the I.O. as there has been
an specific allegation with regards to the commission of the said
offence and missing of those articles after the illegal house trespass
committed by the accused, and thus only because the I.O. has not
carried out the investigation in proper manner, the case doesn’t become
vague and weak. Moreover, the offence of robbery might have been
committed is sufficient to frame charge and the nonrecovery of the
article shall not erase the primafacie allegation which is sufficient to
proceed against the accused persons, as at the stage of framing of
charges what is required to be presumed is that the accused might have
committed the offence and not must as it is to be seen at the stage of
convicting the accused.
9. Mr. Chandrani in support of his submissions has placed reliance
on the following decisions:
1) Criminal Misc. Application No.3120 of 2014;
Decided on 06/01/2015
Hanif Usmanbhai Kalva Vs. State of Gujarat2) 2012 Law Suit (SC) 609
Amit Kapoor Vs. Ramesh Chander Anr.3) 2010 Law Suit (SC) 1099
Rajbir @ Raju And Anr. Vs. State of Haryana4) 2003 Law Suit (SC) 1277
State of Maharashtra Vs. Salman Salim Khan5) 1961 Law Suit (SC) 194
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R/SCR.A/9248/2016 CAV JUDGMENTOm Prakash Vs. State of Punjab
6) 1961 Law Suit (SC) 193
Abhayanand Mishra Vs. State of Bihar10. Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls
for my consideration is whether the applicants should be discharged so
far as the offence punishable under Sections304 and 395 of the IPC is
concerned.11. The moot question that falls for my consideration is whether the
Police could have registered the FIR for the offence under Section304 of
the IPC. The second question that falls for my consideration is whether
the Police could have filed chargesheet for the offence under Section
304 of the IPC. The third question that falls for my consideration is that
how could the police have decided whether the case falls within any of
the exceptions to Section300 of the IPC.12. In order to appreciate the question, it will be profitable to refer to
the definition of murder as provided in Section 300 of the Indian Penal
Code which is quoted below:300. Murder Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or2ndly.If it is done 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. or3rdly.If it is done 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, or4thly.If the person committing the act knows that it is so imminently
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R/SCR.A/9248/2016 CAV JUDGMENTinjury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as
aforesaid.Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence.
A commits murder.(b) A, knowing that Z is labouring under such a disease that a blow is
likely to cause his death, strikes him with the intention of causing
bodily injury. Z dies in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in the ordinary
course of nature to cause the death of a person in a sound state of
health. But if A, not knowing that Z is labouring under any disease,
gives him such a blow as would not in the ordinary course of nature
kill a person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty of murder, if he did not
intend to cause death, or such bodily injury as in the ordinary course
of nature would cause death.(c) A intentionally gives Z a swordcut or clubwound sufficient to
cause the death of a man in the ordinary course of nature. Z dies in
consequence. Here A is guilty of murder, although he may not have
intended to cause Z's death.(d) A without any excuse fires a loaded cannon into a crowd of persons
and kills one of them. A is guilty of murder, although he may not have
had a premeditated design to kill any particular individual.Exception 1.When culpable homicide is not murder.Culpable
homicide is not murder if the offender, whilst deprived of the power of
selfcontrol by grave and sudden provocation, causes the death of the
person who gave the provocation or causes the death of any other
person by mistake or accident.The above exception is subject to the following provisos:
First.That the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person.Secondly.That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of the
powers of such public servant.Thirdly.That the provocation is not given by anything done in the
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R/SCR.A/9248/2016 CAV JUDGMENTExplanation.Whether the provocation was grave and sudden enough
to prevent the offence from amounting to murder is a question of fact.
Illustrations(a) A, under the influence of passion excited by a provocation given by
Z, intentionally kills Y, Z's child. This is murder, inasmuch as the
provocation was not given by the child, and the death of the child was
not caused by accident or misfortune in doing an act caused by the
provocation.(b) Y gives grave and sudden provocation to A. A, on this provocation,
fires a pistol at Y, neither intending nor knowing himself to be likely to
kill Z, who is near him, but out of sight. A kills Z. Here A has not
committed murder, but merely culpable homicide.(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and
violent passion by the arrest, and kills Z. This is murder, inasmuch as
the provocation was given by a thing done by a public servant in the
exercise of his powers.(d) A appears as a witness before Z, a Magistrate. Z says that he does
not believe a word of A's deposition, and that A has perjured himself. A
is moved to sudden passion by these words, and kills Z. This is murder.(e) A attempts to pull Z's nose. Z, in the exercise of the right of private
defence, lays hold of A to prevent him from doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is murder,
inasmuch as the provocation was giving by a thing done in the exercise
of the right of private defence.(f) Z strikes B. B is by this provocation excited to violent rage. A, a
bystander, intending to take advantage of B's rage, and to cause him to
kill Z, puts a knife into B's hand for that purpose. B kills Z with the
knife. Here B may have committed only culpable homicide, but A is
guilty of murder.Exception 2.Culpable homicide is not murder if the offender in the
exercise in good faith of the right of private defence or person or
property, exceeds the power given to him by law and causes the death
of the person against whom he is exercising such right of defence
without premeditation, and without any intention of doing more harm
than is necessary for the purpose
of such defence.Illustration
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R/SCR.A/9248/2016 CAV JUDGMENTZ attempts to horsewhip A, not in such a manner as to cause grievous
hurt to A. A draws out a pistol. Z persists in the assault. A believing in
good faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed murder, but only
culpable homicide.Exception 3.Culpable homicide is not murder if the offender, being a
public servant or aiding a public servant acting for the advancement of
public justice, exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public servant and
without illwill towards the person whose death is caused.Exception 4.Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender's having taken undue
advantage or acted in a cruel or unusual manner.Explanation.It is immaterial in such cases which party offers the
provocation or commits the first assault.Exception 5.Culpable homicide is not murder when the person whose
death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent.Illustration
A, by instigation, voluntarily causes Z, a person under eighteen years
of age, to commit suicide. Here, on account of Z's youth, he was
incapable of giving consent to his own death; A has therefore abetted
murder.13. At this stage, it will also be profitable to refer to the following
observations of the Supreme Court in the case of State of A.P. vs.
Raayavarapu Punnaya, reported in AIR 1977 SC 45, where the Supreme
Court laid down the distinction between murder and the culpable
homicide not amounting to murder in the following way:12. In the scheme of the Penal Code, '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 this
generic offence, the Code practically recognises three degrees ofPage 15 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTculpable 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 304.13. The academic distinction between 'murder' and 'culpable homicide
not amounting to murder' has vexed the courts for more than a
century. 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 key words 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 Subject to certain exceptions
homicide if the act by which the culpable homicide is murder if the
death is caused is done .... act by which the death is done ....
