Karnataka High Court
Shrishail S/O. Madivalappa Ganiger vs The State Of Karnataka on 16 March, 2026
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 16TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CRIMINAL APPEAL NO. 100616 OF 2024 (C)
BETWEEN:
SHRISHAIL S/O MADIVALAPPA GANIGER,
AGE. 38 YEARS,
OCC. AGRICULTURE,
R/O. SHIRUR, TALUK: NAVALGUND,
NOW AT GANESH NAGAR,
2ND CROSS, MADIHAL,
DHARWAD-580 011.
...APPELLANT
(BY SRI. RAVI.B. NAIK, SENIOR COUNSEL APPEARING FOR
SRI. BASAVARAJ.J, ADVOCATE)
AND:
Digitally signed by
THE STATE OF KARNATAKA
RAKESH S REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
HARIHAR
Location: High
HIGH COURT OF KARNATAKA
Court of Karnataka, BENCH AT DHARWAD-580011
Dharwad Bench,
Dharwad THROUGH TOWN POLICE STATION DHARWAD.
...RESPONDENT
(BY SRI. ASHOK KATTIMANI, AGA)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C. (SEC.
415(2) OF BNSS, 2023,) SEEKING TO CALL FOR RECORDS FROM THE
COURT BELOW, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 23.09.2024 AND SENTENCE DATED
24.09.204 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
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JDUGE AT DHARWAD IN S.C.NO. 71/2020 FOR THE OFFENCES P/U/SEC.
302, 307 AND 506 OF IPC AND SET THE APPELLANT AT LIBERTY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.09.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, S.R.KRISHNA KUMAR J., DELIVERED FOLLOWING:-
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR)
This appeal by the sole accused in S.C.No.71/2020 is
directed against the impugned judgment dated 23.09.2024 passed
by the IV Addl. District & Sessions Judge, Dharwad, whereby the
appellant – accused was convicted for offences punishable under
Sections 302, 307 and 506 IPC and consequently, he was
sentenced to undergo rigorous imprisonment for life together with
fine of Rs.10,000/- each and in default, to undergo rigorous
imprisonment for one year.
2. The material on record discloses that on 05.07.2020,
PW1, Smt. Suvarna filed a complaint interalia stating that at around
1.30 A.M. on that day, the deceased Shivayogi Bhavikatti had been
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murdered by the appellant – accused, who also grievously injured
and attempted to murder her son Irappa (PW2) and one Sunil
(PW3) in the said incident and accordingly, she requested the
police authorities to take action against the appellant-accused in
this regard. In pursuance of the said complaint, the police
authorities registered an FIR in Crime No.53/2020 against the
appellant for offences punishable under Sections 302, 307 and 506
IPC and Section 25 of the Indian Arms Act. On 06.07.2020, the
appellant – accused was arrested and has been remanded to
judicial custody ever since that day.
3. After investigation, the police authorities filed a charge
sheet before the Sessions Court, which came to the conclusion
that there was sufficient material to frame charges against the
appellant, who pleaded ‘not guilty’ and as such, the Trial Court
proceeded to frame charges against the appellant for offences
punishable under Sections 302, 307 and 506 IPC and Section 25
of the Indian Arms Act.
4. The respondent – prosecution examined totally 33
witnesses as PW-1 to PW-33 and documentary evidence at Exs.P1
to P90 and material objects at MO-1 to MO-35 were produced and
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marked by the prosecution, while the appellant – accused got
marked Exs.D1 to D5 in support of his defence. The appellant –
accused contested the case and cross-examined the prosecution
witnesses and in his statement recorded under Section 313
Cr.P.C., the appellant took up a specific contention of private
defence / self defence and contended that the demise of Shivayogi
Bhavikatti and the injuries caused to PW2 and PW3 was on
account of the appellant attempting to protect himself by way of
private defence / self defence and the appellant was pleaded ‘not
guilty’ of the alleged offences and accordingly, sought for his
acquittal.
5. Based on the aforesaid pleadings, the Sessions Court
formulated the following points for consideration:
1. Whether the prosecution proves beyond all reasonable
doubts that, the death of Shivayogi Bhavikatti was a
homicidal death?
2. Whether the prosecution has further proved that the
homicidal death of Shivayogi Bhavikatti was caused by
accused on 05.07.2020 in his rented house at 2nd Cross,
Madihal, Dharwad at about 1.30 A.M., by firing bullet
from a Revolver M.O.No.8?
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3. Whether the prosecution further proved that on the
aforesaid date, time and place, the accused fired gunshot
to P.W.2-Irappa and P.W.3-Sunil Konannavar with
intention and knowledge that by his act of firing with gun
shot and causing injury to their vital body parts might
cause death of them and attempted to murder them and
further proved beyond all reasonable doubt that the
accused has used his Licenced gun for commission of
offence punishable under Section 25 of Indian Arms Act?
4. Whether the act of the accused in causing the death of
Shivayogi Bhavikatti is culpable homicide amounting to
murder or not amounting to murder?
5. What conclusion?
6. After hearing the parties, the Trial Court proceeded to
pass the impugned judgment convicting the appellant – accused
for offences punishable under Sections 302, 307 and 506 IPC and
sentenced him to undergo life imprisonment and to pay a fine of
Rs.10,000/- each for offences punishable under Sections 302 and
307 of IPC. Aggrieved by the impugned judgment, the appellant –
accused is before this Court by way of the present appeal.
7. Heard Sri. Ravi B. Naik, learned Senior Counsel for
the petitioner and learned Addl. SPP for the respondent – State
and perused the material on record.
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8. In addition to reiterating the various contentions urged
in the appeal and referring to the material on record, learned
Senior Counsel for the appellant submits that the prosecution had
failed to establish beyond reasonable doubt that the appellant was
guilty of the alleged offences. It was submitted that on the other
hand, the material on record clearly established that the appellant
had caused the demise of the deceased Shivayogi Bhavikatti and
had injured PW-2 and PW-3 by way of self defence during the
course of the incident that took place / occurred on 05.07.2020 at
around 01.30 A.M. and the Trial Court has failed to consider and
appreciate the various inconsistencies, discrepancies,
contradictions and admissions in the evidence adduced by the
prosecution which clearly indicate that the prosecution had failed to
establish the guilt of the appellant beyond reasonable doubt. It
was therefore submitted that the impugned judgment passed by
the Trial Court convicting and sentencing the appellant for the
alleged offences deserves to be set aside and the appellant
deserves to be acquitted of the offences alleged against him. In
support of his submissions, learned Senior Counsel for the
appellant would place reliance upon the following judgments:
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(i) Mahadev v. Border Security Force – (2022) 8 SCC
502
(ii) Suresh Singhal v. State (NCT of Delhi)- (2017) 2
SCC 737
(iii) Mohd. Khan v. State of M.P.,- (1971) 3 SCC 683
(iv) Anand Ramachandra Chougule v. Sidarai Laxman
Chougala – -(2019) 8 SCC 50
(v) Rajender Singh v. State of Haryana- (2014) 15 SCC
507.
(vi) Jasbir Singh v. State of Punjab – (2023) 18 SCC 806
(vii) Jharmal v. State of Haryana – (1994) 2 SCC 551
(viii) Darshan Singh v. State of Punjab – (2010) 2 SCC
333.
(ix) State of Punjab v. Gurbux Singh – 1995 Supp (3)
SCC 734.
9. Per contra, learned AGA for the respondent – prosecution
would support the impugned judgment and submits that there is no
merit in the appeal and that the same is liable to be dismissed.
10. We have given our anxious consideration to the rival
submissions and perused the material on record.
11. A perusal of the material on record will indicate that the
Trial Court has placed reliance upon the evidence of PW1, the
complainant and the two eye-witnesses who were injured during
the incident viz., PW2 and PW3 as well as Doctors, PW23, PW24
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and PW32 and the post-mortem report, autopsy reports, FSL
reports, etc., and also the evidence of the Investigating Officer –
PW33 in order to come to the conclusion that the prosecution had
established that the appellant was guilty of the alleged offences
alleged against him; so also, the Trial Court placed reliance upon
the evidence of the other independent witnesses PW20, PW21-
Family of the deceased and injured(PW3) and PW30- Executive
Magistrate in order to hold that the said evidence corroborated and
supported the case of the prosecution. Further, the Trial Court also
came to the conclusion that the specific defence of private defence
/ self defence put-forth by the appellant had not been substantiated
or established by him. The Trial Court also noticed that having
specifically put-forth a plea of private defence / self defence, the
appellant had contradicted himself by also contending that the
subject Revolver was actually used by one more person, Eshwar
Ganigar, whose contention had not been established by the
appellant.
12. In this context, a perusal of the impugned judgment will
indicate that the Trial Court came to the conclusion that apart from
the fact that the evidence adduced by the prosecution did not suffer
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from any illegalities or infirmities and that there were no material
contradiction, inconsistencies or discrepancies in the case of the
prosecution, the defence put-forth by the appellant had not been
probablised or proved by him and the material on record was
properly considered and appreciated by the Trial Court, which
came to the conclusion that the appellant was guilty of the offences
alleged against him by holding as under:
“10. Point No.1: In order to prove its case, the prosecution has to
prove the ingredients of Section 302, 307, 506 of IPC and Section
25 of Indian Arms Act. Hence, it is essential to see the ingredients of
all these Sections which have to be proved by the prosecution
beyond all reasonable doubt.
11. Section 302 of IPC, which deals with punishment for murder,
Section 307 of IPC deals with punishment for attempting to murder,
Section 506 of IPC deals with punishment for criminal intimidation
and Section 25 of Indian Arms Act deals with punishment for illegal
possession of arms.
12. The ingredients of Section 299-culpable homicide is as
under:
“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.”
The ingredients of Section 300 of IPC – murder is as under:
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, or–
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2ndly.–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,
or–
3rdly.–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, or–
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.
Exception 1: When culpable homicide is not murder.–
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control 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.
Exception 2: Culpable Homicide is not murder if the
offender, in the exercise in good faith of the right of
private defence of 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.
The ingredients of Section 307 of Indian Penal Code speaks
that:
307. Attempt to murder.–
Whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a
term which may extend to ten years, and shall also be
liable to fine; and if hurt is caused to any person by such
act, the offender shall be liable either to imprisonment
for life, or to such punishment as is hereinbefore
mentioned.
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The ingredients of Section 506 of IPC deals with :
Section 506.Punishment for criminal intimidation. —
Whoever commits, the offence of criminal intimidation
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
with both; If threat be to cause death or grievous hurt, etc.Regarding Section 25 of Indian Arms Act, it is alleged by the
prosecution that, the licence of said gun was expired on the date of
incident and it was not renewed. It is alleged that, the gun was used
for commission of offence in contravention of Rules of Indian Arms
Act. With these explanations, this Court has to look into whether the
prosecution has proved the ingredients of these Sections beyond all
reasonable doubt.
13. It is argued by the learned Public Prosecutor on behalf of the
State that, the prosecution has proved the guilt of the accused
beyond all reasonable doubt under Section 302, 307, 506 of IPC
and Section 25 of Indian Arms Act. He has argued that, totally 33
witnesses are examined and 90 exhibits are marked on behalf of the
prosecution and 35 Material Objects are marked as M.O.No.1 to 35.
The brief facts of the prosecution case as stated by the learned
Public Prosecutor is that, C.W.1 / P.W.1 is the cousin sister of the
accused. She is the only daughter of her father. Her father and
father’s brothers are having joint family property for more than 200
acres in her parental house and they are still living jointly. This
C.W.1 had asked for financial help from her father to repair her
house to the tune of 10 lakhs. Her father is said to have informed
her that, she would be given Rs. 10 lakhs only is she relinquishes
her share in the joint family property, for which she refused. Hence,
difference of opinion occurred in the family of the complainant and
the accused.
14. The learned Public Prosecutor argued that, the accused was
residing with this C.W.1 – complainant at her house for more than
two years prior to the incident and about six months back, when this
property dispute arose, she informed the accused to move out of the
house due to this dispute. The accused left her house and started to
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live at a rented house at Madihal, Ganesh Nagar which is nearly 10
minutes distance from the complainant’s house. It is further argued
that, P.W.2 – Iranna, who is the son of C.W.1, had gone to the house
of the accused on the alleged date of incident to ask for share of his
mother in the family property. C.W.1 was not aware about it. She
called him and when he did not receive phone call, she had called
the accused, he did not respond. Later, the accused called to the
phone of Kavita, who is wife of her husband’s brother. Kavita
received the call and gave to C.W.1. When the accused informed
her that, her son has come to his house asking share in the property
and he would be shown the consequences on that day. Immediately
she informed this fact to P.W.3, who was sleeping at her house, and
told him to go and bring back her son. P.W.3 – Sunil Konannavar
requested deceased Shivayogi Bhavikatti to accompany him to bring
back the son of C.W.1 from the house of the accused. Both of them
went to the house of the accused. They were trying to pacify the
quarrel between the accused and P.W.2. At that time, the accused
fired his licenced gun to the neck of P.W.2 and he fell down on the
floor. P.W.3 and deceased Shivayogi started to run towards the
door. At that time, this accused fired twice and one gun shot hit to
P.W.3-Sunil on his abdomen, who also fell in the same room. The
deceased Shivayogi got gun shot injury on his back, who ran out of
the house and fell outside the house unconscious. It is the case of
the prosecution that, the neighbours heard about this incident and
later when P.W.2 got conscious, he informed C.W.1, who is his
mother, and C.W.28. P.W.21, who is the mother of deceased
Shivayogi Bhavikatti was also informed, who rushed to the spot and
saw that injured Shivayogi Bhavikatti was lying on the road. She
shifted him in an Auto Rickshaw belonging to P.W.19, who is relative
of the deceased. They took him to District Hospital, Dharwad. It is
further argued that, on the way to the hospital, the deceased had
named this accused for having caused gun shot injury to him. He
was referred to KMC Hospital, Hubballi for further treatment. But, as
his condition was worse, he was taken to SDM Hospital, where he
was declared dead. Regarding P.W.2 and P.W.3, they were shifted
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to KMC Hospital, Hubballi and later to several other hospitals and
after several days treatment both recovered from gun shot injuries.
15. It is further argued by the learned Public Prosecutor that, out of
33 witnesses examined by the prosecution, P.W.1, P.W.2, P.W.3,
P.W.19, P.W.20, P.W.21 are the family members of injured and the
deceased including both injured. P.W.15, P.W.16, P.W.17 and
P.W.18 are the neighbours of the accused house. P.W.4, P.W.5,
P.W.6, P.W.7, P.W.8, P.W.10, P.W.12 and P.W.13 are mahazar
witnesses. P.W.23 is the Doctor, who conducted the post-mortem.
P.W.24 is the Doctor, who treated both the injured P.W.2 and P.W.3.
P.W.24 is the Ballistic expert, who gave opinion on the gun shot
injury. P.W.33 is the Investigating Officer, who had conducted the
entire investigation and filed the Charge sheet. P.W.30 is an
Executive Magistrate, who recorded the dying declaration of P.W.2
and P.W.3, as they were seriously injured and in an anticipation of
their death, statements were recorded and that statements are
relevant to the case of prosecution. He has argued that, both of
them were in the hospital and there was no chance of recovery from
gun shot injury and they were not aware about the death of
Shivayogi Bhavikatti and statement given at that point of time
pointing towards gun shot injury by the accused is a relevant fact.
He has further argued that, the injured witnesses P.W.2 and P.W.3
are best witnesses who have spoken every incident happened and
supported the case of the prosecution. There is no doubt Shivayogi
Bhavikatti died due to gun shot injury. The Revolver has been
seized, which is a licensed Revolver of the accused. There is no
dispute that, it was not the gun of the accused nor it was denied
that, any such incident has happened at the room of the accused.
16. It is further argued by the learned Public Prosecutor that, it is the
defence of the accused during the cross-examination that, this
P.W.2, P.W.3, P.W.1 had enemity towards the contended for denying
share in the property. Hence, they along with one Prashant Kadam,
Ishwar Ganiger, Shivayogi Bhavikatti, Irappa and C.W.1 Suvarna @
Channamma plotted a sketch to kill the accused. It is the defence
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that, they had assembled in the house of C.W.1 two days prior to
this incident and called Shivayogi Bhavikatti and made contract with
him to kill this accused and he would be paid 5 lakhs and 02 Acres
of land in return. It is the defence that, in furtherance of this plan,
they went to the house of this accused in the midnight at about 1.00
to 1.30 A.M. and they banged the door. All of them were under the
influence of liquor and as the door was about to be broken, the
accused opened the door. All of them tried to assault him and this
Shivayogi Bhavikatti was equipped with a dagger. He tried to kill the
accused with said dagger. Because of this scuffle, the accused tried
to remove the Revolver kept in the showcase, who was held by all
other witnesses and in this effort of snatching of Revolver by all of
them, it was accidentally fired. It is totally denied by the prosecution
that, the injuries found on the neck of P.W.2 and abdomen of P.W.3
and back of the deceased cannot be caused in an accidental firing.
The accused was the person who should have explained the
circumstances under which such firing has taken place. He has also
argued that, this defence was not put-forth similarly to P.W.1, P.W.2
and P.W.3. There is inconsistency in the suggestions, manner in
which these persons went to the house of the accused, total number
of persons present on the date of incident, manner in which the
accidental fire was done varies from the witness to witness. It is
suggested to P.W.3 that, one Ishwar Ganiger snatched the Revolver
and he tried to fire the accused, who was running out of the house.
The accused fell near the door and Shivayogi Bhavikatti tried to hold
on this accused, at that time firing done to Ishwar Ganiger hit to
Shivayogi Bhavikatti. This is a strange suggestion wherein the
accused has taken a defence that, even though gun belongs to him,
he has not fired. Throughout the defence, it was suggested that, in
the scuffle between the accused and P.W.2, P.W.3, Shivayogi
Bhavikatti and Ishwar Ganiger, the Revolver got fired accidentally
and caused injuries. Nowhere, the accused has taken a direct
defence that, as there was threat to his life, he himself has fired his
licenced gun in his right of self defence to protect himself. That
would have been proper defence if taken by the accused. But, in
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the present case, the defence taken by the accused looks more
dramatic than the actual occurrence. He has relied upon the
evidence of P.W.2 and P.W.3, who are injured witnesses, and why
their evidence should not be believed by the Court. P.W.15, who is
the owner of the house of the accused, has spoken about hearing
sound of gun shot at about 1.30 A.M. near his rented house. He
totally denied seeing of these witnesses and the accused near the
incident. Regarding the evidence of Ballistic expert P.W.32, he has
totally denied all the suggestions made by the Advocate for the
accused that, such injuries could happen in any scuffle and in an
accidental gun shot. When specific defence is taken by the
accused, he has to prove it either in the cross-examination or
explained it in 313 statement. In the present case, the accused has
given written statement in his 313 statement and explained same
defence taken by the Advocate throughout the trial.
17. Hence, based on entire prosecution case, the learned Public
Prosecutor has argued that, the accused has failed to put-forth the
defence that, in his right of self protection the present incident has
happened. The defence is not able to establish that there was
conspiracy to kill the accused by the witnesses themselves and he
had just exercised his right of private defence. The burden is totally
on the accused himself to prove this defence. They ought to have
examined this Ishwar Ganiger, whose presence was shown in the
entire cross-examination. The evidence of P.W.30, who is an
Executive Magistrate and who is not interested witness, being
Tahasildar recorded the statement of P.W.2 and P.W.3 when they
were in serious condition as if it was a dying declaration. This
statement has got evidentiary value. Hence, the learned Public
Prosecutor stated that, all the offences alleged against the accused
are proved by the prosecution beyond all reasonable doubt.
Regarding Section 25 of Arms Act, he has stated that, Gun licence
was expired and was not renewed at the time of incident. No
document produced by the accused to show that it was renewed.
Hence, Section 25 of Indian Arms Act is clearly attracted for having
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used the Gun for commission of offence. In order to substantiate
the defence of accused, no weapons are seized from the house of
the accused. The prosecution further argued that, when P.W.1 to
P.W.3 being close relatives, who already knew that the accused
possess licenced gun since several years and carries the same, why
they would go at night 1.30 A.M. to his house unarmed with an
intention to kill him. There is no explanation by the defence in this
regard. Hence, he prays to convict the accused for all the offences
proved by the prosecution.
18. In support of his argument, the learned Public Prosecutor
has relied upon the following citations:
1. Reportable Judgment of The Hone’ble Supreme Court of
India in Cri. App No.1910/2010 in the case of Balu Sudam
Khalde and another Vs. The state of Maharashtra.
2. (2011) 1 SCC (Cri) 381 of Hon’ble Supreme Court in the
case of State of Uttar Pradesh Vs. Krishna Master and
Others.
3. Reportable Judgment of The Hone’ble Supreme Court of
India in Cri. App No.1588/2008 in the case of Birabal Nath
Vs. The State of Rajasthan and Others.
4. 2023 AIAR (Criminal) 292 of Hon’ble Supreme Court of
India in the case of Prasad Pradhan and Another Vs. The
State of Chattisgarh.
5. 2024 AIAR (Criminal) 707 of Hon’ble Supreme Court of
India in the case of Surendar Singh Vs. State (NCT of
Delhi).
6. 2024 AIAR (Criminal) 83 of Hon’ble Supreme Court of India
in the case of Gurmail Singh and Another Vs. State of
Uttar Pradesh and Another.
7. AIR 2009 Supreme Court, 2469 in the case of Rajesh
Narang Vs. State of Punjab.
8. 2010 Cri.L.J. 1659 Hon’ble Supreme Court in the case of
Satyavir Singh Vs. State of U.P.
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The same would be discussed at relevant point of time.
19. On the other hand, learned Advocate for the accused has
argued in length about this case as under:
He has stated that, whether the motive attributed by the
prosecution is so strong to kill Shivayogi Bhavikatti and injured
P.W.2 and P.W.3 with the gun shot. He has argued that, the
prosecution has totally failed to prove any motive and intention on
behalf of the accused to commit such crime. It is argued that, the
place, time, incident, injury are not disputed by the accused. The
only disputed fact by the accused is that, the accused has shot
Shivayogi Bhavikatti and P.W.2 and P.W.3. The Court has to look
into who are the aggressors in this case. The circumstances such
as going to the room of the accused at 1.30 A.M. in the midnight i.e.
early morning of 05.07.2020 by P.W.2, P.W.3 and deceased
Shivayogi Bhavikatti and secondly; it was a heavy rainy season in
July and thirdly; it was a time when Covid-19 pandemic was at peak
in the first phase and a curfew was imposed throughout the State for
any movement of people during night time. No one was allowed to
go out except in case of emergency. Then, whether the prosecution
has given any motive to show that there was emergency for P.W.2,
P.W.3 to go to the room of the accused in the midnight to seek
partition in an ancestral property of the accused and P.W.1. It is
argued that, the prosecution has highlighted much about P.W.2
going to the room of the accused at 11.30 P.M. and there was verbal
fight between them. They also showed in the Charge sheet that, the
accused had called P.W.1, but when she has not picked the call, he
had called Kavita Hebballi. This Kavita is an important witness who
had received the call of the accused and gave the phone to P.W.1.
This Kavita is not shown as a witness at all and the Investigating
Officer did not make any effort to enquire her and record her
statement. The presence of P.W.1, the mother of P.W.2, near the
spot as per her evidence is totally disputed. One Yallappa, who is
maternal uncle of P.W.2, was said to be contacted immediately by
P.W.2 over phone and he came alone to the spot as per the
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evidence of P.W.2. He has clearly stated that, this Yallappa shifted
himself and C.W.17 / P.W.3-Sunil in an Ambulance. P.W.1
Channamma never came to the spot and she went directly to the
hospital in the early morning. Hence, her evidence that she went to
the spot and saw all the injured is total improvement. The exact
spot where these injured were found is not shown by the
prosecution in the evidence of any of the witnesses and there is no
clear evidence about it. P.W.1 says about it, but she never gone to
the spot. He has highlighted Ex.P.33 and Ex.P.34 intimation issued
by Civil Hospital, Dharwad to the Police, where the name of P.W.1 is
not found as accompanied with the injured. In the evidence of
P.W.26-Doctor, it is stated that, one Ravi Chandrashekhar
Horaginamath brought injured to the hospital. But, it is not
mentioned in Ex.P.33 and Ex.P.34. It is strange to see that, even in
intimation to the Police, the name of the assailant is not stated.
