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2009 Supreme(SC) 605
2009(4) Supreme 53
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. Arijit Pasayat, D.K. Jain and Dr. Mukundakam Sharma, JJ.
Pappu @ Hari Om — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 599 of 2009
(Arising out of S.L.P. (Crl.) No.7844 of 2007)
Decided on : 31-03-2009
For the Appellant :Narendra Kumar (SCLSC), Advocate.
For the Respondents:C.D. Singh, S. Chaudharym, V. Vandhan, Aditya Singh, Ms. Upsana Nath, Advocates.
IMPORTANT POINT
If death ensues from intentional bodily injury sufficient to cause death in the ordinary course of nature, appropriate conviction would be under section 304 Part II.
Headnote:(a) Indian Penal Code, 1860 – Section 300, Thirdly – 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. (Para 11)
AIR 1966 SC 1874; AIR 1958 SC 465 – Relied upon.
(b) Indian Penal Code, 1860 – Section 300 – Clause (4) would be applicable where the knowledge of the offender as to the probability of death of a person 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 – However sometimes the second and the third stages so telescope into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. (Para 17)
(1976) 4 SCC 382; JT 2002 (6) SC 274; (2003) 10 SCC 472; (2005) 9 SCC 650; (2007) 10 SCC 371 – Relied upon.
(c) Indian Penal Code, 1860 – Section 304 Part II – Considering that the bullet hit right side of shoulder, the appropriate conviction would be under Section 304 Part II IPC. (Para 20)
Facts of the case :
1. On 2.11.1994 at about 9.30 p.m. altercations took place between Ramesh and the accused persons over playing of cards.
2. The accused persons returned after sometime. Both accused abused Ramesh and Pappu @ Hari Ram fired gun shots, which caused injuries on the right shoulder of Ramesh and he fell down. On reaching hospital, Ramesh was declared dead.
3. Trial court convicted the accused.
4. High Court affirmed the conviction.
Finding of the Court :
Appropriate conviction would be under Section 304 Part II IPC.
Result : Appeal disposed of.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the Madhya Pradesh High Court, Jabalpur Bench, which affirmed the conviction of the appellant for the offences punishable under Sections 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). He was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- with default stipulation. Accused Bal Kishan was convicted for offence punishable under Section 302 read with Section 34 IPC. The convictions were recorded by learned Additional Sessions Judge, Gohad, Bhind, M.P. in Sessions Case No.11/95. The conviction as recorded by the Trial Court was assailed by two separate appeals. As accused-appellant Bal Kishan died during the pendency of the appeal, the same stood abated.
3. Prosecution version in a nutshell is as follows:
On 2.11.1994 at about 9.30 p.m. Ram Babu (PW-1), Jagdish (PW-12), Sanjeev Kumar (PW-14) and Ramesh (hereinafter referred as ‘deceased’ were playing cards near the house of Kishanlal under an electric pole. The appellant Pappu @ Hari Om alongwith co-accused Bal Kishan came there and asked the persons who were playing cards to permit them to play with them. Ramesh objected to it and this gave rise to quarrel between Ramesh and the accused Pappu @ Hari Ram & Bal Kishan. Both Balkishan and Pappu @ Hari Om went away after abusing Ramesh. After sometime, they returned back from the lane of Rahim Khan Ki Gali. Papu @ Hari Om had a 12 bore gun in his hand. Both accused abused Ramesh and Pappu @ Hari Ram fired gun shots, which caused injuries on the right shoulder of Ramesh and he fell down. Bablu (PW-2) and other persons took him to the hospital on a handcart, where Ramesh was declared dead. The report of this incident was lodged by Rambabu (PW-1), which is marked as Ex.P-1. On the basis of this report, Crime No.261/94 was registered against the accused.
4. Before the High Court the basic stand was that the independent witnesses did not support the prosecution version and it was only the evidence of PW-14 who supported the prosecution version. Additionally, it was submitted that the case at hand is not one which is covered by Section 302 IPC. The High Court did not find any substance in the aforesaid plea and dismissed the appeal.
5. Learned counsel for the appellant reiterated the plea taken before the High Court before this Court. Learned counsel for the respondent-State supported the judgment.
6. Coming to the plea relating to acceptability of evidence, PW-10 who reached the spot after hearing the sound of firing stated that when he reached the spot he found Ramesh was lying in an injured condition and was told by the deceased that the accused persons had fired. Since there was wound on the chest of the deceased he was taken to the hospital. In his evidence Sanjeev Kumar (PW-14) stated that in the night of occurrence at about 9:30 p.m. which was Diwali night he was playing cards with four others, Balkishan and the present appellant came there. There was exchange of hot words between the accused with the deceased and the appellant fired the shot and caused injuries on the chest of the deceased who died while being taken to the hospital. There is no reason to discard the prosecution version.
7. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be t