INTENTION
(a) with the intention of (1) with the intention of causing
causing death; or death; or
(b) with the intention of (2) with the intention of causing
causing such bodily injury as is such bodily injury as the offender
likely to cause death; or 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
KNOWLEDGEPage 16 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT(c) with the knowledge that the (4) with the knowledge that the act
act is likely to cause death. is so imminently dangerous that it
must in all probability cause death
or such bodily injury as is likely to
cause death and without any excuse
for incurring the risk of causing
death or such injury as is mentioned
above14. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of
Section 300. The distinguishing feature of the mens rearequisite under
Clause (2) is the knowledge possessed by the offender regarding the
particular victim being in such a peculiar condition or state of health
that the intentional 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 300.15. 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.16. 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 determinesPage 17 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTwhether 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.17. 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 another v. State of Kerala, AIR
1966 SC 1874, is an apt illustration of this point.18. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465, Vivian
Bose, J. speaking for this Court, explained the meaning and scope of
Clause (3), thus :"The prosecution must prove the following facts before it can bring a
case under Sec.300, '3rdly'. 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. 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."19. Thus, according to the rule laid down in Virsa Singh's case (supra),
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. 20. 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.Page 18 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT21. From the above conspectus, it emerges that whenever a court is
confronted with the question whether the offence is 'murder' or
'culpable homicide not amounting to murder,' on the facts of a case, it
will be convenient for it to approach the problem in three stages. The
question to be considered at the first stage would be, whether the
accused has done an act by doing which he has caused the death of
another. Proof of such causal connection between the act of the accused
and the death, leads to the second stage for considering whether that
act of the accused amounts to "culpable homicide" as defined in Section299. If the answer to this question is prima facie found in the
affirmative, the stage for considering the operation of Section 300,
Penal Code is reached. This is the stage at which the Court should
determine whether the facts proved by the prosecution bring the case
within the ambit of any of the four Clauses of the definition of 'murder'
contained in Section 300. If the answer to this question is in the
negative, the offence would be 'culpable homicide not amounting to
murder', punishable under the First or the Second Part of Section 304,
depending. respectively, on whether the second or the third Clause of
Section 299 is applicable. If this question is found in the positive, but
the case comes within any of the Exceptions enumerated in Section
300, the offence would still be 'culpable homicide not amounting to
murder', punishable under the First Part of Section 304, Penal Code.14. I am of the view that, in the first instance, no first information
report can be registered for the offence under section 304 of the Indian
Penal Code. I am also of the view that the police, at the end of the
investigation, could not have filed the chargesheet for the offence under
section 304 of the Indian Penal Code. Section 304 of the Indian Penal
Code would apply provided the case falls within one of the exceptions to
section 300 of the I.P.C. If a chargesheet is filed for the offence of
murder, and if it is the defence case of the accused that the offence is
one of culpable homicide not amounting to murder, then he has to bring
the case within one of the exceptions to section 300.15. In the aforesaid context, I may refer to and rely upon the decision
of the Supreme Court in the case of Harendra Nath Mandal vs. State of
Bihar, 1993 (2) SCC 435, in which the Supreme Court observed asPage 19 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTunder;
Section 304 does not create an offence but provides the
punishment for culpable homicide not amounting to murder. In
view of section 299 of the Penal Code, whoever causes death by
doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide. In view of section 300 of
the Penal Code, except in cases covered by the five exceptions
mentioned therein, culpable homicide is murder. It is well known
that if a death is caused and the case is covered by any one of the
five exceptions of section 300 then such culpable homicide shall not
amount to murder. Section 304 provides punishment for culpable
homicide not amounting to murder and draws a distinction in the
penalty to be inflicted in cases covered by one of the five exceptions,
where an intention to kill is present and where there is only
knowledge that death will be a likely result, but intention to cause
death or such bodily injury which is likely to cause death is absent.
To put it otherwise if the act of the accused falls within any of the
clauses 1, 2 and 3 of section 300 but is covered by any of the five
exceptions it will be punishable under the first part of section 304.
If, however, the act comes under clause 4 of section 300 i.e. the
person committing the act knows that it is so imminently
dangerous that it must, in all probability cause death but without
any intention to cause death and is covered by any of the
exceptions, it will be punishable under the second part. The first
part of section 304 applies where there is guilty intention whereas
the second part applies where there is guilty knowledge. But before
an accused is held guilty and punished under first part or second
part of section 304 , a death must have been caused by him under
any of the circumstances mentioned in the five exceptions to
section 300, which include death caused while deprived of power of
selfcontrol under grave and sudden provocation, while exercising
in good faith the right of private defence of person or property, and
in a sudden fight in the heat of passion without premeditation.16. Thus, section 304 of the Indian Penal Code does not create an
offence of culpable homicide, not amounting to murder. That section
provides for punishment in case of culpable homicide, not amounting to
murder. The first part of it provides for punishment of such offence,Page 20 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTwhen the act by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to cause death.
The second part of it provides for punishment in a case when the act is
done with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to
cause death. The offence that is made punishable under that Section is
the same offence namely; an offence of culpable homicide not
amounting to murder. It only provides different punishments, taking into
consideration, whether the act was done with a particular intention or
the act was done with the knowledge that is likely to cause death
without any intention to cause death, or to cause such bodily injury as is
likely to cause death. It will be significant to note that this Section 304
covers cases also where the offence is prima facie an offence of murder,
punishable under Section 302, but in view of the application of any one
of the exceptions given in Section 300 of the Indian Penal Code, the
offence of murder is reduced to an offence of culpable homicide, not
amounting to murder.17. At this stage, and in the aforesaid context, I must look into section
105 of the Evidence Act, which reads as under;105. Burden of proving that case of accused comes within
exceptions.When a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of
the General Exceptions in the Indian Penal Code, (45 of 1860), or
within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence, is upon him, and
the Court shall presume the absence of such circumstances.Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of
mind, he did not know the nature of the act. The burden of proof is on
A.Page 21 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT(b) A, accused of murder, alleges, that by grave and sudden
provocation, he was deprived of the power of selfcontrol. The burden
of proof is on A.(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that
whoever, except in the case provided for by section 335, voluntarily
causes grievous hurt, shall be subject to certain punishments.18. Thus, the plain reading of section 105 of the Evidence Act makes
it clear that the burden of proving the existence of circumstances,
bringing the case within any of the general exceptions in the Indian
Penal Code or within any special exception or proviso, is upon the
accused and the court shall presume the absence of such circumstances.19. In the aforesaid context, I may refer to and rely upon a three
Judge Bench decision of the Supreme Court in the case of Vijayee Singh
Ors. vs. State of U.P., AIR 1990 SC 1459, wherein the Supreme Court
observed as under;22. At this stage it becomes necessary to consider the meaning of the
words "the Court shall presume the absence of such circumstances"
occurring in Section 105 of the Evidence Act. Section 4 of the Act
explains the meaning of the term "shall presume" as to mean that the
Court shall regard the fact as proved unless and until it is disproved.
'From a combined reading of these two Sections it may be inferred that
where the existence of circumstances bringing the case within the
exception is pleaded or is raised the Court shall presume the absence of
such circumstances as proved unless and until it is disproved. In
Section 3 of the Act meaning of the terms "proved", "disproved" and
"not proved" are given. As per this provision, a fact is said to be
"proved" when, after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon
the supposition that it exists. A fact is said to be "disproved" when,
after considering the matters before it, the Court either believes 597
that it does not exist, or considers its nonexistence so probable that a
prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exist. A fact is said to be "not
proved" when it is neither "proved" nor "disproved."23. The first part of Section 105 as noted above lays down that when
Page 22 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTa person is accused of an offence, the burden of proving the existence of
circumstances bringing the case within any of the exceptions or proviso
is on him and the latter part of it lays down that the Court shall
presume the absence of such circumstances. In a given case the accused
may discharge the burden by expressly proving the existence of such
circumstances, thereby he is able to disprove the absence of
circumstances also. But where he is unable to discharge the burden by
expressly proving the existence of such circumstances or he is unable to
disprove the absence of such circumstances, then the case would fall in
the category of "not proved" and the Court may presume the absence of
such circumstances. In this background we have to examine the
meaning of the words "the Court shall presume the absence of such
circumstances" bearing in mind the general principle of criminal
jurisprudence that the prosecution has to prove its case beyond all
reasonable doubt and the benefit of every reasonable doubt should go
to the accused.24. It will be useful to refer to some of the passages from the text books
of outstanding authors on evidence and then proceed to consider the
ratio laid down by the Supreme Court cases on this aspect. In Phipson
on Evidence, 13th edn. page 44, a passage reads as follows:
"The burden is upon the prosecution of proving a defendant's guilt
beyond reasonable doubt before he is convicted. Even where the
evidential burden shifts to the defendant the burden of establishing
proof beyond reasonable doubt remains upon the prosecution and
never changes. If on the whole case the jury have such a doubt the
defendant is entitled to be acquitted."Another passage at page 48 reads as follows:
"In criminal cases the prosecution discharge their evidential burden by
adducing sufficient evidence to raise a prima facie case against the
accused. If no evidence is called for the defence the tribunal of fact
must decide whether the prosecution has succeeded in discharging its
persuasive 598 burden by proving its case beyond a reasonable doubt.