Advocate for the accused has relied on Call Detail Records filed
along with Charge sheet by the Investigating Officer and got marked
as Ex.D.5 and he has argued that, said Call Records supports his
defence to show that, these Sunil, Irappa Hebballi, Suvarna and
Ishwar Ganiger had several phone calls made between them prior to
the incident and said fact is admitted by P.W.2. He has further
highlighted that, regarding motive stated by the prosecution, if the
details of ancestral family house of Channamma is taken, then
Nagappa is the father of the complainant and Mallappa is the eldest
son, who died long back, Madivalappa, who is third son, who is
th
father of the accused, who died long back, Siddappa being the 4
son died after 8-9 months of said incident. The mother of the
accused is also dead. All these brothers are still living together with
their family members in a joint family property wherein partition has
not taken place. This accused is not having any right to give any
portion in the ancestral property to P.W.1 and there is no chance of
this accused having any enemity against P.W.1 and P.W.2. There
was no instance for this P.W.2 to go to the house of the accused in
the midnight that too during curfew of Covid-19 to seek share of
P.W.1 in the ancestral property. Hence, this circumstance itself is
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totally against the prosecution witnesses and they are the
aggressors. The Investigating Officer has not investigated anything
in this regard and he has not examined Nagappa, who is the father
of P.W.1 and Madivalappa, who is the father of the accused to bring
anything about this rivalry. The investigating Officer admits that, he
never went to the village of the accused to enquire anything about
this aspect. The accused was not competent to give any share to
P.W.1. Hence, motive itself looks doubtful. None of the persons in
Shirur village are examined by the prosecution. It is alleged that, the
accused had made phone call to P.W.1 and when she did not
receive it, he had called Kavita to inform that P.W.2 is in his house.
If the accused had any intention to kill P.W.2, why he has called
Kavita and informed it before killing. It is also the case of
prosecution that, this accused was staying in the house of P.W.1
Channamma for nearly two years prior to this incident and all of
them knew about the accused possessing licenced gun with him. If
the accused had any intention to kill P.W.2, he would have killed
long back when he was staying at their house itself. It is further
argued that, there was no reason for the accused to wait until Sunil
and Shivayogi Bhavikatti comes to his house in order to fire gun shot
to all three. This gives doubt as to story of the prosecution and its
genuineness. It is the clear defence of the accused that, P.W.1,
P.W.2, P.W.3 and one Ishwar Ganiger along with deceased
Shivayogi Bhavikatti had hatched a plan to kill this accused and on
the date of incident, P.W.2-Irappa Hebballi, P.W.3-Sunil Konannavar
along with deceased Shivayogi Bhavikatti and Ishwar Ganiger had
gone to the house of the accused at about 1.00 to 1.30 A.M. in the
midnight. They started to bang the door of the house of the
accused, they were under the influence of liquor. The accused
seeing them through window warned them to go back and come on
the next day. When they continued to bang on the door, he opened
it and all of them rushed inside the house and started to quarrel with
him for share in the property for P.W.1. When he tried to pacify
them, Shivayogi Bhavikatti assaulted him with punch and dagger.
He had sustained simple injury on his left hand. He tried to call
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Police in this regard and it is his case that, he had called P.W.1 at
that time and when she did not lift the call, he called Kavita and
asked her to give phone to P.W.1. He explained about their
presence in his house and told her to call them back. P.W.1 told him
that, it would be decided as to who is strong today and she
disconnected the phone. On this incident, the accused went near
the showcase to pick up the Revolver for selfprotection. Seeing this,
all the four of them caught hold of him and tried to snatch the
Revolver and in that scuffle accidentally firing has taken place which
hit to P.W.2 and P.W.3. The accused further took the defence that,
he left Revolver and ran towards the door and fell near the door.
Shivayogi Bhavikatti rushed to hold him and gun shot fired by Ishwar
Ganiger to kill this accused has hit Shivayogi Bhavikatti on his back
and he has sustained injuries. Same defence is explained by the
accused in his 313 statement in a written note. The same defence
is put-forth to P.W.1, P.W.2, P.W.3 and all the circumstantial
witnesses throughout the case. It is the specific defence of the
accused that, he is not an aggressor, but he has used right of self-
defence to protect himself from the aggressors who entered his
room at 1.30 A.M. in the night and tried to kill him. P.W.3 in his
cross-examination has admitted that, the accused and himself had
no enemity with each other. Same defence was put-forth to P.W.1,
P.W.2, P.W.3 and some of the facts are partially admitted. In the
Case Sheet of P.W.2, it is to be observed that, there was presence
of alcohol smell during the surgery, which substantiates the defence
of the accused that P.W.2 came in drunken state to his house. Even
though no alcohol contents are traced in the viscera of the deceased
and the Case Sheet of Sunil Konannavar, the fact that Ishwar
Ganiger had consumed liquor is proved in the prosecution case
itself. One dagger is seized from the spot of offence which also
supports the defence of the accused that it was brought by the
deceased Shivayogi Bhavikatti. There was no necessity for the
prosecution to seize the dagger which is said to be kept in
showcase. But, it was actually fallen on the ground in the scene of
offence. Even though P.W.1 says that, she had gone to the spot and
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she was informed by her son about the incident, P.W.2 himself has
stated that, only Yallappa came to the spot and shifted them to the
hospital. This Yallappa is not cited as a witness. Even the mother of
deceased Shivayogi Bhavikatti examined as P.W.21, who had never
gone to the spot, but directly went to the hospital. But, the
prosecution has falsely shown her as went to the spot. Hence, on
the basis of all these aspects, Advocate for the accused has prayed
that, this is the case of culpable homicide not amounting to murder
and it is squarely falls in Explanation-2 of Section 300, wherein the
accused has used his right of self-defence to protect himself and
committed crime and several citations are relied upon by the
Advocate for the accused as under, which would be discussed in
detail during the relevant point of time.
1. 2001 (1) Kar. L.J. 255 (DB) in the case of State of
Karnataka Vs. K.M. Kukkappa.
2. 1992 Crl.L.J. 2845 in the case of Shivappa Laxman
Savadi Vs. The State.
3. (2002) 9 Supreme Court Cases, 494 in the case of
Motisingh Vs. State of Maharashtra.
4 (2006) 11 Supreme Court Cases, 304 in the case of
Krishnan Vs. State of Tamil Nadu.
5 (2008) 2 Kar.L.J. 525 in the case of S. Ganesh Vs.
State of Karnataka.
6 (2008) 16 SCC 33 in the case of Raghbir Singh and
Others Vs. State of Haryana.
7 (2009) 2 SC (Cri) 110 in the case of Ranvir Singh
Vs. State of M.P.
8. 2016 AIAR (Criminal) 731 in the case of Indira Devi
and Others Vs. State of Himachal Pradesh.
20. For this argument of Advocate for the accused, the learned
Prosecutor has replied that, the defence of right of self-defence
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taken by the accused is not substantiated by any evidence. When
there are clear evidence of injured persons who sustained gun shot
injury, why there evidence should be brushed aside by the Court and
the defence of the accused should be considered?. He has further
brought to the notice of this Court about the report of Ballistic Expert
and his evidence, wherein it is clearly stated that, in Ex.P.61 a Blue
Colour T-Shirt is examined and there are GSR detected on Article
No.6, which is marked as M.O.No.9, on the chest portion. This GSR
can be detected on the chest portion only if the gun is hold by the
accused and if he directly fires towards the injured / deceased.
Hence, the defence is defeated by this aspect. He has also
highlighted the evidence of P.W.3, who says that, there was no
enemity between P.W.3 and the accused. Hence, there was no
threat by P.W.3 to this accused. The evidence of P.W.1 cannot be
brushed aside only on the single statement of P.W.2 that his mother
did not come to the spot. If the case of the accused is to be
believed, then the phone call made by the accused at 11.00 P.M. to
P.W.1 does not tally with the defence of the accused. If he had
called to P.W.1 at 11.00 P.M. stating that, her son is at his house,
then the story of defence that P.W.2, P.W.3 along with Shivayogi
Bhavikatti and one Ishwar Ganiger came to his house at 1.30 A.M.
cannot be believed. The accused must show in his defence that, to
protect himself he himself directly fired towards the injured and
deceased. He cannot take defence that, in the scuffle someone else
fired and caused injury. He cannot totally deny that gun shot was not
fired by him. Hence, based on the evidence of Doctor, Ballistic
Expert and on the evidence of injured P.W.2 and P.W.3 corroborated
by the evidence of P.W.1, the prosecution prays that, plea of self
defence taken by the accused should not be considered and it is a
clear case of murder with knowledge and intention and he must be
convicted for the said offence.
21. Based on the argument of learned Public Prosecutor and
Advocate for the accused and on the citations furnished by both
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parties, this Court has to answer Point No.1 whether death of
Shivayogi Bhavikatti by gun shot injury was homicidal death.
22. The prosecution has to prove that, in order to bring the
charges of homicidal death, the intention and knowledge of accused
has to be proved beyond all reasonable doubt. In the present case,
I have gone through the evidence of P.W.23-Dr. Sunilkumar S.
Biradar, who has conducted post-mortem of deceased Shivayogi
Bhavikatti on 06.07.2020. He has given the details of the dead body
and the description of gun shot injury, clothes and articles present
over the body as under:
2. One light blue colored half T-shirt measuring 64cms in
length, 53cms in breadth. T shirt shows a hole
(2.5X2cms) at back on right side at a meeting point
between 36cms from shoulder line, 26cms from bottom
line and 15cms from outer margin, Surrounding area
shows blackening and bloodstains.
3. One sky blue colored sleeveless T-shirt
measuring71cms in length, 49cms in breadth. T-shirt
shows a hole (2.5X2cms) at back on right side at a
meeting point between 39cms from shoulder line,
30cms from bottom line and 14cms from outer margin,
Surrounding area shows blackening and bloodstains.
Upon examining the dead body, he has also noted the External
Injuries as under:
1. A circular gunshot entry wound of diameter 7.5mm
present at right lower back, situated at a meeting point
between 40cms from right shoulder line, 9cms away
from midline and 109cms from right heel. Abrasion
collar of size 1mm present around the wound.
Surrounding area shows blackening, which is more on
right side of wound.
2. Two contusions measuring 7.4mm present horizontally
over right chest at a meeting point, between 33cms from
right shoulder line (10cms from right nipple), 3cms away
from midline and 118cms from right heel, Surrounding
area is bulged.
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On further dissection of entry wound, External Injury No.1,
subcutaneous and deeper tissues shows disruption of underlying
muscles. A track is established from the entry wound to the External
injury No.2 the projectile after piercing the skin, subcutaneous
tissue, muscles, passed through the upper part of right kidney,
entering abdomen then piercing the inferior surface of liver (right
lobe) exited through the anterior surface of liver. Then further, the
projectile after piercing the diaphragm, entering chest cavity through
8th intercostals space by piercing intercostals muscles, finally lodged
in subcutaneous tissues. The track is found to be directed upwards,
forwards and medially. Tissues in the track shows reddish colour
discolouration. ALL INJURIES ARE ANTEMORTEM IN NATURE.
He has further stated that, a bullet is recovered from the External
injury No.2 and packed separately, labelled and handed over to the
Police in sealed manner along with sample seal, signature and this
report for ballistic opinion. Time since death : Brought dead to KIMS
on 05.07.2020. As per the opinion as to cause of death, the Doctor
has stated that:
“DEATH DUE TO HAEMORRHAGE AND SHOCK AS A RESULT
OF GUNSHOT WOUND SUSTAINED TO THE ABDOMEN
HOWEVER VISCERA PRESERVED TO ESTIMATE THE ETHYAL
ALCOHOL IF ANY.”
Regarding this last opinion of presence of Ethyal alcohol, he has
given one report as per Ex.P.90 which was marked with consent at a
later stage and in that opinion, it is stated that, Final opinion as to
cause of death: After careful perusal of form No.146(i) and (ii),
Postmortem report and chemical analysis report of the case, I am of
the opinion that cause of death remains same as mentioned in the
postmortem report that is “death due to haemorrhage and shock
as a result of gunshot wound sustained to the abdomen”.
23. This Doctor has been thoroughly cross-examined in detail by
the Advocate for the accused. It is suggested that, if a person is
walking straight and he was shot from behind, said injury cannot be
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sustained. But, the Doctor has denied this aspect. It was suggested
that, if a person was bent down and another one shoots him from a
height, such gunshot injury can be sustained. Even this suggestion
is also denied by this Doctor. He has stated that, gunshot injury is
depending on the direction in which Revolver is hold by the person
who shoots the same. Hence, the evidence of Doctor remains
undeterred in the cross-examination by Advocate for the accused.
24. It is proved by the prosecution that the death of Shivayogi
Bhavikatti was due to gunshot injuries to his vital parts like kidney,
surface of liver, diaphragm, chest cavity, which are vital parts in a
human body.
25. Regarding gunshot injury, Ballistic expert is examined in this
case as P.W.32. He has stated that, on 05.07.2020 at about 6.30
P.M., he was called by the Dy.S.P., Dharwad and he was informed to
visit KIMS Hospital mortuary to examine the dead body of one
Shivayogi Bhavikatti. He visited the hospital on 06.07.2020 at 12.00
p.m. There was a blue colour T-shirt and blue colour sleeveless
Banian on the body of the deceased. There was an entry wound on
the lower right side of back of the deceased. There was gun powder
residues. The measurement of this entry wound was 2X2.5cms.
When he pushed T-shirt aside, he observed gunshot injury
measuring 7.5mm. There was blackening of nearly 5mm around the
said entry wound. Thereafter, he has visited the spot of offence and
examined the entire house. He has observed one gunshot graze
mark on the main door, which was 42 inches from the floor. There
was bloodstains on the floor of the hall and there were two dent
marks of gunshot on the floor. Later, on 28.07.2020 he had received
21 sealed packets from Dharwad Town Police Station for
examination, out of which, packet No.1 was One fired 32 caliber
cartridge case. Packet No.2- One revolver pouch with two 32
caliber cartridges; Packet No.3 – One 32 caliber Revolver bearing
Sl.No.A4523 of IOF; Packet No.4- Five 32 caliber cartridge cases
marked as 4(a) to 4(e) and 32 caliber revolver cartridge; Packet
No.5 – One fired 32 caliber cartridge case; Packet No.10 – One 32
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caliber fired bullet; Packet No.18 – One fired 32 caliber bullet;
Packet No.21 – One 32 caliber fired bullet. Upon his examination of
.32 caliber empty cartridge, which is marked as M.O.No.26, .32
revolver, which is marked as M.O.No.8, he has given his opinion as
under:
1. The Revolver in Article No.3 bears sign of discharge but
no opinion is possible regarding the actual date and
time of firing.
2. The revolver in Article No.3 is in working condition at the
time of examination.
3. The effective range of the revolver in article No.3 is
about 50 yards.
4. The cartridge cases in article No. 1, the cartridge cases
marked as 4(a) to r(e) in article No.4 and the cartridge
case in article No.5 have been fired through the revolver
in article No.3.
7. Presence of GSR(gun shot resides) were detected on the
T-Shirt in article No.6.
9. The hole marked as 8H-1 on the T-Shirt in article
No.8,9H-1 on the T-shirt in article No.9, 17H-1 and 17H-
2 on the shirt in article No.17, 19H-1 on the banian in
article No.19 and 20H-1 on the shirt in article No.20
have been caused due to the impact and passage of
lead bullets and the same have been fired through the
revolver in article No.3.
10. The bullets in article No. 10, 18 and 21 have been fired
through the revolver in article No.3.
He has also further given opinion that, the range of firing with
respect of entry hole marked as 8H-1 on the T-shirt in article No.8 is
from loose contact shot. This belongs to Tshirt of Shivayogi
Bhavikatti. This witness was thoroughly cross-examined by the
Advocate for the accused.
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26. This P.W.32 has admitted the suggestion made in the cross-
examination by the Advocate for the accused as under:
“²ªÀAiÉÆÃV CªÀgÀ ¨É¤ß£À PɼÀ¨sÁUÀz° À è M¼ÀºÉÆPÀÌ UÀÄAqÀÄ AiÀiÁªÀ jÃw
M¼ÀUqÀ É ºÉÆÃV MAzÀÄ PÀqÉ ¤AwzÉ C£ÀÄߪÀ §UÉÎ ªÀÄgÀuÉÆÃvÀg Û À ¥ÀjÃPÉAë iÀÄ°è
G¯ÉÃè R EzÉ CAzÀgÉ ¸Àj. ªÀÄÈvÀ ²ªÀAiÉÆÃVgÀªg À ÀÄ £ÉÃgÀªÁV £Àqz É ÀÄPÉÆAqÀÄ
ºÉÆÃUÀÄwÛgÀĪÁUÀ »A¢¤AzÀ UÀÄAqÀÄ ºÉÆqÉzg À É ªÀÄgÀuÉÆÃvÀg
Û À ¥ÀjÃPÉAë iÀÄ°è
PÁt¸ÀĪÀAvÉ UÁAiÀÄ DUÀĪÀÅ¢®è CAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àé®à §VÎzg À É D jÃw
UÁAiÀÄ DUÀÄvÀz Û É CAvÁ ºÉüÀÄvÁÛg.É ªÀÄÈvÀ ²ªÀAiÉÆÃV EªÀjUÉ 6-7 ¥ÀÄl
CAvÀgz À °
À è UÀÄAqÀÄ ºÉÆqÉAiÀįÁVzÉ CAzÀgÉ ¸ÀjAiÀÄ®è, ¸ÁQë ªÀÄÄAzÀĪÀgz É ÀÄ
²ªÀAiÉÆÃVgÀªg À À zÉúÀ¢AzÀ 3 EAa£À M¼ÀUq À AÉ iÀÄ CAvÀgzÀ °À è UÀÄAqÀÄ
ºÉÆqÉAiÀįÁVzÉ CAvÁ ºÉüÀÄvÁÛgÉ. £À£Àß C©ü¥ÁæAiÀÄzÀ ¹ÃjAiÀÄ¯ï £ÀA§gÀ 12
gÀ°è Contact shot CAvÁ §gÉ¢zÀÄÝ CzÀgÀ CxÀð zÉúÀPÉÌ lZï ªÀiÁr
UÀÄAqÀÄ ºÉÆqÉ¢zÀÄÝ EgÀvz
ÀÛ É.”
This admission in the cross-examination in the evidence of P.W.32
clearly goes to show that, even the accused admits that the death of
Shivayogi Bhavikatti was due to gunshot injury. The Ballistic expert
has clearly stated that, the gun was fired within 03 inches from the
body of Shivayogi Bhavikatti and as if Revolver has touched the
body before the gunshot. Hence, on the basis of evidence of this
Doctor and Ballistic expert, I am of the clear opinion that, the
prosecution has clearly proved that the death of Shivayogi Bhavikatti
was due to the injuries sustained in the gunshot and death is a
homicidal death and I have answered Point No.1 in the
Affirmative.
27. POINT No.2 AND 3: I have taken Point No.1 and 2
together for discussion since firing has taken place in the same
place, time and in the same incident. There was no time gap in both
these incidents. Hence, these two points are taken together for
discussion.
28. The prosecution has already proved that the death of
Shivayogi Bhavikatti was a homicidal death. The motive shown by
the prosecution is that, the complainant and the accused had
enemity towards property dispute in the ancestral property of
complainant’s father. The prosecution has to prove this motive of the
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accused. As already stated in the argument of learned Public
Prosecutor, he has pointed out several aspects stating that, C.W.1,
who is the mother, has given evidence in support of prosecution
case and she has stated that, her request for a loan of Rs. 10 lakhs
from her father in order to repair her house was denied by them and
later they agreed to pay 10 lakhs to her on the condition that she
has to relinquish her share in the ancestral property. It is to be
observed that, she was a married daughter and her marriage was
taken place long back and she was residing at Dharwad along with
her husband’s brother and his family.
29. The admitted facts in this case by the accused as well as the
prosecution is that, the complainant and the accused are relatives.
The father of the complainant and father of the accused are own
brothers, the accused was residing in the house of P.W.1 two years
prior to the incident and only after property dispute arose between
them P.W.1 told him to go out of the house and he left the house to
stay at a rented house at Ganesh Nagar, Madihal, Dharwad. It is
also admitted fact by the accused in the cross-examination of P.W.1,
P.W.2 and P.W.3 that, P.W.2 and P.W.3 came to his room on the
alleged date of incident during night hours. It is put-forth by the
prosecution that, at about 11.00 P.M., Iranna Hebballi had gone to
the house of the accused. It is also admitted fact by the prosecution
as well as the accused that, the accused called to the phone number
of C.W.1 / P.W.1 at about 1.00 A.M. in the midnight. As per the
prosecution case, she had received the call and the accused
threatened to kill her son as he is in his house and asking for share
in the property. Only this fact is denied by the accused saying that,
when he called P.W.1 through phone, she did not receive the same
and he had to call Kavita at about 1.00 A.M. to inform that, P.W.2
and P.W.3 and Shivayogi Bhavikatti along with Ishwar Ganiger have
come to his room and making quarrel with him. There is a thin line
between the defence of the accused and the story of the
prosecution. The evidence of these eye witnesses has to be
appreciated about this aspect.
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30. The prosecution has adduced oral evidence of following
witnesses in support of its case.
The P.W.1, P.W.2, P.W.3, P.W.19, P.W.20, P.W.21 are the
family members of injured and the deceased including both injured.
P.W.15, P.W.16, P.W.17 and P.W.18 are the neighbours of the
accused house. P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.10, P.W.12
and P.W.13 are mahazar witnesses. P.W.23 is the Doctor, who
conducted the post-mortem. P.W.24 is the Doctor, who treated both
the injured P.W.2 and P.W.3. P.W.24 is the Ballistic expert, who
gave opinion on the gun shot injury. P.W.33 is the Investigating
Officer, who had conducted the entire investigation and filed the
Charge sheet. P.W.30 is an Executive Magistrate, who recorded the
dying declaration of P.W.2 and P.W.3.
31. The P.W.1 in her examination-in-chief has deposed that, at
about 1½ years back at 9.00 P.M., her son Iranna Hebballi (P.W.2)
went out of the house saying that, he is going to field. He did not
return till 12.00 P.M. At that time, she called her son from the phone
of Kavita. Her son did not receive the phone call. Immediately after
the phone was disconnected, the accused Shrishail called to the
same phone of Kavita and informed her that, her son is with him and
he would teach a lesson to him. P.W.1 further stated that, she heard
her son crying in the background calling her name. She immediately
informed Sunil that both of them are fighting and sent him to bring
her son back. In her chief examination, she says that, immediately
herself and her brother-in-law Yallappa went to the house of the
accused. When she went there, she saw that her son was fallen
inside the house and was struggling for life. Sunil and Shivayogi
Bhavikatti had fallen outside the house and both of them were
unconscious. She had seen bleeding injury to the neck of her son
Iranna and bleeding injury to the abdomen of Sunil. Shivayogi
Bhavikatti was unconscious and blood was oozing behind his neck.
The accused was not in the house and immediately her brother-in-
law Yallappa brought an ambulance and they shifted her son Iranna
and Sunil to Government Hospital, Dharwad. Shivayogi Bhavikatti
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was also brought to the Hospital and then shifted to SDM Hospital.
Her son and Sunil were shifted to KMC Hospital and she reached
KMC Hospital at 6.00 A.M. and thereafter she went to the police
station and lodged the complaint. She has clearly stated that, she
lodged the complaint against the accused stating that, he has shot
her son. It is further stated that, she came to know from the
neighbours that, Shrishail had shot all the three of them. It is clear
from the evidence of P.W.1 that, she had called at 12.00 P.M. to the
phone of her son and the accused called her immediately thereafter.
32. The P.W.2 in his examination-in-chief has deposed that, on
04.07.2020 he along with Shivayogi Bhavikatti went to his field at
8.30 P.M. in a bike. They had gone to put fodder to their cattle. He
was dropped near his own house at about 11.00 P.M. by Shivayogi
Bhavikatti. From there, he went to the house of the accused. He
asked the accused stating that, as they are poor they are in need of
property and it should be given to them. At about 1.00 A.M., the
accused called to mother of this P.W.2 over phone and told that, her
son is at his house and he would teach him a lesson that day. After
ten minutes of speaking to his mother, C.W.17-Sunil and Shivayogi
Bhavikatti came to the house of the accused. This Shivayogi
Bhavikatti also told the accused that, P.W.2 is poor and they are in
need of property and it must be given by the accused. It is further
stated by P.W.2 that, the accused immediately took his Revolver
saying that he will not give share in the property and shot P.W.2.
