Criminal Appeal No. 1410 of 2024 · Nafr High Court
Case Details
1 / 37 2025:CGHC:16860-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1410 of 2024 Saurabh Kutare S/o. Late Nagendra Kutare Aged About 26 Years R/o. Ward No. 10, Ambedkar Chowk, Gariyaband, Police Station and District - Gariyaband (C.G.). versus --- Appellant State of Chhattisgarh Through Station House Officer, Police Station - Gariyaband, District - Gariyaband (C.G.). --- Respondent For Appellant For State-Respondent : : Mr. Amiyakant Tiwari, Advocate Mr. Shashank Thakur, Dy. A.G. WITH Criminal Appeal No. 1761 of 2024 Romit Rathore @ Raja S/o Shri Om Rathore, Aged About 25 Years R/o Ward No.7, Ravanbhata, Gariaband, Thana- Gariaband, District- Gariaband (C.G.). VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.04.23 10:52:31 +0530 Versus ---Appellant State of Chhattisgarh Through- Police Station Gariaband, District- Gariaband (C.G.). --- Respondent 2 / 37 For Appellant For State-Respondent : : Mr. Alok Kumar Dewangan, Advocate Mr. Shashank Thakur, Dy. A.G. (Cause title is taken from the CIS) Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 11.04.2025 1. Proceedings of these matters have been taken through video conferencing. 2. Heard Mr. Amiyakant Tiwari, learned counsel for the appellant in CRA No.1410 of 2024 & Mr. Alok Kumar Dewangan, learned counsel for the appellant in CRA No.1761 of 2024. Also heard Mr. Shashank Thakur, learned Dy. A.G. for the State/Respondent. 3. 4. Both the appeals are being heard together, as the common thread passes through the issue. The present appeals are preferred by the appellants under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 questioning the judgment of conviction and order of sentence dated 06.07.2024 passed in Sessions Trial No.36/2021 by the learned Additional Sessions Judge, Gariyaband, District Gariyaband (C.G.). 3 / 37 5. CRA No.1410 of 2024 has been preferred by Saurabh Kutare (A/2) and he has been convicted and sentenced as under:- Conviction Sentence Under Section 302 read with Life Imprisonment with fine of Section 34 of I.P.C., 1860 Rs.5,000/-, in default of payment of fine amount, six months additional rigorous imprisonment. Under Section 307 read with 10 years' Rigorous Section 34 of I.P.C., 1860 (12 Imprisonment with fine of times) Rs.500/-, in default of payment of fine amount, three months additional rigorous imprisonment (to each injured) (Total Rs.6,000/- fine amount). Both sentences to run concurrently. 6. CRA No.1761 of 2024 has been preferred by Romit Rathore @ Raja (A/1) and he has been convicted and sentenced as under:- Conviction Sentence Under Section 302 read with Life Imprisonment with fine of Section 34 of I.P.C., 1860 Rs.5,000/-, in default of payment of fine amount, six months additional rigorous imprisonment. Under Section 307 read with 10 years' Rigorous Section 34 of I.P.C., 1860 (12 Imprisonment with fine of times) Rs.500/-, in default of payment 4 / 37 of fine amount, three months additional rigorous imprisonment (to each injured) (Total Rs.6,000/- fine amount). Both sentences to run concurrently. 7. The prosecution story in short is that, on 26.10.2020 at Village Malgaon, Thana Gariaband, Infront of Yashwant Cycle Store at N.H. 130, many people gathered to celebrate Dussehra festival, near the Temple situated beside main road. Meanwhile, at about 10:45 P.M. in the night, accused Romit Rathore @ Raja & Sourabh Kutare along with other Co-accused persons namely Vesh & Pappu Rathore, Devendra @ Vicky Thakur, Pemendra @ Pappu Sende sitting in the Brezza car bearing registration No. C.G.