In the absence of any defence evidence, the chances that the
prosecution has so succeeded fare greater. Hence the accused may be
said to be under an evidential burden if the prosecution has established
a prima facie case. Discharge of the evidential burden by defence is not
a prerequisite to an acquittal. The accused is entitled to be acquitted if
at the end of and on the whole of the case, there is a reasonable doubt
created by the evidence given by either the prosecution or the
prisoner .....No matter what the charge ..... the principle that the
prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be entertained.XX XX XX
XX XX XXPage 23 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTIn many cases, however, the accused's defence will involve introducing
new issues, for example, automatism, provocation, selfdefence, duress,
etc. Once there is any evidence to support such "explanations" the onus
of disproving them rests upon the prosecution. The accused, either by
cross examination of the prosecution witnesses or by evidence called
on his behalf or by a combination of the two, must place before the
court such material as makes the defence a live issue fit and proper to
be left to the jury. But once he has succeeded in doing this and thereby
discharged his evidential burden it is then for the Crown to destroy
that defence in such a manner as to leave in the jury's minds no
reasonable doubt that the accused cannot be absolved on the grounds
of the alleged facts constituting the defence." Dealing with the
presumptions of law, the author has noted on page 60, thus:"Generally in criminal cases (unless otherwise directed by statute and
subject to 415 ante) the presumption of innocence casts on the
prosecutor the burden of proving every ingredient of the offence, even
though negative averments be involved therein. Thus, in cases of
murder, the burden 599 of proving death as a result of a voluntary act
of the accused and malice on his part is on the prosecution. On charges
of rape, etc. the burden of proving nonconsent by the prosecutrix is on
the prosecution and in bigamy, that of proving the defendant's
knowledge that his or her spouse was alive within the seven years last
past."Wigmore on evidence, dealing with the "Legal Effect of a presumption"
(3rd ed., Vol. IX p. 289) explains: "It must be kept in mind that the
peculiar effect of a presumption 'of law' (that is, the real presumption)
is merely to invoke a rule of law compelling the jury to reach the
conclusion 'in the absence of evidence to the contrary' from the
opponent. If the opponent does offer evidence to the contrary (sufficient
to satisfy the Judge's requirement of some evidence), the presumption
disappears as a rule of Taylor in his 'Treatise on the Law of Evidence'
( 12th Edn. Vol. 1 page 259) points out:"On the two fold ground that a prosecutor must prove every fact
necessary to substantiate his charge against a prisoner, and that the
law will presume innocence in the absence of convincing evidence to the
contrary, the burden of proof, unless shifted by legislative interference,
will fall in criminal proceedings on the prosecuting party, though, to
convict, he must necessarily have recourse to negative evidence. Thus, if
a statute, in the direct description of an offence, and not by way of
proviso (a), contain negative matter, the indictment or information
must also contain a negative allegation, which must in general be
supported by prima facie evidence."Dealing with the presumptions, the author says: "The proper direction
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R/SCR.A/9248/2016 CAV JUDGMENTas to onus of proof where prima facie evidence has been given on the
part of the prosecution which, if unanswered, would raise a
presumption upon which the jury might be justified in finding a verdict
of guilty, and the defendant has called evidence to rebut that
presumption, is that if they accepted the explanation given 600 by and
on behalf of the prisoner, or if that explanation raised in their minds a
reasonable doubt as to his guilt, they should acquit him as the onus of
proof that he was guilty still lay upon the prosecution. If upon the
whole evidence the jury are left in a real state of doubt the prosecution
has failed to satisfy the onus of proof which lies upon them."
It is held in Nanavati's case that under Section 105 of the act the
Court shall presume the absence of circumstances bringing the case
within any of the exceptions, i.e. the Court shall regard the non
existence of such circumstances as proved till they are disproved, but
this presumption can be rebutted by the accused by introducing
evidence to sup port his plea of accident in the circumstances
mentioned therein. This presumption may also be rebutted by
admissions made or circumstances elicited from the evidence led by the
prosecution or by the combined effect of such circumstances and the
evidence adduced by the accused. Dealing with the ingredients of the
offence to be proved by the prosecution and the burden to be
discharged under Section 105 of the Evidence Act by the accused and a
reasonable doubt that may arise on the basis of such rebuttal evidence
by the accused, it is observed:"An illustration may bring out the meaning. The prosecution has to
prove that the accused shot dead the deceased intentionally and
thereby committed the offence of murder within the meaning of s. 300
of the Indian Penal Code; the prosecution has to prove the ingredients
of murder, and one of the ingredients of that offence is that the accused
intentional ly shot the deceased; the accused pleads that he shot at the
deceased by accident without any intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means with proper care
and caution, the accused against whom a presumption is drawn under
s. 105 of the Evidence Act that the shooting was not by accident in the
circumstances mentioned in s. 80 of the Indian Penal Code, may
adduce evidence to rebut that presumption. That evidence may not be
sufficient to prove all the ingredients of s. 80 of the Indian Penal Code,
but may prove that the shooting was by accident or inadvertence, i.e. it
was done without any intention or requisite state of mind, which is the
essence of the offence, within the meaning of s. 300 Indian Penal Code.
or at any rate may throw a reasonable doubt on the essential
ingredients of the offence of murder. In that event, though the accused
failed to bring his case 601 within the terms of s. 80 of the Indian
Penal Code, the Court may hold that the ingredients of the offence
have not been established or that the prosecution has not made out the
case against the accused. In this view it might be said that the generalPage 25 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTburden to prove the ingredients of the offence, unless there is a specific
statute to the contrary, is always on the prosecution, but the burden to
prove the circumstances coming under the exceptions lies upon the
accused. The failure on the part of the accused to establish all the
circumstances bringing his case under the exception does not absolve
the prosecution to prove the ingredients of the offence; indeed, the
evidence, though insufficient to establish the exception, may be
sufficient to negative one or more of the ingredients of the offence."In Dahyabhai's case as already noted, the relevant portion reads thus:
"The evidence so placed may not be sufficient to discharge the burden
under s. 105 of the Evidence Act, but it may raise a reasonable doubt
in the mind of a Judge as regards one or other of the necessary
ingredients of the offence itself. It may, for instance, raise a reasonable
doubt in the mind of the judge whether the accused had the requisite
intention laid down in S. 299 of the Penal Code."25.The maxim that the prosecution must prove its case beyond
reasonable doubt is a rule of caution laid down by the Courts of Law in
respect of assessing the evidence in criminal cases. Section 105 places
'burden of proof' on the accused in the first part and in the second part
we find a presumption which the Court can draw regarding the
absence of the circumstances which presumption is always rebuttable.