Gunshot injury was sustained on the back of neck on the left side of
Iranna. This witness has further stated that, immediately C.W.17-
Sunil and Shivayogi Bhavikatti tried to run out of the house and the
accused shot them also. P.W.2 fell down and lost his
consciousness. After 15 minutes, he regained consciousness and
called his uncle Yallappa and informed the same. Within 5 to 10
minutes, his uncle came to the spot and shifted himself and C.W.17
Sunil to the hospital in an ambulance.
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33. The P.W.3 in his examination-in-chief has deposed that, on
04.07.2020 at about 10.00 P.M. he had his food and was sleeping in
the house of Iranna Hebballi and in the same house C.W.1 was also
residing. This P.W.2 Iranna had gone to the field and he did not
return. He has clearly stated that, P.W.1, P.W.2 and their uncle
residing in the same house. At about 1.00 A.M. in the night the
accused called C.W.1 and told her that Iranna Hebballi has come to
his room and he would finish him. C.W.1Channamma immediately
informed this aspect to the present witness and told him to bring
Irappa Hebballi from the house of the accused. This witness while
going out of the house, went to Shivayogi Bhavikatti and informed
him about the incident and asked him to accompany this P.W.3.
Thereafter, Shivayogi Bhavikatti brought his Motorcycle and both of
them went to the house of this accused on the bike of Shivayogi. In
the middle of the road / half way, the petrol was emptied and bike
was stopped. Thereafter, they started to walk towards the room of
Shrishail Ganiger. When they reached his room, the accused and
Iranna Hebballi were orally quarreling each other. At that time, both
this witness and Shivayogi Bhavikatti told them not to quarrel and let
them speak on the next day. It is stated that, the accused suddenly
took Revolver and saying that he would finish all of them fired
towards Irappa Hebballi and caused gunshot injury to his neck.
Immediately this Sunil and Shivayogi Bhavikatti got frightened and
started to run towards the door. At that time, the accused fired on
the back of Shivayogi Bhavikatti and on the stomach of this witness.
He fell down near the door and lost his conscious. At about 10 to 15
minutes later he regained conscious and he called his mother on her
phone and informed about the incident. Thereafter, his mother
C.W.1 and Yallappa came to the house of the accused and brought
an Ambulance. All of them were shifted to Government Hospital,
Dharwad and thereafter to KIMS Hospital, Hubballi. He was
operated at the hospital at about 5.00 A.M. and he was in the same
hospital for nearly one week under treatment. He speaks about his
statement given to the police on 07.07.2020 regarding this incident.
He came to know about death of Shivayogi Bhavikatti later by the
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Police. He also speaks about giving statement before the Judge
under Section 164 of Cr.P.C. Hence, both injured witnesses P.W.2
and P.W.3 have totally supported the case of prosecution and stated
that, the accused had shot them and the deceased Shivayogi. Their
evidence is supported by the evidence of P.W.1 complainant.
34. The evidence of above witnesses must be read along with
the evidence of P.W.20 -Nirmala Bhavikatti, who is the mother of the
deceased Shivayogi Bhavikatti. In her evidence, she states that,
about two years back at 2.30 A.M. in the night her son Shivayogi
called her through phone and informed that Shrishail Ganiger has
shot him with gun and he has fallen near the shop of Humbi near
Madihal. He told her to come immediately to the spot. She went
along with one Shivaraj in his Auto Rickshaw to Madihal and her son
had fallen near the shop of Humbi on the road. She went there and
asked him as to what happened. Shivayogi informed that, Shrishail
Ganiger has fired him. She shifted her son in an Auto Rickshaw to
the Civil Hospital. She seen that there was gunshot injury passing
through the back and the bullet was in the chest of Shivayogi. On
the way to the hospital, he was saying her that, he has been shot
and he would be dead soon. After reaching the hospital, he could
not speak anything and thereafter he was shifted to SDM Hospital,
Dharwad by C.W.23. She was in the hospital till 5.00 A.M. and
thereafter she went to home and at 6.00 A.M. she was informed that
her son has succumbed to the injury. This witness has further stated
that, while shifting her son to the hospital, he informed her that,
Irappa – P.W.2 had gone to fight with accused Shrishail Ganiger for
property and Irappa’s mother told Sunil to pacify the same, Sunil
took Shivayogi along with him. She later came to know that,
Shrishail had shot her son, Sunil and Irappa Hebballi. She was
treated as hostile and cross- examined by the learned Public
Prosecutor and in the cross-examination, her entire statement was
put-forth, which was admitted by her.
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35. There is one more witness P.W.21 – Muttavva Konannavar,
who is the mother of P.W.3 – Sunil Konannavar. In her evidence,
she says that, about 03 years back during Corona first phase she
was at her house. At about 1.45 A.M. her son Sunil called her and
told that, at Ganesh Nagar of Dharwad, Shrishail Ganiger has shot
him and he requested her to come to the spot. She further says that,
on that day Sunil was sleeping in the house of Irappa Hebballi. She
immediately went to the house of Irappa Hebballi and came to know
that, the accused has fired towards P.W.2 and her son and
Shivayogi. Suvarna and Yallappa came tin a bike to the house of
the accused. She came to the spot in another bike. When she
reached the house of the accused, her son Sunil was fallen near the
door, P.W.2 was fallen inside the house and Shivayogi also had
fallen near Sunil. Her son had sustained gunshot injury on the right
side of abdomen and all of them were struggling for life with heavy
bleeding. When she enquired her son Sunil, he informed that the
accused Shrishail Ganiger has caused gunshot injury to himself,
Shivayogi and Irappa Hebballi. Thereafter, she along with P.W.1 –
Suvarna and Yallappa shifted Sunil and Irappa in an Ambulance to
Civil Hospital, Dharwad. At that time, the mother of Shivayogi has
also reached with her brother and they shifted Shivayogi in an Auto
Rickshaw to the hospital. She also stated that, as there was
property dispute between C.W.1 and her father, this P.W.2 had been
to the house of the accused to ask for share and this incident has
occurred. She has further stated that, later she came to know about
the property dispute between P.W.1, P.W.2 and the accused. She
also stated about the incident as informed to her by Suvarna. She
further stated that, Sunil had taken Shivayogi Bhavikatti to the house
of Shrishail and this fact is informed to her by P.W.1.
36. P.W.19 – Shivaraj Bhavikatti is the brother of deceased
Shivayogi Bhavikatti. He has given evidence that, about two years
back while he was sleeping in his house, around 12.45 midnight one
Deepak Shettar came to his house and informed that, Shivayogi
Bhavikatti has been shot by gun and fallen near Madihal, Ganesh
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Nagar cross. Immediately he informed this fact to P.W.20 Nirmala
Bhavikatti and went in their Auto Rickshaw to Madihal, Ganesh
Cross. He had seen Shivayogi Bhavikatti fallen near a Grocery
shop. They also called Ravi Horaginamath, who reached to the spot,
all of them shifted him in an Auto Rickshaw. He had seen gunshot
injury to the back of this Shivayogi Bhavikatti. He also speaks about
shifting him to the hospital. But, totally denied about asking
Shivayogi Bhavikatti as to how the incident happened and who
caused gunshot injury. Later Shivayogi died in the hospital.
Thereafter, he came to know from C.W.1 / P.W.1 and P.W.2 that,
Shrishail Ganiger had shot him. Apart from this, he has not
supported the case of prosecution in his chief examination. He was
treated as hostile and crossexamined by the learned Public
Prosecutor wherein partially he has admitted some of the
suggestions and denied many other suggestions.
37. Hence, these are the witnesses who have supported the
case of the prosecution in their chief examination and categorically
stated that, when P.W.3 and Shivayogi Bhavikatti went to the room
of the accused to bring back Iranna, this incident has happened and
the timing was about 1.30 A.M. In the light of this evidence, it is to
be observed whether their chief examination has been shattered by
way of cross-examination and whether any material contradictions
are brought in their evidence. As already stated, P.W.1 states that,
immediately after the incident she visited the spot and she along
with Yallappa had shifted her son Irappa and Sunil to the hospital.
Even though P.W.2 denied this aspect and stated that, only Yallappa
came to the spot, the evidence of P.W.1 is supported by the
evidence of P.W.3 – Sunil, P.W.20 – Nirmala Bhavikatti and P.W.21 –
Muttavva Konannavar. All of them have stated that, P.W.1 reached
the spot along with Yallappa and she was present while shifting
them to the hospital. Hence, immediately after the incident, P.W.1
reached the spot along with Yallappa and shifted the injured to the
hospital. She was informed by her son Iranna as well as Sunil that,
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the accused has shot fired with his gun towards them and caused
injury to all three of them.
38. At this stage, the defence of the accused has to be looked
into. In the cross-examination, it is suggested by the Advocate for
the accused to P.W.1, P.W.2, P.W.3 that, this incident has not
happened as narrated by them, but it was an accidental fire in
exercise of his right of private defence. In the evidence of P.W.2, it
is brought out and suggested that, this Shivayogi Bhavikatti is a
Rowdy Sheeter and he was called as Punch by all of them. This
P.W.2, P.W.3 are close friends of Shivayogi Bhavikatti. It is admitted
by P.W.1 that, prior to this incident, he had called several times to
Ishwar R. Ganiger and spoke to him on the phone. P.W.2 also
admits that, he was aware of the accused possessing licenced gun
and carrying the same always with him. He also admits that, it was a
very small house having 10X12 width where the accused was
residing and the house had only one hall, bed room and a kitchen.
There is a clear admission by P.W.2 that, the incident happened in
the midnight of 04.07.2020 and 05.07.2020. It is also admitted that,
it was a rainy season and Corona first phase was existing in that
month. He further admits that, as per Government Notification no
one was allowed to go out of the house except emergency. Till here
the defence of accused looks probable. It was directly suggested to
P.W.2 that, he along with Sunil, Shivayogi Bhavikatti one Prashanth
Harogeri, Ishwar Ganiger had assembled in the cattle shed of
Shivayogi Bhavikatti and consumed liquor, which is denied. P.W.2
admits having called the accused at about 11.00 P.M. But, denied
that, he abused the accused in filthy language. It is suggested that,
all these five persons went to the house of the accused together at
about 1.00 A.M. It was suggested that, they banged the door of
house of the accused and the accused did not open the door.
Seeing them from window, accused told them to go back as all of
them were drunken. It is suggested that, at that time the accused
called the mother of this P.W.2 to inform that all these persons have
come to his house and banging his door. It is suggested that, the
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mother of P.W.2 told the accused that, it would be decided as to who
is strong today. Thereafter, the accused opened the door and all of
them entered the house. The accused searched for phone number
of Police to call them and this Shivayogi Bhavikatti hit his hand with
punch and the Mobile phone was thrown on the floor. Bleeding
injury also caused to the hand of the accused by this punch used by
Shivayogi. It is clearly suggested that, when the accused got fear
that all of them would kill him, he went near the showcase to remove
the Revolver. It is also suggested that, all of them caught hold of
accused and tried to snatch the Revolver. In this scuffle Revolver
chamber and trigger portion came to the hand of Shivayogi
Bhavikatti and the accused only held the barrel. When they were
trying to snatch the Revolver, same was fired and it hit the neck of
P.W.2. All these suggestions were denied by P.W.2 saying that, it
was not accidental fire, but the accused directly shot him with the
Revolver. There is an attempt made in the evidence of P.W.2 that,
immediately after the first shot to his neck, he lost conscious and he
had not seen what happened thereafter, hence, he has not seen as
to whether Shrishail shot Shivayogi Bhavikatti and Sunil. All these
suggestions put in defence of accused are not admitted by eye-
witnesses and injured. They also denied that, gunshot was fired
accidentally by the accused. Hence, the suggestions made by
advocate for accused to bring home the right of private defence in
firing the P.W.2 and P.W.3 has failed at this stage itself. But incident
is admitted.
39. Another witness who spoke about the gunshot injury was P.W.3,
who was cross-examined in detail. The defence advocate has
argued and cross-examined that, the presence of this witness in the
house of P.W.1 on the date of incident itself looks doubtful, because,
he is staying with his mother nearly 07 kilometers away from the
house of the accused and nearly half kilometer distance from the
house of the complainant. As already explained, it was a rainy
season and peak time of Corona pandemic and movement of any
person outside the house was restricted. At such time, leaving
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behind his mother alone at house why this P.W.3 was staying in the
house of P.W.1 also creates doubt and this supports the defence of
the accused that, all of them had assembled in the house of P.W.1
for hatching a plan to kill the accused. Hence, he was cross-
examined in this regard in detail. This P.W.3 admits that, this
Shivayogi Bhavikatti is residing near Totager Oni and the house of
this complainant is near Depot circle, Dharwad. Defence counsel
argued that, it is highly impossible to believe that, P.W.1 informed
Sunil at about 1.00 A.M. to go and bring back her son from the
house of the accused and this Sunil went from his house to the
house of Shivayogi Bhavikatti and from there he reached the house
of the accused within 5 to 10 minutes. Upon careful reading of entire
evidence of P.W.2, as already stated above, the distance between
the house of the accused and the house of this witness is 07
kilometers. Same suggestion was put to P.W.3 about the defence of
this accused and it was also suggested that, on 04.07.2020 the
complainant, Irappa, this Sunil and Ishwar Ganiger had assembled
in the house of P.W.1 and called Shivayogi Bhavikatti and made a
contract with him to kill the accused for 5 lakhs supari. It was
agreed that, he 10,00,000/-, but she has to relinquish her would be
given two Acres of land if this plan is executed. It is suggested that,
all these persons went to the house of the accused in a Maruti Omni
van and this Prashanth Harogeri was left in the Van and only four of
them went to the house of the accused. P.W.3 denied all these
suggestions, but he admits that, when they went to the house of the
accused, it was 1.00 A.M. in the midnight on 05.07.2020. He also
admits that, the accused had called to Suvarna in the phone of
Kavita and informed about the incident, but denied that it was after
he reached the house of accused. Even though he says that, at that
time he was sleeping in the house of P.W.1 and was not at the spot
and denied all the suggestions made by the Advocate for the
accused. There is one admission in page No.15 of cross-
examination of this witness as under:
FgÀ¥Àà (¥Áæ¸Á 2), ²ªÀAiÉÆÃV ¨Á«PÀnÖ ºÁUÀÆ F±ÀégÀ UÁtÂUÃÉ gÀ
DgÉÆæ PÉÊAiÀÄ°èzÀÝ – ¦¸ÀÆ®
Û £ÀÄß QvÀÄÛPÉƼÀî®Ä ¥ÀæAiÀÄw߸ÀÄwÛzÁÝUÀ D
– 38 –
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CRL.A No. 100616 of 2024HC-KAR
dUÁÎlzÀ°è jªÁ®ég¤ À AzÀ UÀÄAqÀÄ ¥Áæ¸Á 2 gÀªj À UÉ vÀUÀ°gÀÄvÀÛzÉ
JAzÀgÉ ¸ÀļÀÄî. £Á£ÀÄ, ²ªÀAiÉÆÃV ¨Á«PÀnÖ ºÁUÀÆ F±ÀégÀ UÁtÂUÃÉ gÀ
J®ègÀÆ ¸ÉÃj DgÉÆæUÉ ¦¸ÀÆÛ®£ÀÄß vÉUz É ÀÄPÉƼÀî®Ä ©qÀ°®è D
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Û É JAzÀgÉ ¸ÀļÀÄî D
QvÁÛlzÀ°è MAzÀÄ UÀÄAqÀÄ, ¨ÁV°UÉ §r¢gÀÄvÀÛzÉ JAzÀgÉ ¸ÀļÀÄî, D
¸ÀªÀÄAiÀÄzÀ°è DgÉÆæAiÀÄ£ÀÄß £ÁªÀÅ eÉÆÃgÁV dVÎzÀÝjAzÀ DgÉÆæ
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±Àlð£À PÁ®gï »rAiÀÄ®Ä ºÉÆÃzÁUÀ DgÉÆæ £É®PÉÌ ªÀÄÄUÀÎj¹
©zÁÝUÀ F±Àg é À UÁtÂUÃÉ gÀ C°èzÀÝ jªÁ®égÀ vÉUz É ÀÄPÉÆAqÀÄ DgÉÆæUÉ
ºÉÆqÉAiÀĨÉÃPÉAzÀÄPÉÆAqÁUÀ UÀÄAqÀÄ £É®PÉÌ vÁVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀļÀÄî.
C°è ¸Àܼz À °
À è UÀÄAqÀÄ vÁVzÀÝjAzÀ mÉÊ®ì£À ªÉÄÃ¯É PÀ¯É DVvÀÄÛ JAzÀgÉ
¸ÀļÀÄî. DgÉÆæAiÀÄ£ÀÄß ²ªÀAiÉÆÃV »rzÀÄPÉƼÀî®Ä ºÉÆÃzÁUÀ F±ÀégÀ
UÁtÂUÃÉ gÀ CªÀgÀ PÉÊAiÀÄ°èzÀÝ gÀªÁ®ég¢ À AzÀ DgÉÆæUÉ UÀÄAqÀÄ
ºÁj¸ÀÄwÛzÁÝUÀ ²ªÀAiÉÆÃV ¨Á«PÀnÖ DgÉÆæAiÀÄ£ÀÄß §VÎ »rAiÀÄ®Ä
¥ÀAæ iÀÄwß¹zÁUÀ ¸Àzj À UÀÄAqÀÄ ²ªÀAiÉÆÃV ¨Á«PÀnÖ CªÀjUÉ vÀU° À gÀÄvÀzÛ É
JAzÀgÉ ¸ÀļÀÄî.
In the entire suggestion, he has only admitted about
snatching the accused by them and he fell and tried to run out of the
house. Only this stray admission supports the defence of the
accused. Regarding all other suggestions, which are totally denied
by P.W.1, P.W.2 and P.W.3. A stray admission in the cross-
examination cannot be taken as washing away all the evidence
given by prosecution witnesses in support of case.
40. The prosecution tried to prove and narrate the incident as
seen by the neighbours and house owner and cited them as
witnesses. Regarding the evidence of neighbours of the spot of
incident, P.W.15 – Sachin C. Humbi is the owner of the house in
which the accused was residing. He admits having heard gunshot
sound while he was sleeping at about 3.00 A.M. in the morning. He
says that, none of them came out of the house. At about 5.00 A.M.
Police came to their house and enquired them about any shoot out.
He spoke about only hearing the sound of gunshot, but shown his
ignorance about any of the incident thereafter. He was treated as
hostile and cross-examined by the learned Public Prosecutor,
wherein it was suggested that, at about 1.30 A.M. he had heard the
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gunshot on 05.07.2020. Only this aspect is admitted by him.
Remaining all the suggestions like his father and himself came out
of the house and saw that three persons had sustained injuries and
fallen on the road is denied by him. He has totally denied having
seen the injured after the incident. A detailed suggestion was made
by the learned Public Prosecutor to him that, himself and his father
went to the police station in the evening on 05.07.2020 and the
accused explained him about the entire incident. The statement of
this witness is marked as Ex.P.22, who has totally denied having
given such statement before the Police. Advocate for the accused
tried to suggest about his defence to the house owner, but the same
was also denied by him. Except hearing one gunshot, he has
denied all other aspects. Hence, the evidence of this witness is of
no use to both prosecution as well as defence counsel.
41. P.W.16 – Namadev H. Kanakagiri is said to be another
neighbour, residing in the same house of Chandrashekhar Humbi.
He has totally denied having witnessed any incident near the house
on the alleged date. He only says that, police came to his house at
about 1.00 A.M. and asked him about any incident of gunshot near
his house. He has totally shown his ignorance about the entire
incident and in spite of cross-examination by the learned Public
Prosecutor that, he had gone to the police station to see the
accused and the accused had confessed with him about the entire
incident. An effort of learned Public Prosecutor to bring out anything
about the incident has failed as this witness did not support the case
of prosecution.
42. P.W.18 – Jyoti N. Kanakagiri was also a tenant in the same
building where the accused was residing. She has totally denied
having heard the gunshot sound or seen any incident. She only
says that the police visited her house and enquired, but she denied
about any incident. She was treated as hostile and cross-examined
by the learned Public Prosecutor, who had suggested that, she had
seen the incident from her house window and came out of the house
and saw the accused running from the house. She had also helped
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in shifting the injured to Ambulance. She has totally denied that, she
visited the police station and the accused confessed about the
incident with her. She totally denied having given statement as per
Ex.P.25.
43. Hence, the neighbours of the spot of incident, who are
alleged to be eye witnesses to the incident immediately after the
gunshot and examined as P.W.5 to P.W.15 have totally turned
hostile to the case of prosecution and denied about entire incident.
The prosecution could not prove the evidence of any of
circumstantial witnesses to prove its case.
44. Regarding the evidence of Doctors, who gave First Aid and
conducted surgery on P.W.2 and P.W.3 as well as first seen the
deceased Shivayogi Bhavikatti also supports the case of
prosecution. P.W.24-Dr. Balachandra P. Sanganal had conducted
surgery to Iranna S. Hebballi and recovered bullet from his body. He
says that, same was recovered by the police, packed and sealed in
his presence. He has identified the bullet before the Court as
M.O.No.24. He also states about the surgery of Sunil Konannavar
and recovery of bullet as per Ex.P.25. He also says that, bullet had
pierced on the left neck and had gone till right side shoulder of
P.W.2-Iranna. The bullet hit to Sunil on the right side of abdomen
was recovered from his stomach. He also speaks about dying
declaration recorded by the Tahasildar Vijaykumar Kadakol (P.W.30)
on 07.07.2020 as per Ex.P.38 and Ex.P.39. He has identified the
photographs Ex.P.40 and Ex.P.41 taken in his presence.
45. P.W.25 – Dr. Fanim G. Kalaburgi is the Medical Officer of
KIMS, Hubballi, who issued the Case Sheet of Irappa Sangappa
Hebballi and Sunil Konannavar. He had furnished the Case Sheet
of both of them along with the Wound Certificates as per Ex.P.31
and Ex.P.32.
46. P.W.26 – Dr. Mahammad Tahir M. Solapur has seen this
Shivayogi Bhavikatti at the first instance at Government Hospital,
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Dharwad. Said Shivayogi Bhavikatti was brought by Ravi
Chandrashekhar Horaginamath with gunshot history. There was
gunshot on the back of Shivayogi Bhavikatti. After giving first aid, he
was immediately referred to KIMS Hospital as per Ex.P.33. He also
spoke about shifting of Irappa and Sunil at 2.54 A.M. to Government
Hospital, Dharwad in an Ambulance. Both of them had gun shot
injury. After giving first aid, they were referred to KIMS Hospital as
per Ex.P.34 reference.
47. P.W.30 – Vijaykumar Kadakol is the Tahasildar, who
recorded the dying declaration of P.W.2 and P.W.3 as per the
request of the Investigating Officer by visiting the hospital on
07.07.2020 and recorded their statement as per Ex.P.38 and
Ex.P.39. All these witnesses support the version of prosecution
regarding gunshot injury and recovery of bullet from the body of
Shivayogi Bhavikatti and P.W.2 and P.W.3-injured. P.W.30 has
spoken statement recorded by him in the hospital while P.W.2 and
P.W.3 were in critical condition and in the verge of death. Their
statement can be taken as dying declaration wherein they have
stated the name of accused as he fired on them with his gun.
Hence, the evidence of this witness is also relevant to prove the
case of prosecution.
48. Regarding the spot mahazar, seizure of Revolver, seizure of
clothes worn by the accused and deceased as well as injured, the
evidence of P.W.4, one Ravi Chandrashekhar Horaginamath has
given evidence about the inquest panchanama of Shivayogi
Bhavikatti and identified his signature on Ex.P.5 and photograph
Ex.P.6. The P.W.5- Nagaraj G. Badiger is said to be a Spot Mahazar
witness. But, he has not supported the case of the prosecution
regarding drawing up of Spot Mahazar as per their version. He has
only identified his signature on Ex.P.2 and his photograph as per
Ex.P.3 and Ex.P.4. He denied the recovery of Revolver pouch,
dagger and a Mobile phone as M.O.Nos.5 to 7. P.W.6 – Girish B.