-23-J-6520 driven by Romit Rathore @ Raja in high speed came. Thus, the mob stopped the appellant and objected, due to which quarrel took place between them. Thereafter, the accused persons fled away towards Raipur Road Dhaba. After some time, the accused persons returned back driving the car in a rash and negligent manner on wrong side and due to which the alleged incident took place. In the aforesaid accident, Munesh Sinha S/o Sohan Sinha, aged about 04 years died on the spot and about 12 persons from crowd were injured. After the accident, all the injured were taken to the District Hospital, Gariaband and primary treatment was given to them. 5 / 37 8. On the basis of written complaint by Lokeshwar Dhruw S/o Siyaram Dhruw, in the intervening night of 26-27/10/2020 at 2:10 Α.Μ. at Thana City Kotwali, Gariaband, District Gariaband, the Police registered Crime No. 222/2020 for the offense punishable under Sections 302, 307, 34 of I.P.C. In relation to child-Munesh Sinha who died on the spot in the incident, case No. 51/2020 was registered under Section 174 CrPC. Panchnama proceedings were conducted for the body of deceased Munesh Sinha under the prescribed procedure and thereafter, the postmortem of the body of the deceased was conducted by Dr. G.S. Dhruv, Medical Officer at District Hospital Gariaband (PW-22) vide Ex.P-49 and found following injuries :- External examination - The body of the deceased was lying on his back. Eyes and mouth were open. There was blood in the nose. Blood was oozing from the right ear of the deceased. Stiffness was present in the hands and legs. (I). There was a fracture in the right parietal and occipital part of the deceased and it was pushed inwards. (ii). There was a lacerated wound on the right leg of the deceased, the size of which was 3 x 2 x half cm. Internal examination- The internal organs of the deceased were found congested. Blood stains on cloths. To find out what the 6 / 37 stain was made of, he handed it over to the same constable for chemical examination. He opined that the death of the deceased was due to the head injury. 9. Thereafter, the police started investigation and after collecting evidence, police on the basis of involvement of other co-accused in the crime replaced Section 34 of I.P.C with Sections 147 and 109 of I.P.C. in addition to it against accused Badal Sukhdeve, who helped to hide evidence, Section 201/34 and 212 of I.P.C were added. After completion of investigation, charge-sheet has been submitted by the Investigating Officer on 20/01/2021 before the Court of Chief Judicial Magistrate, Gariaband, District Gariaband under Sections 302, 307, 147, 109, 201, 212, 149 of I.P.C. and thereafter, case was committed before the learned Additional Sessions Judge, Gariaband, for trial, thus Sessions Trial No. 36/2021 was registered and trial was initiated. 10. The learned trial Court found prima facie case against the accused/appellants and other accused persons for offence punishable under Sections 302, 307, 147, 109, 201, 212, 149 of I.P.C. and thus framed charges under the said Sections. The appellant pleaded not to be guilty, and prayed for alteration of charges, hence, prosecution evidence were recorded. After hearing the arguments of both the counsel, learned trial Court finally convicted the present appellants for the offence punishable under 7 / 37 Sections 302/34, 307/34 of I.P.C. & exonerated from Section 201 of I.P.C. and acquitted other co-accused namely Vesh @ Pappu Rathoure, Devendra @ Vicky Thakur and Pemendra @ Pappu Sende from charge under Sections 147/149, 302/149, 307/149 (Twelve Times) & exonerated accused Badal Sukhdeve from offence under Sections 201/34 and 212 of I.P.C vide its judgment dated 06.07.2024. 11. In order to prove the charges against the appellants (accused), prosecution examined as many as 29 witnesses and 93 documents were exhibited. Statement of appellants were also recorded under Section 313 of CrPC in which they pleaded innocence and false implication. However, no defence witness was examined by the appellants. After completion of trial, trial Court convicted and sentenced the appellants in the manner as described above. Hence, this appeal.