Therefore, taking the Section as a whole the 'burden of proof' and the
presumption have to be considered together. It is axiomatic when the
evidence is sufficient as to prove the existence of a fact conclusively then
no difficulty arises. But where the accused introduces material to dis
place the presumption which may affect the prosecution case or create
a reasonable doubt about the existence of one or other ingredients of
the offence and then it would amount to a case where prosecution
failed to prove its own case beyond reasonable doubt. The initial
obligatory presumption that the Court shall presume the absence of
such circumstances gets lifted when a plea of exception is raised. More
so when there are circumstances on the record (gathered from the
prosecution evidence, chief and cross examinations, probabilities and
circumstances, if any, introduced by the accused, either by adducing
evidence or otherwise) creating a reasonable doubt about the existence
of the ingredients of the offence. In case of such a reasonable doubt, the
Court has to give the benefit of the same to the accused. The accused
may also show on the basis of the material a preponderance of
probability in favour of his plea. If there are absolutely no
circumstances at all in favour of the existence of such an exception then
the rest of the enquiry does not arise inspite of a mere plea being
raised. But if the accused succeeds in creating a reasonable doubt or
shows preponderance of probability in favour of his plea, the
obligation on his part under Section 105 gets discharged and hePage 26 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTwould be entitled to an acquittal.
26. From what has been discussed above it emerges that the
presumption regarding the absence of existence of circumstances
regarding the exception can be rebutted by the accused by introducing
evidence in any one of the manners mentioned above. If from such a
rebuttal, a reasonable doubt arises regarding his guilt, the accused
should get the benefit of the same. Such a reasonable doubt
consequently negatives one or more of the ingredients of the offence
charged, for instance, from such a rebuttal evidence, a reasonable
doubt arises about the right of private defence then it follows that the
prosecution has not established the necessary ingredients of intention
to commit the offence. In that way the benefit of a reasonable doubt
which arises from the legal and factual considerations even under
Section 105 of the Evidence Act should necessarily go to the accused.27 It can be argued that the concept of 'reasonable doubt' is vague in
nature and the standard of 'burden of proof' contemplated under
Section 105 should be somewhat specific, therefore, it is difficult to
reconcile both. But the general principles of criminal jurisprudence,
namely, that the prosecution has to prove its case beyond reasonable
doubt and that the accused is entitled to the benefit of a reason able
doubt, are to be borne in mind. The 'reasonable doubt' is one which
occurs to a prudent and reasonable man. Section 3 while explaining
the meaning of the words "proved", "disproved" and "not proved" lays
down the standard of proof, namely, about the existence or
nonexistence of the circumstances from the point of view of a prudent
man. The Section is so worded as to provide for two conditions of
mind, first, that in which a man feels absolutely certain of a fact, in
other words, "believe it to exist" and secondly in which though he may
not feel absolutely certain of a fact, he thinks it so extremely probable
that a prudent man would under the circumstances act on the
assumption of its existence. The Act while adopting the requirement of
the prudent man as an appropriate concrete standard by which to
measure proof at the same time contemplates of giving full effect to be
given to circumstances or condition of probability or improbability. It
is this degree of certainty to be arrived where the circumstances before
a fact can be said to be proved. A fact is said to be disproved when the
Court believes that it does not exist or considers its nonexistence so
probable in the view of a prudent man and now we come to the third
stage where in the view of a prudent man the fact is not proved i.e.
neither proved nor disproved. It is this doubt which occurs to a
reasonable man, has legal recognition in the field of criminal disputes.
It is something different from moral conviction and it is also different
from a suspicion. It is the result of a process of keen examination of the
entire material on record by 'a prudent man'.Page 27 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT20. It was held in the case of Rishi Kesh Singh Vs. State reported in
AIR 1970 All. 51 (FB) that:"The accused person who pleads an exception is entitled to be acquitted
if upon a consideration of the evidence as a whole (including the
evidence given in support of the plea of the general exception) a
reasonable doubt is created in the mind of the Court about the built of
the accused".In that case, the result of a consideration of the decisions of the
Supreme Court in relation to the provisions of Section 105 of the
Evidence Act was summed up Beg, J (as His Lordships then was) as
follows (at page 9798):". . . an accused's plea of an exception may reach one of three not
sharply demarcated stages, one succeeding the other, depending upon
the effect of the whole evidence in the case judged by the standard of a
prudent man weighing or balancing probabilities carefully. These
stages are: firstly, a lifting of the initial obligatory presumption given
at the end of section 105 of the Act; secondly, the creation of a
reasonable doubt about the existence of an ingredient of the offence;
and, thirdly, a complete proof of the exception by 'a preponderance of
probability', which covers even a slight tilt of the balance of probability
in favour of the accused's plea. The accused is not entitled to an
acquittal if his plea does not get beyond the first stage. At the second
stage, he becomes entitled to acquittal by obtaining a bare benefit of
doubt. At the third stage, he is undoubtedly entitled to an acquittal.
This, in my opinion, is the effect of the majority view in Parbhoo'. case
which directly relates to first two stages only. The Supreme Court
decisions have considered the last two stages so far, but the first stage
has not yet been dealt with directly or separately there in any case
brought to our notice."21. Provisions of Section-105 of the Evidence Act, which are applicable
in such cases, contain what are really two kinds of burden of the accused
who sets up an exception; first, there is the onus laid down of proving
the existence of circumstances bringing the case within any of the
General exceptions in the Indian Penal Code, or, within any special
exception or proviso contained in any other part of the same Code, or inPage 28 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTany law defining the offence, and, secondly, there is the burden of
introducing or showing evidence which results from the last part of the
provision which says that "the Court shall presume the absence of such
circumstances". The effect of this obligatory presumption at the end of
Section 105 of the Evidence Act is that the Court must start by assuming
that no facts exist which could be taken into consideration for
considering the plea of self defence as an exception to the criminal
liability which would otherwise be there. But, when both sides have led
evidence of their respective versions, the accused can show, from any
evidence on the record, whether tendered by the prosecution or the
defence, that the mandatory presumption is removed. the last mentioned
burden is not really a burden of establishing the plea fully but of either
introducing or of showing the existence of some evidence to justify the
taking up of the plea. The burden resulting from the obligatory
presumption is not difficult to discharge and its removal may not be
enough nor an acquittal.22. Section 105 of the Evidence Act was thus explained in Rishi Kesh
Singh's case (supra) (at P. 95):"Even a literal interpretation of the first part of Section 105 could
indicate that 'the burden of proving the existence of circumstances
bringing the case' within an exception is meant to cover complete proof
of the exception pleaded, by a preponderance of probability, as well as
proof of circumstances showing that the exception may exist which will
entitle, the accused to the benefit of doubt on the ingredients of an
offence. If the intention was to confine the benefit of bringing a case
within an exception to cases where the exception was established by a
preponderance of probability, more direct and definite language
would have been employed by providing that the accused must 'prove
the existence' of the exception pleaded. But, the language used in the
first part of Section 105 seems to be deliberately less precise so that the
accused, even if he fails to discharge his duty fully, by establishing the
existence of an exception, may get the benefit of the exception in
directly when the prosecution fails in its duty to eliminate genuine
doubt about his guilt introduced by the accused. Again, the last part ofPage 29 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTSection 105, even if strictly and literally interpreted, does not justify
reading into it the meaning that the obligatory presumption must last
until the accused's plea is fully established and not just till
circumstances (i.e. not necessarily all) to support the plea are proved.Moreover, a restrictive interpretation of Section 105, excluding an
accused 11 from the benefit of bringing his case within an exception
until he fully proves it, is ruled out by the declaration of law by the
Supreme Court that there is no conflict between Section 763 105 and
the prosecution's duty to prove its case beyond reasonable doubt.
