Radhe v. State of Chhattisgarh

Judgment

[2008] 10 S.C.R. 110 RAD HE STATE OF CHHATTISGARH (Criminal Appeal No. 999 of 2008) JULY 7, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM,JJ.] Penal Code, 1860: s. 300- Murder- Prosecution - Injured eye-witnesses-- Fatal injuries caused to the deceased - Conviction of accused and acquittal of co-accused by courts below- On appeal, held: In view of the brutal manner of assault and other facts of the case, impugned order not interfered with - Plea of right to private defence not proved. s. 300 clause (3) - Meaning and scope of - Discussed. s. 299 and 300 - 'Culpable homicide' and 'Murder' - Dis~ tinction between - Discussed. ss. 96, 97, 98, 99, 100 to 106- Right to private defence - Scope of - Held:

Plea of right io private defence cannot be based on surmises and speculations - To claim such plea accused must show existence of circumstances giving rise to reasonable grounds for apprehension of either death or grievous injury - The right lasts so long as the reasonable apprehension of the danger to the body continues ~ Burden to show right of private defence is on the accused - Evidence - Burden to prove right of private defence. Appellant-accused, alongwith two co-accused, was prosec ... ted for having caused death of one person and · for causing injuries to others. The prosecution case was that the appellant-accused chopped both the legs of the deceased. When three eye-witnesses came to his re~cue they were assaulted by the appellant-accused and the cor accused. Trial Court convicted the appellant-accused and A acquitted the co-accused. High Court Upheld the order of trial court.

In appeal to this court appellant contended that his conviction was not called for as the assault done by him was in exercise of private defence; and that the complainant party named him assuming that he might have assaulted, because he was present at the place of occurrence at the relevant time. Dismissing the appeal, the Court HELD: 1.1 A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a ·chance to inflict severe and mortal injury on the aggressor. In order D to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. [Para 6] [116-G,H ; 117-A]

1.2 To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or· grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. [Para 6] [117-C & D] 1.3 The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there G is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. [Para 7] [117-E & F] Jai Dev v. State of Punjab AIR 1963 SC 612; Rizan and Anr. vs. State of Chhattisgarh, through the Chief Secretary, H Govt. of Chhattisgarh, Raipur, Chhatttisgarh 2003 (2) SCC 6S1; Sucha Singh and Anr. v. State of Punjab 2003 (7) SCC 643 - referred to ..

1.4 Merely because there was a quarrel and accused persons claimed to have sustained injuries, that does not 8 confer a right of private defence extending to the extent ~f causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused has been rightly discarded. [Para 9] [118-A,B & C] 0 2.1 The safest way of approach to the interpretation and application of 'murder' and 'culpable homicide' seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 IPC. [Para 10] [118-D & E] 2.2 The prosecution must prove the following facts before it can bring a case under Section 300 "thirdly".

First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the _ enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. [Para 11] [118-F,G,H; 119-A] 2.3 Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are ·- 1 RADHE v. STATE OF CHHATTISGARH . satisfied i.e.

(a) that the act which causes death is done A - with the intention of causing death or is done with the in-: tention of causing a bodHy injury; and (b) that the injury I intended to be inflicted -is sufficient in the ordinary course of nature ·to cause death. It must be proved that there was an intention to inflict that particul,ar bodily injury which, in _ s the ordinary course of nature, was suffident to cause death viz. that the injury foundto be present was the injury that was intended to be inflicted. [Para 14] [120-C,D & E] 2~4 Even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death C 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. [Para 15] [120-F & G] 2.5 Clause (c) of Section 299 and clause (4) of Sec-. tion 300 both require knowledge of the probability of the a_ct causing death.

Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the ~ probability of death of a person or persons in general as distinguished from a particular person or persons - be- -E -ingcaused ·from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be <;>f the highest degree of probabi,. - ity, the act having been committed by the offender without any excuse for incurring the risk of causing death or F such injury. [Para 16] [120-G; 121-A & B] 2.6 The above are only broad guidelines and not castiron imperatives. In most cases, their observance willtacilitate the task of the court. But sometimes the facts are G so intertwined and the second and the third stages so telescoped into each, that it may not _be convenient togive a separate and clear cut treatment to the matters involved in the second and .third stages. [Para 17] [121- a· & C] Virsa Singh v. State of Punjab AIR 1958 SC 465; -State [2008)

10 $.C.R. of A.P v Rayavarapu Punnayya 1976 (4) SCC 382; Abdul Waheed Khan alias Waheed and Ors. vD State of A.P 2002 (7) SCC 175; Raj Pal and Ors. v State of Haryana 2006 (8) SCC 678 - relied on. . 3.1 Mere presence of a person at the place of quarrel is not sufficient to show that he had arty intention to cause any injury. In the instant case, even that intention · is, not manifest and in any event, any intention to do an act cann_ot be counteracted by actual assault. Even deceased was not armed; [Para 21] [121-GH; 122~A] 3.2 In .the instant case, in a brutal manner the appellant had 'chopped both legs of the deceased and with the w~apon caused other injuries on the body of the deceased; Above being the position, there is no scope for 0 interf~rence in this appeal. [Para 22] [122-A & B] .'' CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 999 of 2008 . From the final Judgment and Order dated 27.10-.2006 of the High Court of Chhattisgarh· at Bilaspur in Criminal-Appeal No. 55 of 2000 · Feroz Ahmed, {AC.) for the Appellant.