Byali is also a Mahazar witness. He has stated that, the Police have
visited the spot of house of Humbi where shoot out and murder has
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taken place. He admits that, the accused was residing in that
house. But, denied that, Mahazar was prepared in his presence. He
has refused to identify any of the Material Objects except his
photographs Ex.P.3 and Ex.P.4 and his signature on Ex.P.2 Spot
Panchanama. Hence, all these witnesses have not supported the
case of prosecution regarding seizure of any articles.
49. Regarding recovery of Revolver as per the say of the
accused, the P.W.7 – Hanumantappa N. Katti and P.W.8 – Bhimshi
S. Menasinakayi are Mahazar witnesses to recovery of Revolver at
the instance of the accused as per prosecution case. This P.W.7
has stated that, when he was near Channabasaveshwar Temple,
Police came to the spot along with the accused, they called this
witness and all of them went behind the Temple, Police removed a
Revolver from the pouch and gave it to the hand of the accused and
thereafter they took his photograph and signature on a paper.
C.W.7 was also present with him and thereafter they took them to a
Motorcycle parked near the road. Police took photograph of them
near the Motorcycle and also took signature on a paper. That
Mahazar was marked as Ex.P.9 and Photographs are marked as
Ex.P.10 to Ex.P.14. The Revolver is shown to the witness, which is
not recognized by him. He was treated as hostile and cross-
examined by the learned Public Prosecutor. In the cross-
examination, he admitted some suggestions made by the learned
Public Prosecutor. But, denied other suggestions. Again in the
crossexamination of Advocate for the accused, this witness supports
their version and says that, the Revolver was in the hand of
Inspector who gave the same in the hand of the accused and took
the photograph. He also admits that, none of the things seized at
the spot and were packed and sealed by the Police. This witness
even though supported the prosecution in cross-examination by the
learned Public Prosecutor, he again deviated from his version and
supported the accused in the crossexamination by the defence
counsel. P.W.8 – Bhimshi S. Menasinakayi is also a Seizure
Mahazar witness who spoke similar to P.W.7. He says that, Police
came near Unkal pond near Channabasaveshwara Temple, they
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were carrying one carry bag, they took them behind the Temple and
removed a Revolver from the carry bag and gave the same in the
hand of a person. They took photograph of these witnesses and
thereafter their signatures were taken as per Ex.P.10 to Ex.P.14. He
identified his signature on Ex.P.9. He was treated as hostile and
cross-examined by the learned Public Prosecutor regarding the
seizure of one Revolver, 05 cartridges, 01 live bullet and 01 empty
cartridge from the possession of the accused. The witness has
totally denied this aspect. The prosecution could not prove the
recovery of Revolver from the possession of the accused as per
Ex.P.9. Since the accused took a specific defence that, the
Revolver belongs to him, it makes no difference as to the recovery
by the Police.
50. At this stage, the learned Public Prosecutor has relied upon
a reportable Judgment of The Hone’ble Supreme Court of India in
Cri. App No.1910/2010 in the case of Balu Sudam Khalde and
another Vs. The state of Maharashtra, wherein it is held as under:
26. When the evidence of an injured eye-witness is to be
appreciated, the under-noted legal principle enunciated
by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at thetime and
place of the occurrence cannot be doubted unless there
are material contradictions in his deposition.
(b) Unless, it is otherwise established by theevidence, it
may be believed that an injured witness would not allow
the real culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reason exist, their
statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or
minor contradictions.
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(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured, but
not the whole evidence.
(f) The broad substratum of the prosecution version must be
taken into consideration and discrepancies which
normally creep due to loss of money with passage of
time should be discarded.
27. In assessing the value of the evidence of the eye
witnesses, two principal considerations are whether, in
the circumstance of the case, it is possible to believe
their presence at the scene of occurrence or in such
situation as would make it possible for them to witness
the facts deposed to by them and secondly, whether
there is anything inherently improbable or unreliable in
their evidence. In respect of both these considerations,
circumstances either elicited from those witnesses
themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity
of their statements, will have a bearing upon the value
which a Court would attach to their evidence. Although
in cases where the plea of the accused is a mere denial,
the evidence of the prosecution witnesses has to be
examined on its own merits, where the accused raise a
definite plea or put forward a positive case which is
inconsistent with that of the prosecution, the nature of
such plea or case and the probabilities in respect of it
will also have to be taken into account while assessing
the value of the prosecution evidence.
This citation clearly explains what are the cautions to be taken by
the Court while accepting the evidence of injured eye witnesses and
the credibility to be given to their evidence while deciding the cases.
Another citation relied upon by the learned Public Prosecution is
reported in 2023 AIAR (Criminal) 83 in the case of Gurmail Singh
and another Vs. State of Uttar Pradesh and Another, wherein it is
held as under:
C. Indian Penal Code,1860, Secs.302 and149- Offence of
Murder and unlawful assembly-non-recovery of
weapons Reliability of evidence of injured eye
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witnesses-Evidence of injured witnesses cannot be
disbelieved or brushed aside solely because they are
sons of deceased-Thus, being relative of deceased is
no reason to discredit their version-Their evidence
regarding carrying of firearms and their use by the
members of the unlawful assembly gets corroboration
from the evidence.
D. Indian Penal Code,1860, Secs.302 and149- Alteration
of conviction to one under Sec.304 of the IPC in place to
the conviction under Sec.302 IPC-Held, there can be no
doubt with respect to the position that in order to make
culpable homicide as murder act by which death is
caused should fall not only under any one or more of
causes firstly to fourthly under Sec.300 IPC but they
should also not fall under any of the five exceptions to
Sec.300 IPC- Though appellant contended that
conviction under Sec.302/149 is liable to be altered to
one under Sec.304/149 it is fact that he failed to bring it
within any of five exception to Sec.300 IPC- Thus, no
question of considering contentions that offence of
culpable homicide falls either under section 304(Part-i)
or 304(part-ii). Hence, conviction and sentence
confirmed.
Another citation relied upon by learned Public Prosecutor reported in
2010 Cri. L. J. 1659 in the case of Satyavir Singh Vs. State of U.P,
wherein it is held as under;
(A) Penal Code (45 of 1860)m Sec.307 Criminal P.C. (2 of
1974), Sec. 374,378 Attempt to murder-benefit of doubt
Cannot be given on basis of assumptions or presumptions
of facts-Acquittal of accused on surmises and suspicion-
Setting aside of no interference.
On the other hand, Advocate for the accused has relied upon the
decision reported in 2016 AIAR (Criminal ) 731, in the case of
Indira Devi and others Vs. State of Minachal Pradesh, wherein it
is held as under;
Witnesses- Injured witness-Testimony of – Credibility of-
Testing of- Proposition of law that an injured witness is
generally reliable is no doubt correct- But even an injured
witness must be subjected to careful scrutiny if
circumstances and materials available on record suggest
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that he may have falsely implicated some innocent persons
also an after thought on account of enmity and vendetta.
The citations relied upon by the learned Public Prosecutor are aptly
applicable to the case in hand as all of them are regarding credibility
of testimony of eye witness.
51. P.W.33- Shridhar Vasant Satare is the Investigating Officer
who has conducted detailed investigation and filed the Charge sheet
against the accused. It is suggested to this I.O. that, the accused
has gone to the police station directly at 6.00 A.M. on 05.07.2020
and informed about the occurrence and also gave the Revolver to
the police and informed him that it was fired to save himself. But,
the I.O. has totally this aspect. On the suggestions made to this I.O.
regarding entire investigation is denied by him and he has supported
the case of prosecution.
52. Upon going through the evidence of these two eye
witnesses P.W.2 and P.W.3 and circumstantial witnesses P.W.1 as
well as P.W.20 and P.W.21, who are Mothers of Iranna, Sunil and
Shivayogi Bhavikatti, I am of the clear opinion that, these P.W.2,
P.W.3 and Shivayogi Bhavikatti had gone to the room of the accused
at about 1.00 A.M. midnight on 05.07.2020. It is clearly brought out
in the evidence that, it was Corona pandemic time and movement of
any persons outside the house was totally barred except medical
emergency. It is also brought out by the defence that, there was a
scuffle between the accused, P.W.2, P.W.3 and the deceased
Shivayogi Bhavikatti. There is no doubt that, gunshots are fired from
the licenced Revolver of the accused in this scuffle and P.W.2, P.W.3
and Shivayogi Bhavikatti have sustained gunshot injuries. The
presence of these injured eye-witness at the time and place of the
occurrence cannot be doubted as there are no material
contradictions in their deposition. Unless, the defence established by
the accused in his evidence, it may be believed that an injured
witness would not allow the real culprits to escape and falsely
implicate the accused. The evidence of injured witness has greater
evidentiary value and unless compelling reason exist, their
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statements are not to be discarded lightly. The evidence of injured
witness cannot be doubted on account of some embellishment in
natural conduct or minor contradictions. if there be any exaggeration
or immaterial embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment should be
discarded from the evidence of injured, but not the whole evidence.
The broad substratum of the prosecution version must be taken into
consideration and discrepancies which normally creep due to loss of
money with passage of time should be discarded. Hence, the
prosecution has proved the intention of the accused to kill P.W.2,
P.W.3 and Shivayogi Bhavikatti as per the motive stated by them
when they entered his room in the midnight. The prosecution has
succeeded in proving that the gunshot injuries were caused by the
accused by firing with M.O.No.8-Revolver and Shivayogi Bhavikatti
died due to injuries sustained in said gunshot. The prosecution has
also proved that, the accused had the knowledge that by firing with
M.O.No.8 Revolver he can cause death of all the three of them and
in spite of this knowledge he has fired on P.W.2, P.W.3 and the
deceased Shivayogi Bhavikatti. The accused could not prove his
defence of accidental firing or act done in furtherance of private
defence. The prosecution has brought home the intention on behalf
of the accused to cause death of Shivayogi Bhavikattiand and
causing gunshot injuries to the vital parts of P.W.2 and P.W.3 and
threatening C.W.1 / P.W.1 over phone regarding dire consequences.
53. Regarding the charge of using the Revolver M.O.No.8 for
commission of offence, the prosecution has stated that, the licence
of the gun was expired on 31.12.2019 and same was not got
renewed by the accused. But, during the evidence, P.W.31 –
Jayapal A. Patil was the PSI of Navalgund police station, who
replied to the question of the Investigating Officer about the licence
of gun possessed by the accused. He has given reply as per
Ex.P.48 and in his reply he has clearly stated that, the licence of said
gun was expired on 31.12.2019 and the accused had given an
application for renewal. When he issued Ex.P.48 information, the
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renewal was given by the concerned authority. It is brought out from
the mouth of Investigating Officer P.W.33 that, the accused had filed
an application for renewal and the same was pending for sanction.
Hence, the charge under Section 25 of Indian Arms Act is not
proved by the prosecution. But, using of said Revolver M.O.No.8 for
commission of offence is proved by the prosecution. With these
observations, I have answered Point No.2 in Affirmative and Point
No.3 Partly in Affirmative with regard to attempt to murder by the
accused to P.W.2 and P.W.3.
54. POINT No.4: The defence of accused is that, it is culpable
homicide, but not amounting to murder as in exercise of good faith
of right of private defence, accused has exceeded the power given
to him by law and caused death. The Advocate for accused has
stated that, whether the motive attributed by the prosecution is so
strong to kill Shivayogi Bhavikatti and injured P.W.2 and P.W.3 with
the gun shot. He has argued that, the prosecution has totally failed
to prove any motive and intention on behalf of the accused to
commit such crime. It is argued that, the place, time, incident, injury
are not disputed by the accused. The only disputed fact by the
accused is that, the accused has shot Shivayogi Bhavikatti and
P.W.2 and P.W.3. The Court has to look into who are the aggressors
in this case. The circumstances such as going to the room of the
accused at 1.30 A.M. in the midnight i.e. early morning of
05.07.2020 by P.W.2, P.W.3 and deceased Shivayogi Bhavikatti and
secondly; it was a heavy rainy season in July and thirdly; it was a
time when Covid-19 pandemic was at peak in the first phase and a
curfew was imposed throughout the State for any movement of
people during night time. No one was allowed to go out except in
case of emergency. Then, whether the prosecution has given any
motive to show that there was emergency for P.W.2, P.W.3 to go to
the room of the accused in the midnight to seek partition in an
ancestral property of the accused and P.W.1. Advocate for the
accused has relied on Call Detail Records filed along with Charge
sheet by the Investigating Officer and got marked as Ex.D.5 and he
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has argued that, said Call Records supports his defence to show
that, these Sunil, Irappa Hebballi, Suvarna and Ishwar Ganiger had
several phone calls made between them prior to the incident and
said fact is admitted by P.W.2. He has further highlighted that,
regarding motive stated by the prosecution, if the details of ancestral
family house of Channamma is taken, then Nagappa is the father of
the complainant and Mallappa is the eldest son, who died long back,
Madivalappa, who is third son, who is father of the accused, who
died long back, Siddappa being the 4th son died after 8-9 months of
said incident. The mother of the accused is also dead. All these
brothers are still living together with their family members in a joint
family property wherein partition has not taken place. This accused
is not having any right to give any portion in the ancestral property to
P.W.1 and there is no chance of this accused having any enemity
against P.W.1 and P.W.2. There was no instance for this P.W.2 to go
to the house of the accused in the midnight that too during curfew of
Covid-19 to seek share of P.W.1 in the ancestral property. Hence,
this circumstance itself is totally against the prosecution witnesses
and they are the aggressors. The accused was not competent to
give any share to P.W.1. Hence, motive itself looks doubtful. None
of the persons in Shirur village are examined by the prosecution. It is
alleged that, the accused had made phone call to P.W.1 and when
she did not receive it, he had called Kavita to inform that P.W.2 is in
his house. If the accused had any intention to kill P.W.2, why he has
called Kavita and informed it before killing. It is also the case of
prosecution that, this accused was staying in the house of P.W.1
Channamma for nearly two years prior to this incident and all of
them knew about the accused possessing licenced gun with him. If
the accused had any intention to kill P.W.2, he would have killed
long back when he was staying at their house itself. It is further
argued that, there was no reason for the accused to wait until Sunil
and Shivayogi Bhavikatti comes to his house in order to fire gun shot
to all three. This gives doubt as to story of the prosecution and its
genuineness. It is the clear defence of the accused that, P.W.1,
P.W.2, P.W.3 and one Ishwar Ganiger along with deceased
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Shivayogi Bhavikatti had hatched a plan to kill this accused and on
the date of incident, P.W.2-Irappa Hebballi, P.W.3-Sunil Konannavar
along with deceased Shivayogi Bhavikatti and Ishwar Ganiger had
gone to the house of the accused at about 1.00 to 1.30 A.M. in the
midnight. They started to bang the door of the house of the
accused, they were under the influence of liquor. The accused
seeing them through window warned them to go back and come on
the next day. When they continued to bang on the door, he opened
it and all of them rushed inside the house and started to quarrel with
him for share in the property for P.W.1. When he tried to pacify
them, Shivayogi Bhavikatti assaulted him with punch and dagger.
He had sustained simple injury on his left hand. He tried to call
Police in this regard and it is his case that, he had called P.W.1 at
that time and when she did not lift the call, he called Kavita and
asked her to give phone to P.W.1. He explained about their
presence in his house and told her to call them back. P.W.1 told him
that, it would be decided as to who is strong today and she
disconnected the phone. On this incident, the accused went near
the showcase to pick up the Revolver for selfprotection. Seeing this,
all the four of them caught hold of him and tried to snatch the
Revolver and in that scuffle accidentally firing has taken place which
hit to P.W.2 and P.W.3. The accused further took the defence that,
he left Revolver and ran towards the door and fell near the door.
Shivayogi Bhavikatti rushed to hold him and gun shot fired by Ishwar
Ganiger to kill this accused has hit Shivayogi Bhavikatti on his back
and he has sustained injuries. Same defence is explained by the
accused in his 313 statement in a written note. The same defence is
put-forth to P.W.1, P.W.2, P.W.3 and all the circumstantial witnesses
throughout the case. It is the specific defence of the accused that,
he is not an aggressor, but he has used right of self-defence to
protect himself from the aggressors who entered his room at 1.30
A.M. in the night and tried to kill him. Hence, on the basis of all
these aspects, Advocate for the accused has prayed that this is a
case of culpable homicide not amounting to murder and it squarely
falls in Explanation of Section 300 of IPC, wherein the accused has
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used his right of self-defence to protect himself and committed
crime.
55. He has relied upon the decision reported in 2001 (1) Kar. L.J.
255 (DB) in the case of State of Karnataka Vs. K. M. Kukkappa
wherein it is held as under;
Indian Penal Code, 1860, Sections 99, 100 and 300- Indian
Evidence Act, 1872, Section 3- Private defence Extent of-
Where person has to face assailants who would reasonably
be apprehended to cause grievous hurt to him, it is open to
person to defend himself even by causing death of
assailants- Tests of detached objectivity cannot be applied
to determine whether accused had used more force than
was necessary, as means or force that person under threat
of danger may use to defend himself cannot be weighed in
to fine a set of scales or golden scales-Where accused had
seen near his house presence of persons who had on
previous day assaulted and humiliated him, their presence
would be held sufficient to cause apprehension in his mind
that they had come there to assault him again, especially
when they were armed and he was outnumbered- Use of
firearms by accused in such circumstances to drive away
assailants, is to be held in exercise of private defence- Once
right to private defence is conceded to accused, no criminal
liability can be fastened to accused for death of assailant.
Advocate for accused further relied upon citation reported in 1992
CRI. L. J 2845 in the case of Shivappa Laxman Savadi Vs. The
State. Wherein it is held as under;
(A) Penal Code (1860), Sec. 96, 97- Right of private
defence- plea of – Consideration by Court- Laying
foundation for the plea at trial by cross-examination
witnesses, by adverting to it in statement under Sec.313,
Criminal P.C.
C. Penal code (1860), Sec.96, 97- Right or private defence-
Three able bodied persons belonging to well-to-do strata –
one of them an acquit in murder case- visiting accused’s
house I response to beating given by accused to their
servant-Accused belonging to inferior caste against which
the community of injured bore grudge-apprehension of
bodily injury would arise-accused striking with axe which he
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carried in his hand- one of three killed and other two injured-
held, accused did not exceed right of private defence.
Advocate for accused further relied upon citation reported in (2002)
9 Supreme court Cases 494 in the case of Moti Singh Vs. State
of Maharashtra, wherein it is held as under;
Penal Code, 1860, Sec. 100, 102- Causing death in
exercise of right of private defence of body-Benefit of the
right can be given to accused even in absence of plea in
that regard if evidence shows that accused persons were
put under a situation where they cold reasonably have an
apprehension of danger to the body of even one of them
having regard to the place of occurrence and nature and
situs of the injuries sustained by one of the accused, held on
facts, a reasonable apprehension could be entertained that
at least a grievous hurt would be caused to the accused
persons unless aggression was thwarted- accordingly,
accused entitled to benefit of right of private defence
Advocate for accused further relied upon citation reported in (2006)
11 Supreme Court Cases 304 in the case of Krishnan Vs. State of
Tamil Nadu, wherein it is held as under;
A. Penal Code 1860- Sec. 96 and 97- Plea of private
defence-Burden of proof – Held, is on the accused but the
burden is not as onerous as that which lies on the
prosecution- While the prosecution is required to prove its
case beyond reasonable doubt, the accused can discharge
his onus by establishing a preponderance of probability-
Further held, such plea can be established either by letting
in defence evidence or form the prosecution evidence itself,
but cannot be based on mere speculation or surmises.
Advocate for accused further relied upon citation reported in
(2008) 2 Kant. L. J. 525 in the case of S. Ganesh Vs. State of
Karnataka by State Public Prosecutor wherein it is held as under;
Indian Penal Code, 1860- Section 304 Part II-Offence under
-Conviction and Sentence Appealed against- Right of self
defence Plea of Acceptance of -Circumstances to be seen-
Injuries caused without there being any intention but with a
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knowledge that it is likely to cause death- Stabbing on the
vital part of the body-Held, even assuming that there is
threat to the accused since the deceased and two others
were there on the one side and the accused was alone, the
accused would have taken out a knife to protect himself, he
should not have ventured to stab on the vital part of the
body ie., the chest- further held, However the death has
occurred due to the assault and it is either motivated nor
with any premeditation- It is an act out of rage due to the
scuffle- The sentence to undergo rigorous imprisonment for
ten years appears to be on the higher side and the same is
reduced to four years.
Advocate for accused further relied upon citation reported in (2008)
16 SCC 33 in the case of Raghbir Singh and Others Vs. State of
Haryana, wherein it is held as under;
Penal Code, 1860(IPC) Sections 96 to 105Right of private
defence- Whether in a particular set of circumstances, a
person legitimately acted in exercise of right of private
defence is a question of fact to be determined on facts and
circumstances of each case- It is not necessary for accused
to plead in so many words that he acted in self-defence- If
circumstances show that right of private defence was
legitimately exercised, it is open to court to consider such a
plea- In a given case the Court can consider it even if the
accused has not taken it, if same is available to be
considered from material on record- Burden of proof is on
accused, who set up the plea of self- defence, and in the
absence of proof, it is not possible for Court to presume
truth of plea of Self- defence- Court shall presume absence
of such circumstances.
Advocate for accused further relied upon citation reported in (2009)
2 SCC (Cri) 110, in the case of Ranveer Singh Vs. State of M.P.
wherein it is held as under;
Penal Code, 1860 (IPC)- Sections 96 to 106- Evidence Act,
1872- Section 105Right of private defence- it is not
necessary for the accused to plead in so many words that
he acted in self-defence- If the circumstances show that
right of private defence was legitimately exercised, it is open
to Court to consider such a plea- In a given case Court can
consider it even if accused has not taken it, if same is
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available to be considered from material on record- Burden
of proof is on the accused, who sets up plea of self-defence-
In the absence of proof, it is not possible for Court to
presume truth of plea of self- defenceCourt shall presume
absence of such circumstances- Burden of establishing plea
of self- Defence is on accused- Burden stands discharged
by showing preponderance of probabilities in favour of that
plea on basis of material on record.
Advocate for accused further relied upon citation reported in 2016
AIAR (Criminal ) 731, in the case of Indira Devi and others Vs.
State of Minachal Pradesh, wherein it is held as under;
Witnesses- Injured witness-Testimony of Credibility of-
Testing of- Proposition of law that an injured witness is
generally reliable is no doubt correct- But even an injured
witness must be subjected to careful scrutiny if
circumstances and materials available on record suggest
that he may have falsely implicated some innocent persons
also an after thought on account of enmity and vendetta.
56. On the other hand, the learned Public Prosecutor has argued
that, the defence of right of self-defence taken by the accused is not
substantiated by any evidence. When there are clear evidence of
injured persons who sustained gun shot injury, why there evidence
should be brushed aside by the Court and the defence of the
accused should be considered?. He has further brought to the notice
of this Court about the report of Ballistic Expert and his evidence,
wherein it is clearly stated that, in Ex.P.61 a Blue Colour T-Shirt is
examined and there are GSR detected on Article No.6, which is
marked as M.O.No.9, on the chest portion. This GSR can be
detected on the chest portion only if the gun is hold by the accused
and if he directly fires towards the injured / deceased. Hence, the
defence is defeated by this aspect. He has also highlighted the
evidence of P.W.3, who says that, there was no enemity between
P.W.3 and the accused. Hence, there was no threat by P.W.3 to this
accused. The evidence of P.W.1 cannot be brushed aside only on
the single statement of P.W.2 that his mother did not come to the
spot. If the case of the accused is to be believed, then the phone
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call made by the accused at 11.00 P.M. to P.W.1 does not tally with
the defence of the accused. If he had called to P.W.1 at 11.00 P.M.
stating that, her son is at his house, then the story of defence that
P.W.2, P.W.3 along with Shivayogi Bhavikatti and one Ishwar
Ganiger came to his house at 1.30 A.M. cannot be believed. The
accused must show in his defence that, to protect himself he himself
fired towards the injured and deceased. He cannot take defence
that, in the scuffle someone else fired and caused injury. He cannot
totally deny that gun shot was not fired by him. Hence, based on the
evidence of Doctor, Ballistic Expert and on the evidence of injured
P.W.2 and P.W.3 corroborated by the evidence of P.W.1, the
prosecution prays that, plea of self-defence taken by the accused
should not be considered and it is a clear case of murder with
knowledge and intention and he must be convicted for the said
offence. He has relied upon a reportable Judgment of The Hone’ble
Supreme Court of India in Cri. App No.1910/2010 in the case of
Balu Sudam Khalde and another Vs. The state of Maharashtra,
wherein it is held as under:
57. Thus, the sine qua non for the application of an
Exception to Section 300 always is that it is a case of
murder but the accused claims the benefit of the Exception
to bring it out of that Section and to make it a case of
culpable homicide not amounting to murder. We must,
therefore, assume that this would be a case of murder and it
is for the accused to show the applicability of the exception.