Hence, the obligatory presumption, at the end of Section 105, cannot
be held to last until the accused proves his exception fully by a
preponderance of probability. It is necessarily removed earlier or
operates only initially as held clearly by judges taking the majority
view in Parbhoo's case, 1941 All LJ 619AIR 1941 All 402 (FB)".It was also said there (at p. 89):
"The legal position of a state of reasonable doubt may be viewed and
stated from two opposite angles. One may recognise, in a realistic
fashion, that, although the law prescribes only the higher burden of
the prosecution to prove its case beyond reasonable doubt and the
accused's lower burden of proving his plea by a preponderance of
probability only, yet, there is, in practice, a still lower burden of
creating reason able doubt about the accused's guilt, and that an
accused's can obtain an acquittal by satisfying this lower burden too in
practice. The objection to stating the law in this fashion is that it looks
like introducing a new type of burden of proof, although, it may be
said, in defence of such a statement of the law, that it only recognises
what is true. Alternatively, one may say that the right of the accused to
obtain the benefit of a reasonable doubt is the necessary outcome and
counterpart of the prosecution's undeniable duty to establish its case
beyond reasonable doubt and that this right is available to the accused
even if he fails to discharge his own duty to prove fully the exception
pleaded. This technically more correct way of stating the law was
indicated by Woolmington's case and adopted by the majority in
Parbhoo's case, and, after that, by the Supreme Court. It seems to me
that so long as the accused's legal duty to prove his plea fully as well as
his equally clear legal right to obtain the benefit of reasonable doubt,
upon a consideration of the whole evidence, on an ingredient of an
offence, are recognised, a mere difference of mode in describing the
position, from two different angles, is an immaterial matter of form
only. Even if the latter form appears somewhat artificial, it must be
preferred after its adoption by the Supreme Court". (See: K. M.
Nanavati v. State of MaharashtraAIR 1962 SC 605).Page 30 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT23. Thus, if the Court must start by assuming that no facts exist
which could be taken into consideration for considering any plea as an
exception to the criminal liability, which would otherwise be there, then
how the Police can assume that the case is one falling within the
exception to Section300 of the IPC.24. Let me, for the time being, proceed on the footing that the case is
one of culpable homicide amounting to murder. In such circumstances,
the only clause that can be invoked, if at all applicable, would be Clause
Fourthly to section 300. Section 300 reads as under;"300. Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or 2ndly xxx xxx xxx xxx
3rdly xxx xxx xxx xxx
4thly. If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as
aforesaid."25. Clause fourthly covers those class of cases which are very
dangerous in themselves and the act is done with the knowledge that it
must, in all probability, cause death or such bodily injury as is likely to
cause death and despite such knowledge, the act is done without any
excuse. In other words, the provisions of clause fourthly are required to
be attracted only when the offender knows that his act is so imminently
dangerous that it would, in all probability, cause death or, at least, such
bodily injury, which is likely to cause death. Such knowledge on the part
of the accused must be of highest degree of probability. It is also a well
known fact that clause fourthly is designed to provide for that class ofPage 31 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTcases where the acts resulting in death are calculated to put lives of
many persons in jeopardy without being aimed at any one in particular
and perpetrated with full consciousness of the probable consequence, as
can be seen from the illustration (d) of Section 300 of the IPC.26. The word "imminently" implies a risk which is both threatening
and near. The question whether an act is imminently dangerous depends
upon the nature of the act and its evident risk to human a life. It must be
an act in which death of human is certain or almost so, and it would
cause surprise if the result was otherwise.27. Sitting in a Division Bench, I had an occasion to consider Clause
Fourthly of section 300 in the case of Lashuben Chemabhai Chaudharyvs. State of Gujarat, Criminal Appeal No.945 of 2007, decided on 3rd
August, 2012. I may quote the relevant observations as under;13. We have already discussed above that the action of the accused in
pushing the deceased in the fire of a hearth was preceded by a quarrel
between the deceased and the appellant. From the aforesaid evidence
on record, it cannot be said that the appellant had the intention that
such action on her part would cause the death or such bodily injury to
the deceased, which was sufficient in the ordinary course of nature
to cause the death of the deceased. Therefore, in our view, the case
cannot be said to be covered under Clause Fourthly of Section 300 IPC,
however, the case of the appellant is covered under Section 304, PartII
IPC. Clause (4) to Section 300 reads as under :"300. Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or 2ndly xxx xxx xxx xxx
3rdly xxx xxx xxx xxx4thly. If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury asPage 32 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTaforesaid."
This clause covers class of cases which are very dangerous in themselves
and the act is done with the knowledge that it must in all probability
cause death or such bodily injury as is likely to cause death and despite
such knowledge, the act is done without any excuse. In other words,
provisions of this clause are required to be attracted only when the
offender knows that his act is so imminently dangerous that it would
in all probability cause death or atleast such bodily injury which is
likely to cause death. Such knowledge on the part of the accused must
be of highest degree of probability. It is also a well known fact that the
clause 4thly is designed to provide for that class of cases where the acts
resulting in death are calculated to put lives dof many persons in
jeopardy without being aimed at any one in particular and perpetrated
with full consciousness of the probable consequence, as can be seen
from illustration (d) of Section 300 of the IPC. Under clause (4) the
degree of probability or likelihood of the act resulting in fatal harm is
required to be of highest level. This can be gathered from the clear
wording of the clause (4), namely, "If the person committing the act
knows that it is so imminently dangerous that it must, in all
probability cause death ......." For
applicability of this clause following are the necessary requirements :(1) the act must be imminently dangerous;
(2) the act must be of extraordinary recklessness;
(3) the danger to human life must be so imminent; and
(5) the imminence should be such that it will in all probability cause
death or cause such bodily injury as is likely to cause death.The word "imminently" implies a risk which is both threatening and
near. The question whether an act is imminently dangerous depends
upon nature of the act and its evident risk to human life. The danger
threatened must be to human life. It must be an act in which death of
human is certain or almost so, and it would cause surprise if the result
was otherwise. Moreover, the danger must not only be of certain or
almost certain death, but of a death which is near and may be counted
by days or may be hours. Thus, it can be seen that unlike the preceding
three clauses of Section 300 clause (4) revolves round the knowledge of
the accused and intention of the accused is of no relevance to attract
provisions of this clause.28. The act on the part of the applicants in constituting an unlawful
assembly and forcibly storming into the flat, thereby creating a panic orPage 33 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTfear in the mind of the deceased and his friends, in my opinion, by any
stretch of imagination, would not fall under Clause4 to Section300 so
as to bring the act within the ambit of culpable homicide amounting to
murder.29. In my opinion, Section304 of the IPC has no application in the
present case.30. In the aforesaid context, I must look into the decision of the
Supreme Court in the case of 'State of Madhya Pradesh Vs. Ram Prasad'
reported in AIR 1968 SC 881. In the said case, the respondent Ram
Prasad was tried in the Court of Sessions for the offence under Section
302 of the IPC. He was convicted by the learned Sessions Judge under
Section324 of the IPC and sentenced to rigorours imprisonment for six
months. The State Government then filed an appeal against his acquittal
under Section302 of the IPC and also an application for revision for the
enhancement of the sentence passed on him. The High Court convicted
him under Section304 Part II of the IPC. The State Government
thereafter filed an appeal in the Supreme Court contending that the
conviction of the respondent Ram Prasad should have been under
Section302 of the IPC. Ram Prasad was living with his mistress. They
used to quarrel quite frequently. On the date of the incident, Ram Prasad
intended to leave Mannaur for a place called Harsa, because his cattle
used to be stolen at Mannaur. The mistress was unwilling to go with
him. On the night of the incident, Ram Prasad put kerosene oil on the
clothes of his mistress and set her ablaze. Few witnesses heard the
mistress shouting that RamPrasad had put kerosene oil and had set her
alight. The Supreme Court decided the appeal filed by the State
addressing the question what offence Ram Prasad could be said to have
committed. While allowing the appeal and substituting the conclusionPage 34 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTunder Section302 of the IPC in place of the conviction under Section
304(2) of the IPC, the Supreme Court observed as under :The question then arises, what was the offence which Ram Prasad can
be said to have committed ? The offence of causing injury by burning is