Legal Reasoning
12. Mr. Amiyakant Tiwari, learned counsel appearing for the appellant in CRA No.1410 of 2024 would submit that trial Court has wrongly convicted the appellant- Saurabh Kutare (A/2) without there being any sufficient evidence available on record against him. He further would further submit that the learned trial Court erred in holding that the prosecution has successfully establish the charge of murder with the aid of common intention beyond any reasonable doubt. It is respectfully submitted that the prosecution 8 / 37 has utterly failed to prove the charge under Section 302 read with 149 or under Section 302 read with 34 of I.P.C. and under Section 307 read with 149 IPC or under Section 307 read with 34 of I.P.C. beyond any reasonable doubt and by bringing legal and clinching evidence in the nature of conclusive evidence against the present appellant so as to hold him guilty for the commission of any crime. Hence, the findings and reasons recorded in the impugned judgment are liable to be quashed and set-aside acquitting the present appellant from the charge. The prosecution has further failed to prove the alleged overt act on the part of the present appellant during the course of trial. The prosecution has further failed to prove that the appellant shared his common intention or common object at the time of commission of the offence, therefore, the learned trial Court ought to have raised an adverse inference against the case of prosecution and ought to have acquitted the present appellant. He would further submit that the prosecution had further failed to prove the actus reus and mens rea on the part of the present appellant and failed to prove the case beyond any reasonable doubt. Even if the entire case of prosecution is considered along with material collected by it, same is not sufficient to hold the present appellant guilty for the charge framed against him. The appellant is therefore, entitled for acquittal. 9 / 37 13. Mr. Alok Kumar Dewangan, learned counsel appearing for the appellant in CRA No.1761 of 2024 would submit that trial Court has wrongly convicted the appellant- Romit Rathore @ Raja (A/1) without there being any sufficient evidence available on record against him. He further would further submit the prosecution had produced 29 witnesses, the finding of the trial Court itself was perverse since. There are many contradictions in the statement of the witnesses regarding incident and procedure adopted by the Police. Having reached in this finding conviction of the appellant is bad in the eye of law. There is no legal evidence on record to substantiate the conviction and sentence. The driver of the car wanted to get away as fast as he can as such the mob was attacking upon them with arms on their hand to any how save himself, due to which incident occurred and therefore, offence if any committed by the driver would not travel beyond Section 304 IPC. The act was nothing, but a rash and negligent act on self defence without any intention to kill the deceased-child as such neither the appellant knows the child/boy nor was having any intention to kill him, it was just an accident. The mob was attacking upon the appellant and his car, the appellant was unarmed, his priority was to survive and not to fight and therefore in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the appellant was so situated that he cannot effectually exercise that right 10 / 37 without risk of harm to an innocent person, his right of private defence extends to the running of that risk. The appellant and his friends were attacked by a mob which attempt to murder him, therefore, the car had to be driven through the seed of crowd, which scattered the crowd and caused injury although the mob were mixed with some other innocent persons who have nothing to do with the attack on him, therefore, having no other way to escape from mob the appellant had taken the risk of causing harm to innocent persons also in the exercise of his right of private defence against an assault. 14. Mr. Dewangan would further submit that even if the prosecution story is taken to be correct, the accused appellant cannot be said to be guilty of commission of offence under Section 302 I.P.C., since as per own evidences of the prosecution intention to kill the deceased was neither alleged nor established. Therefore, as per own evidence of the prosecution, the accused appellant could have been convicted only under Section 304 Part-II of I.P.C. and not under Section 302 of I.P.C. inasmuch as, the injury caused, as per own evidence of the prosecution; was without any intention to cause death. Premeditated mind to cause murder of the Munesh Kumar (deceased boy), has neither been alleged nor established by the prosecution. It is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the 11 / 37 appellant. There is no evidence that the appellant made special preparation for assaulting Munesh Kumar (deceased boy) with the intent to kill him. If the prosecution case is accepted as it is, then also the act was caused by rash and negligent acts, but there was no intention to kill the child (Munesh Kumar). It is further submit that there are significant features of the case which are required to be taken into consideration in awarding the appropriate sentence to the accused. Admittedly, the accident happened at the spur of the moment. It is clear from the evidence on record that the appellant was not using that path everyday. The other accused did not indulge in overt act, therefore, except the appellant and Sourabh Kutare all other co-accused have been acquitted by the learned trial Court and there was no previous enmity of the appellant with the It is also submitteddeceased or his family. Therefore, it is abundantly clear that there was no pre- arranged plan of that the incident had taken place in furtherance of common intention of the accused persons. When all these facts and circumstances are taken in to consideration in proper perspective, then conviction of the appellant under Section 302 is not sustainable in the eye of law. 15. Mr. Dewangan would further submit that according to Dr. B. Bara (P.W.