Md.Rafique @ Chachu vs State Of West Bengal

Md. Rafique @ Chachu ...Appellant

Versus

State of West Bengal ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta High Court which by the impugned judgment upheld the

conviction of the appellant for offence punishable under Section 302 of the

Indian Penal Code, 1860 (in short the `IPC') while setting aside the

conviction under Section 398 IPC as done by learned Additional Sessions

Judge, Alipore, in connection with Sessions trial No.6 (1) of 1997.

2. Prosecution case in a nutshell is as follows:

On 1st August, 1996, at about 11.40 in the night the present appellant

along with others came in a white Ambassador car having fake number plate

in front of the grocery shop under the name and style "Prabhat Stores"

situated at 7/1, Bampass Road, Calcutta-29. The persons who came in the

Ambassador car were armed with weapons like pistol, nepala etc. and they

entered into the grocery shop and demanded key of the cash box from the

proprietor of the shop namely Gulab Mehata (hereinafter referred to as the

`deceased'). At that relevant time Gulab Mehata alongwith his sons Mukesh

Mehata was about to take their dinner and the FIR maker Shyam Mehata

just came inside the shop with drinking water. Since Gulab Mehata refused

to hand over the key of the cash box the present appellant shot at the

deceased from the front side at his chest and on receiving the injury, he fell

down and thereafter the appellant and other accused persons inflicted cut

injuries on the person of the deceased. The miscreants also assaulted

Mukesh Mehata with the butt of the revolver. Soon after the occurrence,

hearing the alarm of the FIR maker, Shyam Mehata and his brother Mukesh

Mehata, the neighbours of the locality rushed in the shop and Gulab Mehata

and Mukesh Mehata were taken to the nearby hospital where subsequently

Gulab Mehata succumbed to his injuries. One of the neighbours informed

2 Tollygunge Police Station immediately about the occurrence and

Tollygunge Police Station officials soon thereafter arrived at the spot and

started investigation. On completion of the investigation, police submitted

the charge sheet against the present appellant along with others under

Section 302 read with Section 34, Section 307 read with Section 34 and

Section 398 read with Section 34 IPC. Since the accused persons

pleaded innocence trial was held.

Before the High Court the learned counsel for the appellant accepted

that there was no challenge to the fact relating to the occurrence. It was also

conceded that from the evidence of the FIR maker and also from the

evidence of the other witnesses examined during the trial it was established

that the present appellant was physically present inside the shop room. It

was also conceded that there was little scope to deny the prosecution charge

that accused had assaulted the deceased Gulab Mehata with the help of fire

arm. It was, however, submitted that the circumstances under which firing

has been done were not very clear. Brother of the FIR maker who was also

injured at the time of occurrence did not identify the appellant as the person

who shot at his father and, therefore, there was scope to raise a doubt as to

whether the appellant with the intention of causing death to Gulab Mahata

shot at him. In other words, it was submitted that a case under Section 302 3 is not made out. The High court did not accept this plea, though it accepted

the stand that there was no scope for the conviction under Section 398 IPC.

The stand taken before the High Court was re-iterated by learned counsel

for the appellant. In support of the appeal, it was submitted that the High

Court has erroneously recorded certain concessions which in fact were not

made. It is submitted that in any event, no offence under Section 302 IPC is

made out. It is also submitted that there was no identification of the

appellant as claimed.

3. Learned counsel for the State on the other hand submitted that the

factual scenario clearly established the commission of offence under Section

302 IPC.

4. So far as the aspect of concession is concerned it is to be noted that

there is no ground taken even in the memorandum of appeal that there was

no concession as recorded by the trial Court.

5. It would be logical to first deal with the plea relating to absence of

concession. It is to be noted that the appellant conceded certain aspects

before the High Court. After having done so, it is not open to the appellant

4 to turn around or take a plea that no concession was given. This is clearly a

case of sitting on the fence, and is not to be encouraged. If really there was

no concession, the only course open to the appellant was to move the High

Court in line with what has been said in State of Maharashtra v. Ramdas

Shrinivas Nayak (1982 (2) SCC 463). In a decision Bhavnagar University v.

Palitana Sugar Mill (P) Ltd. (2003 (2) SCC 111) the view in the said case

was reiterated by observing that statements of fact as to what transpired at

the hearing, recorded in the judgment of the Court, are conclusive of the

facts so stated and no one can contradict such statements by affidavit or

other evidence. If a party thinks that the happenings in court have been

wrongly recorded in a judgment, it is incumbent upon the party, while the

matter is still fresh in the minds of the judges, to call the attention of the

very judges who have made the record. That is the only way to have the

record corrected. If no such step is taken, the matter must necessarily end

there. It is not open to the appellant to contend before this Court to the

contrary. The above position was highlighted in Roop Kumar v. Mohan

Thedani (2003) 6 SCC 595).

6. This brings us to the crucial question as to which was the appropriate

provision to be applied. In the scheme of the IPC culpable homicide is

5 genus and `murder' its specie. All `murders' are `culpable homicide' but

not vice-versa. Speaking generally, `culpable homicide' sans 'special

characteristics of murder is culpable homicide not amounting to murder'.

