Radhe v. State of Chhattisgarh

. . Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appe~I is to the.judgm~nt of a Division G Bench of the Chhattisgarh High Court dismissing the appeal· filed· by the.appellant (hereinafter referred to as the 'accused'). : ,_J ... 3. Challenge before the High Court was to the judgment of 1 the learned Additional Sessions Jud_ge, Manendragarh. The trial. Court had found the appellant guilty of offence punishable un-. H der Section 302 of the Indian Penal Code, 1860 (in short the RADHE v. STATE OF CHHATTISGARH 115 [DR. ARIJIT PASAYAT, J.] ~ 'IPC') b~t found the co-accused, namely, Kashi and Dev Kumar A . to be not guilty. The appellant was sentencedJo undergo RI for life and fine with default stipulation. 4. Prosecution version as unfolded during trial is as fol­ lows: 8 On 10.11.1997 Gyan Singh (hereinaJter referred to as the 'deceased') went to Ramkhilawan's house for collecting kanda" (eatable bulb). When he did not come back till evening, his fa­ ther Heeralal went in search of the deceased to the house of Ramkhilawan in the evenirig at around 7.00 p.m. Heeralal along c with Ramkhilawan and his son Gyan Singh were returning to . · his hoi.Jse. On the way, when they reached near the house of Kashi, Kashi started scolding Ramkhilawan, who was refrained from doing so. Therefore, a quarrel erupted. Appellant who was carrying pharsa and Kashi a lathi started beating. Appellant gave 0 a pharsa blow on the leg of the deceased. The leg was cut and · turned into two pieces. Gyan Singh fell down, thereafter Radhe chopped his other leg and assaulted Gyan Singh with pharsa on his thigh and other parts of the body. Heeralal came to res­ cue ~im. Dev Kumar assaulted him with a lathi ori his head and also gave a blow on his left shoulder. Heeralal fell down. When E Ramkhilawan intervened, he was assaulted by Dev Kumar. In the meantime, Beerbali, who is son of Ramkhilawan came there. He was also beaten by Radhe with pharsa. Kashi assaulted Ramkhilawan with a club. Gyan Singh instantaneously· died at the spot and others were injured. Accused appellant and his F associates Kashi and Dev Kumar fled away from the place of occurrence. Heeralal gave intimation and lodged First Information Report. Both the documents were recorded by Arjun Ram, As- G •. sistant Sub Inspector, Head Constable Jagsai conducted in- . quest, prepared report and forwarded the dead body of Gyan Singh for autopsy to Community Health Centre, Manendragarh. He collected blood stained and plain earth from the spot. Dr. S.K. Chainpuria conducted autopsy. On examination, he found H <. 116 , SUPREME COURT REPORTS [2008] 10 S.C.R A nine injuries on the body of deceased. and according to ~is opin­ ion, the cause of death'was syncope due to shock and external hemorrhage caused by multiple injuries. All the injuries found · on the body of Gyan Singh were caused by hard ane/or sharp objects except one which was found to be-abrasion and present . B below left knee. Death was homicidal in nature. He prepared autopsy report and describing all the injuries found on the body ~ of the deceased forwarded th~ report to the concerned police \station. !njuredBeerbali, Ramkhilawan and Heeralal were also 'sent for medical examination. On medical examination, it was c found that they have sustained various injuries. On the memo­ randun:i.statemel'lt of accused Kashi one club and one pharsa. were recovered from the appellant and seized. From Dev kumar. · - one.club was .seized. After post mortem examination! the cloth~s found on the body ()f the deceased were also ·COiiected. The D statements of witnesses were recorded; The seized pharsa, clothes and earth were sent for chemical examination and on examinaUon stained 'earth, pharsa and clothes of Gyan Singh were foµnd to be stained with blood. ·.After cor:npletion of investigation, the charge sheet was E filed in the C.gurt of Additional Chief Judicial Magistrate, Manendragarti~ who committed the case to the Court of Ses­ sion~ for trial qiarges were framed againsfthe appellant and cq-accused. The accused-appellant pleaded innocence a_nd false implication. · · F ~.·Before the High Court the main stand was that the as- sault, if any done by the appellant was in exercise· of right of private _qefence ·and, therefore, conviction was not called for. The learned counsel for the respondent on the other hand sup- . ported tlie Judgment of the trial Court. The High Court did not G accept appellant's plea- and dismissed the appeal. Stands taken before the.High Court were reiterated in this appeal. . . . 6. A plea of right of private defence· cannot be based on surrn_ises and speculation. While con~idering whether the rig~t H of prJvate defence. is available t() an_ accused, it is not relevant. .· ....... ·1'- ). RADHE v. STATE OF CHHATTISGARH 117. ~- [DR. ARIJIT PASAYAT, J.] . '.whether he may have a chance to inflict severe and mortal in- A jury on the aggressor .. In order to find whether the right of private defence is.available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section ·- 97 IPC deal.s with the subject-matter ofright of private defence. The plea of right comprises the body or property (i) of the per- B son exercising the right; or (ii) of any other personi and the right may be exercised in the case of any offence againstihe body, and in the case of offences of theft, robbery, mischief or critni- nal-trespass, and attempts at such offences in relation to prop- erty. Section 99 lays down the limits of the right of private de- c fence. Sections 96 and 98 give a right of private, defence agc;1inst certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 IPC is controlled by Section 99. To claim a 'I right of private defence extending to voluntary causing of death,. _, the accused must show that there were circumstances giving D rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC de.: fine the llmit and extent of right of private defence. · E - 7. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and prop- ·> erty respectively. The right commences, as soon as a reason- able apprehension of danger to the body _arises from ·an at- tempt, or threat, or commit the offence, although the offence F may not have been committed but not until that there is that rea- sonable apprehension. The right lasts so long as the reason- able apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension d,isap- G pears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of pri- vate defence. 