PART - A : OFFENCES AFFECTING HUMAN BODY

TOPIC 1 : CULPABLE HOMICIDE AND MURDER

(I.P.C., Sections 299-302, 304(1) & (2) read with sections 8-11, 21, 32, 33, 39, 52)

Palani Goundan v. Emperor

(1919) ILR 547 (Mad)

NAPIER, J . - The accused has been convicted of the murder of his wife. The evidence shows that on Wednesday, the 23rd of October 1918, at about four or five naligais before sunset she was seen by prosecution witness No. 6 weeping and she said that her husband had beaten her. The witness told her to go home, promised to send for her father and then went to the father himself who lived in another hamlet of the same village, a mile away, a little before sunset and told him of the occurrence. After sunset the father, prosecution witness No. 2, sent his son, prosecution witness No. 3, and his son-in-law, prosecution witness No. 4, to the house where his daughter was living. Their evidence is that they arrived at the house at four or five naligais after sunset and that just outside the door they found the mother and the brother of the accused in the vasal and that the mother was remonstrating with her son inside saying do not beat a woman. According to their evidence they did not hear any cries inside the house at that time. After they waited a few minutes the accused opened the door and came out. They say they went inside and found Ramayee lying dead on the floor with a ploughshare lying near her. They say they at once went and told Rasa Goundan, who lives two doors off from the accused's house to go and call their father, prosecution witness No. 2. Rasa Goundan, prosecution witness No. 2 who at once came and found his daughter lying dead at about 10 or 11 o'clock in the night. Prosecution witness No. 2 says that he taxed the accused with the murder of his daughter and the accused said she hanged herself. Prosecution witness No. 2 further says that he went to the monigar and reported, but the monigar was busy with a procession and only promised to report. He thought that the monigar was endeavouring to hush the matter up, so he went to report the matter to the police himself at Kodumudi, three or four miles away, and laid a complaint. This complaint was recorded at 9.15 a.m. the next morning. That the monigar was endeavouring to hush the matter up, there can be no doubt, for it is clear that he sent no report to the police whatsoever as was his duty to do. The accused told a story to the effect that he came back early in the evening to get his meals and found his wife hanging with a rope tied to the roof and he calls two witnesses who say that the accused came and told them that his wife would not let him in and they went in with him and found his wife hanging from a beam. I do not think there can be any doubt that the deceased was hanged, but the evidence of the two defence witnesses is so discrepant that it is impossible to believe their version of the occurrence. The medical evidence shows that the woman had received a severe blow on the side of her head which would probably have rendered her unconscious, and it also shows that she died of strangulation which may have been the effect of hanging. That she hanged herself is impossible because, as pointed out by the Medical Officer, the blow on the head must have produced unconsciousness and therefore she could not hang herself. I am satisfied on the evidence of the following facts: that the accused struck

Emperor v. Mt. Dhirajia

his wife a violent blow on the head with the ploughshare which rendered her unconscious, that it is not shown that the blow was likely to cause death and I am also satisfied that the accused hanged his wife very soon afterwards under the impression that she was already dead intending to create false evidence as to the cause of the death and to conceal his own crime. The question is whether this is murder. Section 299 of the Indian Penal Code provides that Whoever causes death by doing an act with the intention of causing ....such bodily injury as is likely to cause death .... commits the offence of culpable homicide"; and section 300, clause (3), provides that "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, then in such cases culpable homicide is murder. Now, the hanging of a woman who dies from the effect of the hanging is on the face of it causing bodily injury which is sufficient in the ordinary course of nature to cause death and the section only requires that there should be homicide, namely the causing of death, to make this murder. It cannot, I think, be disputed that the accused intended to cause bodily injury for he intended to hang and did hang whether the body was alive or dead. If he had stabbed her or shot her intending it to be believed that she had stabbed or shot herself I cannot see that he would have done otherwise than intended to cause the wounds which he did cause. In this case the bodily injury was strangulation by hanging. It is, however, suggested that there is a necessary limitation, namely, that the person on whom the bodily injury is inflicted must be a person who is to the knowledge of the accused capable of being killed and that therefore if the accused thinks that the person is dead already he cannot be convicted of culpable homicide. One objection to this theory is that it is not necessary that the person who is killed should be a person to whom the offender intends to cause the bodily injury and that therefore his knowledge of the condition of the person killed is not a necessary element for conviction for murder. If A shoots at B with intent to kill B but misses B and kills C, then he has committed the murder of C although he did not even know that C was there. This point has been the subject of an express decision of this Court in a case [The Public Prosecutor v. Mushunoouru Suryanarayanamoorti, 1912 11 M.L.T. 127], where the accused attempted to poison one person and the poison was taken by another. There is no doubt that such is the law and it seems to me to follow that the opinion of the person who inflicts the injury is immaterial. There is a general exception in the Penal Code which saves persons acting innocently, viz., section 79. So the burying of a person wrongly believed to be dead would be protected from the scope of section 299. The Public Prosecutor, therefore, suggested that the proper limitation will be found by introducing the word unlawfully. That would perhaps leave one class of persons unprotected as in the following instance. Suppose that in this case the accused, having struck his wife a blow on the head that made her unconscious and believing her to be dead, had gone to his relatives and told them of the occurrence and they having sent him away themselves hanged the body of the woman believing her to be dead for the purpose of concealing his crime. They would be undoubtedly acting unlawfully, for they would be guilty of an offence under section 201, namely, causing evidence of the commission of an offence to disappear with the intention of screening the offender from legal punishment, and yet it seems a strong proposition to say that they have committed murder. Of course the position of the accused in this case is far worse, for he has committed the offence of grievous hurt; and speaking for

myself I see no reason why he should not have to bear the consequences of his subsequent act in killing the woman. Still it does appear that there should be some limitation of the strict words of the section and the difficulty is to say what that limitation is to be. The protection would seem to be found in English Law by application of the doctrine of mens rea though this might again be affected by the doctrine of malice in law which makes the killing in the course of a felony homicide. This doctrine of mens rea, though extremely difficult of definition, operates to protect persons who have no wrongful intention or other blameworthy condition of mind. To what extent it would operate to protect persons who knew that they were committing a criminal offence, namely concealment of murder, is a question which I do not propose to consider though the decision in The Queen v. Prince [(1875) L.R. 2 Crown Causes Reserved 154] referred to by the Public Prosecutor would seem to apply the mens rea to a person who intended to do an unlawful act but not the unlawful act which he in fact did. This is in fact the argument of the Public Prosecutor who asks us to apply this direction. I do not think, however, that it arises for consideration. Mr. Mayne is quite clear that under the Penal Code the maxim is wholly out of place. He says that every offence is defined and the definition states not only what the accused must have done but his state of mind in regard to his act when he was doing it. The whole of his discussion in sections 8, 9 and 10 on mens rea and knowledge is worthy of very close consideration and he seems to be quite clear that all the protections found in the English Criminal Law are reproduced in the Chapter on of General Exceptions in the Penal Code. Sections 79, 80 and 81 would seem to cover all cases where a person is not acting with a criminal intent. Now, it seems to me that the particular clauses in sections 299 and 300 which we have to interpret do create what I am tempted to call constructive murder. The first clause of section 299 requires the intention of causing death; the third clause requires knowledge that he is likely by such act to cause death. In the same way the first clause of section 300 requires an intention to cause death; the second clause requires an intention to cause such bodily injury as the offender knows to be likely to cause death; and the fourth clause requires the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or is likely to cause death and the act is committed without any excuse for incurring the risk. In all these we have intention, knowledge and recklessness directed towards the causing of death. On the other hand, in the second clause to section 299 the intention is directed towards the bodily injury and in the third clause to section 300 the intention is the same. What makes the offence murder is that the bodily injury should in fact be likely to cause death entirely apart from intention or knowledge. The legislature has thought fit to make the offence murder without proof of intention or knowledge directed towards death on the principle, of course, that a person must be deemed to intend the natural result of the injury which he inflicts; that is to say, if he inflicts an injury which is likely to cause death and that person dies, he must take the consequences of his action. But the intention provided for is confined to the bodily injury and not to the death. That is the law which we have to apply, and unless a person can be protected by one of the general exceptions, I cannot see for myself how he is to escape from the language of the section. Apart from the actual offence of concealing a murder, it is the grossest violation of natural rights to stab, shoot or hang a person without absolute knowledge that that person is dead unless of course it is done innocently, and I see no reason why the offender should not suffer the consequences of his act.

Emperor v. Mt. Dhirajia

I shall now refer to the cases. The first is Gour Gobindo Thakoor [(1866) 6 W.R. (Cr. R.) 55]. The facts are very similar. There one Gour Gobindo struck the deceased, Dil Muhammad, a blow which knocked him down and then he and others without inquiry as to whether he was dead or not, in haste hung him up to a tree so as to make it appear that he committed suicide. The accused were all convicted of hurt, but the High Court quashed the proceedings and directed the accused to be re-tried on charges of murder, culpable homicide not amounting to murder and hurt. Mr. Justice Seton-Karr says: If however, the deceased was not actually killed by the blow, but was killed by the suspension, then Gour Gobindo himself, and also all the other Thakoors who took part in hanging him up to the tree, would be clearly liable to a charge of culpable homicide amounting to murder; for, without having ascertained that he was actually dead, and under the impression that he was only stunned, they must have done the act with the intention of causing death, or bodily injury likely to cause death, and without the exceptions provided by the law, or they might have been committed for culpable homicide not amounting to murder. Mr. Justice Norman says: Suppose, secondly, that the Thakoors had no intention of killing the deceased, but, finding him insensible, without enquiry whether he was dead or alive, or giving him time to recover, under an impression that he was dead, hung him to the tree, and thereby killed him. It appears to me that they might all have been put on their trial, under section 304, for culpable homicide not amounting to murder. I think a jury might fairly presume against them that they must have known that they were likely by that act to cause death. The difficulty in this case is that the learned Judges did not wish to decide the case, and therefore their language is hypothetical. Mr. Justice Norman says that a jury might fairly presume knowledge that they were likely to cause death, hereby introducing a limitation which is to be found in the clauses we have under consideration. Certainly Seton-Karr, J., thinks the offence to be culpable homicide. The next case is Queen Empress v. Khandu [(1891) I.L.R. 15 Bom. 194]. In that case it was found that the accused struck the deceased three blows on the head with a stick with the intention of killing him. The accused, believing him to be dead, set fire to the hurt in which he was lying with a view to remove all evidence of the crime. The medical evidence showed that the blows were not likely to cause death and did not cause death and that death was really caused by injuries from burning. Mr. Justice Birdwood states the provisions of section 299 and says: it is not as if the accused had intended, by setting fire to the shed, to make the deceased's death certain, and therefore acquits him of murder though he convicts him of an attempt to commit murder because of the accused's own admission that he intended by the blow to kill. With great deference the learned Judge give no reason for the view he takes. Mr. Justice Parsons took the view that the whole transaction, the blow and the burning, must be treated as one and that therefore the original intention to cause death applied to the act of burning which did cause death. The Chief Justice disagreed with Mr. Justice Parsons as to the transactions being one

and without giving any other reason acquitted. With the greatest deference to the learned Judges I do not find any assistance from the manner in which they disposed of the case. Mr. Mayne deals with this case in section 414 of his notes and is inclined to agree with the dissenting Judge that the intention should be treated as continuing up to the burning. The last case is The Emperor v. Dalu Sardar [(1914) 18 CWN 1279]. In that case, the accused assaulted his wife by kicking her below the navel. She fell down and became unconscious. In order to create an appearance that the woman had committed suicide, he took up the unconscious body and, thinking it to be a dead body, hung it by a rope. The postmortem examination showed that death was due to hanging. The Court, I think, assumed that at the time he struck her he was not intending to cause death, and, I think, we may also take it that the injury was not in fact likely to cause death. The learned Judges say that as he thought it to be a dead body he could not have intended to kill her if he thought that the woman was dead and seem to assume that the intention to cause death is a necessary element in the offence of murder. With very great deference to the learned Judges they seem to have ignored the language of sections 299 and 300 and accordingly I can find no assistance from this case. That being the state of the authorities, it seems to me to be advisable to get a definite pronouncement from this Court and I would therefore refer to a Full Bench the question whether on the facts found by us in this case the offence of murder has been committed.

SADASIVA AYYAR, J. - I agree in referring the question to a Full Bench as proposed by my learned brother. I shall however give my own opinion shortly on the matter referred. I do not think that the case of The Queen v. Prince [(1875) L.R. 2 Crown Cases Reserved 154] relied on strongly by Mr. Osborne has much relevancy in the consideration of the question before us. In that case the decision mainly depended upon the wording of the Statute 24 & 25 Vict., c. 100, s. 55, which made the taking unlawfully of an unmarried girl, being under the age of 16 years, out of the possession of the father a misdemeanour. The majority held in that case that there was no lawful excuse for taking her away, and the accused's ignorance of her age did not make it not unlawful. We have simply to construe the definition of culpable homicide in section 299. The intention "to cause such bodily injury as is likely to cause death" cannot, in my opinion, mean anything except "bodily injury" to a living human body. If this is not so, then, according to the strict letter of the definition, the relatives who burn the body of a man believing it to be dead would be guilty of culpable homicide. I may even say that it is remarkable that the words "of a human being" are not added in the body of the definition after 'death' and, as the definition stands, the causing of the death of anything with intention will be culpable homicide, which of course is a contradiction in terms. I think after the words "bodily injury" the following words must be understood, namely, "to some living human body or other" [it need not be a particular persons body according to illustration (a) and it may even be the body of another living person than the one intended actually that received the injury]. The case of The Emperor v. Dalu Sardar [(1914) 18 CWN 1279] is almost exactly a similar case to the present. Though (as my learned brother points out) the Judges refer only to the intention to kill and not the intention to cause bodily injury likely to cause death, the two stand clearly on the same footing.

Emperor v. Mt. Dhirajia

As regards Mr. Osborne's argument that a person who does an unlawful act, such as trying to conceal a murder, should take the consequences of the same if the act done in furtherance of that unlawful intention results unintentionally in homicide, I need refer only to illustration (c) to section 299 which indicates that the Indian legislature did not wish to import the artificial rules of the English Law of felony into the Indian Criminal Law. A similar case in Queen-Empress v. Khandu [(1891) I.L.R. 15 Bom. 194] contains observations by Sargeant, C.J., and Birdwood, J., that "what occurred from first to last cannot be regarded as one continuous act done with the intention of killing the deceased" and I agree with them respectfully. As regards the case, Gour Gobindo Thakoor [(1866) 6 W.R. (Cr. R.), 55], no final opinion was expressed, and the fact that the accused hastily and recklessly came to the conclusion that the woman was dead might make him liable for punishment under section 304-A (causing death by doing rash or negligent act) but not under culpable homicide, Sections 300 and 304 having the same relation to each other as section 325 and section 338 relating to grievous hurt.

WALLIS, C.J . - The accused was convicted of murder by the Sessions Judge of
Coimbatore. He appealed to this Court, which took a different view of the facts from that taken by the learned Sessions Judge and has referred to us the question whether on the facts as found by the learned Judges who composed it, the accused has in law committed the offence of murder. Napier, J. inclined to the view that he had: Sadasiva Ayyar, J., thought he had not. The facts as found are these: the accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He believed her to be dead and in order to lay the foundation for a false defence of suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a rope. In fact the first blow was not a fatal one and the cause of death was asphyxiation by hanging which was the act of the accused. When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constituted the crime of murder or even culpable homicide. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law this would clearly not be murder but man slaughter on the general principles of Common Law. In India every offence is defined both as to what must be done and with what intention it must be done by the section of the Penal Code which creates it a crime. There are certain general exceptions laid down in chapter IV, but none of them fits the present case. We must therefore turn to the defining section 299. Section 299 defines culpable homicide as the act of causing death with one of three intentions: (a) of causing death, (b) of causing such bodily injury as is likely to cause death, (c) of doing something which the accused knows to be likely to cause death. It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. "Causing death" may be paraphrased as putting an end to human life: and thus all three intentions must be directed

either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to a human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man cuts the head off from a human body, he does an act which he knows will put an end to life, if it exists. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. Complications may arise when it is arguable that the two acts of the accused should be treated as being really one transaction as is Queen-Empress v. Khandu [(1891) I.L.R. 15 Bom. 194] or when the facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and ignorance as to whether the body he handled was alive or dead, as in Gour Gobindo case [(1866) 6 W.R. (Cri R.) 55]. The facts as the same as those found in The Emperor v. Dalu Sardar [(1914) 18 CWN 1279]. We agree with the decision of the learned Judges in that case and with clear intimation of opinion by Sargeant, C.J. in Queen-Empress v. Khandu [(1891) I.L.R. 15 Bom. 194]. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can of course be punished both for his original assault on his wife and for his attempt to create false evidence by hanging her. These, however, are matters for the consideration and determination of the referring Bench. [When the case came on again for hearing before the Division Bench, the court convicted the accused of grievous hurt under section 326, Indian Penal Code.-Ed.]. *****

In Re Thavamani
AIR 1943 Mad. 571

KING, J. - The appellant here was accused 2 prosecuted before the learned Sessions Judge
of Ramnad for the murder of a woman named Meenakshi Achi on the evening of the 26th September last. The deceased was admittedly murdered in her flower garden about6 11/2 furlongs away from the village. Her dead body was found on 27th September in a well in the garden. Two persons were prosecuted for the murder. Accused 1 who was eventually acquitted, was the gardener employed in the garden. Accused 2 was an acquaintance of his, who was in need of money at the time. There is no direct evidence of from the post mortem certificate or the testimony of the doctor as to the cause of death. The body when found had marks of three punctured wounds upon the head; but those wounds by themselves according to the doctor would not be sufficient to cause death. The principal evidence upon which accused 2 was convicted comes from his own conduct. He has given a statement to the police as a result of which he has informed them of the existence of P.W. 15, who confirms his story that the two accused sold to him (P.W. 15) part of a chain which had been worn by the deceased at the time of her death. The evidence of P.W.15 and P.W. 16 taken together shows that the proceeds of the sale of this portion of the chain were divided between the two accused. There is also a confessional statement made by accused 2 before the Taluk Magistrate of Tirupatttur. He explains how he was induced by accused 1 to assist accused in the killing of the deceased. After the first attack had been made upon the deceased he (Accused 2) prevented her from leaving the garden and then seized her legs and held her tight while, according to the confession, the murder was completed. After she had died, Accused 1 and 2 threw the body into the well. The significance of this confession which has been so signally confirmed by the discovery of P.W. 15 and P.W. 16 and the chain which was sold to the former, as proving a case of the commission of some offence against the appellant, has not been challenged in argument before us. But it is argued that the medical evidence taken in conjunction with the confession shows that there could not have been any intention on the part of accused 2 to commit murder and therefore he cannot be found guilty under section 302, Penal Code. Great stress is laid upon the statement in the confession that the deceased had died and that her dead body had been thrown into the well. The doctor on the other hand gives evidence that the only marks of external injury which he saw were of injuries which were insufficient to cause death. It is accordingly argued that accused 2 was under a misapprehension when he thought that the deceased was dead and that the blows which accused 1 with his assistance had struck at the deceased had not therefore caused her death. Whatever therefore may have been the intention of the accused in striking those blows, that intention had not been effected. The action of the appellant and accused 1 in throwing the body into the well could not possibly be in pursuance of an intention to cause her death, as they already believed that she was dead. Reliance in support of this position is placed upon the decision in 42 Mad. 547. The learned Sessions Judge however has refused to follow that ruling and has followed instead the later ruling reported in 57 Mad. 158. It is true that in this later case there was no definite plea

by the accused that at the time when he put the body of the deceased upon the railway line he thought she was dead, whereas here according to the argument the confession does contain a statement equivalent to the expression of a belief that the deceased was already dead when the body was thrown into the well. But that is not the most important point of distinction between 42 Mad. 547 and 57 Mad. 158 at p. 171. The main point of distinction between the two cases is this, that in 42 Mad. 547 there was never at any time an intention to cause death. The original intention was only to cause injury. The second intention was only to dispose of a supposedly dead body in a way convenient for the defence which the accused was about to set up. In 57 Mad. 158, however, and, in the present case, it is clear that there was at the beginning an intention to cause death. This intention was apparently completely carried into effect but in fact was not. Even if the intention at the second stage of the transaction had been merely to dispose of a dead body, as is pointed out in 57 Mad. 158, the two phases of the same transaction are so closely connected in time and purpose that they must be considered as parts of the same transaction. The result of the actions of the accused taken as a whole clearly is to carry out the intention to kill with which they began to act. It seems to us that there is no satisfactory reason for distinguishing the facts of the present case from the ruling in 57 Mad. 158 and that the learned Sessions Judge rightly relied upon that ruling in holding that, even if at the time when the woman was thrown into the well she was alive, and even if the appellant then thought her dead he would be guilty of murder. The conviction of the appellant for murder must therefore stand. There are clearly no extenuating circumstances of any kind in this case and the sentence of death is the only one appropriate to the circumstances. We accordingly confirm the sentence and dismiss the appeal. *****

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Emperor v. Mt. Dhirajia

Emperor v. Mushnooru Suryanarayana Murthy

(1912) MLJR 333 (Mad.)

BENSON, J. This is an appeal by the Public Prosecutor on behalf of the Government

against the acquittal of one Suryanarayana Murthy, on a charge of having murdered the girl, Rajalakshmi. The facts of the case, so far as it is necessary to state them for the purposes of this appeal, are as follows: The accused, with the intention killing Appala Narasimhulu, (on whose life he had effected large insurances without Appala Narasimhulu's knowledge, and in order to obtain the sums for which he was insured), gave him some sweetmeat (halva) in which a poison containing arsenic and mercury in soluble form had been mixed. Appala Narasimhulu ate a portion of the sweetmeat, and threw the rest away. This occurred at the house of the accused's brother-in-law where the accused had asked Appala Narasimhulu to meet him. Rajalakshmi, who was aged 8 or 9 years, and who was niece of the accused, being the daughter of accused's brother-in-law, took some of the sweetmeat and ate it and gave some to another little child who also ate it. According to one account Rajalakshmi asked the accused for a portion of the sweetmeat, but according to the other account, which we accept as the true account, Appala Narasimhulu, after eating a portion of the sweetmeat threw away the remainder, and it was then picked up by Rajalakshmi without the knowledge of the accused. The two children who had eaten the poisoned sweetmeat, died from the effects of it, but Appala Narasimhulu, though the poison severely affected him, eventually recovered. The accused has been sentenced to transportation for life for having attempted to murder Appala Narasimhulu. The question which we have to consider in this appeal is whether, on the facts stated above, the accused is guilty of the murder of Rajalakshmi. I am of the opinion that the accused did cause the death of Rajalakshmi and is guilty of her murder. The law on the subject is contained in Sections 299 to 301 of the Indian Penal Code and the whole question is whether it can properly be said that, the accused caused the death of the girl, in the ordinary sense in which those words should be understood, or whether the accused was so indirectly or remotely connected with her death that he cannot properly be said to have caused it. It is not contended before us that the accused intended to cause the death of the girl, and we may take it for the purpose of this appeal that he did not know that his act was even likely to cause her death. But it is clear that he did intend to cause the death of Appala Narasimhulu. In order to effect this he concealed poison in a sweetmeat and gave it to him eat. It was these acts of the accused which caused the death of the girl, though no doubt her own action, in ignorantly picking up and eating the poison, contributed to bring about the result. Section 299 of the Indian Penal Code says: 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. It is to be observed that the section does not require that the offender should intend to kill (or know himself to be likely to kill) any particular person. It is enough if he causes the death of any one, whether the person intended to be killed or any one else. This is clear from the first illustration to the section, A lays sticks and turf over a pit, with the intention of thereby causing death, or with the

knowledge that death is likely to be thereby caused Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. Nor is it necessary that the death should be caused directly by the action of the offender, without contributory action by the person whose death is caused or by some other person. That contributory action by the person whose death is caused will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the above illustration, and that contributory action by a third person will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the second illustration, viz. A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause, Zs death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. The language of the section and the illustration seem to me to show that neither the contributory action of Appala Narasimhulu in throwing away part of the sweetmeat, nor the contributory action of the girl in picking it up and eating it prevent our holding that it was the accused who caused the girl's death. The Indian Law Commissioners in their report (1846) on the Indian Penal Code call attention to the unqualified use of the words to cause death in the definition of culpable homicide, and rightly point out that there is a great difference between acts which cause death immediately, and acts which cause death remotely, and they point out that the difference is a matter to be considered by the courts when estimating the effect of the evidence in each case. Almost all, perhaps all, results are caused by a combination of causes, yet we ordinarily speak of a result as caused by the most conspicuous or efficient cause, without specifying all the contributory causes. In Websters Dictionary cause is defined as that which produces or effects a result; that from which anything proceeds and without which it would not exist and again the general idea of cause is that without which another thing, called the effect, cannot be; and it is divided by Aristotle into four kinds known by a name of the material, the formal, the efficient and the final cause. The efficient cause is the agent that is prominent or conspicuous in producing a change or result. In the present case I think that the accuseds action was the efficient cause of the girls death, though her own action in picking up and eating the poison was also necessary in order to effect her death; just as in the illustration given in the Code the man who laid the turf and sticks over the pit with the intention of causing death was held to be the cause of the death of the man who ignorantly fell into the pit; although the death would not have occurred if he had not of his own free will walked to the spot where the pit was. The Code says that the man who made the pit is guilty of culpable homicide, and, in my opinion, the accused in the present case, who mixed the poison in sweetmeat and gave it to be eaten, is equally guilty of that offence. The mens rea which is essential to criminal responsibility existed with reference to the act done by the accused in attempting to kill Appala Narasimhulu, though not in regard to the girl whose death he, in fact, caused, and that is all that the section requires. It does not say whoever voluntarily causes death, or require that the death actually caused should have been voluntarily caused. It is sufficient if death is actually, even though involuntarily, caused to one person by an act intended to cause the death of another. It is the criminality of the

12

Emperor v. Mt. Dhirajia

intention with regard to the latter that makes the act done and the consequence which follows from it an offence. Turning now to Section 301, Indian Penal Code, we find that culpable homicide is murder if the act by which death is caused is done with the intention of causing death, and does not fall within certain specified exceptions, none of which are applicable to the present case. It follows that the accused in the present case is guilty of murder, and this is rendered still more clear by Section 301 of the Code. The cases in which culpable homicide is murder under Section 301 are not confined to cases in which the act by which the death is caused is done with the intention of causing death. Section 301 specifies other degrees of intention or knowledge which may cause the act to amount to murder; and then Section 301 enacts that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. The section does not enact any rule deducible from the two preceding sections, but it declares in plain language an important rule deducible, as we have seen, from those sections, just as an explanation to either Section 299 or Section 300, as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section. The rule makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, now knew himself to be likely, to kill, a rule which though it does not lie on the surface of Section 299, yet is, as we have seen, deducible from the generality of the words causes death and from the illustration to the section; and the rule then goes on to state that the quality of the homicide, that is, whether it amounts to murder or not, will depend on the intention or knowledge which the offender had in regard to the person intended or known to be likely to be killed or injured, and not with reference to his intention or knowledge with reference to the person actually killed, a rule deducible from the language of the Sections 299 and 300 though not perhaps, lying on their very surface. The conclusion, then, at which I arrive, is that the accused in this case is guilty of murder as defined in Sections 299 to 300, Indian Penal Code. This conclusion is in accord with the view of Norman, Offg., C. J., and Jackson, J., in the case reported in 13 W.R. Criminal Letters, p. 2, where it said: The prisoner gave some poisoned rice water to an old woman who drank part herself and gave part to a little girl who died from the effect of the poison. The offence of the prisoner, under Section 301 of the Indian Penal Code, is murder. That the present accused would be guilty of murder under English Law is clear from the case of Agnes Gore. In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband, which he ate but which did not kill him, but afterwards killed the Apothecary, who to vindicate his reputation, tasted it himself, having first stirred it about. It was resolved by all the Judges that the said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence ensued; i.e. the death of the said Martin; for the putting of the poison into the electuary is the occasion and cause; and the poisoning and death of the said Martin is the event, quia eventus

est qui ex causa sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary by the Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death. (King's Bench 77 English Reports, p. 853 at p. 854) A number of other English cases have been referred to, but it is unnecessary to discuss them as we must decide the case in accordance with the provisions of the Indian Penal Code, and these are not necessarily the same as the English Law. In the result, I would allow the appeal by Government and convict the accused of the murder of Rajalakshmi. The accused was originally sentenced to seven years rigorous imprisonment for having attempted to murder Appala Narasimhulu. This sentence was enhanced to one of transportation for the life by this court acting as a court of revision in December, 1910, when this appeal was not before them. Looking to these facts I am unwilling to now impose a sentence of death, though it would have been appropriate if the accused had been convicted of murder at the original trial.

SUNDARA AIYER, J. In this case the accused Suryanarayana Murthy was charged by
the Sessions Court of Ganjam with the murder of a young girl named Rajalakshmi and with attempt to murder one Appala Narasimhulu by administering poison to each of them on the 9th February 1910. He was convicted by the Sessions Court on the latter count but was acquitted on the former count and was sentenced to seven years' rigorous imprisonment. He appealed against the conviction and sentence in Criminal Appeal No. 522 of 1910, and this court confirmed the conviction and enhanced the sentence to transportation for life. The present appeal is by the Government against his acquittal on the charge of murdering Rajalakshmi. The facts as found by the lower court are that the accused, who was a clerk in the Settlement Office at Chicacole, got the life of Appala Narasimhulu, the prosecution 1st witness, insured in two Insurance Companies for the sum of Rs. 4,000 in all having paid the premium himself; that the 2nd premium for one of the insurances fell due on the 12th January, 1910, and the grace period for its payment would elapse on the 12th February, 1910, that the prosecution 1st witness being at the same time badly pressed for means of subsistence asked the accused for money on the morning of 9th February; that the latter asked him to meet him in the evening at the house of his (the accused's) brother-in-law, the prosecution 8th witness; that at the house the accused gave the prosecution 1st witness a white substance which he called 'halva' but which really contained arsenic and mercury in soluble form; that the prosecution 1st witness having eaten a portion of the halva threw aside the rest; that it was picked up by the daughter of the prosecution 8th witness, the deceased Rajalakshmi, who ate a portion of it herself and gave another portion to child of a neighbour; and that both Rajalakshmi and the other child were seized with vomiting and purging and finally died, Rajalakshmi some four days after she ate the halva and the child two days earlier. After the prosecution 1st witness had thrown away the halva both he and the accused went to the bazaar and the accused gave prosecution 1st witness some more halva. The prosecution 1st witness suffered in consequence for a number of days but survived. The accused, as already stated,

14

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has been sentenced to transportation for life for attempting to murder the prosecution 1st witness. The case for the prosecution with reference to the poisoning of Rajalakshmi was, as sworn to by the prosecution 1st witness, that, when the accused gave him the halva, the girl asked for a piece of it and that the accused, though he reprimanded her at first, gave her a small portion. But I agree with the learned Sessions Judge that this story is improbable. The girl was the accused's own niece being his sister's daughter. He and her father (the prosecution 8th witness) were on good terms. He had absolutely no motive to kill her, and there was no necessity for giving her the halva. The accused, in his statement to the Magistrate (the prosecution 22nd witness) soon after the occurrence, said that the girl had picked up the halva and eaten it. He had made a similar statement to the prosecution 8th witness when the latter returned to his house on the evening of the 9th immediately after the girl had eaten it. This statement is in accordance with the probabilities of the case, and I accept the Sessions Judge's finding that the halva was not given to the girl by the accused but, picked up by her after the prosecution 1st witness had thrown it way. The question we have to decide is whether, on these facts, the accused is guilty of the murder of the girl. At the conclusion of the arguments we took time to consider our judgment, as the point appeared to us to be one of considerable importance, but we intimated that, we would not consider it necessary, in the circumstances, to inflict on him the extreme penalty of the law. It is clear that the accused had no intention of causing the death of the girl Rajalakshmi. But it is contended that the accused is guilty of murder as he had the intention of causing the death of the prosecution 1st witness, and it is immaterial that the had not the intention of causing the death of the girl herself. Section 299, Indian Penal Code, enacts that whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 300 says culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Section 301 lays down that "if a person, by doing anything which he intends or knows to be likely to cause death commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. The contention of the learned Public Prosecutor, to put it very shortly, is (1) that it was the accused's act that caused the death of the girl and (2) that the accused had the intention of causing death when he gave the poison to the prosecution 1st witness and was, therefore, guilty of any death that resulted from his act. He urges that the sections of the Penal Code practically reproduce the English Law according to which the causing of death with malice aforethought, though the malice may not be directed against a particular individual whose death ensues, would amount to murder. Before referring to the English Law, I shall consider the provisions of the Penal Code bearing on the subject. If Mr. Napier's contention be sound it would make no difference whether Appala Narasimhulu, the prosecution 1st witness, also died in consequence of the poison or not; nor would it make any difference if, instead of the poison being picked up by the girl and eaten by herself, she gave it to some one else and that one to another again and so on if it changed any number of hands. The accused would be guilty of the murder of one and all of the persons who might take the

poison, though it might have been impossible for him to imagine that it would change hands in the manner that it did. The contention practically amounts to saying that the intervention of other agencies, and of any number of them, before death results, would make no difference in the guilt of the accused, that causing death does not mean being the proximate cause of the death, but merely being a link in the chain of the cause or events leading to the death and that further any knowledge on the part of the accused that such a chain of events might result from his act is quite immaterial. It is, prima facie, difficult to uphold such an argument. Now is there anything in the Sections of the Penal Code to support it? Section 39 provides that "a person is said to cause an effect 'voluntarily' when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." The illustration to the section is that if a person sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery, and thus causes the death of a person, he would be taken to have caused the death voluntarily if he knew that he was likely to cause death and may even be sorry that death had been caused by his act. The section and the illustration both show that causation with respect to any event involves that the person should have knowledge that the event was likely to result from his act. Section 299, Indian Penal Code, in my opinion, does not lead to a different conclusion. But before dealing with it, I must turn to Section 301, Indian Penal Code. That section apparently applies to a case where the death of the person, whose death was intended or known to be likely to occur by the person doing the act, does not, as a fact occur but the death of some one else occurs as the result of the act done by him. It evidently does not apply where the death both of the person, whose death was in contemplation, and of another person or persons, has occurred. Can it be said that, in such a case, the doer of the act is guilty with reference to those whose death was not intended by him and could not have been foreseen by him as likely to occur? Are we to hold that a man who knows that his act is likely to cause the death of one person is guilty of the death of all the others who happen to die, but whose death was far beyond his imagination? Such a proposition it is impossible to maintain in criminal law. Section 301 of the Indian Penal Code has reference to a case where a person intending to cause the death of A, say by striking or shooting him, kills B because B is in the place where he imagined A to be, or B rushes in to save A and receives the injury intended for A. The reason for no exculpating the wrong-doer in such cases is that he must take the risk of some other person being in the place where he expected to find A, or, of some one else intervening between him and A. The section is a qualification of the rule laid down in Section 299 and is evidently confined to cases where the death of the person intended to known to be likely to be killed does not result. If the public Prosecutor's general proposition were right, Section 301 of the Indian Penal Code would seem to be unnecessary, as Section 299 would be quite enough. If a person is intended by Section 299 to be held to be guilty for deaths which are not known to be likely to occur, then that section might itself have been worded differently so as to show that the particular death caused need not have been intended or foreseen and what is more important, Section 301 of the Indian Penal Code would not be limited to cases where the death of the particular individual intended or foreseen does not occur. The general theory of the criminal law is that the doer of an act is responsible only for the consequences intended or known to be likely to ensue; for otherwise he could not be said to have caused the effect voluntarily, and a person is not responsible for the involuntary effects of his acts.

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Illustrations A and B, in my opinion, support this view. Sections 323 and 324 show that a person is responsible in the case of hurt or grievous hurt only for what he causes voluntarily; and Section 321 shows that hurt to the particular person in question must have been intended or foreseen. In the eye of the law, no doubt, a man will be taken to have foreseen what an ordinary individual ought to foresee, and it will not be open to him to plead that he himself was so foolish as, in fact, not to foresee the consequence of his act. A person might, in some cases, be responsible for effects of which his act is not the proximate cause where the effect is likely to arise in the ordinary course of events to result from the act. This rule will certainly hold good where a person's act set in motion only physical causes which lead to the effects actually occurring; when the effect is not due merely to physical causes set in operation by an act, but other persons' wills intervening are equally necessary causes with the original act to lead to the result, it is more difficult to decide whether the act in question can be said to be the cause of the effect finally produced. The Code throws very little light on the question. Ordinarily, a man is not criminally responsible for the acts of another person, and ordinarily his act should not be held to be the cause of a consequence which would not result without the intervention of another human agency. Sir J. Fitz James Stephen in his History of the Criminal Law of England, Vol. III, p. 8, says: A more remarkable set of cases are those in which death is caused by some act which does unquestionably cause it, but does so through the intervention of the independent voluntary act of some other person. Suppose, for instance, A tells B of facts which operate as a motive to B for the murder of C. It would be an abuse of language to say that A had killed C, though no doubt he has been the remote cause of Cs death. The learned author proceeds to point out that, even when a person counsels, procures or commands another to do an act, he would be only guilty as an abettor but not as a principal offender whose act caused the result, say murder. This is the well settled principle of the English Law, though there appear to be one or two exceptions, to be hereafter pointed out. No such exceptions are mentioned in the Indian Code. They may perhaps be recognised where the doer of the act knew that it would be likely that his own act would lead other persons, not acting wrongfully, to act in such a manner as to cause the effect actually produced. But the scope of the exceptions cannot cover those cases where the doer could not foresee that other persons would act in the manner indicated above. This is the principle adopted in determining civil liability for wrongs. See the discussion of the question in Baker v. Snell [(1908) 2 KB 825]. A stricter rule cannot be applied in cases of criminal liability. Now, can it be said that the accused, in this case, knew it to be likely that the prosecution 1st witness would give a portion of the girl Rajalakshmi? According to Section 26 of the Indian Penal Code a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise. A trader who sells a basket of poisoned oranges may be said to have sufficient 'reason to believe' that the buyer would give them to various persons to eat; but one who gives a slice of an orange to another to eat on the spot could not be said to have sufficient reason to believe that he would give half of that slice to another person to eat or that he would throw away a portion and that another would eat it. The poison was thrown aside here not by the accused but by the prosecution 1st witness. The girl's death could not have been caused but for the intervention of the prosecution 1st witness's agency. The case, in my opinion, is not one covered by Section 301 of the Indian Penal Code. The conclusion, therefore, appears to follow that the accused is not guilty of culpable homicide by

doing an act which caused the death of the girl. Mr. Napier, as already mentioned, has contended that the law in this country on the question is really the same as in England; and he relies on two English cases in support of his contention, viz., Saunder case and Agnes Gore case. I may preface my observations on the English Law by citing Mr. Mayne's remark that culpable homicide is perhaps the one branch of criminal law in which an Indian student must be most careful in accepting the guidance of English authorities. According to the English Law murder is the unlawful killing, by any person of sound memory and discretion, of any person under the Kings peace, with malice aforethought, either express or implied by law. This malice aforethought which distinguishes murder from other species of homicide is not limited to particular ill-will against the persons slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. Any formed design of doing mischief may be called malice; and therefore, not only killing from premeditated hatred or revenge against the person killed, but also, in many other cases, killing accompanied with circumstances that show the heart to be previously wicked is adjudged to be killing of malice aforethought and, consequently, murder. - RUSSELL on Crimes and Misdemeanours, 7th Edition, Volume I, p. 655. It will be observed that, in this definition, malice is made an essential requisite, and all cases have to be brought under it. Knowledge that the act is likely to cause death is not part of the definition. Nor have we any words to import what is contained in the explanations to Section 299 of the Indian Penal Code or in Cls. 2, 3 and 4 of Section 300. The law was worked out of England to its present condition by a series of judicial decisions. This accounts for the statement that general malice is enough and that it need not be directed against the particular individual killed. Hence also the proposition that wicked intention to injure is enough and intention to kill that individual is not necessary. See Roscoes Criminal Evidence, 13th Edition, pages 617 to 619. Malice again is explained to mean malice implied by law as well as malice in fact. The result is, the law in England is not as different from that in India as a comparison of the definitions might, at first sight, indicate. This is apparent from the statement of the English Law at pp. 20-22, Vol. III of Stephens History of the Criminal Law. The statement, however, shows that the law is not identical in both countries. In England an intention to commit any felony will make the act murder if death results. Again if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a crime, the inciter is the principal ex necessitate, though absent when the thing was done. In point of law, the act if he were innocent agent is as much the act of the procurer as if he were present and did the act himself. See Russell on Crimes, Vol. I, page 104. The Indian law does not make the abettor guilty of the principal offence in such circumstances. There is also a presumption in the English Law that all homicide is malicious and murder, until the contrary appears from circumstances of alleviation, excuse or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and Jury, unless they arise out of the evidence produced against him. There is no such presumption here. In Saunder case as stated in Roscoes Criminal Evidence, p. 154, the prisoner intending to poison his wife gave her a poisoned apple which she, ignorant of its nature gave to a child who took it and died. This was held murder in the husband, although being present he endeavoured to dissuade his wife from giving it to the child. In Hales Pleas of the Crown, Vol. I, p. 436, it is not stated

18

Emperor v. Mt. Dhirajia

that the prisoner endeavoured to dissuade his wife from giving the apple to the child. On the other hand, the author says: If A commands or counsels B to kill C and before the fact is done A repents and comes to B and expressly discharges him from the fact and countermands it, if after this countermand B does it, it is murder in B; but A is not accessory." The decision apparently proceeded on the English rule that the innocence of the intervening agent had the effect of holding the prisoner liable as the principal offender. In Agnes Gore's case, the wife who mixed ratsbane in a potion sent by the apothecary to her husband which did not kill him but killed the apothecary who, to vindicate his reputation, tasted it himself, having first stirred it up, was held guilty of murder because the wife had the intention of killing the husband though not of killing the apothecary. It is possible that an Indian court may hold in such a case that it was the duty of the wife to warn and prevent the apothecary from tasting the potion and that she was guilty of an illegal omission in not doing so. Whether the case might not come under Section 301, Indian Penal Code, also it is unnecessary to consider. In The Queen v. Latimer the prisoner, in striking at a man, struck and wounded a woman under 24 and 25 Vic., C. 100 Section 20, for unlawfully and maliciously wounding her, the Jury found that the blow 'was unlawful and malicious and did in fact wound her, but that the striking of her was purely accidental and not such a consequence of the blow as the prisoner ought to have expected. The Court of Crown Cases Reserved held that the prisoner was guilty. The decision proceeded upon the words of statute. Section 18 enacted that whosoever shall unlawfully and maliciously cause any grievous bodily harm to any person with malicious intent shall be guilty of felony. Then Section 20, leaving out the intent, provided any grievous bodily harm upon any other person shall be guilty of misdemeanour. Lord Coleridge, C. J., pointed out that the language of Sections 18 and 20 was different and that the intention should be against the person injured. In Regina v. Michael, where a bottle containing poison was put on the mantel-piece where a little child found it and gave part of the contents to the prisoner' child who soon after died, the Judges were of opinion that the administering of the poison by the child was under the circumstances of the case as much in point of law an administering by the prisoner as if the prisoner had actually administered it with her own hand. This decision also, no doubt, proceeded on the ground of want of discretion in the intervener, the child. The Indian courts may hold that a person who keeps poison at a place where others might have access to it must be taken to know that death is likely to result from the act. It is clear that English decisions are not always a safe guide in deciding cases in this country where the provisions of the Penal Code must be applied. In Shankar Balkrishna v. King-Emperor, the Calcutta High Court held that the prisoner in the case, an Assistant Railway Station Master, was not liable where death would not have resulted if the guard had not acted carelessly, as the prisoner could not be taken to know that the accident to the train which resulted in the loss of human life was likely to lead to death. In Empress v. Sahae Rae, which may be usefully compared with The Queen v. Latimer and where also the prisoner was held guilty, the decision was put on the ground that the prisoner knew it to be likely that the blow would fall on a person for whom he had not intended it. Holding, as I do, that, in the circumstances of this case, the prisoner could not be said to have known that it was likely that the prosecution 1st witness would throw aside the halva so as to be picked up and eaten by some one else and that the prisoner was not responsible, in the circumstances, for the voluntary act of prosecution 1st witness, I must come to the conclusion that the prisoner is not

guilty of the murder of the girl Rajalakshmi. It is not contended that there was a legal duty on the part of the accused to prevent the girl from eating the halva and that he was guilty of murder by an illegal omission. I would uphold the finding of acquittal of the lower court and dismiss the appeal.

BENSON, J.- As we differ in our opinion as to the guilt of the accused, the case will be laid another Judge of this court, with our opinions under Section 429, Criminal Procedure Code. This appeal coming on for hearing under the provisions of Section 429 of the Code Criminal Procedure. RAHIM, J. - The question for decision is whether the accused Suryanarayanamurthy is
guilty of an offence under Section 302, Indian Penal Code, in the following circumstances. He wanted to kill one Appala Narasimhulu on whose life he had effected rather large insurances and for that purpose gave him some halva (a sort of sweet meat), in which he had mixed arsenic and mercury in a soluble form, to eat. This was at the house of the accused's brotherin-law, where Appala Narasimhulu had called by appointment. The man ate a portion of the halva, but not liking its taste threw away the remainder on the spot. Then, according to the view of the evidence accepted by my learned brothers Benson and Sundara Aiyar JJ., as well as by the Sessions Judge, a girl of 8 or 9 years named Rajalakshmi, the daughter of the accused's brother-in-law, picked up the poisoned halva, ate a portion of it herself, and gave some to another child of the house. Both the children died of the effects of the poison, but Appala Narasimhulu, the intended victim, survived though after considerable suffering. It is also found as a fact, and I agree with the finding, that Rajalakshmi and the other girl ate the halva without the knowledge of the accused, who did not intend to cause their deaths. Upon these facts Benson J. would find the accused guilty of the murder of Rajalakshmi, while Sundara Aiyar J., agreeing with the Sessions Judge, holds a contrary view. The question depends upon the provisions of the Indian Penal Code on the subject as contained in Sections 299 to 301. The first point for enquiry is whether the definition of culpable homicide as given in Section 299 requires that the accused's intention to cause death or his knowledge that death is likely to be caused by such act, or is it sufficient for the purposes of the section if criminal intention or knowledge on the part of the accused existed with reference to any human being, though the death of the person who actually fell a victim to the accused's act was never compassed by him. I find nothing in the words of the section which would justify the limited construction. Section 299 says: "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 language is perfectly general; all that it requires is that there should be an intention to cause death or a knowledge that death is likely to be the result, and there is nothing in reason which, in my opinion, would warrant us in saying that the homicidal intention or knowledge must be with reference to the life of the person whose death is actually caused. The law affords protection equally to the lives of all persons, and once the criminal intention, that is, an intention to destroy human life, is found, I do not see why it should make any difference whether the act done with such intention causes

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Emperor v. Mt. Dhirajia

the death of the person aimed at or of some one else. Illustration (a) to Section 299 makes it quite clear that the legislature deliberately employed general and unqualified language in order to cover cases where the person whose death is caused by the act of the accused was not the person intended to be killed by him but some other person. Section 301 also supports this construction as it assumes that the accused in such cases would be guilty of culpable homicide; and I may here point out that the object of this section is to lay down that the nature of culpable homicide of which the accused in these cases would be guilty, namely whether murder or not, would be the same as he would have been guilty of, if the person whose death was intended to be brought about had been killed. Now the first paragraph of Section 300 declares that culpable homicide shall be deemed to be murder if the act by which death is caused is done with the intention of causing death, using so far the very words of Section 299. In the 2nd and 3rd paragraphs of Section 300 the language is not quite identical with that of the corresponding provisions in Section 299, and questions may possibly arise whether where the fatal act was done not with the intention of causing death but with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the accused is likely by such act to cause death, the offence would be one of murder or culpable homicide not amounting to murder. But it is not necessary for me to express any opinion on these matters as in the present case the prisoner undoubtedly intended to cause death. The next point for consideration is whether the death of Rajalakshmi was caused by the accused's act within the meaning of Section 299. The question is really one of fact or of proper inference to be drawn from the facts. That girl's death was caused by eating the sweetmeat in which the accused had mixed poison and which he brought to the house where the girl lived in order to give it to the man for whom it was intended. It was given to him, but he, not relishing the taste of it, threw it down. The deceased girl soon afterwards picked it up and ate it. But the accused was not present when Rajalakshmi ate it, and we may even take it that, if the accused had been present, he would have prevented the girl from eating the sweetmeat. These being the facts, there can be, however, no doubt, that the act of the accused in mixing arsenic in the halva and giving it to Appala Narasimhulu in Rajalakshmi's house was one cause in the chain of causes which brought about the girl's death. The question then is whether this act of the accused was such a cause of Rajalakshmi's death as to justify us in imputing it to such act. In my opinion it was. Obviously it is not possible to lay down any general test as to what should be regarded in criminal law as the responsible cause of a certain result when that result, as it often happens, is due to a series of causes. We have to consider in each case the relative value and efficiency of the different causes in producing the effect and then to say whether responsibility should be assigned to a particular act or not as the proximate and efficient cause. But it may be observed that it cannot be a sufficient criterion in this connection whether the effect could have been produced in the case in question without a particular cause, for it is involved in the very idea of a cause that the result could not have been produced without it. Nor would it be correct to lay down generally that the intervention of the act of a voluntary agent must necessarily absolve the person between whose act and the result it intervenes. For instance, if A mixes poison in the food of B with the intention of killing B and B eats the food and is killed thereby, A would be guilty of murder even though the eating of the poisoned food which was the voluntary act of B intervened between the act of A and B's death. So here the throwing aside of the sweetmeat by Appala Narasimhulu and

the picking and the eating of it by Rajalakshmi cannot absolve the accused from responsibility for his act. No doubt the intervening acts or events may sometimes be such as to deprive the earlier act of the character of an efficient cause. Now, suppose, in this case Appala Narasimhulu had discovered that the sweetmeat was poisoned and then gave it to Rajalakshmi to eat, it is to his act that Rajalakshmi's death would be attributed and not to the accused's. Or suppose Appala Narasimhulu, either suspecting that the sweetmeat was poisoned or merely thinking that it was not fit to be eaten, threw it away in some unfrequented place so as to put it out of harm's way and Rajalakshmi happening afterwards to pass that way, picked it up, and ate it and was killed, the act of the accused in mixing the poison in the sweetmeat could in that case hardly be said to have caused her death within the meaning of Section 299. On the other hand, suppose Appala Narasimhulu, finding Rajalakshmi standing near him and without suspecting that there was anything wrong with the sweetmeat, gives a portion of it to her and she ate it and was killed, could be said that the accused who had given the poisoned sweetmeat to Appala Narasimhulu was not responsible for the death of Rajalakshmi? I think not. And there is really no difference between such a case and the present case. The ruling reported in 13 R. Cr. Letters, p. 2, also supports the view of the law which I have tried to express. Reference has been made to the English Law on the point and though the case must be decided solely upon the provisions of the Indian Penal Code, I may observe that there can be no doubt that under the English Law as well the accused would be guilty of murder. In English Law it is sufficient to show that the act by which death was caused was done with malice aforethought, and it is not necessary that malice should be towards the person whose death has been actually caused. This is well illustrated in the well-known case of Agnes Gore and in Saunder case and also in Regina v. Michael. No doubt "malice aforethought," at least according to the old interpretation of it as including an intention to commit any felony, covers a wider ground in the English Law than the criminal intention or knowledge required by Sections 299 and 300, Indian Penal Code, but the law in Indian on the point in question in this case is undoubtedly, in my opinion, the same as in England. Agreeing therefore with Benson J., I set aside the order of the Sessions Judge acquitting the accused of the charge of murder and convict him of an offence under Section 302, Indian Penal Code. I also agree with him that, in the circumstances of the case, it is not necessary to impose upon the accused the extreme penalty of the law, and I sentence the accused under Section 302, Indian Penal Code, to transportation for life. *****

22

Emperor v. Mt. Dhirajia

Rawalpenta Venkalu v. State of Hyderabad

AIR 1956 SC 171

B.P. SINHA, J. - These two appeals by special leave arise out of the same judgment and
order of a Division Bench of the Hyderabad High Court dated the 15-4-1954 confirming those of the Sessions Judge of Nalgonda dated the 18-1-1954. In Criminal Appeal No. 43 of 1955 Rawalpenta Venkalu is the appellant and in Criminal Appeal No. 44 of 1955, Bodla Ram Narsiah is the appellant. Both these persons have been sentenced to death under Section 302, Indian Penal Code for the murder of Md. Moinuddin, Banjardar of Mohiuddinpur within the jurisdiction of police station Penpabad, Circle Suryapet, District Nalgonda, on the 18-2-1953. They were placed on their trial along with three others who were acquitted by the learned trial Judge. The sentence of death was the subject matter of a reference to the High Court. The two condemned persons also came up in appeal to the High Court which dismissed the appeal and accepted the reference for confirmation of the death sentence. 2. The prosecution case, shortly stated, was that on the night between the 18th and 19-21953 the two appellants along with the three others (acquitted by the learned trial Judge) in pursuance of a conspiracy to commit the murder of Md. Moinuddin had set fire to the single room hut in which he was sleeping, after locking the door of the room from outside. PW 8, an old servant who was sleeping in front of the cottage outside the room occupied by the deceased, was awakened by the noise of the locking of the door from outside. Just at that time Moinuddin also called out for him from inside and asked him to open the door. PW 8 replied that he could not do so as he found the door locked from outside. Three other employees of Moinuddin, viz., PWs 4, 11 and 12 who were watching his harvest about fifty paces away, were also called out by him. When they came near the cottage, they were assaulted by the culprits. Kasim Khan was beaten severely. The two appellants then set fire to the cottage and the employees of Moinuddin were kept at bay by the superior force of the accused and their associates. Those employees naturally, therefore, went towards the main habitation in the village shouting for help. When the villagers came, the appellants and others prevented them from going to the rescue of the helpless inmate of the cottage by throwing dust in their eyes, literally speaking, and by the free use of their sticks. The first information report of the occurrence was lodged at Penpabad police station on the morning of the 19th of February by Yousuf Ali, a cousin of the deceased, to the effect that some goondas of the village had set fire to the cottage occupied by Moinuddin after chaining the outer door, with the result that he was burnt alive and that the villagers who tried to extinguish the fire had been beaten away by those goondas. The villagers thus became terrified and had to retreat to the village. This was hearsay information, as the first informant was not present at the scene of occurrence. The police inspector, after recording the first information, reached the place of occurrence in the morning that day and found the house still burning. He took along with him the doctor of that place and a photographer. The corpse was taken out of the house and inquest and post-mortem examination were held. From the room occupied by the deceased a wrist-watch was also recovered. It had stopped at 11-40. The inference had therefore been drawn that the occurrence must have taken place near about that time as burning heat must have caused the

watch to stop. The police party also recovered from the outer part of the room within the compound burnt matches and one empty match box. 3. Such in short was the case which was investigated by the police. As no one had been named as accused in the first information report, the appellants were not arrested until the 222-1953 and on the 23rd February the appellants are said to have made their confessional statements. Those confessions were recorded by a munsif magistrate. The first appellant Venkalu, it was recorded in that statement, stated that there was tension between the deceased and Bodla Ram Narsiah (the 2nd appellant). After they had been served with toddy and wine they went to the house of the deceased and locked the house with his lock and the second appellant set fire to the house with a match stick. The fire was extinguished by wind. Then the second appellant beat Kasim Khan (one of the employees of the deceased) who was approaching the cottage and again set fire to the house. It is noteworthy that in the second incident of setting fire to the house he gives a part to himself, as also to the second appellant. He also admits having thrown dust in the eyes of people who were rushing from the village side for putting out the fire. 4. The second appellant Bodla Ram Narsiah also speaks about himself and the first appellant drinking wine and after that the first appellant locking the door of the house of the deceased. But he assigns the part of setting fire to the house to the first appellant, whereupon the occupant of the cottage Moinuddin is said to have started shouting for his servants. As the servants were coming near the cottage he admits having dealt a blow to Kasim. He also supports the first appellant in the statement that when the villagers came to the place he began to beat the villagers with a stick and the first appellant began to throw dust in their eyes, with the result that half of the cottage was burnt. It will thus be seen that except for the single difference between the two statements as to who lighted the match stick, on other points the two statements agree. The first appellant includes both of them as having lighted the match stick and set fire to the cottage, whereas the second appellant gives that part to the first appellant alone. But both of them agree in stating that whatever was done was done in pursuance of the common intention of both of them. 5. But the case against the appellant does not depend upon those confessional statements. The prosecution has examined as many as 19 witnesses, of whom PWs 4, 7 and 8 saw the occurrence from the beginning to the end and PWs 11 to 14 also saw the occurrence, though they do not bring the charge directly home to the appellants. PW 8 also does not directly incriminate them. The witnesses who saw the main occurrence of burning agreed in stating that they were frightened by the miscreants and were too afraid to disclose the names of the culprits until the police party arrived along with the servants and relations of the deceased. 6. It has been found by the courts below that there was longstanding dispute between the deceased and the family of the second appellant over land which belonged to the deceased but which was in cultivating possession of the second appellants family. This dispute has been testified to not only by some of the prosecution witnesses, e.g., PWs 17 and 19, but was proved by documentary evidence also. As the motive for the crime, as found by the courts below, has not been challenged before us, we need not say anything more on that question.