Exception 4 reads as under:
“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 having taken undue advantage or acted in a cruel
or unusual manner.”
58. A perusal of the provision would reveal thatfour
conditions must be satisfied to bring the matter within
Exception4:
(i) It was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that (iv)
the assailant had not taken any undue advantage or acted
in a cruel manner.
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59. On a plain reading of Exception 4, it appears that
the help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight, (c) without the
offenders having taken undue advantage or acted in a cruel
or unusual manner; and (d) the fight must have been with
the person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found.
57. Hence, based on both these arguments and citations, in
order to appreciate this defence, it is necessary to refer the definition
of murder as provided under Section 300 of IPC, which reads as
under:
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, or–
2ndly.–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, or–
3rdly.–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,
or–
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.
Exception 1: When culpable homicide is not murder.–
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control 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.
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Exception 2: Culpable Homicide is not murder if the
offender, in the exercise in good faith of the right of private
defence of 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.
The accused has to show the same materials in the evidence of all
the witnesses that the act of murder was committed without
premeditation 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. In the present case,
there is no such evidence coming-forth to show that, the deceased
had done any act to inflict the grave and sudden provocation to the
accused so that such act of murder was committed by accused in
his self-defence. Nothing comes in the evidence of accused to show
that, he himself has directly shot the deceased and P.W.2 and P.W.3
to protect himself from them causing any injury to him. The defence
of the accused is of accidental firing in the scuffle and he does not
admit that he himself has fired towards deceased and P.W.2 and
P.W.3 in right of self-defence. There are sufficient materials in the
prosecution evidence to disbelieve this version and I am of the
opinion that, the accused has failed to put-forth his defence and
prove the same. If at all the accused had admitted that the injuries
were caused by him while trying to protect himself, then this right of
private defence would be applicable. But, in the present case, the
effort of accused to shift this on Ishwar Ganiger and deceased
himself looks more doubtful. The accused had all the knowledge of
consequences of his act while firing 05 bullets and knowingly that it
was a small room of 10X12 feet and P.W.2, P.W.3 and deceased
Shivayogi Bhavikatti were present in said room and by such firing
there are chances of causing death of them. Even the injuries to
P.W.2 and P.W.3 as well as deceased Shivayogi Bhavikatti is on vital
parts. For all these reasons, it does not come under Exception (2)
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of Section 300 of IPC and I am of the opinion that, this Court has to
decline the argument of Advocate for the accused and accept the
argument of learned Public Prosecutor, which supports that it is a
case of murder under Section 300 of IPC and does not come under
any Exceptions of Section 300 of IPC. With these observations, this
Court comes to the conclusion that, the act of the accused in
causing the death of Shivayogi Bhavikatti and causing fatal injuries
to P.W.2 and P.W.3 is a culpable homicide amounting to murder and
I have answered this Point accordingly.
58. Upon discussions made above in detail, I am of the opinion that
the prosecution has proved all the charges alleged against the
accused except Section 25 of Indian Arms Act. The accused is
found guilty for having committed the offences punishable under
Sections 302, 307 and 506 of I.P.C. and I proceed to pass the
following,
ORDER
Acting under the powers conferred under section
235(2) of Cr.P.C. the accused is hereby found guilty for
having committed offences punishable under section
302, 307 and 506 of Indian Penal Code.”
13. Upon reconsideration, re-evaluation and re-appreciation
of the entire material on record, we are of the considered opinion
that the said findings recorded by the Trial Court that the appellant
was guilty of the alleged offences cannot be said to suffer from any
illegality or infirmity nor can the same be said to be capricious or
perverse or contrary to law or facts warranting interference by this
Court in the present appeal.
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14. The next question that arise for consideration is that as
to whether the appellant was guilty of committing the offence of
murder under Section 300 of IPC punishable under Sections 302 of
IPC or as to whether he is guilty of committing the offence culpable
homicide not amounting to murder as contemplated under Section
299 r/w Exceptions Nos.1 and 4 to Section 300 IPC punishable
under Section 304 Part-I or Part-II of IPC. In the instant case, the
material on record indicates that the evidence of PW1, PW2, PW3
and other witnesses will indicate that the same is categorical and
consistent with the fact that during the incident which took place at
01.30 A.M. on 05.07.2020, a fight / quarrel / scuffle broke out
between the deceased, accused and PW2 and PW3, who
quarreled and argued with each other leading to the demise of the
deceased. In fact, the evidence also reveals that before the
appellant used the subject revolver to shoot the deceased and
injure PW2 and PW3 they had attempted to assault him and cause
him bodily harm and heated arguments and quarrel took place
between them at that time.
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15. Upon careful consideration of the entire material on
record, it would indicate that the circumstances of the case do not
satisfy the ingredients of ‘murder’ as defined under Section 300
IPC. It is noticed that when a scuffle broke out between the
accused, the deceased, and the injured witnesses – PW2 and
PW3, who quarreled with each other, which ultimately led to the
demise of the deceased. The evidence further establishes that it
was the accused who shot the deceased with gun, however, the
accused had taken a contradictory stand by pleading private
defence while simultaneously asserting that he had not fired the
gun. In the absence of any material suggesting premeditation or
prior planning, it cannot safely be inferred that the accused had the
intention to cause death or such bodily injury as would attract the
rigours of Section 300 IPC. At the same time, by using a gun in the
course of the scuffle, the accused must necessarily be attributed
with the knowledge that such an act was likely to cause death. The
act of the accused therefore falls within the ambit of culpable
homicide as defined under Section 299 IPC, where the element of
knowledge is established but intention to cause death is not
proved. Consequently, the conviction under Section 302 IPC is
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liable to be altered to one under Section 304 Part II IPC, and
insofar as the injuries caused to PW2 and PW3 are concerned, the
offence would appropriately fall under Section 308 IPC instead of
Section 307 IPC.
16. The question as to whether the appellant would be guilty
of the alleged offences punishable under Sections 302 and 307
IPC or whether he would be guilty of offence of culpable homicide
punishable under Section 304 Part-II of IPC and the offence of
attempting to commit culpable homicide not amounting to murder
under Section 308 IPC came up for consideration before this Court
in the case of Shamshuddin and another Vs. State of Karnataka
– Crl.A.No.100217/2022 dated 24.09.2025, in which this Court
referred to the earlier judgments of the Apex Court and this Court
and held as under:
15. The question as to whether an accused would be guilty of an
offence of murder punishable under Section 302 IPC or whether he could
be convicted for offence of culpable homicide not amounting to murder
and punishable under Section 304 IPC has been the subject matter of
various judgments of the Apex Court, this Court and other High Courts. In
the case of Uday Singh vs. State of U.P. – (2002) 7 SCC 79, the
Apex Court held as under:
“5. After having concluded in the manner as
aforesaid, the trial court held them guilty under Section
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302 read with Section 34 IPC. The High Court, on appeal
after reappraisal of the evidence, observed that the
presence of contusion around the neck of the deceased
Shishupal Singh is enough indication of use of force by
hand and considering that the nature of injury and the
pressure put by the appellant and Gainda Singh was so
severe that internal bleeding had also taken place
inasmuch as the hyoid bone had been fractured, and thus
the intention of the appellant and Gainda Singh to cause
the death of Shishupal Singh was proved beyond all
reasonable doubt. The High Court concluded that the
appellant and Gainda Singh had been rightly convicted
under Section 302 read with Section 34 IPC.
6. From the findings recorded by the trial court as well
as the High Court, it is clear that the fight between the two
parties started all of a sudden as a result of obstruction
caused in digging of the foundation and there is no
evidence to show that the accused attacked the deceased
with deadly or dangerous arms (or weapons). It was only
in a fight, hand to fist, that both Gainda Singh and the
appellant had held the neck of the deceased, Shishupal
Singh with such force as to ultimately result in
strangulation and his death. It is very difficult to conceive
as to how much pressure was applied either by Gainda
Singh or the appellant on the deceased’s neck so as to
cause death. It would be reasonable to hold that the
injuries were caused by the appellant on the deceased in
a sudden fight where no arms (or weapons) were used
and that fight took place in the heat of passion and no
common intention to kill the deceased could be inferred.
We cannot definitely conclude who actually inflicted the
fatal injury as the evidence on record discloses that
Gainda Singh and the appellant both strangled the
deceased, which action is part of the sudden unarmed
fight nor can we conclude that the appellant had an
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intention to cause death or cause such bodily injury as is
likely to cause death, though we attribute to him
knowledge that such act is likely to cause death. Thus the
appellant and Gainda Singh are guilty of culpable
homicide not amounting to murder.
7. In the circumstances, we set aside the conviction
recorded by the trial court as affirmed by the High Court
under Section 302 read with Section 34 and instead
convict him under Section 304 Part II and reduce the
sentence to imprisonment for a period of seven years. The
bail granted earlier shall stand cancelled and the appellant
shall surrender before the trial court and be committed to
prison to serve out the remaining part of the sentence.”
16. In the case of Chhidamilal vs. State of M.P. – (2002)
9 SCC 369, it was held as under:
“5. Our independent analysis of the evidence on the
record shows that the appellants had formed an unlawful
assembly with the object of taking forcible possession of the
land and if necessary, to give beating to the complainant party
to achieve their object. During this fight, Narain, belonging to
the accused party received a fatal blow at the hands of Gajraj
Singh, the deceased, whereafter the complainant party was
assaulted and Gajraj Singh received injuries to which he later
on succumbed.
6. Looking to the manner in which the assault took place
over the land, which was in the possession of the complainant
party, it appears to us that the appellants did not intend to
cause the murder of deceased Gajraj Singh. The offence
committed by the appellants in the established facts and
circumstances of the case, resulting in the death of Gajraj
Singh was only culpable homicide not amounting to murder.
The appellants can definitely be clothed with the knowledge
that the injuries caused by them were likely to cause death or
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such bodily injury as was likely to cause the death of Gajraj
Singh. The offence under the circumstances, would fall under
Sections 304 (Part II)/149 IPC and not under Sections
302/149 IPC. We, therefore, accept these three appeals partly
and hold that the offence committed by the 13 appellants is
not one under Sections 302/149 IPC but one under Sections
304 (Part II)/149 IPC. So far as the offence under Section 148
IPC is concerned, that has been proved to have been
committed by the appellants beyond any reasonable doubt
and we maintain the conviction and sentence of the 13
appellants on that count.”
17. In the case of Mankeram vs. state of Haryana – 2003
11 SCC 238, it was held as under:
“6. Having perused the material on record and
considering the arguments of the parties, we are inclined to
agree with the argument addressed on behalf of the appellant.
There is no doubt that Suraj Mal met a homicidal death on 17-
11-1993 at Sangatpura Police Outpost consequent to
gunshots fired by the appellant. The question, for our
consideration, is whether this action of the appellant which
caused the death of Suraj Mal would amount to murder or
culpable homicide not amounting to murder. It is an admitted
fact that there was no enmity between the appellant and the
deceased and a few days before the incident in question the
appellant was promoted to the rank of Assistant Sub-Inspector
of Police and he was put in charge of Sangatpura Police
Station wherein the deceased was also posted as head
constable. It is also the case of the prosecution itself that on
the fatal day when the appellant came back from the duty to
his quarters he invited the deceased to his room to have a
drink which was accepted by the deceased and both of them
were drinking in the room of the appellant. It is at that point of
time PW 5 who happened to be the nephew of the deceased
came into the room and interrupted their drinking session by
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asking his uncle to get up and join him for dinner which was
obviously not liked by the appellant who being offended by the
said interruption started abusing in a language which was not
to the liking of the deceased who protested against such
abuses. It is also the prosecution case that it is sequel to this
interruption of PW 5, a physical fight started between the
appellant and the deceased in which, of course, the appellant
used his service revolver causing fatal injuries. While PW 5
states that there was no physical fight between the deceased
and the appellant, the appellant contends that there was such
physical fight in which he was sought to be strangulated by
the deceased because of which he used the service revolver
to protect himself. The fact that there was a physical fight
between the deceased and the appellant, though not admitted
by PW 5, the same cannot be denied because it has come in
the evidence of PWs 6 and 9 that when they came to the spot
the appellant and the deceased were grappling outside the
room and they overpowered the accused and snatched the
weapon. In such circumstances, we will have to examine the
prosecution evidence whether the appellant had taken an
undue advantage or acted in a cruel or unusual manner so as
to deprive him of the benefit of Exception 4 to Section 300. As
noted above, there is no motive for killing the deceased. The
drinking session in the room of the appellant was by mutual
consent and admittedly the fight started because of the
intervention of PW 5. From these circumstances, it can be
very clearly held that the incident in question took place in a
sudden fight in the heat of passion. The next question,
therefore, for our consideration, is whether the appellant did
take an undue advantage of the said fight or acted in a cruel
or unusual manner. Keeping in mind the fact that both the
appellant and the deceased had consumed considerable
amount of alcohol which is established from the evidence of
the doctor and the service revolver being next to the place
where the fight took place and was not kept there by a
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planned act by the appellant, it cannot be altogether ruled out
that the shots were fired not with an intention of taking any
undue advantage by the appellant. It is probable that in an
inebriated condition the appellant used the service revolver
because of the physical fight between the two. We do not
think the two courts below have properly appreciated this
aspect of the prosecution case when it found the appellant
guilty of murder and punished him under Section 302 IPC.
Having considered the material on record, we are of the
opinion that the appellant could only be found guilty of an
offence punishable under Section 304 Part II.
7. Therefore, we allow this appeal to that extent and set
aside the judgment and conviction imposed by the courts
below on the appellant under Section 302 IPC and alter the
same to one under Section 304 Part II IPC and award a
sentence of 5 years’ RI. We maintain the fine of Rs 2000
imposed on the appellant by the trial court, as also the
conviction and sentence awarded on the appellant for an
offence punishable under Section 27 of the Arms Act. The
sentence of imprisonment under both the counts shall run
concurrently. The appellant shall be entitled to remission of
the period of sentence already undergone. The appeal stands
allowed to the extent mentioned above.”
18. In the case of Shankarnarayan Bhadolkar Vs. State
of Maharashtra – AIR 2004 SC 1966 it was held as under:
“23. This brings us to the crucial question as to
which was the appropriate provision to be applied. In
the scheme of IPC culpable homicide is the 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
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purpose of fixing punishment, proportionate to the
gravity of the generic offence, IPC practically
recognises three degrees of culpable homicide. The
first is, what may be called, “culpable homicide of the
first degree”. This is the gravest form of culpable
homicide, which is defined in Section 300 as “murder”.
The second may be termed as “culpable homicide of
the second degree”. This is punishable under the first
part of Section 304. Then, there is “culpable homicide
of the third degree”. This is the lowest type of culpable
homicide and the punishment provided for it is also the
lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable
under the second part of Section 304.
24. The academic distinction between “murder” and
“culpable homicide not amounting to murder” has
always vexed the courts. The confusion is caused, if
courts losing sight of the true scope and meaning of
the terms used by the legislature in these sections,
allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction
between the two offences:
Section 299 Section 300
A person commits Subject to certain
culpable homicide if the exceptions culpable
act by which the death is homicide is murder if the
caused is done-- act by which the death is
caused is done--
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INTENTION
(a) with the intention of (1) with the intention of
causing death; or causing death; or
(b) with the (2) with the intention of
intention of causing such bodily
causing such injury as the offender
bodily injury as is knows to be likely to
likely to cause cause the death of the
death; or person to whom the
harm is caused; or
(3) with the intention of causing
bodily injury to any person and the
bodily injury intended to be inflicted
is sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE
(c) with the (4) with the
knowledge that knowledge that the
the act is likely to act is so imminently
cause death. 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
above.
25. Clause (b) of Section 299 corresponds with clauses (2)
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact that
such harm would not in the ordinary way of nature be
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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.
26. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
assailant causes death by a fist-blow intentionally given
knowing that the victim is suffering from an enlarged liver, or
enlarged spleen or diseased heart and such blow is likely to
cause death of that particular person as a result of the rupture
of the liver or spleen or the failure of the heart, as the case
may be. If the assailant had no such knowledge about the
disease or special frailty of the victim, nor an intention to
cause death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder, even if
the injury which caused the death, was intentionally given. In
clause (3) of Section 300, instead of the words “likely to cause
death” occurring in the corresponding clause (b) of Section
299, the words “sufficient in the ordinary course of nature”
have been used. Obviously, the distinction lies between a
bodily injury likely to cause death and a bodily injury sufficient
in the ordinary course of nature to cause death. The
distinction is fine but real and if overlooked, may result in
miscarriage of justice. The difference between clause (b) of
Section 299 and clause (3) of Section 300 is one of the
degrees of probability of death resulting from the intended
bodily injury. To put it more broadly, it is the degree of
probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The
word “likely” in clause (b) of Section 299 conveys the sense of
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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.
27. 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 Singh v. State of Kerala is an apt illustration
of this point.
28. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 :
1958 Cri LJ 818] Vivian Bose, J. speaking for the Court,
explained the meaning and scope of clause (3). It was
observed that the prosecution must prove the following facts
before it can bring a case under Section 300. Firstly, it must
establish quite objectively, that a bodily injury is present;
secondly, the nature of the injury must be proved. These are
purely objective investigations. Thirdly, it must be proved that
there was an intention to inflict that particular injury, that is to
say, that it was not accidental or unintentional or that some
other kind of injury was intended. Once these three elements
are proved to be present, the enquiry proceeds further, and
fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above was
sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.
29. The ingredients of clause “thirdly” of Section 300 IPC were
brought out by the illustrious Judge in his terse language as
follows : (AIR p. 467, para 12)
“12. To put it shortly, the prosecution must prove the following
facts before it can bring a case under Section 300 ‘thirdly’;
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First, it must establish, quite objectively, that a bodily injury is
present;
Secondly, the nature of the injury must be proved; These are
purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict
that particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kind of injury
was intended.
Once these three elements are proved to be present, the
enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.”
30. The learned Judge explained the third ingredient in the
following words (at AIR p. 468, para 16):
“The question is not whether the prisoner intended to inflict a
serious injury or a trivial one but whether he intended to inflict
the injury that is proved to be present. If he can show that he
did not, or if the totality of the circumstances justify such an
inference, then, of course, the intent that the section requires
is not proved. But if there is nothing beyond the injury and the
fact that the appellant inflicted it, the only possible inference is
that he intended to inflict it. Whether he knew of its
seriousness or intended serious consequences, is neither
here nor there. The question, so far as the intention is
concerned, is not whether he intended to kill, or to inflict an
injury of a particular degree of seriousness, but whether he
intended to inflict the injury in question; and once the
existence of the injury is proved the intention to cause it will be
presumed unless the evidence or the circumstances warrant
an opposite conclusion.”
31. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh case for the
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applicability of clause “thirdly” is now ingrained in our legal
system and has become part of the rule of law. Under clause
thirdly of Section 300 IPC, culpable homicide is murder, if both
the following conditions are satisfied i.e. : (a) that the act
which causes death is done with the intention of causing
death or is done with the intention of causing a bodily injury;
and (b) that the injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death. It must be
proved that there was an intention to inflict that particular
bodily injury which, in the ordinary course of nature, was
sufficient to cause death viz. that the injury found to be
present was the injury that was intended to be inflicted.
32. Thus, according to the rule laid down in Virsa Singh
case, even if the intention of the 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.
33. 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.
34. The above are only broad guidelines and not cast-
iron imperatives. In most cases, their observance will facilitate
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the task of the court. But sometimes the facts are so
intertwined and the second and the third stages so telescoped
into each other, that it may not be convenient to give a
separate treatment to the matters involved in the second and
third stages.
35. The position was illuminatingly highlighted by this
Court in State of A.P. v. Rayavarapu Punnayya and in Abdul
Waheed Khan v. State of A.P.
36. Looking at the scenario as described by PWs 2 and
3 and evidence of ballistic report, in our considered view the
offence committed by the accused is covered by Section 304
Part II.
(emphasis supplied)
19. In the case of Daya Nand Vs. State of Haryana – 2008
Cri.L.J. 2975, it was held as under:
10. The crucial question is as to which was the
appropriate provision to be applied. In the scheme of
IPC, culpable homicide is genus and ‘murder’ its
specie. All ‘murder’ is ‘culpable homicide’ but not vice
versa. Speaking generally, ‘culpable homicide’ sans
‘special characteristics of murder is culpable homicide
not amounting to murder’. For the purpose of fixing
punishment, proportionate to the gravity of the generic
offence, IPC practically recognises three degrees of
culpable homicide. The first is, what may be called,
‘culpable homicide of the first degree’. This is the
gravest form of culpable homicide which is defined in
Section 300 as ‘murder’. The second may be termed
as ‘culpable homicide of the second degree’. This is
punishable under the first part of Section 304. Then,
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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.
(emphasis supplied)
11. The academic distinction between ‘murder’ and
‘culpable homicide not amounting to murder’ has
always vexed the courts. The confusion is caused, if
courts losing sight of the true scope and meaning of
the terms used by the legislature in these sections,
allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction
between the two offences:
Section 299 Section 300
A person commits Subject to certain
culpable homicide exceptions culpable
if the act by which homicide is murder if the
the death is act by which the death is
caused is done-- caused is done--
Intention
(a) with the (1) with the intention of
intention of causing death; or
causing death; or
(b) with the (2) with the intention of
intention of causing such bodily injury
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causing such as the offender knows to
bodily injury as is be likely to cause the death
likely to cause of the person to whom the
death; or harm is caused; or
(3) with the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted is
sufficient in the ordinary
course of nature to cause
death; or
Knowledge
(c) with the (4) with the knowledge
knowledge that the that the act is so
act is likely to imminently dangerous
cause death. 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
above.
12. Clause (b) of Section 299 corresponds with clauses (2)
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact that
such harm would not in the ordinary way of nature be sufficient
to cause death of a person in normal health or condition. It is
noteworthy that the ‘intention to cause death’ is not an essential
requirement of clause (2). Only the intention of causing the
bodily injury coupled with the offender’s knowledge of the
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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.
13. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases falling
under clause (2) of Section 300 can be where the assailant
causes death by a fist-blow intentionally given knowing that the
victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that
particular person as a result of the rupture of the liver, or spleen
or the failure of the heart, as the case may be. If the assailant
had no such knowledge about the disease or special frailty of the
victim, nor an intention to cause death or bodily injury sufficient
in the ordinary course of nature to cause death, the offence will
not be murder, even if the injury which caused the death was
intentionally given. In clause (3) of Section 300, instead of the
words ‘likely to cause death’ occurring in the corresponding
clause (b) of Section 299, the words ‘sufficient in the ordinary
course of nature to cause death’ 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
degrees of probability of death resulting from the intended bodily
injury. To put it more broadly, it is the degree of probability of
death which determines whether a culpable homicide is of the
gravest, medium or the lowest degree. The word ‘likely’ in clause
(b) of Section 299 conveys the sense of probability as
distinguished from a mere possibility. The words ‘bodily injury …
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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.
14. 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
Singh v. State of Kerala is an apt illustration of this point.
15. In Virsa Singh v. State of Punjab Vivian Bose, J.
speaking for the Court, explained the meaning and scope of
clause (3). It was observed that the prosecution must prove the
following facts before it can bring a case under Section 300
‘Thirdly’. Firstly, it must establish quite objectively, that a bodily
injury is present; secondly, the nature of the injury must be
proved. These are purely objective investigations. Thirdly, it
must be proved that there was an intention to inflict that
particular injury, that is to say, that it was not accidental or
unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry
proceeds further, and fourthly it must be proved that the injury of
the type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
16. The ingredients of clause ‘Thirdly’ of Section 300 IPC
were brought out by the illustrious Judge in his terse language
as follows :
To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 ‘Thirdly’.