a broad spectrum which runs from s. 324 causing simple injury by
burning through s. 326, namely, causing grievous injury by burning to
the two major offences, namely, culpable homicide not amounting to
murder and even murder itself. The Sessions Judge chose the lowest
end of the spectrum which is surprising enough, because the burns
were so extensive that they were certainly grievous by all account. The
High Court placed the offence a little higher, namely, culpable
homicide not amounting to murder. We think that the matter goes a
little further than this. As death has been caused the question has to be
considered in the light of homicide to determine whether the action of
Ram Prasad Calls within culpable homicide not amounting to murder
or the higher offence of murder itself. Here we see that death has
actually been caused by the criminal act; in other words, there has
been homicide and since it is not accidental or suicidal death,
responsibility for the homicide, in the absence of any exceptions ;or
extenuating circumstances, must be borne by the person who ,caused
it. The High Court has apparently stopped short by holding that this
was a case of culpable homicide not amounting to murder. The
question is whether the offence falls in any of the clauses of s. 300
Indian Penal Code. In this connection it is difficult to say that Ram
Prasad intended causing the death of Mst. Rajji although it might well
be the truth. That he set fire to her clothes after pouring kerosene oil is
a patent fact and therefore the matter has to be viewed not only with
regard to the firstly of s. 300, but all the other clauses also. We do not
wish to consider the second and the third clauses, because the question
then would arise what was the extent of the injury which Ram Prasad
intended to cause or knew would be caused to Mst. Rajji. That would
be a matter of speculation. In our opinion, this matter can 'be disposed
of with reference to clause fourthly ,of s. 300. That clause reads as
follows :....... culpable homicide is murder..... if the person committing the
act knows that it is so imminently dangerous that it must in all
probability, cause death or such bodily injury as is likely to cause
death, and commits'such act without any excuse for incurring the
risk or causing death or such injury as aforesaid."It is obvious that there was no excuse for Ram Prasad to have taken
the risk of causing the death or such bodily injury as was likely to
cause death. The question therefore arises whether Ram Prasad knew
that his act was so imminently dangerous that it must in allPage 35 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTprobability cause death or such bodily injury as is likely to cause
death, so as to bring the matter within the clause. Although clause
fourthly is usually invoked in those cases where there is no intention to
cause the death of any particular person (as the illustration shows) the
clause may on its terms be used in those cases where there is such
callousness towards the result and the risk taken is such that it may be
stated that the person knows that the act is likely to cause death or
such bodily injury as is likely to cause death. In the present case, Ram
Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to
those clothes. It is obvious that such fire spreads rapidly and burns
extensively. No special knowledge is needed to know that one may
cause death by burning if he sets fire to the clothes of a person.
Therefore, it is obvious that Ram Prasad must have known that he was
running the risk of causing the death of Rajji or such bodily injury as
was likely to cause her death. As he had no excuse for incurring that
risk, the offence must be taken to fall within 4thly of S. 300, Indian
Penal Code. In other words, his offence was culpable homicide
amounting to murder even if he did not intend causing the death of
Mst. Rajji. He committed an act so imminently dangerous that it was
in all probability likely to cause death or to result in an injury that
was likely to cause death. We are accordingly of the opinion that the
High Court and the Sessions Judge were both wrong in holding that
the offence did not fall within murder.31. The Supreme Court held that the act of Ram Prasad was such that
he knew that he was running the risk of causing of the death of the
victim or such bodily injury as was likely to cause her death. As he had
no excuse for incurring that risk, the offence must be taken to fall within
fourthly of Section300 of the IPC. In other words, according to the
Supreme Court, the offence of Ram Prasad was culpable homicide
amounting to murder, even if he did not intend causing the death
because he committed an act so imminently dangerous that he was in all
probability likely to cause death or to result injury that was likely to
cause death. So far as the case on hand is concerned, the act alleged,
was not of the nature, by which, even an inference could be drawn that
the applicants knew that they were running the risk of causing the death
of Kapil or such bodily injury as was likely to cause the death of Kapil.
Probably, none of the applicants had even the slightest idea that KapilPage 36 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTwas hiding himself outside the balcony. It was a volunatary act on the
part of the deceased. He incurred the risk for the purpose of escaping by
jumping from the balcony to the other building bank opposite. But in the
process, fell down and hurt himself grievously.32. The above takes me to consider whether the chargesheet could
have been filed for the offence under Section395 of the IPC. Section
390 of the IPC explains what is robbery. Section390 of the IPC reads as
under:
390. Robbery.In all robbery there is either theft or extortion.
When theft is robbery.When theft is robbery.Theft is "robbery" if, in order to the committing
of the theft, or in committing the theft, or in carrying away or
attempting to carry away property obtained by the theft, the offender,
for that end, voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint.When extortion is robbery.
When extortion is robbery.Extortion is "robbery" if the offender, at
the time of committing the extortion, is in the presence of the person
put in fear, and commits the extortion by putting that person in fear of
instant death, of instant hurt, or of instant wrongful restraint to that
person or to some other person, and, by so putting in fear, induces the
person, so put in fear then and there to deliver up the thing extorted.Explanation.The offender is said to be present if he is sufficiently near
to put the other person in fear of instant death, of instant hurt, or of
instant wrongful restraint.Illustrations
(a) A holds Z down, and fraudulently takes Z's money and jewels from
Z's clothes, without Z's consent. Here A has committed theft, and, in
order to the committing of that theft, has voluntarily caused wrongful
restraint to Z. A has therefore committed robbery.(b) A meets Z on the high road, shows a pistol, and demands Z's purse.
Z, in consequence, surrenders his purse. Here A has extorted the purse
from Z by putting him in fear of instant hurt, and being at the time of
committing the extortion in his presence. A has therefore committed
robbery.Page 37 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT(c) A meets Z and Z's child on the high road. A takes the child, and
threatens
(ci) to filing it down a precipice, unless Z delivers his purse. Z, in
consequence, delivers his purse. Here A has extorted the purse from Z,
by causing Z to be in fear of instant hurt to the child who is there
present. A has therefore committed robbery on Z.(d) A obtains property from Z by saying"Your child is in the hands of
my gang, and will be put to death unless you send us ten thousand
rupees". This is extortion, and punishable as such: but it is not robbery,
unless Z is put in fear of the instant death of his child.33. Section391 is with regard to the Dacoity. Section391 of the IPC
reads as under:391. Dacoity.When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or
more, every person so committing, attempting or aiding, is said to
commit "dacoity".34. Theft amounts to `robbery', if in order to the committing of the
theft, or in committing the theft, or in carrying away or attempting to
carry away property obtained by the theft, the offender for that end,
voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt, or of
instant wrongful restraint. Before theft can amount to `robbery', the
offender must have voluntarily caused or attempted to cause to any
person death or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint. The second necessary
ingredient is that this must be in order to the committing of the theft, or
in committing the theft, or in carrying away or attempting to carry away
property obtained by the theft. The third necessary ingredient is that the
offender must voluntarily cause or attempt to cause to any person hurt
etc. for that end, that is, in order to the committing of the theft or for the
purpose of committing theft or for carrying away or attempting to carryPage 38 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTaway property obtained by the theft. It is not sufficient that in the
transaction of committing theft hurt etc., had been caused. If hurt etc. is
caused at the time of the commission of the theft but for an object other
than the one referred to in sec. 390, I. P. Code, theft would not amount
to robbery. It is also not sufficient that hurt had been caused in the
course of the same transaction as commission of the theft. The three
ingredients mentioned in sec. 390, I. P. Code, must always be satisfied
before theft can amount to robbery and this has been explained in
Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476, in the following
words:"The words `for that end' in sec. 390 clearly mean that the hurt caused
by the offender must be with the express object of facilitating the
committing of the theft or must be caused while the offender is
committing the theft or is carrying away or is attempting to carry
away the property obtained by theft. It does not mean that the assault
or the hurt must be caused in the same transaction or in the same
circumstances."[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol.