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Emperor v. Mt. Dhirajia

7. The appellant in Appeal No. 43 of 1955 was represented before us by Mr Dadachanji and the appellant in Appeal No. 44 of 1955 was represented by Mr Naunit Lal. Both of them have argued in the first place that the confessional statement made by both the accused was not admissible in evidence, firstly, because it had not been voluntarily made and secondly, because the one contradicts the other. It has also been argued that having been retracted at the sessions stage, the confessions are wholly unreliable. In this connection it is enough to point out that the learned Judges of the High Court have in the first instance discussed the positive evidence led by the prosecution to bring the charge home to the accused. They have relied upon the evidence of the two eyewitnesses, namely, PWs 4 and 7. That direct evidence clearly implicating the two appellants has been supported by a large volume of oral evidence of persons who reached the spot while the cottage was still burning. We do not find any good reasons for reopening the findings of the courts below that the oral testimony adduced in this case was by itself sufficient to prove the guilt of the appellants. After discussing and accepting the testimony of the witnesses the High Court observed as follows at the end of its judgment: In addition to the testimony of these two eyewitnesses there are confessions. The confessions of both the accused are fairly detailed and the learned Magistrate who recorded them has certified that it was voluntarily given. The only objection taken to the confession of A-2 before us was that he was suffering from fever and, therefore was not in full possession of his senses. A perusal of the confession has, however, shown that he was in full possession of his mind and even if he suffered from fever, it did not prevent him from giving a detailed confession. We, therefore, hold that the guilt of the accused is proved beyond reasonable doubt. 8. It is to be remarked that these confessional statements were not retracted until the accused were examined by the learned Sessions Judge under Section 342, Criminal Procedure Code. The first appellant, when questioned about the confession, answered that he gave the statement under police pressure. He said he was beaten by the police for three days. But that is clearly a lie because he was, as already indicated, arrested on the 22nd February and the very next day his confessional statement was recorded. The second appellant, when similarly questioned, answered as follows: I do not know whether I had given any statement, because I was severely beaten and then I had fever. It is clear that neither of these two appellants has been able to point to any circumstance which could lead to the conclusion that these confessional statements had been extorted from them. But it is not necessary further to examine the force and effect of these confessional statements because, as pointed out by the High Court in the passage quoted above, the direct testimony against the appellants is clear and cogent enough to bring the charge home to them. 9. It was also argued that no offence under Section 302, Indian Penal Code had been proved against the appellants, firstly, because they only set fire to the cottage and secondly, because there was no charge against either of them under Section 302 read with Section 34, Indian Penal Code. In our opinion, there is no substance in any of these contentions. The intention to kill Moinuddin is clear from the fact deposed to by the prosecution witnesses that

the accused took care to lock the door from outside so that his servant PW 8 sleeping outside could be of no help to the deceased who had thus been trapped in his own cottage. Furthermore, when the villagers were roused from their sleep and were proceeding towards the cottage which was on fire, they were prevented from rendering any effective help to the helpless man, by the use of force against them by the accused. It may be that Moinuddin being the village Patel might not have been very popular with the villagers who were therefore not very keen on saving his life. Be that as it may, the appellants took active steps to prevent the villagers from bringing any succour to the man who was being burnt alive. 10. As regards the frame of the charge, it is clear from the evidence that each one of the two appellants, if not also other persons, actively contributed to the burning of the cottage while the man had been trapped inside. According to the evidence of one of the five witnesses, namely, PW 7, both these appellants lighted a match and set fire to the house. Each one of them therefore severally and in pursuance of the common intention brought about the same results by his own act. It is also noteworthy that to both the appellants the learned Sessions Judge explained the charge against them in these words: You are charged of the offence that you with the assistance of other present accused, with common intention, on 18-2-53 at Mohiuddinpur village, committed murder, by causing the death of Md. Moinuddin. It is clear therefore that though Section 34 is not added to Section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention to put an end to the life of Moinuddin. Hence the omission to mention Section 34 in the charge has only an academic significance, and has not in any way misled the accused. As already indicated, there is clear evidence that both the accused lighted a match stick and set fire to the cottage and each one of them therefore is clearly liable for the offence of murder. Their subsequent acts in repelling all attempts at bringing succour to the trapped person clearly show their common intention of bringing about the same result, namely, the death of Moinuddin. The circumstances disclosed in the evidence further point to the conclusion that the offence was committed after a preconcerted plan to set fire to the cottage after the man had as usual occupied the room and had gone to sleep. There is no doubt therefore that on the evidence led by the prosecution in this case the charge of murder has been brought home against both the appellants and that in the circumstances there is no question but that they deserve the extreme penalty of the law. 11. For the reasons given above we do not find any reasons for differing from the conclusions arrived at by the courts below. The appeals are accordingly dismissed. *****

26

Emperor v. Mt. Dhirajia

Kapur Singh v. State of PEPSU

AIR 1956 SC 654

N.H. BHAGWATI, J. - Special leave was granted to the appellant limited to the question
of sentence only. 2. About an year before the date of the occurrence, Bachan Singh, son of the deceased caused a severe injury on the leg of Pritam Singh, son of the appellant, resulting in the amputation of his leg. The appellant harboured a grudge against the father and son since that time and he was trying to take revenge on a suitable opportunity presenting itself. That opportunity came on 30th September, 1952 when the appellant encountered the deceased, and he and his companion, one Chand Singh, were responsible for the occurrence. Chand Singh held the deceased by the head and the appellant inflicted as many as 18 injuries on the arms and legs of the deceased with a gandasa. It is significant that out of all the injuries which were thus inflicted none was inflicted on a vital part of the body. The appellant absconded and his companion was in the meantime convicted of an offence under Section 302 and a sentence of transportation for life was imposed on him, which was confirmed by the High Court. The appellant was arrested thereafter and trial resulted in his conviction under Section 302. The learned Sessions Judge, awarded him a sentence of death subject to confirmation by the High Court. The High Court, in due course, confirmed the death sentence. 3. The motive which actuated the appellant in committing this crime was to wreak his vengeance on the family of Bachan Singh. It appears that the appellant intended to inflict on the arms and legs of the deceased such injuries as would result in the amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for what his son, Bachan Singh, had done to his own son Pritam Singh. The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries. 4. We, therefore, feel that under the circumstances of the case the proper section under which the appellant should have been convicted was Section 304(1) and not Section 302. We, accordingly, alter the conviction of the Appellant from that under Section 302 to one under Section 304(1) and instead of the sentence of death which has been awarded to him, which we hereby set aside, we award him the sentence of transportation for life. *****

Virsa Singh v. State of Punjab

AIR 1958 SC 465 : 1958 SCR 1495

VIVIAN BOSE, J . - The appellant Virsa Singh has been sentenced to imprisonment for life
under Section 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner. 2. The appellant was tried with five others under Sections 302/149, 324/149 and 323/149 of the Indian Penal Code. He was also charged individually under Section 302. 3. The others were acquitted of the murder charge by the first court but were convicted under Sections 326, 324 and 323 read with Section 149 of the Indian Penal Code. On appeal to the High Court they were all acquitted. 4. The appellant was convicted by the first court under Section 302 and his conviction and sentence were upheld by the High Court. 5. There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was a punctured wound 2" x " transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that Three coils of intestines were coming out of the wound. 6. The incident occurred about 8 p.m. on 13-7-1955. Khem Singh died about 5 p.m. the following day. 7. The doctor who conducted the post-mortem described the injury as An oblique incised stitched wound 2" on the lower part of left side of belly, 1" above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines and there were six cuts at various places, and digested food was flowing out from three cuts. The doctor said that the injury was sufficient to cause death in the ordinary course of nature. 8. The learned Sessions Judge found that the appellant was 21 or 22 years old and said When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer. Based on those facts, he said that the case fell under Section 300 thirdly and so he convicted under Section 302 of the Indian Penal Code. 9. The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.

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Emperor v. Mt. Dhirajia

10. It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 thirdly was quoted: 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. It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 11. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the thirdly would be unnecessary because the act would fall under the first part of the section, namely If the act by which the death is caused is done with the intention of causing death. In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: If it is done with the intention of causing bodily injury to any person. It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. 12. Once that is found, the enquiry shifts to the next clause And the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a mans intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining and the bodily injury intended to be inflicted is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a

matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. 13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that twelve good men and true could readily appreciate and understand. 14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly; 15. First, it must establish, quite objectively, that a bodily injury is present; 16. Secondly, the nature of the 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. 20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. 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. 21. We were referred to a decision of Lord Goddard in R. v. Steane [(1947) 1 All ER 813, 816] where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be

30

Emperor v. Mt. Dhirajia

proved by the prosecution. The only question here is what is the extent and nature of the intent that Section 300 thirdly requires, and how is it to be proved? 22. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: If, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jurys satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted. We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged. That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury. 23. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan [(1917) ILR 41 Bom 27, 29] where Beaman, J., says that 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. 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. 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 of law.

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 of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture. 25. The appeal is dismissed.

*****

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Emperor v. Mt. Dhirajia

State of A.P. v. Rayavarapu Punnayya

AIR 1977 SC 45 : (1976) 4 SCC 382

R.S. SARKARIA, J. - This appeal by special leave is directed against a judgment of the
High Court of Andhra Pradesh. It arises out of these facts. 2. In Rompicheria village, there were factions belonging to three major communities, viz., Reddys, Kammas and Bhatrajus. Rayavarapu (Respondent 1 herein) was the leader of Kamma faction, while Choppa-rapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress party, while Kammas were supporters of the Swatantra party. There was bad blood between the two factions which were proceeded against under Section 107, Cr. P. C. In the panchayat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotam-Raju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their partymen. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle shed was blocked by the other party. The deceased took PW 1 to police station Nekarikal and got a report lodged there. On July 22, 1968 the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the police station on the following morning so that a compromise might be effected. 3. Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under Sections 324, 323 and 325, Penal Code was pending before a magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968. 4. On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus No. APZ 2607 at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as Al, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, at about 7.30 a.m., the deceased and his companions alighted for going to the police station. The five accused also got down. The deceased and PW 1 went towards a choultry run by PW 4, while PW 2 went to the roadside to ease himself. Al and A2 went towards the Coffee Hotel, situated near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry. On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, PW 6 asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. The accused then threw their

sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a tempo-car. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were: 1. Dislocation of distal end of proximal phalar; left middle finger. 2. Fracture of right radius in its middle. 3. Dislocation of lower end of right ulna. 4. Fracture of lower end of right femur. 5. Fracture of medial malleolus of right tibia. 6. Fracture of lower 1/3 of right fibula. 7. Dislocation of lower end of left ulna. 8. Fracture of upper end of left tibia. 9. Fracture of right patella. 5. Finding the condition of the injured serious, the doctor sent information to the Judicial Magistrate for getting his dying declaration recorded. On Dr K. Reddys advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri. His dying declaration, Ex P-5 was also recorded there by a magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid. 6. The autopsy was conducted by Dr P. S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the doctor, was shock and haemorrhage resulting from multiple injuries. The trial Judge convicted Al and A2 under Section 302 as well as under Section 302 read with Section 34, Penal Code and sentenced each of them to imprisonment for life. On appeal by the convicts, the High Court altered their conviction to one under Section 304, Part II, Penal Code and reduced their sentence to five years rigorous imprisonment, each. Aggrieved by the judgment of the High Court, the State has come in appeal to this Court after obtaining special leave. A1, Rayavarappu Punnayya (Respondent 1) has, as reported by his counsel, died during the pendency of this appeal. This information is not contradicted by the counsel appearing for the State. This appeal therefore, in so far as it relates to Al, abates. The appeal against A2 (Respondent 2), however, survives for decision. 11. The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is murder or culpable homicide not amounting to murder. 12. In the scheme of the Penal Code, culpable homicide is the genus and murder is its species. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called, culpable homicide of the first degree. This is the greatest 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.

34

Emperor v. Mt. Dhirajia

13. The academic distinction between murder and culpable homicide not amounting to murder has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the 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. (See table). 14. 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 offenders 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. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done INTENTION (a) With the intention of causing death; (1) With the intention of causing death; or or (b) With the intention of causing such (2) With the intention of causing such bodily bodily injury as is likely to cause death; injury as the offender knows to be likely to or cause the death of the person to whom the harm is caused; (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 is (4) With the knowledge that the act is so likely to cause death 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. 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an

enlarged liver, or enlarged spleen or, diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. 16. In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words sufficient in the ordinary course of nature have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which 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. 17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874] is an apt illustration of this point. 18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465] Vivian Bose, J., speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500): 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. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 19. Thus according to the rule laid down in Virsa Singh 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. 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

36

Emperor v. Mt. Dhirajia

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. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution, bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304, Penal Code. 22. 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. 24. It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connection between the beating administered by Al and A2 to the deceased and his death. The accused confined the beating to the legs and arms of the deceased, and therefore, it can be said that they perhaps, had no intention to cause death within the contemplation of clause (a) of Section 299 or clause (1) of Section 300. It is nobodys case that the instant case falls within clause (4) of Section 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of imminent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under clause (4) of Section 300. His sole contention is that even if the accused had no intention to cause death, the facts established fully bring the case within the purview of clause (3) of Section 300 and, as such, the offence committed is murder and nothing less. In support of this contention reference has been made to Anda v. State of Rajasthan [AIR 1966 SC 148] and Rajwant Singh v. State of Kerala. 25. As against this, Counsel for the respondent submits that since the accused selected only non-vital parts of the body of the deceased, for inflicting the injuries, they could not be

attributed the mens rea requisite for bringing the case under clause (3) of Section 300; at the most, it could be said that they had knowledge that the injuries inflicted by them were likely to cause death, and as such, the case falls within the third clause of Section 299 and the offence committed was only culpable homicide not amounting to murder, punishable under Section 304, Part II. Counsel has thus tried to support the reasoning of the High Court. 26. The trial Court, as already noticed, had convicted the respondent of the offence of murder. It applied the rule in Virsa Singh case and the ratio of Anda v. State and held that the case was clearly covered by clause thirdly of Section 300. The High Court has disagreed with the trial court and held that the offence was not murder but one under Section 304, Part II. 27. The High Court reached this conclusion on the following reasoning: (a) There was no premeditation in the attack. It was almost an impulsive act. (b) Though there were 21 injuries, they were all on the arms and the legs; and not on the head or other vital parts of the body. (c) There was no compound fracture to result in heavy haemorrhage; their must have been some bleeding (which) according to PW1, might have stopped within about half an hour to one hour. (d) Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage also, as stated by PW 12who conducted the autopsy. This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein. From the injuries inflicted the accused, therefore, could not have intended to cause death. (e) Al and A2 had beaten the deceased with heavy sticks. These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patella and left tibia and dislocation of therefore considerable force must have been used while inflicting the blows. Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminently dangerous that in all probability their acts would result in such injuries as are likely to cause the death. The offence is therefore culpable homicide falling under Section 299, I.P.C. punishable under Section 304 Part II and not murder. 28. With respect, we are unable to appreciate and accept this reasoning. It appears to us to be inconsistent, erroneous and largely speculative. 29. To say that the attack was not premeditated or pre-planned is not only factually incorrect but also at war with the High Courts own finding that the injuries were caused to the deceased in furtherance of the common intention of Al and A2 and therefore, Section 34, I.P.C. was applicable. Further, the finding that there was no compound fracture, no heavy haemorrhage and the cause of the death was shock only, is not in accord with the evidence on the record. The best person to speak about haemorrhage and the cause of the death was Dr P. S. Sarojini who had conducted the autopsy. She testified that the cause of death of the deceased was shock and haemorrhage due to multiple injuries. This categorical opinion of the doctor was not assailed in cross-examination. In the post-mortem examination report Ex. P-8, the doctor noted that the heart of the deceased was found full of clotted blood. Again, in

38

Emperor v. Mt. Dhirajia

injury 6, which also was an internal fracture, the bone was visible through the wound. Dr D. A. Sastri had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein but also blood. This part of his statement wherein he spoke about the giving of blood transfusion to the deceased, appears to have been overlooked by the High Court. Dr Kona Reddy, who was the first medical officer to examine the injuries of the deceased, had noted that there was bleeding and swelling around injury 6 which was located on the left leg 3 inches above the ankle. Dr Sarojini, PW 12, found fracture of the left tibia underneath this injury. There could therefore, be no doubt that this was a compound fracture. PW 11 found bleeding from the other abraded injuries, also. He, however, found the condition of the injured grave and immediately sent information to the magistrate for recording his dying declaration. PW 11 also advised immediate removal of the deceased to the bigger hospital at Gntur. There also, Dr Astir finding that life in the patient was ebbing fast took immediate twofold action. First, he put the patient on blood transfusion. Second, he sent intimation for recording his dying declaration. A magistrate (PW 10) came there and recorded the statement. These are all telltale circumstances which unerringly show that there was substantial haemorrhage from some of the injuries involving compound fractures. This being the case, there was absolutely no reason to doubt the sworn word of the doctor (PW 12) that the cause of the death was shock and haemorrhage. 30. Although the learned judges of the High Court have not specifically referred to the quotation from page 289 of Modis book on Medical Jurisprudence and Toxicology [(1961 Edn.)] which was put to Dr Sarojini in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones are not ordinarily dangerous; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased. 31. It will be worthwhile to extract that quotation from Modi, as a reference to the same was made by Mr Subba Rao before us, also. According to Modi, Fractures are not ordinarily dangerous unless they are compound, when death may occur from loss of blood, if a big vessel is wounded by the split end of a fractured bone. 32. It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous. We have seen that some of the fractures underneath the injuries of the deceased were compound fractures accompanied by substantial haemorrhage. In the face of this finding, Modis opinion far from advancing the contention of the defence, discounts it. 33. The High Court has held that the accused had no intention to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceased. There is much that can be said in support of this particular finding. But that finding - assuming it be correct - does not necessarily take the case out of the definition of murder. The crux of the matter is, whether the facts established bring the case within clause thirdly of Section 300. This question further narrows down into a consideration of the twofold issue:

(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused? (ii) If so, were they sufficient to cause death in the ordinary course of nature? If both these elements are satisfactorily established, the offence will be murder, irrespective of the fact whether an intention on the part of the deceased to cause death, had or had not been proved. 34. In the instant case, the existence of both these elements was clearly established by the prosecution. There was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions since long. Both the factions had been proceeded against under Section 207, Cr. P. C. The accused had, therefore, a motive to beat the deceased. The attack was premeditated and pre-planned, although the interval between the conception and execution of the plan was not very long. The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noire, alighting at Nekarikal, they designedly got down there and trailed him. They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms, causing no less than 19 or 20 injuries, smashing at least seven bones, mostly major bones, and dislocating two more. The beating was administered in a brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants was a menacing retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. Maybe, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof. Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders - all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established. 35. This takes us to the second element of clause (3). Dr Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death. In her opinion - which we have found to be entirely trustworthy - the cause of the death was shock and haemorrhage due to the multiple injuries. Dr Sarojini had conducted the postmortem examination of the dead body of the deceased. She had dissected the body and examined the injuries to the internal organs. She was, therefore, the best informed expert who could opine with authority as to the cause of the death and as to the sufficiency or otherwise of the injuries from which the death ensued. Dr Sarojinis evidence on this point stood on a better footing than that of the doctors (PWs 11 and 26) who had externally examined the deceased in his lifetime. Despite this position, the High Court has not specifically considered the evidence of Dr Sarojini with regard to the sufficiency of the injuries to cause death in the

40

Emperor v. Mt. Dhirajia

ordinary course of nature. There is no reason why Dr Sarojinis evidence with regard to the second element of clause (3) of Section 300 be not accepted. Dr Sarojinis evidence satisfactorily establishes the presence of the second element of this clause. 36. There is, therefore, no escape from the conclusion, that the offence committed by the accused was murder, notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt. 37. In Anda v. State of Rajasthan, this Court had to deal with a very similar situation. In that case, several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs, a haematoma on the forehead and a bruise on the chest. Under these injuries to the arms and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula. There was loss of blood from the injuries. The medical officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient. 38. Question arose whether in such a case when no significant injury had been inflicted on a vital part of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be murder or merely culpable homicide not amounting to murder. This Court, speaking through Hidaytullah, J. (as he then was) after explaining the comparative scope of and the distinction between Sections 299 and 300, answered the question in these terms: The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of Section 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that everyone joined in beating him. It is also clear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature even if it cannot be said that his death was intended. This is sufficient to bring the case within thirdly of Section 300. 39. The ratio of Anda v. State of Rajasthan applies in full force to the facts of the present case. Here, a direct causal connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus, etc., supervened. There was no doubt whatever that the beating was premeditated and calculated. Just as in Anda case, here also, the aim of the assailants was to smash the arms and legs of the deceased, and they succeeded in that design, causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms. While in Anda case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons. All these acts of the accused were pre-planned and intentional, which, considered objectively in the light of the medical evidence, were

sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression bodily injury in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was murder. 40. For all the foregoing reasons, we are of the opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34 to that under Section 304, Part II, Penal Code. Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him. *****

Dhupa Chamar v. State of Bihar

(2002) 6 SCC 506

B.N. AGRAWAL, J. - Appellant 1 Dhupa Chamar and Appellant 2 Tokha Chamar were convicted by the trial court under Section 302 of the Penal Code and sentenced to undergo imprisonment for life. Each of them was further convicted under Section 148 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant 3 Doma Chamar and Appellant 4 Adalat Chamar were convicted under Sections 302/149 of the Penal Code and sentenced to undergo imprisonment for life. They were further convicted under Sections 148 and 323 of the Penal Code and sentenced to undergo rigorous imprisonment for one year and six months respectively. However, the sentences were ordered to run concurrently. Accused Swaminath Chamar, Rajbali Chamar and Ram Hoshiar Chamar, who were charged under Sections 302/149 of the Penal Code, were acquitted of the said charges by the trial court. The High Court on appeal by the appellants confirmed their convictions and sentences with this modification only that conviction of Appellant 2 Tokha Chamar under Section 302 was converted into one under Sections 302/149 of the Penal Code.
2. Prosecution case, in short, is that on 13-6-1983 at 8.00 p.m., there was an incident of assault by fists and slaps between Ramu Chamar, son of Sankeshiya Devi (informant) and Appellant 2 Tokha Chamar and due to this reason on 14-6-1983 at 8.00 a.m., the appellants armed with bhalas, accused Ram Hoshiar Chamar with lathi and accused Swaminath Chamar and Rajbali Chamar with brickbats came near the house of Ramu Chamar and started abusing his family members whereupon, villagers Khedaru Chamar (PW 4), Jhagaru Chamar (PW 3), the informants son Dharam Chamar (deceased), Karam Chamar (PW 2) and her daughter-inlaw, Ram Patia Devi, besides Sharda Devi (PW 6) arrived there. Ram Patia Devi made a protest whereupon Appellant 1 Dhupa Chamar gave a bhala-blow on the left side of her neck and the same was pulled out forcibly from the neck as a result of which she fell down and died instantaneously. Appellant 2 Tokha Chamar assaulted Dharam Chamar in the abdomen with bhala. Appellant 4 Adalat Chamar inflicted bhala injury on Sharda Devi (PW 6). Accused Rajbali Chamar and Swaminath Chamar hurled brickbats upon Karam Chamar (PW 2). Accused Ram Hoshiar Chamar gave lathi-blow to Ramu. Appellant 3 Doma Chamar gave bhala-blow in the abdomen of the informant, when she protested against the action of the accused persons, as a result of which she fell down and thereupon injured Dharam Chamar and Sharda Devi (PW 6) were taken to the hospital where Dharam Chamar was declared as brought dead. Stating the aforesaid facts, fard-e-bayan of Sankeshiya Devi was recorded by the police at the place of occurrence itself on the very same day at 11.00 a.m. on the basis of which formal first information report was drawn up. 3. The police took up investigation and on completion thereof submitted charge-sheet, on receipt whereof cognizance was taken and all the seven accused persons including the appellants were committed to the Court of Session to face trial. 4. The accused persons pleaded that they were innocent and no occurrence much less the occurrence alleged had taken place.

5. During trial the prosecution examined twelve witnesses. PWs 1 to 7 besides the informant (PW 11) claimed to be eyewitnesses to the occurrence, PW 8 and 10 are formal witnesses, PW 9 has tendered and PW 12 has proved the medical evidence as the doctor, who held post-mortem examination, was reported to have died. The investigating officer was examined as Court Witness l. The defence, however, examined three witnesses. Upon conclusion of trial, the learned Sessions Judge, while acquitting the three accused persons referred to above, of the charge under Sections 302/149 of the Penal Code, convicted the appellants as stated above. On appeal being preferred, the convictions and sentences have been upheld by the High Court with this modification only that conviction of Appellant 2 Tokha Chamar under Section 302 has been converted into one under Sections 302/149 of the Penal Code. Hence, this appeal by special leave. 6. Shri Aman Lekhi, learned counsel appearing on behalf of the appellants in support of the appeal, could not successfully assail the concurrent findings of fact recorded by the two courts below as the same were arrived at after appreciation of evidence adduced on behalf of the parties. He, however, submitted that conviction of Appellant 1 Dhupa Chamar under Section 302 of the Penal Code was unwarranted and as he is said to have inflicted a single blow on deceased Ram Patia Devi, clause thirdly of Section 300 of the Penal Code would not be attracted and, accordingly, the act of appellant Dhupa Chamar would not amount to murder. Thus, a question arises as to when death is caused by a single blow, whether clause thirdly of Section 300 of the Penal Code is attracted. The ingredient intention in that clause is very important and that gives a clue in a given case whether the offence involved is murder or not. Clause thirdly of Section 300 of the Penal Code reads thus: Thirdly.- 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. 7. Intention is different from motive. It is the intention with which the act is done that makes a difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of the expression intention as used in these provisions. In this connection, we may usefully refer to the high authority of Vivian Bose, J., with whom Jafer Imam and P.B. Gajendragadkar, JJ. agreed in the case of Virsa Singh v. State of Punjab. In that case, appellant Virsa Singh was convicted under Section 302 of the Penal Code which was upheld by this Court although there was only one injury which was attributed to him which was caused as a result of spear thrust. It was contended in that case that as it was a case of solitary injury, it could not be inferred that there was intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature as such act of the offender did not amount to murder. After analysing clause thirdly, it was laid down in that case where Vivian Bose, J. speaking for the Court, observed thus (p. 467): 12. 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;

44

Emperor v. Mt. Dhirajia

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. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300, thirdly. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. 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) It was observed thus at p.468: (AIR para 15) In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury. It was thus held at the same page: 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 justifies 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 of law. 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. 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 justifies 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 of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture. Referring to these observations, a Bench of this Court in the case of Jagrup Singh v. State of Haryana [AIR 1981 SC 1552] observed thus at p. 1552: These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case for the applicability of clause thirdly is now ingrained in our legal system and has become part of the rule of law. The decision in Virsa Singh case has throughout been followed as laying down the guiding principles. 8. In the case of Gudar Dusadh v. State of Bihar [AIR 1972 SC 952] one lathi-blow was inflicted on the head which proved to be fatal. While upholding the conviction under Section 302 of the Penal Code, a three-Judge Bench of this Court laid down the law and speaking for the Court, H.R. Khanna, J., observed thus at AIR p. 954: The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force and resulted in a 3" long fracture of the left parietal bone. Ramlal, deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause thirdly of Section 300, Indian Penal Code. 9. In the case of Jai Prakash v. State (Delhi Admn.) [(1991) 2 SCC 32] which is also a three-Judge Bench decision of this Court, a single blow was inflicted on the chest with a knife and the same proved to be fatal, as such conviction under Section 302 of the Penal Code was

46

Emperor v. Mt. Dhirajia

upheld by this Court. The Court while considering clause thirdly of Section 300 observed thus at pp. 41-42: Clause thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The intention and knowledge of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words intention and knowledge and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to knowledge, intention requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end. The Court further observed thus at pp. 42-43: It can thus be seen that the knowledge as contrasted with intention signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, intention is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of ones conduct so as to bring about a certain event. Therefore, in the case of intention mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In clause thirdly the words intended to be inflicted are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they ill vary from case to case. However, as pointed out in Virsa Singh case the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether

the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 IPC is attracted. In the present enquiry we need not advert to that aspect since we are concerned only with scope of clause thirdly of Section 300 IPC. 10. In the case of Jai Prakash, the Court observed thus at p.44: 15. 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 and it is held that circumstances like sudden quarrel in a fight or when the deceased intervenes in such a fight, would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body. When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but there may be circumstances like those, as mentioned above, which rebut such presumption and throw a doubt about the application of clause thirdly. Of course much depends on the facts and circumstances of each case. 11. Again in the case of Jai Prakash the Court observed thus at pp. 46-47: 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 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 simpliciter unless exception is attracted. We are concerned under clause thirdly 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 thirdly 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 thirdly is not attracted and

48

Emperor v. Mt. Dhirajia

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. 12. In the case of State of Karnataka v. Vedanayagam [(1995) 1 SCC 326] the accused inflicted a single knife-blow on the chest resulting in instant death and the trial court convicted him under Section 302 but on appeal being preferred, the High Court of Karnataka altered the same to one under Section 304 Part II. When the matter was brought to this Court, judgment of the trial court convicting the accused under Section 302 was restored observing: There is no doubt whatsoever that the accused intended to cause that particular injury on the chest which necessarily proved fatal. Therefore, clause thirdly of Section 300 IPC is clearly attracted. 13. In the case of Mahesh Balmiki v. State of M.P. [(2000) 1 SCC 319] the accused gave a single fatal blow with knife on the chest on the left side of the sternum between the costal joint of the 6th and 7th ribs, fracturing both the ribs and track of the wound going through the sternum, pericardium, anterior and posterior after passing the ribs and thereafter entering the liver and perforating a portion of stomach. There, conviction under Section 302 of the Penal Code was upheld by the High Court and when appeal was brought to this Court by special leave, while confirming the conviction under Section 302, this Court observed thus at pp. 322-23: 9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. 14. Keeping in mind the aforesaid principles, if we examine facts of the present case, clause thirdly of Section 300 is fully attracted. It appears that the accused persons came armed with deadly weapons and there was an altercation and exchange of hot words whereafter Appellant 1 assaulted victim Ram Patia Devi with a bhala causing injury on the chest rupturing important blood vessels and cutting of aorta and other artery resulting in her instantaneous death. At this stage, it would be useful to refer to injury of Ram Patia Devi as found by the doctor, who held post-mortem examination on her dead body, which runs thus: One penetrating wound 2" x 1" x 4" deep on the apex of (L) chest just below the (L) clavicle, cutting skin, muscle and important blood vessels, e.g. area of aorta. On body - the chest, the injury was found behind the stain with cutting of arch of aorta and the subclavian artery resulting in profuse haemorrhage. Grievous in nature.

Caused by sharp-cutting pointed weapon. Within 12 hours. In my opinion, the death was due to cardiac respiratory failure as a result of severe haemorrhage and shock due to the rupture of great veins as mentioned above. 15. In view of the nature of injury whereby important blood vessels were ruptured inasmuch as aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonably inferred there from that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature. 16. The above circumstance would show that the accused intentionally inflicted the injury and the same would indicate such a state of mind of the appellant Dhupa Chamar that he aimed and inflicted the injury with a deadly weapon. In the absence of evidence or reasonable explanation to show that this appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessels and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict the injury that he did. When once the ingredient intention is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. Therefore, the inevitable conclusion would be that Appellant 1 Dhupa Chamar has committed the offence of murder and not culpable homicide not amounting to murder. This being the position, we do not find that the High Court has committed any error in upholding conviction of Appellant 1 Dhupa Chamar under Section 302 of the Penal Code. 17. Learned counsel appearing on behalf of the appellants next submitted that in view of the fact that out of seven accused persons, the trial court itself acquitted three accused, namely, Swaminath Chamar, Rajbali Chamar and Ram Hoshiar Chamar of the charge under Sections 302/149 of the Penal Code, it was not justified in convicting Appellant 3 Doma Chamar and Appellant 4 Adalat Chamar under Sections 302/149 of the Penal Code and the High Court was not justified in upholding the same. It has been also submitted that so far as Appellant 2 Tokha Chamar is concerned, the High Court was quite unjustified in converting his conviction under Section 302 into one under Sections 302/149 of the Penal Code after recording a finding that his conviction under Section 302 simpliciter was unwarranted as according to medical evidence injuries found on victim Dharam Chamar were neither sufficient to cause death nor likely to cause death, the same being simple and he died as a result of toxaemia. We are of the opinion that in view of the fact that three accused persons referred to above were acquitted by the trial court itself of the charge under Sections 302/149 out of the seven accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and evidence, and as the number of accused persons becomes less than five, there cannot be said to be any unlawful assembly, as such conviction of Appellants 2 to 4 under Sections 302/149 becomes unwarranted. 18. In relation to conviction of these appellants under other sections, learned counsel appearing on their behalf could not point out any infirmity. He, however, submitted that under these sections, the maximum sentence that has been awarded is one year and as they have served out more than that, they should be directed to be released forthwith. We find force in

50

Emperor v. Mt. Dhirajia

this submission as it has been pointed out that Appellant 2 Tokha Chamar has remained in jail for a period of seven years and each of Appellant 3 Doma Chamar and Appellant 4 Adalat Chamar two years three months. 19. In the result, the appeal of Appellant 1 Dhupa Chamar fails and the same is accordingly dismissed. Appeal of Appellant 2 Tokha Chamar, Appellant 3 Doma Chamar and Appellant 4 Adalat Chamar is allowed in part, their conviction and sentence under Sections 302/149 of the Penal Code are set aside and they are acquitted of this charge. Their convictions and sentences under other sections are confirmed, but as they have already served out the sentences awarded hereunder, they are directed to be released forthwith, if not required in any other case. *****

Prahlad Krishant Patil v. State of Maharashtra

(2006) 9 SCC 21l

B.P. SINGH J .- These appeals have been preferred by the appellant Prahlad Krishant Patil
who is alleged to have taken part in an occurrence on 6-3-1987 in which one Bharat Govind died as a result of injuries suffered by him. Originally, there were as many as 11 accused persons. The trial court acquitted A-3 to A-11but convicted the appellant (A-l) and one other accused A-2 of the offence punishable under Section 304 Part II IPC, Section 341 IPC, both read with Section 34 IPC. Two appeals were preferred before the High Court, one by the State challenging the acquittal of the remaining accused persons and for enhancement of sentence and conviction of the appellant and A-2 under Section 302 IPC, while the second appeal was preferred by the appellant herein against his conviction and sentence under Section 304 Part II IPC. During the tendency of the appeal, A-2 and A-10 died and, therefore, the appeal preferred by the State against them abated. The High Court by the impugned judgment and order affirmed the order of acquittal passed by the trial court in favour of A-3 to A-ll. However, it allowed the appeal preferred by the State so far as the appellant herein is concerned and found him guilty of the offence punishable under Section 302 IPC, instead of Section 304 Part II IPC, and sentenced him to life imprisonment. 2. There are as many as six eyewitnesses in this case, namely, PWs 6, 7, 8, 13, 14 and 15. The occurrence is alleged to have taken place between 6 p.m. and 6.30 p.m. on 6-3-1987 near Maruti temple in Village Mirzanpur. PW 6, who is the informant, was sitting near the Maruti temple when he heard the alarm raised by the deceased and he and others rushed to the place of occurrence. He witnessed the occurrence and thereafter the injured was removed for treatment to Civil Dispensary, Tulzapur. The doctor there advised him to take the injured to Civil Hospital, Solapur having regard to the nature of the injuries suffered by the deceased. The following injuries were found on the person of the deceased: (1) CLW right temporal parietal region 2" x 1 ". (2) Abraded contusion 2" x on right forearm 2" x 1 ". (3) Abraded contusion left lumbar region (horizontal) 6" x 1 ". (4) Contusion right scapula medial size (horizontal) 4" x 1 ". (5) Abrasion vertical right lumbar region 6" x 114". (6) Abrasion right thigh anterior 1" x 1 ". (7) Abrasion left thigh arterial middle 112" x 114". 3. It appears from the medical evidence on record that the first injury proved fatal and the deceased succumbed to his injuries on 9-3-1987. 4. On the advice of the doctor at Tulzapur, the deceased was taken to Civil Hospital, Solapur. They reached Civil Hospital, Solapur at about 11.30 p.m. Next morning at about 6.30 a.m. PW 6 went to the Deputy Superintendent of Police with a written report. However, they were told at the police station to go to Vairag police station which was the police station having jurisdiction over the area where the occurrence took place. They thereafter returned to Vairag and lodged the first information report at about 4.30 p.m. on 7-3-1987.

52

Emperor v. Mt. Dhirajia

5. The courts below concurrently held that the prosecution had proved its case that such an occurrence took place in which the deceased received injuries. However, the trial court as well as the High Court gave the benefit of doubt to A-3 to A-ll. A-2 died during the pendency of the appeal before the High Court and, therefore, the appeal against him abated. We are, therefore, concerned only with the conviction of the appellant herein. 6. The learned counsel for the appellant has taken us through the deposition of the eyewitnesses and the judgments of the courts below. We find that the evidence of the eyewitnesses is consistent and nothing has been pointed out to persuade us to hold that the prosecution witnesses are unreliable or were not speaking the truth. Moreover, each witness has only stated what he had seen, and their evidence appears to be natural and true. So far as the role played by the appellant is concerned, that is specifically deposed to by PW 6 and PW 15. The others who had not seen him actually assaulting the deceased, did not say so. The evidence of the eyewitnesses is convincing. We find no error in the reasoning of the High Court and the trial court which may justify our interference with concurrent findings of fact. 7. The learned counsel for the appellant then argued that in any event the offence made out was not one punishable under Section 302 IPC. We do not agree. The appellant had come armed with an iron rod and he gave a severe blow on the head of the deceased which ultimately resulted in his death. It cannot be said, in these circumstances, that he did not intend to cause the injury which was sufficient in the ordinary course of nature to cause the death of the deceased. This is not a case of culpable homicide not amounting to murder. The act complained of is not shown to be covered by any of the exceptions so as to amount to culpable homicide not amounting to murder. The appellant did intend to cause the injury on the head of the deceased, and the aforesaid injury intended to be inflicted has been found to be sufficient in the ordinary course of nature to cause death. The case squarely falls under Section 300, thirdly. We, therefore, find no merit in these appeals. These appeals are accordingly dismissed. *****

Akhil Kishore Ram v. Emperor

53

Emperor v. Mt. Dhirajia

AIR 1940 All. 486

BRAUND, J. This is an appeal of some little interest. The appellant is a young woman of
20 who was tried for murder by the Sessions Judge of Benares and who was tried at the same time for attempted suicide by a jury. The result of the trial by the Sessions Judge with the aid of his assessors who were of course the same people who constituted the jury was that he convicted the appellant of murder under Section 302, I.P.C. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge, as logically he was bound to do, was unable to agree with the verdict of not guilty upon the charge of attempted suicide and he has therefore referred the case to us under Section 307, Criminal P.C., with the recommendation that the jurys verdict should be set aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way we have before us the appellants own appeal against her conviction and sentence under Section 302, I.P.C., and the learned Sessions Judges reference recommending us to set aside the verdict of the jury and to substitute a conviction upon the charge of attempted suicide as well. We need hardly say that this is one of those cases common in these provinces in which a young woman with her baby in her arms had jumped or fallen down a well. The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and then he reached a point close to the railway line he saw making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury. Upon these facts Mr. Dhirajia was, as we have said, charged with the murder of her baby and with an attempt to commit suicide herself. At that stage it is desirable that we should look at her own statements. She has put forward her version of the affair on these separate occasions: first by a statement in the nature of the confession; secondly, before the committing Magistrate, and thirdly in the Court of the Sessions Judge. The first two of these are identical and we need only, therefore, actually discuss the one before the Magistrate. She was asked: Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to commit suicide?

226

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

This was her answer: There had been a quarrel in my house for three or four days. My husband threatened to beat me. Thereupon I fled away. He followed me. When I saw my husband coming after me, I through fear jumped into the well. And later in another answer she said: Yes, I jumped into the well. I did not know that she would die (by doing so). I jumped into the well through fear of my husband. That was perfectly clear and to our minds, quite straightforward statement of fact and we cannot but regret that in the Sessions Court her statement was changed. There possibly on advice she changed her story and alleged that she did not jump into the well at all but fell into it by accident. In those circumstances she was tried. The only issue to which the learned Sessions Judge appears to have addressed his mind, either in his own deliberations upon the charge under Section 302 or in his charge to the jury under Section 309 was whether as a fact Mt. Dhirajia jumped into the well or fell into it. His conclusion as expressed in his own judgment is: I am, therefore, of the opinion that the evidence of Jhagga supported as it is by the two previous statements of the accused, clearly shows that the accused had jumped down into the well and had not fallen down accidentally. He then assumes that it is a case of murder. In the same way the whole purport of his charge to the jury was that they had merely to decide whether she had jumped deliberately or fallen by accident into the well. We ourselves, having read the evidence with considerable care, are satisfied that the story of the falling into the well by accident is not true. We are satisfied upon the fact the story told by the appellant in her own statement before the Magistrate is in substance the true version of what happened. It is, indeed, supported by the prosecution evidence itself because one cannot read her husbands evidence without coming to the conclusion that the woman was in a panic when she saw her husband coming after her. And we believe that what she did, she did in terror for the purpose of escaping from her husband. Now, upon those facts, what we have to consider and what we think the learned Sessions Judge ought to have considered is, whether this satisfied the charges of murder and of attempted suicide, and if not what the woman has been guilty of. This raises questions which are not altogether free from difficulty and are of some interest. To take first the charge of murder, as we all know, according to the scheme of the Penal Code, murder is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300, Penal Code, is designated murder or whether it falls within the residue of cases which are covered by Section 304 and are designated culpable homicide not amounting to murder. In order to ascertain whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the

knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia an intention to cause the death of her baby. We are satisfied that no such intention was ever present in her mind. Indeed we think there was no room in her mind for any such intention having regard to the panic that she was in. But we have to consider whether what she did, she did with the knowledge that she was likely by such act to cause death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that we cannot in this case, having regard to all the circumstances, attribute to this unfortunate woman the knowledge of anything at all at that particular moment. We desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on behalf of the Government, has very properly and with great ability represented the appellant herself who was not otherwise represented. We are grateful for his argument from which we have derived great assistance. The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had no intention but she could have had no knowledge either. We regret that we are unable to go as far as this. Intention appears to us to be one thing and knowledge appears to us to be a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us treating Mt. Dhirajia as a sane person, which we are bound to do to conclude that she could possibly have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that babys death. We do not think we can. We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. We have been pressed with cases by Mr. Saran in which when blows have been struck, it has been discussed whether knowledge of the likely consequence of those blows can be attributed to the striker. But we venture to think that such cases as these are fundamentally different from the case before us. A blow is not per se a necessarily fatal act, especially if the blow be given with the fist or with one of the less lethal weapons. This is a question of degree, a question of force, a question of position and so forth, and therefore in these cases there is ample room for argument as to whether in any particular case, having regard to the manner in which the particular blow or blows in that case was or were delivered, there was behind it knowledge that it was likely to result in death. But, in this case, the character of the act is in our opinion, fundamentally different. The act of jumping into a well with a six-month old baby in ones arms can, in our opinion, but for a miracle, have only one conclusion and we regret that we have to assume that that consequence must have been within the knowledge, but not within the intention of Mt. Dhirajia.

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For these reasons we think that this was a case of culpable homicide. We must now proceed to consider whether or not it was murder. We do not propose to set out verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that in four cases culpable homicide is always murder, subject to certain specified exceptions. The first three cases in which culpable homicide is designated as murder are all cases in which there is found a positive intention in the doer of the act. We need not waste time on these because, as we have already said, we do not think that in the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or active intention at all. The only case we need discuss is the fourth which is in these words: 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. That is the fourth case in which culpable homicide is murder. We have already found that Mr. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that such act must be without any excuse for incurring the risk of causing death . The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred even a risk of the gravest possible character which must normally result in death the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse. We must consider in assessing what is excuse or is not excuse the state of mind she was in. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. We think she had excuse and that that excuse was panic or fright or whatever you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of murder. Upon this reasoning, however, we cannot escape from Section 304. It must inevitably follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the charge upon which she should have been convicted and not upon the charge of murder. Before we leave this part of the case we desire to refer to one more authority to which our attention has been called by Mr. Saran. That is Lukada v. Emperor [AIR 1925 Bom 310]. The case was a curious one in which a girl of 17 years of age, who too was ill-treated by her husband jumped with her baby into a well when she found that her husband prevented her from returning to her parents. In that case she was

carrying the baby on her back and the learned Judges who tried it in the Bombay High Court on appeal came to the conclusion that on the facts of that case she was not aware at all that she even had a baby with her. No doubt upon the facts of that particular case that conclusion was justified. But we desire to say that we are not ourselves prepared to apply it to the case before us. The facts in the case before us are different and we should not be justified, we think, in looking for evidence which does not exist in order to enable us to come to a conclusion which the facts do not warrant. There is nothing upon this record which could enable us upon any reasonable view of the matter to assume that Mt. Dhirajia was not aware that she had her baby with her. We have found it necessary to resist the temptation in this case to adopt the facts to what our own desires might be because we think that such a course must necessarily be dangerous and wrong. As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was rightly acquitted. To our minds, the word attempts connotes some conscious endeavour to do the act which is the subject of the particular section. In this case the act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take her own life. We do not think she did. She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned, therefore, the result of the appeal is that the appellants conviction under Section 302, I.P.C. is set aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned Judges reference to us is concerned, we are unable to accept it and the verdict of not guilty passed by the jury must stand. There only remains the question of sentence upon the conviction under Section 304 which we have substituted for the conviction under Section 302, I.P.C. It is obvious that this is not a case deserving of a severe punishment. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months rigorous imprisonment which in effect means that she will be at once released unless she is required upon some other charge. Order accordingly. *****

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Gyarsibai v. The State

AIR 1953 M.B. 61

DIXIT, J.. - The appellant has been convicted by the Sessions Judge of Shajapur of an
offence under Section 302, Penal Code, for the murder of her three children and also of an offence under Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to transportation for life under Section 302, Penal Code, and to six months simple imprisonment under Section 309, Penal Code. Both these sentences have been directed to run concurrently. She has now preferred this appeal from jail against the convictions and sentences. 2. The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14-8-1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7years, 5years and 1 years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai's harassment. 3. The facts have been amply established by the prosecution evidence. From the statement of Kaisar Bai and Narayan it is clear that on the morning of the day of occurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai and during this quarrel when Kaisar Bai asked the appellant to leave the house, she left the house with her three children saying that she would jump into a well. Kaisar Bai also admits that some times Jagannath used to give two or three slaps to the appellant for quarrelling with her. The other prosecution witnesses deposed to the recovery of the bodies of three children and to the rescue of the appellant. There is no eye witness of the fact that the appellant jumped down the well herself together with her three children. But from the statements of Kaisar Bai, Narayan and the statement of the appellant herself before the Committing Magistrate and the Sessions Judge, I am satisfied that the version given by the appellant in her own statement is correct and that she jumped into the well herself along with her three children in order to escape harassment at the hands of her sister-in-law Kaisar Bai. 4. On these facts the only question that arises for consideration is whether act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses. 1, 2 and 3 of

Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300, Penal Code, which then remains for consideration is the 4th clause. This clause says: 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. 5. It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability cause death, then the act is not murder as is defined in clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed "without any excuse for incurring the risk of causing death or such bodily injury". The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was "without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in clause 4 of Section 300, Penal Code. Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any knowledge of the nature of her act. Every sane person and in this case we are bound to take it that the appellant was sane is presumed to have some knowledge of the nature of his act. This knowledge is not negatived by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and her sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant's act of jumping into a well with her children. The words used in clause 4 to Section 300, Penal Code are without any excuse for incurring the risk of causing death or such injury as aforesaid. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death. Here there is no

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material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant's act is clearly murder under clause 4 of Section 300, Penal Code. 6. I must, however, notice two cases in which the question of the offence constituted by an act of a woman deliberately jumping into a well with a child in circumstances somewhat different to those present in this case, has been considered. The first case is one reported in Emperor v. Dhirajia [ILR (1940) All 647]. In this case a village woman left her home with her six months old baby in her arms on account of her husband's ill-treatment; after she had gone some distance from the home, she turned round and saw her husband pursuing her. She became panicky and jumped down into a well nearby with the baby in her arms. The baby died, but the woman survived. On these facts, the learned judges of the Allahabad High Court held that an intention to cause the death of the child could not be attributed with the knowledge that such an imminently dangerous act as jumping down the well was likely to cause the child's death. But the learned judges held that considering the state of panic she was in, the culpable homicide did not amount to murder as there was an excuse for incurring the risk of causing death. Mst. Dhirajia was thus found guilty under Section 304, Penal Code. It is not necessary to consider whether upon the facts of that case, the conclusion that the woman was guilty of culpable homicide not amounting to murder was justified. But it must be observed that the learned judges of the Allahabad High Court thought that the fear of her husband and the panic into which she was thrown could be an excuse for incurring the risk of causing death. Here there is no question of any panic or fright of the appellant. It is, no doubt, true, as the learned Judges of the Allahabad High Court say that in assessing what is excuse or is not excuse, we must consider the state of mind in which the accused person was. But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law's attitude towards her. The other decision is of the Bombay High Court in Supadi Lukada v. Emperor [AIR 1925 Bom 310]. In that case too, a girl of about 17 years of age who was carrying her baby on her back jumped into a well because her husband had illtreated her and had prevented her from returning to her parents. The learned judges of the Bombay High Court held that when the girl attempted to commit suicide by jumping into a well she could not be said to have been in a normal condition and was not, therefore, even aware of the child's presence and that as she was not conscious of the child, there was not such knowledge as to make Section 300 (4) applicable. The learned judges of the Bombay High Court found the girl guilty under Section 304-A. The Bombay case is clearly distinguishable on the facts. In the present case when the evidence shows that the appellant left her home saying that she would jump into a well with her three children, it cannot clearly be held that she was not aware that her children were with her. In my opinion, these two cases are not of much assistance to the appellant.