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First, it must establish, quite objectively, that a bodily injury is
present.
Secondly, the nature of the injury must be proved. These are
purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict
that particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kind of injury was
intended.
Once these three elements are proved to be present, the enquiry
proceeds further and,Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.’
17. The learned Judge explained the third ingredient in the
following words (at page 468) :
“The question is not whether the prisoner intended to inflict a
serious injury or a trivial one but whether he intended to inflict
the injury that is proved to be present. If he can show that he did
not, or if the totality of the circumstances justify such an
inference, then, of course, the intent that the section requires is
not proved. But if there is nothing beyond the injury and the fact
that the appellant inflicted it, the only possible inference is that
he intended to inflict it. Whether he knew of its seriousness or
intended serious consequences, is neither here nor there. The
question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in
question; and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence or the
circumstances warrant an opposite conclusion.”
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18. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh‘s case (supra)
for the applicability of clause ‘Thirdly’ is now ingrained in our
legal system and has become part of the rule of law. Under
clause Thirdly of Section 300 IPC, culpable homicide is murder,
if both the following conditions are satisfied i.e. (a) that the act
which causes death is done with the intention of causing death
or is done with the intention of causing a bodily injury; and (b)
that the injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death. It must be proved that there
was an intention to inflict that particular bodily injury which, in the
ordinary course of nature, was sufficient to cause death viz. that
the injury found to be present was the injury that was intended to
be inflicted.
19. Thus, according to the rule laid down in Virsa Singh’s
case, even if the intention of the 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
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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.
21. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observance will facilitate the
task of the court. But sometimes the facts are so intertwined and
the second and the third stages so telescoped into each other
that it may not be convenient to give a separate treatment to the
matters involved in the second and third stages.”
22. The position was illuminatingly highlighted by this Court
in State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC
382), Abdul Waheed Khan v. State of Andra Pradesh (2002 (7)
SCC 175), Augustine Saldanha v. State of Karnataka 2003 (10)
SCC 472), Thangaiya v. State of T.N. (2005 (9) SCC 650) and
in Rajinder v. State of Haryana (2006 (5) SCC 425).
23. Considering the evidence on record in the background
of the principles of law, the inevitable conclusion is that the
appropriate conviction would be under Section 304 Part II IPC.
The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of
nearly 8½ years. The sentence is restricted, therefore, to the
period already undergone. The appeal is allowed to that extent.
The accused person be set at liberty forthwith unless required in
custody in any other case.
20. In the case of Saravanan Vs. State of
Pondicherry – (2004) 13 SCC 238, it was held as under:
9. Section 34 IPC enacts that when a criminal act is done
by several persons in furtherance of the common intention of
all, each of such persons, is liable for that act in the same
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manner as if it were done by him alone. The section thus lays
down a principle of joint liability in the doing of a criminal act.
The essence of that liability is found in the existence of
“common intention” animating the accused leading to the
doing of a criminal act in furtherance of such intention. The
section is intended to meet a case in which it is difficult to
distinguish between the act of individual members of a party
and to prove exactly what part was played by each of them. It,
therefore, enacts that once it is found that a criminal act has
been committed by several persons in furtherance of the
common intention of all, each of such persons is liable for the
criminal act as if it were done by him alone. It is thus an
exception to the general rule of criminal jurisprudence that it is
the primary responsibility of the person who actually commits
a crime and only that person can be held guilty and punished
in accordance with law for his individual act.
10. In the leading case of Barendra Kumar
Ghosh v. King Emperor the appellant was charged under
Section 302 read with Section 34 IPC for the murder of a
Postmaster. The evidence disclosed that while the Postmaster
was in the office counting the money, three persons of whom
the appellant was one, fired pistols at him asking him to hand
over the cash. The trial Judge directed the jury that if they
were satisfied that the Postmaster was killed in furtherance of
the common intention of all the three, the appellant could be
held guilty of murder whether or not he had fired the fatal shot.
The appellant was accordingly convicted. Being aggrieved by
such conviction, the appellant approached the Privy Council. It
was contended on behalf of the prisoner that he was outside
the room. He was in the courtyard and was frightened. He did
not participate in the crime and hence, he could not have been
convicted for an offence punishable under Section 302 IPC by
invoking Section 34 IPC. The contention was, however,
negatived. It was held that once it is established that an act
was committed in furtherance of the common intention of all,
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Section 34 could be attracted and all could be held liable
irrespective of their individual act.
11. The Judicial Committee observed that the distinction
between two types of offenders (i) principals in the first
degree, that is, who actually commit the crime; and (ii)
principals in the second degree, that is, who aid in
commission of the crime, as found in English law has not been
strictly adhered to in India. In the circumstances, according to
Their Lordships, Section 34 would be attracted provided that it
is proved that the criminal act was done by several persons in
furtherance of the common intention of all.
12. Dealing with the argument on behalf of the
appellant that he had not fired any shot, the Judicial
Committee observed that if two men tie a rope around the
neck of third man and pull opposite ends of the rope till he is
dead, each can be held liable for the ultimate act i.e. death of
the victim. If the contention on behalf of the appellant would
be upheld that each should be held liable for his act only, each
can successfully contend that the prosecution had not
discharged the onus inasmuch as nothing more was proved
against each of them, than an attempt to kill which might or
might not have succeeded. “Thus both will be acquitted of
murder, and will only be convicted of an attempt, although the
victim is and remains a murdered man.” Referring to Sections
33, 34, 37 and 38 IPC, it was held that even if the appellant
did nothing as he stood outside the door, he could be held
liable. It is to be remembered that in crimes as in other things
“they also serve who only stand and wait”.
13. The principle in Barendra Kumar Ghosh had
been reiterated by Indian courts including this Court in
several cases. In Gurdatta Mal v. State of U.P. it was
observed by this Court that Section 34 IPC contemplates
the doing of an act by several persons in furtherance of
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common intention. The constructive liability under this
provision would arise if the following two conditions are
fulfilled:
(1) There must be common intention to commit a
criminal act; and(2) There must be participation of all the persons in
doing of such act in furtherance of that intention.
If these two ingredients are established, all the accused
would be liable for the offence which has been
committed.
14. In Afrahim Sheikh v. State of W.B. this Court stated
that no doubt a person is only responsible ordinarily for what
he does and Section 38 IPC ensures that. But the law in
Section 34 as also in Section 35 IPC declares that if the
criminal act is the result of the common intention, then every
person who did the criminal act with such intention would be
responsible for the total offence irrespective of the share
which he had in its perpetration.
15. It is thus clear that the criminal act referred to in
Section 34 IPC is the result of the concerted action of more
than one person if the said result was reached in furtherance
of the common intention and each person must be held liable
for the ultimate result as if he had done it himself.
16. We have, therefore, to see whether the death of
deceased Nadamuni had been caused by the appellants in
furtherance of a common intention to kill him. If it is so, the
appellants cannot escape the liability contending that Section
34 IPC had no application as no injury had been caused by
the appellants to deceased Nadamuni or they had not
intended to cause death of deceased Nadamuni. As observed
hereinabove and believed by the trial court as well as by the
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High Court, the present appellants (A-3 and A-4) came on
cycle from Cuddalore Road and took up a quarrel with PW 1,
PW 2 and deceased Nadamuni. Though the deceased and
PW 1 and PW 2 ignored the assault and proceeded further,
the appellants chased them towards the west on Pondy-
Villianur Road and took up a quarrel again. A-1 came there
along with others and used violence and injuries were caused
to deceased Nadamuni due to which he ultimately died. It was
thus a clear case of doing of a criminal act in furtherance of
the common intention. It was in the evidence of Dr. Balaraman
that Injury 5 was sufficient in the ordinary course of nature to
cause death. Taking into consideration the concession by the
learned Public Prosecutor that the case would not be covered
by Section 302 IPC, Accused 1, 3 and 4 were convicted by the
trial court for an offence punishable under Section 304 Part II
read with Section 34 IPC. In our opinion, by applying Section
34 IPC and convicting the appellants for an offence under
Section 304 Part II read with Section 34 IPC, no error of law
has been committed either by the trial court or by the High
Court.
21. In the case of Sellappan Vs. State of Tamil Nadu
– 2007 Cri. L.J 1442, it was held as under:
24. The crucial question is as to which was the
appropriate provision to be applied. In the scheme of
IPC culpable homicide is the genus and ‘murder’, its
specie. All ‘murder’ is ‘culpable homicide’ but not vice-
versa. Speaking generally, ‘culpable homicide’ sans
‘special characteristics of murder is culpable homicide
not amounting to murder’. For the purpose of fixing
punishment, proportionate to the gravity of the generic
offence, IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called,
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‘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.
25. The academic distinction between ‘murder’ and
‘culpable homicide not amounting to murder’ has always
vexed the courts. The confusion is caused, if courts
losing sight of the true scope and meaning of the terms
used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The
safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table
will be helpful in appreciating the points of distinction
between the two offences:
Section 299 Section 300
A person commits Subject to certain exceptions
culpable homicide if the culpable homicide is murder if the
act by which the death is act by which the death is caused is
caused is done-- 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 such bodily injury as the offender
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as is likely to cause knows to be likely to cause the
death; or death of the person to whom the
harm is caused; or
(3) with the intention of
causing bodily injury to any
person and the bodily injury
intended to be inflicted is
sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE
(c) with the (4) with the knowledge that the
knowledge that the act is so imminently dangerous that
act is likely to cause it must in all probability cause death
death. or such bodily injury as is likely to
cause death, and commits such
acts without any excuse for
incurring the risk of causing death
or such injury as is mentioned
above.
26. Clause (b) of Section 299 corresponds with clauses
(2) and (3) of Section 300. The distinguishing feature of the
mens rea requisite under clause (2) is the knowledge
possessed by the offender regarding the particular victim
being in such a peculiar condition or state of health that the
internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy that
the ‘intention to cause death’ is not an essential
requirement of clause (2). Only the intention of causing the
bodily injury coupled with the offender’s knowledge of the
likelihood of such injury causing the death of the particular
victim, is sufficient to bring the killing within the ambit of this
clause. This aspect of clause (2) is borne out by Illustration
(b) appended to Section 300.
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27. Clause (b) of Section 299 does not postulate any
such knowledge on the part of the offender. Instances of
cases falling under clause (2) of Section 300 can be
where the assailant causes death by a fist-blow
intentionally given knowing that the victim is suffering
from an enlarged liver, or enlarged spleen or diseased
heart and such blow is likely to cause death of that
particular person as a result of the rupture of the liver, or
spleen or the failure of the heart, as the case may be. If
the assailant had no such knowledge about the disease
or special frailty of the victim, nor an intention to cause
death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder,
even if the injury which caused the death, was
intentionally given. In clause (3) of Section 300, instead
of the words ‘likely to cause death’ occurring in the
corresponding clause (b) of Section 299, the words
‘sufficient in the ordinary course of nature [to cause
death]’ have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a
bodily injury sufficient in the ordinary course of nature to
cause death. The distinction is fine but real and if
overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and clause
(3) of Section 300 is one of [the] degree of probability of
death resulting from the intended bodily injury. To put it
more broadly, it is the degree of probability of death
which determines whether a culpable homicide is of the
gravest, medium or the lowest degree. The word ‘likely’
in clause (b) of Section 299 conveys the sense of
probable as distinguished from a mere possibility. The
words ‘bodily injury … sufficient in the ordinary course of
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nature to cause death’ mean that death will be the ‘most
probable’ result of the injury, having regard to the
ordinary course of nature.
28. 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 v. State of Kerala (AIR 1966
SC 1874) is an apt illustration of this point.
29. In Virsa Singh v. State of Punjab (AIR 1958 SC
465) Vivian Bose, J. speaking for the Court, explained
the meaning and scope of clause (3). It was observed
that the prosecution must prove the following facts
before it can bring a case under Section 300 ‘Thirdly’.
First, it must establish quite objectively, that a bodily
injury is present; secondly, the nature of the injury must
be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to
inflict that particular injury, that is to say, that it was not
accidental or unintentional or that some other kind of
injury was intended. Once these three elements are
proved to be present, the enquiry proceeds further, and
fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above
was sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.
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30. The ingredients of clause ‘Thirdly’ of Section 300
IPC were brought out by the illustrious Judge in his terse
language as follows :
“To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section
300 “Thirdly”.
First, it must establish, quite objectively, that a bodily
injury is present.
Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention
to inflict that particular bodily injury, that is to say, that it
was not accidental or unintentional, or that some other
kind of injury was intended.
Once these three elements are proved to be present,
the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type
just described made up of the three elements set out
above is sufficient to cause death in the ordinary course
of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.”
31. The learned Judge explained the third ingredient
in the following words (at p. 468) :
“The question is not whether the prisoner intended to
inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present. If he
can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course, the
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intent that the section requires is not proved. But if there is
nothing beyond the injury and the fact that the appellant
inflicted it, the only possible inference is that he intended to
inflict it. Whether he knew of its seriousness, or intended
serious consequences, is neither here nor there. The
question, so far as the intention is concerned, is not whether
he intended to kill, or to inflict an injury of a particular degree
of seriousness, but whether he intended to inflict the injury
in question; and once the existence of the injury is proved
the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite
conclusion.”
32. These observations of Vivian Bose, J. have
become locus classicus. The test laid down by Virsa
Singh‘s case for the applicability of clause ‘Thirdly’ is
now ingrained in our legal system and has become part
of the rule of law. Under clause Thirdly of Section 300
IPC, culpable homicide is murder, if both the following
conditions are satisfied i.e. (a) that the act which causes
death is done with the intention of causing death or is
done with the intention of causing a bodily injury; and (b)
that the injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. It must be
proved that there was an intention to inflict that particular
bodily injury which, in the ordinary course of nature, was
sufficient to cause death viz. that the injury found to be
present was the injury that was intended to be inflicted.
33. Thus, according to the rule laid down in Virsa
Singh‘s case even if the intention of the 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
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would be murder. Illustration (c) appended to Section
300 clearly brings out this point.
34. 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.
35. The above are only broad guidelines and not
cast-iron imperatives. In most cases, their observance
will facilitate the task of the court. But sometimes the
facts are so intertwined and the second and the third
stages so telescoped into each [other], that it may not be
convenient to give a separate treatment to the matters
involved in the second and third stages.
36. The position was illuminatingly highlighted by this
Court in State of Andra Pradesh v. Rayavarapu
Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed
Khan @ Waheed and Ors. v. State of Andra Pradesh
(2002 (7) SCC 175), Augustine Saldanha v. State of
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Karnataka (2003 (10) SCC 472) and Thangaiya v. State
of T.N. (2005 (9) SCC 650).
37. When the factual scenario in the case is set
aside on the touchstone of principles set out above, it
becomes clear that the appellant is responsible for
causing the death of the deceased. However, the
application of Section 304 Part II IPC would be
applicable and not Section 302 IPC. The conviction is
accordingly altered. Ten years’ custodial sentence would
meet the ends of justice. The appeal is allowed to the
aforesaid extent.
38. Appeal is allowed to the aforesaid extent.
Order accordingly”.
22. In the case of Dharam Pal Vs. State of U.P. – 2008
Cri.L.J. 1016 it was held as under:
13. In the light of the aforesaid discussions, let us now
see whether the High Court was justified, in the facts and
circumstances of the present case, to convert the offence
from Sections 302/34 IPC to Section 304 Part II IPC. In
this regard, we may again note the findings recorded by
the High Court, as noted herein earlier, in Clauses 11 and
12. The High Court observed that the accused did not
have any intention of causing the death of Rajpal nor were
the injuries caused with the intention of causing such
bodily injuries as the accused knew were likely to cause
death. The High Court further observed that the
knowledge that death was likely to be caused could be
inferred as the accused gave the blow on the head. Let us
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now see whether the aforesaid act would warrant a
punishment under Section 302 or 304 IPC. In our view, the
facts disclose that there was no premeditation and the
fight resulted on drinking of water from the hand pipe after
an exchange of abuses. There appeared no intention on
the part of the appellants to cause the death of the
deceased Rajpal. Therefore, the offence committed by the
appellants, in our view, is culpable homicide not
amounting to murder because, in our view, it falls within
Exception 4 to Section 300 which reads as under:
“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.”
Section 304 IPC lays down the punishment for
culpable homicide not amounting to murder and reads as
under:
“Whoever commits culpable homicide not amounting
to murder, shall be punished with [imprisonment for life], or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if 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, or with imprisonment of either
description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any
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intention to cause death, or to cause such bodily injury as
is likely to cause death.”
We have already gone through the evidence and the other
materials on record. From the evidence on record, we
cannot find any ground to discard the finding of the High
Court that it cannot be said that the accused had any
intention of causing the death of Rajpal, the deceased, nor
were the injuries caused with the intention of causing such
bodily injuries as the accused knew were likely to cause
death. Therefore, in the absence of any intention of
causing the death of the deceased Rajpal, we are in
agreement with the High Court that the accused must be
convicted of the offence under Section 304 Part II IPC and
not under Section 302 IPC.
14. For the reasons aforesaid, we do not find any
cogent reason to interfere with the judgment of the High
Court converting the offence to Section 304 Part II IPC
from Section 302 IPC. Accordingly, the appeal fails and is
dismissed with no order as to costs.
23. In the case of Anbazhagan Vs. State, – AIR 2023
SC 3660, it was held as under:
“ANALYSIS
17. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
conviction of the appellant herein for the offence punishable
under Section 304 Part I of the IPC should be further altered to
Section 304 Part II of the IPC.
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18. We have given more than a fair idea as regards the
genesis of the occurrence and the role attributed to the
appellant herein. Dr. Karthikeyan (PW-15) was examined by
the prosecution in his capacity as the Medical Officer who
performed the post mortem of the deceased. In the post
mortem report, the doctor has noted three injuries, (i) cut injury
over 4 x 2 cm on the left eye, (ii) cut injury 4 x 3 cm on the left
forehead, and (iii) 4 x 2 cm contusion around the left eye. The
cause of death assigned in the post mortem report appears to
be shock and haemorrhage due to head injury.
19. As the only argument canvassed before us is that
the case does not travel beyond culpable homicide as the
same falls within the third part of Section 299 of the IPC, the
accused could only be said to have knowledge that he is likely
by his act to cause death and not the intention to kill the
deceased, we must explain the fine distinction between the
terms ‘intent’ and ‘knowledge’.
INTENT AND KNOWLEDGE :-
20. The word “intent” is derived from the word archery or
aim. The “act” attempted to must be with “intention” of killing a
man.
21. Intention, which is a state of mind, can never be
precisely proved by direct evidence as a fact; it can only be
deduced or inferred from other facts which are proved. The
intention may be proved by res gestae, by acts or events
previous or subsequent to the incident or occurrence, on
admission. Intention of a person cannot be proved by direct
evidence but is to be deduced from the facts and
circumstances of a case. There are various relevant
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circumstances from which the intention can be gathered. Some
relevant considerations are the following:-
a. The nature of the weapon used.
b. The place where the injuries were inflicted.
c. The nature of the injuries caused.
d. The opportunity available which the accused gets.
22. In the case of Smt. Mathri v. State of Punjab, AIR
1964 SC 986, at page 990, Das Gupta J. has explained the
concept of the word ‘intent’. The relevant observations are
made by referring to the observations made by Batty J. in the
decision Bhagwant v. Kedari, I.L.R. 25 Bombay 202. They are
as under:-
“The word “intent” by its etymology, seems to have
metaphorical allusion to archery, and implies “aim” and
thus connotes not a casual or merely possible result-
foreseen perhaps as a not improbable incident, but not
desired-but rather connotes the one object for which the
effort is made-and thus has reference to what has been
called the dominant motive, without which, the action
would not have been taken.”
(Emphasis supplied)
23. In the case of Basdev v. State of Pepsu, AIR 1956
SC 488, at page 490, the following observations have been
made by Chadrasekhara Aiyar J.:-
“6. … Of course, we have to distinguish between motive,
intention and knowledge. Motive is something which
prompts a man to form an intention and knowledge is an
awareness of the consequences of the act. In many cases
intention and knowledge merge into each other and mean
the same thing more or less and intention can be
presumed from knowledge. The demarcating line between
knowledge and intention is no doubt thin but it is not
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difficult to perceive that they connote different things. Even
in some English decisions, the three ideas are used
interchangeably and this had led to a certain amount of
confusion.”
(Emphasis supplied)
24. In para 9 of the judgment, at page 490, the
observations made by Coleridge J. in Reg. v. Monkhouse,
(1849) 4 COX CC 55(C), have been referred to. They can be
referred to, with advantage at this stage, as they are very
illuminating:-
“The inquiry as to intent is far less simple than that as to
whether an act has been committed, because you cannot
look into a man’s mind to see what was passing there at any
given time. What he intends can only be judged of by what
he does or says, and if he says nothing, then his act alone
must guide you to your decision. It is a general rule in
criminal law, and one founded on common sense, that juries
are to presume a man to do what is the natural
consequence of his act. The consequence is sometimes so
apparent as to leave no doubt of the intention. A man could
not put a pistol which he knew to be loaded to another’s
head, and ftre it off, without intending to kill him; but even
there the state of mind of the party is most material to be
considered. For instance, if such an act were done by a
born idiot, the intent to kill could not be inferred from the act.
So if the defendant is proved to have been intoxicated, the
question becomes a more subtle one; but it is of the same
kind, namely; was he rendered by intoxication entirely
incapable of forming the intent charged?”
(Emphasis supplied)
25. Bearing in mind the test suggested in the aforesaid
decision and also bearing in mind that our legislature has used
two different terminologies ‘intent’ and ‘knowledge’ and
separate punishments are provided for an act committed with
an intent to cause bodily injury which is likely to cause death
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and for an act committed with a knowledge that his act is likely
to cause death without intent to cause such bodily injury as is
likely to cause death, it would be proper to hold that ‘intent’ and
‘knowledge’ cannot be equated with each other. They connote
different things. Sometimes, if the consequence is so apparent,
it may happen that from the knowledge, intent may be
presumed. But it will not mean that ‘intent’ and ‘knowledge’ are
the same. ‘Knowledge’ will be only one of the circumstances to
be taken into consideration while determining or inferring the
requisite intent.
26. In the case In re Kudumula Mahanandi Reddi, AIR
1960 AP 141, also the distinction between ‘knowledge’ and
‘intention’ is aptly explained. It is as under:-
“Knowledge and intention must not be confused.
17…. Every person is presumed to intend the natural
and probable consequences of his act until the contrary is
proved. It is therefore necessary in order to arrive at a
decision, as to an offender’s intention to inquire what the –
natural and probable consequences of his acts would be.
Once there is evidence that a deceased person, sustained
injuries which were sufficient in the ordinary course of
nature to cause death, the person who inflicted them could
be presumed to have intended those natural and probable
consequences. His offence would fall under the third head
of sec. 300, I.P.C.
18…. A man’s intention has to be inferred from what he
does. But there are cases in which death is caused and the
intention which can safely be imputed to the offender is less
grave. The degree of guilt depends upon intention and the
intention to be inferred must be gathered from the facts
proved. Sometimes an act is committed which would not in
an ordinary case inflict injury sufficient in the ordinary
course of nature to cause death, but which the – offender
knows is likely to cause the death. Proof of such knowledge
throws light upon his intention.
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19….Under sec. 299 there need be no proof of
knowledge, that the bodily injury intended was likely to
cause death. Before deciding that a case of culpable
homicide amounts to murder, there must be proof of
intention sufficient to bring it under Sec.300. Where the
injury deliberately inflicted is more than merely ‘likely to
cause death’ but sufficient in the ordinary course of nature
to cause death, the higher degree of guilt is presumed.”
(Emphasis supplied)
It has been further observed therein as under:-
“26. …Where the evidence does not disclose that
there was any intention, to cause death of the deceased
but it was clear that the accused had the knowledge that
their acts were likely to cause death the accused can be
held guilty under the second part of sec. 304, I.P.C. The
contention that in order to bring the case under the
second part of sec. 304, I.P.C. it must be brought within
one of the exceptions to sec 300, I.P.C. is not
acceptable.”