-21), the injury sustained by P.W. 1- Lakeshwar Dhruw, P.W. 2- Tikeshwar Dewangan, P.W. 4- Himanshu Nishad, P.W. 6- 12 / 37 Tikeshwar Sinha, P.W.- 15 Danveer Dhruw, P.W. 18- Pokhraj Sinha, P.W.23- Kamal Narayan Nishad, P.W. 28- Basant Nishad, were simple in nature. The prosecution has also not proved the other circumstances. The story was doubtful looking to the evidence recorded. It is not reliable as itself consisting of so many impossible and hypothetical matters. So the impugned Judgement and conviction deserves to be set-aside. It is, therefore, prayed that this Court may be set-aside the impugned judgment dated 06/07/2024 passed in Sessions Trial No. 36/2021 and acquit the appellant. 16. Per contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He would further submit that at the time of incident, accused Romit Rathore @ Raja & Sourabh Kutare along with other Co-accused persons sitting in a Brezza car bearing registration No. C.G.-23-J-6520 driven by Romit Rathore @ Raja in the wrong side. The place of occurrence, the villagers had assembled for celebrating Dussehra, so it was objected by them to the accused persons and upon it, there was hitted exchanged of words between accused persons and the villagers. Thereafter, the accused persons left the spot and they went to some other place and after 15-20 minutes, in order to 13 / 37 take revenge, they came back and drove the vehicle in rash and negligent manner in which a 04 years minor child- Munesh Sinha was killed and died on spot in that accident and total 12 persons were injured out of which, four persons were injured servery and they had to be admitted to higher center for better treatment and blood stains were also found on the rear tyre of the offending vehicle, hence, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment passed by the Court below needs no interference. 17. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. So far as the conviction of Appellant- Saurabh Kutare is concerned: 18. From perusal of the record and evidence, it is evident that the appellant- Saurabh Kutare and other co-accused were present in the aforesaid car when the incident took place, the present appellant was not driving the aforesaid vehicle, therefore, he cannot be held guilty for commission of offence under Sections 302/34 and 307/34 IPC. Therefore, he is acquitted of the said charges. So far as the conviction of Appellant- Romit Rathore @ Raja is concerned: 14 / 37 19. From perusal of the record and evidence, it is evident that at the time of incident, Appellant- Romit Rathore @ Raja was driving the car in question and the said car had to be driven through the seed of crowd, whereby the villagers sustained injuries and one child died. 20. Now, the question for consideration is, whether the death of deceased-child was homicidal in nature? 21. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-49 proved by Dr. G.S. Dhruw (PW-22) that the death of the deceased was due to the head injury and the injury was antemortem, but no definite opinion has been given with regard to the nature of death. 22. Sohan Sinha (PW-16) in his cross-examination at para 08 has stated that he had taken his son in his lap and he was thrown from his lap after getting dashed from the car he became unconscious and how long his son was thrown he is not aware about the same. 23. The next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 15 / 37 24. Section 304 Part-II reads as under : “304. Punishment for culpable homicide not amounting to murder.—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 intention to cause death, or to cause such bodily injury as is likely to cause death.” 25. The cause of death assigned in the postmortem report of the deceased as already noticed is ‘head injury’. It is a trite law that “culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides are not “murders” as held by the Hon’ble Supreme Court in the matter of Rampal Singh v. State of Uttar Pradesh reported in 16 / 37 (2012) 8 SCC 289. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances. 26. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu reported in AIR 1956 SC 488 has made the following observations : “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 difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.” 27. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, ‘intent’ and ‘knowledge’ and separate 17 / 37 punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death 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 unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 of the IPC. It is in this background that the expression used in Indian Penal Code namely “intention” and “knowledge” has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 of the IPC, 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. In other words, that the injury found to be present was the injury that was intended to be inflicted. 18 / 37 28. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 has observed as under :- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 19 / 37 29. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; 20 / 37 (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflictd; (I) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure 21 / 37 that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 30. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove 22 / 37 the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 31. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh reported in (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he 23 / 37 would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's 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. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the 24 / 37 offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 32. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 33. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) reported in (2019) 6 SCC 122 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 34. The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. The State represented by the Inspector of Police 25 / 37