7. As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into a well, she did so in a conscious effort to take her own life. 8. The appellant has been sentenced to transportation for life under Section 302, Penal Code. This is the only sentence which could legally be passed in this case. But having regard to the facts and circumstances of the case and also to the fact that the appellant, though not legally insane, was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to the Government to commute the sentence of transportation for life to one of three years rigorous imprisonment. The sentence of six months' simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate. 9. In the result this appeal is dismissed. *****

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TOPIC 2 : EXCEPTIONS TO SECTION 300 K. M. Nanavati v. State of Maharashtra

AIR 1962 SC 605

K. SUBBA RAO, J. - This appeal by special leave arises out of the judgment of the
Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay. 2. This approval presents the common place problem of an alleged murder by an enraged husband of a paramour of his wife; but it aroused considerable interest in the public mind by reason of the publicity it received and the important constitutional point it had given rise to at the time of its admission. 3. The appellant was charged under Section 302 as well as under Section 304, Part I, of the Indian Penal Code and was tried by the Sessions Judge, Greater Bombay, with the aid of a special jury. The jury brought in a verdict of "not guilty" by 8: 1 under both the sections; but the Sessions Judge did not agree with the verdict of the jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having regard to the evidence, bring in such a verdict. The learned Sessions Judge submitted the case under Section 307 of the Code of Criminal Procedure to the Bombay High Court after recording the grounds for his opinion. The said reference was heard by a division bench of the said High Court consisting of Shelat and Naik, JJ. The two learned judges gave separate judgments, but agreed in holding that the accused was guilty of the offence of murder under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to the conclusion that the accused was clearly guilty of the offence of murder; alternatively, he expressed the view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weight of evidence. Naik J., preferred to base his conclusion on the alternative ground, namely, that no reasonable body of persons could have come to the conclusion arrived at by the jury. Both the learned Judges agreed that no case had been made out to reduce the offence from murder to culpable homicide not amounting to murder. The present appeal has been preferred against the said conviction and sentence. 4. The case of the prosecution may be stated thus: The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship "Mysore". He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three children by the marriage, a boy aged 9 years, a girl aged 5 years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigencies of service of Nanavati. Finally, they shifted to Bombay. In the same city the deceased Ahuja was doing business in automobiles and was residing, along with his sister, in a building called "Shrevas" till 1957 and thereafter in another building called "Jivan Jyot" on Setalvad Road. In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and

Sylvia, which culminated in illicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja, entered his bed-room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he was committed to the sessions for facing a charge under Section 302 of the Indian Penal Code. 5. The defence version, as disclosed in the statement made by the accused before the Sessions Court under Section 342 of the Code of Criminal Procedure and his deposition in the said Court, may be briefly stated: The accused was away with his ship from April 6, 1959, to April 18, 1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar for about three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and after a few days his brother and his wife left them. After they had left, the accused noticed that his wife was behaving strangely and was not responsive or affectionate to him. When questioned, she used to evade the issue. At noon on April 27, 1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, when she seemed to go tense and unresponsive. After lunch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not to go to Ahuja's house as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour's child in his car to a cinema, dropped them there and promised to come and pick them up at 6 p.m. when the show ended. He then drove to his ship, as he wanted to get medicine for his sick dog; he represented to the authorities in the ship that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges he put it inside a brown envelope. Then he drove his car to Ahuja's office, and not finding him there, he drove to Ahuja's flat, rang the door bell, and when it was opened by a servant, walked to Ahuja's bedroom, went into the bed-room and shut the door behind him. He also carried with him the envelope containing the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted, "Am I to marry every woman I sleep with?" The accused became enraged, put the envelope containing the revolver on a cabinet nearby, and threatened to thrash the deceased. The deceased made a sudden move to grasp at the envelope, when the accused whipped out his revolver and told him to get back. A struggle ensued between the two and during that the struggle two shots went off accidentally and hit Ahuja resulting in his death. After the shooting the accused went back to his car and drove it to the police station where he surrendered himself. This is broadly, omitting the details, the case of the defence. 6. It would be convenient to dispose of at the outset the questions of law raised in this case. 7. Mr. G. S. Pathak, learned counsel for the accused raised before us the following points:

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

(1) Under Section 307 of the Code of Criminal Procedure, the High Court should decide whether a reference made by a Sessions Judge was competent only on a perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not. (2) Under Section 307(3) of the said Code, the High Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made by the Sessions Judge. (3) There were no misdirections at all in the charge made by the Sessions Judge; and indeed his charge was fair to the prosecution as well as to the accused. (4) The verdict of the jury was not perverse and it was such that a reasonable body of persons could arrive at it on the evidence placed before them. (5) In any view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he had committed an offence, it would not be murder but only culpable homicide not amounting to murder. 8. From the consideration of the entire evidence, the following facts emerge: The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in his hand. The deceased was found dead in his bath-room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt to the chowkidar Puran Singh and practically admitted the same to his college Samuel. His description of the struggle in the bath-room is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased. 9. We, therefore, unhesitatingly hold, agreeing with the High Court, that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him. 10. In this view it is not necessary to consider the question whether the accused had discharged the burden laid on him under Section 80 of the Indian Penal Code, especially as learned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section. 11. That apart we agree with the High Court that on the evidence adduced in this case, no reasonable body of persons could have come to the conclusion which the jury reached in this case. For that reason also the verdict of the jury cannot stand. 12. Even so it is contended by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the

offence would fall under Exception 1 to Section 300 of the Indian Penal Code. The said Exception reads: 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. Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the following conditions are complied with: (1) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-control. (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. 13. The first question raised is whether Ahuja gave provocation to Nanavati within the meaning of the exception and whether the provocation, if given by him, was grave and sudden. 14. Learned Attorney-General argues that though a confession of adultery by a wife may in certain circumstances be provocation by the paramour himself, under different circumstances it has to be considered from the standpoint of the person who conveys it rather than from the standpoint of the person who gives it. He further contends that even if the provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocation given by Ahuja was only in the past. 15. On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness of the provocation it is not the mind of the person who provokes that matters but that of the person provoked that is decisive. It is not necessary to express our opinion on the said question, for we are satisfied that, for other reasons, the case is not covered by Exception 1 to Section 300 of the Indian Penal Code. 16. The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of adultery by his wife in the manner in which the accused did. In Mancini v. Director of Public Prosecutions [1942 AC 1, 9], Viscount Simon, L.C., states the scope of the doctrine of provocation thus: It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini [1914-3 KB 1116] so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable

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man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. Viscount Simon again in 1946 AC 588 at p. 598 elaborates further on this theme. There, the appellant had entertained some suspicions of his wife's conduct with regard to other men in the village. On a Saturday night there was a quarrel between them when she said, "Well, if it will ease your mind, I have been untrue to you", and she went on, "I know I have done wrong, but I have no proof that you haven't-at Mrs. Xs". With this the appellant lost temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simon, after referring to Mancini case [1942 AC 1 at p. 9] proceeded to state thus: The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Goddard, C.J. in R. v. Duffy [(1949)1 All ER 932] defines provocation thus: Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.What matters is whether this girl (the accused) had the time to say: 'Whatever I have suffered, whatever I have endured, I know that Thou shall not kill'. That is what matters. Similarly, circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden, temporary loss of self-control which is of the essence of provocation. Provocation beingas I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind.Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation- that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. A passage from the address of Baron Parke to the jury in R. v. Thomas [(1837) 7 C & P. 817] extracted in Russell on Crime, 11th ed., Vol. I at p. 593, may usefully be quoted:

The passage extracted above lay down the following principles: (1) Except in circumstances of most extreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self-control; and it must be distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, before there was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation. 17. On the other hand, in India, the first principle has never been followed. That principle has had its origin in the English doctrine that mere words and gestures would not be in point of law sufficient to reduce murder to manslaughter. But the authors of the Indian Penal Code did not accept the distinction. They observed: It is an indisputable fact, that gross insults by words or gestures have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart. Indian courts have not maintained the distinction between words and acts in the application of the doctrine of provocation in a given case. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation, and (2) what is the effect of the time lag between the act of provocation and the commission of the offence. In Empress v. Khogayi [ILR 2 Mad 122, 123], a division bench of the Madras High Court held, in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of selfcontrol. The learned Judges observed: What is required is that it should be of a character to deprive to offender of his self-control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was at the time of the provocation. In the present case the abusive language used was of the foulest kind and was addressed to a man already enraged by the conduct of deceased's son. It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of a man who was already enraged by the conduct of the deceased's son. The same learned Judge in a later decision in Boya Munigadu v. The Queen [ILR 3 Mad 33,. 34-35] upheld the plea of grave and sudden provocation in the following circumstances: The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them and at that time he saw his wife eating food along with her paramour, he killed the paramour with a bill-hook. The learned judges held that the accused had sufficient provocation to bring the case within the first exception to Section 300 of the Indian Penal Code. The learned Judges observed:

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If having witnessed the act of adultery, he connected this subsequent conduct, as he could not fail to connect it, with that act, it would be conduct of a character highly exasperating to him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned and that they proposed continuing their course of misconduct in his house. This, we think, amounted to provocation, grave enough and sudden enough to deprive him of his self control, and reduced the offence from murder to culpable homicide not amounting to murder. The case illustrates that the state of mind of the accused, having regard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception. Another division bench of the Madras High Court in re Murugian [AIR 1957 Mad 541] held that, where the deceased not only committed adultery but later on swore openly in the face of the husband that she would persist in such adultery and also abused the husband for remonstrating against such conduct, the case was covered by the first exception to Section 300 of the Indian Penal Code. The judgment of the Andhra Pradesh High Court in re C. Narayan [AIR 1958 A.P. 235], adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by, another strangled his wife to death, and held that the case was covered by Exception 1 to Section 300 of the Indian Penal Code. These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self-control. 18. Where the deceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentant said that she would again do such acts, and the accused, being enraged, struck her and, when she struggled and beat him, killed her, the Court held that the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exception to Section 300 of the Indian Penal Code. So too, where a woman was leading a notoriously immoral life, and on the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct she vulgarly abused him, whereupon the husband lost his self-control, picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad v. Emperor [AIR 1929 Lah 861, 862-863] held that the case was governed by the said exception. The following observations of the court were relied upon in the present case: In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow, which ultimately proved to be fatal, was struck, that is to say, one must not take into consideration only the event which took place immediately before the fatal blow was struck. We must take into consideration the previous conduct of the woman.... As stated above, the whole unfortunate affair should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death.

A division bench of the Allahabad High Court in Emperor v. Balku [AIR 1938 All 532, 533-534] invoked the exception in a case where the accused and the deceased, who was his wife's sister's husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot and going to another room and having sexual intercourse with his (accused's) wife, and the accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed him to death. The learned Judges held: When Budhu (the deceased) came into intimate contact with the accused by lying beside him on the charpai this must have worked further on the mind of the accused and he must have reflected that 'this man now lying beside me had been dishonouring me a few minutes ago'. Under these circumstances we think that the provocation would be both grave and sudden. The Allahabad High Court in a recent decision, viz., Babu Lal v. State [AIR 1960 All. 233, 226] applied the exception to a case where the husband who saw his wife in a compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed: The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any less sudden. All the said four decisions dealt with a case of a husband killing his wife when his peace of mind had already been disturbed by an earlier discovery of the wife's infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind. 19. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately. 20. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain

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circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. 21. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But, if his version is true-for the purpose of this argument we shall accept that what he has said is true-it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1.30 p.m., when he left his house, and 4.20 p.m., when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused-though we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to Section 300 of the Indian Penal Code. 22. In the result, the conviction of the accused under Section 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct and there are absolutely no grounds for interference. The appeal stands dismissed. *****

Extracts from Defences for Battered Women who Kill*

Katherine ODonovan Recent articles on legal theory suggest that the concepts 'standpoint' and 'perspective' may be useful in probing certain issues. The idea is to recognise a pluralism of views, values, interests, and experiences which affect what we know about law. (In this paper,) it is argued that the perspectives and experiences of many groups have been ignored in the past, and that these must be considered in law making and application. This paper represents an effort to apply the experiential approach to an area of law where it seems particularly appropriate: the case of the victim of aggression who kills the assailant. If we are 'to shape the definitions to make law fit women's experience', the problem of the battered woman who kills provides a site of investigation. For it is often alleged that the current form of law ignores women's experiences and that the defences of self-defence and provocation which justify or partially excuse homicide are limited to male definitions and behavioural practices. What is being suggested is that long experience of being a victim of violence may lead a woman to kill, only to find that the law condemns her. 1. THE BACKGROUND It is common, in papers such as this, to start with the statistics on homicide. Whether the evidence is taken from England and Wales, or the United States of America, the following conclusions emerge: about a quarter of all homicides are domestic; women are more likely to be the victims of homicide than the perpetrators; when female homicide victims are grouped, domestic killing forms the largest category, that is, the killing of wives or cohabitants. The purpose of looking to statistical evidence is to paint the background to the picture. What we see are patterns of behaviour which colour conceptions of violence and fear. Men are the majority of killers and the killed; killing tends to be a male act. Gender role is a relevant aspect of investigations of killing. Women rarely kill by comparison with men. But women do fear male violence. This leads Taylor to draw the conclusion: 'Female homicide is so different from male homicide that women and men may be said to live in two different cultures, each with its own "subculture of violence".' The cultural argument can be taken further, not only in relation to homicide but also in relation to domestic violence. Much of the modern literature argues that the context of killing and of the law that surrounds it includes gender factors, whether the killing is done by a man or a woman. Violence and fear have a relationship to gender. When these matters come to court other cultural factors enter in through the law. Definitions of defences are informed by the past history of homicide and its character as primarily a male act. The gender aspects are rarely articulated. Laws are made by judges and legislators who are mainly drawn from one gender and whose experience is limited. When women do kill after experiencing violence they enter an alien culture which lacks an understanding of the context of their act. They encounter legal categories that do not accommodate their behaviour and are tried and sentenced by courts that ignore or misunderstand their actions and motivations.
* 18 (2) Journal of Law and Society 219 (1991)

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Double standards are a recurrent theme in writing on traditional defences to homicide by women. It is important to establish what this criticism is. In the case of petty treason as a specific crime for women who killed their husbands, what is being criticized is that the same crime was treated rather more severely when committed by a woman rather than by a man. So the argument is against differential standards according to gender. The appeal is to a concept of equality under the law. But does it propose that women fall under the male standards? This is of importance later in the paper when we consider the various options for change of existing rules. There is a distinction between a double standard, a male-centred standard, and an all-encompassing standard. The general requirement of reasonableness may also provide a stumbling block. Articles on the notion of the 'reasonable man' propose that it has been developed in a male-oriented legal culture. It is common in the literature to report 'not a single common-law reference to the "reasonable woman"' and it has been implied that this is a contradiction in terms. More recently, since the point about equality under the law has been taken, the courts have attempted to say that the term 'reasonable man' is inclusive of women. This is so in the provocation cases considered below. However the old gibe may contain a cultural truth, in the sense that interpretations of 'reason' are limited to a male way of seeing. 2. PROVOCATION Where a self-defence plea does not succeed, the accused remains entitled to raise the defence of provocation. If successful this reduces the offence charged from murder to manslaughter. In Bullard was stated: 'Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given.' The difficulty is that in battering cases the cumulative violence over a long period may not be denoted provocation by the trial judge, who decides whether or not this issue goes to the jury. The very nature of prolonged violence, the apparent initial tolerance by the victim, and her failure to respond violently immediately is contrary to the 'heat of the moment' quality which is required by the current definition of provocation. Wasik has identified cumulative provocation as involving 'a course of cruel or violent conduct by the deceased often in a violent setting, lasting over a substantial period of time, which culminates in the victim of that conduct... intentionally killing the tormentor'. This appears an apt description of the context of a killing by a battered wife. The decision of Duffy, however, stands in the way of legal acceptance of such a killing as a response to provocation. The facts were that a woman was convicted of the murder of her husband. It was established that she killed her husband while he was in bed after a violent quarrel and that there was a previous history of violence by him. Her appeal was dismissed and the legal description of provocation given to the jury in the judge's direction at the trial was approved. It is this direction which appears to prevent the placing of the evidence before a jury in subsequent cases. Devlin J. defined provocation as: Some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused subject to passion as to make him or her for the moment not master of his mind.

The judge then went on to say that 'the farther removed an incident is from the crime, the less it counts'. This means, in the context of the killing of a batterer, that to wait until the deceased is in bed or asleep is denoted revenge. The judge said further: Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person had time to think, to select and that would negative a sudden, temporary loss of selfcontrol which is of the essence in provocation. The Duffy approach to provocation has been confirmed on various occasions since then. In 1982 in Ibrams, the Court of Appeal held that the judge was right to withdraw the issue of provocation from the jury where the last act of provocation took place on a Sunday and the killing was the following Friday. It was denoted a case of revenge, rather than a sudden and temporary loss of self-control. In the context of killing by a battered wife, the likelihood is that her action will be seen as revenge rather than justified or excused despite the modification of the common law by the Homicide Act 1957, Section 3. The Act provides that where there is evidence that the defendant was provoked 'to lose his self-control' the determination of reasonableness is left to the jury. This does not prevent the judge from withholding the question from the jury on the grounds that such evidence is insufficient. Double standards re-enter as an argument in relation to provocation. For example, in Davies a husband who had previously committed acts of violence against his wife, and who then shot her, did not have his actions qualified as 'revenge' by the court. His plea of provocation was put to the jury, who nevertheless convicted him of homicide. It is true that the decision to allow a plea of provocation was criticized by a later court. But the denotation of the wife's behaviour as provocative, rather than the husband's as vengeful is revealing. Furthermore, there is a clear inconsistency with the decision in Duffy. This suggests one standard for women (as in Duffy) and another for men (as in Davies). The law on provocation has been criticized as taking a 'wholly unrealistically restrictive view' of provocation. The restrictions relate not only to the male model of violent response to behaviour qualified as provocative, but also to the limitation of the notion of provocation to certain actions and incidents. The refusal by juries to convict for homicide in cases of cumulative provocation is evidence of public opinion differing from the law's definition. At present members of the judiciary demonstrate ambivalence as to whether cumulative provocation makes a killing worse, as a 'revenge killing' is said to do, or whether it is a mitigating factor. In Duffy the judge said that 'the sympathy of everyone would be with the accused and against the dead man'. But the issue of provocation was withheld from the jury, so they were prevented from showing their sympathy through a verdict of manslaughter. Yet in other cases, for example, those of a wife's infidelities, the issue is put to the jury, who may then reflect public opinion. A revenge killing is typified as one in which the killer waits. It is presented as the opposite of an immediate and temporary loss of self-control. Extensive judicial analysis of either is lacking and clues as to the conceptual content have to be drawn from trial judges' directions of juries. What seems to be overlooked by defence lawyers and judges is the notion of the 'slow burn', that is, the gradual build up in the powerless of feelings of anger and

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helplessness which eventually erupt, but not necessarily at a moment suitable for the definition of provocation. Whether the slow build up of rage should be characterized as revenge, as it now is, or as a response to provocation remains an issue with which this paper is concerned. The defence of provocation recognizes the killing which occurred as wrongful behaviour. Were it not for the excuse the defendant would be held accountable. Excused behaviour is personal to the actor and involves an inquiry into the circumstances and character of the defendant. There is an acknowledgement by the defendant that her conduct was wrong. She asks to be excused. But there is also a partial element of justification in provocation which relates to the conduct of the deceased victim - 'did the victim ask for it?'. This conduct may be that of a restless baby who cries continually. The barrier posed by the definition of provocation in Duffy as a sudden and temporary loss of self-control and the opposition thereto of 'revenge killing' means that the issue of provocation will not be put to the jury in most cases of the killing of a batterer where delay occurs. Yet, should the jury become seized of the issue, there is in the case-law language which permits a taking into account of the battered wife context. An example is the Camplin case. In Camplin the accused was a fifteen year old youth who had killed a middle-aged man. His defence was that the deceased had first buggered him and then laughed at him. In the House of Lords an attempt was made to broaden concepts of provocation to encompass differences of age, ethnicity, and sex from the adult, white, male traditional model. Lord Diplock made clear his view that provocation is a relative concept - relative to characteristics of the defendant and to social standards of the day. So he said: When Hale was writing in the seventeenth century, pulling a man's nose was thought to justify retaliation with sword; when Mancini v. D.P.P. (1942) was decided by this House, a blow with a fist would not justify retaliation with a deadly weapon. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of provocation may well depend upon the particular characteristics of circumstance of the person to whom a taunt or result is addressed. Thus social standards of the time, and particular characteristics or circumstances are relevant when considering whether actions or words are provocative or retaliation reasonable. This has the effect of reducing the concept from absolute to relative. Age at the time of killing is relevant for it is a characteristic which may have its effects on temperament as well as physique. Of course this does not answer the problem that the response to provocation must be 'in the heat of the moment', but it does suggest a possible line of development. At present the definition of provocation is still limited by the Duffy decision. So although there may be relativity on the question of reasonableness of response which is open to the jury, this is a question which does not go to the jury if the court decides that what happened does not fit the definition of provocation. In the Ibrams case which was subsequent to Camplin the jury was prevented from considering the defence of provocation because a delay was involved. To some extent provocation as a concept remains within an overly-narrow

framework of analysis. It is tempting to conclude that the judiciary has been willing to broaden the standard of reasonableness, but has retained a male-oriented view of provocative behaviour. Taylor points out that while the law sympathised with the jealous rage of men, it assumed that wives did not experience similar rage. In 1946, 274 years after a court first announced the defence of provocation, an English court finally stated that wives who killed their husbands or their husbands' lovers could also avail themselves of the defence. The investigation of double standards can now be taken further. The double standard, whether on adultery or provocation, contains three elements: definition, from a particular perspective, containing assumptions about the other. Even when the double standard is abandoned 'the other' may be expected to conform to standard based on a particular perspective. In relation to provocation Taylor's comment is pithy: Although the defence of provocation upon the discovery of adultery now applies to women as well as to men, it is a shallow concession to equality that bears little legitimacy or meaning. Cases and social studies show that women rarely react to their husband's infidelity with violence.... Female homicide defendants may be exceptional because they are rare, but they may not be exceptional women, they may be ordinary women pushed to extremes. Yet the law has never incorporated these 'ordinary' women into its standards for assessing the degree of criminality in homicide, as it has done with 'ordinary' men. What is being argued here is that allowing women to claim provocation in cases of male infidelity is a small concession. Considering violence and fear would have more meaning. It might seem that the broadened standard of reasonableness put forward in Camplin is a progressive standard, covering gender, ethnicity, and age. But can it deal with the question of what is provocative to a particular temperament? Without an experiential element which takes account of participant standpoint, the other will remain defined from an ethno-or phallocentric perspective. The standpoint of the accused must be permitted to emerge. Temperament is both relevant and relative according to Lord Diplock. This is an important point and it may again be illustrated by language from Lord Morris who said that the racial and ethnic origins of the accused are relevant in considering whether things said are provocative, and the reaction to such words. The question would be whether the accused, if he was provoked, only reacted as even any reasonable man in his situation would or might have reacted. This language is suggestive of a standard of reasonableness which takes account of certain characteristics, but which is not entirely subjective. In other words it is an attempt to find a standard which is neither exclusive to the adult, white, male, nor is subjective to be accused. This is to be welcomed as recognition of pluralism. Some academic commentators on the reasonable man test do suggest that, in its origins and application, the test is for a person opposed to the feminine gender. But perhaps a better analysis is that provided by Allen: Legal discourse constructs for itself a standard human subject, endowed with consciousness, reason, foresight, internationality, an awareness of right and wrong

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and knowledge of the law of the land. These are the reasonable attributes which provide the grounds for legal culpability. Pleas of self-defence or provocation represent an acknowledgement by the law that, under certain circumstances, necessity or loss of self-control may overcome that intentionality and consciousness which the law elevates as standard. 'The "reasonable man" test allows this frailty of the normal to be acknowledged and taken into account.' Cases of battered women who kill tend to follow a pattern. The woman waits until the batterer is quiet, in bed or asleep. Then she attacks. For example, in Ahluwalia, having been beaten and burned, the defendant poured petrol over her husband when he was asleep and set him alight. The delay led to a conviction for murder. Yet similar cases where diminished responsibility is pleaded may lead to two years' probation. Delay is viewed as leading either to revenge or to calming down. In either case legal discourse constructs a person who is rational and calculating with legal responsibility. The idea of cumulative rage, the slow burn, has not been accepted in English law, although it has some purchase in California. Perhaps cumulative rage might be posited as a response to cumulative violence. Taking account of the characteristics of the provoked person, such as gender or age, is limited by case-law to situations where there was a 'real' connection between the nature of the provocation and the characteristic in question. Whether the courts might be willing to see cumulative fear and rage as a gender characteristic is doubtful. Yet it is fear which leads to a delay in responding immediately to violence. 3. DIMINISHED RESPONSIBILITY English law permits plea of diminished responsibility to be entered in order to reduce a charge of murder to manslaughter. Under the Homicide Act 1957, Section 2, such pleas, if successful, are taken as an acknowledgement of wrongdoing, but also as an excuse. Diminished responsibility is defined as: Suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his responsibility for his acts or omissions in doing or being a party to the killing. Pleas of diminished responsibility have been successful in cases of cumulative violence. In Robinson a woman who was attacked and put into hospital by her husband on several occasions was said by the prosecution to have been subjected to a degree of provocation which goes well beyond that which might be thought extreme. She was put on probation for two years after pleading diminished responsibility. The facts were that she attacked him with a hammer and strangled him. The sympathy of the prosecution and the court for the defendant are clear from the report. So why not advise those who kill following cumulative violence to plead diminished responsibility? One answer is that such a plea avoids placing the issue of justification before the court. If the accused wishes to vindicate her conduct, a plea of diminished responsibility alienates her from a claim to have acted justly. Instead of proposing herself as a legal subject

responsible for her actions, she denies this and proposes abnormality of mind. This prevents attention being given to cumulative violence and appropriate responses. Instead, the focus is on her mental state at the time of what is acknowledged as crime. Her personality, characteristics, and problems are on trial. A second answer is that a plea of diminished responsibility enables the labelling of the woman who makes it as crazy or incapable, or both. There is a contradiction here if the defendant wants to appear as active in dealing with the abuse she has suffered, and yet, as abnormal. If abnormality is over-emphasized, she may find that the outcome of the trial is not probation, but incarceration in an institution for persons designated 'mental'. A third answer is that, although a diminished responsibility plea enables an individual woman to excuse her action in an acceptable legal form, it does nothing for battered women as a group. It is, of course, of the nature of criminal charges that they are brought against individuals. However, unless a challenge is presented to the current law on self-defence and provocation, change cannot occur. This paper started as an effort to apply an experiential approach to the case of the battered woman who kills the abuser. Those best able to express that experience are women who have been charged and convicted of homicide. Such accounts do exist and emerge from case transcripts and other sources. In the course of researching this paper the writer interviewed one woman who had written to a national newspaper on the subject of domestic violence. She is serving a term of imprisonment for life for homicide. The point of her letter was that she had received little assistance from the police or other agencies despite having drawn attention to the violence she suffered. She had contacted a local authority social worker, her family doctor, her church, Alcoholics Anonymous, she was hospitalized because of her injuries, the police were involved, and a solicitor advised her that we had no remedy in law. Much of the writing on wife abuse documents a similar scenario. It seems that the community often regards the victim as the source of the problem. However, the police attitude may change as a result of new guidelines under which support and sympathy are to be offered to battered women. A question which is often asked about such cases of abuse is why the woman did not leave. This is understandable for, if a link between prior abuse and consequential killing is to be sustained, an explanation may be sought. In other words, if killing is to be presented as a form of justified self-help it may be asked why other forms of self-help were not used. To some extent this question is a reformulation of the old requirement of retreat, and the answers given earlier could be re-applied. Leaving without one's children may seem a frightening prospect. But women's own accounts reveal emotional ties to the abuser which increase the difficulty of leaving. If the legal process is to come to terms with this it will have to accept that for many women connection to others is important. In other words, women's ways of looking at relationships will have to be valued equally with those of men. There is a perceived need for a law to have a universal and objective standard, such as reasonableness, in order to preserve legitimacy. But notions of objectivity and universal applicability are increasingly doubted in post-modern society. What this paper proposes is that reasonableness, as presently interpreted, is not always an ideal standard. Whether such a

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standard is attainable remains a matter of debate. Not only do sentences received by women who kill abusers vary according to the following factors: whether the charge is manslaughter or murder; whether counsel develops a clever defence strategy; whether the jury is sympathetic. But the presentation and acceptance of the woman's action as reasonable is also necessary. Broadening concepts of reasonableness to take account of an abused woman's way of seeing her predicament is a possible threat to law's claim to objectivity. On the other hand, as this paper documents, law's claims to universality are under indictment because of a failure to incorporate the experiences of abused women. Although the law may not regard it as reasonable to wait until the abuser is asleep to attack him, from the victim's standpoint it may be so. Although staying with an abuser because of emotional ties may be regarded as irrational by some, others may understand how this can occur. If law reflects one's definitions and viewpoint one is fortunate. If law does not do so, one is unlucky. But it is also an indication of power or powerlessness. *****

Akhil Kishore Ram v. Emperor

79

Ghapoo Yadav v. State of M.P.

(2003) 3 SCC 528

ARIJIT PASAYAT, J. - Appellants (hereinafter referred to as 'the accused' by their

respective names) question legality of the judgment of the Madhya Pradesh High Court dated 18.4.2001, upholding their conviction for offences punishable under Sections 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (the IPC) and the sentence of rigorous imprisonment for three years and fine of Rs. 2,000/- with default stipulation, and imprisonment for life and fine of Rs. 5,000/- with default stipulation respectively. 2. Lekhram (PW-2) and Gopal (the deceased) were sons of Ramlal (PW-1). Accused Gapoo Yadav is the father of accused Janku, Kewal and Mangal Singh. Accused Sunder is the nephew of accused Gapoo. Deceased, the witnesses and the accused belonged to the same village and there was land dispute between them. On the request made by Ramlal (PW-1), measurement of the land was done by the revenue authority. On the basis of the said measurement, it was found that land belonging to accused Mangal Singh was in the possession of Ramlal (PW-1) and over the said land a berry tree existed. Though, initially the tree was in possession of Ramlal, after measurement he parted with the possession thereof. The said tree was cut by the family members of Ramlal (PW-1) a day prior to the incident for which the deceased had altercation with the accused persons. On the date of the incident i.e. 9.6.1986 there were altercations between the accused persons and the deceased, his brother Lekhram and father Ramlal. Accused Janku enquired from the deceased as to why they were cutting the tree. Lekhram responded that it was cut three days prior to the incident as the tree belonged to them and was planted by their family members. The deceased claimed that he had not cut the tree. This led to altercations and scuffles amongst them and the accused persons assaulted the deceased, which resulted in a fracture of his leg. When Ramlal and Lekhram went to save him, the accused persons ran towards them threateningly. Ramlal and Lekhram fled away from the place of the incident, and returned later on with the other villagers. They took the deceased, who was then grasping for breath, on a cot to Maharajpur Police Station. Information was given by the deceased to the police at 8.45 p.m. He was sent for treatment and was examined by Dr. R.K. Chaturvedi (PW-3). On examination he found 7 injuries on his body. His dying declaration was recorded. Later on, the deceased took his last breath on 10.6.1986 at 2.00 a.m. Dr. Chaturvedi sent the intimation of death to the Police Station. Though initially a case was registered under Section 307 IPC, the same was converted to one under Section 302 IPC. Port mortem was conducted by Dr. D.N. Adhikari (PW-6). Investigation was undertaken and on completion thereof charge sheet was filed indicating alleged commission of offences punishable under Sections 147, 148 and 302 read with Section 149 IPC. The case was committed to the Court of Sessions, and finally charges were framed under Sections 148 and 302 read with Section 149 IPC. The accused persons pleaded innocence and claimed false implication. 3. On consideration of the evidence on record, the trial court found that the accused persons were guilty and accordingly convicted and sentenced them as aforenoted. It is to be noted that apart from the evidence of the two eyewitnesses, reliance was also placed on the dying declaration (Ex.P-1) recorded by Dr. Chaturvedi (PW-3). In appeal, the conviction and

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consequential sentences imposed were upheld. Though, in support of the appeal learned counsel for the appellants attacked the findings recorded, ultimately he confined his arguments to the question relating to nature of the offence. He further conceded that if the factual findings as recorded are affirmed then Sections 148 and 149 would have application. In our view, the approach is well founded because the trial court and the High Court having analysed the evidence in detail, concluded that the accused persons were culprits. 4. It was the stand of the learned counsel for the appellants that the injuries sustained by the deceased were in course of a sudden quarrel, without pre-meditation and without cruel intents and, therefore, Section 302 IPC was not applicable. According to him, Section 302 IPC cannot be applied even if the prosecution case is accepted in toto and Exception 4 to Section 300 is clearly applicable. 5. In response, learned counsel appearing for the State of Madhya Pradesh submitted that it is a case to which Section 302 has clear application, and the courts below have rightly applied it along with Sections 148 and 149 IPC. 6. The question is about applicability of Exception 4 to Section 300, IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 7. The fourth Exception to Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them, in respect of guilt, upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. 8. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 IPC. 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 have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and 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 offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. In the case at hand, out of the seven injuries, only injury no.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to that in Sukhbir Singh v. State of Haryana [(2002)3 SCC 327]. Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the trial court would meet the ends of justice. The appeal is allowed to the extent indicated above. *****

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Dhirajbhai Gorakhbhai Nayak v. State of Gujarat

(2003) 9 SCC 322

ARIJIT PASAYAT, J .- One Hasmukhbhai Patel (hereinafter referred to as the

deceased) was the victim of homicidal death on 12-8-1993. The appellant Dhirajbhai was alleged to be the assailant. The learned Additional Sessions Judge, Surat, held him guilty of offence punishable under Section 302 of the Indian Penal Code. 1860 (IPC) and sentenced him to suffer imprisonment for life and to pay fine of Rs 2000 with default stipulation. It was further directed that in case fine is paid, the same is to be paid to the deceaseds widow Dahiben as compensation. Appeal before the High Court of Gujarat did not bring any relief to the accused-appellant and by the impugned judgment conviction and sentence were upheld. 2. Accusations which led to trial of the accused-appellant are as follows: Dahiben (PW 1) and the deceased were staying in House No. 7/1427 situated in Dhastripuara in the city of Surat with her two sons Ohanesh (PW 3) and Narendra. About 10 days prior to the date of occurrence the accused-appellant had taken his small daughter to his in-laws house and had kept her there. On his return, the deceased scolded him for leaving a small child at a distant place and the accused was very angry for this interference in his personal matters and that led to quarrels-first verbal and then physical. Subsequently, on the date of occurrence at about 1.30 p.m. when the deceased was sitting in a temple the accusedappellant warned him and challenged him saying that if he wanted to fight he was ready for the same. This resulted in exchange of words and a fight. Residents of the locality and PW1 separated them. In the evening Naranbhai (PW 8), a friend of the deceased, came to the house of the deceased and told Dahiben that since a quarrel was going on in the house, he would take the deceased for seeing a movie. PW 1 agreed and both PW 8 and the deceased went to see a movie late at night. As it was midnight when they got back, PW 8 and the deceased slept in the verandah of the house while PWs 1 and 3 slept inside the house. At about 4.00 a.m. in the morning, on hearing shouts for help, PW 1 opened the door and went outside. In the meantime, PW 3 also woke up and he joined his mother outside the house. They saw the deceased in bleeding condition. They also found the accused-appellant delivering blows on the deceased. PW 1 called out his name and asked him as to why he was doing this and if there was any problem that could be sorted out in the morning. The appellant on hearing this immediately ran away. PW 1 went out and asked for help from the neighbours. Many of them came to her house. The deceased was taken to the hospital where he breathed his last at about 4.45 a.m. The first information report was lodged at the police station at 5.15 a.m. Investigation was undertaken and charge sheet was placed on completion of investigation. Ultimately, the matter came to trial before the learned Additional Sessions Judge, Surat. Ten witnesses were examined to further the prosecution version. Testimony of PWs 1 and 3 was accepted to be credible and as noted above, the learned trial Judge convicted and sentenced the accused. The High Court in appeal did not interfere. 3. Learned counsel for the appellant submitted that the trial court as well as the High Court lost sight of certain salient features of the case. The accused has taken a definite plea that PW 1 and PW 8 were the authors of the crime as they had an illicit relationship which was not liked by the deceased. On the night of the occurrence they attacked the deceased and

his life was snuffed out. Strong reliance was placed on the evidence of PW 2 who resiled from his statement made during investigation. It was submitted that the evidence of such witness is not necessarily to be wiped out and that portion of evidence which helps either the prosecution or the defence can be taken note of. Presence of Dhanesh (PW 3) at the spot is clearly ruled out by the evidence of PW 1. Additionally, the medical evidence, more particularly the testimony of Dr Rajivbhai (PW 7), clearly establishes that the injury which is stated to have been caused by the accused could not have been caused by the weapon claimed to be the weapon of assault. The name of PW 3 being absent in the FIR, his presence is doubtful. Though PW 1 claimed that her clothes and those of PW 8 were bloodstained, when they tried to carry the deceased in an injured condition to the hospital, the said apparel was not seized by the police and this has been accepted by the investigating officer. It was pointed out that the evidence of witnesses clearly shows that it was a dark night and it was impossible to see anything. So the claim of PW 1 and PW 3 that they saw the accused-appellant assaulting the deceased is clearly unacceptable. 4. It was also submitted that if the prosecution case is accepted in its totality, Exception 4 to Section 300 is clearly applicable as the alleged assaults were made in course of a quarrel. Motive for the crime as claimed by the prosecution is too fragile to warrant acceptance. 5. Per contra, learned counsel for the State of Gujarat submitted that both the trial court as well as the High Court have found the version of an alleged illicit relationship between PW 1 and PW 8 to be a myth and a figment of imagination. Evidence of PW 1 and PW 3 has not been shaken in spite of the incisive cross-examination. The courts below have rightly placed reliance on their evidence. Medical evidence is in no way at variance with ocular evidence and in any event the ocular evidence being cogent has been rightly accepted. The case is clearly covered by Section 302 IPC and Exception 4 to Section 300 has no application. Motive is not a determinative factor to decide whether a crime has been committed or not. 6. The rival contentions need careful consideration. 7. Coming to the plea that the name of PW 3 does not appear in the first information report, it has to be noted that death took place, according to medical records, at about 4.45 a.m. and the first information report was lodged at about 5.15 a.m. In other words, the first information report was lodged almost immediately after the occurrence. As observed by this Court in Shri Bhagwan v. State of Rajasthan, the mental condition of the person who has just seen a close relative, the bread earner lose his life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because PW 3s name did not figure in the first information report, that is not a suspicious circumstance. Evidence of PWs 1 and 3 has been analysed by both the trial court and the High Court minutely and found to be credible and cogent. Nothing infirm therein could be shown to weaken their acceptability and reliability. The trial court and the High Court were justified in placing reliance thereon. 8. Coming to the evidence of PW 2 on which reliance has been placed by the learned counsel for the accused-appellant, he has been rightly described as untruthful by the trial court and the High Court. He accepted having come near the house of the deceased on hearing shouts of Dahiben. But he stated that he did not enquire how he died, and who was the assailant. This conduct was, to say the least, most unusual and abnormal. It was not because

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he was shocked and, therefore, did not ask. He does not say so. On the contrary, he describes in graphic detail about the alleged illicit relationship between PW 1 and PW 8. The trial court has rightly observed that he has tried to create a smokescreen. As regards the alleged discrepancy between the medical evidence and ocular evidence, it is to be noted that a combined reading of the evidence of PW 9 who examined the deceased after he was brought to the hospital and PW 7 who conducted the post-mortem, it is clear that there is no discrepancy in the medical evidence vis--vis ocular evidence. Only in respect of injury 1, there appears to be some confusion but that does not dilute the prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which has to be tested independently and not treated as variable keeping in view the medical evidence as constant 9. The residuary plea is about applicability of Exception 4 to Section 300. 10. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception I there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds mens sober reason and urges them to deeds, which they would not otherwise do. There is provocation in Exception 4 as in Exception I, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception I. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame, which attaches to each fighter. 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. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in IPC. 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 and 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 nor 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 offender has not taken undue advantage or acted in a cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. 12. The provision has no application to the facts of the present case. 13. When the factual background established by the materials on record is tested with the legal principles indicated, the inevitable conclusion is that the appeal is without merit and deserves dismissal. Appeal dismissed. *****

Akhil 86 Kishore Ram v. Emperor

TOPIC 3 : HOMICIDE BY RASH OR NEGLIGENT ACT NOT AMOUNTING TO CULPABLE HOMICIDE

(Section 304A)

Cherubin Gregory v. State of Bihar

AIR 1964 SC 205 : (1964) 4 SCR 199

N. RAJAGOPALA AYYANGAR, J. - This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran.
2. The appellant was charged with an offence under Section 304-A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence - July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased, among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved ineffective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders. 3. Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed learned counsel for the appellant did not attempt to controvert them. The facts, as found are that, in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across, the passage leading up his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under Section 304-A of the Indian Penal Code. The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two: (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the condition of the wire being charged with electric current could not obviously be detected merely by the place being properly lit. 4. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious consequences to people coming in contact with it.

5. It might be mentioned that the accused was also charged before the learned Sessions Judge with an offence under Section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge. 6. The principal point of law which appears to have been argued before the learned Judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned Judges repelled this defence and, in our opinion quite correctly. The right of private defence of property which is set out in Section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of Section 99, of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of Section 99, nor of course of Section 103 of the Code. As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length. 7. Learned counsel, however, tried to adopt a different approach. The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating, what on the words of the statute is a crime, into a permissible or other than unlawful act. But that apart, learned counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus, in England it has been held that one who sets spring-guns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth an arrangement to shoot a man without personally firing a shot. It is, no doubt, true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do wilfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the

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trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man-traps or spring-guns. This is no more than ordinary civilised behaviour. Judged in the light of these tests, it is clear that the point urged is wholly without merit. The appeal fails and is dismissed. *****

Akhil Kishore Ram v. Emperor

89

S.N. Hussain v. State of A.P.

AIR 1972 SC 685

D.G. PALEKAR, J. - This is an appeal by special leave from the order of conviction and sentence passed by the High Court of Andhra Pradesh. The appellant, who was a bus driver, had been charged before the learned Munsif Magistrate, Alampur, for offences under Sections 304-A, 338 and 337, I.P.C., but was acquitted. The State Government appealed against the acquittal to the High Court and the High Court has convicted him under all these sections and sentenced him to suffer rigorous imprisonment for two years under Section 304-A, I.P.C. and made the other sentences to run concurrently with the same. Hence the present appeal.
2. The appellant was the driver of a R.T.C. bus, APZ 1672, and was driving the vehicle on January 1, 1966, from Kurnool to Vanaparthy. The bus left Kurnool at about 6.15 a. m. and reached the railway level crossing gate between Alampur Road Station and Manopad railway station at about 6.30 or 7.00 a. m. The level crossing is in charge of a gateman and it is the duty of the gateman to close the gate when a train is expected to pass by. It is an admitted fact that at the time when the appellant with his bus reached the level crossing the gate was open. The appellant passed through the gate and crossed the meter gauge track when suddenly a goods train dashed against the bus on the rear side with the result that the bus was thrown off causing serious injuries to the passengers. There were about 43 passengers in the bus. Out of these, one died on the spot, three died later in the hospital and about 21 other passengers received more or less severe injuries. The charge against the appellant was that he was rash or negligent in crossing the railway track when a goods train was about to pass the gate. 3. The appellants defence was that he was neither rash nor negligent and the accident was unavoidable. He did not realize at all that a goods train was passing at the time and since the gate was open he crossed the railway crossing absolutely oblivious of the fact that a train was approaching. The learned Trial Magistrate accepted the defence but the High Court was pleased to hold that the appellant was both rash and negligent. 4. It is contended before us that the learned Magistrate had taken a very reasonable view of the case and, therefore, the High Court should not have interfered with the order of acquittal. It is also contended that the view of the High Court could not be sustained on the evidence which was so conclusively in favour of the appellant that the conviction was improper. 5. A large number of witnesses were examined to prove the case against the appellant but most of them turned hostile. The High Court, however, relied upon a few witnesses for its finding that the appellant was both rash and negligent, and it is contended before us that these witnesses had not really proved the charge against the appellant. 6. A few facts require to be noted at the outset: (1) The bus was not driven and could not have been driven fast. The vehicle, before it reaches the level crossing, has to negotiate two bends on the road. The road is U-shaped. The base of this U-shape is formed by the level crossing and the two arms of this U lie on either side of the railway track. The approach from Kurnool is at one end of the right arm and to come to the level crossing a vehicle has to negotiate two bends - one near the approach and

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the other near the level crossing. After these bends are negotiated the road climbs up to the level crossing, the railway track being at a much higher level than the road. The situation, therefore, of the road and the level crossing would clearly go to show that no vehicle which is to negotiate two near bends and climb up a gradient can maintain high speed. As a matter of fact it is admitted by P. W. 13, S. Veerappa, who was the conductor of the bus, that at the time when the bus was entering the railway gate, it was going dead slow. This is also the evidence of P. W. 56, G. Laxaman Rao, Sub-Inspector of police who was travelling in the bus with his family. He was sitting in the front seat close to the driver and his evidence is important as we will show later. (2) That the gate of the level crossing which is a manned gate, was open, indicating thereby that no train was expected to come at the time and inviting vehicles to pass. (3) The railway track was at a higher level and the road was lined by babool trees and, therefore, a passing train coming from a distance was not visible from the bus. (4) The bus was making a huge noise because it was not fitted with a silencer. (5) As a cold breeze was blowing some of the window screens of the bus were lowered for the comfort of the passengers in the bus. (6) There is no evidence that the train while approaching the level crossing gave any whistle or whistles. In any case there is no evidence that any whistle was heard by any of the occupants of the bus. 7. It is against this background we have to see whether the appellant was either rash or negligent. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. This definition of criminal rashness and criminal negligence given by Straight, J. in Empress v. Idu Beg [(1881) 3 All 776] has been adopted by this Court in Bhalchandra Waman Pathe v. State of Maharashtra [1968 SCD 198]. 8. The High Court has held that the appellant was guilty of criminal rashness because in its view the appellant tried to negotiate the level crossing in a spirit of bravado and absolutely callous and unmindful of the consequences of the impending collision. For this finding the High Court has principally relied on the evidence of P.W. 12, Sayanna, his wife Kanthamma, P.W. 15 and their son Samuel, P.W. 16. All three of them were travelling in that bus. According to Sayanna, who is a railway gangman, when the bus was crossing the railway line a Goods train dashed against the bus. He further says that when the bus was outside the railway gate and just before it crossed the railway gate, he had shouted that the train had come. But by the time the conductor stood up to warn the driver the bus crossed the railway line and the goods train dashed against the bus. He further says that the other passengers also in the bus shouted. This evidence is supported by his wife Kanthamma, P.W. 15 and their son Samuel, P.W. 16. The conductor S. Veerappa, P.W. 13 does not, however, say that anybody had warned him about the approaching train or that he had got up from his seat to give the

Tukaram v. State of Maharashtra

91

warning bell to the driver. The bus was 21 feet in length and the railway crossing was about 18 feet across and it will be difficult to say from the above evidence if the shouting had taken place in sufficient time to permit the driver to stop the bus before it reached the railway track. The train is much broader than its track and if a collision is to be avoided it can be done only by stopping the bus some feet away from the railway track. It is not improbable that the gangman Sayanna became conscious of the approaching train just when the gate was being crossed. But that would be too late to avoid the collision. The evidence of the Sub-Inspector already referred to is more cogent and satisfactory in this regard. Laxaman Rao, P.W. 56, who had the same opportunity as the driver of seeing the approaching danger says that he heard some passengers murmuring that the train was coming. This was just when the bus was already on the railway track. Having noticed the approaching train, the driver decided to clear the track but in the meantime the collision took place. This evidence establishes that the murmuring by the passengers was too late to prevent the collision because the bus had already crossed the track and the only hope of saving the situation would be to speed up the vehicle, which according to the witness, the driver had done. Unfortunately the bus was too long to pass with the result that the train dashed against the rear side of the bus. The High Court has relied upon the evidence of this Sub-Inspector for coming to the conclusion that the appellant was rash. In fact a portion of his evidence has been quoted verbatim in support of the finding that the appellant was culpably rash. In our opinion, the High Court has completely misread his evidence. One has to only read the evidence as a whole and it is very clear from the evidence that the driver received no warning either from the approaching train or from the passengers in the bus in sufficient time to save the collision. There was no question of the appellant driving the bus in a sprit of bravado or adventure. On seeing the train after he crossed the track the best he could do was to drive as fast as he could in order to avoid the collision. This cannot be regarded either as bravado or adventure. It is, therefore, impossible to say on the evidence that the appellant was criminally rash. 9. As regards criminal negligence, the High Court has blamed the appellant for not taking note of the road signals. It is stated that on either side of the railway track, some distance away, there were road signals which required a vehicle to stop, and the High Court finds fault with the driver for not stopping the vehicle. According to the High Court the appellant should have first come to a dead stop at the road signal and made sure that there was no train on the railway line. In our opinion, so much precaution was not necessary to be observed in the present case. Where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track. But where a level crossing is protected by a gateman and the gateman, opens out the gate inviting the vehicles to pass, it will be too much to expect of any reasonable and prudent driver to stop his vehicle and look out for any approaching train. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Where the gate is open and there is no train scheduled to pass at the time, the driver would be justified in driving his vehicle through the level crossing. Passenger trains have a time schedule and if a train is expected to come at about the time the appellant reached the level crossing, a regular driver of motor vehicles on that route may, perhaps, be found negligent in crossing the railway track, if by

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mischance, the gate was open. But the train in the present case was not a passenger train but a goods train and it is not shown that the goods train was scheduled to pass the level crossing just at about the time the bus reached the spot. The appellant may not even know that a goods train would be coming at that moment. We do not, therefore, think that the appellant was guilty of criminal negligence merely because he did not stop when the road signal wanted him to stop. This was a clear case of unavoidable accident because of the negligence of the gateman in keeping the gate open and inviting the vehicles to pass. 10. In the result the appeal succeeds, the order of conviction and sentence is set aside and the appellant is acquitted. *****

Tukaram v. State of Maharashtra

93

Mohammed Aynuddin v. State of Andhra Pradesh

(2000) 7 SCC 72

THOMAS, J.- A passenger, while boarding a bus, fell down therefrom as the vehicle moved forward. The driver of the bus was held guilty of culpable negligence in that episode. He now stands convicted under Section 304-A of the Indian Penal Code and was sentenced to imprisonment for three months. All the three courts, the trial court, the Sessions Court and the High Court in revision, took the same stand. Hence, these appeals. 3. The finding of facts cannot be disturbed now. The only question which survives for decision is whether on such facts a conclusion that the appellant is guilty of negligent driving must necessarily follow. The facts which the courts found to have been established in the case are these: On 17-12-1993 the appellant was driving a bus of the Andhra Pradesh Road Transport Corporation. A passenger by the name of Agamma boarded the bus en route at some point. When the bus moved forward she fell out of the vehicle and its rear wheel ran over her. She died of the injuries sustained in that accident.
4. The conductor of the bus was examined as PW 3. He did not say how the accident happened. However, he admitted that while the bus was in motion he heard a sound of accident and the bus was then stopped. The only witness who spoke about the occurrence was PW 4. What that witness has deposed in the examination-in-chief is the following: Agamma was boarding the bus and the bus moved; and she fell down beneath the bus and died on the spot; the bus stopped at some distance. I saw the driver of the bus at that time. 5. What is the culpable negligence on part of the bus driver in the above accident? A passenger might fall down from a moving vehicle due to one of the following causes: it could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking-off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation, there should be evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side. 6. A driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward. 7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption, and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus. 8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that

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in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. 9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. 10. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed, he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting a signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable. 11. In the result, we allow these appeals and set aside the conviction and sentence and he is acquitted. *****

Tukaram v. State of Maharashtra

95

TOPIC 4 : DOWRY DEATH

(Section 304-B read with section 498-A)

Shanti (Smt.) v. State of Haryana

AIR 1991 SC 1226

K. JAYACHANDRA REDDY, J - This is a case of dowry death. The deceased by name

of Smt. Kailash was the daughter of Hari Bhagwan, P.W.1 of Jonala. She was married to one Sat Pal of Mundhaliya village about 9 kilometres away from Jonala. The marriage took place on 18th April, 1987, Sat Pal, the husband, at the relevant time was serving in the army. His father namely the father-in-law of deceased, was employed in railways. Accused No. 1 Smt. Shanti is the mother of Sat Pal, and the mother-in-law of the deceased. The other appellant Smt. Krishna, wife of the brother of Sat Pal was another inmate. After marriage the deceased was living in her matrimonial home with accused nos. 1 and 2, the two appellants herein. It is alleged that these two women were harassing the deceased all the while after the marriage for not bringing scooter and television as part of the dowry and she was treated cruelly. The marriage of one Munni, a cousin of the deceased was fixed for 30th April, 1988. Her brother went to Mundaliya Village twice for bringing the deceased but the accused only taunted him and sent him away without sending the deceased. Ultimately, P.W.1, the father himself went to the home of his daughter, the deceased on 25th April, 1988. The two appellants misbehaved with him saying that if he was fond of his daughter he ought to have arranged scooter and television as part of the dowry and he was insulted and pushed out of the house. On 26th April, 1988, at about 11 p.m., P.W.1 came to know that the deceased had been murdered and was cremated by the two ladies with the help of another three persons. A report was given and the police could recover only bones and ashes. After investigation, the chargesheet was laid. 2. The Additional Sessions Judge, who tried all the five accused convicted the appellants under Section 304B, I.P.C. and sentenced each of them to life imprisonment and under Section 201, I.P.C., sentenced them to undergo imprisonment for one year and to pay a fine of Rs. 2000/- each and also under Section 498-A, I.P.C. to two years rigorous imprisonment and to pay a fine of Rs. 3000/-. The sentences were directed to run concurrently. The other accused were acquitted. These two appellants preferred an appeal to the High Court and the same was dismissed. The High Court, however, set aside the conviction under Section 498-A, I.P.C. The present appeal, pursuant to the leave granted by this Court, has been preferred against the judgment of the High Court. 3. Mr. Lalit, learned counsel for the appellants submitted that there is no direct evidence in this case and that all the ingredients of an offence under Section 304B, I.P.C. are not made out. According to him, it is not conclusively proved that the two appellants subjected the deceased to cruelty or harassment and the very fact that the High Court has acquitted the appellants of the offence punishable under Section 498-A would itself indicate that the prosecution case regarding cruelty is not accepted and consequently the death cannot be one of dowry death. On merits, he submitted that in the absence of clear proof of the cause of death one cannot presume that the death occurred in unnatural circumstances.