II) GLR 678]35. In the case of Karuppa Gounden v. Emperor A. I. R. 1918
Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v.
Kafiluddi Manjhi 5 C. W. N. 372 and King Emperor v. Mathura
Thakur 6 C. W. N. 72, it has been observed at page 824 as follows :"Now it is our duty to give effect to the words `for that end'. It would
have been open to the legislature to have used other words which
would not raise the difficulty that arises here. The public Prosecutor
has been forced to argue that `for that end' must be read as meaning
`in those circumstances'. In my opinion we cannot do that in
construing a section in the Penal Code. Undoubtedly words `in those
circumstances' would widen the application of the section and we are
not permitted to do that. The matter has been considered in two
judgments of the Calcutta High Court one of which is reported as
Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W..N. 372. Their Lordships
put the question in this way: ;"It seems to us that the whole question turns upon the words 'for
Page 39 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTthat end'. Was any hurt or fear of instant hurt, that was caused in
the present case, cause for the end of 'the commission of the theft?
We think not. It seems to us that whatever violence was used was
used for the purpose of dispossessing the persons who were already
in possession of the premises in question and had no relation to
the commission of theft, although theft was committed at the same
time."The language used in another case reported as King Emperor v.
Mathura Thakur 6 C. W. N. 72 is as follows:"The question here arises whether Mathura Thakur when he
attacked Soman Dhania, did so for the end referred to, namely, for
the purpose of carrying away the paddy, which had been
harvested."Those judgments in my opinion state the obvious intention of the
Section and we are bound no give effect t0 it and I therefore follow the
decisions in those two cases.Ordinarily, if violence or hurt etc. is caused al the time of theft, it
would be reasonable to infer hat violence or hurt was caused for
facilitating the commission of theft or for facilitating the carrying
away of the property stolen or for facilitating the attempt to do so.
But, there may be something in evidence to show that hurt or violence
was caused not for this purpose but for a different purpose.[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol.
II) GLR 678]36. By any stretch of imagination, it cannot be said that the common
object of the unlawful assembly was to commit dacoity. The act of taking
away mobiles lying in the flat would not constitute dacoity.37. At this stage, let me look into the impugned order passed by the
trial Court rejecting the discharge application. While rejecting the
discharge application, the trial Court observed as under:The record of the present case reveals that the accused no.2 on mobile
phone inquired from the complainant herein that why did you harass
and tease the witness no.14 (Sweety), being fumed and furious the
accused no.1 to 7 came to scene of offence arming themselves with
deadly weapons and created an environment of great fear by hurlingPage 40 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTabuses and challenging the complainant and other. The alleged matter
id not stop there but went to the extent of breaking the main door of
the house, in which the victim and witnesses closed themselves in
various other rooms fearing their furiousness and to save themselves
from the outcome of the anger of the accused herein. The deceased who
had closed himself in the balcony due to fear of his being killed. The
accused approached at that door leading to balcony and tried to break
the door as well. Since the accused herein were trying to break the door
and their furious conduct gave terrific signal of causing the death of
the victim, just with a view to save himself from said violent fury and
being killed, he jumped from said balcony to escape from being killed
from the accused herein resulting into his falling down on the ground
being caused the injuries to which he succumbed late on. In the
meanwhile, the accused herein took away three mobile phones
belonging to complainant and the witnesses being worth of Rs.3,000/
by committing the robbery and decamped with said articles and
destroyed the same later on and by locking remaining witnesses in the
said premises.The main witness to the present incident is none other than the witness
by name Rahulbhai Bharatbhai Thakkar herein who himself is the
victim of violent aggression of the accused/applicants herein. His
version goes that the applicants/accused herein have descended at the
place of incident arming themselves with deadly weapons caused all
the victims including the deceased huddled themselves into different
rooms of the house and closed the doors of front room and other rooms
from inside. That did not deter the accused/applicant herein who had
broken open the door of the main room of said house, entered therein
and started breaking the things in the said room. The
applicants/accused herein did not stop there, but went further and
trying to breakup the doors of the rooms wherein these victims
including the deceased being closed himself to protect from the
aggression of the accused/applicants herein. Carrying deadly weapons
coupled with violent aggression shirk and sought to kill them instilled
the fear in the mind of the deceased led him to jump from the balcony
of one house to another which caused his fall resulting into the death
of the deceased.The second part of the statement clearly specifies the
accused/applicants herein have decamped with the mobile phones
belonging to complainant and other two witnesses.These factual aspects get fortification from the complaint and other
witnesses like Aneesh, Urvish, Bhumin, who were very much present
over there while actual alleged offense took place.Act and its doer:
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R/SCR.A/9248/2016 CAV JUDGMENTThese two aspects in the form of act narrated in clause (a) (b) and (c)
lays bare the factual matrix which at lease on a standard of proof that
is expected at the stage of framing of charge as envisaged in Section
228 of Code of Criminal Procedure. The further analysis of the said
factual matrix, of course, primafacie puts forward sufficient material
to assign doership to the accused herein and acts that have been
committed in the form of violent aggressive assault leading to
happening of the death of the deceased. Violent aggressive assault
coupled with shirk and shout to kill reflects the state of mind of the
accused. The work "act" contemplates in its sweep anything and
everything which results into some consequences violent aggressive
assault on the part of the accused/applicants herein very well falls
within then precinct of the word "act" which is employed in first part of
the definition of culpable homicide which is defined in Section 299 of
Indian Penal Code. This word "act" embodies and is impregnate with
very wide meaning which includes in its sweep the act which may be
termed as cause of the effect. In this factual matrix, the cause is the
violent aggressive assault on the deceased and other witnesses and its
effect is the death of the deceased. The act does not stand alone but
reflects the mantle state of the applicants/accused herein who have
expressed the same through words which are followed by the action in
the form of carrying the weapons, violent behavior in the form of
breaking open the main door of the house and trying to break the door
of the balcony in which the deceased being present at the relevant time.