Decision
in Criminal Appeal No. 2043 of 2023 disposed off on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under: “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (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 26 / 37 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, 27 / 37 falling within Part 1 of Section 304 of the IPC, if the case of the 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 28 / 37 ‘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 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 29 / 37 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. 30 / 37 (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 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 31 / 37 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 32 / 37 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. (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 33 / 37 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.” 35. In the present case, Lakeshwar Dhruw (PW-1), Tikeshwar Dewangan (PW-2), Thakur Ram (PW-3), Himanshu Nishad (PW- 4), Rajendra Nishad (PW-7), Mahendra Kumar Nishad (PW-8), Rekhram Dewangan (PW-9), Danveer Dhruw (PW-15), Sohan Sinha (PW-16), Pukhraj Sinha (PW-18), Abdul Karim (PW-19), Jhanak Ram Sinha (PW-20) and Rajhansh Nishad (PW-26) are the eyewitnesses, stated that on the day of the incident, due to the accident causing vehicle being driven by accused Romit Rathore at high speed in the opposite direction and being driven into the crowd, a 4- year-old child named Munesh died on the spot and he also got injured due to the accident. In this regard, other eye witnesses of the incident have also confirmed the said incident and stated that 4-year-old child Munesh died in the incident. 36. During their cross-examination, the statements of the witnesses remain unrebutted, and there are no inconsistency in their statements that would make them unreliable. 37. Further Dr. G.S. Dhruw (PW-22), who has conducted the postmortem of the deceased on 27.10.2020. After the postmortem, 34 / 37 he found the injuries as stated in paragraph 08 of this appeal and he opined that the death of the deceased was caused due to head injury. 38. Applying the aforesaid principles of law laid down by their Lordships of the Hon’ble Supreme Court in the above-stated judgments (supra) in the facts of this case, it is quite vivid that as per cross-examination of Sohan Sinha (PW-16), father of the deceased child, it is evident that the deceased child was thrown from his lap. This witness (father of the deceased) became unconscious after being dashed. He did not know how far the deceased was thrown, therefore, it is not proved by the prosecution that the death of deceased was due to run over the car on the deceased by the vehicle being driven by accused Romit Rathore @ Raja. Therefore, there was no premeditation on the part of the appellant to cause death of deceased. The appellant did not had any intention to cause death of deceased, but by causing such accident, he must had the knowledge that such injuries inflicted by him would likely to cause death of deceased and only head injury was sustained by the deceased, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed 35 / 37 in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 39. In such circumstances, when there is no clear evidence with regard to kill the deceased by run over the car, therefore, offence punishable under Section 302 of IPC would not be applicable in this case. However, offence punishable under Section 304 Part-II would be applicable, therefore, the appellant is convicted for the offence punishable under Section 304 Part-II of IPC instead of Section 302 of IPC. Since the appellant has caused injuries to the injured persons, therefore, the learned trial Court has rightly convicted the appellant under Section 307 IPC. Accordingly, the appellant is convicted under Section 304 Part-II IPC and Section 307 IPC. 40. Now coming to the sentence part, since the appellant has undergone about 04 years and 06 months in this case, we are of the considered opinion that the ends of justice would be met if, the jail sentence awarded to him is reduced to the period already undergone by him. 41. Accordingly, conviction and sentence of the appellant- Romit Rathore @ Raja under Section 302 of the IPC is altered to the offence under Section 304 Part-II of the IPC and he is convicted under Section 307 IPC. However, jail sentence awarded to him is reduced 36 / 37 to the period already undergone by him and the fine sentence shall remain intact. 42. In the result, CRA No.1410/2024 is allowed and CRA No.1761/2024 is party allowed to the extent indicated herein-above. 43. The appellants are reported to be in jail. They be released forthwith, if not required in any other case. 44. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants are directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties (each appellant) in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 45. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail 37 / 37 the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 46. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Vasant