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This Section (304-B) was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry deaths. It lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called dowry death and the husband or relatives, shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment. As per the explanation to the Section, the dowry for the purposes of this section shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 which defines dowry as follows: 2. Definition of dowry- In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly(a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Keeping in view the object, a new Section 113-B was introduced in the Evidence Act to raise a presumption as to dowry death. It reads as under: 113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation -For the purposes of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code. Another provision which is relevant in this context is Section 498-A, I.P.C. A careful analysis of Section 304-B shows that this section has the following essentials: (1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (2) Such death should have occurred within seven years of her marriage; (3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; (4) Such cruelty or harassment should be for or in connection with demand for dowry. Section 113-B of the Evidence Act lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the Court shall presume that such person has committed the dowry death. The meaning of cruelty for the purposes of these sections has to be gathered from the language as found in Section 498-A and as per that section cruelty means any wilful conduct which is of such

Tukaram v. State of Maharashtra

97

a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc. or harassment to coerce her or any other person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. As per the definition of dowry any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of dowry. With this background of the provisions of law we shall examine the facts in the instant case. 5. Both the Courts below have held that the two appellants did not send the deceased to her parents house and drove out the brother as well as the father of the deceased complaining that scooter and television have not been given as dowry. We have carefully examined this part of the prosecution case and we are satisfied that the prosecution has established beyond all reasonable doubt that the appellants treated the deceased cruelly and the same squarely comes within the meaning of cruelty which is an essential under Section 304-B and that such cruelty was for demand for dowry. It is an admitted fact that death occurred within seven years of the marriage. Therefore three essentials are satisfied. Now we shall see whether the other essential namely whether the death occurred otherwise than under normal circumstances is also established? From the evidence of PW1-the father, PW2-the brother, and PW3-the mother, it is clear that they were not even informed soon about the death and that the appellants hurriedly cremated the dead body. Under these circumstances, the presumption under Section 113B is attracted. The accused examined defence witnesses to rebut the presumption and to show that the deceased suffered heart-attack. We have examined the evidence of DWs 2 and 3 and we agree with the Courts below that this theory of natural death cannot be accepted at all. No material was placed to show that the deceased suffered any such attack previously. If it was natural death, there was no need for the appellants to act in such unnatural manner and cremate the body in great and unholy haste without even informing the parents. Because of this cremation no post-mortem could be conducted and the actual cause of death could not be established clearly. There is absolutely no material to indicate even remotely that it was a case of natural death. It is nobodys case that it was accidental death. In the result it was an unnatural death; either homicidal or suicidal. But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case, Section 304 B is attracted and this position is not disputed. Therefore, the prosecution has established that the appellants have committed an offence punishable under Section 304B beyond all reasonable doubts. 6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission of the learned counsel is that the acquittal under Section 498-A, I.P.C. would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304B and Section 498-A, I.P.C. are mutually exclusive and that when once the cruelty envisaged in Section 498-A, I.P.C. culminates in dowry death of the victim, Section 304B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A, I.P.C. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304B, I.P.C. has been established. Therefore, the mere acquittal

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of the appellants under Section 498-A, I.P.C. in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304B and 498-A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of cruelty. In Section 304B there is no such explanation about the meaning of cruelty but having regard to the common background to these offences we have to take that the meaning of cruelty or harassment will be the same as we find in the explanation to Section 498-A under which cruelty by itself amounts to an offence and is punishable. Under Section 304B as already noted, it is the dowry death that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to cruelty any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under Section 304-B can be convicted under Section 498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304B. 7. These are all the submissions and we do not find merit in any of them. Therefore, we confirm the convictions. 8. Now coming to the sentences, accused no. 2, the wife of the husbands brother is a young lady of 20 years at the time of the trial. As already mentioned, there is no evidence as to the cause of death but as discussed above, the cruelty on the part of these two appellants is established, but in bringing about the death, there is no evidence as to the actual part played by accused No.2. Further both the appellants are women. Under these circumstances, a minimum sentence of seven years rigorous imprisonment would serve the ends of justice. Accordingly, the convictions are confirmed but the sentence of imprisonment for life under Section 304B, I.P.C. of each of the accused appellant is set aside and instead each of them is sentenced to undergo seven years rigorous imprisonment. The appeal is disposed of accordingly.

*****

Tukaram v. State of Maharashtra

99

Satvir Singh v. State of Punjab

(2001) 8 SCC 633

THOMAS, J. - A young mother of two kids, who is a double graduate, ran into the rail in front of a running train to end her life as well as her miseries once and for all. She was driven to that action on account of the cruel treatment suffered by her at her nuptial home. But destiny also was cruel to her as the locomotive which she desired to be her destroyer, instead of snuffing her life out in a trice, converted her into a veritable vegetable. She lost her left hand from the shoulder joint and got her spinal cord ruptured. She turned into a paraplegic. She herself described her present plight as a living corpse. Thus the miseries she longed to end transformed into a monstrous dimension clutching her as long as she is alive. 2. Her husband, father-in-law and mother-in-law (the appellants before us) were convicted by the Sessions Court under Section 116 IPC read with Section 306 IPC, besides Section 498-A. On the first count they were sentenced to rigorous imprisonment for two and a half years and a fine of Rs. 10,000/- each, and on the second count they were sentenced to imprisonment for two years and a fine of Rs. 5,000 each. When the appellants filed an appeal before the High Court in challenge of the said conviction and sentence the victim also made a motion before the same High Court as he felt that condign punishment had not been meted out to the guilty persons. Both were disposed of by the impugned judgment delivered by a Single Judge of the High Court of Punjab and Haryana. The findings made by the Sessions Court were concurred with by the High Court. However, an alteration was made by substituting Section 306 IPC with Section 304-B IPC to be read with Section 116 IPC. Commensurate alteration was made in the quantum of sentence by escalating it to R.I. for five years each. 3. It was during the wee hours of 17-6-1996 that Tejinder Pal Kaur (PW 5) ran in front of a train. The events which culminated in the said tragedy have been set out by the prosecution like this: Tajinder Pal Kaur (PW 5) daughter of Narender Singh (PW 6) obtained B.A. degree and B.Ed. degree before her marriage. On 5.1.1992, she was given in marriage to Satvir Singh (A-1), a businessman, and thenceforth she was living in her husbands house. Devinder Singh (A-2) and Paramjit Kaur (A-3) who are the parents of Satvir Singh (A-I) were also living in the same house. Though dowry was given at the time of marriage the appellants started harassing the bride after about 4 or 5 months of the wedding for not giving a car and a house as part of the dowry. They used to hurl taunts on her pertaining to the subject, including telling her that she had brought rags instead of wedding costumes. After about a year, a male child was born to her and about one and a half years thereafter, she gave birth to another male child. 4. In the month of November 1995, her father Narender Singh (PW 6) paid Rs. 20,000 to her husband Satvir Singh presumably for appeasing him so that he would desist from causing any harassment to Tejinder Pal Kaur. But that appeared to be only a modicum of pelf for abating the shower of abuses heaped up on the housewife. 5. The immediate cause for the tragic episode happened on the night of 16-6-1996. When food was served to Satvir Singh (A-1) in the night, it was noticed that one of the items in the meals (salad) contained excessive salt. (According to PW 5 the salt was added to the salad by

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her mother-in-law). After tasting the salad, Satvir Singh became furious and he unleashed abuses on his wife and then he was profusely supported by his mother and later they were reinforced by his father. They went to the extent of suggesting to her why not end your life in front of one of the trains as many such trains are running nearby 6. On 17.6.1996, Tejinder Pal Kaur (PW 5) left the house all alone at about 4.00 a.m. and reached the railway line yonder, expecting the arrival of a train from Jalandhar. Within 15 minutes the expected train arrived and Tejinder Pal Kaur, standing on the track, was run over by that train. What happened thereafter need not be narrated in detail over again except pointing out that she was devastatingly maimed, yet survived. There is practically no dispute that she went to the railway track on that morning and in an attempt to end her life she allowed the train to pass over her. As the doctors expressed the opinion that the testimonial capacity of Tejinder Pal Kaur (PW 5) was not seriously impaired the prosecution examined her as the prime witness in the case. The trial court and the High Court believed her testimony. There is no reason to dissent from the finding regarding reliability of other evidence. 7. At the outset, we may point out that on the aforesaid facts no offence linked with Section 306 IPC can be found against any of the appellants. The said section penalises abetment of suicide. It is worded thus: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt to which alone will become an offence. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that suicide should necessarily have been committed. It is possible to abet the commission of suicide. But nobody would abet a mere attempt to commit suicide. It would be preposterous if law could afford to penalise an abetment to the offence of mere attempt to commit suicide. 8. Learned Sessions Judge went wrong in convicting the appellants under Section 116 linked with Section 306 IPC. The former is abetment of offence punishable with imprisonment- if offence be not committed. But the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment, there is no question of the offence under Section 306 coming into play. It is inconceivable to have abetment of an abetment. Hence there cannot be an offence under Section 116 read with Section 306 IPC. Therefore, the High Court was correct in altering the conviction from the penalising provisions fastened with the appellants by the Sessions Court. 9. Now, we have to consider whether the High Court was correct in convicting the appellants under Section 116 read with Section 304-B IPC. Shri R.S. Cheema, learned Senior Counsel for the appellants advanced two contentions against it. First is that Section 304-B cannot apply to a case of suicide at all, whether it is a sequel to cruelty or harassment with the demand for dowry or not. Second is that the concept of abetment of an offence under Section 304-B is inconceivable in the absence of death of a woman within the statutory period

Tukaram v. State of Maharashtra

101

mentioned in that provision. In elaborating the first contention, learned Senior Counsel submitted that Section 306 IPC is now intended to cover all cases of suicide in view of Section 113-A of the Evidence Act (which was brought in by Act 46 of 1983). 10. Both the contentions are fallacious. The essential components of Section 304-B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of an offence under Section 304-B. To be within the province of the first ingredient the provision stipulates that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. It may appear that the former limb which is described by the words death caused by burns or bodily injury is a redundancy because such death would also fall within the wider province of death caused otherwise than under normal circumstances. The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence. In the present context it is advantageous to read Section 113-A of the Evidence Act. It is extracted below: 113-A. Presumption as to abetment of suicide by a married woman -When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative other husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. 11. Learned Senior Counsel submitted that since the word cruelty employed therein is a virtual importation of that word from Section 498-A JPC, the offence envisaged in Section 306 IPC is capable of enveloping all cases of suicide within its ambit, including dowry-related suicide. According to him, the second limb of the Explanation of Section 498-A which defines the word cruelty is sufficient to clarify the position. That limb reads thus: For the purposes of this section, cruelty means(b) harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 12. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306 IPC when read with Section 113-A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused soon before her death or earlier. If it was caused soon before her death the special provision in Section 304-B IPC would be invocable, otherwise resort can be made to Section 306 IPC.

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13. No doubt, Section 306 IPC read with Section 113-A of the Evidence Act is wide enough to take care of an offence under Section 304-B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage, as a sequel to cruelty or harassment inflicted on a woman with demand of dowry, soon before her death. Parliament intended such a case to be treated as a very serious offence punishable even up to imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306 IPC (read with Section 113-A of the Evidence Act) and made a separate offence. 14. We are, therefore, unable to concur with the contention that if the dowry-related death is a case of suicide it would not fall within the purview of Section 304-B IPC at all. In Shanti v. State of Haryana and in Kans Raj v. State of Punjab, this Court has held that suicide is one of the modes of death falling within the ambit of Section 304-B IPC. 15. Now we have to consider whether the appellants are liable to be punished under Section 116 linked with Section 304-B IPC. We have already noted above that according to the learned Senior Counsel for the appellants, there is no question of considering Section 304B unless death of a woman had occurred. In the present case, death did not occur. Before considering that contention we may delve into the question whether Tejinder Pal Kaur (PW 5) was subjected to cruelty or harassment in connection with the demand for dowry soon before her death, on a hypothetical assumption that her attempt to commit suicide had succeeded. 16. Prosecution, in a case of offence under Section 304-B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus: 2. In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly(a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 17. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is at any time after the marriage. The third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry. Hence the dowry mentioned in Section 304-B should

Tukaram v. State of Maharashtra

103

be any property or valuable security given or agreed to be given in connection with the marriage. 18. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate causes of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in the particular case was sufficient to snuff its cord from the concept soon before her death. 19. Applying the said principle in this case we have to refer to the evidence of the prosecution to know whether the findings made by the High Court on the facts warrant interference. PW 5 Tejinder Pal Kaur in her evidence said that 4 or 5 months after her marriage, she was ill-treated on the ground of insufficiency of dowry and then she reported the matter to her father. But PW 5 did not say one word about her evidence regarding any other ill-treatment relating to dowry thereafter. It is true, she said in her evidence that in November 1995, a sum of Rs. 20,000 was paid by her father. But neither PW 5 (Tejinder Pal Kaur) nor PW 6 (Narender Singh) testified that the said amount was paid as part of the dowry or connection with the marriage. We cannot overlook two important events which had happened in the family during the said long interregnum of three years. One is the birth of the elder son on 12-11-1993 at the other is the birth of the second son on 10-6-1995. We have to bear in mind that the payment of R 20,000 was made five months after the birth of the second son. Even PW 6 had no case that his daughter was subjected to any ill-treatment in connection with the demand for dowry on any day after she reported to him about the demand for further dowry way back in the early 1993 months. All amounts paid by the in-laws of the husband of a woman cannot become dowry. 20. Shri U.R. Lalit, learned Senior Counsel for Tejinder Pal Kaur (PW 5) contended that payment Rs. 20,000 in November 1995 should be presumed as part of the three-year-old demand for further dowry When the very participants in the deliberations have no such case it is not proper for the court to make an incriminating presumption against the accused on a very crucial ingredient of the offence, more when it is quite possible to draw a presumption the other way round as well. 21. Thus, there is dearth of evidence to show that Tejinder Pal Kaur (PW 5) was subjected to cruelty or harassment connected with the demand for dowry, soon before the attempt to commit suicide. When the position is such, it is an unnecessary exercise on our part to consider whether Section 116 IPC can ever be linked with the offence under Section 304-B IPC.

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22. We, therefore, conclude that the appellants cannot be convicted under Section 116 IPC either by linking it with Section 306 or with Section 304-B. Hence the conviction and sentence passed on them under Section 116 IPC is set aside. 23. We have no reason to interfere with the conviction passed on the appellants under Section 498-A IPC. We do confirm the same. We are told that the first appellant Satvir Singh (A-1) has undergone the substantial portion of the sentence of imprisonment imposed on him and the remaining appellants have also undergone a long period of imprisonment by now in connection with this case. But we feel that the fine portion of the sentence imposed on the appellants is too insufficient, particularly when such fine was intended to be disbursed as compensation to PW 5. In our view PW 5 Tejinder Pal Kaur should get at least three lakhs of rupees as compensation from the appellants. We are told that A-2 Devinder Singh and A-3 Paramjit Kaur have now become aged as both have crossed the age of 70. We therefore, modify the sentence under Section 498-A IPC in the following terms: The sentence of imprisonment imposed on the appellants shall stand reduced to the period which they have already undergone. We enhance the fine part of the sentence for the offence under Section 498-A IPC to Rs. one lakh each for all the three appellants. They shall remit the fine amount in the trial court, within three months from today, failing which each of the defaulters shall undergo imprisonment for a further period of nine months. 24. The appeals are disposed of in the above terms. *****

Tukaram v. State of Maharashtra

105

Ram Badan Sharma v. State of Bihar

(2006) 10 SCC 115

DALVEER BHANDARI, J. - On 20th November 1993, at 4.30 p.m., the brother of the
deceased Chandra Bhushan Chaudhary, PW2 filed a written complaint at the Police Station Chandi alleging that his sister Sanju Kumari (who was married in the year 1989) was poisoned by her husband Surya Kant Sharma, her father-in-law Ram Badan Sharma and mother-in-law Saraswati Devi. It was also alleged that at the time of marriage, Surya Kant Sharma, Ram Badan Sharma and Saraswati Devi demanded a colour TV, Yamaha motorcycle and cash of Rs.20,000/-. The informant and his family could not fulfil their dowry demands. The customary 'Durgaman' (second marriage) had taken place on 26.10.1993 and at that time, the same demands were repeated by the accused persons. 3. In the report, it was also mentioned that on 17.11.1993, brother-in-law of the deceased (sister's husband) Ramakant Chaudhary, PW1, visited Lodipur on the request of the deceased's mother to meet the deceased. The accused persons told PW1 that no one would be permitted to meet Sanju Kumari unless their dowry demands are fulfilled by the parents of the deceased. On persuasion for sometime, he was permitted to meet Sanju Kumari. She wept before him and narrated that she was harassed and tortured by the accused persons for not getting motor-cycle, colour TV and Rs.20,000/- from her parents. On return from the house of the deceased, PW1 narrated to his mother-in-law and brother-in-law the entire story of harassment of the deceased on account of non-fulfilment of dowry demands. It is further stated in the report that only after a few hours, on the intervening night of 17th and 18th of November, poison was administered to the deceased in the prasad and consequently she died. 4. On 20.11.1993, a barber from Lodipur brought a letter which disclosed that Sanju Kumari had died on the intervening night of 17/18.11.1993. The informant rushed to the village Lodipur where he came to know that the accused persons had killed his sister by administering poison to her. The FIR was filed at the Chandi Police Station by the brother of the deceased. On completion of the investigation, the Investigating Officer submitted a charge-sheet against the accused persons Surya Kant Sharma and Ram Badan Sharma. The case was committed to the Court of Sessions. Initially, no charge-sheet was filed against Saraswati Devi, mother-in-law of the deceased. However, after examination of the witnesses, Saraswati Devi was also summoned by the Court under Section 319 Cr.P.C. to face the trial. 5. The accused persons denied the allegations and a defence was taken that Sanju Kumari had died due to stomach pain. It was alleged on behalf of the defence that she complained of stomach pain on 16.11.1993 and that she was taken to the clinic where she was treated by Dr. K.N. Singh and Dr. B.K. Jain. It was also stated that the informant and his relatives attended the 'Shradh' of Sanju Kumari. The informant wanted to get back all the ornaments given to Sanju Kumari at the time of her marriage but when the accused persons did not agree, this false case was filed against them. It was also asserted that during the relevant period, Saraswati Devi was under treatment at Calcutta.

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6. The prosecution examined six witnesses, namely, Ramakant Chaudhary PW1, brotherin-law of the deceased, Chandra Bhushan Chaudhary PW2, brother of the deceased, who proved the FIR (Ext.1), Gautam Chaudhary PW3, the cousin of the deceased, Malti Devi PW4, mother of the deceased. Malti Devi proved one letter (Ext.2) written by the deceased Sanju Kumari to her. In the letter, she wrote that she was facing harassment and humiliation by the accused persons because their demands for dowry had not been fulfilled. Anita Devi, sister-in-law (Bhabhi) of the deceased was examined as PW5. All these witnesses had supported the case of the prosecution. Pawan Kumar Singh, Assistant Sub-Inspector of Police, Police Station Amash, District Gaya, who was the Investigating Officer of the case, was examined as PW6. 7. On behalf of the defence, five witnesses were examined. Sudama Singh DW1 and Ram Chhabila Singh DW2 were examined to support the defence version. Dr. B.K. Jain DW3 proved medical certificates dated 15.11.1993 and 16.11.1993. Jagat Narayan Singh DW4, a Public Relation Inspector of post office Arrah brought one register of Kisan Vikas Patra. Accused Ram Badan Sharma was examined as DW5. He proved the signature of Sanju on the application brought by DW4 from the post office. 8. Careful analysis of the evidence by the trial court led to a clear conclusion that the marriage of the accused Surya Kant Sharma was solemnized with the deceased in 1989 and the deceased died suddenly on the intervening night of 17/18.11.1993 in unnatural circumstances within seven years of the marriage. 9. On the basis of evidence on record, we are called upon to adjudicate following questions: (I) Whether the prosecution was able to prove the demands of dowry? (II) Whether the deceased had died because of harassment and cruelty meted out at the hands of the accused persons in connection with the demands of dowry? (III) Whether the death had occurred within seven years of the marriage? 10. The informant, Chandra Bhushan Chaudhary (PW2), brother of the deceased, in his statement categorically stated that at the time of marriage of the deceased, the accused persons demanded a colour TV, Yamaha motor-cycle and a sum of Rs.20,000/- and because of the financial inability, the dowry demands of the accused persons could not be fulfilled. He further stated that on 26.10.1993, when the deceased was sent to her in-laws at Lodipur, same demands of dowry articles were repeated. He had also stated in his statement that his brotherin-law, the accused Surya Kant Sharma was not willing to take his sister (the deceased) back to her matrimonial home for the want of dowry but on the request and persuasion of the family members of the deceased, the accused ultimately took Sanju Kumari back on 26.10.1993. PW2 further stated in his statement that the brother-in-law of the deceased, Ramakant Chaudhary, went to meet the deceased at Lodipur on 17.11.1993 on the request of his mother-in-law. On return, Ramakant informed them that the deceased's husband, motherin-law and father-in-law demanded same dowry articles and threatened that in case, dowry articles were not given, they would kill Sanju (deceased). He further stated that they received the news of the death of Sanju Kumari from a barber after three days of the death, i.e., on 20.11.1993. The informant Chandra Bhushan, Ramakant, Gautam Chaudhary and few

Tukaram v. State of Maharashtra

107

villagers went to Lodipur, where they were informed that Sanju Kumari was poisoned by Surya Kant Sharma, Ram Badan Sharma and Saraswati Devi. In the cross-examination, he again reiterated that there was demand of colour TV, Yamaha motor-cycle and Rs.20,000/when Ramakant PW2 had gone to meet the deceased Sanju on 17.11.1993. 11. The prosecution had examined Ramakant Chaudhary, brother-in-law of the deceased (sister's husband), as PW1. He categorically stated that on the request of his mother-in-law, he had gone to the house of the deceased Sanju on 17.11.1993. At that time, Surya Kant Sharma and his father Ram Badan Sharma were present in the house. They clearly stated that nobody would be allowed to meet Sanju unless the demands of colour TV, motor-cycle and cash amount of Rs. 20,000/- were fulfilled by the parents of Sanju. PW1 explained the position and on persuasion, ultimately he was allowed to meet Sanju (deceased). Sanju Kumari wept before him and asked him to go and ask her father to send a colour TV and a motor-cycle. He returned and narrated the entire story to his brother-in-law Chandra Bhushan PW2 and his mother-in-law Malti Devi PW4. 12. PW2 also stated about demands of dowry and specifically named the accused persons. He also stated that he received the news of death of his sister from a barber on 20.11.1993. Immediately thereafter, he along with others left for Lodipur village. There people informed that his sister was killed by administering poison to her by the accused persons. 13. Gautam Chaudhary was also examined by the prosecution as PW3. He stated that the deceased was his cousin. He categorically stated that the deceased's husband and in-laws demanded motor-cycle and an amount of Rs.20,000/-. He further stated that the treatment given to the deceased by her husband and in-laws was not good. On 26.10.1993, on persuasion from all of them, the husband of the deceased had taken the deceased. He further informed that on 20.11.1993, he got the information that Sanju Devi was killed by administering poison to her by her husband, mother-in-law and father-in-law. 14. The prosecution also examined Malti Devi, mother of the deceased as PW4. She also reiterated that at the time of marriage, accused persons Surya Kant Sharma, Ram Badan Sharma and Saraswati Devi demanded a colour TV, motor-cycle and a sum of Rs. 20,000/-. She further stated in her statement that after a week of marriage, the deceased returned from her in-laws house and she informed that she was beaten by her mother-in-law, father-in-law and husband for not bringing the colour TV, motor-cycle and a sum of Rs.20,000/-. She also stated that after a lot of persuasion, her daughter was taken back by her in-laws on 26.10.1993. She further stated that the accused persons tortured her for not bringing dowry articles. She also stated that her son-in-law Ramakant Chaudhary was sent to the house of Sanju to enquire about her welfare. She further stated in her statement that initially the accused did not allow Ramakant to meet Sanju but after some persuasion, Ramakant was permitted to meet her. The deceased told Ramakant that she was being tortured in different ways by the accused persons for not bringing the dowry articles. Accused persons also threatened to kill her in case she failed to bring the dowry articles. 15. On 20.11.1993, a barber came from Lodipur to her house and informed that Sanju had died. Immediately thereafter, her son Chandra Bhushan PW2, Ramakant Chaudhary PW1, Gautam PW3 and few villagers went to the house of the deceased at Lodipur. On arrival, they

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were informed that the deceased was killed by administering poison to her and the dead body was hurriedly cremated. She stated that she received a letter (Ext.2) by post, written by the deceased Sanju in her own signature. She also stated that her daughter complained about the torture and harassment by the accused persons. She stated that thereafter they met the accused persons and told them that they would further give Rs.18,000/- to them. She further stated that she was not even informed about the death of her daughter by the family members of the deceased. 16. The prosecution also examined Anita Devi, sister-in-law of the deceased as PW5. She stated that after the marriage, her sister-in-law (deceased) came back to her house after eight days. The deceased told them that her husband and in-laws were giving her beatings for not bringing TV, motor-cycle and an amount of Rs. 20,000/-. She also stated that on persuasion, the husband of the deceased had taken her back. She also stated that her sister-in-law was killed by administering poison to her. 17. The prosecution also examined Pawan Kumar Singh, Assistant Sub-Inspector of Police as PW6. He stated that the FIR (Ext.3) was in his hand-writing and he proved the same. He also stated that he recorded the statement of Chandra Bhushan Pandey, Mukhiya, who had stated that it was wrong to say that the dowry items were demanded by the accused persons. He gave a medical certificate to show that Saraswati Devi, mother-in-law of the deceased had been sick from 5.11.1993 to 3.12.1993 and was under treatment at Calcutta. He also stated that the deceased Sanju was treated by Dr. K.N. Singh and Dr. B. K. Jain of Arrah on 15.11.1993 and 16.11.1993. In his statement, he tried to lay the foundation that there had been no demand of dowry articles by the accused persons. 18. The appellants in defence had examined Sudama Singh, DW1, Ram Chhabila Singh, DW2, Dr. B.K. Jain, DW3 and Jagat Narayan Singh, DW4. The accused Ram Badan Sharma was also examined as DW5. 19. The Additional Sessions Judge, Bhojpur, Arrah carefully examined the entire evidence on record. The prosecution had examined six witnesses. The trial court after analyzing the entire evidence on record came to the categoric finding that the prosecution was able to prove that Sanju Kumari was killed within seven years of her marriage for not fulfilling the demands of dowry articles. 20. According to the requirement of Section 304-B IPC and Section 113-B of the Indian Evidence Act, the trial court also examined whether there was evidence that the deceased soon before the death was subjected to harassment and cruelty in connection with the demands for dowry. On this issue also, the trial court carefully analysed the evidence and came to a definite finding that the prosecution was able to prove the fact that due to demands of dowry, the deceased was subjected to harassment before her death. The trial court also examined the manner in which the death had occurred. 21. Section 113-B of the Evidence Act has been inserted with regard to presumption of dowry death. 22. The accused persons in their defence examined the evidence of Dr. B.K. Jain and Dr. K.N. Singh. Dr. B.K. Jain, DW3, stated that he treated the deceased for the disease of appendix and she remained in his treatment from 15.11.1993 to 16.11.1993. He referred her to

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a Surgeon but in the cross-examination, he admitted that after 15.11.1993, he had not examined the deceased. The defence failed to give any explanation why she was not examined by any Surgeon after she was referred to by DW3. The trial court after examining the entire evidence came to the conclusion that the death had not occurred in the normal circumstances. The trial court observed that on the day of 'chhath', i.e., on 17.11.1993, the deceased had gone to the house of accused Ram Badan Sharma for taking 'prasad'. This is indicative of the fact that till then the deceased was physically in good health. DW1 further stated that after taking the 'Prasad', she started having acute pain in stomach and thereafter she died. 23. The deceased's parents were admittedly not even informed about this unfortunate incident. Only on 20.11.1993, they learnt about it from a barber and then they rushed to Lodipur. On reaching Lodipur, they heard that the deceased was administered poison in the Prasad. DW1 clearly mentioned that the deceased had died after taking the prasad. According to the trial court, immediately after the death, the dead-body was hurriedly disposed of and there was no autopsy of the dead body. This is a very vital circumstance which according to the trial court clearly led to the conclusion that the deceased died in unnatural circumstances. DW1 also admitted that after giving the prasad, the deceased was not given any medical treatment. The trial court also observed that under the provisions of Section 113-B of the Evidence Act, the prosecution has proved the presumption of dowry death. The trial court discarded the story of return of ornaments by DW1 and DW2 as being not convincing. The trial court observed that the deceased died in the circumstances narrated by DW1. According to the trial court, either it was a case of homicide or suicide, in both the cases, the accused would be held guilty for the offence under Section 304B IPC. 24. The trial court observed that admittedly the death had occurred on the intervening night of 17/18.11.1993. The FIR was lodged at 7.00 a.m. on 20.11.1993. The parents and other family members of the deceased learnt about her death from a Barber after three days of the death. The dead body was cremated hurriedly without even giving any information to her parents and this circumstance strengthens the case of prosecution that the death had occurred in suspicious circumstances. According to the trial court, involvement of Saraswati Devi in this case was not established beyond reasonable doubt. She was not present on 17.11.1993 when PW1 visited the deceased. DW1 stated that Saraswati Devi was in Calcutta and there was no evidence that from 26.10.1993 to 17/18.11.1993, she remained in her house. In view of the evidence of PW1 that he remained for two hours on the doors of the accused and only met the accused Surya Kant Sharma and Ram Badan Sharma. Thereafter, he met the deceased Sanju Kumari and he remained there for an hour. He did not state that he even saw Saraswati Devi in the house. The trial court was of the opinion that reasonable doubt arose with regard to the involvement of mother-in-law of the deceased Sanju Devi and, therefore, gave her benefit of doubt. 25. The trial court came to a definite conclusion that the prosecution had been able to prove the charges under Sections 304-B and 201 IPC against the husband and father-in-law of the deceased and convicted them under Sections 304-B and 201 IPC. The trial court sentenced the accused to undergo 10 years rigorous imprisonment for the offence under Section 304-B I.P.C. They were also sentenced to undergo rigorous imprisonment for two years for the

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offence under Section 201 IPC. The Court further directed that both the sentences shall run concurrently. 26. The appellants aggrieved by the judgment of the learned Addl. Sessions Judge, Bhojpur, Arrah, preferred an appeal before the High Court. The High Court analysed the judgment of the learned Addl. Sessions Judge and the entire evidence on record. It is not necessary to repeat the findings of the High Court in detail. According to the findings of the trial court, it was a clear case of demands of dowry and harassment on account of not fulfilling the said demands and ultimately the poison was administered to the deceased in the 'prasad' within seven years of her marriage. 27. The High Court also came to the conclusion that the husband and in-laws of the deceased had been persistently demanding a colour TV, motor-cycle and cash of Rs.20,000/-. Due to the failure of her parents to give dowry articles, the deceased was harassed and was ultimately killed by administering poison to her by the accused persons. According to the High Court, clear offences under Sections 304-B and 201 I.P.C. were made out against the accused persons. 28. The High Court observed that there was perceptible nexus between the death of Sanju and dowry related harassment or cruelty inflicted on her. The High Court also independently came to the conclusion that the evidence of the prosecution witnesses manifestly reflected that shortly after Sanju Kumari went to her in-laws house after the marriage and returned to her parents house only after eight days, she had been complaining to her parents about torture and beating by the husband and in-laws for not getting the dowry articles. The husband and inlaws of the deceased were not even prepared to take the deceased back to their house for her not bringing the dowry articles and it was after much entreaties that the deceased was taken back to their house. The High Court gave particular reference to the statement of Ramakant Chaudhary PW1 when he visited Sanju Kumari's house on the request of his mother-in-law on 17.11.1993. Sanju Kumari had narrated her woes to him apprehending danger to her life and this must be construed to be cruelty and/or torture. Though other witnesses state about assault on Sanju Kumari, even if that be not there, a definite conclusion can be drawn that there was evidence of torture to the deceased immediately preceding her death. The interval elapsed between infliction of such harassment or cruelty and her death was too narrow to be widened any more. The High Court after carefully examining the entire evidence on record came to the definite conclusion regarding the guilt of the accused persons and upheld the judgment of the learned trial court. Consequently, the appeal filed by the appellants was dismissed. 29. The appellants aggrieved by the impugned judgment of the High Court have approached this Court in two separate appeals. 30. The learned counsel appearing for the appellants submitted that there was no evidence to sustain the conviction of the appellants under Sections 304-B and 201 IPC. The learned counsel also submitted there was no material on record to attract Section 113-B of the Evidence Act. It was also submitted on behalf of the appellants that the High Court erred in not applying the strict test before relying on the circumstantial evidence to pass the verdict of conviction. It was also argued on behalf of the appellants that the High Court was not correct in rejecting the testimony of Dr. B.K. Jain, DW3.

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31. In these appeals, it was prayed that the Court must consider the case sympathetically and on humanitarian consideration, it was also prayed that the sentence of the appellants be reduced to the period already undergone. 32. The appellants have challenged the impugned judgment of the High Court on the plea that they have been erroneously convicted under Sections 304-B and 201 IPC. 33. When the evidence of the instant case is closely examined, then the conclusion regarding the guilt of the accused persons becomes irresistible. There is an overwhelming evidence to establish that there has been persistent demand of dowry and because of nonfulfilment of the said demand, there was harassment, humiliation and continuous beating of the deceased by the accused persons. In the instant case, as late as on 17.11.1993, Ramakant Chaudhary, PW1, at the instance of his mother-in-law, PW5, had visited the deceased to enquire about her welfare. When he reached the house of the deceased initially the accused persons did not even permit him to meet the deceased on the ground that until their demands for dowry were fulfilled, they would not permit any one to meet the deceased. On persuasion, Ramakant Chaudhary, PW1, was ultimately allowed to meet the deceased. The deceased narrated to her brother-in-law, PW1, that she was being harassed because the demands of dowry were not fulfilled. Immediately thereafter, PW1 went and narrated the entire story to the brother and mother of the deceased. It is extremely significant that within a few hours, poison was administered to the deceased in the prasad and she died on the intervening night of 17/18.11.1993. According to the statement of PW1, the deceased died after eating the 'prasad' and thereafter, she was neither taken to any doctor nor any treatment was given to her. The most suspicious circumstance which supported the story of the prosecution was that the news of the death of the deceased was not sent to the parents of the deceased who were living only a few miles away from the village of the accused. The accused persons clandestinely, secretly and hurriedly cremated the deceased without informing the factum of death to the parents of the deceased. This circumstance strongly proved and lent immense credibility to the prosecution version. Only from a barber, on 20.11.1993 (after three days), the parents of the deceased learnt that Sanju Kumari was killed by administering the poison to her. The deceased's brother and other relatives rushed to the village where they learnt that the deceased was killed by administering the poison. 34. In the instant case, the appellants were convicted under Sections 304-B and 201 IPC. This Section (304-B) was inserted in the Indian Penal Code by an Act 43 of 1986 on 19.11.1986. 35. There are three main ingredients of this offence; (a) that, there is a demand of dowry and harassment by the accused on that count; (b) that, the deceased died; and (c) that, the death is under unnatural circumstances within seven years of the marriage. When these factors were proved by reliable and cogent evidence, then the presumption of dowry death under Section 113-B of the Evidence Act clearly arose. The aforementioned ingredients necessarily attract Section 304-B IPC. Section 304-B is a special provision which was inserted by an amendment of 1986 to deal with a large number of dowry deaths taking place in the country. In the instant case, if the circumstances of the case are analyzed on the touchstone of Section

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304-B, IPC, all the three basic ingredients of Section 304-B I.P.C. are present in the instant case. There has been persistent demand of dowry and harassment, humiliation and physical violence and beating by the husband and her in-laws. The deceased died under unnatural circumstances within seven years of the marriage. 36. In our considered opinion, the trial court has properly analyzed the evidence and justly convicted the appellants under Section 304-B I.P.C. The High Court also examined the entire evidence on record and came to the same conclusion. No infirmity can be found with the impugned judgment of the High Court. 37. Looking to the seriousness of the matter, we also independently examined the entire evidence on record. On critical examination of the evidence, we also arrived at the same conclusion. The trial court was justified in convicting the accused persons under Section 304B IPC and that the conviction of these two appellants has been rightly upheld by the High Court. 38. The appellants have also been convicted under Section 201 IPC. 39. In the instant case, according to the prosecution, the deceased was killed by administering poison to her on the intervening night of 17/18.11.1993. Neither the deceased was taken to any doctor nor any doctor was called to examine her nor any kind of medical treatment was given to the deceased. This is extremely unnatural human conduct. The dead body was secretly and clandestinely cremated causing disappearance of evidence of offence, without even intimating the parents of the deceased who were living only a few miles away from their village. They learnt about the murder of the deceased from a Barber on 20.11.1993 after about three days. The appellants secretly and clandestinely cremated the deceased to wipe out the entire evidence of murder. This clearly attracted Section 201 IPC. The trial court was wholly justified in convicting the appellants under Section 201 IPC also. The High Court was also justified in affirming the judgment and order of the trial court. 40. We deem it appropriate to refer some of the important cases dealing with Section 304B IPC and Section 113 of the Indian Evidence Act. 41. In Soni Devrajbhai Babubhai v. State of Gujarat [(1991) 4 SCC 298] this Court dealt with the objects and philosophy behind enactment of Section 304-B IPC. In this case, it has been mentioned that Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated. For eradication of social evil, effective steps can be taken by the society itself and social sanctions of community can be more deterrent, yet legal sanctions in the form of its prohibition and punishment are some steps in that direction. 42. The Dowry Prohibition Act, 1961 was enacted for this purpose. The report of the Joint Committee of Parliament quoted the observation of our first Prime Minister Pt. Jawaharlal Nehru to indicate the role of Legislation in dealing with the social evil as under: Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.

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Prime Minister Nehru proved prophetic because despite various legislations the menace of dowry deaths is unfortunately increasing at an alarming speed. Ordinarily, legislations are based on public opinion, but at times even legislations also create public opinion. Regrettably, despite many legislations, we have not been able to control dowry deaths. Perhaps greater social awareness and more severe legislative measures are urgently required to curb the menace of dowry related deaths. To our information, in no other civilized country similar problem of this magnitude exists. This is indeed a slur on our great heritage, ancient cultural and civilization. 43. This Court in Hem Chand v. State of Haryana [(1994) 6 SCC 727] dealt with the basic ingredient of Section 304-B IPC and Section 113-B of the Evidence Act. This Court, in this case, observed as follows: A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. 44. In cases where it is proved that it was neither a natural death nor an accidental death, then the obvious conclusion has to be that it was an unnatural death either homicidal or suicidal. But, even assuming that it is a case of suicide, even then it would be death which had occurred in unnatural circumstances. Even in such a case, Section 304-B IPC is attracted. 45. In Satvir Singh v. State of Punjab [(2001) 8 SCC 633] this Court examined the meaning of the words "soon before her death". The Court observed that: The legislative object in providing such a radius of time by employing the words soon before her death is to emphasize the idea that her death, should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a close and perceptible nexus between death and the dowry-related harassment or cruelty inflicted on the deceased.

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46. This Court in Hira Lal v. State (Govt. of NCT), Delhi reiterated that Section 304-B IPC and Section 113-B of the Evidence Act were inserted with a view to combat the increasing menace of dowry deaths. Perhaps the legislations are outcome of public opinion and a comprehensive 91st Report on "Dowry Deaths and Law Reform: Amending the Hindu Marriage Act, 1955, the Indian Penal Code, 1860 and the Indian Evidence Act, 1872" submitted on 10.8.1983 by the Law Commission of India. In the introductory chapter of the report, it is mentioned that the last few months have witnessed an alarming increase in the number of cases in which married women die in circumstances which, to say the least, are highly suspicious. In the popular mind, these deaths have come to be associated with dowry, which is why, in popular parlance, they have come to be called "dowry-deaths". Even after more than two decades of submitting the said report and enactment of new legislations, unfortunately cases of dowry deaths are increasing. In the report, deep concern has been shown that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eyewitnesses, except for members of the family. Perhaps to meet a situation of this kind, the legislature enacted Section 304-B IPC and Section 113-B of the Evidence Act. 47. In Hira Lal case this Court observed that the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is relevant for invoking Section 304-B IPC and Section 113-B of the Evidence Act. 48. On consideration of the law as crystallized in the decided cases of this Court and evidence on record, we are, therefore, satisfied that the prosecution has successfully proved its case against the appellants. We, therefore, concur with the view of the courts below and affirm the conviction and sentence of the appellants. These appeals are accordingly dismissed. *****

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TOPIC 5 : HURT AND GRIEVOUS HURT

(Sections 319-325)

Rambaran Mahton v. The State

AIR 1958 Pat 452

KANHAIYA SINGH, J. - This is an appeal from the decision of the Additional Sessions Judge Patna, dated 22nd December, 1956, convicting the appellant under Section 325, IPC and sentencing him to undergo rigorous imprisonment for five years. The charge initially against the appellant was of murder under Section 302, IPC but the learned Additional Sessions Judge found that the charge of murder had not been established. In his opinion the offence the appellant committed was grievous hurt under Section 325, and he sentenced him accordingly.
2. This lamentable incident which was the development of a domestic feud between the two full brothers over almost a trifle and which resulted in the death of one of them took place at 6 p.m. on 29th May, 1956, in village Soh within the Bihar Police Station. Nokhali, the deceased, was the elder brother of the appellant, Rambaran Mahton. Both of them were separate in mess and cultivation. This occurrence took place in the field comprised in Survey Plot 849 which, there is no dispute, had been allotted exclusively to their mother Mst. India (Court witness No. 1). At that time the deceased was looking after his brinjal field which was 250 yards distant from plot 849. The appellant along with his mother and two sisters was then irrigating that plot by means of rahat fixed in a well at some distance from the plot. These ladies were living with the appellant. One of the sisters was married, but at the time of the occurrence she was there with the appellant. The case of the prosecution is that the deceased came to plot 849 from his brinjal field and there took place some altercation between the two brothers. What actually preceded this altercation there is no evidence. According to the prosecution, there was exchange of abuses between the two brothers and the appellant dashed him to the ground and sat upon his stomach and belaboured him with fists and slaps. This rendered him senseless. Both the appellant and his mother gave him water to drink but he did not regain his senses. Several persons arrived at the place of occurrence and a Khatia was brought and Nokhali deceased was taken on the Khatia to one Dr. Bhagwan Sahay who was living a mile away from the place of occurrence. Before medical aid could be given to the deceased, he expired. Soon after a Police Constable arrived at the place of Dr. Bhagwan Sahay and at the instance of the constable, Mst. Garbhi and Ramdas, the widow and the son of the deceased, took the deceased on the ekka to the police station where she lodged First Information Report at 9.30 P.M. The Sub-Inspector visited the place of occurrence soon after at about midnight and forwarded the dead body for post mortem examination. Dr. H.C. Ghosh held post mortem examination on the corpse of Nokhali at 11 a.m. on 30-5-1956. The examination disclosed the following ante-mortem injuries on the person of the deceased:

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(1) Diffused swelling 1 X on the left side of the forehead. On dissection it showed extravasation of blood in the scalp tissues. No bone was injured. (2) Diffused swelling 6 X 4 on the left side of the chest on the lateral aspect extending from 6 intercostal space downwards in auxiliary region. Dissection showed extravasation of blood in soft tissues on the left side of the chest more on the posterior surface. The 8th, 9th and 10th and 11th ribs on the left side were found fractured in anterior auxiliary line and the 10th rib was also fractured in between mid and posterior auxiliary line. On opening the abdomen it was found full of blood which started pouring out. The spleen was found ruptured. One deep laceration 3 X 1 X 1/4 thickness of the spleen on the hylum of the spleen. From it four star shaped ruptures extended laterally from above downwards 1 X 1/8, (4) 1 X 1/8. The thickness varied from the quarter to half of the thickness of the spleen. There was another tear 2 X 1/8 X capsule of the spleen deep on the outer circle of the spleen. The size of the spleen was 7 X 5 X 1 and weight about 11 to 12 ozs. There was clotted blood in perinephric tissues and posterior surface of the capsule of the kidney. The upper bone of the kidney was contused laterally. The splenic flexure of the colon showed congestion of clotted blood in its mesicolon. There was about 3 pints of blood in the abdominal cavity. In the opinion of the doctor, the injuries were caused by some hard blunt substance, and injury no. 2 was caused by hard and strong compression of the chest at the side. His further opinion was that these injuries could be caused by strong kicks and fists. The death was caused by shock and haemorrhage as a result of the aforesaid injuries, particularly, injury no.2. After preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure, the appellant was committed to the Court of Session and was convicted and sentence as stated above. 3. The appellant did not deny the occurrence. In fact, the time and the place of occurrence and the fact that there was some dispute between the two brothers were practically admitted. The appellant, however, did not admit administration of kicks and slaps. According to the defence, when Nokhali came to the place of occurrence he was in a fit of anger and caught hold of the appellant by the throat, and the appellant, in order to extricate himself, pushed him aside and Nokhali fell on a (spade) kodari which was lying in the field. The suggestion is that the injuries that the medical officer found on Nokhali were probably caused by fall on the handle of the kodari. 4. There can be no doubt that the deceased received some serious injuries including injuries on the head and chest and the spleen which actually brought about his death. The important question for consideration is whether the occurrence took place in the manner alleged by the prosecution and whether the appellant was responsible for the infliction of the injuries on Nokhali. There is no dispute that at the time of occurrence the deceased was looking after his brinjal field which was at a distance of 250 yards from the place of occurrence. There is the further evidence that the mother and the two sisters of the deceased, namely, Mt. India, and

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Mt. Phulia and Mt. Patia, were there helping the appellant in the irrigation of plot 849. Their presence at the time of occurrence cannot be doubted. The mother and the sisters were, however, not examined by the prosecution. They were examined as Court witnesses. They are court witnesses nos. 1, 2 and 3. In order to prove their case the prosecution called three witnesses, namely, Mt. Garbhi, widow of the deceased, (P.W. 1) Ramdas (P.W. 2) and Hiraman Pasi (P.W. 5). The evidence of these witnesses is consistent throughout that the appellant pushed Nokhali on the ground, sat upon his stomach and gave him fists and slaps. Their further evidence is that in consequence of the injuries Nokhali became senseless just on the spot. The presence of these witnesses at the time of occurrence cannot be doubted. Mt. Garbhi (P.W. 1) has deposed that she was going to brinjal field from her house where the husband Nokhali was from before, and when she was on the Dagar about 200 steps away from the brinjal field she saw her husband and the appellant quarrelling in the party field of the mother which is plot 849. Her further evidence is that the appellant threw her husband down, got upon his stomach and beat him with fists and slaps. The only criticism of her evidence is that it was not possible for her to see the quarrel and also the beating of her husband by the appellant from a distance of about 200 steps. I do not find any improbability in her evidence. Unless there was something to obstruct her vision for which there is no evidence, it is easy for a person to see a simple occurrence distance of 200 steps. It is quite natural for her to go to her brinjal field to keep watch where her husband was working at that time. I thus do not find anything of substance to discredit her testimony. The next witness is Ramdas (P.W. 2) and his evidence is to the same effect. It was contended, however, that his presence was extremely doubtful and that this boy had been tutored to say what has deposed to by him in the Court. According to the defence, Ramdas came there when the occurrence was over, and his father was lying in a senseless condition. According to the prosecution this boy was in his brinjal field and from there he saw the quarrel between his father and the appellant, and he came there running. There are two important circumstances which disprove the case of tutoring. The first thing is that the whole thing took place in a very short time and the first information report was lodged with the utmost expedition, and there was absolutely no time for tutoring this boy. It will be remembered that Nokhali was taken to the place of the doctor in a senseless condition, and this boy also accompanied his father there. All of them were very much perturbed, and naturally so there was no question of tutoring at all at that time. Another thing we get from the evidence is that this boy went to bring his Mamu, Bhageru Mahton, (P.W. 6). Till then Nokhali had not breathed his last. He informed Bhageru that the appellant had assaulted his father and that he was in a precarious condition at the house of Dr. Bhagwan Sahay and requested him to come there. But before Bhageru arrived, Nokhali had already expired. This is exactly the evidence of Bhageru, also. It follows that at the earliest opportunity this boy mentioned about the assault

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on his father by the appellant to Bhageru. There is in fact nothing in the evidence of Bhageru to doubt his veracity. As a matter of fact, on the question of Ramdas informing him of the assault on his father and of his precarious condition, there was no cross-examination at all. From the house of the doctor they all went straight to the police station and the evidence of Ramdas was recorded that very night at the police station. It will thus appear that there was absolutely no time for anybody to tutor this boy. As a matter of fact the only person who could have prepared him on this point was his mother, but considering her condition as stated by the investigating officer it is hardly probable that she would have composed herself so soon to tutor the boy to say what she considered necessary nor do I think that a lady of her immature brain could have given any such instruction to Ramdas. Another circumstance pointed out to cast the suspicion upon his testimony is that he did not speak about the appellant sitting on the stomach of his father before the investigating officer. This is no doubt true. He did not state before the police that the appellant assaulted his father while sitting on his stomach. This circumstance, in my opinion, is not sufficient to render his evidence suspicious. Firstly the investigating officer has not taken down his statement verbatim, and secondly considering the nature of injuries on the person of the deceased and considering the fact that he was lying on the ground, they could not have been caused unless the assailant was leaning on his body. In fact, we find from the evidence of Mt. Garbhi (P.W. 1) that he was sitting on the stomach while beating him. This omission, therefore, is of little consequence. I think that the evidence of Ramdas is quite frank and straight forward, and do not see any reason to differ from the learned Additional Sessions Judge about the appreciation of his evidence. The last witness is Hiraman Pasi (P.W. 5). At that time he was on palm tree tapping toddy. From that tree he saw the entire occurrence. His evidence was criticised on the ground, first, that his name does not find place in the first information report and secondly, that both the wife and the son of the deceased did not see Hiraman at the place of occurrence. None of these facts is sufficient to render his evidence unreliable. As a matter of fact, these circumstances rather go to reinforce his evidence and make it wholly trustworthy. When according to him, he was at the time of occurrence on the palm tree, it was natural for both the wife and the son of the deceased not to find him there at the place of occurrence. It appears that they have given a most natural version of the occurrence. This also explains the omission of his name from the first information report. Mt. Garbhi who lodged the first information had not seen him at the place of assault and she could not therefore have mentioned his name as a witness in the first information report. This is another circumstance which shows that there was no attempt at embellishment of the prosecution case. It was then alleged that his evidence should be considered with caution, because there was some dispute between Hiraman and the appellant. No substantial difference ever existed between these two persons. All that has been said is that during the time of jointness of the two brothers, Hiraman was tapping their palm trees,

Tukaram v. State of Maharashtra

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but after separation he was tapping only the trees which belonged to the deceased. I fail to understand how this circumstance could have caused any ill feeling between these two persons. He was as a matter of fact not the servant of either and, it is not unlikely that he could not have afforded to tap all the trees belonging to both the appellant and the deceased. In my opinion, his evidence also is quite trustworthy. 5. These three witnesses have convincingly supported the prosecution case. In fact, there is very little difference between the prosecution and the defence version. We are confronted with two theories one put forward on behalf of the prosecution and the other on behalf of the defence. According to the defence injuries were caused by fall on the handle of the spade which was lying in the field at the time of the occurrence. The important question is which version could be accepted having regard to the circumstances of the case. The mother and the two sisters who were examined as Court witnesses have no doubt supported the defence theory. As rightly observed by the learned Additional Sessions Judge, their evidence has to be considered with great caution, because after the death of Nokhali they will certainly make every attempt to protect the appellant who was the only member left in the family. What, however, discounts their evidence and renders it unreliable are the injuries on the person of Nokhali. Having regard to the nature of these injuries it seems difficult to accept the theory that they were caused by fall on the handle of a spade. The injuries, that were on his person, namely, on the head and chest, could not have possibly been caused by mere fall on the spade. In that circumstance we could have expected at best one injury on his body. Further, it will appear from the nature of the injuries that they must not have been caused without application of some force. It is unlikely that a mere fall will bring about those injuries. The defence theory about the manner of the causation of the injuries must therefore be discarded. On a consideration of the entire evidence and the circumstances of the case I have no manner of doubt in my mind that the occurrence took place as alleged by the prosecution. I hold with the learned Additional Sessions Judge that the appellant threw Nokhali on the ground, sat upon his stomach and assaulted him with fists and slaps. 6. The important question is what offence is disclosed by the evidence produced by the prosecution. Sir Sultan Ahmad contended that the existence of grievous hurt is not by itself adequate to complete the offence under Section 325 I.P.C. His contention is that apart from the grievous hurt, there must be on the part of the accused either intention to cause grievous hurt or likely knowledge to cause it. He did not dispute that some of the injuries on the deceased were grievous. He urged, however, that the necessary knowledge or intention to cause grievous hurt was lacking in this case. I am in entire agreement with Sir Sultan so far as the general proposition of law enunciated by him is concerned. Section 320 I.P.C. describes grievous hurt. Section 325 provides for punishment for voluntarily causing grievous hurt. What is meant by the expression voluntary to cause hurt is laid down in Section 321 I.P.C. It provides that whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, is said volutarily to cause

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hurt what will in law amount to voluntarily causing grievous hurt is described in Section 322 I.P.C. It is in the following terms: Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, is said, voluntarily to cause grievous hurt. Explanation: A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. 7. Sir Sultan largely relied upon Explanation to Section 322, and his contention was that in this case it cannot be said that grievous hurt was in contemplation of the accused. Explanation to Section 322 really unfolds the significance of the expression voluntarily to cause grievous hurt. It states in clear terms that the offender both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. It will appear from Section 325 read with Section 322 I.P.C. that the essential ingredients of voluntarily causing grievous hurt, are three in number: (1) grievous hurt as described in S. 320 must first be caused. If the hurt actually caused is simple, a person cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation; (2) the offender intended, or knew himself, to be likely to cause, grievous hurt. If he intended or knew himself to be likely to cause only simple hurt, he cannot be convicted for the offence under Section 325 even if the resultant hurt was grievous. In the other words, to constitute the offence of voluntarily causing grievous hurt, there must be complete correspondence between the result and the intention or the knowledge of the accused (3) the hurt was caused voluntarily. In other words, the causation of grievous hurt was either in contemplation or was the likely result of the act done. It is manifest that in the nature of the things it is difficult to obtain direct proof of what the offender thought was likely to happen. In all cases it is really a question of inference from the nature of the act committed by the offender, his conduct and the surrounding circumstances of the case. When the act that he did in the process of causing hurt is such as any person of ordinary prudence knows it likely to cause grievous hurt, he may safely be taken to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then although grievous hurt may unexpectedly have ensued, the offender can be convicted of simple hurt, only assuming that grievous hurt was not in his contemplation. This is quite obvious on the plain reading of Section 322 along with Section 325 I.P.C. Bearing in mind these underlying principles, the question is whether the appellant in this case intended to cause or had the knowledge of the likelihood of causing grievous hurt. Sir Sultan contended that at the time of the occurrence the appellant was admittedly without any weapon, and assuming the entire prosecution case to be correct, he assaulted him only with fists and slaps and therefore, the appellant could not possibly have known that the consequence of his act was grievous hurt.