This act on the part of the accused/applicants herein have caused
terrific alarm in the mind of the deceased as he felt between deep sea
on one hand and devil on the other. The action on the part of accused
herein had compelled the deceased to jump from balcony so as to save
himself from being killed at the hands of the applicants/accused
herein. Thus, the death of the deceased herein at this primafacie stage,
appears to be the consequences of the act on the part of the
accused/applicants herein viz. violent aggressive assault holding deadly
and dangerous weapons like hockey sticks etc. and breaking open the
door and tried to break open the door leading to balcony where the
deceased closed himself from protection of the aggression on the part of
the accused/applicants herein. Action, its doership, mental status of in
the form of intention and outcome which are expected of in Section 34
of Indian Penal Code are very much in existence in the material
available in the form of chargesheet which bring to fore the existence of
the ground for proceeding for framing of charge in the background of
existence of ingredients of Section 34 of Indian Penal Code as follows;Essential Ingredients: An offence under this Section provides
punishment to culpable homicide not amounting to murder;
Culpable homicide not amounting to murder has been made
punishable in the following cases;Page 42 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT(1) If the act by which death is caused is done with intention of
causing death or such bodily injury as is likely to cause death, the
punishment is imprisonment for life, or imprisonment of either
description for a term which may extend to ten years and fine.(2) If the act is done with knowledge that it is likely to cause death but
without any intention to cause death or such bodily injury as is likely
to cause death, the punishment is imprisonment of either description
for a term which may extend to ten years, or with fine, or with both.In this regard, very high emphasis laid by the Learned Advocate for the
accused/ applicants herein on the decision of Hon'ble High Court of
Gujarat in Criminal Misc. Application bearing No.15385 of 2011
while dealing with the anticipatory bail application in respect of non
applicability of Section 304 of Indian Penal Code and presence of the
accused/applicants herein. These observations were made at
preliminary stage and consequently, the order of Hon'ble High Court of
Gujarat mandates as follows in para 13 of said order;"At the trial, the Trial Court shall not be influenced by the observation
of preliminary, nature, qua the evidence at this stage, made by this
Court while enlarging the applicants on bail. Rule made absolute."After passing the said order, the chargesheet has been laid after
concluding the investigation opining that there is sufficient material to
support the charges levelled therein. Consequently, as per the mandate
of Hon'ble High Court of Gujarat, it does not help the applicants/
accused herein at this stage.Similarly, consideration of entire material available on the record and
proceedings of the present case, very well brought on record the
material pointingout that the accused/applicants herein have been
decamped with the mobiles of the complainant and witnesses herein.
The further material suggests that same has not been recovered
on account of same being destroyed by the accused/applicants
herein. The accused/applicants cannot take benefit of their own
wrong saying no recovery or discovery having been effected. This
fact coupled with other factual matrix on record clearly support at
least at this stage, existence of the following essential ingredients of
Section395 of Indian Penal Code which go as follows;(a) that a dacoity as defined in 391 was committed; and
(b) that it was committed by the accused persons;
The evidence available at this stage, makes it clear that five or more
persons were present at the time of incident, by expressing violentPage 43 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTaggressive assault put all the victims in the terrific fear or instant
death of hurt or of wrongful restrained and decamped with the mobile
phones in question. This entire evidence very much indicates about
existence of the all the ingredients and positive opinion of the
Investigating Officer in the chargesheet indicates the mobile phones
which were looted or decamped with were completely destroyed. This is
how the positive evidence of discovery of said mobile phones were
rendered unavailable for recovery. In this particular factual aspect, the
ratio laid down by Hon'ble High Court of Gujarat in Amrish
Devnarayan Rajput (Supra) does not help the accused herein, which
goes as follows;"Where various charges including charge under S.397 of Penal Code
were framed against accused on mere allegation that due to anger
against some media persons a mob of 40 persons acted violantly and
snatched as video camera and gold chain was also snatched by one of
the accused, that by itself would not be sufficient to infer, in absence of
any positive evidence, that the group of persons had ever intended
robbery or attempted roberry, and it was held that accused was
entitled to be discharged from charge under S.397 Penal Code. It was
more so when no property was recovered from any of the accused or at
the instance of the accused and Gold chain allegedly snatched by one of
the accused when emerged to be an act of a wrong done by an
individual, prima facie, it cannot be equated with conjoint criminal
wrong done by a group of five or more persons."Weighing of the material on record emerging from the chargesheet
including the statements of the witnesses atleast creates and discloses
great and grave suspicion against the applicants/ accused herein which
need explaining, but no such explaining has been done on the record.
From every corner available material in the form of evidence and its
weighing and shifting bring to the fore the existence of the grounds
which need framing of charge under Section 304 and 395 of IPC. The
degree of proof that requires stems from the phrase "sufficient" ground
for proceeding against the accused." This indicates that the court has
to just infer as to whether the sufficient ground exist for proceeding
against the accused. As observed in the preceding part of the present
order, there appears to be in existence sufficient ground for proceeding
against the applicants/accused herein.This raises the question about the precinct in which the court ought to
operate; Does the court have at this stage liberty to weigh and shift the
evidence?What should be the degree of proof for either discharge or proceeding
further against the accused by way of framing charge?Page 44 of 47
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R/SCR.A/9248/2016 CAV JUDGMENTThese questions have squarely been replied in the decision of Hon'ble
Apex Court in Union of India Vs. Prafulla Kumar Samal and Another,
AIR 1979 SC 366, wherein it has been held as under;"10. Thus, on a consideration of the authorities mentioned above, the
following principles emerge:(1) That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power to
shift and weigh the evidence for the limited purpose of finding out
whether or not a primafacie case against the accused has been made
out;(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly explained
the Court will be fully justified in framing a charge and proceeding
with the trial.(3) The test of determine a primafacie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are equally
possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against
the accused, he will be fully within his right to discharge the accused.(4) That in exercising his jurisdiction under Section 227 of the Code
the Judge, which under the present Code is a senior and experienced
Court cannot act merely as a PostOffice or a mouthpiece of the
prosecution, but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving inquiry
into the pros and cons of the matter and weigh the evidence as if he
was conducting a trial."Since the court comes to the corner where its being posed with the
question does primafacie case involve all ingredients of the offences
including mensrea which operates on a mental plane?These facts really holdout the existence of the grounds requiring
framing of the charge and not discharging the
applicants/accused herein.The material thus bears out that all the material ingredients, which
are required to be in existence are primafacie there. These provide the
ground for framing the charge under Sections304 and 395 against the
accused/ applicants herein.Page 45 of 47
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R/SCR.A/9248/2016 CAV JUDGMENT(D) Summary as regards the conclusion:
Primafacie availability of the ingredients Section 304 and 395 viz.
(1) If the act by which death is caused is done with intention of
causing death or such bodily injury as is likely to cause death, the
punishment is imprisonment for life, or imprisonment of either
description for a term which may extend to ten years and fine; (2) If
the act is done with knowledge that it is likely to cause death but
without any intention to cause death or such bodily injury as is likely
to cause death, the punishment is imprisonment of either description
for a term which may extend to ten years, or with fine, or with both
and (a) that a dacoity as defined in 391 was committed; and (b) that
it was committed by the accused persons.In this backdrop, the ratio laid down in the Sajjan Kumar (supra) and
Amrish Devenarayan Rajput (supra) do not help in the materials, set
of facts and circumstances of the present case and consequently, do not
help in advancing the cause of the accused/ applicants herein.The emergence of, of course, primafacie all the essential elements or
ingredients from the material available on record repeals the
arguments of Learned Advocate and denies the prayer of discharge of
the applicants/ accused herein as asked for in the present application.38. I am afraid the trial Court failed to address itself on the core
issues.39. In the result, this application is allowed. The impugned order
passed by the trial Court below Exh.6 in the Sessions Case No.153 of
2006 is hereby quashed and set aside. The application Exh.6 filed by the
applicants is hereby allowed. The applicants are discharged from the
offence punishable under Sections304 and Section395 of the IPC. The
trial Court shall now apply its mind and frame an appropriate charge
keeping in mind the materials on record. If the materials on record
attracts any other offence not stated in the chargesheet, then the trial
Court shall look into the same and frame an appropriate charge.40. With the above, this application is disposed of. Direct service is
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R/SCR.A/9248/2016 CAV JUDGMENTpermitted.
(J.B.PARDIWALA, J.)
arunaPage 47 of 47
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