Dharme11dra Kumar Sinha and Anil Jha for the Respondent. The .Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J.

1Leave granted.

2Challenge in this appe~I is to the.judgm~nt of a Division Bench of the Chhattisgarh High Court dismissing the appeal· filed· by the.appellant (hereinafter referred to as the 'accused').

3Challenge before the High Court was to the judgment of 1 the learned Additional Sessions Jud_ge, Manendragarh. The trial. Court had found the appellant guilty of offence punishable un-. der Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') b~t found the co-accused, namely, Kashi and Dev Kumar A . to be not guilty. The appellant was sentencedJo undergo RI for life and fine with default stipulation.

4Prosecution version as unfolded during trial is as follows: 8 On 10.11.1997 Gyan Singh (hereinaJter referred to as the 'deceased') went to Ramkhilawan's house for collecting kanda" (eatable bulb). When he did not come back till evening, his father Heeralal went in search of the deceased to the house of Ramkhilawan in the evenirig at around 7.00 p.m. Heeralal along c with Ramkhilawan and his son Gyan Singh were returning to . · his hoi.Jse. On the way, when they reached near the house of Kashi, Kashi started scolding Ramkhilawan, who was refrained from doing so. Therefore, a quarrel erupted. Appellant who was carrying pharsa and Kashi a lathi started beating. Appellant gave 0 a pharsa blow on the leg of the deceased. The leg was cut and · turned into two pieces. Gyan Singh fell down, thereafter Radhe chopped his other leg and assaulted Gyan Singh with pharsa on his thigh and other parts of the body. Heeralal came to rescue ~im.

Dev Kumar assaulted him with a lathi ori his head and also gave a blow on his left shoulder. Heeralal fell down. When Ramkhilawan intervened, he was assaulted by Dev Kumar. In the meantime, Beerbali, who is son of Ramkhilawan came there. He was also beaten by Radhe with pharsa. Kashi assaulted Ramkhilawan with a club. Gyan Singh instantaneously· died at the spot and others were injured. Accused appellant and his F associates Kashi and Dev Kumar fled away from the place of occurrence. Heeralal gave intimation and lodged First Information Report. Both the documents were recorded by Arjun Ram, As- •. sistant Sub Inspector, Head Constable Jagsai conducted in- . quest, prepared report and forwarded the dead body of Gyan Singh for autopsy to Community Health Centre, Manendragarh. He collected blood stained and plain earth from the spot. Dr. S.K. Chainpuria conducted autopsy.

On examination, he found nine injuries on the body of deceased. and according to ~is opinion, the cause of death'was syncope due to shock and external hemorrhage caused by multiple injuries. All the injuries found · on the body of Gyan Singh were caused by hard ane/or sharp objects except one which was found to be-abrasion and present below left knee. Death was homicidal in nature. He prepared autopsy report and describing all the injuries found on the body ~ of the deceased forwarded th~ report to the concerned police \station. !njuredBeerbali, Ramkhilawan and Heeralal were also 'sent for medical examination. On medical examination, it was found that they have sustained various injuries. On the memorandun:i.statemel'lt of accused Kashi one club and one pharsa. were recovered from the appellant and seized. From Dev kumar. · - one.club was .seized. After post mortem examination! the cloth~s found on the body ()f the deceased were also ·COiiected.

The statements of witnesses were recorded; The seized pharsa, clothes and earth were sent for chemical examination and on examinaUon stained 'earth, pharsa and clothes of Gyan Singh were foµnd to be stained with blood. ·.After cor:npletion of investigation, the charge sheet was filed in the C.gurt of Additional Chief Judicial Magistrate, Manendragarti~ who committed the case to the Court of Session~ for trial qiarges were framed againsfthe appellant and cq-accused. The accused-appellant pleaded innocence a_nd false implication. ~.·Before the High Court the main stand was that the assault, if any done by the appellant was in exercise· of right of private _qefence ·and, therefore, conviction was not called for. The learned counsel for the respondent on the other hand sup- . ported tlie Judgment of the trial Court. The High Court did not accept appellant's pleaand dismissed the appeal. Stands taken before the.High Court were reiterated in this appeal.

6A plea of right of private defence· cannot be based on surrn_ises and speculation. While con~idering whether the rig~t of prJvate defence. is available t() an_ accused, it is not relevant. ·1'- 117. . '.whether he may have a chance to inflict severe and mortal injury on the aggressor .. In order to find whether the right of private defence is.available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 IPC deal.s with the subject-matter ofright of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other personi and the right may be exercised in the case of any offence againstihe body, and in the case of offences of theft, robbery, mischief or critninal-trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private dec fence.