Tukaram v. State of Maharashtra

121

I do not agree with Sir Sultan on this point. The means by which the injury was caused is not the true criterion. If it were, so howsoever, grievous an injury may be, the provisions of Section 325 will not be attracted if no weapon was used in causing it. The answer really depends upon the nature of the injury caused and the manner in which the blows were administered, whether by fists and slaps or by a weapon. What we find in this case is that Nokhali had been dashed to the ground. He was wholly undefended. While he was lying on the ground, the appellant sat on his stomach and administered him fists and slaps. He had sustained no injuries, not even a scratch. If the absence of injuries on the person of the appellant is indicative of anything it is this that Nokhali was completely in his grip, totally, unable either to strike him in self-defence or extricate himself from his hold. While Nokhali was lying in such a helpless condition, the appellant assaulted him recklessly with fists and slaps on every part of his body. This is not all. It appears that the blows must have been given with more than usual force. As will appear from the opinion, of the doctor, three of his ribs were fractured and the spleen was ruptured. It is true that the spleen was in enlarged condition, as stated by the doctor, and it is likely, that even slight force might have resulted in the rupture of the spleen. But there is absolutely no explanation so far as the fracture of the ribs is concerned. These injuries, in my opinion, could not have been caused unless blows were given to him with great force. There will absolutely be no justification for the appellant to strike him with strong fists and slaps when he neither retaliated nor tried to defend himself. If in such circumstances a person belabours a man with fists and slaps, it is, I think, obvious, as it will be obvious to every body of ordinary prudence, that grievous hurt would ensue. I agree with Sir Sultan that there could have been no intention on the part of the appellant to cause grievous hurt to his elder brother, but I have no doubt that the way in which he assaulted his brother, he should have known that he was likely thereby to cause grievous hurt to him. In my opinion, the offence that was caused in this case was grievous hurt, as contemplated by Section 325, IPC and the appellant was rightly convicted by the learned Additional Sessions Judge of this offence. 8. Lastly, Sir Sultan contended that even if the offence came within the purview of Section 325 the sentence of five years was in the circumstances of the case, too severe. It is common ground that plot 849 which was the venue of the occurrence did not belong to the deceased but that it had been allotted exclusively to his mother who was admittedly residing with the appellant. Nokhali had no business to go to plot 849 where the appellant, along with his mother and sisters, was carrying on irrigation work peacefully. Further, after Nokhali became senseless, he did not forsake him and leave the place. He stayed on to tend him. The evidence shows that he gave him water to drink and also sprinkled water upon his body in order to bring him to senses. It is indicative of the fact that remorse eventually overpowered him when passion subsided, and the humane in him triumphed. The learned Additional Sessions Judge took into consideration these special features of the case and for that reason held him guilty not of murder but of causing grievous hurt. In my opinion, these very circumstances also call for a lenient consideration of his case. They show

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that the appellant beat his brother under great provocation given by the deceased himself and in the heat of the moment. Having regard to the relationship between the parties and also the fact that this unfortunate incident occurred on the spur of the moment due to provocation given by the deceased himself and also absolutely no intention on the part of the appellant either to kill him or to cause him such bodily injury as was likely to cause his death, I think the ends of justice will be sufficiently met if he is awarded one years rigorous imprisonment. I would, therefore, alter the sentence from five years rigorous imprisonment to one years rigorous imprisonment. With this modification in the sentence, the appeal is dismissed. *****

Tukaram v. State of Maharashtra

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E. K. Chandrasenan v. State of Kerala

(1995) 2 SCC 99

HANSARIA, J. - Such tragedies have been taking heavy toll of human lives throughout the length and breadth of the country. It could be well said that practically every year the liquor barons, in some part or the other of this vast country-Bihar is a recent example-earn easy money by ruining many houses and making many persons destitute. Many ladies have become widows and many children orphans.
Here is a case in which the festive day of Onam 1982 brought disaster to many families in as much as the prosecution case is that 70 persons died after having consumed liquor form the shops and sub- shops which were catered by the firm named Bee Vee Liquors and 24 lost eyesight permanently, not to speak of many others who became prey to lesser injuries. The joyous day of Onam (1-9-1982) thus became a day of disaster for hundreds of families. The magnitude of the calamity swung police into action who after close investigation charge sheeted 10 persons for offences punishable under Sections 120-B, 302, 272 and 328 read with Sections 107 and 109 of the Indian Penal Code, as well as some sections of the Kerala Abkari Act. At one state, the Sessions Judge at Ernakulam discharged the 4th accused and framed charges against others excluding one under Section 302. This was challenged before the Kerala High Court which confirmed the discharge of the 4th accused but directed the Sessions Judge to frame charge under Section 302 also. In the trial which proceeded thereafter the prosecution examined 324 witnesses and proved 433 documents. At the close of the trial, the Sessions Judge acquitted Accused 5 to 8 and 10 of all the charges. In so far as Accused 1 to 3 and 9 are concerned, they were also acquitted of the offences under Section 302 of the Penal Code as well as under the Abkari Act, but were convicted under Sections 120-B and 328 as well as sections 107, 109 and 272 read with Section 34 of the Penal Code. Various sentences were awarded for these offences. 2. The convicted accused filed appeals before the Kerala High Court and the State challenged the acquittal of all the accused for the offence under Section 302 and the acquittal of Accused 5 to 8 and 10 for all the offences. The High Court heard all the appeals together and after a very detailed examination of the materials on record dismissed the appeals of Accused 1 to 3 and 9. Insofar as the States appeal is concerned, the same was partly allowed by convicting Accused 1 to 3, 9 and 10 under Section 326 read with Sections 120-B, 107 and 109 and each of them was sentenced to undergo rigorous imprisonment for seven years. The l0th accused was further convicted under Sections 120 -B and 328 read with Sections 107 and 109 as well as Section 272 read with Sections 34, 107 and 109. For the offence under Section 328, rigorous imprisonment for six months and a fine of Rs 10,000 and for the offence under Section 272 rigorous imprisonment for six months and a fine of Rs 1000 were awarded, with the rider that the substantive terms of imprisonment would run concurrently. 3. Accused 1 to 3 and 10 have filed these appeals with the aid of Article 136. These appeals were earlier heard by a Bench of Kuldip Singh and late Yogeshwar Daya1, JJ., and after hearing them at great length the bench felt that the case of enhancement exists; and so, rules of enhancement were ordered on 5-1-1994. Learned counsel for the appellants addressed us on the question of enhancement as well. Insofar as Accused 9 is concerned, he had filed

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SLP (Crl) No.1190 of 1990 which was dismissed on 31-7-1990. Review petition was also dismissed on 28-8-1991. By an order dated 10-11-1994, he was however, noticed by us to show cause as to why sentence awarded to him by the High Court should not be enhanced, having noted that the maximum sentence awarded to him was rigorous imprisonment for seven years and all the sentences were ordered to run concurrently. Pursuant to the notice issued to this accused, he filed his written submission and we heard Senior Advocate Shri Jain also on the question of his acquittal as well, as mentioned in our notice; so also on the question whether sentence awarded to him merits enhancement. 4. Let it first be seen whether the conviction as awarded by the High Court is sustainable. To decide this what we shall have to primarily see is whether the five accused before us had acted in concert in committing the offences for which they have been held guilty by the High Court. Before examining this aspect, it may be stated as the High Court also had not convicted any of the appellants under Section 302 of the Penal Code and as there is no appeal to this court against the acquittal under Section 302, we are not addressing ourselves, as it is not open to do so, to the question whether the appellants were guilty under Section 302. We, therefore, propose to continue our discussion to the conviction as awarded by the High Court. 5. The licence to vend liquor being in the name of the aforesaid firm (Bee Vee Liquors), it is apposite to mention that in this firm, which was started on 13-3-1980, initially Accused 2 and 10 were partners, in which partnership eight persons including. Accused 1 and 3 were inducted subsequently. In the relevant year (1982-83) the liquor licence had been obtained by the firm in the name of Accused 1 and 2 along with wife of the first accused. Insofar as Accused 9 is concerned, he is an outsider and a chemist who had, according to the prosecution, entered into a conspiracy, inter alia, with the aforesaid accused, which conspiracy ultimately culminated in the aforesaid tragedy. For the sake of completeness, it may be pointed out that though Accused 10 withdrew from this partnership sometime before the tragic occurrence, there is a finding based on materials on record that he continued his relationship with the firm. 6. The liquor having been supplied by the aforesaid firm, the principal argument of the learned counsel appearing for the appellants is that the aforesaid accused cannot be held guilty of any criminal offence for the misdeed, even if there be any, of the firm inasmuch as there cannot be any vicarious liability in a case of the present nature. Shri Nambiar appearing for the State has fairly stated that he is not pressing, as he cannot, the principle of vicarious liability to fasten the guilt on the appellants. According to the learned counsel there is plethora of material on record to show that the five accused named above had acted in concert in adulterating the liquor, consumption of which was responsible for the deaths and loss of eyesight, apart from causing other injuries. Shri Nambiars submission is that the aforesaid partners of the firm were those who were in charge of the management and Accused 9 had entered into conspiracy either individually or collectively with them: and as such, all the five accused before us are guilty of the offences for which they have been convicted by the High Court. This result follows, according to Shri Nambiar, either because of the conspiracy of the partners or because of the common intention on the part of the partners. According to the counsel appearing for the appellants, however, the mere fact that Accused 1, 2, 3 and 10 were

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in active management of the firm (which they dispute) would not be sufficient, in the absence of any evidence relating to conspiracy to hold them guilty of the offences in question. 7. Let it first be seen whether from the evidence as led in the case the conclusion arrived at by the High Court that the four aforesaid accused were in active management of the firm suffers from any infirmity. 8. This aspect of the case presents no problem insofar as Accused 1, 2 and 3 are concerned in as much as even licence to vend liquor by the firm stands in the name of Accused I and 2 and as to Accused 3 there is enough evidence to show that he was taking active part in the management. This question is really relevant qua Accused 10. As regards him, the High Court has mentioned about the following circumstances to show that despite his withdrawal from the firm of Bee Vee Liquors before the occurrence, he continued to take active part in the management: (i) operation of bank account up to 31-9-1982; (ii) the continued user of the jeep belonging to this accused by the firm of Bee Vee Liquors; (iii) dealing with all labour problems and service conditions of the employees of the firm; (iv) joint management of the firm at hand and Vypeen Liquor, in which this accused was admittedly taking leading part, treating them as sister concerns; (v) continuous money transactions between Bee vee Liquors and Cochin wines, another firm of this accused; (vi) overdraft applications made by this accused along with accused 2 on behalf Bee Vee Liquors in May 1982; 9. The aforesaid circumstances do not leave any manner of doubt in our mind that Accused 10 was taking active part in the management. The submission of Shri Sanyal that this accused was a financier only and was looking after financial matters cannot be accepted inasmuch as he was even taking care of labour problems and service conditions of the employees of the firm. 10. In the aforesaid promises, we have no hesitation in agreeing with the conclusion arrived at by the High Court that all the four appellants were taking active part in the management of the firm. Shri Sanyal contends that this by itself is not sufficient to hold this accused guilty of the offences in question in the absence of any satisfactory proof relating to conspiracy. The perusal of the judgment shows that after taking this view, the High Court analysed the evidence (direct or circumstantial to find out whether there was conspiracy between the parties and it ultimately concluded that there was a conspiracy. 11. In coming to this conclusion, the High Court principally relied on the evidence of PWs 38, 39, 42, 278 and 281. Shri Sanyal has strenuously contended that evidence of these witnesses does not support the conclusion arrived at by the High Court. We shall advert to this submission later. Let it be first stated that according to us no proof of conspiracy as such between the four appellants was strictly necessary inasmuch as they being partners had clear motive to derive wrongful gain from adulteration which was undertaken on behalf of the firm

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-to commit the offences. The venture undertaken has been described as huge profit making by the High Court and it has rightly said that without the knowledge consent and connivance of the persons in the management of the firm such a venture would not have materialised. 12. We may give some idea about the magnitude of the illegal act which was undertaken. The brain behind this sordid drama was Accused 9. He was doing business at Thrippunithura under the name of Atlas Chemicals and was dealing in varnish and paints. He purchased 23 barrels of methyl alcohol from Rekha Chemicals at Bangalore under fictitious name Synthetic Poly Hydride Thinner. Prosecution case is that he entered in conspiracy with other appellants on or about 18-8-1982 for the supply of 23 barrels of methyl alcohol to be mixed with arrack and water for distribution to the consumers. 13. Samples which were sent for examination revealed that some of the barrels contained methyl alcohol ranging from 67.83% upto 96.4%. In the house of Accused 9, three loaded barrels were found which contained methyl alcohol from 88.36% upto 95.5 %.It is not disputed that methyl alcohol is virtually poison. The greed for huge money is thus writ large in the abominable planning. 14. Another aspect of the case makes the criminality apparent. The firm had lifted only 3200 litres of arrack from 1-8-1992 up to 2-9-1992 as against the sanctioned quantity of 5000 litres, but during this period it distributed 19,492.05 litres through various shops and the subshops. The additional quantity of more than 16,000 litres constituted either water or methyl alcohol. 15. Nothing more than the above is required to hold that the liquor barons were out to earn profit at the cost of human lives. The magnitude of profit aimed at fully satisfies us that there was meeting of mind insofar as the persons in the management of the firm are concerned to undertake the highly illegal act. As, however, the High Court has gone into the question of conspiracy and has relied on evidence of aforesaid PWs to conclude that there was a conspiracy between the aforesaid persons, let the contention of Shri Sanyal noted above be dealt with now. 16. The High Court having dealt with the evidence of these witnesses at some length, we do not propose to note what these witnesses had stated. Instead, we would deal with the criticism advanced by Shri Sanyal. The main attack of Shri Sanyal is about omission of the name of Accused 10 by these witnesses when they were questioned during investigation. Not that all the witnesses had omitted to name this accused, because PW 39, who was an employee of a shop for 12 years, had named this accused, so had PW 278. As regards those witnesses who had omitted to name, the High Court has given cogent reason as to why despite omission found in their statements as recorded by PW 324 (the Investigating Officer) their evidence should be accepted. Not only this the High Court has dealt with the reasons given by the trial court for disbelieving these witnesses and has adequately met the reasons. We do not propose to traverse this ground over again as we are fully satisfied about this part of High Courts judgment. 17. As, however, Shri Sanyal has taken pains to highlight the omission by some of the witnesses in naming Accused 10 during investigation, we propose to say a few words regarding this submission. A perusal of the judgment of the High Court leaves no manner of

Tukaram v. State of Maharashtra

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doubt that the investigating agency had made all efforts to shield Accused 10; may be because of the political clout or any other reason. This would be apparent from the fact that though this accused was being shown as absconding by the police, he was in constant touch with the police and was having meeting with the police who advised him not to surrender because if he did so he ran the risk of his anticipatory bail being rejected. Not only this, the High Court has stated in paragraph 190 that the police was giving secret information to this accused and ultimately they went in for a thrilling arrest at the cost of huge expenditure to the State, as after giving out that this accused is absconding, his photos were published in newspapers offering reward, which drama ultimately ended at Delhi. It would be a fitting finale that the last act of the judicial exercise as regards of this accused also ends at Delhi. 18. It is because of the aforesaid that the High Court did not feel inclined to place much reliance on the omissions, because where the investigation is partisan and wants to shield somebody, the statements of witnesses examined during investigation involving the person concerned would be manipulated. The High Court, therefore, in some cases even perused the police diary and was satisfied that the allegation of the omission was not correct. 19. The aforesaid is all that is required to be said to deal with the contentions advanced by Shri Sanyal on behalf of Accused 10 when appeal was being heard in court. In the written submissions filed subsequently, what has been done is primarily to reiterate the points urged in open court by citing some decisions to support the contentions. The cases referred relate to legal propositions as to when conviction can be founded on circumstantial evidence, when can vicarious liability be fastened in a criminal matter, when can order of acquittal be set aside by an appellate court and when can conspiracy be held as established. We do not think it necessary to deal with the referred decisions, as the view we have taken is based on facts before us and the conclusions arrived at by us do not militate against any legal proposition propounded in the decisions. May we state that the doctrine of vicarious liability was not pressed into service by Shri Nambiar himself; and so, we have placed no reliance on the same to uphold the convictions of this appellant or, for that matter, any other appellant. As to the High Court setting aside the order of acquittal of Accused 10, the above-noted discussion shows that it had done so for good and cogent reasons; and what is more, it did so after appraising itself of the reasons given by the trial court in disbelieving the witnesses in question and it duly met the flaws pointed out. As regards circumstantial evidence, it is clear that those brought on record have duly and sufficiently linked this accused with the offence in question. The chain is complete to fasten him. As to when conspiracy can be taken as established, it has been accepted in the decisions relied on by Shri Sanyal, that there can hardly be direct evidence on this, for the simple reason that conspiracies are not hatched in open; by their very nature they are secretly planned; and so, lack of direct evidence relating to conspiracy by this accused has no significance. 20. Insofar as other appellants are concerned, not much is required to be said by us in view of the concurrent finding of the trial court and the High Court about their involvement. As, however, Shri Lalit appearing for Accused I made efforts, and sincere efforts at that, to persuade us to disagree with the finding relating to this accused being hand in glove with others, let us deal with the submissions of Shri Lalit. He contends that there is nothing to show about this accused being a conspirator inasmuch as in the meeting which had been taken

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place on or about 18-8-1982 with Accused 9 this accused was not present. This is not material because conspiracy can be proved even by circumstantial evidence; and it is really this type of evidence which is normally available to prove conspiracy. The further submission of Shri Lalit is that the only work entrusted to this accused relating to the partnership business was to look after matters with the Government. The financial control was with Accused 2 and 10 and all the recoveries were made at the instance of Accused 3, states Shri Lalit. These facts do not militate against the conclusion arrived at by the courts below that this accused was thick and thin with others. Among the facts mentioned is that it was he who was one of the bidders for 1982-83 and it was he who had applied for permission for keeping arrack shops open till night in the festival season from 3-8-1982 to 16-8-1982 and from 18-8-1982 to 5-9-1982. 21. We, therefore, conclude by stating that we find no infirmity in the conclusion arrived by the High Court regarding the active participation of the four appellants in the despicable act undertaken by them. 22. What is required to be seen further is whether the conviction of these appellants under Sections 326, 328 and 272 is tenable or not. So far as Section 272 is concerned, there is no dispute because apparently there was adulteration. The learned counsel for the appellants has taken pains to convince us that no offence under Section 326 specially was committed. Though some submissions had been advanced about non-applicability of Section 328 also, it is apparent that if we would be satisfied about applicability of Section 326, Section 328 would apply proprio vigore. 23. According to Shri Sanyal, mischief of Section 326 would not be attracted for two reasons. First, the appellants had not caused any hurt voluntarily. Secondly the hurt caused, in any case, was not grievous. 24. To sustain the first submission, Shri Sanyal refers us to the definition of voluntarily as given in Section 39 for the Penal Code which, inter alia, says that a person is said to cause an effect voluntarily when he knew or had reason to believe to be likely to cause it. Learned counsel contends that the accused persons had no knowledge that the effect of the consumption of the adulterated liquor would be so injurious as it proved to be. This submission cannot be accepted because the aforesaid knowledge can well be imputed for two reasons. First, under the Kerala Abkari Act no mixture at all with the liquor as supplied to the firm was permissible. This legal position is not disputed before us. In view of this, the acceptance of the formula given by A-9 in mixing spirit or water with arrack was itself an illegal act. Secondly, in the present case what was mixed was not spirit but, as already noted, poisonous substance, as is methyl alcohol. The percentage of methyl found in the liquor supplied by the firm being what was found to be, it has to be held that the persons responsible for mixing had the knowledge that consumption of the liquor was likely to cause very serious adverse effects. The contention that all the consumers were not adversely affected cannot water down the mens rea required to bring home the guilt under Section 326. 25. The next submission of Shri Sanyal for non-applicability of Section 326 is that the hurt caused was not grievous. To satisfy us in this regard, our attention is invited to the definition of grievous hurt as given in Section 320, according to which the following kinds of hurt only are designated as grievous:

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First: Emasculation. Secondly: Permanent privation of the sight of either eye. Thirdly: Permanent privation of the hearing of either ear. Fourthly: Privation of any member or joint. Fifthly: Destruction or permanent impairing of the powers of any member or joint. Sixthly: Permanent disfiguration of the head or face. Seventhly: Fracture or dislocation of a bone or tooth. Eighthly: Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 26. Shri Sanyal urges that for a hurt to be grievous, the same must be one which endangers life. The background of making this submission is that the High Court took the view that the accused had no knowledge that the adulteration caused by them would endanger life because of which the accused persons were not convicted under Section 302. According to us, the High Court was not correct in arriving at this finding; but as there is no appeal by the State against acquittal of the appellants under Section 302, we would, instead of reversing this finding of the High Court, proceed to examine the submission of Shri Sanyal that the brew in question did not endanger life. 27. This submission does not stand a moments scrutiny in as much as the requirement of endangering life mentioned in clause eighthly cannot be read in other clauses. To us, this is so apparent that we really did not expect a submission of this nature from a senior counsel. Shri Sanyal, however persisted and sought to press into service the observation made by a Full Bench of the Bombay High Court in Govt. of Bombay v. Abdul Wahab. That observation is: The line between culpable homicide not amounting to murder and grievous hurt is a very thin and subtle one. In the one case the injuries must be such as are likely to cause death; in the other, the injuries must be such as endanger life ... This has to be read in the context in which it was made; and the same was that the jury in that case had returned a unanimous verdict of the accused not being guilty of culpable homicide not amounting to murder, but only of grievous hurt. A contention was advanced by the State before the High Court that as injuries in question were such which endangered life, the guilt of culpable homicide not amounting to murder was brought home. As, for this offence the injuries must be such as are likely to cause death, the Full Bench drew attention to the difference in between the two. The same cannot, therefore, be read to mean that for a hurt to be designated as grievous the same must be such which endangers life. In the present case, as many as 24 persons having lost their eyesight permanently, the hurt in question has to be regarded as grievous because of what has been stated in clause secondly of Section 320. 28. The two submissions advanced by Shri Sanyal for non-applicability of Section 326 to the facts of the present case being not tenable, we uphold the conviction of the five accused before us under Section 326. This being the position nothing further is required to be started regarding the guilt under Section 328, because it cannot be urged, as was faintly sought to be done, that the present was not a case where the accused persons had caused liquor to be

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taken by the affected persons. We have said so as it was the liquor supplied by the firm to the shops and sub-shops which was consumed; and so, it has to be held that the consumers were made to take the liquor supplied by the firm. Other requirements of Section 328 being present, the conviction under Section 328 too was rightful. 29. Let it now be seen whether the sentences on the appellants merit need to be enhanced. On this aspect, according to us, there cannot be two opinions, as the appellants by their nefarious activity, prompted only by lust for money, sold such a brew which contained even a poisonous substance. And see the enormity of consequences: 70 deaths and 24 losing their eyesight permanently. What can be more shocking to the conscience? If greed for money makes people so unconscionable, so unconcerned with human happiness and makes them behave like devils and to destroy human lives, they have to be dealt with appropriately, sternly and with a steel heart not yielding to any plea of softness on any ground, not relenting to discharge the onerous duty which falls on a court in such cases. The need to rise to the occasion becomes great and imperative when it is noted that liquor barons have long been playing with destinies of many with impunity for one reason or the other, which has encouraged them to indulge in such an activity without fear of law haunting them. This is abundantly clear from deaths due to consumption of spurious liquor in different parts of the country. This has become almost a regular feature and such tragedy had been taking heavy toll of human lives almost every year in one part or the other of this vast country. To mention about such recent tragedies, it was Gujarat which saw this disaster in 1991 in a big way, it fell on Cuttack in 1992 to see loss of more than 100 lives; and very recently this tragic drama was enacted in Patna, where too about 100 persons became victims. 30. So, retribution itself demands enhancement. Deterrence lends further support to the demand. Let us all strive to check such atrocious acts. We would be indeed failing in our duty if we were not to do so. And the least we can do in the cases at hand is to see that the maximum sentence visualised by our law-makers is awarded to all the appellants before us. There can hardly be more appropriate occasion than the one at hand to award the maximum sentence. 31. So far as the A-9 is concerned, we have on record his written submission stating that he had been released from the Central Prison, Trivandrum on 15-6-1994 after having undergone the whole term of punishment. He has further stated that he being an old man aged 72 years and absolutely deaf and being also financially very weak, his punishment may not be enhanced. Being not represented by any counsel, we thought it appropriate to provide him legal aid, to which effect we requested the Supreme Court Legal Aid Society to appoint a counsel for him. Shri R.K. Jain, Senior Advocate appeared accordingly. We have heard him. 32. We acquainted Shri Jain with what had been stated by us while issuing enhancement notice and the same being that it would be open to this accused even to urge that he is entitled to acquittal Shri Jain submitted that on the face of dismissal of the special leave petition filed by this accused, followed by dismissal of the review petition, he is not in a position to urge that the conviction of this accused was not justified. The learned counsel, however, urged that keeping in view the old age of this accused and his financially weak position, because of which even before the trial court as well as in the High court he was given legal aid, we may not enhance the sentence. His deafness is also brought to our notice.

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33. We have duly considered the aforesaid submissions of Shri Jain. As to the advanced age we would say though this is a mitigating circumstance, there exists an aggravating circumstance as well the same being that it was this accused who was the prime mover, as would be apparent from the facts noted above and as pointed out by the High Court in the judgment. Thus the age factor has been neutralised by the active role played by this accused in the conspiracy. As regards financial weakness of the accused which required providing of legal aid in the courts below, the same cannot be said to have in any way prejudiced him in as much as his case was adequately taken care of by the other accused who were well defended by eminent lawyers. Further, the accused has now got assistance of Senior Counsel like Shri Jain who is known for his legal acumen. Insofar as deafness is concerned that is not relevant for the purpose of hand. 34. Because of the above, we have not felt inclined to treat this accused differently from others. Indeed treating him differently would result in a sort of discrimination, which was one of the submissions advanced by Shri Sanyal appearing for Accused 10. This submission does have merit inasmuch as the role played by Accused 9 was in no way less, really it was more, than other accused qua whom we are satisfied that a case of enhancement has been made out. 35. For the aforesaid reasons, we are of the view that the sentence of this accused also has to be enhanced. We, therefore, enhance the sentence of all the appellants and Accused 9, named, Ramavarma Thirumaulpad, for their offence under Section 326 to imprisonment for life. In view of this, we are not interfering with sentences awarded to them for other offences. 36. For the reasons aforesaid, all the appeals stand dismissed and rules of enhancement stand disposed of by enhancing sentences as ordered above. The appellants shall surrender the bail bonds and undergo the sentence as awarded by us. The trial court is directed to issue warrants to arrest all the appellants and Accused 9, Ramavarma Thirumulpad. The District Magistrate and Superintendent of Police concerned are directed to execute the warrants. *****

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

TOPIC 6 : KIDNAPPING AND ABDUCTION

(Sections 359-363 read with section 18)

S. Varadarajan v. State of Madras

AIR 1965 SC 942

J.R. MUDHOLKAR, J. - This is an appeal by special leave from the judgment of the High Court of Madras affirming the conviction of the appellant under Section 363 of the Indian Penal Code and sentence of rigorous imprisonment for one year awarded by the Fifth Presidency Magistrate, Egmore, Madras.
2. Savitri, PW 4, is the third daughter of S. Natarajan, PW 1, who is an Assistant Secretary to the Government of Madras in the Department of Industries and Cooperation. At the relevant time, he was living on 6th Street, Lake Area, Nangumbakkam along with his wife and two daughters, Rama, PW 2, and Savitri, PW 4. The former is older than the latter and was studying in the Madras Medical College while the latter was a student of the second year B.Sc., class in Ethiraj College. 3. A few months before September 30, 1960 Savitri became friendly with the appellant Varadarajan who was residing in a house next door to that of S. Natarajan. The appellant and Savitri used to carry on conversation with each other from their respective houses. On September 30, 1960 Rama found them talking to each other in this manner at about 9.00 a.m. and had also seen her talking like this on some previous occasions. That day she asked Savitri why she was talking with the appellant. Savitri replied saying that she wanted to marry the appellant. Savitris intention was communicated by Rama to their father when he returned home at about 11.00 a.m. on that day. Thereupon Natarajan questioned her. Upon being questioned Savitri started weeping but did not utter a word. The same day Natarajan took Savitri to Kodambakkam and left her at the house of a relative of his, K. Natarajan, PW6, the idea being that she should be kept as far away from the appellant as possible for some time. 4. On the next day, i.e., on October 1, 1960 Savitri left the house of K. Natarajan at about 10.00 a.m. and telephoned to the appellant asking him to meet her on a certain road in that area and then went to that road herself. By the time she got there the appellant had arrived there in his car. She got into it and both of them went to the house of one P.T. Sami at Mylapore with a view to take that person along with them to the Registrars office to witness their marriage. After picking up Sami they went to the shop of Govindarajulu Naidu in Netaji Subhas Chandra Bose Road and the appellant purchased two gundus and Tirumangalyam which were selected by Savitri and then proceeded to the Registrars office. Thereafter the agreement to marry entered into between the appellant and Savitri, which was apparently written there, was got registered. Thereafter the appellant asked her to wear the articles of jewellery purchased at Naidus shop and she accordingly did so. The agreement which these two persons had entered into was attested by Sami as well as by one P.K. Mar, who was a coaccused before the Presidency Magistrate but was acquitted by him. After the document was registered, the appellant and Savitri went to Ajanta Hotel and stayed there for a day. The appellant purchased a couple of sarees and blouses for Savitri the next day and then they went

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by train to Sattur. After a stay of a couple of days there, they proceeded to Sirukulam on October 4, and stayed there for 10 or 12 days. Thereafter they went to Coimbatore and then on to Tanjore where they were found by the police who were investigating into a complaint of kidnapping made by S. Natarajan and were then brought to Madras on November 3rd. 6. It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st. The other facts which have already been stated are also not disputed. A twofold contention was, however, raised and that in the first place Savitri had abandoned the guardianship of her father and in the second place that the appellant in doing what he did, did not in fact take away Savitri out of the keeping of her lawful guardian. 7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her fathers guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that taking of Savitri out of the keeping of her father has not been established. [Here the court quoted the definition of the offence of kidnapping from lawful guardianship as defined in Section 361 of the Indian Penal Code]. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to taking out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law taking. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrars office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitris evidence, who it may be mentioned, had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitris own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had

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been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her fathers house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself, but as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was not an uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. 8. The learned Judge also referred to a decision in R v. Kumarasami [2 Mad HC Rep 331] which was a case under Section 498 of the Indian Penal Code. It was held there that if whilst the wife was living with her husband, a man knowingly went away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, it would be a taking from the husband within the meaning of the section. 9. It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her fathers protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the fathers protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardians house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardians house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking. [The court referred to some decisions of the High Court.] 12. It must be borne in mind that while Sections 497 and 498 IPC are meant essentially for the protection of the rights of the husband, Section 361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in State v. Harbansing Kisansing [ILR 1954 Bom. 784]. In that case Gajendragadkar, J., (as he then was) has, after pointing out what we have said above, observed:

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It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves. 15. The view which we have taken accords with that expressed in two decisions reported in Coxs Criminal Cases. The first of them is Reg v. Christian Olifir [X Coxs Criminal Cases, 402]. In that case Baron Bramwell stated the law of the case to the jury thus: I am of opinion that if a young woman leaves her fathers house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parents custody, yet his not doing so is no infringement of this Act of Parliament (24 and 25 Vict. clause 100 Section 55) for the Act does not say he shall restore her, but only that he shall not take her away. The jury returned a verdict of guilty in this case because the girls evidence showed that the initial formation of her intention to leave her fathers house was influenced by the solicitations of the accused and by his promise to marry her. 16. The other case is Rex v. James Jarvi [XX Coxs Criminal Cases, 249].There Jelf, J., has stated the law thus to the jury: Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do - namely, tell her to return home - that fact is not by - itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoners conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction. In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of not guilty. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind. 17. The relevant provisions of the Penal Code are similar to the provisions of the Act of Parliament referred to in that case. 18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsburys Laws of England, 3rd Edn., Vol. 10, at p. 758: The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received

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and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her. 20. We are satisfied, upon the material on record, that no offence under Section 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly, we allow the appeal and set aside the conviction and sentence passed upon him. *****

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Thakorlal D. Vadgama v. State of Gujarat

AIR 1973 SC 2313

I.D. DUA, J. - This appeal by special leave is directed against the judgment and order of the
Gujarat High Court allowing in part the appellants appeal from his conviction by the Court of the Sessions Judge, Jamnagar under Sections 366 and 376, I. P. C. The High Court acquitted him of the offence under Section 376, I.P.C., but maintained his conviction and sentence under Section 366, I.P.C. 2. According to the prosecution case, the offence under Section 366 I.P.C. took place on January 16, 1967, and the offence of rape with which he was charged was committed on the night between the January 16, and 17, 1967. As observed by the High Court, the background which led to the culmination resulting in the commission of the offences leading to the appellants trial has been traced by Mohini, the victim of the offences, in the prosecution version, to the latter part of the year 1965. The appellant, an industrialist, had a factory at Bunder Road for manufacturing oil engines and adjoining the factory was his residential bungalow. During the bombardment of Jamnagar by Pakistan in 1965, Mohinis parents came to reside temporarily at Bhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohinis birthday, the appellant presented her with a parker pen. It may be pointed out that Mohini was at that time a school-going girl below 15 years of age. She kept the pen for about 2 or 3 days, but at the instance of her mother, returned it to the appellant. Thereafter, the appellant went to Baroda in his car and he took with him, Mohini, her father Liladhar Jivraj, his manager Tribhovandas, Malati, daughter of Tribhovandas, who was about 12 years old, and Harish, a younger brother of Malati. At Baroda, the appellant negotiated some transaction with regard to the purchase of some land for the purpose of installing a factory there. It appears that there was some kind of impression created in the mind of Mohinis father that he would be employed by the appellant as a manager of the factory to be installed at Baroda. The party spent a night at Baroda and next morning started on their return journey to Jamnagar. During Christmas of 1965 the appellant had a trip to Bombay and during this trip also he took with him, the same party, viz., Mohini, her father, Tribhovandas and Tribhovandas daughter and son. In Bombay they stayed in Metroplitan Hotel for two nights. According to the prosecution story it was during these two nights that Mohini, Malati and the appellant slept in one room, whereas Mohinis father, Malatis father and Harish slept in another room. On these two nights the appellant is stated to have had sexual intercourse with Mohini. During this trip to Bombay the appellant is also said to have purchased two skirts and waist bands for Mohini and Malati. After their return to Jamnagar, according to the prosecution story, the appellant had sexual intercourse with Mohini once in the month of March, 1965 when she had gone to the appellants residential bungalow at about 7 p.m. Indeed, Mohini used to visit the appellants place off and on. During the summer vacation in 1966 the appellant had a trip to Mahabaleshwar in his car. On this occasion, along with Mohini he took her two parents as well as also his own daughter Rekha. On their way to Mahabaleshwar, they stopped at Bombay for two days. After staying at Mahabaleshwar for two days, on their return journey they again halted at Bombay for a night, and then proceeded to Mount Abu. At Mount Abu they stayed for one day and all of

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them slept in one room. At about 3.00 a.m. when Mohinis mother got up for going to bathroom and switched on the light, she noticed that the appellant was sleeping by Mohinis side with his hand on her head. Mohinis mother restrained herself and did not speak about what she had seen because the appellant had requested her not to do so. Next morning the party went to Ambaji from where they returned to Jamanager. At Jamnagar Mohinis mother informed her husband about what she had seen during the night at Mount Abu, Mohinis father got annoyed and rebuked Mohini. Her mother also warned her against repetition of such conduct. Mohini apologised. The appellant on coming to know of the feeling of Mohinis parents, told her father that Mohini was just like his own daughter Rekha to him and that he would even go to Dattatraya temple and swear by God to that effect. The appellant is stated to have actually taken Mohinis father, Mohini and Rekha to Dattatraya temple in Jamnagar and placing his hands on the heads of Mohini and Rekha swore that they were his daughters. Even after this incident in Dattatraya temple, the appellant once met Mohini when she was returning from her school and took her to his own bungalow in his car. There, he had sexual intercourse with her. It seems that Mohinis parents came to know about this incident and they rebuked her. Mohinis parents also started taking precaution of not sending her alone to the school. From July, 1966 onwards either the maid-servant or Mohinis mother herself would accompany her to the school. The appellant is stated to have made an effort to contact Mohini during this period. He called her at his house on Saturday, September 24, 1966. Mohinis mother having come to know of this behaviour on the part of the appellant, wrote him a letter, dated September 26, 1966, requesting him to desist from his activities of trying to contact Mohini. Apparently, after this letter there was no contact between Mohini and the appellant in Jamnagar. In October, 1966, however, Mohini had gone to Ahmedabad in school camp and there the appellant contacted her and took her out for a joy ride in company with two of her girl friends. Thereafter, in the months of November, and December, 1965 nothing particular seems to have happened. According to the appellant, however, during those two months, Mohini had written letters to him complaining of ill-treatment by her parents and expressing her desire to leave her parents house. We would refer to those letters a little later. Early in January, 1967 the appellant is alleged to have told Mohini to come to his bungalow. On January 16, 1967, Mohini started for her school with a school book and two exercise books, in the company of her mother Narmada who had to go to Court for some work. Upto the Court premises, they both went together where Smt Narmada stayed on and Mohini proceeded to her school. Instead of going to her school, she apparently was to the appellants factory, according to a previous arrangement. There the appellant met her and took her inside his motor garage. From there she was taken to the attached room and made to write two or three letters on his dictation. She did so while sitting on two tyres. These letters were stated to have been addressed to her father, to the District Superintendent of Police of Jamnagar, and to the appellant himself. These letters contained complaints of ill-treatment of Mohini by her father and mother and information about the fact that she was leaving for Bombay after taking Rs. 250 from the appellant. According to the postal stamps, these letters appeared to have been cleared from the post office at 2.30 p.m. on January 16, 1967. Thereafter, according to the prosecution version, Mohini was made by the appellant to sit in the dickey of his car which was taken to some place, Mohini remaining in the dickey for some hours. She was then taken to the office of his factory at midnight and there he had sexual intercourse with her

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against her will. After the sexual intercourse, there was some sound of motor car entering the compound whereupon the appellant took her inside the cellar in the office and asked her to sit there. After about an hour the appellant came and took her from the cellar to his garage where she was again made to remain in the dickey. It appears that the following morning the appellant told Mohini that he was called to the police station. He went there in his car with Mohini in the dickey and then he and the police man came back to his bungalow. The police man went inside the bungalow and the appellant parked the car in his garage. He took Mohini out of the dickey and told her to go to the inner room of the garage. This inner room had four doors. One of them opened on the main road and another m the garage. Feelling thirsty, Mohini went out in the garden and saw a Mali working there whom she asked for water. It appears that at about 6.30 p.m. the appellant came to the inner room and promised to bring some food, water and clothes for Mohini, telling her to wait for him in that room. After some time, he returned with food, water and clothes. Mohini changed her clothes; washed her face and started taking her meal. While doing so, she felt that some motor car had come into the compound. The appellant told her that police had come and, therefore, she must leave through the back door and go to the road-side directing her to go towards Gandhinagar and wait there for him. Leaving her food unfinished, Mohini went out and waited near Gandhinagar at a distance of about one furlong from the appellants garage. It was here that she was traced by the Police Sub-Inspector Chaudhary who came there with the appellant in the latters car at about 9.00 p.m. From the dickey of the appellants motor car, one bedding and some clothes belonging to Mohini, viz., skirt, blouse, knickers and petticoat were found. These clothes were wet. Her school books and two exercise books were also found there. In the inner room of the garage was found unfinished food and utensils which bore the name of the appellant. Mohini was sent for medical examination by the Lady Medical Officer, but the Medical Officer did not find any symptoms of forcible sexual intercourse. 3. Turning now to the scene at the house of Mohinis parents, after her mother Smt Narmada finished with the court work, she returned to her house. They had a visitor Dinkerrai from Rajkot. While they were all at home some school girls informed Mohinis mother that Mohini had not gone to the school that day. Smt Narmada at once suspected the appellant and therefore went to his house along with the Dinkerrai. On enquiry from the appellant, he expressed his ignorance about Mohinis whereabouts. He, however, admitted that she had come to him for money but had gone away after taking Rs. 250/- from him. This according to him had happened between 4 and 5.30 p.m. on that day viz., January 16, 1967. Mohinis father then lodged complaint with the police at about 7.20 p.m. on that very day. The Police Sub-Inspector visited the appellants bungalow in the night between 16th and 17th of January and searched the bungalow but did not find Mohini there. Thereafter, the Sub-Inspector again went to the appellants bungalow on the morning of the 17th January and attached some letters and other papers produced by the appellant. He also went to the appellants office and inspected the books of account for the purpose of verifying whether there was any entry about the payment of Rs. 250 to Mohini. Meanwhile, Mohinis father Liladhar received a letter bearing post mark, dated January 16, 1967 which was produced by him before the Police SubInspector. On the night of 17th January, Police Sub-Inspector Chaudhary went to the appellants bungalow and it was this time that Mohini heard the sound of a motor car and left the garage at the instance of the appellant leaving unfinished the food she was eating. In the

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inner room, next to the garage, were found Mohinis clothes, a ladys purse, one comb, 2 plastic buckets full of water, one lantern and some other articles. From the dickey of the appellants car on search were also found skirt, one blouse a petticoat and one book two exercise books as already noticed. All these articles belonged to Mohini. This in brief is the prosecution story. 4. The appellant admitted that he had developed intimate relations with the family of Mohini, but denied having presented to her a Parker pen in December, 1965. He also admitted his trips to Baroda and Bombay in December, 1965 when he took with him Mohini, her father, Malati, her father and Malatis brother. He admitted having stayed in Metropolitan Hotel at Bombay but denied that he, Mohini and Malati had slept in one room and that he had sexual intercourse with Mohini during their stay in this hotel. He also denied having sexual intercourse with Mohini in the month of March, 1966. He further denied having purchased skirts and waist bands for Mohini and Malati in Bombay in December, 1965. The trip to Mahabaleshwar during summer vacation and also the trip to Mount Abu were admitted by the appellant but he denied having found sleeping with Mohini by Mohinis mother at Mount Abu. He admitted the incident of Dattatraya temple in Jamnagar but this he explained was due to the fact that Mohinis parents had heard some false rumours about his relations with Mohini, and that he wanted to remove their suspicion. He further admitted that in the evening of 16th January, Narmada and Dinkerrai had approached him to enquire about Mohinis whereabouts but according to him Mohini had merely taken Rs. 250/- from him without telling him as to where she was going. He denied having told Dinker Rai that Mohini had gone to Bombay. According to his version, Mohini approached him on January 16, 1967 and requested him to keep her at his house for about 15 days because she was tired of harassment at the hands of her parents. She added that she would make her own arrangements after 15 days. The appellant expressed his inability to keep her in his house and suggested that he would take to her parents house and persuade them not to harass her. She, however, was firm and adamant in not going back to her parents house at any cost. According to the appellant, the reason for falsely involving him in this case was that Mohinis father wanted the appellant to appoint him as a manager at Baroda where the appellant was planning to start a new factory. The appellant having declined to do so because he had many senior persons working in his office, Mohinis father felt displeased and concocted the false story to involve him. 5. The trial court in exhaustive judgment after considering the case from the all relevant aspects came to the conclusion that Mohini was born on September 18, 1951 and then the medical evidence led in the case also showed that she was above 14 and below 17 years of age during the relevant period. She was accordingly held to be a minor on the day of the incident. If, therefore, the appellant had sexual intercourse with her even with her consent, he would be guilty of rape. Mohini was believed by the trial court when she stated that the appellant had sexual intercourse with her at the earliest possible opportunity as this was corroborated by the medical evidence. The trial court found no reason for her to stake her whole life by making false statement about her chastity, nor for her parents to encourage or induce her to come out with a false story, there being no enmity between the appellant and the family of Mohini with respect to any matter, which would induce them to charge him falsely. The appellants explanation that as a result of his refusal to appoint Mohinis father as a

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Manager of his factory at Baroda, she had, in collusion with the parents, concocted this story was considered by the trial court to be too far fetched to be worthy of belief. In fact, according to the trial court it was the appellant who had made a suggestion about appointing Mohinis father as his Manager at Baroda and this explained why Mohinis father was taken by the appellant to Baroda when he paid a visit to that place for purchasing land. The court found no other cogent reason for taking Mohinis father to Baroda. The trial court in express terms disbelieved the appellants explanation. That court also came to the conclusion, on consideration of the evidence and bearing in mind the common course of human conduct, that it was the appellant who had induced Mohini to leave her parents house on the day in question and to have sexual intercourse with her. The trial court also considered that part of Mohinis statement that when she went to the appellants place, he told her to return to school, suggesting that he would take her to her parents and persuade them not to harass her and, it expressed its undoubted opinion that the appellant had used these words to a make a show of being her well-wisher, so that, if some proceedings were started against him, he could put forth the defence that he had kept Mohini at his house only at her own request and not with the object of keeping her out of her parents custody for having sexual intercourse with her. The trial court got support for this view from the letters got written by the appellant in Mohinis handwriting. This is what that court said in this connection: There is, therefore, no doubt in my mind that the accused had prepared all this material so that in case criminal proceedings were taken against him by Mohinis parents, he may be able to lead possible defence of his innocence. Nothing prevented the accused from returning Mohini to her parents. In any case, even if it were held that it was not the duty of the accused to return Mohini to her parents, it can equally be said that it was not legal on the part of the accused to secretly confine Mohini at his place and have sexual intercourse with her. The trial court then quoted the following passage from the case of Christian Olifier, reported in 10 Cox. 420: Although she may not leave at the appointed time and although he may not wish that she should have left at that particular time, yet if, finding she has left, he avails himself of that to induce her to continue away from her fathers custody, in my judgment he is also guilty, if his persuasion operated on her mind so as to induce her
to leave.

On the basis of this observation, the trial court held that in the present case, the inducement given by the appellant operated on Mohinis mind to stay in his house and do as he told her to do. The trial court on a consideration of the circumstances of the case and of the subsequent conduct of the appellant came to the definite conclusion that Mohini had gone to the appellants place at his instance and subsequently taking advantage of that position she was persuaded by the appellant to stay there. The appellant was accordingly held guilty under Sections 366 and 376, I.P.C. Under Section 366 I.P.C., he was sentenced to rigorous imprisonment for 18 months and under Section 376, I.P.C. to rigorous imprisonment for two years and also to fine of Rs 500/- and in default, to further rigorous imprisonment for six months. The substantive sentences of imprisonment were to run concurrently.