For the purpose of fixing punishment, proportionate to the gravity of the

generic offence, the IPC practically recognizes three degrees of culpable

homicide. The first is, what may be called, `culpable homicide of the first

degree'. This is the gravest form of culpable homicide, which is defined in

Section 300 as `murder'. The second may be termed as `culpable homicide

of the second degree'. This is punishable under the first part of Section 304.

Then, there is `culpable homicide of the third degree'. This is the lowest

type of culpable homicide and the punishment provided for it is also the

lowest among the punishments provided for the three grades. Culpable

homicide of this degree is punishable under the second part of Section 304.

7. 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

6 comparative table will be helpful in appreciating the points of distinction

between the two offences.

Section 299 Section 300

A person commits culpable homicide Subject to certain exceptions if the act by which the death is culpable homicide is murder caused is done - if the act by which the death is caused is done -

INTENTION

(a) with the intention of causing (1) with the intention of death; or causing death; or

(b) with the intention of causing (2) with the intention of such bodily injury as is likely causing such bodily injury to cause death; or as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE ****

(c) with the knowledge that the act (4) with the knowledge that is likely to cause death. the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

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8. 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.

9. 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

8 knowledge about the disease or special frailty of the victim, nor an intention

to cause death or bodily injury sufficient in the ordinary course of nature to

cause death, the offence will not be murder, even if the injury which caused

the death, was intentionally given. In clause (3) of Section 300, instead of

the words `likely to cause death' occurring in the corresponding clause (b)

of Section 299, the words "sufficient in the ordinary course of nature" have

been used. Obviously, the distinction lies between a bodily injury likely to

cause death and a bodily injury sufficient in the ordinary course of nature to

cause death. The distinction is fine but real and if overlooked, may result in

miscarriage of justice. The difference between clause (b) of Section 299

and clause (3) of Section 300 is one of the degree of probability of death

resulting from the intended bodily injury. To put it more broadly, it is the

degree of probability of death which determines whether a culpable

homicide is of the gravest, medium or the lowest degree. The word `likely'

in clause (b) of Section 299 conveys the sense of probable as distinguished

from a mere possibility. The words "bodily injury.......sufficient in the

ordinary course of nature to cause death" mean that death will be the "most

probable" result of the injury, having regard to the ordinary course of

nature.

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10. For cases to fall within clause (3), it is not necessary that the offender

intended to cause death, so long as the death ensues from the intentional

bodily injury or injuries sufficient to cause death in the ordinary course of

nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt

illustration of this point.

11. 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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12. 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."

13. 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

11 circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

14. 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.

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15. Thus, according to the rule laid down in Virsa Singh's case, even if

the intention of accused was limited to the infliction of a bodily injury

sufficient to cause death in the ordinary course of nature, and did not extend

to the intention of causing death, the offence would be murder. Illustration

(c) appended to Section 300 clearly brings out this point.

16. 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.

17. The above are only broad guidelines and not cast iron imperatives. In

most cases, their observance will facilitate the task of the Court. But

13 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.

18. The position was illuminatingly highlighted by this Court in State of

Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382),

Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT

2002 (6) SC 274), Augustine Saldanha v. State of Karnataka (2003 (10)

SCC 472), Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650) and

Sunder Lal v. State of Rajasthan (2007 (10) SCC 371) and Kandaswamy v.

State rep. by the Inspector of Police (SLP (Crl.) No.5134/2006 disposed of

on 17.7.2008)

19. Coming to the identification aspect the Judicial Magistrate who

conducted the Test Identification Parade has clarified the position. It has

been stated that on 7.10.1996 there could not be identification of the present

appellant because the wrong person was put in the TI Parade. The real

suspect, i.e. the present appellant was not put in TI Parade and this aspect

has been noted in the report relating to TI Parade. Subsequently, TI Parade

was held where the appellant was identified.

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20. It is further relevant to note that during trial the present appellant

escaped from jail custody at the time of transporting from Alipore Jail to the

Court.

21. Coming to the question as to whether the offence committed by the

appellant is covered by Section 302 or Section 304 IPC. It is to be noted that

the accused appellant shot at the deceased from his fire arm as a result of

which he sustained grievous injuries and died in the hospital.

22. There are two eye witnesses to the occurrence i.e. PWs 12 and 24.

Shyam Prasad Mehata (PW-12) was the informant while PW-24 was

another eye witness of the occurrence. They are sons of the deceased and

had sustained injuries in the incident.

23. According to PW-12 on the date of occurrence he had carried food for

his father and elder brother as usual around 11.30 p.m. He was talking to his

father and his father asked him to fetch drinking water from the tubewell.

Shortly thereafter while he was standing in front of the counter of the shop

room, one Ambassador car stopped in front of the shop room from which

six persons alighted and two persons remained inside the car. All the six

15 persons were armed with various weapons out of which two were armed

with revolvers. They trespassed to the shop room and demanded keys of the

almirahs and when PW-24 stated that he did not have the same, one of them

assaulted his elder brother with the butt of the gun four times, thrice on the

head and one near the eye side as a result of which he received blood

injuries. He tried to save his elder brother. At that time the present appellant

shot at his father. To the similar effect is the evidence of PW-24. The

doctor PW-22 had stated that death was due to the effect of the gun shot

injury.

24. Above being the position there is no merit in the plea that the offence

is not covered by Section 302 IPC.

25. The appeal fails and hence dismissed.

............................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 21, 2008

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