Sections 96 and 98 give a right of private, defence agc;1inst certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 IPC is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death,. the accused must show that there were circumstances giving D rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC de.: fine the llmit and extent of right of private defence. ·

7Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body _arises from ·an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension d,isappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

8The above position was highlighted in Rizan and Another vs. State of Chhattisgarh, through the Chief Secretary, · A _Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and Sucha Singh and Anr v. State of Punjab (2003 (7) sec 643).

9Merely because there was a quarrel and accused persons claimed to have sustained injuries, that does not confer-a 8 right of private defence extending to the extenfot causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that tti-e accused persons were - under such grave apprehension about the safety oUh~r life and property that retaliation to(the extent done was absolutely necc essary:-No evidence mucbJess cogent and credible was ad- - duced in this regard. The right of private defeJJce-as claimed by · the accused has been rightly discarded.

10The academic distinction between "murder" and "culpable homicide not amounting to murder" h.as always vexed D. the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections,· allow themselves to be dFawn into minute ab- . stractions. The safest w;:iy of appro~ch to ttie interpretation and E application of these provisions seem$. to be to keep in focus the keywords used in the various clauses of Sections 299 and .300. ~ 11. In Vi[sa-Singh v. State ofPunjaiJ (AIR 195.8 SC 465}.: Vivjan Bose, J. speaking for the Court, explained the meaning . and scope of clause (3)~ It was observed that the.prosecution musfprove the following facts be!ore it ~an bring a case under Section 300 "thirdJy". First,~ it_ must establish quite objectively, .th_af a bodily injury is present; secondly, the nature of.i_he-injury - -- .. must b~ prove,d_ ... These are purely objective investigations.

G Thirdly, ·it must be proved that there was an intention to inflict · that particular injury, tt1at is to say, that it was not accidehtaf,or unintentional. or that some Gt-her kind of injury was intended. · Once these three elements are proved to be present, the enquiry proceeds further.and fourthly, it must be proved thatthe injury of the type just described made -up of the· three· elements _· set out above was sufficient to cause qeath in the ordinary course "" of natµre. This part of the enquiry is purely objective and inferential and has nothing to do witli the intention of the offender. · · 12;.The ingredients_of clause "thi_rdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: "

12To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly'; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purety objective investigations·. Thirdly, it must be proved that there wa$ an intention to D inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended, -Once these three elements are proved to be present, the 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."

13The learned Judge explained the third ingredient in the following words (at page 468): "The question is not whether the prisoner intended to inflict G a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the 120· injury and the fact that the appellant inflicted it, the·only ' possible. inference is that he intended to inflict it. Whether he· knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he inten,ded to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention ·to cause it will be presumed unless the evidence or the circumstances warrant· an opposite conclusion." .

14These observations of Vivian Bose, J. have become · locus classicus. The test laid down by Virsa Singh case (supra) for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule o(law. Under D cta1:1se thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. ·(a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily· injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary E course of nature to cause death. It must'be proved that there was an intention to inflict that particular bodily injur)t which, in the· ordinary course of nature, was1.sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 15.Thus, accor::ding to the rule laid down in Virsa Singh case (supra) even if the intention of the accused was limited to· the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the o'ffence would be murder. Illustration (c) appended to Section 300 clearly brings out this poi.nt. .

16Clause (c) ·of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing de~th. It is not necessary for the purpose of this case to dilate much on the ,distinction betvveen these corresponding 121- _ [DR. ARIJIT PASAYAT, J. ] clauses. It will be sufficient to say that clause (4) of Section 300 A would be applicable where the knowledge of th~ offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offende·r must be 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.

17The above are only broad guidelines and not cast-iron imperatives. In most cases, their observarn;:e will facilitate the c task of the court. But sometimes the facts are so intertwindd and the second and the third stages so telescoped into each, that it may not be convenient to give a separate and clear cut treatment to the matters involved in the second and third stages.

18The position vvas illuminatingly highlighted by this Court D in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382), Abdul Waheed Khan alias Waheed and Ors. v. State of A.P. · (2002 (7) SCG 175) and Raj Pal and Ors. v. State of Haryana (2006 (8) sec 678).

19It is to be noted that Heeralal has stated that the appellant had assaulted both legs, ttiigh and hands of the_ deceasedwitD pharsa. He choppep both the legs of the deceased . who died instantaneously. Beerbali's (P.W.5) evidence was also to similareffect. 20-. It is nobody's case that the appellant had assaulted · any·of the accused or that he had participated in the quarrel..

21Learned counsel for the appellant submitted that since he was present at the place of occurrence, it is but natural on the part of the accused appellant to assume that he may have assaulted him. Mere presence of a person at the place of quarrel is not sufficient to show that he had any intention to cause any injury. In the instant case, even that intention is not manifest and in any event, any intention to do an act cannot be counter- . A acted by actual assault-Even deceased was not armed: r

22In the instant case, in a brutal manner the appellant - had chopped both legs t>f the deceased and wittrlhe weapon cau,sed other injuries on the body of the deceased. Above being the position, there is no scope for interference in this ap-. p~al. The appeal is dismissed. K.K.T. Appeal dismissed~