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

6. On appeal by the appellant, the High Court also considered the matter at great length and in a very exhaustive judgment, the appellants conviction under Section 376 was set aside and he was acquitted of that offence. This acquittal was ordered because the charge being only for sexual intercourse on the night of January 16, 1967 the evidence of Mohini in support of that offence was not accepted as safe and free from all reasonable doubt, in the absence of independent corroboration. In adopting this approach the High Court seems to us to have been somewhat over indulgent and unduly favourable to the appellant with respect to the offence under Section 376, I.P.C. but there being no appeal against acquittal, we need say nothing more about it. The appellants conviction for the offence punishable under Section 366, I.P.C. and the sentence for that offence were, however, upheld. The High Court felt that the story of Mohini with regard to the appellants call about 3 or 4 days before the incident in question was so natural and so highly probable that it felt no hesitation in accepting it. The circumstances preceding the incident were considered by the High Court to be sufficiently telling to lend assurance that it was quite safe to act upon her testimony. Her account was considered to be quite truthful and, therefore, acceptable. Mohinis version that the appellant had told her about 3 or 4 days before the incident of January 16, 1967 that he would keep her permanently at his place provided sufficient temptation to the school-going girl like Mohini to go to the appellant, leaving her parental home. This was all the more so because in the past year or so, the appellant had treated Mohini very fondly by taking her out on trips to different places in his own car and had also lavishly given her gifts of articles like costly pens and silver band. The High Court also took into consideration the attitude adopted by Mohinis mother in this connection. She had very discreetly warned the appellant in a dignified and respectful language to leave Mohini alone and also expressed her disappointment and unhappiness at the manner in which the appellant used to behave towards Mohini. The High Court considered a part of Mohinis version, as to how she was kept in the dickey of the appellants car on the January 16 and 17, 1967, to be improbable and to have been exaggerated by her, but this was considered to be due to the fact that like a school-girl that she was, she introduced an element of sensation in her story. Her complaint about intercourse on this occasion was not accepted for want of independent corroboration. The medical evidence also suggested that there was no presence of spermatozoa when vaginal swab was examined. It was on this reasoning that the offence under Section 376, I.P.C. as charged was held not to have been proved beyond doubt. The presence of Mohini in the appellants house and also in his garage on the January 16 and 17 was held by the High Court to be fully established on the record. The version given by Mohini was held to be fully corroborated by the surrounding circumstances of the case and by the recoveries of various articles belonging to her. The High Court also came to the positive conclusion that there was no unreasonable delay on the part of the investigating authorities to record Mohinis statement. The suggestion on behalf of the appellant that various articles belonging to Mohini and the utensils found in the inner room of the appellants premises were planted, was rejected outright. The High Court in a very wellreasoned judgment with respect to the offence under Section 366, I. P. C., came to the conclusion that the appellant had taken Mohini out of the keeping of her parents (her lawful guardian) with an intention that she may be seduced to illicit intercourse. This is what the High Court observed:

Tukaram v. State of Maharashtra

143

Having come in contact with the family of Mohini in about November 1965, the appellant cultivated relationship with them to such an extent that he took Mohini and her parents out on trips in his car spending lavishly by staying in hotels in Ahmedabad, Bombay, Mahabaleshwar and Mount Abu. He also presented Mohini with a parker pen on December 18, 1965. Within a few days thereafter he purchased by way of gift to Mohini skirt, silver waist-band which as per unchallenged testimony of Mohini was worth about Rs 12/-. He was actually found by the side of Mohini in Mohinis bed by Mohinis mother at Mount Abu, his connection with Mohini was suspected and in spite of that as the letters of Mohini show he was in correspondence with her without the knowledge of her parents. Mohini was a school-girl of immature understanding having entered her 16th year less than a month before the incident. Out of emotion she wrote letters to the appellant exaggerating incidents of rebuking by her mother and beating. She however was quite normal from January, 1967. The appellant having come to know about the frame of her mind disclosed from the letters of November and December, 1965, took chance to take away this girl from her parents. With that view he told Mohini about 4 days before 16th January, 1967 to come to his house and added that he will keep her with him permanently. This possibly caught the imagination of the girl and the result was that on 16th January, she left her fathers house with bare clothes on her body and with school books and went straight to the appellant. The appellant in order to see that her view to his factory during day time may not arouse suspicion of other invented the story of giving Rs 250 to Mohini and also got written 3 letters by Mohini addressed to himself, the District Superintendent of Police, Jamnagar and Mohinis father. He kept her in the garage of his bungalow for 2 days, tried to secret her from police and her parents and had already made attempt on 16th to put police and parents of Mohini on wrong track. There is no scope for an inference other than the inference that Mohini was kidnapped from lawful guardianship, with an intention to seduce her to illicit intercourse. The intention contemplated by Section 366 of the Indian Penal Code is amply borne out by these circumstances. Therefore, the conviction of the appellant under that section is correct and has to be maintained. 7. As already observed the appellant was acquitted of the offence under Section 376, I.P.C. but his conviction and sentence under Section 366, I.P.C was upheld. 8. In this Court, Shri Dhebar addressed very elaborate arguments and took us through considerable part of the evidence led in the case with the object of showing that the conclusion of the two courts below accepting the evidence led by the prosecution with respect to the charge under Section 366, I.P.C. is wholly untrustworthy and no judicial mind could ever have accepted it. After going through the evidence to which our attention was drawn, we are unable to agree with the appellants learned counsel. Both the courts below devoted very anxious care to the evidence led in the case and the circumstances and the probabilities inherent in such a situation. They gave to the appellant all possible benefit of the circumstances which could have any reasonable bearing in his favour, but felt constrained to conclude that the appellant was proved beyond reasonable doubt guilty of the offence under Section 336, I.P.C.

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9. The appellants main argument was that it was Mohini who, feeling unhappy and perhaps harassed in her parents house, left it on her own accord and came to the appellants house for help which he gave out of compassion and sympathy for the helpless girl in distress. Mohinis parents were, according to the counsel, unreasonably harsh on her on account of some erroneous or imaginary suspicion which they happen to entertain about the appellants attitude towards their daughter or about the relationship between the two, and that it was primarily her parents insulting and stern behaviour towards her which induced her to leave her parental home. It was contended on this reasoning that the charge under Section 366, I.P.C. was in the circumstances unsustainable. 10. The legal position with respect to an offence under Section 366, I.P.C. is not in doubt. In State of Haryana v. Rajaram [(1973) 1 SCC 544] this Court considered the meaning and scope of Section 361, I.P.C. and it was said there: The object of this section seems as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges to guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words takes or entices any minor out of the keeping of the lawful guardian of such minor in Section 361 are significant. The use of the word keeping in the context connotes the idea of charge, protection, maintenance and control: further the guardians charge and control appears to be compatible with the independence of action and movement in the minor, the guardians protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardians consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section. In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force of a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducements by previous promise or persuasion were held in some English decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in Section 361, I.P.C. is whoever takes or entices any minor. The word takes does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, to cause to go, to escort or to get into possession. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word entice seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the

Tukaram v. State of Maharashtra

145

inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words takes and entices, as used in Section 361, I.P.C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I.P.C. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardians custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her fathers protection, by conveying or indicating or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardians custody would constitute no valid defence and would not absolve him. The question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November, 1966 (Exhibit P-20) and in December, 1966 (Exhibit P-16) and also the letter written by Mohinis mother to the appellant in September, 1966 (Exhibit P-27) furnish very important and essential background in which the culminating incident of January 16 and 17, 1967 has to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohinis mother is also in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. In fact, this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich mans dishonourable behaviour towards her young, impressionable immature daughter; a man who also suggested to render financial help to her husband in time of need. These circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have, therefore, no hesitation in holding that the conclusions of the two courts below with respect to the offence under Section 366, I.P.C. are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution. 11. On the view that we have taken about the conclusions of the two courts below on the evidence, it is unnecessary to refer to all the decisions cited by Shri Dhebar. They have all proceeded on their own facts. We have enunciated the legal position and it is unnecessary to discuss the decisions cited. We may, however, briefly advert to the decision in S. Varadarajan v. State of Madras [AIR 1965 SC 942] on which Shri Dhebar placed principal reliance. Shri Dhebar relied on the following passage at page 245 of the report: It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part

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played by the appellant amounts to taking out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan, she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law taking. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. From this passage, Shri Dhebar tried to infer that the case before us is similar to that case, and, therefore, Mohini herself went to the appellant and the appellant had absolutely no involvement in Mohinis leaving her parents home. Now the relevant test laid down in the case cited is to be found at page 248: It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her fathers protection knowing and having capacity to know the full import of what, she was doing voluntarily joins the accused person In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the fathers protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardians house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardians house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking. It is obvious that the facts and the charge with which we are concerned in the present case are not identical with those in Varadarajan case. The evidence of the constant behaviour of the

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appellant towards Mohini for several months preceding the incident on the 16th and 17th January, 1967, completely brings the case within the passage at p. 248 of the decision cited. We have before us ample material showing earlier allurements and even of the appellants participation in the formation of Mohinis intention and resolve to leave her fathers house. The appellants conviction must therefore, be upheld. In so far as the question of sentence is concerned, we are wholly unable to find any cogent ground for interference. The conduct and behaviour of the appellant in going to the temple and representing that Mohini was like his daughter merely serves to add to the depravity of the appellants conduct, when once we believe the evidence of Mohini with respect to the offence under Section 366, I. P. C. Though the appellant has been acquitted of the offence of rape, for which he was also charged, we cannot shut our eyes to his previous improper intimacy with Mohini on various occasions as deposed by her. They were not taken into account as substantive evidence of rape on earlier occasions for reasons best known to the prosecution and the charge under Section 376, I P. C. was not framed with respect to the earlier occurrences. But the previous conduct of the appellant does clearly constitute aggravating factors. The sentence is, in our view, already very lenient. 12. This appeal must, therefore, fail and is dismissed. *****

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

State of Haryana v. Raja Ram

(1973) 1 SCC 544

I.D. DUA, J. - In this appeal by special leave the State of Haryana has assailed the judgment of a learned single Judge of the High Court of Punjab and Haryana at Chandigarh acquitting the respondent Raja Ram on appeal from his conviction by the Additional Sessions Judge, Karnal, under Section 366, I.P.C. and sentence of rigorous imprisonment of 1 year with fine of Rs 50 and in default rigorous imprisonment for two months. 2. Santosh Rani, the prosecutrix, aged about 14 years, daughter of one Narain Dass, a resident of village Jor Majra, in the district of Karnal was the victim of the offence. According to the prosecution story one Jai Narain, a resident of village Muradgarh, close to the village Jor Majra, once visited the house of Narain Dass for treating his ailing sons, Subhas Chander and Jagjit Singh. When the two boys were cured by Jai Narain, Narain Dass began to have great faith in him and indeed started treating him as his Guru. Jai Narain started paying frequent visits to Narain Dasss house and apparently began to cast an evil eye on the prosecutrix. He persuaded her to accompany him by inducing her to believe that though she was made to work in her parents house she was not even given proper food and clothes by her parents who were poor. He promised to keep her like a queen, having nice clothes to wear, good food to eat and also a servant at her disposal. On one occasion Narain Dass happened to see Jai Narain talking to the prosecutrix and felt suspicious with the result that he requested Jai Narain not to visit his house any more. He also reprimanded his daughter and directed her not to be free with Jai Narain. Having been prohibited from visiting Narain Dasss house Jai Narain started sending messages to the prosecutrix through Raja Ram respondent who is a jheewar and has his house about 5 or 6 karams away from that of Narain Dass. As desired by Jai Narain, Raja Ram persuaded the prosecutrix to go with him to the house of Jai Narain. On April 4, 1968, Raja Ram contacted the prosecutrix for the purpose of accompanying him to Jai Narains house. Raja Rams daughter Sona by name, who apparently was somewhat friendly with the prosecutrix, went to the latters house and conveyed a message that she (prosecutrix) should come to the house of Raja Ram at midnight. The prosecutrix, as desired, went to Raja Rams house on the night between April 4 and 5, 1968, when Raja Ram took her to Bhishamwala well. Jai Narain was not present at the well at that time. Leaving the prosecutrix there, Raja Ram went to bring Jai Narain, whom he brought after some time, and handing over the prosecutrix to Jai Narain Raja Ram returned to his own house. On the fateful night it appears that Narain Dass was not in the village, having gone to Karnal and his wife was sleeping in the kitchen. The prosecutrix, along with her two younger sisters was sleeping in the court-yard; her elder brother (who was the eldest child) was in the field. It was in these circumstances that the prosecutrix had gone to the house of Raja Ram from where she was taken to Bhishamwala well. 3. On the following morning, when Abinash Kumar, who is also sometimes described as Abinash Chandra Singh, brother of prosecutrix, returned from the field to feed the cattle, the prosecutrix was found missing from her bed. Abinash had returned to the house at about 4 a.m., He woke up his mother and enquired about Santosh Ranis whereabouts. The mother replied that the prosecutrix might have gone to ease herself. After waiting for about half an

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hour Abinash Kumar went to his grandfather who used to reside in a separate adjoining house and informed him about this fact. After having searched for her unsuccessfully, Abinash went to Karnal to inform his father about it. The father and the son returned from Karnal by about 10 a.m. The search went on till afternoon but the prosecutrix was not found. The father, after having failed in his search for the missing daughter, lodged the first information report (Ex. P. W. 1/3) with the officer in charge of the Police Station, Indri. Confirmed suspicion was cast in this report on Jai Narain Bawa Moti Ram, resident of Sambli, who was stated to be a bad character and absent from the village. It was added in the F. I. R. that about 5 or 6 months earlier Narain Dass had prevented Jai Narain from visiting the formers house as a result of which the latter had held out a threat to the former. On April 13, 1968, at about 7 a.m. Ram Shah, S. H. 0., Police Station Indri, along with three other persons and Narain Dass, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. As they reached near Dera Ganga Singh, Narain Dass identified his daughter and Jai Narain, accused, was taken into custody. The prosecutrix had a jhola (Ex. P-16) which contained one suit and a shawl and two chunis which were taken into possession. The salwar of the prosecutrix appeared to have on it stains of semen. 4. After investigation Jai Narain, aged 32 years and Raja Ram, the respondent, were both sent up for trial, the former under Sections 366 and 376, I.P.C. and the latter under Sections 366 and 376/109, I.P.C. They were both committed to the Court of Sessions. The learned Second Additional Sessions Judge, Karnal, who tried them, convicted Jai Narain alias Bawa under Section 376, I.P.C. and sentenced him to rigorous imprisonment for six years and fine of Rs. 500 or in default to further rigorous imprisonment for six months. The respondent was convicted under Section 366, I.P.C. and sentenced to rigorous imprisonment for 1 year and fine of Rs. 50 or in default to rigorous imprisonment for 9 months, Jai Narain was acquitted of the charge under Section 366, I.P.C. and the respondent of the charge under Sections 376/109, I.P.C. 5. Both the convicts appealed to the High Court of Punjab and Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction and sentence but acquitted the respondent Raja Ram of the charge under Section 366, I. P. C. It is against the order of the respondents acquittal that the State of Haryana has appealed to this Court. 6. It appears that the respondent had not entered appearance in this Court within. 30 days of the service on him of the notice of judgement of the petition of appeal. He applied for condonation of the delay though according to him no such application was necessary. The permission to enter appearance was granted by this Court at the time of the hearing. 7. In the High Court Shri K. S. Keer, the learned counsel appearing for Raja Ram contended that even if the case of the prosecution as made out from the evidence of the prosecutrix herself as supported by the testimony of her father Narain Dass her mother Tarawanti and her brother Abinash Kumar is admitted to be correct, no offence could be said to have been committed by Raja Ram under Section 366, IPC. Apparently it was this argument which prevailed with the High Court. The learned, single Judge, after briefly stating the facts on which the prosecution charge was founded accepted the only contention raised before him, expressing himself thus:

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The question which arises is whether in the face of these facts stated by the prosecutrix Raja Ram could be held to be guilty of offence under Section 366, Indian Penal Code. In order that an accused person may be guilty of offence under Section 366, Indian Penal Code, prosecution has to show that the woman was kidnapped or abducted in order that she might be forced or seduced to illicit intercourse or knowing it to be likely that she would be so forced or seduced. In other words, the prosecution must show that there was either kidnapping or abduction. Section 361, Indian Penal Code which defines kidnapping says that when any person takes or entices any minor under the age of 18 if a female out of the keeping of lawful guardianship of such minor without the consent of such guardian, commits kidnapping. The girl left the house of her father at midnight of her free will. Raja Ram, appellant, did not go to her house to persuade her and to bring her from there. She chose the dead of night when other members of the family were, according to her own statement, fast asleep. Soon after reaching the house of Raja Ram, who she says was waiting for her and that suggests that she had on her visit during the day so settled with him, that she agreed to accompany him to Bhishamwala well. These facts leave no doubt that she was neither enticed nor taken by Raja Ram from the lawful guardianship of her parents. She has herself chosen to accompany Raja Ram and to be with Jai Narain, appellant. It could not be said that the girl went with Raja Ram either by use of force or an account of any kind of persuasion on the part of Raja Ram. Under the circumstances, it could not be held that the girl had been taken or seduced from the custody of her parents. The girl reached at that odd hour to carry into effect her own wish of being in the company of Jai Narain, appellant. In view of these facts, it could not be held that Raja Ram was guilty of the act of either taking away the girl or seducing her out of the keeping of her parents. The word take implies want of wish and absence of desire of the person taken. Once the act of going on the part of the girl is voluntary and conformable to her own wishes and the conduct of the girl leaves no doubt that it is so. Raja Ram appellant could not be held to have either taken or seduced the girl. The learned single Judge also excluded the offence of abduction by observing that Raja Ram had neither compelled the prosecutrix by force nor had he adopted any deceitful means to entice her to go from her house to that of Jai Narain. 8. The approach and reasoning of the learned single Judge quite manifestly insupportable both on facts and in law. It clearly ignores important evidence on the record which establishes beyond doubt that the prosecutrix had been solicited and persuaded by Raja Ram to leave her fathers house for being taken to the Bhishamwala well. Indeed, earlier in his judgment the learned single Judge has himself observed that according to the statement of the prosecutrix, on receipt of Raja Rams message as conveyed through his daughter Sona, she contacted Raja Ram during day time in his house and agreed with him that she (prosecutrix) would accompany him (Raja Ram) to go to Bhishamwala well at midnight to meet Jai Narain, as the other members of her family would be sleeping at that time. If, according to the learned single Judge, it was in this background that the prosecutrix had left her fathers house at midnight and had gone to the house of Raja Ram from where she accompanied Raja Ram to the

Tukaram v. State of Maharashtra

151

Bhishamwala well, it is difficult to appreciate how Raja Ram could be absolved of his complicity in taking the prosecutrix out of the keeping of her father, her lawful guardian, without his consent. It was in our opinion, not at all necessary for Raja Ram, himself to go to the house of the prosecutrix at midnight to bring her from there. Nor does the fact that the prosecutrix had agreed to accompany Raj Ram to Bhishamwala well take the case out of the purview of the offence of kidnapping from lawful guardianship as contemplated by Section 361, I.P.C. This is not a case of merely allowing the prosecutrix to accompany Raja Ram without any inducement whatsoever on his part from her house to Bhishamwala well. The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words takes or entices any minorout of the keeping of the lawful guardian of such minor in Section 361, are significant. The use of the word Keeping in the context connotes the idea of charge, protection, maintenance and control: further the guardians charge and control appears to be compatible with the independence of action and movement in the minor, the guardians protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardians consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section. 9. In the present case the evidence of the prosecutrix as corroborated by the evidence of Narain Dass, P.W. 1 (her father), Abinash Chander P.W. 3 (her brother) and Smt Tarawanti P.W. 4 (her mother) convincingly establishes beyond reasonable doubt: (1) that Jai Narain had tried to become intimate with the prosecutrix and to seduce her to go and live with him and on objection having been raised by her father who asked Jai Narain not to visit his house, Jai Narain started sending message to the prosecutrix through Raja Ram, respondent; (2) that Raja Ram, respondent, had been asking the prosecutrix to be ready to accompany Jai Narain; (3) that at about 12 noon on April 4, Raja Ram went to see the prosecutrix at her house and asked her to visit his house when he would convey Jai Narains message to her; (4) that on the same day after some time Sona was sent by her father to the house of the prosecutrix to fetch her to his house where the prosecutrix was informed that Jai Narain would come that night and would take the prosecutrix away and (5) that Raja Ram accordingly asked the prosecutrix to visit his house at about midnight so that she may be entrusted to Jai Narain. This evidence was believed by the learned Additional Sessions Judge who convicted the respondent, as already noticed. The learned single Judge also did not disbelieve her statement. Indeed, in the High Court the learned counsel for Raja Ram had proceeded on the assumption that the evidence of the prosecutrix is acceptable, the argument being that even accepting her statement to be correct no offence was made out against Raja Ram. Once the evidence of the prosecutrix is accepted, in our opinion, Raja Ram cannot escape conviction for the offence of kidnapping her from her fathers lawful guardianship. It was not at all necessary for Raja Ram

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to have himself gone to the house of the prosecutrix to bring her from there on the midnight in question. It was sufficient if he had earlier been soliciting or persuading her to leave her fathers house to go with him to Jai Narain. It is fully established on the record that he had been conveying messages from Jai Narain to the prosecutrix and had himself been persuading her to accompany him to Jai Narains place where he would hand her over to him. Indisputably the last message was conveyed by him to the prosecutrix when she was brought by his daughter Sona from her own house to his and it was pursuant to this message that the prosecutrix decided to leave her fathers house on the midnight in question for going to Raja Rams house for the purpose of being taken to Jai Narains place. On these facts it is difficult to hold that Raja Ram was not guilty of taking or enticing the prosecutrix out of the keeping of her fathers lawful guardianship. Raja Rams action was the proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Rams persuasive offer to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian, as she actually did. Raja Ram actively participated in the formation of the intention of the prosecutrix to leave her fathers house. The fact that the prosecutrix was easily persuaded to go with Raja Ram would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial and it would be equally so even if the proposal to go with Raja Ram had emanated from her. There is no doubt a distinction between taking and allowing a minor to accompany a person but the present is not a case of the prosecutrix herself leaving her fathers house without any inducement by Raja Ram who merely allowed her to accompany him. 10. On behalf of the appellant state our attention was drawn to some of the English decisions for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The learned counsel cited Reg. v. Job Timmmis [169 ER 1260]; Reg. v. Handley [175 ER 890] and Reg. v. Robb [176 ER 466]. In the first case Job Timmis was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erie, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 & 25 Vict. Clause 100, Section 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the Statute. In the English Statutes the expression used was take out of the possession and not out of the keeping as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of the parent: see Reg. v. Manketelow [6 Cox Crim. Cases 43]. These decisions only serve to confirm our

Tukaram v. State of Maharashtra

153

view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards. 11. On behalf of the respondent it was contended us a last resort that this Court should be slow to interfere with the conclusions of the High Court on appeal from an order of acquittal and drew our attention to an unreported decision of this Court in Shantiranjan Majumdar v. Abhovananda Brahmachari. The decision cited was given by this Court on appeal by the complainant. In any event it was observed there that the complainant appellant had not been able to satisfy the court that any grave miscarriage of justice had been caused with the result that he could not be permitted to urge grounds other than those which are fit to be urged at the time of obtaining special leave to appeal. The decision of the High Court there could not even remotely be characterised as unreasonable, to use the language of this Court,-though it might have been possible to take the view that the circumstances found by the High Court were not adequate for enabling it to set aside the verdict of the jury and examine the evidence for itself. In the present case the acquittal by the High Court is clearly erroneous both on facts and in law and keeping in view the nature of the offence committed we consider that there is clearly failure of justice justifying interference by this Court under Article 136 of the Constitution. The result is that the appeal is allowed and setting aside the order of the High Court acquitting Raja Ram, respondent, we restore the order of the Second Sessions Judge affirming both the conviction and sentence as imposed by the trial court. Raja Ram, respondent should surrender to his bail bond to serve out the sentence. *****

226

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

TOPIC 7 : RAPE
(Sections 375-376 IPC read with Section 90 IPC)

Tukaram v. State of Maharashtra

AIR 1979 SC 185

KOSHAL, J. - This appeal by special leave is directed against the judgment dated the 12th
Oct. 1976 of the High Court of Judicature at Bombay (Nagpur Bench) reversing a judgment of acquittal of the two appellants of an offence under Section 376 read with Section 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st of June 1974, and convicting Tukaram, appellant No.1 of an offence under Section 354 of the Code and the second appellant named Ganpat of one under Section 376 thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years respectively. 2. Briefly stated the prosecution case is this. Appellant No.1, who is a Head Constable of police, was attached to the Desai Gunj police station in March 1972 and so was appellant No.2, who is a police constable. Mathura (P.W.l) is the girl who is said to have been raped. Her parents died when she was a child and she is living with her brother, Gama (P.W.3). Both of them worked as labourers to earn a living. Mathura (P.W.1) used to go to the house of Nushi (P.W.2) for work and during the course of her visits to that house, came into contact with Ashok, who was the sisters son of Nushi (P.W.2) and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura (P.W.1) decided to become husband and wife. On the 26th of March 1972, Gama (P.W.3) lodged report Ex. P-8 at police station Desai Gunj alleging that Mathura (P.W.1) had been kidnapped by Nushi (P.W.2), her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao (P.W.8) at whose instance all the three persons complained against as well as Mathura (P.W.1) were brought to the police station at about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10.30 p.m. and Baburao (P.W.8) told them to go after giving them a direction that Gama (P.W.3) shall bring a copy of the entry regarding the birth of Mathura (P.W.1) recorded in the relevant register and himself left for his house as he had yet to take his evening meal. At that time the two appellants were present at the police station. After Baburao (P.W.8) had gone away, Mathura (P.W.1), Nushi (P.W.2), Gama (P.W.3) and Ashok started leaving the police station. The appellants, however, asked Mathura (P.W.1) to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a latrine situated at the rear of the main building, loosened her underwear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura (P.W.1) was and fondled

Tukaram v. State of Maharashtra

155

her private parts. He also wanted to rape her but was unable to do so for the reason he was in a highly intoxicated condition. Nushi (P.W.2), Gama (P.W.3) and Ashok, who had been waiting outside the police station for Mathura (P.W.1) grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nushi (P.W.2) shouted for Mathura (P.W.1) there was no response. The noise attracted a crowd and some time later Tukaram appellant emerged from the rear of the police station, and on an enquiry from Nushi (P.W.2) stated that the girl had already left. He himself went out and shortly afterwards Mathura (P.W.1) also emerged from the rear of the police station and informed Nushi (P.W.2) and Gama (P.W.3) that Ganpat had compelled her to undress herself and had raped her. Nushi (P.W.2) took Mathura (P.W.1) to Dr. Khune (P.W.9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there. A few persons brought Head Constable Baburao (P.W.8) from his house. He found that the crowd had grown restive and was threatening to beat Ganpat appellant and also to burn down the police station. Baburao (P.W.8), however was successful in persuading the crowd to disperse and thereafter took down the statement (Ex.5) of Mathura (P.W.1) which was registered as the first information report. Mathura (P.W.1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of March 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girls clothes and the pyjama which was taken off the person of Ganpat appellant. 3. The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was a shocking liar whose testimony is riddled with falsehood and improbabilities. But he observed that the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station, she had sexual intercourse and that, in all probability, this was with accused no.2. He added however that there was a world of difference between sexual intercourse and rape, and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed: Finding Nushi angry and knowing that Nushi would suspect something fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why-this is a possibility-she might have invented the story of having been confined at the Police Station and raped by accused no.2. Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastrakar, and accused No.2 is no novice. He speaks of

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nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his pyjama with semen while having sexual intercourse with persons other than Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him.and then concluded that the prosecution had failed to prove its case against the appellants. 4. The High Court took note of the various findings arrived at by the learned Sessions Judge and then itself proceeded to shift the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the trial court was reasonably possible, even though the High Court was inclined to take different view of the facts. It agreed with the learned Sessions Judge in respect of his finding with regard to the age of Mathura (P.W.1) but then held that the deposition of the girl that Ganpat appellant had sexual intercourse with her was reliable, supported as it was by circumstantial evidence, especially that of the presence of stains of semen on the clothes of the girl and Ganpat appellant. The fact that semen was found neither on the pubic hair nor on the vaginal-smears taken from her person was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the meantime. The High Court proceeded to observe that although the learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he erred in appreciating the difference between consent and passive submission. In coming to the conclusion that the sexual intercourse in question was forcible and amounted to rape, the High Court remarked: Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the material time. Both the accused were strangers to her. It is not the case of the defence that Mathura knew both the accused or any of them since before the time of occurrence. It is therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from this accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at the very police station. If these circumstances are taken into consideration it would be clear that the initiative for sexual intercourse must have come from the accused or any of them and she had to submit without any resistance. Mere passive or helpless surrender of the body and its resignation to the others lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition. On the other hand, taking advantage of the fact that Mathura was involved in a complaint filed by her brother and that she was alone at the police station at the dead hour of night, it is more probable that the initiative for satisfying the sexual desire must have proceeded from the accused, and that victim Mathura must not have been a willing party to the act of the sexual

Tukaram v. State of Maharashtra

157

intercourse. Her subsequent conduct in making statement immediately not only to her relatives but also to the members of the crowd leave no manner of doubt that she was subjected to forcible sexual intercourse. In relation to Tukaram appellant, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted in so far as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant. It was in these premises that the High Court convicted and sentenced the appellants as aforesaid. 5. The main contention which has been raised before us on behalf of the appellants is that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any passive submission, and this contention appears to us to be well-based. As pointed out earlier, no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false. It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold the same view. In coming to the conclusion that the consent of the girl was a case of passive submission, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning suffers from two errors. In the first place, it loses sight of the fact which was admitted by the girl in cross-examination and which has been thus described in the impugned judgment: She asserted that after Baburao had recorded her statement before the occurrence, she and Gama had started to leave the police station and were passing through the front door. While she was so passing, Ganpat caught her. She stated that she knew the name of accused No.2 as Ganpat from Head Constable Baburao while giving her report Ex. 5. She stated that immediately after her hand was caught by Ganpat she cried out. However, she was not allowed to raise the cry when she was being taken to the latrine but was prevented from doing so. Even so, she had cried out loudly. She stated that she had raised alarm even when the underwear was loosened at the latrine and also when Ganpat was looking at her private parts with the aid of a torch. She stated that the underwear was not loosened by her. Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P.W.8) had recorded her statement, she and Gama had started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nushi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority in the

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circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as passive submission. Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375 of the I.P.C. were present in the case of the sexual intercourse attributed to Ganpat appellant. The section itself states in clauses thirdly and fourthly as to when a consent would not be a consent within the meaning of clause Secondly. For the proposition that the requisite consent was lacking in the present case, reliance on behalf of the State can be placed only on clause thirdly so that it would have to be shown that the girl had been put in fear of death or hurt and that was the reason for her consent. To this aspect of the matter the High Court was perhaps alive when it talked of passive submission but then in holding that the circumstances available in the present case make out a case of fear on the part of the girl, it did not give a finding that such fear was shown to be that of death or hurt, and in the absence of such a finding, the alleged fear would not vitiate the consent. Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt. We have already pointed out that the fear which clause thirdly of Section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were all leaving the police station together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it. 6. In view of what we have said above, we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat appellant. 7. The only allegation found by the High Court to have been brought home to Tukaram appellant is that he fondled the private parts of the girl after Ganpat had left her. The High Court itself has taken note of the fact that in the first information report (Ex. 5) the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. Those allegations were that Tukaram who had caught hold of her in the first instance, had taken her to the latrine in the rear of the main building, had lit a torch and had stared at her private parts in the torchlight. Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram? The High Court appears to have been influenced by the fact that Tukaram was present at the police station when the incident took place and that he left it after the incident.

Tukaram v. State of Maharashtra

159

This circumstance, in our opinion, is not inculpatory and is capable of more explanations than one. We do not, therefore, propose to take the girl at her word in relation to Tukaram appellant and hold that the charge remains wholly unproved against him. 8. In the result, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the conviction recorded against as well as the sentences imposed upon the appellants by it are set aside. Appeal allowed. *****

226

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

AN OPEN LETTER TO THE CHIEF JUSTICE OF INDIA*

Your Lordship: We as Indian citizens and teachers of law, take the liberty of writing this open letter to focus judicial attention and public debate over a decision rendered by the Supreme Court on September 15, 1978 which has been recently reported. The decision was rendered by Justices Jaswant Singh, Kailasham and Koshal in Tukaram v . State of Maharashtra [(1979)2 SCC 143]. The facts of the case are briefly as follows. Mathura, a young girl of the age 14-16, was an orphan who lived with her brother, Gamma, both of them are labourers. Mathura developed a relationship with Ashok, the cousin of Nushi at whose house she used to work, and they decided to get married. On March 26, 1972, Gama lodged a report that she was kidnapped by Nushi, her husband and Ashok. They were all brought to the police station at 9 p.m. when their statements were recorded. When everyone started leaving the police station, around 10:30 p.m. Tukaram, the head constable and Ganpat, a constable, directed that Mathura remain at the police station. What happened thereafter is best described in words of Justice Koshal, who wrote the decision of the court: Immediately thereafter Ganpat took Mathura into the latrine situated at the rear of the main building, loosened her underwear, lit a torch and stared at her private parts. He then dragged her to a chhapri. In the chhapri he felled her on the ground and raped her in spite of her protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram, who was seated in the cot nearby, came to the place where Mathura was and fondled her private parts. He also wanted to rape her but was unable to do so because for the reason that he was in a highly intoxicated condition. There was natural anxiety outside the police station as the lights were put off and doors bolted. They shouted for Mathura but to no avail. A crowd collected; shortly after Tukaram emerged to announce that Mathura had already left. Mathura then emerged and announced that she had been raped by Ganpat. The doctor to whom people approached advised them to file a report with the police. Head Constable Baburao was brought from his home to the station, by the fear of the restive crowd, and first information report was lodged. Mathura was examined by the doctor on March 27. She had no injury. Her hymen revealed old ruptures. Other aspects of physical examination revealed that she had intercourse in the past. Presence of semen was detected on her pubic hair, on her clothes and the pyjama of Ganpat. The Sessions Judge found this evidence insufficient to convict the accused. The farthest he would go was to hold that Mathura had sexual intercourse with Ganpat! But sexual intercourse cannot be equated with rape; there was "a world of difference", in law, between the two. He feared that Mathura had cried 'rape' in order to prove herself 'virtuous' before the crowd which included her lover. He was also not sure that the semen on clothes was from intercourse with Tukaram, and although he was disinclined to accept Tukaram's claim that semen on his
*

(1979) 4 SCC 1

Sakshi v. Union of India

161

trousers was due to habitual nocturnal discharges, he entertained the possibility that the semen stains on his clothes may well be due to the possibility of his having intercourse "with persons other than Mathura". The Bombay High Court (Nagpur Bench) reversed the finding and sentenced Tukaram for rigorous imprisonment for one year and Ganpat for five years. Its grounds for reversal were that since both these 'gentlemen' were perfect strangers to Mathura, it was highly unlikely that "she would make any overtures or invite the accused to satisfy her sexual desires". Nor could she have resisted her assailants. The High Court came to the conclusion that the policemen had "taken advantage of the fact that Mathura was involved in a complaint filed by her brother, and she was alone in the dead hour of the night" in a police station. This proved that she could not have in any probability, consented to intercourse. Your Court, Your Lordship, reversed the High Court verdict. The reasons given by Justice Koshal are as follows. First, Justice Koshal held that as there were no injuries shown by medical report, the story of "stiff resistance having been put up by the girl is all false" and the "alleged intercourse was a peaceful affair". Second, the court disbelieves the testimony of the girl that she shouted "immediately after her hand was caught by Ganpat", that she was not allowed to shout when she was taken to latrine and "that she had raised the alarm even when the underwear was loosened and Ganpat was looking at her private parts with the aid of a torch". The Court holds that the "cries and alarms are, of course, a concoction on her part". This is said because when she was leaving police station with her brother, Ganpat had caught her by arm and she made no attempt to resist it then. The Court says "If that be so, it would be preposterous to suggest that although she was in the company of her brother... she would be so overawed by the fact of appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist". Third, the Court holds that under Section 375 of the Penal Code, only the "fear of death or hurt" can vitiate consent for sexual intercourse. There was no such finding recorded. The circumstantial evidence must be such also as lead to "reasonable evidence of guilt". While the High Court thought there was such reasonable evidence, the Supreme Court did not. Tukaram too was held not guilty because Mathura had in her deposition attributed far more serious things to him and later attributed these acts to Ganpat instead. The fact that Tukaram was present when the incident took place and that he left it soon after the incident, says the Court, is "not inculpatory and is capable of more explanations than one". But these other explanations are not at all indicated by Justice Koshal in his judgment. Your Lordship, this is an extraordinary decision sacrificing human rights of women under the law and the Constitution. The Court has provided no cogent analysis as to why the factors which weighed with the High Court were insufficient to justify conviction for rape. She was in the police station in the "dead hour of night". The High Court found it impossible to believe that she might have taken initiative for intercourse. The fact remains that she was asked to remain in the police station even after her statement was recorded and her friends and relations were asked to leave. Why? The fact remains that Tukaram did nothing whatsoever to rescue the girl from Ganpat. Why? The Court says in its narration of facts, presumably based on the

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trial court records, that Tukaram was intoxicated. But this is not considered material either. Why? Why were the lights closed and doors shut? Your Lordship, does the Indian Supreme Court expect a young girl, 14-16 years old, when trapped by two policemen inside the police station, to successfully raise alarm for help? Does it seriously expect the girl, a labourer, to put up such stiff resistance against well-built policemen so as to have substantial marks of physical injury? Does the absence of such marks necessarily imply absence of stiff resistance? If anything it is Ganpat's body which would have disclosed marks of such resistance by Mathura, like clawing and biting. May be, the evidence of shouts for help and 'stiff resistance' is all "a tissue of lies". But does the absence of shouts justify an easy inference of the consensual intercourse in a police station? (Incidentally, what would be the Court's reaction if the victim was dumb or gagged?) In any event, how could the fact of shouting within closed doors of a police station be established in such cases? In restoring the decision of the Sessions Judge, does the Supreme Court of India really believe with him that Mathura had "invented" the story of rape, and even the confinement in the police station, in order to sound virtuous before Ashok? Does the Court believe that Mathura was so flirtatious that even when her brother, her employer and her lover were waiting outside the police station that she could not let go the opportunity of having fun with two policemen and that too in the area adjoining a police station latrine? Does it believe with the Session Judge that Mathura was habituated to sexual intercourse to such an extent? And therefore further think that the semen marks on Mathuras hair and clothing could have come from further sexual activities between the police incident and the next morning when she was medically examined? What about semen marks on Ganpats trousers? Why this double standard? Ganpats sexual habits give him the benefit of doubt of having raped Mathura; her sexual habits make the Court disbelieve the story of the rape altogether! We also find it surprising that the Supreme Court should have only focused on the third component of Section 375 of the Indian Penal Code, which applies when rape is committed with the womens consent, when her consent has been obtained by putting her in fear of death or hurt. But the second component of Section 375 is when rape occurs without her consent. There is a clear difference in law, and in common sense, between submission and consent. Consent involves submission, but the reverse is not necessarily true. Nor is the absence of resistance necessarily indicative of consent. It appears from the fact as stated by the Court and its holdings, that there was submission on the part of Mathura. But where was the finding on crucial element of consent? It may be that in the strict law Ganpat was charged with rape on the third component of description of rape. In that case, the issue before the Court was simply whether the act was committed with her consent, under fear of death or hurt. But still the question whether there was consent was quite relevant: indeed it was crucial. From the facts of the case, all that is established is submission, and not consent. Could not their Lordships have extended their analysis of consent in a manner truly protective of the dignity and right of Mathura? One suspects that the Court gathered an impression from Mathuras liaison with her lover that she was a person of easy virtue. Is the taboo against pre-marital sex so strong as to provide a

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license to Indian police to rape young girls? Or to make them submit to their desires at police stations? My Lord, the ink is hardly dry on the decision in Nandini Satpathy [(1978) 2 SCC 424] when the Supreme Court, speaking through Justice Krishna Iyer, condemned the practice of calling women to the police station in gross violation of section 160(1) of the Criminal Procedure Code. Under that provision, a woman shall not be required to attend the police station at any other place than her place of residence. The Court stated in Nandini that it is quite probable that the very act of directing a woman to come to the police station in violation of section 160(1) Cr PC may make for tension and negate voluntariness. This observation was made in the context of the right against self-incrimination; is it any the less relevant to situations of rape or, as the Court wishes to put it, intercourse in a police station? Certainly, the hope expressed by Justice Iyer that when the big fight forensic battle the small gain victory has been belied. The law made for Nandini Satpathy does not, after all, apply to helpless Mathuras of India. There is not a single word condemning the very act of calling Mathura, and detaining her, at the police station in gross violation of the law of the land made by Parliament and so recently reiterated by the Supreme Court. Nor is there a single word in the judgement condemning the use of police station as a theatre of rape or submission to sexual intercourse. There is no direction to the administration to follow the law. There are no strictures of any kind. The court gives no consideration whatsoever to the socio-economic status, the lack of knowledge of legal rights, the age of victim, lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations. May we respectfully suggest that yourself and your distinguished colleagues visit incognito, wearing the visage of poverty, some police stations in villages adjoining Delhi? My Lord, your distinguished colleagues and yourself have earned a well-merited place in contemporary Indian history for making preservation of democracy and human rights a principal theme of your judicial and extra-judicial utterances, especially after March 77. But a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathuras in the Indian countryside. Why so? No one can seriously suggest that all policemen are rapists. Despite massive evidence of police maltreatment of women in custody which rocked the state of Madhya Pradesh in 197778 and Andhra Pradesh in Remeeza Bee's case not too long ago, we could agree with the Court were it to say it explicitly that the doctrine of judicial notice cannot be used to negative the presumption of innocence, even in such type of cases. But must presumption of innocence be carried so far as to negative all reasonable inference from circumstantial evidence? Mathura, with all her predicaments, has been fortunate that her problem reached the High Court and your Court. But there are, millions of Mathuras in whose situations even the first information reports are not filed, medical investigations are not made in time, who have no access to legal services at any level and who rarely have the privilege of vocal community support for their plight. The Court, under your leadership, has taken great strides for civil liberties in cases involving affluent urban women (e.g., Mrs. Maneka Gandhi; Mrs. Nandini Satpathy). Must

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illiterate, labouring, politically mute Mathuras of India be continually condemned to their preconstitutional Indian fate? What more can we say? We can only appeal in conclusion, to have the case be reheard, as an unusual situation by a larger bench, and if necessary by even the Full Court. This may appear to your Lordship as a startlingly unconventional, and even a naive, suggestion. But nothing short of protection of human rights and constitutionalism is at stake. Surely, the plight of millions of Mathuras in this country is as important as that of Golak Nath, and His Holiness Kesavananda Bharati, challenging the validity of restriction on the right to property as a fundamental right; whose case were heard by a full court. May be on re-examination Ganpat and Tukaram may stand acquitted for better reasons than those now available. But what matters is a search for liberation from the colonial and male-dominated notions of what may constitute the element of consent, and the burden of proof for rape which affect many Mathuras on the Indian countryside. You will no doubt forgive us for this impertinence of writing an open letter to you. But the future of judicial protection of human rights at grass roots level in India at the turn of the century, a concern we all share as citizens and as lawmen, leave us with no other and better alternative. With best regards and greetings, we remain, Sincerely yours, Upendra Baxi Vasudha Dhagamwar Raghunath Kelkar Lotika Sarkar

Delhi September 16, 1979

*****

Sakshi v. Union of India

165

State of Punjab v. Gurmit Singh

(1996) 2 SCC 384

DR. ANAND, J. - The prosecutrix a young girl below 16 years of age, was studying in the 10th class at the relevant time in Government High School, Pakhowal. The matriculation examinations were going on at the material time. The examination centre of the prosecutrix was located in the boys High School, Pakhowal. On 30-3- 1984 at about 12.30 p.m. after taking her test in Geography, the prosecutrix was going to the house of her maternal uncle, Darshan Singh, and when she had covered a distance of about 100 karmas from the school, a blue Ambassador car being driven by a Sikh youth aged 20/25 years came from behind. In that car Gurmit Singh, Jagjit Singh @ Bawa and Ranjit Singh accused were sitting. The car stopped near her. Ranjit Singh accused came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car. Accused Jagjit Singh @ Bawa put his hand on the mouth of the prosecutrix, while Gurmit Singh accused threatened the prosecutrix, that in case she raised an alarm she would be done to death. All the three accused (respondents herein} drove her to the tube well of Ranjit Singh accused. She was taken to the kotha of the tube well. The driver of the car after leaving the prosecutrix and the three accused persons there went away with the car. In the said kotha Gurmit Singh compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor. Gurmit Singh then got removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She raised roula as she was suffering pain but Gurmit Singh threatened to kill her if she persisted in raising alarm. Due to that threat, she kept quiet. After Gurmit Singh had committed rape upon her, the other two accused, who were earlier guarding the kotha from outside, came in on by one and committed rape upon her. Jagjit Singh alias Bawa committed rape on her after Gurmit Singh and thereafter Ranjit Singh committed rape on her. Each one of the accused committed sexual intercourse with the prosecutrix forcibly and against her will. They all subjected her to sexual intercourse once again during the night against her will. Next morning at about 6.00 a.m. the same car arrived at the tube well kotha of Ranjit Singh and the three accused made her sit in that car and left her near the Boys High School, Pakhowal near about the place from where she had been abducted. The prosecutrix had to take her examination in the subject of Hygiene on that date. She, after taking her examination in hygiene, reached her village Nangal-Lalan, at about noon time and narrated the entire story to her mother, Smt Gurdev Kaur PW 7. Her father Tirlok Singh PW 6 was not present in the house at that time. He returned from his work late in the evening. The mother of the prosecutrix, Smt Gurdev Kaur, PW 7, narrated the episode to her husband Tirlok Singh PW 6 on his arrival. Her father straightaway contacted Sarpanch Joginder Singh of the village. A panchayat was convened. Matter was brought to the notice of the Sarpanch of Village Pakhowal also. Both the Sarpanches tried to effect a compromise on 1-4-1984 but since the panchayat could not give any justice or relief to the prosecutrix, she along with her father proceeded to the Police Station, Raikot to lodge a report about the occurrence with the police. When they reached the bus adda of Village Pakhowal, the police met them and she made her statement, Ex. PD, before ASI Raghubir Chand PW who made an endorsement, Ex. PD/I and sent the statement Ex. PD. of the prosecutrix to the Police Station

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Raikot for registration of the case on the basis of which formal FIR Ex. PD/2 was registered by SI Malkiat Singh. ASI Raghubir Chand then took the prosecutrix and her mother to the primary health centre Pakhowal for medical examination of the prosecutrix. She was medically examined by lady doctor, Dr. Sukhwinder Kaur, PW 1 on 2-4-1984, who found that the hymen of the prosecutrix was lacerated with fine radiate tears, swollen and painful. Her pubic hair were also found matted. According to PW I intercourse with the prosecutrix could be one of the reasons for laceration which I found in her hymen. She went on to say that the possibility could not be ruled out that the prosecutrix was not habitual to intercourse earlier 2. During the course of investigation, the police took into possession a sealed parcel handed over by the lady doctor containing the salwar of the prosecutrix along with 5 slides of vaginal smears and one sealed phial containing pubic hair of the prosecutrix, vide memo Ex. PK. On the pointing out of the prosecutrix, the investigating officer prepared the rough site plan Ex. PF, of the place from where she had been abducted. The prosecutrix also led the investigating officer to the tube well kotha of Ranjit Singh where she had been wrongfully confined and raped. The investigation officer prepared a rough site plane of the kotha Ex. PM. A search was made for the accused on 2-4-1984 but they were not found. They were also not traceable on 3-4-1984, in spite of a raid being conducted at their houses by the ASI .On 5-4-1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before the investigating officer by Gurbachan Singh PW 8 and were placed under arrest. Both Ranjit Singh and Jagjit Singh on the same day were produced before Dr B.L. Bansal PW 3 for medical examination. The doctor opined that both accused were fit to perform sexual intercourse. Gurmit Singh respondent was arrested on 9-4-1984 by SI Malkiat Singh. He was also got medically examined on 9-4-1984 by Dr B.L. Bandal PW 3 who opined that Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels containing the slides of vaginal smears, the pubic hair and the salwar of the prosecutrix, were sent to the chemical examiner. The report of the chemical examiner revealed that semen was found on the slides of vaginal smear through no spermatozoa was found either on the pubic hair or the salwar of the prosecutrix. On completion of the investigation, respondents were challaned and were charged for offences under Sections 363, 366,368 and 376 IPC. 3. With a view to connect the respondents with the crime, the prosecution examined Dr Sukhwinder Kaur, PW I; prosecutrix, PW 2; Dr B.L. Bansal, PW 3; Tirlok Singh, father of the prosecutrix, PW 6; Gurudev Kaur, mother of the prosecutrix, PW 7; Gurbachan Singh, PW 8; Malkiat Singh, PW 9; and SI Raghubir Chand, PW 10; besides, some formal witnesses like the draftsman etc. The prosecution tendered in evidence affidavits of some of the constables, whose evidence was of a formal nature as also the report of the chemical examiner, Ex. PM. In their statements recorded under Section 313 Cr.P.C. the respondents denied the prosecution allegations against them. Jagjit Singh respondent stated that it was a false case foisted on him on account of his enmity with the Sarpanch of Village Pakhowal. He stated that he had married a Canadian girl in the village gurdwara, which was not liked by the Sarpanch and therefore, the Sarpanch was hostile to him and had got him falsely implicated in this case. Gurmit Singh respondent took the stand that he had been falsely implicated in the case on account of enmity between his father and Tirlok Singh, PW 6, father of the prosecutrix. He stated that there was long-standing litigation going on between

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his father and the father of the prosecutrix and their family members were not even on speaking terms with each other. He went on to add that on 1-4-1984 he was given a beating by Tirlok Singh, PW 6, on grounds of suspicion that he might have instigated some persons to abduct his daughter and in retaliation he and his elder brother on the next day had given a beating to Tirlok Singh, PW 6 and also abused him and on that account Tirlok Singh PW, in consultation with the police had got him falsely implicated in the case. Ranjit Singh respondent also alleged false implication but gave no reasons for having been falsely implicated. Jagjit Singh alias Bawa produced DW I Kuldip Singh and DW 2 MHC, Amarjit Singh in defence and tendered in evidence Ex. DC, a photostat copy of his passport and Ex. DD copy of a certificate of his marriage with the Canadian girl. He also tendered into evidence photographs marked C and D evidencing his marriage with the Canadian girl. The other two accused however did not lead any defence evidence. 4. The trial court first dealt with the prosecution case relating to the abduction of the prosecutrix by the respondents and observed: The first point for appreciation before me would arise whether this part of the prosecution story stands fortified by any cogent or reliable evidence or not. There is a bald allegation only of prosecutrix (name omitted) that she was forcibly abducted in a car. In the FIR she stated that she was abducted in an Ambassador car of blue colour. After going through the evidence, I am of the view that this thing has been introduced by the prosecutrix or by her father or by the thanedar just to give the gravity of offence. Prosecutrix (name omitted) was tested about the particulars of the car and she is so ignorant about the make etc. of the car that entire story that she was abducted in the car becomes doubtful. She stated in her cross-examination at page 8 that the make of the car was Master. She was pertinently asked whether the make of the car was Ambassador or Fiat. The witness replied that she cannot tell the make of the car. But when she was asked as to the difference between Fiat, Ambassador or Master car, she was unable to explain the difference amongst these vehicles. So, it appears that the allegations that she was abducted in a Fiat car by all the three accused and the driver is an imaginary story which has been given either by the thanedar or by the father of the prosecutrix. If the three known accused are in the clutches of the police, it is not difficult for them to come to know about the car, the name of its driver etc., but strange enough, SI Raghubir Chand has shown pitiable negligence when he could not find out the car driver in spite of the fact that he directed the investigation on these lines. He had to admit that he made search for taking the car into possession allegedly used in the occurrence. He could not find out the name of the driver nor could he find out which car was used. In these circumstances, it looks to be improbable that any car was also used in the alleged abduction. (omission of name of the prosecutrix ours) The trial court further commented: On 30-3- 1984 she was forcibly abducted by four desperate persons who were out and out to molest her honour. It has been admitted by the prosecutrix that she was taken through the bus adda of Pakhowal via metalled road. It has come on the evidence that it is a busy centre. In spite of that fact she had not raised any alarm, so

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as to attract persons that she was being forcibly taken. The height of her own unnatural conduct is that she was left by the accused at the same point on the next morning. The accused would be the last persons to extend sympathy to the prosecutrix. Had it been so, the natural conduct of the prosecutrix would have been first to rush to the house of her maternal uncle to apprise him that she had been forcibly abducted on the previous day. The witness after being left at the place of abduction lightly takes her examination. She does not complain to the lady teachers who were deployed to keep a watch on the girl students because these students were to appear in the centre of Boys School. She does not complain to anybody or to her friend that she was raped during the previous night. She prefers her examination rather than go to the house of her parents or relations. Thereafter, she goes to her village Nangal-Kalan and informs for the first time her mother that she was raped on the previous night. This part of the prosecution story does not look to be probable. 5. The trial court, thus, disbelieved the version of the prosecutrix basically for the reasons: (i) she is so ignorant about the make etc. of the car that entire story that she was abducted in the car becomes doubtful particularly because she could not explain the difference between a Fiat car, Ambassador car or a Master car; (ii) the investigating officer had shown pitiable negligence during the investigation by not tracing out the car and the driver; (iii) that the prosecutrix did not raise any alarm while being abducted even though she had passed through the bus adda of Village Pakhowal; (iv) that the story of abduction has been introduced by the prosecutrix or by her father or by the thanedar just to give the gravity of offence and (v) that no corroboration of the statement of the prosecutrix was available on the record and that the story that the accused had left her near the school next morning was not believable because the accused could have no sympathy for her. 6. The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of the prosecutrix did not inspire confidence for the reasons (i) that there had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out. According to the trial court, Tirlok Singh PW 6 became certain on 1-4-1984 that there was no outcome of the meeting between the panchayats of Nangal-Kalan and Pakhowal, therefore, there was no justification for him not to have lodged the report on 1-4-1984 itself and since Tirlok Singh had entered into consultations with his wife as to whether to lodge the report or not, it rendered the matter doubtful; (ii) that the medical evidence did not help the prosecution case. The trial court observed that in her cross examination PW 1 lady doctor had admitted that whereas intercourse with the prosecutrix could be one of the reasons for the laceration of the hymen there could be other reasons also for that laceration. The trial court noticed that the lady doctor had inserted a vaginal speculum for taking swabs from the posterior vaginal fornix of the prosecutrix for preparing slides and since the width of the speculum was about two fingers, the possibility that the prosecutrix was habituated to sexual intercourse could not be ruled out. The trial court observed that the prosecutrix was fighting her imagination in order to rope in the accused persons and that implicit reliance could not be placed on the testimony of such a girl; (iii) there was no independent corroboration of her testimony and (iv) that the accused had been

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169

implicated on account of enmity as alleged by the accused in their statements recorded under Section 313 Cr.P.C. 7. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was student of X class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on the account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Tirlok Singh PW 6, father of the prosecutrix came to know from his wife, PW 7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tube well kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the mater. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the trial court appears to have misunderstood the reasons and justification for the consultation between Tirlok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful. Her statement about the manner in which she was abducted and

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again left near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observations of the trial court that the story of the prosecutrix that she was left near the examination centre next morning at about 6 a.m. was not believable as the accused would be the last persons to extend sympathy to the prosecutrix are not at all intelligible. The accused were not showing any sympathy to the prosecutrix while driving her at 6.00 a.m. next morning to the place from where she had been abducted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examination centre so as to avoid being detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examination centre prior there is in accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before replying upon the same as a rule in such cases amounts to, adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par

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171

with the evidence of an injured witness and to an extent is even more reliable just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain, Ahmadi, J. (as the Lord Chief justice then was) speaking for the Bench summarised the position in the following words: A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. 8. We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or

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blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix. 9. The medical evidence has lent full corroboration to the testimony of the prosecutrix. According to PW 1 lady doctor Sukhwinder Kaur she had examined the prosecutrix on 2-41984 at about 7.45 p.m. at the Primary Health Centre, Pakhowal, and had found that her hymen was lacerated with fine radiate tears, swollen and painful. The pubic hair was also matted. She opined that intercourse with the prosecutrix could be one of the reasons for the laceration of the hymen of the prosecutrix. She also opined that the possibility cannot be ruled out that (prosecutrix) was not habitual to intercourse earlier to her examination by her on 2-4-1984. During her cross-examination, the lady doctor admitted that she had not inserted her fingers inside the vagina of the prosecutrix during the medico-legal examination but that she had put a vaginal speculum for taking the swabs from the posterior vaginal fornix for preparing the slides. She disclosed that the size of the speculum was about two fingers and agreed with the suggestion made to her during her cross-examination that if the hymen of a girl admits two fingers easily, the possibility that such a girl was habitual to sexual intercourse cannot be ruled out. However, no direct and specific question was put by the defence to the lady doctor whether the prosecutrix in the present case could be said to be habituated to sexual intercourse and there was no challenge to her statement that the prosecutrix may not have been subjected to sexual intercourse earlier. No enquiry was made from the lady doctor about the tear of the hymen being old. Yet, the trial court interpreted the statement of PW l Dr Sukhwinder Kaur to hold that the prosecutrix was habituated to sexual intercourse since the speculum could enter her vagina easily and as such she was a girl of loose character. There was no warrant for such a finding and the finding if we may say so with respect, is a wholly irresponsible finding. In the face of the evidence of PW I, the trial court wrongly concluded that the medical evidence had not supported the version of the prosecutrix. 10. The trial court totally ignored the report of the chemical examiner (Ex. PM) according to which semen had been found on the slides which had been prepared by the lady doctor from the vaginal secretions from the posterior of the vaginal fornix of the prosecutrix. The presence of semen on the slides lent authentic corroboration to the testimony of the prosecutrix. This vital evidence was forsaken by the trial court and as a result wholly erroneous conclusions were arrived at. Thus, even though no corroboration is necessary to rely upon the testimony of the prosecutrix, yet sufficient corroboration from the medical evidence and the report of the chemical examiner is available on the record. Besides, her statement has been fully supported by the evidence of her father, Tirlok Singh, PW 6 and her mother Gurdev Kaur, PW 7, to whom she had narrated the occurrence soon after her arrival at her house. Moreover, the unchallenged fact that it was the prosecutrix who had led the investigating officer to the kotha of the tube well of Ranjit Singh, where she had been raped, lent a built-in assurance that the charge levied by her was genuine rather than fabricated because it is no ones case that she knew Ranjit Singh earlier or had ever seen visited the kotha at his tube well. The trial court completely overlooked this aspect. The trial court did not disbelieve that the prosecutrix had been subjected to sexual intercourse but without any

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sound basis, observed that the prosecutrix might have spent the night in the company of some persons and concocted the story on being asked by her mother as to where she had spent the night after her maternal uncle, Darshan Singh, came to Nangal-Kalan to enquire about the prosecutrix. There is no basis for the finding that the prosecutrix had spent the night in the company of some persons and had indulged in sexual intercourse with them of her own free will. The observations were made on surmises and conjectures - the prosecutrix was condemned unheard. 11. The trial court was of the opinion that it was a false case and that the accused had been implicated on account of enmity. In that connection it observed that since Tirlok Singh PW 6 had given a beating to Gurmit Singh on 1-4-1984 suspecting his hand in the abduction of his daughter and Gurmit Singh accused and his elder brother had abused Tirlok Singh and given a beating to Tirlok Singh PW 6 on 2-4-1984, it was very easy on the part of Tirlok Singh to persuade his daughter to name Gurmit Singh so as to take revenge. The trial court also found that the relations between the family of Gurmit Singh and of the prosecutrix were strained on account of civil litigation pending between the parties for 7/8 years prior to the date of occurrence and that was also the reason to falsely implicate Gurmit Singh. However the positive evidence of PW 6 and PW 7 that there was no litigation pending between PW 6 and the father of Gurmit Singh completely belied the plea of the accused. If there was any civil litigation pending between the parties as alleged by Gurmit Singh, he could have produced some documentary proof in support thereof but none was produced. Even Mukand Singh, father of Gurmit Singh, did not appear in the witness box to support the plea taken by Gurmit Singh. Even if it be assumed for the sake of argument that there was some such litigation, it could hardly be a ground for a father to put forth his daughter to make a wild allegation of rape against the son of the opposite party, with a view to take revenge. It defies human probabilities. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil litigation. Again, if the accused could be falsely involved on account of that enmity, it was equally possible that the accused could have sexually assaulted the prosecutrix to take revenge from her father, for after all enmity is a double-edged weapon, which may be used for false implication as well as to take revenge. In any case, there is no proof of the existence of such enmity between PW 6 and the father of Gurmit Singh which could have prompted PW 6 to put up his daughter to falsely implicate Gurmit Singh on a charge of rape. Ranjit Singh, apart from stating that he had been falsely implicated in the case did not offer any reasons for his false implication. It was at his tube well kotha that rape had been committed on the prosecutrix. She had pointed out that kotha to the police during investigation. No ostensible reason has been suggested as to why the prosecutrix would falsely involve Ranjit Singh in the commission of such a heinous crime and nominate his kotha as the place where she had been subjected to sexual molestation by the respondents. The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to the extent of staking their reputation and future in order to falsely set up a case of rape to settle petty scores as alleged by Jagjit Singh and Gurmit Singh, respondents.