8. The above position was highlighted in Rizan and An- other vs. State of Chhattisgarh, through the Chief Secretary, H · A _Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and Sucha Singh and Anr v. State of Punjab (2003 (7) sec 643). 9. Merely because there was a quarrel and accused per­ sons claimed to have sustained injuries, that does not confer-a 8 right of private defence extending to the extenfot causing death - as in this case. Though such right cannot be weighed in golden scales, it has to be established that tti-e accused persons were - under such grave apprehension about the safety oUh~r life and property that retaliation to(the extent done was absolutely nec- c essary:-No evidence mucbJess cogent and credible was ad­ - duced in this regard. The right of private defeJJce-as claimed by · the accused has been rightly discarded. - ~ - 10. The academic distinction between "murder" and "cul- pable homicide not amounting to murder" h.as always vexed D. 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 dFawn into minute ab­ . stractions. The safest w;:iy of appro~ch to ttie interpretation and E application of these provisions seem$. to be to keep in focus the keywords used in the various clauses of Sections 299 and .300. . ~ 11. In Vi[sa-Singh v. State ofPunjaiJ (AIR 195.8 SC 465}.: Vivjan Bose, J. speaking for the Court, explained the meaning . . F and scope of clause (3)~ It was observed that the.prosecution musfprove the following facts be!ore it ~an bring a case under Section 300 "thirdJy". First,~ it_ must establish quite objectively, .th_af a bodily injury is present; secondly, the nature of.i_he-injury - -- .. must b~ prove,d_ ... These are purely objective investigations. G Thirdly, ·it must be proved that there was an intention to inflict · that particular injury, tt1at is to say, that it was not accidehtaf,or unintentional. or that some Gt-her kind of injury was intended. · Once these three elements are proved to be present, the en­ quiry proceeds further.and fourthly, it must be proved thatthe injury of the type just described made -up of the· three· elements _· -~- ·' ... RADHE v. STATE OF CHHATTISGARH [DR. ARIJIT PASAYAT, J.] 119 set out above was sufficient to cause qeath in the ordinary course A "" of natµre. This part of the enquiry is purely objective and infer­ ential and has nothing to do witli the intention of the offender. . - · · 12;.The ingredients_of clause "thi_rdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: · B "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly'; c First, it must establish, quite objectively, that a bodily injury is present; · Secondly, the nature of the injury must be proved; These are purety objective investigations·. Thirdly, it must be proved that there wa$ an intention to D 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 E 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 F 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 G 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 H 120· SUPREME COURT REPORTS [2008] 10 S.C.R. 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 inten,ded 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 case (su­ pra) for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule o(law. Under D cta1:1se thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. ·(a) that the act i' 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 E course of nature to cause death. It must'be proved that there was an intention to inflict that particular bodily injur)t which, in the· ordinary course of nature, was1.sufficient to cause death viz. that the injury found to be present was the injury that was in­ tended to be inflicted. F 15.Thus, accor::ding to the rule laid down in Virsa Singh case (supra) 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 o'ffence would be murder. Illustration (c) ap- G pended to Section 300 clearly brings out this poi.nt. . 16. Clause (c) ·of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act caus­ ing de~th. It is not necessary for the purpose of this case to dilate much on the ,distinction betvveen these corresponding ( ' RADHE v. STATE OF CHHATTISGARH 121- -¥ _ [DR. ARIJIT PASAYAT, J. ] ,,,:..,, clauses. It will be sufficient to say that clause (4) of Section 300 A would be applicable where the knowledge of th~ 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 offende·r must be B of the highest degree of probability, the act having been com- mitted 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 observarn;:e will facilitate the c task of the court. But sometimes the facts are so intertwindd - ' "" -and the second and the third stages so telescoped into each, ) that it may not be convenient to give a separate and clear cut - !" treatment to the matters involved in the second and third stages. 18. The position vvas illuminatingly highlighted by this Court D in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382), ' Abdul Waheed Khan alias Waheed and Ors. v. State of A.P. --1 · (2002 (7) SCG 175) and Raj Pal and Ors. v. State of Haryana (2006 (8) sec 678). 19. It is to be noted that Heeralal has stated that the ap- pellant had assaulted both legs, ttiigh and hands of the_ de- ' + ceasedwitD pharsa. He choppep both the legs of the deceased . who died instantaneously. Beerbali's (P.W.5) evidence was also to similareffect. F . 20-. It is nobody's case that the appellant had assaulted · any·of the accused or that he had participated in the quarrel.. 21. Learned counsel for the appellant submitted that since he was present at the place of occurrence, it is but natural on G '( the part of the accused appellant to assume that he may have assaulted him. Mere presence of a person at the place of quar- rel is not sufficient to show that he had any intention to cause any injury. In the instant case, even that intention is not manifest and in any event, any intention to do an act cannot be counter- H 122 SUPREME COURT REPORTS " (2008] 10 S.C.R. . A acted by actual assault-Even deceased was not armed: . r J. .·· 22. In the instant case, in a brutal manner the appellant - had chopped both legs t>f the deceased and wittrlhe weapon cau,sed other injuries on the body of the deceased. Above be­ ing the position, there is no scope for interference in this ap-. B p~al. The appeal is dismissed. K.K.T. Appeal dismissed~ ·. . 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