(Emphasis supplied)
27. Thus, while defining the offence of culpable homicide
and murder, the framers of the IPC laid down that the requisite
intention or knowledge must be imputed to the accused when
he committed the act which caused the death in order to hold
him guilty for the offence of culpable homicide or murder as the
case may be. The framers of the IPC designedly used the two
words ‘intention’ and ‘knowledge’, and it must be taken that the
framers intended to draw a distinction between these two
expressions. The knowledge of the consequences which may
result in the doing of an act is not the same thing as the
intention that such consequences should ensue. Except in
cases where mens rea is not required in order to prove that a
person had certain knowledge, he “must have been aware that
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certain specified harmful consequences would or could follow.”
(Russell on Crime, Twelfth Edition, Volume 1 at page 40).
28. This awareness is termed as knowledge. But the
knowledge that specified consequences would result or could
result by doing an act is not the same thing as the intention that
such consequences should ensue. If an act is done by a man
with the knowledge that certain consequences may follow or
will follow, it does not necessarily mean that he intended such
consequences and acted with such intention. Intention requires
something more than a mere foresight of the consequences. It
requires a purposeful doing of a thing to achieve a particular
end. This we may make it clear by referring to two passages
from leading text-books on the subject. Kenny in his Outlines of
Criminal Law, Seventeenth Edition at page 31 has observed:-
“To intend is to have in mind a fixed purpose to reach a
desired objective; the noun ‘intention’ in the present
connexion is used to denote the state of mind o fa man
who not only foresees but also desires the possible
consequences of his conduct…….. It will be noted that
there cannot be intention unless there is also foresight,
since a man must decide to his own satisfaction, and
accordingly must foresee, that to which his express
purpose is directed……… Again, a man cannot intend to
do a thing unless he desires to do it.”
(Emphasis supplied)
29. Russell on Crime, Twelfth Edition, 1st
Volume at page 41 has observed:-
“In the present analysis of the mental element in crime the
word “intention” is used to denote the mental attitude of a
man who has resolved to bring about a certain result if he
can possibly do so. He shapes his line of conduct so as to
achieve a particular end at which he aims………… Differing
from intention, yet closely resembling it, there are two other
attitudes ofmind, either ofwhich is sufficient to attract legal
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sanctions for harm resulting from action taken in obedience
to its stimulus, but both of which can be denoted by the
word “recklessness”. In each of these the man adopts a line
of conduct with the intention of thereby attaining an end
which he does desire, but at the same time realises that this
conduct may also produce another result which he does not
desire. In this case he acts with full knowledge that he is
taking the chance that this secondary result will follow.
Here, again, if this secondary result is one forbidden by law,
then he will be criminally responsible for it if it occurs. His
precise mental attitude will be one of two kinds-(a) he would
prefer that the harmful result should not occur, or (b) he is
indifferent as to whether it does or does not occur.”
(Emphasis supplied)
30. The phraseology of Sections 299 and 300
respectively of the IPC leaves no manner of doubt that under
these Sections when it is said that a particular act in order to
be punishable be done with such intention, the requisite
intention must be proved by the prosecution. It must be proved
that the accused aimed or desired that his act should lead to
such and such consequences. For example, when under
Section 299 it is said “whoever causes death by doing an act
with the intention of causing death” it must be proved that the
accused by doing the act, intended to bring about the particular
consequence, that is, causing of death. Similarly, when it is
said that “whoever causes death bydoing an act with the
intention of causing such bodily injury as is likely to cause
death” it must be proved that the accused had the aim of
causing such bodily injury as was likely to cause death.
31. Thus, in order that the requirements of law with
regard to intention may be satisfied for holding an offence of
culpable homicide proved, it is necessary that any of the two
specific intentions must be proved. But, even when such
intention is not proved, the offence will be culpable homicide if
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the doer of the act causes the death with the knowledge that
he is likely by his such act to cause death, that is, with the
knowledge that the result of his doing his act may be such as
may result in death.
32. The important question which has engaged our
careful attention in this case is, whether on the facts and in the
circumstances of the case we should maintain the conviction of
the appellant herein for the offence under Section 304 Part I or
we should further alter it to Section 304 Part II of the IPC?
SECTIONS 299 AND 300 OF THE IPC:-
33. Sections 299 and 300 of the IPC deal with
the definition of ‘culpable homicide’ and ‘murder’, respectively.
In terms of Section 299, ‘culpable homicide’ is described as an
act of causing death (i) with the intention of causing death or
(ii) with the intention of causing such bodily injury as is likely to
cause death, or (iii) with the knowledge that such an act is
likely to cause death. As is clear from a reading of this
provision, the former part of it emphasises on the expression
‘intention’ while the latter upon ‘knowledge’. Both these are
positive mental attitudes, however, of different degrees. The
mental element in ‘culpable homicide’, that is, the mental
attitude towards the consequences of conduct is one of
intention and knowledge. Once an offence is caused in any of
the three stated manners noted-above, it would be ‘culpable
homicide’. Section 300 of the IPC, however, deals with
‘murder’, although there is no clear definition of ‘murder’ in
Section 300 of the IPC. As has been repeatedly held by this
Court, ‘culpable homicide’ is the genus and ‘murder’ is its
species and all ‘murders’ are ‘culpable homicides’ but all
‘culpable homicides’ are not ‘murders’. (see Rampal Singh v.
State ofU.P., (2012) 8 SCC 289)
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34. In the case of State of Andhra Pradesh v.
Rayavarapu Punnayya, (1976) 4 SCC 382, this Court, while
clarifying the distinction between these two terms and their
consequences, held as under:-
“12. In the scheme of the Penal Code, ‘culpable homicide’
is genus and ‘murder’ is species. All ‘murder’ is ‘culpable
homicide’ but not vice-versa. Speaking generally,
‘culpable homicide not amounting to murder’. For the
purpose of ftxing punishment, proportionate to the gravity
of this generic offence, the Code practically recognises
three degrees of culpable homicide. The ftrst is what may
be called ‘culpable homicide of the ftrst degree’. This is
the greatest form of culpable homicide, which is deftned in
Section 300 as ‘murder’. The second may be termed as
‘culpable homicide of the second degree’. This is
punishable under the ftrst 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 ofSection
304.”
(Emphasis supplied)
35. Section 300 of the IPC proceeds with reference to
Section 299 of the IPC. ‘Culpable homicide’ may or may not
amount to ‘murder’, in terms of Section 300 of the IPC. When a
‘culpable homicide is murder’, the punitive consequences shall
follow in terms of Section 302 of the IPC, while in other cases,
that is, where an offence is ‘culpable homicide not amounting to
murder’, punishment would be dealt with under Section 304 of
the IPC. Various judgments of this Court have dealt with the
cases which fall in various classes of firstly, secondly, thirdly and
fourthly, respectively, stated under Section 300 of the IPC. It
would not be necessary for us to deal with that aspect of the
case in any further detail.
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36. The principles stated in the case of Virsa Singh v.
State of Punjab, AIR 1958 SC 465, are the broad guidelines for
the courts to exercise their judicial discretion while considering
the cases to determine as to which particular clause of Section
300 of the IPC they fall in. This Court has time and again
deliberated upon the crucial question of distinction between
Sections 299 and 300 of the IPC, i.e. ‘culpable homicide’ and
‘murder’ respectively. In Phulia Tudu v. State of Bihar, (2007) 14
SCC 588, this Court noticed that confusion may arise if the
courts would lose sight of the true scope and meaning of the
terms used by the legislature in these sections. This Court
observed that the safest way of approach to the interpretation
andapplication of these provisions seems to be to keep in focus
the keywords used in the various clauses of these sections.
37. This Court in Phulia Tudu (supra) has observed
that the academic distinction between ‘murder’ and ‘culpable
homicide not amounting to murder’ has always vexed the courts.
The confusion is caused if courts losing sight of the true scope
and meaning of the terms used by the legislature in these
sections, allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and application
of these provisions seems to be to keep in focus the keywords
used in the various clauses of Sections 299 and 300 of the IPC.
The following comparative table will be helpful in appreciating
the points of distinction between the two offences:-
Section 299 Section 300
A person commits Subject to certain exceptions culpable
culpable homicide if the homicide is murder if the act by which
act by which the the death is caused is done-
death is caused is done-
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INTENTION
(a) with the intention of (1) with the intention of causing death; or
causing death; or with the intention of causing such bodily
(b) with the intention of injury as the offender knows to be likely
causing such bodily to cause the death of the person to
injury as is likely to cause whom the harm is caused; or
death; or (3) with the intention of causing bodily
injury to any person and the bodily
injury intended to be infiicted is suffi
cient in the ordinary course of nature to
cause death; or
KNOWLEDGE
(c) with the act is likely to (4) with the knowledge that the act is so
cause death 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 mentioned
above.
38. Clause (b) of Section 299 of the IPC corresponds
with clauses (2) and (3) of Section 300 of the IPC. The
distinguishing feature of the mens rea requisite under clause
(2) is theknowledge possessed by the offender regarding the
particular victim being in such a peculiar condition or state of
health that the internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary
way of nature be sufficient to cause death of a person in normal
health or condition. It is noteworthy that the ‘intention to cause
death’ is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the offender’s
knowledge of the likelihood of such injury causing the death of
the particular victim, is sufficient to bring the killing within the
ambit of this clause. This clause (2) is borne out by illustration
(b) appended to Section 300 of the IPC.
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39. Clause (b) of Section 299 of the IPC does not
postulate any such knowledge on the part of the offender.
Instances of cases falling under clause (2) of Section 300 of the
IPC 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 ruptureof the liver, or spleen or the failure of the heart, as
the case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an intention to
cause death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder, even if the
injury which caused the death, was intentionally given. In clause
(3) of Section 300 of the IPC, instead of the words “likely to
cause death” occurring in the corresponding clause (b) of
Section 299 of the IPC, 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 of the IPC and clause (3) of Section 300 of the IPC
is one of the degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the degree of
probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The
word ‘likely’ in clause (b) of Section 299 of the IPC 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.
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40. 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. The
decision in the case of Rajwant Singh v. State of Kerala, AIR
1966 SC 1874, is an apt illustration of this point.
41. The scope of clause thirdly of Section 300 of the
IPC has been the subject matter of various decisions of this
Court. The decision in Virsa Singh (supra) has throughout been
followed in a number of cases by this Court. In all these cases
the approach has been to find out whether the ingredient namely
the intention to cause the particular injury was present or not? If
such an intention to cause that particular injury is made out and
if the injury is found to be sufficient in the ordinary course of
nature to cause death, then clause thirdly of Section 300 of the
IPC is attracted. Analysing clause thirdly and as to what the
prosecution must prove, it was held in Virsa Singh (supra) as
under:-
“15. First, it must establish, quite objectively, that a bodily injury
is present;
16. Secondly, the nature ofthe injury must be
proved; These are purely objective investigations.
17. Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is to
say, that it was not accidental or unintentional, or that
some other kind of injury was intended…
18. Once these three elements are proved to be
present, the enquiry proceeds further and,
19. Fourthly, it must be proved that the injury of the
type just described made up of the three elements set
out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with the
intention of the offender.”
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(Emphasis supplied)
It was further observed as under:-
“20. … If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be
shown, or reasonably deduced that the injury was
accidental or otherwise unintentional.”
(Emphasis supplied)
42. Thus, it is clear that the ingredient of clause thirdly is
not the intention to cause death but on the other hand,
the ingredient to be proved is the intention to cause the
particular injury that was present. It is fallacious to contend that
wherever there is a single injury only a case of culpable
homicide is made out irrespective of other circumstances.
In Emperor v. Sardarkhan Jaridkhan, AIR 1916 Bom 191, it was
observed as under:-
“Where death is caused by a single blow, it is always
much more difficult to be absolutely certain what
degree of bodily injury the offender intended.”
(Emphasis supplied)
43. Commenting upon the aforesaid observation of the
Bombay High Court, Justice Bose, in Virsa Singh (supra), held
thus:-
“23. … With due respect to the learned Judge he has
linked up the intent required with the seriousness of the
injury, and that, as we have shown, is not what the
section requires. The two matters are quite separate and
distinct, though the evidence about them may sometimes
overlap.”
44. As to how the intention is to be inferred even in a case
of single injury, Justice Bose further held as under:-
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“23. … The question is not whether the prisoner
intended to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to
be present. If he can show that he did not, or if the
totality of the circumstances justify such an inference,
then, of course, the intent that the section requires is
not proved. But if there is nothing beyond the injury
and the fact that the appellant inflicted it, the only
possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended
serious consequences is neither here nor there. The
question, so far as the intention is concerned, is not
whether he intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he
intended to inflict the injury in question; and once the
existence of the injury is proved the intention to cause
it will be presumed unless the evidence or the
circumstances warrant an opposite conclusion. But
whether the intention is there or not is one of fact and
not one oflaw. Whether the wound is serious or
otherwise, and if serious, how serious, is a totally
separate and distinct question and has nothing to do
with the question whether the prisoner intended to
inflict the injury in question.
24. It is true that in a given case the enquiry may
be linked up with the seriousness of the injury. For
example, if it can be proved, or if the totality of the
circumstances justify an inference, that the prisoner
only intended a superficial scratch and that by accident
his victim stumbled and fell on the sword or spear that
was used, then of course the offence is not murder.
But that is not because the prisoner did not intend the
injury that he intended to inflict to be as serious as it
turned out to be but because he did not intend to inflict
the injury in question at all. His intention in such a case
would be to inflict a totally different injury. The
difference is not one of law but one offact. …”
(Emphasis supplied)
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45. This question was again considered in Jagrup Singh
v. State of Haryana, (1981) 3 SCC 616, by a Bench of this Court
consisting of Justice D.A. Desai and Justice A.P. Sen and
following the ratio laid down in Virsa Singh (supra) it was held as
under:-
“6. There is no justiftcation for the assertion that the
giving of a solitary blow on a vital part of the body
resulting the death must always necessarily reduce the
offence to culpable homicide not amounting to murder
punishable under Section 304 Part II of the Code. If a
man deliberately strikes another on the head with a
heavy log ofwood or an iron rod or even a lathi so as to
cause a fracture of the skull, he must, in the absence of
any circumstances negativing the presumption, be
deemed to have intended to cause the death of the victim
or such bodily injury as is sufficient to cause death. The
whole thing depends upon the intention to cause death,
and the case may be covered by either clause Istly or
clause 3rdly. The nature of intention must be gathered
from the kind of weapon used, the part of the body hit,
the amount of force employed and the circumstances
attendant upon the death.”
The aforesaid decision of this Court in Jagrup Singh (supra) has
been strongly relied upon by the learned senior counsel
appearing for the appellant.
46. However, the learned senior counsel did not
seek to rely on the observations made in para 6 referred to
above in the case of Jagrup Singh (supra). The learned senior
counsel relied on the observations which we shall refer to
hereinafter, but after giving some factual background in the case
of Jagrup Singh (supra). On the fateful evening, the marriage of
one Tej Kaur was performed. Shortly thereafter, the appellant
Jagrup Singh armed with a gandhala, his brothers Billaur Singh
armed with a gandasa and Jarmail Singh and Waryam Singh
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armed with lathies emerged suddenly and made a joint assault
on the deceased Chanan Singh and the three eyewitnesses,
Gurdev Singh, PW 10, Sukhdev Singh, PW 11 and Makhan
Singh, PW 12. The deceased along with the three eyewitnesses
was rushed to the Rural Dispensary, Rori where they were
examined at 6 pm by Dr. Bishnoi, PW 3, who found that the
deceased had a lacerated wound 9 cm × 11/2 cm bone deep on
the right parietal region, 9 cm away from the tip of right pinna;
margins of wound were red, irregular and were bleeding on
touch; direction of wound was anterior-posterior. The deceased
succumbed to the injuries. The Doctor who performed an
autopsy on the dead body of the deceased deposed before the
Trial Court that the death of the deceased was due to cerebral
compression as a result of the head injury which was sufficient
in the ordinary course of nature to cause death. In the
background of this case, this Court held:-
“14. … In our judgment, the High Court having held
that it was more probable that the appellant Jagrup
Singh had also attended the marriage as the collateral,
but something happened on the spur of the moment
which resulted in the infliction ofthe injury by Jagrup
Singh on the person of the deceased Chanan Singh
which resulted in his death, manifestly erred in applying
Clause Thirdly of Section 300 of the Code. On the
ftnding that the appellant when he struck the deceased
with the blunt side of the gandhala in the heat of the
moment, without pre-meditation and in a sudden ftght,
the case was covered by Exception 4 to Section 300. It
is not suggested that the appellant had taken undue
advantage of the situation or had acted in a cruel or
unusual manner. Thus, all the requirements of
Exception 4 are clearly met. That being so, the
conviction ofthe appellant Jagrup Singh, under Section
302 ofthe Code cannot be sustained.
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15. The result, therefore, is that the conviction of the
appellant under Section 302 is altered to one under
Section 304, Part II of the Indian Penal Code. For the
altered conviction, the appellant is sentenced to suffer
rigorous imprisonment for a period ofseven years.”
(Emphasis supplied)
We have noticed something in the aforesaid observations
made by this Court which, in our opinion, creates some
confusion. We have come across such observations in many
other decisions of this Court over and above the case of Jagrup
Singh (supra). What we are trying to highlight is that in Jagrup
Singh (supra), although this Court altered the conviction from
Section 302 to Section 304 Part II, it took shelter of Exception 4
to Section 300 of the IPC. The question is, was there any need
for the Court to take recourse to Exception 4 to Section 300 of
the IPC for the purpose of altering the conviction from Section
302 to Section 304 Part II of the IPC. We say so because there
is fine difference between the two parts of Section 304 of the
IPC. Under the first part, the crime of murder is first established
and the accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under the second
part, the crime of murder is never established at all. Therefore,
for the purpose of holding an accused guilty of the offence
punishable under the second part of Section 304 of the IPC, the
accused need not bring his case within one of the exceptions to
Section 300 of the IPC.
47. In Jawahar Lal v. State of Punjab, (1983) 4 SCC
159, also the accused hit the deceased with a knife blow in front
of left side of his chest and as per the autopsy report the injuries
were found sufficient in an ordinary course of nature to cause
death. This Court took a view that the accused could be
attributed the knowledge that he was likely to cause an injury
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which was likely to cause death. The relevant paras of the said
judgment is reproduced as under:
“17…….we should also not further dilate on this point in
view of the decision of this Court in Jagrup Singh v. State
ofHaryana : 1981 Cri LJ 1136. In that case after referring to the
evidence, this Court held that the appellant gave one blow on
the head of the deceased with the blunt side of the gandhala
and this injury proved fatal. The Court then proceeded to
examine as to the nature of the offence because the appellant in
the case was convicted for an offence under Section 302.
Undoubtedly, this Court said that there is no justiftcation for the
assertion that the giving of a solitary blow on a vital part of the
body resulting in death must always necessarily reduce the
offence to culpable homicide not amounting to murder
punishable under Section 304, Part II of the Code. The Court
then proceeded to lay down the criteria for judging the nature of
the offence. It may be extracted;
The whole thing depends upon the intention to cause
death, and the case may be covered by either clause Firstly or
clause Thirdly. The nature of intention must be gathered from
the kind of weapon used, the part of the body hit, the amount of
force employed and the circumstance attendant upon the death.
18. We may point out that decision in Jagrup Singh’s
Case 1981 Cri LJ 1136 was subsequently followed in Randhir
Singh @ Dhire v. State of Punjab Decided on September 18,
1981 and in Kulwant Rai v. State of Punjab Decided on August
7, 1981 (Criminal Appeal No. 630 of1981).
19. Having kept this criteria under view, we are of the
opinion that the offence committed by the 1st appellant would
not be covered by clause Thirdly of Para 3 of Section 300 and
therefore, the conviction under Section 302, I.P.C. cannot be
sustained.
20. What then is the offence committed by the 1st
appellant? Looking to the age ofthe 1st appellant at the time of
the occurrence, the nature of the weapon used, the
circumstances in which one blow was inflicted, the time of the
day when the occurrence took place and the totality of other
circumstances, namely, the previous trivial disputes between the
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parties, we are of the opinion that the 1st appellant could be
attributed the knowledge that he was likely to cause an injury
which was likely to cause death. Accordingly, the 1st appellant is
shown to have committed an offence under Section 304, Part II
of the Indian Penal Code and he must be convicted for the same
and sentenced to suffer rigorous imprisonment for five years
maintaining the sentence often.”
48. In Camilo Vaz v. State of Goa [(2000) 9 SCC 1 : 2000
SCC (Cri) 1128] the accused had hit the deceased with a danda
during a premeditated gang-fight, resulting in the death of the
victim. Both the trial court and the Bombay High Court convicted
the appellant under Section 302 IPC. This Court, however,
converted the conviction to one under Section 304 Part II IPC
and observed:- (SCC p. 9, para 14)
“14. … When a person hits another with a danda on a
vital part of the body with such a force that the person
hit meets his death, knowledge has to be imputed to
the accused. In that situation case will fall in Part II of
Section 304 IPC as in the present case.”
(Emphasis supplied)
49. In Jai Prakash v. State (Delhi Admin.), (1991) 2 SCC
32, this Court, after an exhaustive review of various decisions,
more particularly, the principles laid down in Virsa Singh‘s case
(supra), concluded as under:-
“18. In all these cases, injury by a single blow
was found to be sufficient in the ordinary course of
nature to cause death. The Supreme Court took into
consideration the circumstances such as sudden
quarrel, grappling etc. as mentioned above only to
assess the state of mind namely whether the accused
had the necessary intention to cause that particular
injury i.e. to say that he desired expressly that such
injury only should be the result. It is held in all these
cases that there was no such intention to cause that
particular injury as in those circumstances, the
accused could have been barely aware i.e. only had
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knowledge of the consequences. These circumstances
under which the appellant happened to inflict the injury
it is felt or at least a doubt arose that all his mental
faculties could not have been roused as to form an
intention to achieve the particular result. We may point
out that we are not concerned with the intention to
cause death in which case it will be a murder
simplicitor unless exception is attracted. We are
concerned under clause 3rdly with the intention to
cause that particular injury which is a subjective inquiry
and when once such intention is established and if the
intended injury is found objectively to be sufficient in
the ordinary course of nature to cause death, clause
3rdly is attracted and it would be murder, unless one of
the exceptions to Section 300 is attracted. If on the
other hand this ingredient of ‘intention’ is not
established or if a reasonable doubt arises in this
regard then only it would be reasonable to infer that
clause 3rdly is not attracted and that the accused must
be attributed knowledge that in inflicting the injury he
was likely to cause death in which case it will be
culpable homicide punishable under Section 304 Part II
IPC.”
(Emphasis supplied)
50. In the case of Rajwant Singh (supra), after referring to
the relevant clauses of Section 300 of the IPC, the following
observations have been made:-
“10. … The mental attitude is thus made of two
elements (a) causing an intentional injury and (b) which
injury the offender has the foresight to know would
cause death….
11. … For the application of clause three it
must ftrst be established that the injury is caused, next
it must be established objectively what the nature of
that injury in the ordinary course of nature is. If the
injury is found to be sufficient to cause death, one test
is satisfted. Then it must be proved that there was an
intention to inflict that very Injury and not some other
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injury and that it was not accidental or unintentional. If
this is also held against the offender the offence of
murder is established.”
(Emphasis supplied)
51. In the case of Anda v. State of Rajasthan, AIR
1966 SC 148, the two relevant Sections 299 and 300
respectively are brilliantly analysed and the relevant
observations are made at page 151 in para 7. Before we refer to
those observations, we would refer to certain observations made
earlier. They are as under:-
“The offence ofculpable homicide involves the doing
of an act (which term includes illegal omissions) (a) with
the intention ofcausing death, or (b) with the intention of
causing such bodily injury as is likely to cause death or
(c) with the knowledge that the act is likely to cause
death. If the death is caused in any of these three
circumstances, the offence of culpable homicide is said
to be committed……. Intention and knowledge in the
ingredients ofthe section postulate the existence ofa
positive mental attitude and this mental condition is the
special mens rea necessary for the offence. The guilty
intention in the ftrst two conditions contemplates the
intended death of the person harmed or the intentional
causing of an injury likely to cause his death.The
knowledge in the third condition contemplates
knowledge of the death of the person. Sec. 300 tells us
when the offence is murder and when it is culpable
homicide not amounting to murder. Sec. 300 begins by
setting out the circumstances when culpable homicide
turns out into murder which is punishable under sec.