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12. From the statement of the prosecutrix, it clearly emerges that she was abducted and forcibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situation the question of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occurrence. Their evidence is supported by the birth certificate (Ex. PJ). Both Tirlok Singh (PW 6) and Gurdev Kaur (PW 7), the father and mother of the prosecutrix respectively, explained that initially they had named their daughter, the prosecutrix, as Mahinder Kaur but her name was changed to... (name omitted), as according to The Holy Guru Granth Sahib her name was required to start with the word chhachha and therefore in the school-leaving certificate her name was correctly given. There was nothing to disbelieve the explanation given by Tirlok Singh and Gurdev Kaur in that behalf. The trial court ignored the explanation given by the parents observing that it could not be swallowed being a belated one. The trial court was in error. The first occasion for inquiring from Tirlok Singh (PW 6) about the change of the name of the prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no earlier occasion for him to have made any such statement. It was, therefore, not a belated explanation. That apart, even according to the lady doctor (PW 1), the clinical examination of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of Tirlok Singh PW 6 and Gurdev Kaur PW 7 out also by that of the school-leaving certificate marked B .With a view to do complete justice, the trial court could have summoned the official concerned from the school to prove various entries in the school leaving certificate. From the material on the record, we have come to an unhesitating conclusion that the prosecutrix was less than 16 years of age when she was made a victim of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any positive finding as to whether or not the prosecutrix was below 16 years of age on 30-3-1984 and instead went on to observe that even assuming for the sake of argument that the prosecutrix was less then 16 years of age on 30-3-1984, it could still not help the case as she was not a reliable witness and was attempting to shield her own conduct by indulging in falsehood to implicate the respondents. The entire approach of the trial court in appreciating the prosecution evidence and drawing inferences there from was erroneous. 13. The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably ever characterised her as a girl of loose morals or such type of a girl. 14. What has shocked our judicial conscience all the more is the inference drawn by the court, based on no evidence and not even on a denied suggestion, to the effect: The more probability is that (prosecutrix) was a girl of loose character. She wanted to dupe her parents that she resided for on night at the house of her maternal uncle, but for reasons best known to her, she did not do so and she preferred to give company to some persons.

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15. We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. Such like stigmas have the potential of not only discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society suffer by letting the criminal escape even a trial. The courts are expected to use self-restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole -where the victim of crime is discouraged ; the criminal encouraged and in turn crime gets rewarded!. Even in cases, unlike the present case, where there is some acceptable material on the record show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of loose moral character is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the courts, for after all it is the accused and not the victim of sex crime who is on trial in the court. 16. As a result of the aforesaid discussion, we find that the prosecutrix has made a truthful statement and the prosecution has established the case against the respondents beyond every reasonable doubt. The trial court fell in error in acquitting them of the charges levelled against them. The appreciation of evidence by the trial court is not only unreasonable but perverse. The conclusions arrived at by the trial court are untenable and in the established facts and circumstances of the case, the view expressed by it is not a possible view. We accordingly, set aside the judgment of the trial court and convict all the three respondents for offences under Sections 363/366/368 and 376 IPC. So far as the sentence is concerned, the court has to strike a just balance. In this case the occurrence took place on 303-1984(more than 11 years ago). The respondents were aged between 21-24 years of age at the time when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court on 1-6-1985, more than a decade ago. All the respondents as well as the prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents. We accordingly sentence the respondents for the offence under Section 376 IPC to undergo five years R.I. each and to pay a fine of Rs. 5000 each and in default of payment of fine to 1 years R.I. each. For the offence under Section 363 IPC we sentence them to undergo three years R.I. each but impose no separate sentence for the offence under Sections 366/368 IPC. The substantive sentences of imprisonment shall, however, run concurrently. 17. This Court, in Delhi Domestic Working Womens Forum v. Union of India had suggested, on the formulation of a scheme, that at the time of conviction of a person found guilty of having committed the offence of rape, the court shall award compensation. 18. In this case, we have, while convicting the respondents, imposed, for reasons already set out above, the sentence of 5 years R.I. with fine of Rs 5000 and in default of payment of fine further R.I. for one year on each of the respondents for the offence under Section 376

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IPC. Therefore, we do not, in the instant case, for those very reasons, consider it desirable to award any compensation, in addition to the fine already imposed, particularly as no scheme also appears to have been drawn up as yet. 20. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault , it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 21. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as discrepancies and contradictions in her evidence. 22. The alarming frequency of crime against women led Parliament to enact the Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a woman under their custody or

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care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended. 23. In spite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realize its importance for hardly does one come across a case where the inquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape shall be conducted in camera as occurring in sub-section (2) of Section 327 Cr.P.C is not only significant but very important. It casts a duty on the court to conduct the trial of rape cases etc. invariably in camera. The courts are obliged to act in furtherance of the intention expressed by the legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr.P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Courts would therefore be well-advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr.P.C. and to impress upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than in the open court. Wherever possible, it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their order to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial courts would take recourse to the provisions of Sections 327(2) and (3) Cr PC liberally. Trial of rape cases in camera should be the rule and an open trial in such cases, an exception. *****

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Sakshi v. Union of India

(2004) 5 SCC 518

G.P. MATHUR, J. - This writ petition under Article 32 of the Constitution has been filed by
way of public interest litigation, by Sakshi, which is an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse and or harassment, violence or any kind of atrocity or violation and is a violence-intervention centre. The respondents arrayed in the writ petition are: (1) Union of India; (2) Ministry of Law and Justice; and (3) Commissioner of Police, New Delhi. The main reliefs claimed in the writ petition are as under: (A) Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that "sexual intercourse" as contained in Section 375 of the Indian Penal Code shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration. (B) Consequently, issue a writ, order or direction in the nature of a direction to the respondents and its servants and agents to register all such cases found to be truly on investigation, offences falling within the broadened interpretation of "sexual intercourse" set out in prayer (A) aforesaid as offences under Sections 375, 376 and 376-A to 376-D of the Indian Penal Code, 1860. (C) Issue such other writ, order or direction as this Hon'ble Court may deem appropriate in the present facts and circumstances. The petition is thus restricted to a declaratory relief and consequential directions. 2. It is set out in the writ petition that the petitioner has noticed with growing concern the dramatic increase of violence, in particular, sexual violence against women and children as well as the implementation of the provisions of the Indian Penal Code, namely, Sections 377, 375/376 and 354 by the respondent authorities. The existing trend of the respondent authorities has been to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 IPC and not as a sexual offence under Sections 375/376 IPC. It has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Sections 375/376, have been treated as offences falling under Section 354 IPC as outraging the modesty of a woman or under Section 377 IPC as unnatural offences. 3. The petitioner through the present petition contends that the narrow understanding and application of rape under Sections 375/376 IPC only to the cases of penile/vaginal penetration runs contrary to the existing contemporary understanding of rape as an intent to humiliate, violate and degrade a woman or child sexually and, therefore, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of the Constitution.

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4. The petitioner submits that a plain reading of Section 375 would make it apparent that the term "sexual intercourse" has not been defined and is, therefore, subject to and is capable of judicial interpretation. Further, the Explanation to Section 375 IPC does not in any way limit the term penetration to mean penile/vaginal penetration. The definition of the term rape as contained in the Code is extremely wide and takes within its sweep various forms of sexual offences. Limiting the understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies a majority of women and children access to adequate redress in violation of Articles 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of children, particularly minor girl children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offences falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating sub-section (2)(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world. 5. The petitioner submits that there has for some time now been a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape in terms sought to be done by the respondent authorities and its agents reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour especially when it comes to sexual abuse of children. 6. In this regard, reference is invited to the observations of a renowned expert on the issue of sexual abuse: In rape, the intent is not merely to 'take', but to humiliate and degrade Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist's favourite weapon, his prime instrument of vengeance ...it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the 'natural' thing. And as men may invade women through other orifices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self? (Brownmiller, Susan, Against Our Will, 1986.) 7. The petitioner further submits that the respondent authorities and their agents have failed to take into consideration the legislative purpose of Section 377 IPC. Reference has also been made to the Law Commission of India Report (no.42) of 1971, p. 281. While considering whether or not to retain Section 377 IPC, the Commission found as under: There are, however, a few sound reasons for retaining the existing law in India. First, it cannot be disputed that homosexual acts and tendencies on the part of one spouse may affect the married life and happiness of the other spouse, and from this

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point of view, making the acts punishable by law has social justification. Secondly, even assuming that acts done in private with consent do not in themselves constitute a serious evil, there is a risk involved in repealing legislation which has been in force for a long time Ultimately, the answer to the question whether homosexual acts ought to be punished depends on the view one takes of the relationship of criminal law to morals. ...We are inclined to think that Indian society, by and large, disapproves of homosexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private. 7.1. In view of the Commission's conclusions regarding the purview of Section 377 IPC, the said section was clearly intended to punish certain forms of private sexual relations perceived as immoral. Despite the same, the petitioner submits, the respondent authorities have, without any justification, registered those cases of sexual violence which would otherwise fall within the scope and ambit of Sections 375/376 IPC, as cases of moral turpitude under Section 377 IPC. It is submitted that the respondent authorities and their agents have wrongly strained the language of Section 377 IPC intended to punish "homosexual" behaviour to punish more serious cases of sexual violence against women and children when the same ought to be dealt with as sexual offences within the meaning of Sections 375/376 IPC in violation of Articles 14 and 21 of the Constitution of India. 8. It is submitted that Article 15(3) of the Constitution of India allows for the State to make special provision for women and children. It follows that "special provision" necessarily implies "adequate" provision. Further, that the arbitrary and narrow interpretation sought to be placed by the respondent authorities and their agents on Sections 375/376 renders the effectiveness of redress under the said sections and in particular, under Section 376(2)(f) meaningless in violation of Article 15(3) of the Constitution of India. The petitioner has also referred to the UN Rights of the Child Convention ratified by Respondent 1 on 11-12-1993 as well as the UN Convention on the Elimination of Discrimination Against Women which was ratified in August 1993. In view of the ratification, Respondent 1 has created a legitimate expectation that it shall adhere to its international commitments as set out under the respective conventions. In the present case, however, the existing interpretation of rape sought to be imposed by the respondent authorities and their agents is in complete violation of such international commitments as have been upheld by this Court. 9. By an order passed on 3-11-2000 the parties were directed to formulate issues which arise for consideration. Accordingly, the petitioner has submitted the following issues and legal propositions which require consideration by the Court: (a) Given that modem feminist legal theory and jurisprudence look at a rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration, whether the term rape should today be understood to include not only forcible penile/vaginal penetration but all forms of forcible penetration including penile/oral penetration, penile/anal penetration, object or finger/vaginal and object or finger/anal penetration.

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(b) Whether all forms of non-consensual penetration should not be subsumed under Section 375 of the Indian Penal Code and the same should not be limited to penile/vaginal penetration only. (c) In particular, given the widespread prevalence of child sexual abuse and bearing in mind the provisions of the Criminal Law (Amendment) Act, 1983 which specifically inserted Section 376(2)(f) envisaging the offence of rape of a girl child, howsoever young, below 12 years of age, whether the expression sexual intercourse as contained in Section 375 of the Indian Penal Code should correspondingly include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration; and whether the expression penetration should not be so clarified in the Explanation to Section 375 of the Indian Penal Code. (d) Whether a restrictive interpretation of penetration in the Explanation to Section 375 (rape) defeats the very purpose and intent of the provision for punishment for rape under Section 376(2)(f):"Whoever ...commits rape on a woman when she is under twelve years of age. (e) Whether penetration abuse of a child below the age of 12 should no longer be arbitrarily classified according to the type of penetration (ignoring the "impact" on such child) either as an unnatural offence under Section 377 IPC for penile/oral penetration and penile/anal penetration or otherwise as outraging the modesty of a woman under Section 354 for finger penetration or penetration with an inanimate object. (f) Whether non-consensual penetration of a child under the age of 12 should continue to be considered as offences under Section 377 (unnatural offences) at par with certain forms of consensual penetration (such as consensual homosexual sex) where a consenting party can be held liable as an abettor or otherwise. (g) Whether a purposive/teleological interpretation of rape under Sections 375/376 requires taking into account the historical disadvantage faced by a particular group (in the present case, women and children) to show that the existing restrictive interpretation worsens that disadvantage and for that reason fails the test of equality within the meaning of Article 14 of the Constitution of India. (h) Whether the present narrow interpretation treating only cases of penile/vaginal penetration as rape, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of the Constitution of India. 10. Counter-affidavit on behalf of Respondents 1 and 2 has been filed by Mrs G. Mukherjee, Director in the Ministry of Home Affairs. It is stated therein that Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983. The same Act has also introduced several new sections viz. Sections 376-A, 376-B, 376-C and 376-D IPC. These sections have been inserted with a view to provide special/adequate provisions for women and children. The term "rape" has been clearly defined under Section 375 IPC. Penetrations other than penile/vaginal penetration are unnatural sexual offences. Stringent

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punishments are provided for such unnatural offences under Section 377. The punishment provided under Section 377 is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Section 377 deals with unnatural offences and provides for a punishment as severe as that provided for rape in Section 376. Sections 354 and 506 have been framed with a view to punish lesser offence of criminal assault in the form of outraging the modesty of a woman, whereas Sections 376 and 377 provide stringent punishment for sexual offences. The types of several offences as mentioned by the petitioner i.e. penile/anal penetration, penile/oral penetration, finger/anal penetration, finger/vaginal penetration or object/vaginal penetration are serious sexual offences of unnatural nature and are to be covered under Section 377 which provides stringent punishment. Therefore, the plea of the petitioner that offences under Section 377 are treated as lesser offences is incorrect. It is also submitted in the counter- affidavit that penetration of the vagina, anus or urethra of any person with any part of the body of another person other than penile penetration is considered to be unnatural and has to be dealt with under Section 377 IPC. Section 376(2) (f) provides stringent punishment for committing rape on a woman when she is under the age of 12 years. Child sexual abuse of any nature, other than penile penetration, is obviously unnatural and is to be dealt with under Section 377 IPC. It is further submitted that Section 354 IPC provides for punishment for assault or criminal force to woman to outrage her modesty. Unnatural sexual offences cannot be brought under the ambit of this section. Rape defined under Section 375 is penile/vaginal penetration and all other sorts of penetration are considered to be unnatural sexual offences. Section 377 provides stringent punishment for such offences. It is denied that provisions of Sections 375, 376 and 377 are violative of fundamental rights under Articles 14, 15(3) and 21 of the Constitution of India. Sexual penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behaviour for which Section 377 provides stringent punishment. 11. Ms. Meenakshi Arora, learned counsel for the petitioner has submitted that the Indian Penal Code has to be interpreted in the light of the problems of the present day and a purposive interpretation has to be given. She has submitted that Section 375 IPC should be interpreted in the current scenario, especially in regard to the fact that child abuse has assumed alarming proportions in recent times. Learned counsel has stressed that the words "sexual intercourse" in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type, of any orifice of the body and not intercourse as understood in the traditional sense. The words "sexual intercourse" having not been defined in the Penal Code, there is no impediment in the way of the court to give it a wider meaning so that the various types of child abuse may come within its ambit and the conviction of an offender may be possible under Section 376 IPC. In this connection, she has referred to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, 1979 and also Convention on the of the Child adopted by the General Assembly of the United Nations on 20-2-1989 and especially to Articles 17(e) and 19 thereof, which read as under: Article 17 State parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of

Sakshi v. Union of India

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national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, State parties shall(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18. Article 19 1. State parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. 12.1. In this connection, she has also referred to S. Gopal Reddy v. State of AP where the Court referred to the following words of Lord Denning in Seaford Court Estates Ltd. v. Asher [All ER 164]: It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ...A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of, which the Act is woven, but he can and should iron out the creases. 13. Ms Meenakshi Arora has submitted that this purposive approach is being adopted in some of the other countries so that the criminals do not go unscathed on mere technicality of law. She has placed strong reliance on some decisions of the House of Lords to substantiate her contentions and the most notable being R. v. R. (rape: marital exemption) where it was held as under: (All ER p. 481) The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in

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marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriages that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having unlawful with a woman without her consent, the word unlawful is to be treated as mere surplusage and not as meaning outside marriage, a since it is clearly unlawful to have sexual intercourse with any woman without her consent. 14. Ms. Meenakshi Arora has also placed before the Court the judgement rendered on 1012-1998 and 22-2-2001 by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Under Article 5 of the Statute of the International Tribunal, rape is a crime against humanity. Rape may also amount to a grave breach of the Geneva Conventions, a violation of the laws or customs of war or an act (genocide, if the requisite elements are met, and may be prosecuted accordingly. The Trial Chamber after taking note of the fact that no definition of rape can be found in international law, proceeded on the following basis: Thus, the Trial Chamber finds that the following may be accepted all the objective elements of rape: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of a mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person. 14.1. In the second judgment of the Trial Chamber dated 22-2-2001, the interpretation which focussed on serious violations of sexual autonomy was accepted. 15. Shri R.N. Trivedi, learned Additional Solicitor General, appearing for the respondents, has submitted that international treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights but only in absence of municipal laws as held in Vishaka v. State of Rajasthan and Lakshmi Kant Pandey v. Union of India. When laws are already existing, subsequent ratification of international treaties would not render existing municipal laws ultra vires of treaties in case of inconsistency. In such an event the State through its legislative wing can modify the law to bring it in accord with treaty obligations. Such matters are in the realm of State policy and are, therefore, not enforceable in a court of law. He has also submitted that Sections 354 and 375 IPC have been interpreted in innumerable decisions of various High Courts and also of the Supreme Court and the consistent view is that to hold a person guilty of rape, penile penetration is essential. The law on the point is similar both in England and USA. In State of Punjab v. Major Singh, it was held that if the hymen is ruptured by inserting a finger, it would not amount to rape. Lastly, it has been submitted that a writ petition under Article 32 of the Constitution would not lie for

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reversing earlier decisions of the Court on the supposed ground that a restrictive interpretation has been given to certain provisions of a statute. 17. This Court on 13-1-1998 referred the matter to the Law Commission of India for its opinion on the main issue raised by the petitioner, namely whether all forms of penetration would come within the ambit of Section 375 IPC or whether any change in statutory provisions needs to be made, and if so, in what respect? The Law Commission had considered some of the matters in its 156th Report and the relevant extracts of the recommendation made by it in the said report, concerning the issue involved, were placed before the Court. Para 9.59 of the report reads as under: 9.59. Sexual child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under Section 375 IPC. If there is any case of penile/oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed Section 354 IPC whereunder a more severe punishment is also prescribed can be invoked and as regards the male child, the penal provisions of IPC concerning 'hurt', 'criminal force' or 'assault', as the case may be, would be attracted. A distinction has to be naturally maintained between sexual assault/use of criminal force falling under Section 354, sexual offences falling under Section 375 and unnatural offences falling under Section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under Section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract Section 354 IPC within the ambit of 'rape' which is a distinct and graver offence with a definite connotation. It is needless to mention that any attempt to commit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may not be necessary. 17.1. Regarding Section 377 IPC, the Law Commission recommended that in view of the ongoing instances of sexual abuse in the country where unnatural offence is committed on a person under age of eighteen years, there should be a minimum mandatory sentence of imprisonment for a term of not less than two years but may extend to seven years and fine, with a proviso that for adequate and special reasons to be recorded in the judgment, a sentence of less than two years may be imposed. The petitioner submitted the response on the recommendations of the Law Commission, On 10-2-2000/18-2-2000, this Court again requested the Law Commission to consider the comments of representative organisations (viz. SAKSHI, IFSHA and AIDWA). 18. The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration within its ambit. Section 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the words "sexual intercourse" is heterosexual intercourse

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involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Macaulay was the President. It was presented to the Legislative Council in 1856 and was passed on 6-10-1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman (which in view of Section 10 denotes a female human being of any age) no major amendment has been made in the said provision. Sub-section (2) of Section 376 and Sections 376-A to 376-D were inserted by the Criminal Law (Amendment) Act, 1983 but sub-section (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of "rape" as given in Section 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with an intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment. 19. It is well-settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support ,addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. 20. Sections 354, 375 and 377 IPC have come up for consideration before the superior courts of the country on innumerable occasions in a period of almost one-and-a-half century. Only sexual intercourse, namely, heterosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute sexual intercourse necessary for the offence of rape has been held to come within the purview of Section 375 IPC. The wide definition which the petitioner wants to be given to "rape" as defined in Section 375 IPC so that the same may become an offence punishable under Section 376 IPC has neither been considered nor accepted by any court in India so far. Prosecution of an accused for an offence under Section 376 IPC on a radically enlarged meaning of Section 375 IPC as suggested by the petitioner may violate the guarantee enshrined in Article 20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. 22. It may be noted that ours is a vast and big country of over 100 crore people. Normally, the first reaction of a victim of a crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate sections of the Penal Code. Such police personnel are invariably not highly educated people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action is taken by them as provided in the Code of Criminal Procedure. The Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition

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of "rape" as contained in Section 375 IPC which is taught to every student of law. A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by the Court of Session are committed to the Court of Session. The entire legal fraternity of India, lawyers or judges, have the definition as contained in Section 375 IPC ingrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in a good deal of chaos and confusion, and will not be in the interest of the society at large. 26. There is absolutely no doubt or confusion regarding the interpretation of provisions of Section 375 IPC and the law is very well settled. The inquiry before the courts relates only to the factual aspect of the matter which depends upon the evidence available on the record and not on the legal aspect. Accepting the contention of the writ petitioner and giving a wider meaning to Section 375 IPC will lead to a serious confusion in the minds of the prosecuting agency and the courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole. We are, therefore, of the opinion that it will not be in the larger interest of the State or the people to alter the definition of rape as contained in Section 375 IPC by a process of judicial interpretation as is sought to be done by means of the present writ petition. 33. In State of Punjab v. Gurmit Singh, this Court had highlighted the importance of provisions of Sections 327(2) and (3) Cr PC and a direction was issued not to ignore the mandate of the aforesaid provisions and to hold the trial of rape cases in-camera. It was also pointed out that such a trial in-camera would enable the victim of the crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of the public. It was further directed that as far as possible trial of such cases may be conducted by lady judges wherever available so that the prosecutrix can make a statement with greater ease and assist the court to properly discharge its duties, without allowing the truth to be sacrificed at the altar of rigid technicalities. 34. The writ petition is accordingly disposed of with the following directions: (1) The provisions of sub-section (2) of Section 327 Cr.P.C. shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC. (2) In holding trial of child sex abuse or rape: (i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused; (ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the

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presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;. iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required. These directions are in addition to those given in State of Punjab v. Gurmit Singh. 35. The suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that Parliament will give serious attention to the points highlighted by the petitioner and make an appropriate legislation with all the promptness which it deserves. *****

Bhupinder Sharma v. State of Himachal Pradesh

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Bhupinder Sharma v. State of Himachal Pradesh

(2003) 8 SCC 551

ARIJIT PASAYAT, J . - The prosecution version as unfolded during the trial is that the
victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus-stand at about 2.00 p.m. After having alighted from the bus, she enquired from a lady as to where a particular medicine shop was located. The lady stated ignorance. At this juncture, two persons came there and asked her to accompany them in a three-wheeler as they were both going to the shop concerned. The victim was taken by the two boys, namely, accused Ashish Kanwar and Suresh to an isolated place in a jungle. The three-wheeler was sent back with a direction to come in the evening. After gagging her mouth, she was taken to a house which was below the road. There were four more boys. Three out of those were identified by the victim during the trial. The fourth one, namely, Shanker was not tried as adequate evidence was not available against him. The victim was sexually abused firstly by accused Ashish followed by accused Sunil, Suresh and Ruby. The appellant Bhupinder and Shanker (not tried) were in the process of taking off their clothes with a view to perpetuate sexual abuse when the victim managed to escape with only a shirt and ran away barefooted. When she reached near the road, she saw Chaman Lal, ASI who was accompanied by police officers. Meanwhile, two other persons also came there. They were Charanjit (PW 2) and Balvinder (PW 3). When the victim described the ghastly incident to them, she was taken to the room where she had been raped, but it was found that all six of them had fled away. The police took into possession certain articles. The statement of the victim was recorded and investigation was undertaken. She was sent for medical examination where she was examined by Dr. Radha Chopra (PW 8). All the convicts were arrested during investigation. Forensic Laboratory tests were conducted and a charge-sheet was placed under Section 376 read with Section 34 IPC and Section 342 read with Section 34 IPC. The accused persons pleaded not guilty. After conclusion of the trial all of them were found guilty and convicted to undergo different sentences. The present appellant Bhupinder was sentenced to undergo RI for four years for the offence relatable to Section 376 read with Section 34 IPC and two years for the offence punishable under Section 342 read with Section 34 IPC. All the other accused persons were convicted to RI for 7 years for the offences punishable under Section 376 and 342 IPC. 2. In case of the present appellant, a departure was made so far as sentence is concerned because the trial court was of the view that he had not actually committed rape and the victim had escaped before he could do so. The High Court issued suo motu notice of enhancement of sentence in respect of appeals filed by the present appellant Bhupinder and accused Ashish. 3. Before the High Court the evidence of the victim was stated to be tainted and it was also submitted that the consent was writ large and, therefore, offence under Section 376 was not made out. It was urged that there was no corroboration of the evidence of the victim and, therefore, the prosecution version should not have been accepted. 4. The High Court found that the evidence was cogent and confirmed the conviction. It took note of Explanation 1 to sub-section (2) of Section 376 IPC as the case was one of gang

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rape. It was observed that not only the said Explanation 1 but also the provisions of Section 114-A of the Indian Evidence Act, 1872 applied. Accordingly, it was held that involvement of accused-appellant Bhupinder cannot be ruled out though he may not have actually raped the victim. In view of the specific provision relating to sentence and in the absence of any adequate and special reason having been indicated by the trial Judge, the minimum sentence was to be imposed. With these findings the sentence was enhanced as aforesaid. 5. We have heard the learned counsel for the respondent State. He pointed out that the minimum sentences are prescribed for the offence of rape under sub-sections (1) and (2). Sub-section (2) (g) of Section 376 refers to gang rape, Explanation I by a deeming provision makes everyone in a group of persons acting in furtherance of their common intention guilty of offence of rape and each is deemed to have committed gang rape, even though one or more of them may not have actually committed rape. Unfortunately, there was no appearance on behalf of the accused-appellant and ultimately, after the hearing was over and the judgment was reserved and after considerable time thereof appearance was made by the learned counsel for the accused-appellant. In view of the continued absence without any justifiable reason, and since the matter was closed after hearing the learned counsel for the respondent at length, the learned counsel for the accused-appellant though made a request to grant an opportunity of being heard, was only granted permission to file written notes of argument keeping in view that the quantum of sentence alone was to be the subject-matter of consideration. 6. The stand as appears from the memorandum of appeal and the written submission made is that at the most the appellant can be held guilty of an attempt to commit the offence and not commission of the offence itself. The evidence is also claimed to be unreliable in the absence of corroboration and the tell-tale symptoms of consent. Regarding quantum of sentence, personal and family difficulties are urged as extenuating circumstances. 7. The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for Sexual offences, which encompasses Sections 375, 376, 376-A, 376-B, 376- C, and 376-D. Rape is defined in Section 375. Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act. 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her consent, by force, fear or fraud or as the carnal knowledge of a woman by force against her will. In the crime of rape, carnal knowledge means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephens Criminal Law, 9th Edn., p. 262). In Encyclopaedia of Crime and Justice (Vol. 4, p. 1356) it is stated ... even slight penetration is sufficient and emission is unnecessary. In Halsburys Statutes of England and Wales (4th Edn.), Vol. 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private persons of a woman -an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.

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8. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. A similar view was expressed by this Court in Rafiq v. State of UP with some anguish. The same was echoed again in Bharwada Bhoginbhai Hirijibhai v. State of Gujarat. It was observed in the said case that in the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is an inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan were; The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. 9. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance. 10. It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. Decency and morality in the public and social life can be protected only if courts deal strictly with those who violate the social norms. Two alternative custodial punishments are provided; one is imprisonment for life or with imprisonment of either description for a term which may extend to ten years. The latter is the minimum, subject of course to the proviso which authorise lesser sentence for adequate and special reasons. 11. In cases of gang rape the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation I in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or

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on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC. 12. Both, in cases of sub-sections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for adequate and special reasons. If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum. 13. In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record adequate and special reasons in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no straitjacket formula can be imposed. In the case at hand, the only reason which seems to have weighed with the trial court is that the present accused-appellant had not actually committed the rape. That cannot be a ground to warrant lesser sentence; more so, in view of Explanation I to sub section (2) of Section 376. By operation of a deeming provision a member of a group of persons who have acted in furtherance of their common intention per se attracts the minimum sentence. Section 34 has been applied by both the trial court and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but he was also waiting for his turn, as is evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy. Since no other just or special reason was given by the trial court nor could any such be shown as to what were the reasons to warrant a lesser sentence, the High Court was justified in awarding the minimum prescribed sentence. That being the position, this appeal is dismissed. *****

Pyare Lal Bhargava v. State of Rajasthan

193

Priya Patel v. State of Madhya Pradesh

(2006) 6 SCC 263

ARIJIT PASAYAT, J. - Can a lady be prosecuted for gang rape is the interesting question
involved in this appeal. 3. Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court holding that the charge framed against the appellant under Sections 323 and 376(2)(g) of the Indian Penal Code, 1860 (in short 'IPC') is in order. 4. Background facts in a nutshell are as follows: Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC the appellant, as noted above, was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC. The revision filed before the High Court questioned legality of the charge framedso far as the appellant is concerned, relatable to Section 376(2)(g) IPC. It was contended that a woman cannot be charged for commission of offence of rape. The High Court was of the view that though a woman cannot commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she can be prosecuted for gang rape. 5. According to learned counsel for the appellant the High Court has clearly missed the essence of Sections 375 and 376 IPC. It was submitted that as the woman cannot commit rape, she cannot certainly be convicted for commission of "gang rape", and Explanation-I to Section 376(2) IPC has no relevance and/or application. 6. Per contra, learned counsel for the State supported the order. Additionally, it was submitted that even if for the sake of argument it is conceded that the appellant cannot be prosecuted for commission of offence punishable under Section 376(2)(g), she can certainly be prosecuted for commission of the offence of abetment. 7. In order to appreciate rival submissions Sections 375 and 376 need to be noted. They, so far as relevant, read as follows:375. Rape: A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-First - Against her will. Secondly - Without her consent.

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Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- x x x x x (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation I.- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. X X X X X 8. A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to gang rape. The language of subSection(2)(g) provides that "whoever commits gang rape shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have

Pyare Lal Bhargava v. State of Rajasthan

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committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. Common intention is dealt with in Section 34 IPC and provides 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 manner as if it was done by him alone. Common intention denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC is that the act must be done in furtherance of the common intention to do a criminal act. The expression in furtherance of their common intention, as appearing in the Explanation to Section 376(2), relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g). 9. The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard. The appeal is allowed to the aforesaid extent. *****

226

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

Bhupinder Singh v. U.T. of Chandigarh

(2008) 8 SCC 531

DR. ARIJIT PASAYAT, J.- 4. Challenge in these appeals is to the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Appeal No.698-SB/1999. The appellant Bhupinder Singh (hereinafter referred to as the accused) had filed the appeal before the High Court against the judgment dated 20.9.1999 passed by learned Additional Sessions Judge, Chandigarh, convicting him for offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860 (in short the Code). He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default stipulations for the first offence and rigorous imprisonment for nine months in respect of the second offence. 5. The prosecution version, as unfolded during trial, is as follows: Complainant Manjit Kaur filed a complaint stating that she was employed as Clerk in All Bank Employees Urban Salary Earners Thrift Credit Society Ltd. and worked as such till September, 1991. She was daily commuting from Naraingarh, District Ambala, where her sister was residing. Accused Bhupinder Singh was employed as Data Entry Operator in the State Bank of Patiala, Sector 17-C, Chandigarh. He used to come to her office and developed intimacy and then asked her to marry after disclosing himself as an unmarried person. Accused Bhupinder Singh insisted upon her to get married at the earliest in a Gurudwara through a simple ceremony and said that permission from the parents can be taken later on and that thereafter marriage would be solemnized with great pomp and show. Then she agreed to the proposal of the accused.
6. Then on 4.12.1990, Manjit Kaur and Bhupinder Singh got solemnized their marriage in Gurudwara after exchanging garland before the holy Granth Sahib. At that time, one Sohan Singh, husband of her cousin sister Joginder Kaur was also present. Then she stayed with the accused in H.No.-3166, Sector 22-C (Top Floor), Chandigarh, where accused was residing jointly with one J.P. Goel, who was working in the same bank. Then they had gone to Kasauli for honeymoon on 27.12.1990 and stayed in a hotel. Then her office was shifted from Sector 17 to Sector 42, Chandigarh. She and the accused shifted to H.No.1110, Sector 42-B, Chandigarh and stayed in a rented accommodation owned by one Pritam Singh. Even the landlord had lodged a report in Police Station, Sector 36, Chandigarh, showing them as husband and wife and prior to that a form was duly filled by Bhupinder Singh and same was handed over to the landlord to establish the fact of their being husband and wife. Accused had also taken a loan of Rs.5000/- from a society at Panchkula in May 1991, where he had nominated her as his wife. She became pregnant. But accused got her aborted from Kaushal Nursing Home against her wishes. She had left the service in September 1991 under the pressure of the accused. 7. In the year 1992, accused-Bhupinder Singh was transferred from Chandigarh to Ropar and they shifted to Ropar and stayed in House No.111, Street No.8, Malhotra Colony, Ropar. They came back to Chandigarh again and started living in H.No.859, Sector 38, Chandigarh and accused Bhupinder started going to Ropar daily from Chandigarh. She got re-employment in May 1993 in Punjab University, Chandigarh on daily wages as Clerk and visited H.No. C-

Pyare Lal Bhargava v. State of Rajasthan

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146, Sector 14, Punjab University, Chandigarh, on the eve of Diwali in 1993. She again became pregnant in July 1993 and their relations remained cordial till March, 1994. 8. On 6.3.1994 when she had gone to Rose Garden, she met Devinder Kumar Bansal and Vinod Sharma, who were friends of her husband Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She asked them as to why they had not told her about the previous marriage of her husband. But they avoided answering. She was shocked to learn this and after reaching the residence, she asked about Bhupinder Singh, who on the same day had left for Patiala on the pretext of attending some training course and did not return till 13.3.1994. She went to the house of Devinder Bansal to know whereabouts of accusedBhupinder Singh and there Bhupinder Singh along with his wife Gurinder Kaur came and started fighting and then Manjit Kaur tried to inform the police. But Daljit, husband of sister of Bhupinder Singh brought her and left her in her house. 9. On 16.4.1994, she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was father of the child. But Bhupinder Singh did not turn up. On this complaint, case was registered for the offence punishable under Sections 420/376/498-A IPC. It was investigated. Investigating Officer, during investigation, collected many documents showing the accused Bhupinder Singh and prosecutrix Manjit Kaur as husband and wife. After investigation, challan was presented. Accused-appellant faced trial. After trial, he was convicted and sentenced as aforesaid. He filed an appeal before the High Court. On behalf of the complainant, a Criminal Revision was filed for enhancement of sentence. Further a Crl. Misc. Application was also filed for awarding compensation under Section 357 of the Code of Criminal Procedure, 1973 (in short Code). 10. The High Court referred to the evidence of the witnesses, more particularly, Harvardhan (PW2), the Registrar, Births & Death, U.T. of Chandigarh wherein it was recorded that complainant Manjit Kaur had delivered a female child on 16.4.1994 in General Hospital, Sector-16, Chandigarh and accused-appellant's name was mentioned as the father. Reference was also made to the evidence of Mal Singh (PW10) in whose house the appellant and the complainant used to stay. 11. In his statement under Section 313 of the Code the appellant took the stand that he started knowing the appellant after his marriage with Gurinder Kaur. The complainant was known to his wife before her marriage with him and she had come along with her mother to their place in 1988 in Sector 23, Chandigarh where her mother requested him to get her a job as she had finished the studies and wanted to get a job.The complainant stayed in their house for six months. Thereafter, he arranged a job for her. However, she had shifted and being of loose morals, entertained many people. When he learnt that she was of loose morals and was going out with different persons at odd hours, he objected and told the complainant to mend her ways. But she started fighting with him and demanded money which he does not pay and, after delivery of the child, she filed a false complaint. Gurinder Kaur (PW 20) stated that he knew the complainant prior to her marriage. Documents were also produced to show that in official documents, accused-appellant had shown the complainant as his wife and nominee.

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12. The High Court found that the case at hand was covered by Clause "Fourthly" of Section 375 IPC and, therefore, was guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly, the conviction, as done, was upheld. But taking into account the fact that the complainant had knowledge about his marriage, and had yet surrendered to him for sexual intercourse, held this to be a fit case for reduction of sentence and award of adequate compensation. Accordingly, custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1,00,000/- which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid, the reduction in sentence would not be given effect to. 13. Learned counsel for the accused-appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, clause "fourthly" of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. The sentence imposed is stated to be harsh. It was, however, pointed out that the compensation, as awarded by the High Court, has been deposited and withdrawn by the complainant. 14. Learned counsel for the State submitted that it is a clear case where clause "fourthly" of Section 375 IPC is applicable. Learned counsel for the complainant submitted that this was a case where no reduction in sentence was called for. The High Court proceeded on an erroneous impression that the complainant knew that the accused was a married man. It was also submitted that the compensation as awarded, is on the lower side. 15. Clause fourthly of Section 375 IPC reads as follows: 375. Rape - A man is said to commit rape, who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:x x x x x Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. x x x x x 16. Though it is urged with some amount of vehemence that when complainant knew that he was a married man, clause fourthly of Section 375 IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of clause fourthly of Section 375 IPC makes this position clear. 17. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994, but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and, therefore, was not in a position to lodge the

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complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused-appellant. Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence. 18. The appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married man. The High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1,00,000/. The reasons indicated by the High Court do not suffer from any infirmity and, therefore, the appeal filed by the complainant is without merit and is dismissed. Both the appeals are, accordingly, dismissed. *****

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

PART - B : OFFENCES AGAINST PROPERTY

TOPIC 8 : OFFENCES OF THEFT AND EXTORTION (Sections 378 & 379 read with sections 22-25, 44) and
(Sections 383 & 384 read with sections 29 and 30)

Pyare Lal Bhargava v. State of Rajasthan

AIR 1963 SC 1094

K. SUBBA RAO, J. - This appeal by special leave is directed against the decision of the High Court of Rajasthan in Criminal Revision No. 237 of 1951 confirming that of the Sessions Judge, Alwar, convicting the appellant under Section 379 of the Indian Penal Code and sentencing him to a fine of Rs. 200.
2. To appreciate the questions raised in this appeal the following facts, either admitted or found by the High Court, may be stated. On November 24, 1945, one Ram Kumar Ram obtained permission, Ex. PB, from the Government of the former Alwar State to supply electricity at Rajgarh, Khertal and Kherli. Thereafter, he entered into partnership with 4 others with an understanding that the licence would be transferred to a company that be floated by the said partnership. After the company was formed it, put an application to the Government through its managing agents for the issue of a licence in its favour. Ex. PW 15/B is that application. On the advice given by the Government Advocate, the Government required Ram Kumar Ram to file a declaration attested by a Magistrate with regard to the transfer of his rights and the licence to the company. On April 8, 1948, Ram Kumar Ram filed a declaration to that effect. The case of the prosecution is that Ram Kumar Ram was a friend of the appellant, Pyarelal Bhargava, who was a Superintendent in the Chief Engineers Office, Alwar. At the instance of Ram Kumar Ram, Pyarelal Bhargava got the file Ex. PA/1 from the Secretariat through Bishan Swarup, a clerk, before December 16, 1948, took the file to his house sometime between December 15 and 16, 1948, made it available to Ram Kumar Ram for removing the affidavit filed by him on April 9, 1948 and the application, Ex. PW 15/B from the file and substituting in their place another letter Ex. PC and another application Ex. PB. After replacing the said documents, Ram Kumar Ram made an application to the Chief Engineer on December 24, 1948 that the licence should not be issued in the name of the company. After the discovery of the tempering of the said documents, Pyarelal and Ram Kumar were prosecuted before the Sub-Divisional Magistrate, Alwar, the former for an offence under Section 379 and Section 465, read with Section 109 of the Indian Penal Code, and the latter for an offence under Sections 465 and 379, read with Section 109, of the Indian Penal Code. The Sub-Divisional Magistrate convicted both the accused under the said sections and sentenced them on both the counts. On appeal the Sessions Judge set aside the conviction under Section 465, but maintained the conviction and sentence of Pyarelal Bhargava under Section 379, and Ram Kumar Ram under Section 379 read with Section 109 of the Indian Penal Code. Ram Kumar Ram was sentenced to pay a fine of Rs. 500 and Pyarelal Bhargava to pay a fine of Rs. 200. Against these convictions both the accused filed revisions to the High Court, and the High Court set aside the conviction and sentence of Ram

Pyare Lal Bhargava v. State of Rajasthan

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Kumar Ram but confirmed those of Pyarelal Bhargava. Pyarelal Bhargava has preferred the present appeal. 3. Learned counsel for the appellant raised before us three points. [The first two points raised are not relevant for discussion under section 379 IPC]. The third point which was raised and is relevant here was that on the facts found the offence of theft has not been made out within the meaning of Section 379 of the Indian Penal Code. 8. The facts found were that the appellant got the file between December 15 and 16, 1948, to his house, made it available to Ram Kumar Ram and on December 16, 1948 returned it to the office. On these facts it is contended that the prosecution has not made out that the appellant dishonestly took any movable property within the meaning of Section 378 of the Indian Penal Code. The said section reads: Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft. The section may be dissected into its component parts thus: a person will be guilty of the offence of theft, (1) if he intends to cause a wrongful gain or a wrongful loss by unlawful means of property to which the person gaining is not legally entitled or to which the person losing is legally entitled, as the case may be: see Sections 23 and 24 of the Indian Penal Code; (2) the said intention to act dishonestly is in respect of movable property; (3) the said property shall be taken out of the possession of another person without his consent; and (4) he shall move that property in order to such taking. In the present case the record was in the possession of the Engineering Department under the control of the Chief Engineer. The appellant was the Superintendent in that office; he took the file out of the possession of the said engineer, removed the file from the office and handed it over to Ram Kumar Ram. But it is contended that the said facts do not constitute the offence of theft for three reasons, namely (i) the Superintendent was in possession of the file and therefore he could not have taken the file from himself; (ii) there was no intention to take in dishonestly, as he had taken it only for the purpose of showing the documents to Ram Kumar Ram and returned it the next day to the office and therefore he had not taken the said file out of the possession of any person; and (iii) he did not intend to take it dishonestly, as he did not receive any wrongful gain or cause any wrongful loss to any other person. We cannot agree that the appellant was in possession of the file. The file was in the Secretariat of the Department concerned, which was in charge of the Chief Engineer. The appellant was only one of the officers working in that department and it cannot, therefore, be said that he was in legal possession of the file. Nor can we accept the argument that on the assumption that the Chief Engineer was in possession of the said file, the accused had not taken it out of his possession. To commit theft one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on. We cannot also agree with learned Counsel that there is no wrongful loss in the present case. Wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled. It cannot be disputed that the appellant unauthorizedly took the file from the office and handed it over to Ram Kumar Ram. He had, therefore, unlawfully taken the file from the department, and for a short time he

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deprived the Engineering Department of the possession of the said file. The loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession, though the person taking it intended to restore it sooner or later. A temporary period of deprivation or dispossession of the property of another causes loss to the other. That a person will act dishonestly if he temporarily dispossesses another of his property is made clear by illustrations (b) and (l) of Section 378 of the Indian Penal Code. It will be seen from the said illustrations that a temporary removal of a dog which might ultimately be returned to the owner or the temporary taking of an article with a view to return it after receiving some reward constitutes theft, indicating thereby that temporary deprivation of another person of his property causes wrongful loss to him. We, therefore, hold that the facts found in this case clearly bring them within the four corners of Section 378 of the Indian Penal Code and, therefore, the courts have rightly held that the appellant had committed the offence of theft. 9. No other point was pressed before us. In the result the appeal fails and is dismissed. *****

Jadunandan Singh v. Emperor

AIR 1941 Pat. 129

Narain Dusadh and Sheonadan Singh, the gorait and gomasta respectively of a landlord, were returning after the inspection of some fields when the two petitioners and others came out of an ahar and assaulted them. The petitioner Alakh gave bhala blow to Narain on the right leg, and then other people assaulted him with lathis. The petitioner Jadunandan and others then assaulted Sheonandan. Jadunandan after this forcibly took the thumb impressions of Narain on one piece of blank paper, and of Sheonandan on three blank papers. On these findings the two petitioners and two others were convicted by the trying Magistrate, Jadunandan being sentenced under Section 384, Penal Code, to six months rigorous imprisonment and Alakh to four months rigorous imprisonment under Section 324. Jadunandan was also found guilty under Section 323 but the Magistrate did not consider it necessary to pass any separate sentence on him under that section. Two other men were also convicted by the Magistrate under Section 323 and fined. An appeal which was heard by the Additional Sessions Judge of Gaya failed. When the matter came to this Court, Verma J., rejected the revisional application of Jadunandan Singh and also, so far as the question of sentence was concerned, that of Alakh. It has been contended on behalf of Jadunandan Singh that no offence under Section 384 has been brought home to him. This contention is rested on the definition of extortion in Section 383. It is clear that this definition makes it necessary for the prosecution to prove that the victims Narain and Sheonandan were put in fear of injury to themselves or to others, and further, were thereby dishonestly induced to deliver paper containing their thumb impressions. The prosecution story in the present case goes on further than that thumb impressions were forcibly taken from them. The details of the forcible taking were apparently not put in evidence. The trial Court speaks of the wrists of the victims being caught and of their thumb impressions being then taken. Cases frequently occur which turn on the difference between the giving and the taking of thumb impressions. In criminal Revn. No. 125 of 19311 heard by Sir Courtney-Terrell C. J., and myself on 15th April 1931, the victim was tied up on refusing to give his thumb impression on a piece of paper. He then consented to put his thumb impression on that piece of paper, and it was by that fear he was found to have been induced to put his thumb impression on the paper. The conviction under Section 384 was therefore upheld. This was contrasted with the case which had come before me sitting singly in 1930, Criminal Revn. No. 420 of 1930, 2 decided on 15th August 1930, where the finding of fact that, helped by two others, the petitioner took by force the thumb impressions of the victim-the man was thrown on the ground, his left hand pulled out and the thumb put into a kajrauta and then impression of that thumb taken on certain papers. I had held that in the circumstances there was no inducing the victim to deliver the pieces of paper with his thumb impressions. As to this, the late Chief Justice observed: If the facts had been that the complainants thumb had been forcible seized by one of the petitioners and had been applied to the piece of paper notwithstanding his struggles and protests, then I would agree that there is good ground for saying that the offence committed, whatever it may be, was not the offence of extortion because

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the complainant would not have been induced by the fear of injury but would have simply been the subject of actual physical compulsion, and I venture to agree with the reasoning of my learned brother Dhavle in Cri. Rev. No. 420 of 1930. The Assistant Government Advocate has drawn attention to 13 PLT 5883 where the petitioners were convicted under Section 347. It is said in one part of the report that the victim was laid down on the floor and gagged and only allowed to go after his thumb impressions were taken on several pieces of paper. Macpherson, J. upheld the conviction, after pointing out however that it had been found as a fact that the petitioners intentionally put the victim in fear of injury to himself and thereby dishonestly induced him to place his thumb impression upon certain pieces of paper. There is no such finding in the present case. The lower Courts only speak of the forcible taking of the victims thumb impressions: and as this does not necessarily involve inducing the victim to deliver papers with his thumb impressions (papers which could no doubt be converted into valuable securities), I must hold that the offence of extortion is not established. The learned advocate suggested that in that event this may be a case of robbery, but it has not been asserted or found that the papers were taken from the victims possession. It seems to me that on the findings the offence is no more than the use of criminal force or an assault punishable under Section 352, Penal Code. Jadunandan Singh was also convicted under Section 323, but no separate sentence was passed upon him under that section. I do not propose to interfere with that part of the order of the lower Court, and as regards his conviction under Section 384, Penal Code, which must be replaced by a conviction under Section 352, Penal Code, I sentence him to rigorous imprisonment in default. As regards the petitioner Alakh it had been urged that he is a student. From the record it appears that his age is 22, and though record does not show that he is a student, an attempt has been made before me quite recently by means of an affidavit and a certificate to show that he is a student. I am not sure that this is any mitigation of the offence of causing hurt with a bhala, but having regard to the nature of the injury that he caused, it seems to me that the ends of justice will be served if the sentence passed upon him under Section 324, Penal Code, is reduced to rigorous imprisonment for three months. *****

Sekar v. Arumugham

205

Sekar v. Arumugham
(2000) Cr. L. J. 1552 (Mad.)

