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SUPREME COURT OF INDIA
K.M. JOSEPH, S. RAVINDRA BHAT, JJ.
Mohd. Rafiq @ Kallu – Appellant
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal No. 856 of 2021
Decided On : 15-09-2021
(A) Indian Penal Code, 1860 – Section 302/300 – Murder – Life sentence – Incident occurred in close vicinity of a police station – There is some contradiction between statements made during investigation by prosecution witnesses about source of light – Incident broadly occurred in manner prosecution alleged – It is often difficult to distinguish between culpable homicide and murder as both involve death – Yet, there is a subtle distinction of intention and knowledge involved in both crimes – This difference lies in degree of act – There is a very wide variance of degree of intention and knowledge among both crimes. (Para 11)
(B) Indian Penal Code, 1860 – Section 302 – Murder – Life sentence – Prosecution established main elements of its factual allegations: receipt of information of breaking of forest barrier; positioning of deceased SI with a posse of policemen on road; identification of appellant, as one who drove truck; gesturing by deceased to appellant to stop the truck; latter slowing down vehicle; attempt by SI to board vehicle, and his being shaken off truck, on account of driver refusing to stop, and, on other hand, speeding vehicle – Even if prosecution version that appellant having threatened to kill deceased were to be accepted, one cannot set much store by it, because no motive or no animus against deceased was proved – A general expression of extreme threat, (without any real intention of carrying it, since truck was not laden with any contraband or was not used for any illegal or suspect activity), cannot be given too much weight – What is of consequence, is that upon deceased falling off truck, appellant drove on – It can be inferred that appellant intended to cause such bodily injury as was likely to cause SI’s death – All essential elements show that appellant did not have any previous quarrel with deceased; there was lack of animus – Act resulting in SI’s death was not pre-meditated – Though it cannot be said that there was a quarrel, caused by sudden provocation, if one considers that deceased tried to board truck, and was perhaps in plain clothes, instinctive reaction of appellant was to resist; he disproportionately reacted, which resulted in deceased being thrown off vehicle – Such act of throwing off deceased and driving on without pausing, appears to have been in heat of passion, or rage-Appellant’s conviction under Section 302 IPC was not appropriate – In facts of present case, appellants should be convicted for offence punishable under first part of Section 304 IPC, as he had intention of causing such bodily harm, to deceased, as was likely to result in his death, as it did – Having regard to circumstances, conviction recorded by courts below, is altered to one under Section 304 Part I, IPC – Sentence too modified – Instead of rigorous imprisonment for life, appellant sentenced to 10 years’ RI – Direction to pay fine left undisturbed. (Paras 14, 15 and 16)
Facts of the case:
Appellant is aggrieved by a judgment of the Madhya Pradesh High Court1 which confirmed his conviction for the offence punishable under Section 302 of the Indian Penal Code and the sentence of rigorous imprisonment for life imposed on him. Only question which arises is as to precise nature of the criminal liability of the appellant.
Findings of Court:
The act resulting in SI Tiwari’s death was not pre-meditated. Though it cannot be said that there was a quarrel, caused by sudden provocation, if one considers that the deceased tried to board the truck, and was perhaps in plain clothes, the instinctive reaction of the appellant was to resist; he disproportionately reacted, which resulted in the deceased being thrown off the vehicle.
Result : Appeal Partly allowed.
JUDGMENT :
S. RAVINDRA BHAT, J.
1. The appellant is aggrieved by a judgment of the Madhya Pradesh High Court [Dated 27.02.2018 in Crl. Appeal No. 1570/1995] which confirmed his conviction for the offence punishable under Section 302 of the Indian Penal Code (“IPC”) and the sentence of rigorous imprisonment for life imposed on him.
2. The facts are that Police Station Jabera received information in the evening of 09.03.1992 that a truck (CPQ 4115) had broken the Forest Department barrier and collided with a motorcycle. The receipt of this information (by means of telephonic conversation) alerted the police. It was further alleged that Sub-Inspector (SI) D.K. Tiwari along with others were stationed at a vantage point, on the main road, when the truck reached there. SI Tiwari motioned the truck to stop; it was driven by the appellant. Instead of applying brakes, the accused tried to speed away, upon which SI Tiwari boarded the truck from its left side. At that stage, it is alleged that the accused/appellant warned SI Tiwari not to do so and that he would get killed. Nevertheless, SI Tiwari boarded the truck. Immediately, the appellant pushed him, as a result of which SI Tiwari fell off the truck and he was run over by the rear wheels of the truck. SI Tiwari died. It is further alleged that the appellant fled with the truck. He was later caught, arrested and charged with committing murder of SI Tiwari.
3. In the trial before the Addl. Sessions Judge, Damoh, the prosecution relied upon the depositions of 18 witnesses, besides several exhibits, including the postmortem report, seizure of articles from the site and the deposition of medical witness (PW-6). The prosecution essentially relied upon the statements of PW-2, PW-10, PW-11, PW-14 and PW-15, i.e. the principal eye witnesses. The accused also led oral evidence of three witnesses, including that of Majeed, DW-1, who deposed that he was the conductor who was in the truck when the incident had occurred.
4. After duly considering the entire evidence and materials led before it, the Trial Court, by its judgment and order [Dated 04.11.1995 in SC No. 123/1992] convicted the appellant as charged and sentenced him to rigorous imprisonment for life. The appeal against the conviction and sentence was rejected by the impugned order.
5. It was argued on behalf of the appellant by Ms. Ritu Gangele, Advocate that a close reading of the evidence disclosed that the depositions of PW-2, PW-10, PW-14 and PW-15 contain fatal contradictions and exaggerations. It was pointed out that the prosecution version about the deceased boarding the truck from its left side and being pushed by the appellant was highly improbable given that two witnesses had clearly deposed that the latter, i.e. the accused continued to drive the truck. It was submitted that if such was the position, unless the prosecution established that the deceased had actually boarded the truck and sat in it near the driver, it was impossible for the accused to have pushed him with such force that he would have fallen off and gotten crushed under the rear wheels.
6. Learned counsel also pointed out to depositions of PW-2 and PW-10 and submitted that several improvements were made to the original statements, recorded during the course of the investigation. It was stated that firstly the statement made during the investigation by PW-2 did not mention how the accused was identified when he was in the truck at 09.45 p.m. whereas the deposition of PW-2 stated that he could identify the accused in the light of the cabin and tube light on the street. She also pointed out that PW-2 improved upon his previous statement during the course of the trial inasmuch as he had not previously stated that the appellant had freed his left hand to push the deceased and that at the same time he continued to drive with his right hand. Most crucially, it was submitted by the learned counsel that the witness nowhere had stated previously that the truck had sped after slo
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