302 and the exceptions in the same section tell us when
offence is not murder but culpable homicide not
amounting to murder
punishable under sec. 304. Murder is an aggravated
form ofculpable homicide. The existence ofone offour
conditions turns culpable homicide into murder while the
special exceptions reduce the offence of murder again
to culpable homicide not amounting to murder.”
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(Emphasis supplied)
52. We will now refer to the relevant observations made in
para 10 at page 151. They are as under:-
“The third clause views the matter from a general stand-point. It
speaks of an intention to cause bodily injury which is sufficient in
the ordinary course of nature to cause death. The emphasis
here is on the sufficiency of the injury in the ordinary course of
nature to cause death. The sufficiency is the high probability
ofdeath in the ordinary way ofnature and when this exists and
death ensues and the causing of such injury is intended the
offence is murder. Sometimes the nature
of the weapon used, sometimes the part of the body on which
the injury is caused, and sometimes both are relevant. The
determinant factor is the intentional injury which must be
sufficient to cause death, that is to say, the probability of death
is not so high, the offence does not fall within murder but within
culpable homicide not amounting to murder or something less.
The illustration appended to the clause 3rdly reads:
‘(c) A intentionally gives Z a sword-cut or club-wound
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.’ The
sufficiency of an intentional injury to cause death in the ordinary
way ofnature is the gist ofthe clause irrespective ofan intention
to cause death. Here again, the exceptions may bring down the
offence to culpable homicide not amounting to murder.”
(Emphasis supplied)
53. This Court in Vineet Kumar Chauhan v. State of U.P.,
(2007) 14 SCC 660, noticed that theacademic distinction
between ‘murder’ and ‘culpable homicide not amounting to
murder’ had vividly been brought out by this Court in State of
A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, where it was
observed as under:-
“…that the safest way of approach to the
interpretation and application ofSections 299 and 300 of
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the Code is to keep in focus the key words used in
various clauses of the said sections. Minutely comparing
each of the clauses of sections 299 and 300 of the Code
and the drawing support from the decisions of the court
in Virsa Singh v. State of Punjab, (AIR 1958 SC 465 :
1958 Cri LJ 818) and Rajwant Singh v. State of Kerala,
(AIR 1966 SC 1874 : 1966 Cri LJ 1509) speaking for the
court, Justice RS Sarkaria, neatly brought out the points
of distinction between the two offences, which have
been time and again reiterated. Having done so, the
court said that wherever the 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 would be convenient for it to approach the
problem in three stages. The question to be considered
at the ftrst stage would be that the accused has done an
act by doing which he has caused the death of another.
Two, if 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 deftned in section 299. 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 Second part of Section
304, depending respectively, on whether this second or
the third clause of Section 299 is applicable. If this
question is found in the positive but the cases come
within any of the exceptions enumerated in Section 300,
the offence would still be culpable homicide not
amounting to murder, punishable under the ftrst part of
Section 304 of the Code. It was, however, clarifted that
these were only broad guidelines to facilitate the task of
the court and not cast-iron imperative.”
(Emphasis supplied)
54. In the case of Tholan v. State of Tamil Nadu, AIR
1984 SC 759, the accused stood in front of the house of the
deceased and used filthy language against some persons who
were unconnected with the deceased. The deceased came out
of his house and told the accused that he should not use vulgar
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and filthy language in front of ladies and asked him to go away.
The accused questioned the authority of the deceased to ask
him to leave the place. In the ensuing altercation, the accused
gave one blow with a knife which landed on the (right) chest of
the deceased which proved to be fatal. This Court came to the
conclusion that the accused could not be convicted under
Section 302, but was guilty under Section 304 Part II. The
circumstances which weighed with this Court were : (i) there
was no connection between the accused and the deceased and
the presence of the deceased at the time of the incident, was
wholly accidental; (ii) altercation with the deceased was on the
spur of the moment and the accused gave a single blow being
enraged by the deceased asking him to leave the place; (iii) the
requisite intention could not be attributed to the accused as
there was nothing to indicate that the accused intended the blow
to land on the right side of the chest which proved to be fatal.
55. In Chamru, Son of Budhwa v. State of Madhya
Pradesh, AIR 1954 SC 652, in somewhat similar circumstances,
where there was exchange of abuses between the two parties
both of whom were armed with lathis, they came to blows and in
the course of the fight that ensued, the accused struck a lathi blow on
the head of the deceased which caused a fracture of the skull resulting
in the death. In view of the fact that the accused had given only one
blow in the heat of the moment, it was held that all that can be said
was that he had given the blow with the knowledge that it was likely to
cause death and, therefore, the offence fell under Section 304, Part II
of the IPC. In Willie (William) Slaney v. The State of Madhya Pradesh,
AIR 1956 SC 116, there was, as here, a sudden quarrel leading to an
exchange of abuses and in the heat of the moment a solitary blow with
a hockey-stick had been given on the head. The Court held that the
offence amounted to culpable homicide not amounting to murder
punishable under Section 304, Part II.
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56. In Kulwant Rai v. State of Punjab, (1981) 4 SCC 245,
the accused, without any prior enmity or premeditation, on a
short quarrel gave a single blow with a dagger which later
proved to be fatal. This Court observed that since there was no
premeditation, Part 3 of Section 300 of the IPC could not be
attracted because it cannot be said that the accused intended to
inflict that particular injury which was ultimately found to have
been inflicted. In the facts and circumstances of that case, the
conviction of the accused was altered from Section 302 to that
under Section 304 Part II IPC and the accused was sentenced
to suffer rigorous imprisonment for five years.
57. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342,
the accused on the spur of the moment inflicted a knife-blow on
the chest of the deceased. The injury proved to be fatal. The
doctor opined that the injury was sufficient in the ordinary course
of nature to cause death. This Court observed that: (SCC p.
344, para 8):-
“8. … The quarrel was ofa trivial nature and even in
such a trivial quarrel the appellant wielded a weapon
like a knife and landed a blow in the chest. In these
circumstances, it is a permissible inference that the
appellant at least could be imputed with a knowledge
that he was likely to cause an injury which was likely to
cause death. …”
(Emphasis supplied)
This Court altered the conviction of the appellant from
Section 302 IPC to Section 304 Part II IPC and sentenced the
accused to suffer rigorous imprisonment for five years.
58. In Hem Raj v. State (Delhi Admn.), 1990 Supp SCC
291, the accused inflicted single stab injury landing on the chest
of the deceased. The occurrence admittedly had taken place on
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the spur of the moment and in heat of passion upon a sudden
quarrel. According to the doctor the injury was sufficient in the
ordinary course of nature to cause death. This Court observed
as under: (SCC p. 295, para 14)”-
“14. The question is whether the appellant could be
said to have caused that particular injury with the intention
of causing death of the deceased. As the totality of the
established facts and circumstances do show that the
occurrence had happened most unexpectedly in a sudden
quarrel and without premeditation during the course
ofwhich the appellant caused a solitary injury, he could not
be imputed with the intention to cause death of the
deceased or with the intention to cause that particular fatal
injury; but he could be imputed with the knowledge that he
was likely to cause an injury which was likely to cause
death. Because in the absence of any positive proof that
the appellant caused the death of the deceased with the
intention of causing death or intentionally inflicted that
particular injury which in the ordinary course ofnature was
sufficient to cause death, neither clause I nor clause III of
Section 300 IPC will be attracted.”
(Emphasis supplied)
This Court while setting aside the conviction under
Section 302 convicted the accused under Section 304 Part II
and sentenced him to undergo rigorous imprisonment for seven
years.
59. We may lastly refer to the decision of this Court in
Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007)
1 SCC (Cri) 500, wherein this Court enumerated some of the
circumstances relevant to finding out whether there was any
intention to cause death on the part of the accused. This Court
observed : (SCC pp. 457-58, para 29)
“29. Therefore, the court should proceed to decide
the pivotal question ofintention, with care and caution,
as that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or
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insigniftcant matters — plucking of a fruit, straying of
cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual motives
like revenge, greed, jealousy or suspicion may be totally
absent in such cases. There may be no intention. There
may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may
be cases ofmurder where the accused attempts to avoid
the penalty for murder by attempting to put forth a case
that there was no intention to cause death. It is for the
courts to ensure that the cases of murder punishable
under Section 302, are not converted into offences
punishable under Section 304 Part I/II, or cases
ofculpable homicide not amounting to murder, are
treated as murder punishable under Section 302.
The intention to cause death can be gathered generally
from a combination of a few or several of the following,
among other, circumstances : (i) nature of the weapon
used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether
the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether
the act was in the course ofsudden quarrel or sudden
ftght or free for all ftght; (vi) whether the incident occurs
by chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was any
grave and sudden provocation, and ifso, the cause for
such provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury has
taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single
blow or several blows.The above list of circumstances
is, of course, not exhaustive and there may be several
other special circumstances with reference to individual
cases which may throw light on the question of
intention.”
(Emphasis supplied)
60. Few important principles of law discernible from the
aforesaid discussion may be summed up thus:-
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(1) When the court is confronted with the question, what offence
the accused could be said to have committed, the true test is to
find out the intention or knowledge of the accused in doing the
act. If the intention or knowledge was such as is described in
Clauses (1) to (4) of Section 300 of the IPC, the act will be
murder even though only a single injury was caused. To
illustrate : ‘A’ is bound hand and foot. ‘B’ comes and placing his
revolver against the head of ‘A’, shoots ‘A’ in his head killing him
instantaneously. Here, there will be no difficulty in holding that
the intention of ‘B’ in shooting ‘A’ was to kill him, though only
single injury was caused. The case would, therefore, be of
murder falling within Clause (1) of Section 300 of the IPC.
Taking another instance, ‘B’ sneaks into the bed room of his
enemy ‘A’ while the latter is asleep on his bed. Taking aim at the
left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’
and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was
found to be sufficient in ordinary course of nature to cause
death. There may be no difficulty in holding that ‘B’ intentionally
inflicted the particular injury found to be caused and that the said
injury was objectively sufficient in the ordinary course of nature
to cause death. This would bring the act of ‘B’ within Clause (3)
of Section 300 of the IPC and render him guilty of the offence of
murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused
may fall within Clauses (1) to (4) of Section 300 of the IPC, the
act of the accused which would otherwise be murder, will be
taken out of the purview of murder, if the accused’s case attracts
any one of the five exceptions enumerated in that section. In the
event of the case falling within any of those exceptions, the
offence would be culpable homicide not amounting to murder,
falling within Part 1 of Section 304 of the IPC, if the case of the
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accused is such as to fall within Clauses (1) to (3) of Section
300 of the IPC. It would be offence under Part II of Section 304 if
the case is such as to fall within Clause (4) of Section 300 of the
IPC. Again, the intention or knowledge of the accused may be
such that only 2nd or 3rd part of Section 299 of the IPC, may be
attracted but not any of the clauses of Section 300 of the IPC. In
that situation also, the offence would be culpable homicide not
amounting to murder under Section 304 of the IPC. It would be
an offence under Part I of that section, if the case fall within 2nd
part of Section 299, while it would be an offence under Part II of
Section 304 if the case fall within 3rd part of Section 299 of the
IPC.
(3) To put it in other words, if the act of an accused person
falls within the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable under the
first part of Section 304. If, however, it falls within the third
clause, it is punishable under the second part of Section 304. In
effect, therefore, the first part of this section would apply when
there is ‘guilty intention,’ whereas the second part would apply
when there is no such intention, but there is ‘guilty knowledge’.
(4) Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause
3rdly to Section 300 of the IPC, are fulfilled and the offence
would be murder.
(5) Section 304 of the IPC will apply to the following classes
of cases: (i) when the case falls under one or the other of the
clauses of Section 300, but it is covered by one of the
exceptions to that Section, (ii) when the injury caused is not of
the higher degree of likelihood which is covered by the
expression ‘sufficient in the ordinary course of nature to cause
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death’ but is of a lower degree of likelihood which is generally
spoken of as an injury ‘likely to cause death’ and the case does
not fall under Clause (2) of Section 300 of the IPC, (iii) when the
act is done with the knowledge that death is likely to ensue but
without intention to cause death or an injury likely to cause
death.
To put it more succinctly, the difference between the two
parts of Section 304 of the IPC is that under the first part, the
crime of murder is first established and the accused is then
given the benefit of one of the exceptions to Section 300 of the
IPC, while under the second part, the crime of murder is never
established at all. Therefore, for the purpose of holding an
accused guilty of the offence punishable under the second part
of Section 304 of the IPC, the accused need not bring his case
within one of the exceptions to Section 300 of the IPC.
(6) The word ‘likely’ means probably and it is distinguished
from more ‘possibly’. When chances of happening are even or
greater than its not happening, we may say that the thing will
‘probably happen’. In reaching the conclusion, the court has to
place itself in the situation of the accused and then judge
whether the accused had the knowledge that by the act he was
likely to cause death.
(7) The distinction between culpable homicide (Section 299
of the IPC) and murder (Section 300 of the IPC) has always to
be carefully borne in mind while dealing with a charge under
Section 302 of the IPC. Under the category of unlawful
homicides, both, the cases of culpable homicide amounting to
murder and those not amounting to murder would fall. Culpable
homicide is not murder when the case is brought within the five
exceptions to Section 300 of the IPC. But, even though none of
the said five exceptions are pleaded or prima facie established
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on the evidence on record, the prosecution must still be required
under the law to bring the case under any of the four clauses of
Section 300 of the IPC to sustain the charge of murder. If the
prosecution fails to discharge this onus in establishing any one
of the four clauses of Section 300 of the IPC, namely, 1stly to
4thly, the charge of murder would not be made out and the case
may be one of culpable homicide not amounting to murder as
described under Section 299 of the IPC.
(8) The court must address itself to the question of mens
rea. If Clause thirdly of Section 300 is to be applied, the
assailant must intend the particular injury inflicted on the
deceased. This ingredient could rarely be proved by direct
evidence. Inevitably, it is a matter of inference to be drawn from
the proved circumstances of the case. The court must
necessarily have regard to the nature of the weapon used, part
of the body injured, extent of the injury, degree of force used in
causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a
culpable homicide a murder. The intention to cause injury or
injuries sufficient in the ordinary cause of nature to cause death
also makes a culpable homicide a murder if death has actually
been caused and intention to cause such injury or injuries is to
be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the
death of the victim, no inference, as a general principle, can be
drawn that the accused did not have the intention to cause the
death or that particular injury which resulted in the death of the
victim. Whether an accused had the required guilty intention or
not, is a question of fact which has to be determined on the facts
of each case.
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(11) Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily injury
to him and the intended injury is sufficient in the ordinary course
of nature to cause death, then, even if he inflicts a single injury
which results in the death of the victim, the offence squarely falls
under Clause thirdly of Section 300 of the IPC unless one of the
exceptions applies.
(12) In determining the question, whether an accused had
guilty intention or guilty knowledge in a case where only a single
injury is inflicted by him and that injury is sufficient in the
ordinary course of nature to cause death, the fact that the act is
done without premeditation in a sudden fight or quarrel, or that
the circumstances justify that the injury was accidental or
unintentional, or that he only intended a simple injury, would
lead to the inference of guilty knowledge, and the offence would
be one under Section 304 Part II of the IPC.
61. We once again recapitulate the facts of this case. On
the fateful day of the incident, the father and son were working
in their agricultural field early in the morning. They wanted to
transport the crop, they had harvested and for that purpose they
had called for a lorry. The lorry arrived, however, the deceased
did not allow the driver of the lorry to use the disputed pathway.
This led to a verbal altercation between the appellant and the
deceased. After quite some time of the verbal altercation, the
appellant hit a blow on the head of the deceased with the
weapon of offence (weed axe) resulting in his death in the
hospital.
62. Looking at the overall evidence on record, we find it
difficult to come to the conclusion that when the appellant struck
the deceased with the weapon of offence, he intended to cause
such bodily injury as was sufficient in the ordinary course of
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nature to cause death. The weapon of offence in the present
case is a common agriculture tool. If a man is hit with a weed
axe on the head with sufficient force, it is bound to cause, as
here, death. It is true that the injuries shown in the post mortem
report are fracture of the parietal bone as well as the temporal
bone. The deceased died on account of the cerebral
compression i.e. internal head injuries. However, the moot
question is – whether that by itself is sufficient to draw an
inference that the appellant intended to cause such bodily injury
as was sufficient to cause death. We are of the view that the
appellant could only be attributed with the knowledge that it was
likely to cause an injury which was likely to cause the death. It is
in such circumstances that we are inclined to take the view that
the case on hand does not fall within clause thirdly of Section
300 of the IPC.
63. In the aforesaid view of the matter and more
particularly bearing the principles of law explained aforesaid, the
present appeal is partly allowed. The conviction of the appellant
under Section 304 Part I of the IPC is altered to one under
Section 304 Part II of the IPC. For the altered conviction, the
appellant is sentenced to undergo rigorous imprisonment for a
period of five years.
Appeal partly allowed.”
{{{
24. In the case of Valthepu Srinivas Vs. State of
Andhra Pradesh – AIR 2024 SC 1050, it was held as under:
28. Even though, A-3 might not have had the common
intention to commit the murder, nevertheless, his
participation in the assault and the wielding of the stone
certainly makes him culpable for the offence that he has
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committed. While we acquit A-3 of the offence under
Section 302 read with Section 34 of the IPC, he is liable for
the offence under 304 Part II IPC. The law on Section 304
Part II has been succinctly laid down in Camilo Vaz v. State
of Goa, (2000) 9 SCC 1, where it was held that:
14. This section is in two parts. If analysed, the
section provides for two kinds of punishment to
two different situations : (1) if the act by which
death is caused is done with the intention of
causing death or causing such bodily injury as is
likely to cause death. Here the important ingredient
is the “intention”; (2) if the act is done with the
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. When a person
hits another with a danda on a vital part of the
body with such force that the person hit meets his
death, knowledge has to be imputed to the
accused….
29. In the past, this Court has considered factors such
as lack of medical evidence to prove whether the act/injury
was individually sufficient to cause death, a single blow on
head with a hammer and lack of cogent evidence of the
eye-witnesses that the accused shared a common intention
to commit murder as some factors to commute a sentence
from Section 302 to Section 304 Part II IPC.
30. Returning back to the facts of the case, there is
certainly no escape from coming to the conclusion that A-3
should have had the knowledge that the use of a stone to
hit the head of the deceased is likely to cause death.
However, as demonstrated before, the evidence is
insufficient to deduce a conclusion that he shared a
common intention with the other accused to commit the
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murder of the deceased. Considering the role that A-3 has
played, we hold him guilty of the offence under Section 304
Part II IPC.
31. The perusal of the evidence would reveal that it is
not the case of the prosecution that A-3 was along with the
other accused while the deceased was dragged to the
house. The deposition would reveal that after the other
accused assaulted the deceased with sword, A-3 came
thereafter and assaulted the deceased with stone lying
there. We, therefore, find that the prosecution has not been
in a position to establish that A-3 shared the common
intention with the other accused to cause the murder of the
deceased.
32. For the reasons stated above, we uphold the
conviction and sentence of A-1, A-2 and A-4 under
Section 302 read with Section 34 IPC and dismiss their
Criminal Appeal No. 2852 of 2023 against the judgment of
the High Court of Telangana in Criminal Appeal No. 308 of
2005 dated 26.04.2022. We acquit A-3 of the conviction
and sentence under Section 302 read with Section 34 and
convict him under Section 304 Part II and sentence him to
undergo imprisonment for 10 years. To this extent, the
appeal of A-3 is allowed by altering the conviction under
Section 302 to Section 304 Part II IPC.
(emphasis supplied)
25. In the case of Hussain Bai Asgarali
Lokhandwala Vs. State of Gujarat, – AIR 2024 SC 3832 it
was held as under:
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24. We are in agreement with the view taken by the
High Court that the entire incident had occurred in the
heat of the moment and that neither party could control
their anger which ultimately resulted into the fateful
incident.
25. That being the position and since the High Court
had brought down the charge from Section 304 Part I
IPC to Section 304 II IPC, we feel that it would be in the
interest of justice if the sentence of the appellant
Hussainbhai Asgarali Lokhandwala is further modified to
the period of incarceration already undergone by him
while maintaining the conviction.
26. Much water has flown down the river by this time.
The unfortunate incident leading to the loss of a
precious life and sustaining of injuries by a couple of
others had happened in a spur of the moment.
Therefore, while concurring with the impugned judgment
of the High Court dated 06.05.2016 insofar alteration of
the conviction is concerned, we are of the view that the
sentence imposed upon the appellant should be altered
to the period of incarceration already undergone by him.
That being the position, it is not necessary to delve into
and elaborate upon the other contentions raised at the
Bar.
27. Consequently, Criminal Appeal No. 1691 of 2023
is partly allowed. While maintaining the conviction of the
appellant Hussainbhai Asgarali Lokhandwala under
Section 304 Part II IPC, his sentence is modified to the
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period already undergone by him. All the other criminal
appeals are, however, dismissed.
17. As stated supra, if the material on record are examined
bearing in mind the principles enunciated in the aforesaid
judgments, it is evident that the appellant – accused cannot be held
to be guilty of the offence of murder within the meaning of Section
300 IPC or the offence of attempt to murder under Section 307
IPC. On the other hand, the appellant is clearly guilty of culpable
homicide not amounting to murder as contemplated in Exception
No.1 and / or Exception No.4 to Section 300 IPC and would be
punishable under Section 304 Part-II of IPC as well as for attempt
to commit culpable homicide not amounting to murder as
contemplated in Section 308 IPC and the appellant would be liable
to be sentenced appropriately.
18. Insofar as the impugned judgment passed by the Trial
Court convicting the appellant for offence punishable under Section
506 IPC is concerned, having regard to the findings recorded by us
hereinbefore, it would be just and appropriate to sentence the
appellant by imposing a fine of Rs.10,000/- upon the appellant in
this regard.
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19. It is a matter of record and an undisputed fact that that
appellant has been in custody from the date of his arrest i.e., from
06.07.2020 till this day, which comes about Five (5) years Eight (8)
months and Ten (10) days. Under these circumstances, we are of
the considered opinion that the present appeal deserves to be
partly allowed and the impugned judgment passed by the Trial
Court deserves to be modified by convicting and sentencing the
appellant – accused for offences of culpable homicide not
amounting to murder by invoking Section 304 Part-II of IPC and
Section 308 IPC and the period of custody / imprisonment of Five
(5) years Eight (8) months and Ten (10) days already undergone
by the appellant is set off towards the sentence to be imposed
upon him by issuing certain directions in this regard.
20. In the result, we pass the following:
JUDGMENT
(i) Appeal is hereby partly allowed.
(ii) The impugned judgment of conviction and sentence
dated 23.09.2024 passed in S.C.No.71/2020 by the IV Addl.
District & Sessions Judge, Dharwad, is hereby modified.
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(iii) The conviction and sentence of the appellant –
accused for offences punishable under Sections 302 and 307 IPC
is hereby set aside and the appellant is convicted for offences
punishable under Section 304 Part-II and 308 IPC and the
appellant is sentenced to undergo rigorous imprisonment for a
period of Five (5) years Eight (8) months and Ten (10) days for the
aforesaid offences.
(iv) It is directed that the aforesaid period of Five (5) years
Eight (8) months and Ten (10) days, during which the appellant has
already undergone imprisonment and has been in custody from
06.07.2020 onwards is hereby set off as against the said period of
sentence of five (5) years Eight (8) months and Ten (10) days
imposed in the present order.
(v) The conviction and sentence of the appellant –
accused for an offence punishable under Section 506 IPC is
hereby confirmed and the appellant is sentenced to pay a fine of
Rs.25,000/- to the High Court Legal Services Committee /
Authority, High Court of Karnataka, Dharwad Bench, within a
period of four weeks from today, in default, to undergo simple
imprisonment for a period of four weeks..
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(vi) The respondent and the concerned jail authorities are
hereby directed to release the appellant – accused from custody
forthwith / immediately without any delay, if not already required in
any other case.
(vii) Registry as well as the learned Addl.SPP are hereby
directed to communicate this order to the respondent and
concerned jail authorities for immediate compliance / action and to
release the appellant – accused immediately as stated supra.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
Sv/Srl.