A. RAMAMURTHI, J. - Petitioner Sekar has filed these revision petitions aggrieved

against the orders passed in Cri MPs 1530 and 2049 of 1999 respectively in C.C. 121 of 1999 on the file of Learned Judicial Magistrate, Manapparai, petitioner in Cri. R.C. 658/99 has preferred the revision aggrieved against the order passed by learned Additional District Judge. Trichy Cri. R.C. No. 117/98 dated 26-2-1999. 2. The case in brief for the disposal of these revision petitions is as follows: Petitioner Sekar filed petition under S. 451 of the Code of Criminal Procedure seeking custody of the lorry bearing registration no. TN-45/D 5649 and also petition under Section 91 of the Code of Criminal Procedure for production of the said lorry before the Court. He filed a private complaint before the learned Magistrate for an offence under Section 379 on the ground that the vehicle in question had been taken away be the respondent. The complaint was dismissed under Section 203 of the Code of Criminal Procedure by the learned Magistrate and aggrieved against this the petitioner preferred Cri. R.C. 117/98 on the file of learned Additional District Judge. Trichy and the revision was allowed and aggrieved against this only, the Branch Manager, Bank of Madura filed the revision petition no. 658/99. The petitions filed by the petitioner Sekar missed by the learned trial Magistrate and aggrieved against this only, the other revision petitions are filed. 3. Learned counsel for the petitioner Sekar contended that the learned Magistrate erred in dismissing both petitions holding that the investigation is pending and as such, they cannot be called upon to produce the vehicle into the Court. He is the owner of the lorry in dispute and the registration certificate book also stands only in his name. The respondent has not claimed any rival ownership of the lorry and there is no impediment for directing the respondent to produce the lorry and also to give custody. The learned Magistrate failed to appreciate that keeping the lorry in the custody is illegal. 4. Learned counsel for the petitioner in Cri. R.C. 638/99 and the respondent in the other two revision petitions contended that the petitioner Sekar had availed a loan for a sum of Rs. 4 lakhs during November 94 from the Bank of Madura, cantonment Branch, Trichy towards purchase of Ashok Leyland Lorry. The petitioner executed a deed of hypothecation dated 911-1994 in favour of the bank and in terms of which had hypothecated the lorry in question as a security towards the due repayment of the amount borrowed by him. The loan was repayable in 60 monthly instalments. In terms of clause 14(3) of the deed of hypothecation, in the event of any default in the payment of the loan instalments, the bank had the right to seize the said lorry. As per clause 15(b) of the said deed, the bank upon seizure of the vehicle was vested with the right to sell the same and appropriate the sale proceeds towards the outstanding dues and payable of monthly instalments and as such, on 30-7-1998 the bank seized the said lorry. Aggrieved against seizure he filed a suit in OS 230/96 against the bank in District Munsif Court, Manaparai and the suit was ultimately dismissed. The petitioner also filed W.P. 17835/98 against the bank and ultimately, in view of the pendency of the suit, he was not permitted to invoke Article 226 of the Constitution and the writ petition was also dismissed. After exhausting all these remedies, he filed C.C. 210 of 1998 against the bank for

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alleged offence under Section 379, IPC. The learned Magistrate on recording the evidence of the prosecution witnesses and on conducting an enquiry under Section 202 of Criminal Procedure Code inter alia holding that for the seizure of the said lorry by the bank for the default in payment of instalments, the bank or its officers cannot be prosecuted for the offence of theft in the absence of mens rea. The petitioner filed the revision Cri. R.C. No. 117/98 before the learned Additional District Judge. Trichy and the revision was allowed. Only the owner of the property can claim right to seize the vehicle and the petitioner cannot claim the right. The bank continues to be the owner of the lorry and as such, the dismissal of the petitions is proper and correct. 5. The parties in all the revision petitions are one and the same and as such, a common order is pronounced in all these revision petitions. The parties will be hereinafter referred to as they are described in Cri. R.C. 585 of 1999 to avoid confusion. 6. It is admitted that the petitioner has availed the loan of Rs. 4 lakhs during November 1994 from the respondent towards purchase of the lorry in question. He also executed a deed of hypothecation dated 9-11-1994 in favour of the bank. The petitioner defaulted in payment of the monthly instalments and because of this the respondent bank seized the lorry on 30-71998. The petitioner filed a petition under Section 91, Cr. P.C. to send for the property to the Court and he also filed another petition under Section 451, Cr. P.C. to return the lorry in question to him since he claims that he is the owner of the property and the registration certificate stands in his name. These two petitions are dismissed by the learned Magistrate. Learned counsel for the petitioner mainly contended that the registration certificate book stands in the name of the petitioner and since he is the owner, the trial Court ought to have allowed both the petitions and as such, the dismissal is not proper and correct. 7. Learned counsel for the respondent contended that the petitioner hypothecated the lorry to the banks as a security and clause 14(e) of the deed of hypothecation clearly indicates that in the event of any default in the payment of instalments, the bank had the right to seize the lorry. Moreover, according to clause 15(b) of the said deed of hypothecation, the bank upon seizure of the vehicle was vested with the right to sell the same and appropriate the sale proceeds towards the outstanding dues and payable to it. It is therefore clear from clauses 14(e) and 15(b) of the deed that the respondent is entitled to seize the lorry in case of default. Inspite of these provisions, after the seizure of the lorry by the respondent, it appears that the petitioner filed a private complaint before the learned Magistrate and the same was dismissed under Section 203, Cr. P.C. Aggrieved against this, the petitioner preferred revision before the learned Chief Judicial Magistrate, Trichy and the appeal was allowed, directing the learned Magistrate to dispose of the case in accordance with law. Aggrieved against this order only, the respondent has filed the other revision petition 658/99. 8. It is necessary to state that the petitioner filed a suit in O.S. 250/98 against the respondent bank on the file of District Munsif Court, Manaparai for a declaration that he is the owner of the lorry and also filed I.A. No. 610/98 for a mandatory injunction. The petition was dismissed. Subsequently, he filed the suit in O.S. 187/98 on the file of Sub-Court, Kulithalai for damages and it is pending. Not satisfied with that, the petitioner filed writ petition and the same was dismissed by the Court. When the respondent has been empowered to seize the lorry under clause 14(e), it cannot be said that the respondent has committed theft

Sekar v. Arumugham

207

of the lorry when the petitioner has committed default in payment of instalments, the bank has seized the lorry. The private complaint has been filed against the respondent for alleged offence under Section 379, IPC only and the learned Chief Judicial Magistrate, Trichy had directed the learned Magistrate to dispose of the case. Taking into consideration the fact that the respondent has seized the lorry in accordance with the power, I am of the view that it cannot be construed as a theft committed by the respondent and as such, the dismissal of the complaint by the learned Magistrate under Section 203, Cr. P.C. is proper and correct and the order by the learned Chief Judicial Magistrate is liable to be set aside. Similarly the dismissal of the two petitions filed by the petitioner under Sections 91 and 451, Cr. P.C. is also proper and correct for the simple reason that in view of the default committed by the petitioner, the respondent had seized the lorry. Even in the writ petition, the petitioner filed W.M.P. wherein it is directed that he can pay the arrears; but however, the same was also not paid. In the light of these facts only, the learned Magistrate had dismissed these two petitions filed by the petitioner and there is no illegality or infirmity in the orders passed by the Courts below in these two petitions. 9. Cri. R.C. 585 and 586 of 1999: both revision petitions are dismissed. Cri. R.C. 658/99, for the reasons mentioned above the revision is allowed and the order passed by the learned Chief Judicial Magistrate, Trichy is set aside and the order passed by the learned Magistrate, Manaparai is restored. Consequently, Cri. M. Ps. 5101 and 5102 of 1999 are closed. *****

226

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

State of Karnataka v. Basavegowda

(1997) Cr L J 4386 (Kant.)

F. SALDANHA AND H. N.NARAYAN, JJ. - The respondent-accused to this appeal

was the husband of the complainant Bhagyamma and it was alleged that about 10 days after their marriage, on 30-4-1987 , he took her to the Burudala Bore forest under the pretext of going for the wedding of a friend and that he threatened to kill her unless she parted with all her ornaments. Bhagyamma, finding no other option, removed all her jewellery valued at around Rs. 11,000/- and handed the same over the accused, who wrapped the same in a handkerchief and put it in his pocket. Thereafter, the accused is alleged to have assaulted her with a big stone whereupon, Bhagyamma screamed. The accused continued to assault her with his fists and seeing two other persons coming there, he ran away. Bhagyamma was thereafter taken to the town and ultimately to the hospital. The hospital sent a memo to the police and in the meanwhile, her own relations were informed and they came to the hospital. The police took down the complaint of Bhagyamma after which, they placed the accused under arrest and it is alleged that the ornaments were recovered form his possession under a Panchanama. On completing the investigation, the accused was put up for trial, was chargesheeted and the case was committed to the court of Sessions because, he stood charged with offences punishable under Section 307, IPC in so far as he had attempted to cause murder and secondly, he was also charged with an offence punishable under Section 392, IPC in respect of the robbery of the jewellery in question. The learned trail judge, after assessing the evidence before him, held that the sole testimony of Bhagyamma was insufficient to prove the prosecution case beyond reasonable doubt principally because, the majority of witnesses had turned hostile. In this background, the accused was acquitted and the State of Karnataka has preferred the present appeal assailing the correctness of the order. 2. The learned S.P.P. has taken us through the evidence of PW 2 Bhagyamma. He has pointed out that the statement of Bhagyamma was recorded in the hospital shortly after the incident took place and that there is no departure from the FIR and other subsequent evidence before the Court. The learned advocate has also pointed out that Bhagyamma has very clearly deposed to the fact that the accused was not treating her well and that he had told her on the day in question that he was taking her to attend the marriage of his friend at Yarehally. On one pretext or the other, he finally took her to the forest, whereupon he picked up a stone and threatened to kill her if she did not give him all the golden ornaments. She has thereafter described the manner in which the accused assaulted her despite the fact that she had parted with her jewellery and she points out that the accused had used the stone in the assault and had caused serious injuries to her chest. Even after she raised an alarm he continued to assault her and it is only after two persons came running there, that the accused ran away. She has also described as to how her relations ultimately came to the hospital and the police also came there. She was retained in the hospital for 7 days as an in patient. Bhagyamma had also taken the police to the scene of offence and pointed out the stone M. O. I which was attached by the police. The broken glass bangles were found at the scene of offence. She has given value of the ornaments at about Rs. 10,500/-. Bhagyamma has been cross-examined at considerable

State of Karnataka v. Basavegowda

209

length, but nothing of any consequence has emerged in the cross- examination and at the same time, we need to record that her basic evidence remains unshaken. 3. The learned S.P.P. then relied on only two other pieces of evidence, the first of them being the scene of offence Panchanama on which he relies for purposes of pointing out that the broken glass bangles that were found at that spot in the forest fully support the version of Bhagyamma as also the recovery of the stone. In addition to this, the learned S.P.P. relies on the medical evidence because, he points out that the six injuries on the person of Bhagyamma fully and completely support her evidence as the injuries correspond to the areas where she was assaulted. The most serious of the injuries was injury No.4 which has caused a fracture of the rib. The submission canvassed is that the medical evidence completely corroborates the oral evidence of Bhagyamma. Apart from these two pieces of evidence, the learned S.P.P. has also sought to place reliance on the evidence of recovery of the ornaments because the prosecution has established that after his arrest, the entire set of ornaments were recovered from the pant pocket of the accused and that when he produced them, they were still wrapped in a handkerchief. Learned advocate submitted that these ornaments happen to be a necklace, earnings and items of personal jewellery which should normally be on the person of Bhayamma and the fact that they were found from the pocket of the accused would fully establish that her version regarding the manner in which the accused took them from her is substantiated. 4. As against this position, the respondents learned advocate has placed strong reliance on the admission elicited form Bhagyamma that she has subsequently obtained a divorce from the accused and has also remarried. He submits that this is the clearest indication of the fact that Bhagyamma was not happy with the marriage and desired to put an end to it which was why she has framed the accused. As far as this submission goes, we have carefully scrutinised the evidence and we find that nothing has been brought on record to indicate that Bhagyamma was not happy with the marriage at the time when it took place or that she had other intention or for that matter, that she desired to marry some other man. In the absence of any such material, merely because she has subsequently divorce the accused and remarried, would not necessarily indicate that she was hostile to the accused at the time of the incident and that she would go to the extent of fabricating serious charges against him if these were not true. Having regard to the seriousness of the matter and the fact that the accused not only threatened to kill Bhagyamma, but also took away all her ornaments, could have been a very valid and possible ground for her having wanted to thereafter put an end to that marriage. We are therefore unable to discredit Bhagyammas evidence purely for this reason. 5. The respondents learned advocate thereafter placed reliance on the medical evidence in support of his plea that the injury to the chest could not have been caused by the stone. It is true that the Doctor has initially opined that such an injury would have been unlikely having regard to the fact that the stone was of the dimension of I0"x 8", but subsequently, the doctor himself has agreed that such an injury could be caused by the stone in question. This in our opinion sets the matter at rest. The learned advocate has also submitted that if the accused was callous enough to threaten Bhagyamma with death and if he had taken her to a lonely place for this purpose, that there is no reason why the accused would have not carried out his intention and that this itself shows that the story is fabricated. His submission is that if the

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

accused had got hold of a large stone and intended using it, that he would most certainly have done so and would not have given Bhgyamma an opportunity to escape. As far as this argument is concerned, we take note of the fact that Bhagyamma was a young adult woman and even if the accused was the stronger of the two, she would not have easily submitted to a fatal attack and she has in fact stated that on the first occasion when the stone was aimed at her, that she was able to avoid it and that she sustained only minor injuries. Cumulatively, therefore, we are of the view that merely because Bhagyamma escaped with some injuries, that it cannot lead to the conclusion that the accused did not assault her at all on that day. 6. We however, do agree with the submission canvassed by the respondents learned advocate that even if Bhagyammas evidence were to be accepted, that the charge would still not come within the ambit of Section 307, IPC. Even though Bhagyamma states that the accused threatened to kill her, we would necessarily have to strictly go by what he actually did and it is clear to us from the manner in which he assaulted Bhagyamma, that the acts would not hold him liable for an offence of attempted murder. The learned advocate has submitted that the weapon used and the type of injuries caused are the two crucial factors while assessing questions as to whether there was intention to cause death and he is right in the present instance when he submits that at the very highest, the accused could be held liable for the offence of causing grievous hurt since injury no. 4 indicated that there was fracture of the rib though the other injuries are relatively minor. 7. The respondents learned advocate then pointed out to us that the majority of witnesses in this case have turned hostile. He submits that this is not a mere co-incidence, but that it very clearly reflects on the type of investigation that has taken place and the high degree of fabrication exaggeration. Why witnesses who have given full and complete statement to the police should thereafter turn hostile is not a matter of conjecture any longer because, it is very clear that the only beneficiary of such a situation is the accused and it would, therefore, be impossible to rule out complicity on the part of the accused when witness after witness turns hostile. The fact that the majority of witnesses have not supported the prosecution case is therefore, not a factor in favour of the accused, but one which militates heavily against him. 8. The respondents learned advocate then advanced the submission that the accused was the husband of Bhagyamma and that it is perfectly legitimate for him to keep the wifes ornaments in his custody and that he did so, that the custody does not become unlawful. Learned advocate submission proceeds on the assumption that the husband has every right to be found in possession of a wifes ornaments and that the recovery of the ornaments from him cannot be treated as a guilty circumstance. We do not dispute the fact that under normal situations, a wife may even entrust her ornaments to the husband for safe custody or a prudent or careful husband may, for reasons of safety, keep the ornaments with him or under his control and such an arrangement could never lead to the inference that the husband was disentitled to retain the wifes ornaments and that it is a guilty circumstance against him. Particularly in criminal cases, such facts are not to be considered in a vacuum, but must be looked at strictly in relation to the special situation that prevails in that particular case. We have taken note of the fact that Bhagyamma has very clearly stated in her evidence that these ornaments belong to her as they had been made by her father for her wedding. She also states that they were in her custody and on her person and that the accused under threat, took the

State of Karnataka v. Basavegowda

211

ornaments away from her. If the custody of the ornaments has come to the accused under these circumstances, then his possession becomes clearly unlawful. We need to add here that ornaments and personal property belonging to a wife necessarily constitute her personal possessions and divesting a wife of these against her wishes or without her consent would clearly bring the case within the ambit of a criminal offence. It is a misnomer to argue that irrespective of such situation, that the possession of the wifes personal ornaments by husband still continues to be lawful. In our considered view, the extortion of the ornaments from Bhagyamma under threat and the subsequent recovery of these ornaments from the custody of the accused would clearly make him liable for an offence of extortion. Though the learned S.P.P. submitted that even if the case did not qualify for a conviction under Section 392, I.P.C., that on these facts, it would clearly come within the ambit of Section 386, I.P.C because, the ornaments were extorted under the threat of death, we would prefer not to accept the evidence of Bhagyamma without a little dilution because, the F.I.R. indicates a slightly less serious situation. It would be more appropriate, therefore, to record a conviction under Section 384, I.P.C. 9. As regards the rest of the evidence, we would prefer not to refer to it because, the majority of witnesses have turned hostile and their evidence is not of much consequence. It is true that most of them have been cross-examined and have come a full circle, but we are of the view that Bhagyammas evidence alone which finds considerable support from the other material which we have discussed above, is sufficient to establish the charge against the accused. 10. The learned S.P.P. submitted that the large stone used in this instance, if used as a weapon of assault, was capable of causing death and that it could, therefore, come within the ambit of a deadly weapon. He also submitted that injury no.4. which has resulted in the fracture of a rib is sufficient to bring the case within the ambit of Section 326, I.P.C. The respondents learned advocate points out to us that the stone in question was a relatively small one and secondly, that the other five injuries that have resulted are all very minor except for injury No.4 which has resulted in the fracture of the rib. There again, he points out that Bhagyamma was not seriously injured and she was fit enough to travel on a bicycle and then go to the hospital and that she has completely recovered within a period of 7 days and he, therefore, submitted that the offence at the highest would come under Section 323, I.P.C We need to point out here that the assault in this case cannot be brushed off as an insignificant one because, a stone was used in a forest against a young wife with the criminal intention divesting her of her jewellery. Having regard to the fact that this incident did not take place in the home and that the accused had taken her to a forest under a false pretext, it is clear that he had a criminal intention of either killing her or seriously injuring her, but that he ultimately did not carry this out. Also, having regard to the medical evidence which lists the fracture of the rib as a serious injury, we are of the clear view that this is a case which would qualify for a conviction under Section 325, I.P.C. 11. On the question of sentence, the learned S.P.P. has submitted that this is one more of the heinous instances where an (avaricious) unscrupulous husband has attacked a newly married wife and that too with the sole purpose of gain. He submits that irrespective of what ultimately happened, the facts clearly disclose that the accused wanted to appropriate the

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jewellery and get rid of the wife and in this background, he submits that a deterrent sentence is called for. On the other hand, the respondents learned advocate has prayed for utmost leniency because, he submits that the ultimate injuries were not of extreme seriousness and he puts forward the plea that there is no material to indicate hostility on the part of the accused due to any other reason and that the Court must, therefore, accept the position that Bhagyamma either had some other liaison or that she was not interested in the accused as a husband as she had an intention to marrying some other person and that in this background, there was very strong provocation to the accused. We have discounted this submission, but we need to point out that even assuming that this was the situation, nothing could justify the act of the husband in taking her to a forest extorting her ornaments and then attempting to do away with her. Also, we have taken note of the fact that in many instances, on all sorts of pleas for sympathy, abnormally lenient sentences are awarded by the Courts which have rightly been categorised as flea-bite punishments which not only reduce the justice dispensation system to a mockery of the law, but almost to a joke. It is very wrong on the part of Criminal Courts, when offences of some seriousness are established, to award abnormally low sentences, though we do appreciate the fact that all relevant factors must be taken: into consideration while computing the degree of sentences. In this case, the only extenuating factors in favour of the accused are that he was a young man; that he had no criminal background; and furthermore that he was a rustic person and would therefore qualify for some degree of leniency as he did not have the benefit of either education or acquiring a high degree of enlightenment. It is for these reasons and also because nine years have passed since the incident took place that we are inclined to award a relatively lenient sentence to the accused. 12. The order of acquittal is accordingly set aside. The accused is convicted in the first instance of the offence punishable under Section 325, I.P.C and it is directed that he shall undergo R.I for a period of two years. The accused is also convicted of the offence punishable under Section 384 I.P.C. and it is directed that he shall undergo R.I. for a period of two years. The substantive sentences to run concurrently. The respondent accused shall be entitled to the set-off for the entire period that he has already undergone. The trial Court shall, if the accused has not undergone the requisite sentence and is on bail, take necessary steps to ensure that he is placed under arrest and consigned to prison. In that event, the bail bond of the respondentaccused shall stand cancelled. 13. The appeal accordingly succeeds and stand disposed of, the fees payable to the learned advocate who has represented the respondent accused is fixed at Rs. l,000/-. *****

Jaikrishnadas Manohardas Desai v. State of Bombay

213

TOPIC 9 : OFFENCES OF CRIMINAL MISAPPROPRIATION, CRIMINAL BREACH OF TRUST AND CHEATING

(Sections 403-406, 415-417 and 420 read with sections 29,30)

Jaikrishnadas Manohardas Desai v. State of Bombay

AIR 1960 SC 889

J.C. SHAH, J. - At a trial held with the aid of a common jury in Case No. 38 of the V Session 1955 before the Additional Sessions Judge, City Court, Greater Bombay, the two appellants were convicted of offences under Section 409 read with Section 34 of the Indian Penal Code. The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment for five years and the second appellant to suffer rigorous imprisonment for four years. In appeal, the High Court of Bombay reviewed the evidence, because in the view of the Court, the verdict of the jury was vitiated on account of a misdirection on a matter of substantial importance, but held that the conviction of the two appellants for the offence under Section 409 read with Section 34 of the Indian Penal Code was, on the evidence, not liable to be set aside. The High Court accordingly confirmed the conviction of the two appellants but reduced the sentence passed upon the first appellant to rigorous imprisonment for three years and the sentence against the second appellant to rigorous imprisonment for one year. Against the order of conviction and sentence, the appellants have appealed to this court with special leave. 2. The facts which gave rise to the charge against the two appellants are briefly these:
On 15-6-1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth. The Parikh Dyeing and Printing Mills Ltd., Bombay - hereinafter to be referred to as the company - of which the first appellant was the Managing Director and the second appellant was a Director and technical expert, submitted a tender which was accepted on 27-7-1948, subject to certain general and special conditions. Pursuant to the contract, 2,51,05 yards of cloth were supplied to the company for dyeing. The company failed to dye the cloth within the stipulated period and there was correspondence in that behalf between the company and the Textile Commissioner. Approximately 1,11,000 yards out of the cloth were dyed and delivered to the Textile Commissioner. On 25-3-1950, the company requested the Textile Commissioner to cancel the contract and by his letter dated 3-4-1950, the Textile Commissioner complied with the request, and cancelled the contract in respect of 96,128 yards. On 20-11-1950, the contract was cancelled by the Textile Commissioner in respect of the balance of cloth and the company was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for material spoiled or not accounted for. On December 4, 1950, the company sent a statement of account setting out the quantity of cloth actually delivered for dyeing, the quantity of cloth returned duly dyed and the balance of cloth viz. 1,32,160 yards remaining to be delivered. Against the cloth admitted by the company remaining to be delivered, it claimed a wastage allowance of 2412 yards and admitted liability to deliver 1,29,748 yards lying with it on Government account.

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Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

3. It appears that about this time, the company was in financial difficulties. In December 1950, the first appellant left Bombay to take up the management of a factory in Ahmedabad and the affairs of the company were managed by one R.K. Patel. In June 1952, an application for adjudicating the two appellants insolvents was filed in the Insolvency Court at Ahmedabad. An insolvency notice was also taken out against the two appellants at the instance of another creditor in the High Court at Bombay. Proceedings for winding up the company were commenced in the High Court at Bombay. In the meantime, the mortgagee of the machinery and factory of the company had entered into possession under a covenant reserved in that behalf, of the premises of the factory of the company. 4. The Textile Commissioner made attempts to recover the cloth remaining undelivered by the company. A letter was posted by the Textile Commissioner on 16-4-1952, calling upon the company to deliver 51,756 yards of cloth lying with it in bleached condition to the Chief Ordnance Officer, Ordnance Depot, Sewri, but the letter was returned undelivered. It was ultimately served with the help of the police on the second appellant in October 1952. Thereafter on 7-11-1952, another letter was addressed to the company and the same was served on the second appellant on 25-11-1952. By this letter, the company was reminded that 1,35,726 yards of cloth were lying with it on account of the Government and the same had to be accounted for, and that the instructions to deliver 51,756 yards to the Chief Ordnance Officer, Ordnance Depot, Sewri, had not been attended to. The Textile Commissioner called upon the company to send its representatives to clarify the position and to account for the material. After receiving this letter, the second appellant attended at the office of the Textile Commissioner and on 27-11-1952, wrote a letter stating that the main factors involved in not delivering the goods in finished state was that the material was very old, was dhobibleached in different lots, was bleached under different conditions and therefore unsuitable for vat colour dyeing in heavy shades, that it varied in length, weight, and finish and had lost affinity for vat colour dyeing. It was also stated that the company had in dyeing the basic material, suffered huge losses estimated at Rs 40,000. It was then stated: We are, therefore, however prepared to cooperate with the Government and are willing to make good the governments bare cost. Please let us know the detail and the actual amount to be deposited so that we may do so at an early date. We shall thank you if we are given an appointment to discuss the matter as regards the final amount with respect to the balance quantity of the basic material. 5. On December 29, 1952, the premises of the company and the place of residence of the appellants were raided, but no trace of the cloth was found. A complaint was then filed with the police charging the two appellants with criminal breach of trust in respect of 1,32,404 yards of cloth belonging to the Government. 6. There is no dispute that approximately 1,30,000 yards out of the cloth entrusted to the company by the Textile Commissioner for dyeing has not been returned. By its letter dated December 4, 1950, the company admitted liability to deliver 1,29,748 yards of cloth, but this cloth has not been returned to the Textile Commissioner in spite of repeated demands. That the appellants, as Directors of the company had dominion over that cloth was not questioned in the trial court. The plea that there were other Directors of the company besides the appellants who had dominion over the cloth has been negatived by the High Court and in our

Jaikrishnadas Manohardas Desai v. State of Bombay

215

judgment rightly. Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. 7. In this case, on a search of the factory on December 29, 1952, the cloth remaining to be delivered by the company was not found. At the trial, the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored, on the plea that it was old and was eaten up by white-ants and moths, and had been thrown away as rubbish. This plea of the appellants was not accepted by the High Court and we think rightly. No information was given at any time to the Textile Commissioner after December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants. 8. In this court, counsel for the first appellant contended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned thereby, but in the circumstances of the case, the first appellant cannot be found guilty of the offence of criminal breach of trust. Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a State of Bombay factory in that town, that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the company in Bombay, and if, on account of the pre-occupation of the first appellant at Ahmedabad, he was unable to visit Bombay and the goods were lost, no criminal misappropriation can be attributed to him. But the case pleaded by the appellant negatives this submission. The first appellant in his statement before the trial court admitted that he often went to Bombay even after he had migrated to Ahmedabad and that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry, he was told by the watchman that every day one basketful of sweepings was thrown away. He also stated that he was shown several places in the compound of the factory where pits had been filled up with these sweepings, and that he found a small heap lying by the side of the Tulsipipe gutter and also in the warehouses in the mill premises. It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad, the first appellant was frequently visiting the factory at Bombay. The evidence also discloses that meetings of Directors were held from time to time, but the minutes of the Directors meetings have not been produced. The books of account of the company evidencing disbursements to

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the Directors of remuneration for attending the meetings and the expenses for the alleged collection and throwing away of the sweepings have not been produced. It is admitted by the first appellant that the letter dated 27-11-1952, was written by the second appellant under his instructions. In his statement at the trial, the first appellant stated that he was informed of the letter dated 26-11-1952, from the Textile Commissioner and that he could not attend the office of that officer because he is attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position. He then stated, We had informed the Commissioner that the company was prepared to pay for the cloth remaining after deducting the amount claimed as damages. The letter dated 27-111952, was evidently written under the direction of the first appellant and by that letter, liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the company in carrying out the contract was admitted. By the letter dated December 4, 1950, liability to deliver the cloth was admitted and by the letter dated 27-11-1952, liability to pay compensation for the loss occasioned to the Government was affirmed. The appellants who were liable to account for the cloth over which they had dominion have failed to do so, and they have rendered a false explanation for their failure to account. The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account, the stock register and the complete absence of reference in the correspondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent. 9. Counsel for the first appellant contended that probably the goods passed into the possession of the mortgagees of the assets of the company, but on this part of the submission, no evidence was led in the trial court. Counsel for the first appellant, relying upon the observations in Shreekantiah Ramayya Munipalli v. State of Bombay [(1955) 1 SCR 1177] also contended that in any event, a charge under Section 409 read with Section 34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods, the first appellant was physically present. But the essence of liability under Section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under Section 34 is not, on the words of the statute, one of the conditions of its applicability. As explained by Lord Sumner in Barendra Kumar Ghose v. King-Emperor [AIR 1925 PC 1, 7] the leading feature of Section 34 of the Indian Penal Code is participation in action. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be in doing the act, not merely in its planning. A common intention - a meeting of minds - to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of Section 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. In Shreekantiah case, misappropriation was committed by removing goods from a Government depot and on the occasion of the removal of the goods, the first accused was not present. It was therefore doubtful whether he had participated in the

Jaikrishnadas Manohardas Desai v. State of Bombay

217

commission of the offence, and this Court in those circumstances held that participation by the first accused was not established. The observations in Shreekantiah case in so far as they deal with Section 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are not intended to lay down a principle of universal application. 10. The High Court has found that the two appellants were liable to account for the cloth over which they had dominion and they failed to account for the same and therefore each had committed the offence of criminal breach of trust. The High Court observed: In such a case, if Accused 1 and 2 (Appellants 1 and 2) alone were concerned with the receipt of the goods, if they were dealing with the goods all the time, if they were receiving communications from the Textile Commissioners office and sending replies to them, and if the part played by each of them is apparent from the manner in which they are shown to have dealt with this contract, then it is a case of two persons entrusted with the goods and a breach of trust obviously being committed by both of them. 11. It was submitted that the High Court erred in finding the appellants guilty of offences under Section 409 of the Indian Penal Code when the charge framed against them was one under Section 409 read with Section 34 of the Indian Penal Code. A charge framed against the accused person, referring to Section 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be invoked. Section 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. Conviction of an accused person recorded, relying upon the principle of joint liability, is therefore for the offence committed in furtherance of the common intention and if the reasons for conviction establish that the accused was convicted for an offence committed in furtherance of the common intention of himself and others, a reference in the order recording conviction to Section 34 of the Indian Penal Code may appear to be a surplusage. The order of the High Court recording the conviction of the appellants for the offence under Section 409 of the Indian Penal Code is therefore not illegal. 12. It was submitted for the first appellant that the sentence passed against him was unduly severe, and that in any event, no distinction should have been made between him and the second appellant in the matter of sentence. It is evident on the findings accepted by us that property of considerable value has been misappropriated by the first appellant. He was the Managing Director of the company and primarily, he had dominion over the property entrusted to the company. The second appellant was, though a Director, essentially a technician. Having regard to these circumstances, if the High Court has made a distinction between the two appellants, we ought not to interfere with the sentence, which by itself cannot be said to be excessive. The appeal fails and is dismissed. *****

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Mahadeo Prasad v. State of West Bengal

AIR 1954 SC 724

N.H. BHAGWATI, J. - This is an appeal by special leave from a decision of the High
Court of Judicature at Calcutta upholding the conviction of the appellant under Section 420 of the Indian Penal Code and the sentence of one years rigorous imprisonment passed upon him by the Additional Presidency Magistrate of Calcutta. 2. The appellant agreed to purchase from the complainant Dulichand Kheria 25 ingots of tin on 5th May, 1951. The complainant had in his stock 14 ingots only and purchased 11 ingots from the firm of M. Golam Ali Abdul Hussain. These 25 ingots were to be delivered by the complainant at the guddi of the appellant and it was agreed that the price which was fixed at the rate of Rs 778 per cwt. and amounted to Rs 17,324/12/6 was to be paid by the appellant against delivery. The Jamadar of the complainant went to the Guddi of the appellant. The appellant took delivery of the ingots but kept the Jamadar awaiting and did not pay the price to him. The Jamadar waited for a long time. The appellant went out and did not return to the Guddi and the Jamadar ultimately returned to the complainant and reported that no payment was made though the ingots were taken delivery of by the appellant. The complainant who was induced to part with these 25 ingots of tin by the appellants promise to pay cash against delivery realised that he was cheated. He therefore filed on 11th May, 1951 his complaint in the Court of the Additional Chief Presidency Magistrate, Calcutta charging the appellant with having committed an offence under Section 420 of the Indian Penal Code. The defence put up was that the appellant had no intention whatever to swindle the complainant, that the transaction was on credit and that the story of the promise to pay in cash was introduced by the complainant to give a criminal complexion to the case. It was alleged that the appellant went of his own accord to the complainant 7 or 8 days after the transaction in order to settle the money to be paid in view of the fluctuations in the price of tin in the market and was arrested at the place of the complainant while he was thus negotiating for a settlement. 3. It transpired in the evidence that the appellant had an overdraft account with the Bank of Bankura Ltd. in which account he had overdrawn to the extent of Rs. 46,696-12-9 as on 4th May, 1951, the overdraft limit being Rs. 50,000. On 5th May, 1951 the appellant hypothecated with the bank 70 ingots of tin as additional cover against the overdraft account. There was no satisfactory evidence to show that these 25 ingots of tin which were taken delivery of by the Appellant from the Jamadar of the complainant were included in these 70 ingots which were thus hypothecated with the bank on this date. There was however sufficient evidence on the record to show that on 5th May, 1951 when such delivery was taken by the appellant he had not with him any assets beyond the margin of the overdraft account to the extent of Rs. 3,303-3-3 which certainly would not go a long way towards the payment of the price of these 25 ingots. The question to be determined by the Court of the Additional Presidency Magistrate was whether having regard to the surrounding circumstances it could safely come to the conclusion that the appellant had no intention whatsoever to pay but merely promised to pay cash against delivery in order to induce the complainant to part with the goods which otherwise he would not have done. The Additional Presidency Magistrate, Calcutta held that the charge against the appellant was proved and convicted him and

Mahadeo Prasad v. State of West Bengal

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sentenced him as above. The appellant took an appeal to the High Court against this conviction and sentence passed upon him. The High Court dismissed the appeal and confirmed the conviction and sentence passed upon the appellant by the Additional Presidency Magistrate, Calcutta. 4. The High Court observed rightly that if the appellant had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established. It was common ground that the market of tin was rapidly declining and it went down from Rs. 840 per cwt. in about April 1951 to Rs. 540 per cwt. in about August 1951. Even between 3rd May, 1951 and 5th May, 1951 the two dates when the negotiations for the transaction took place between the parties and the contract was actually entered into, the market declined from Rs. 778 per cwt. to Rs. 760 per cwt. It was therefore urged on behalf of the appellant that the complainant would be anxious to sell the goods to the appellant and there would be no occasion for the appellant to induce the complainant to part with the goods on a false promise to pay cash against delivery. It was further urged that the appellant was not shown to have had no other resources except his overdraft account with the Bank of Bankura Ltd., that he had miscalculated his capacity to pay the price against delivery and that therefore there was no justification for holding that he had initially no intention to pay for the ingots when they would be delivered to him. It was also urged that the bill (Ex.1) which was given by the complainant to the appellant stipulated that interest at the rate of 12 per cent per annum would be charged on the price of goods which was not paid in cash against delivery and this stipulation went to show that it was only a case of civil liability and did not import any criminal liability on the part of the appellant. It was lastly urged that the appellant was anxious to arrive at a settlement with the complainant and actually went to his shop and was arrested there while negotiating a settlement and this showed that he had harboured no fraudulent intentions against the complainant when he had taken delivery of the ingots. 5. All these contentions which have been urged on behalf of the appellant however are of no avail. The complainant had never known the appellant and had no previous dealings with him prior to the transaction in question. The complainant could therefore not be anxious to sell the goods to the appellant either on credit or even in a falling market except on terms as to cash against delivery. Whatever be the anxiety of the complainant to dispose of his goods he would not trust the appellant who was an utter stranger to him and give him delivery of the goods except on terms that the appellant paid the price of the ingots delivered to him in cash and that position would not be affected by the fact that the market was rapidly declining. There was no question of any miscalculation made by the appellant in the matter of his ability to pay the cash against delivery. He knew fully well what his commitments were, what money he was going to receive from outside parties and what payments he was to make in respect of his transactions upto 4th May, 1951. The position as it obtained on the evening of 4th May, 1951 was that he had not with him any credit beyond a sum of Rs. 3,303-3-3 as above and there is nothing on the record to show that he expected any further payments by 5th May, 1951 to enable him to make the payment of the price against delivery of these ingots. The

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stipulation as to payment of interest endorsed on the bill would not militate against an initial agreement that the price of the ingots should be paid in cash against delivery. It would only import a liability on the part of the purchaser to pay 12 per cent interest on the price of the goods sold and delivered to him if he did not pay cash against delivery. That would indeed be a civil liability in regard to the payment of interest but would certainly not eschew any criminal liability of the purchaser if the circumstances surrounding the transaction were such as to import one The anxiety to arrive at a settlement could easily be explained by the fact that the appellant knew that he had taken delivery of the ingots without payment of cash against delivery and the only way in which he would get away from the criminal liability was to arrive at a settlement with the complainant. The state of the overdraft account of the appellant with the Bank of Bankura Ltd., the evidence of the complainant as well as the Jamadar, the hypothecation of 70 ingots of tin by the appellant with the Bank of Bankura Ltd. on the very 5th May, 1951 and the whole of the conduct of the appellant is sufficient in our opinion to hold that at the time when he took delivery of the 25 ingots of tin, the Appellant had no intention whatsoever to pay but merely promised to pay cash against delivery in order to induce the complainant to part with the goods. The appellant was therefore rightly convicted of the offence under Section 420 of the Indian Penal Code and both the courts below were right in holding that he was guilty of the said offence and sentencing him to one years rigorous imprisonment as they did. The appeal therefore is without any merits and must stand dismissed. *****

Akhil Kishore Ram v. Emperor

221

Akhil Kishore Ram v. Emperor

AIR 1938 Pat 185

ROWLAND, J. - These two applications have been heard together, the facts in both being
similar. The petitioner was brought before the Magistrate on six charges which were tried in two batches of three each, and was convicted of cheating on all the charges and sentenced in each trial to undergo rigorous imprisonment for 18 months. These sentences have been directed to run concurrently. He was also sentenced at each trial to pay a fine of Rs. 500 in default to suffer further rigorous imprisonment for six months; the sentences of fine and of imprisonment in default are cumulative. Appeals to the Sessions Judge of Patna were dismissed. The main argument put forward on behalf of the petitioner is that assuming him to have done those things which the Courts below have found that he did, he has committed no offence and the second contention is that even if the acts amounted to cheating, the sentences imposed are excessive. The facts are that the petitioner Akhil Kishore Ram resides at Katri Sarai, police station Giriak, in Patna District, where in his own name and under thirteen other aliases he carries on a business of selling charms and incantations which he advertises in a number of newspapers in several provinces of India, and dispatches by value payable post to persons answering the advertisements. Six of these transactions have been the subject matter of the charges. Mr. Manuk at the outset asked us to bear in mind that what he called the materialist attitude which regards spells and charms as a fraudulent pretence and sale of them as a swindle, though widely held, is not shared by a large body of opinion in the East particularly in India and among Hindus, where the efficacy of magical incantations is still relied on by many and thought to have a religious basis; and he maintained that there was nothing in the evidence to show that the petitioner did not propound the spells or incantations advertised by him in good faith and with a genuine and pious belief in their efficacy; he urged that a conviction should not be founded on the mere fact that the Court had not faith in the efficacy of the incantations. We may recognise the existence of contrasting points of view, but I would express their opposition differently. One outlook is exemplified by words which the dramatist Shakespeare puts in the mouth of one of his characters: Its not in mortals to command success. But well do more, Sempronius, well deserve it. This is the mental attitude of those who will spare no effort to secure results by their own endeavours and to whom, even if results fail them there is a satisfaction in having done all that man can do. There are those on the other hand who would like success to come to them but are averse from the effort of securing it by their own sustained exertions; it is not in them to deserve success but they hope by some device to command it. It is to the latter class that the advertisements of the petitioner are designed to appeal.

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The advertisement Ex.1 says: GUPTA MANTRA A reward of Rs. 100 The objects which cannot be achieved by spending lacs of rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any hardship to make it effective. It is effective without any preparation. She whom you want may be very hard hearted and proud, but she will feel a longing for you and she will want to be for ever with you when you read this Mantra. This is a Vashi Karan Mantra. It will make you fortunate, give you service and advancement, make you victorious in litigation, and bring you profit in trade. A reward of Rs.100 if proved fallible. Price, including postage etc., Rs. 270. Sidh Mantra Ashram, No. 37 P.O. Katri Sarai, Gaya. Those who answered this advertisement received a printed paper headed Gupta Mantra. A formula follows, and then the instructions: Read the Mantra seven times and look at the moon for fifteen minutes without shutting up your eyes even for a moment. Have a sound sleep with desired object in your heart after that and you will succeed. You should take only the milk of cow, fruit and sweets of pure fresh cows milk during the day and night time, you should bathe at night and make your mind pure before you begin this process. No other person should be taken into confidence however dear and nearly related he may be to you. If you allow such things it will lose its effects as it is so prepared that it can be used by only one man and that with strict secrecy. Sidh Mantra Ashram, Katri Sarai, Gaya. The leaflets are printed in English, Bengali, Hindi and Urdu; and it would appear from the registers of the post office that over 25,000 clients paid good money for them. Mr. Manuk argues that the Mantras have not been proved to be ineffective and sold with the knowledge of their uselessness; and therefore he says there was no cheating. But that was not what the prosecution set out to prove. The substance of the prosecution case and the findings of the Courts below was that whereas by the advertisement clients were made to believe that there is no necessity of undergoing any hardship to make it effective and that it is effective without preparation, they were disappointed by finding on receipt of the leaflets that in order to work the miracle they must stare unwinking at the moon for fifteen minutes; a feat which if not impossible as some of the prosecution witnesses have represented it to be, is at any rate beyond the powers of ordinary human beings except by long training and preparation. I have pointed out that the advertisement is specially directed to those who are not content to win success by patient preparation and effort, and bids for their custom by the assurance that no hardship or preparation is needed. The victims concerned in the six transactions which are before us have all said that had they known of the condition precedent to the using of the Mantra, they would never have sent for it; And the Courts below have accepted that evidence. Mr. Manuk argued that readers of the

Akhil Kishore Ram v. Emperor

223

advertisement must have expected that there would be some instructions for its use; that to gaze at the moon for fifteen minutes was an ordinary instruction; and that a condition of this kind was no breach of faith with them. He referred to defence evidence adduced to show that the feat was not impossible, and submitted that his client had been unfortunate in his failure to secure the attendance of more witnesses on the point though he was unable to say that accused was entitled as of right to more assistance than the Court gave him. He also alluded to an offer by the accused to make a demonstration of moon gazing in the presence of the trying Magistrate, which the latter refused. As to that, the Magistrate was quite right. Section 539 B of the Code which empowers the Court to make a local inspection does not contemplate a procedure by which the presiding officer would to all intents and purposes put himself in the position of a witness in the case. The Magistrate rightly said that the accused could adduce no evidence of any such test. The accused examined as a witness a coal merchant who said that he used the Mantra, that he was able to gaze at the moon for fifteen minutes after some days practice and that the capital of his business has grown from Rs. 300 to 1500. The feat of which he boasts does not appear to have been witnessed by any impartial observer and cannot be regarded as a well-authenticated record; his business success also rests on his own word only and he is himself related to the accused and thus not a disinterested witness. The Courts below were fully entitled to refuse to rely on his evidence and to prefer the testimony of prosecution witnesses who have said that the condition attached to the Mantra was impossible or at least beyond the power of ordinary persons. Mr. Manuk argued that the petitioner was not bound to disclose in his advertisement all the procedure that was required to be followed in order to obtain the benefit of the Mantra. That is true; but the advertisement gave a definite assurance that there was no necessity for either hardship or preparation and the condition referred to is contrary to that assurance, on which the witnesses said that they acted, and without which they would not have answered the advertisement. I have no doubt then that the offences charged were committed and the petitioner has been rightly convicted. There remains the question of sentence. Mr. Manuk contended that at the worst the accused had committed a technical breach of the law and that if the Mantra was in fact genuine and effective he might be, as was argued in the Magistrates Court, wanting to do good to the universe. Whether the intentions of the accused were beneficent or otherwise can only be inferred from the materials before us, and such as they are I can find more indications in them of a desire to do good to himself. Para 2 of the instructions following the Mantra appears to be designed to secure the monopoly of his secret by the threat of the Mantra losing its effect if disclosed to others. The reader is presumably expected to forget that the vendor is disclosing it to thousands. This clause should also minimise the danger of victims discussing their experiences with one another and thus being moved to take action against the vendor. Should there be any such discussion, the use of the fourteen aliases might prevent the victims from being fully aware that they were dealing with the same person. Then the advertisement is shrewdly drawn to disarm the suspicion with which at first sight the average newspaper reader is apt to regard magic, wizardry and incantations. The reward of Rs. 100 is placed in the forefront. No time is lost in putting forward this assurance of genuineness in the headline and at the foot again it is said a reward of Rs. 100 if proved fallible. Prospective purchasers are left to hope that by seven times repeating the Mantra they will attain their object whatever it may be with the assurance that in the event of

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failure they will get Rs. 100 reward and in case they should still be so sceptical as to wonder whether there is not a catch somewhere, there is the added assurance that the Mantra is effective without preparation and without the necessity of undergoing any hardship. If one may judge by the internal evidence, these compositions are the work of no ascetic or dreamer but of a hardheaded businessman with organizing capacity and a flair for publicity. We know that he advertises widely and employs a staff of four clerks. The elements in human nature to which the appeal is made are not industry and patience but laziness and greed. The business is on large scale and the convictions have been in respect of six out of an unknown number of offences. These are considerations against treating the accused too lightly or imposing a nominal sentence. The accused was liable to be sentenced to seven years imprisonment of either description for any one of the six offences of which he has been convicted, and in my opinion the sentences of substantive imprisonment imposed, namely eighteen months which will amount to no more than consecutive sentences of three months for each offence are not excessive; nor are the fines. I would dismiss the applications and discharge the Rules. Applications dismissed. *****

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.

AIR 1999 SC 2332

K.T. THOMAS, J. - A godman is now in the dock. One who was initiated by him as his
devotee has later turned to be his bete noire, and the godman is facing a prosecution for the offence of cheating under Section 420 of the Indian Penal Code. When he moved the High Court to quash the criminal proceedings pending against him, the motion was dismissed as per the impugned order against which the present appeal has been filed by special leave. 3. Facts, thus far developed, are stated below: An FIR happened to be registered on the complaint lodged by one Venkatakrishna Reddy with the Town Police Station, Nellore, containing the following allegations. The appellant (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj) who is a young man, son of a teacher of Gummaluru Village (A.P.) claimed to possess occult faculties and attracted a number of devotees. He represented to have divine healing powers through his touches, particularly of chronic diseases. The complainant approached him for healing his 15-year-old daughter who is congenitally a dumb child. The appellant assured the complainant that the little girl would be cured of her impairment through his divine powers. He demanded a sum of Rs. 1 lakh as consideration to be paid in instalments. The first instalment demanded was Rs. 10,000 which, after some bargaining, was fixed at Rs. 5000. The complainant paid that amount and later he paid a further amount of Rs. 1000 towards incidental expenses. He waited eagerly for improvement of his dumb child till 1994 which was the time-limit indicated by the appellant for the girl to start speaking. As the child remained the same, the complainant began to entertain doubts. The appellant postponed the time-limit till August 1994 for the girl to develop speech capacity. A little more amount of Rs. 516 was collected for performance of a yagya. But unfortunately no such thing brought about any change in the girl. In the meanwhile, news of some other persons defrauded by the appellant reached the ears of the complainant as newspapers started publishing such other activities indulged in by the appellant. In one such publication it was mentioned that the appellant had mobilised more than a crore of rupees from different devotees. It was then that the complainant realised the fraud committed by the appellant, according to the complainant. Hence a complaint was lodged with the police for cheating. 4. The police conducted investigation and on 15-12-1994 laid final report before the Magistrate concerned by referring the case as mistake of fact mainly on the ground that this is a kind of religious belief prevalent in India among devotees of God. According to the appellant, this was not a case of cheating or breach of trust. But the Magistrate was not prepared to give accord to the said report. On 2-8-1995 he ordered for reinvestigation of the case. 5. Pursuant to the said order, the police reinvestigated and filed a report on 15-9-1997 holding that the appellant has committed the offence under Section 420 of IPC. The Magistrate took cognizance of the offence on receipt of the said report and issued warrant of arrest against the appellant.

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6. The appellant moved the High Court for quashing the proceedings on two grounds. First is that the Magistrate has no jurisdiction to order reinvestigation after receipt of the first report of the police, without affording an opportunity to the appellant. Second is that allegations of the complainant would not constitute an offence of cheating. But the High Court dismissed the petition for which the impugned order was passed. 7. Learned counsel contended that no offence of cheating can be discerned from the allegations, particularly in view of the admitted fact that the complainant reposed faith only in the divine powers which the appellant would only have offered to invoke through rituals and prayers. 8. If somebody offers his prayers to God for healing the sick, there cannot normally be any element of fraud. But if he represents to another that he has divine powers and either directly or indirectly makes that other person believe that he has such divine powers, it is inducement referred to in Section 415 IPC. Anybody who responds to such inducement pursuant to it and gives the inducer money or any other article and does not get the desired result is a victim of the fraudulent representation. The court can in such a situation presume that the offence of cheating falling within the ambit of Section 420 IPC has been committed. It is for the accused, in such a situation, to rebut the presumption. 9. So the contention that the allegations do not disclose an offence under Section 420 IPC has to be repelled and we are of the opinion that the Magistrate has rightly taken cognizance of the said offence. 10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173 (8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [AIR 1979 SC 1791]. The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. 11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation. 12. For the aforesaid reasons, we are unable to interfere with the order passed by the Magistrate. Appeal is accordingly dismissed.

THE END