ANDA AND ORS. v.

THE STATE OF RAJASTHAN

(AIR 1966 SC 148) : A CRITICAL ANALYSIS

PSDA

Submitted to: Ms. Tushita Sharma

Submitted by: Adhya Vij

Enrollment no.- 35417703519

VIVEKANANDA SCHOOL OF LAW AND LEGAL
STUDIES

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DELHI

2021
NAME OF THE CASE

ANDA AND ORS. V. THE STATE OF RAJASTHAN

DATE OF JUDGEMENT
9th March 1965

CITATION
AIR 1966 SC 148

TYPE OF BENCH
It was an appeal before a full bench of the Supreme Court

NAME OF THE JUDGES

Justic K.N. Wanchoo, Justice M. Hidayatullah, Justice J.R. Mudholkar and Justice S.M. Sikri

NAME AND TYPES OF OPINIONS

The bench gave a single opinion on behalf of all the justices .

COUNSELS REPRESENTING THE PARTIES

Appellant:-
Adv. Prem Sharma and Adv. Rakesh Sinha

Respondent:-
Adv. Brij Bans kishore and Adv. R.N. Sachthey
INTRODUCTION AND BACKGROUND

The case at hand deals with Special leave petition filed by for appellants under article 136 of
the Indian constitution, who were convicted by a division bench of the hon’ble Rajasthan
High Court under section 302 read with section 34 of Indian Penal Code (hereinafter referred
as IPC) . Before this conviction, the sessions court had also convicted appellants but along
with three others under article 302 but, read with section 149, which changed when these
three others were acquitted by the High Court.

Now, the apex code had to hear the appeal on the ground whether the crime committed came
under the purview of section 302 (murder) or section 304 (culpable homicide not amounting
to murder). The debate for qualifying a homicide as murder or culpable homicide not
amounting to murder is as long as Penal Code itself and it still isn't crystal clear and judges
till date I find it troublesome to classify a case as either one. The judiciary (especially the SC)
as on these occasions tried to differentiate the both.

But as the situation stands today there is no conclusive authority to differentiate an offence
under section 302 and 304. The defense always pleads 304 so as to mitigate the punishment
as much as possible, while the prosecution always claims the other so as a harsher
punishment meted out in the interest of the state. But the most important aspect in most of
these debates always boils down to the factual matrix, which are unsurprisingly unique to
each and every case and we get a different criteria in every such judgment only to get
replaced by another one down the line.
Factual matrix

The victim Behrun was the son of one Girdhari Jat who was assaulted by a number of persons
and received numerous injuries as a result he died on the same day of the incident that is June
29, 1961. It was proved by the prosecution that Girdhari Jat and his son Behrun were on
inimical terms with the appellants.
The incident occurred in the village ‘hindas’ at the break of day around 5:00 to 5:30 AM,
when Behrun was visiting his village to attend to his farm lands. On his way when he was
crossing the House of one Bhagu (originally accused since aquitted) he was assaulted and
caught under by Anda and Roopla (appellants 1 and 2).

While he was being taken inside Behrun desperately cries for help and tried to flee, he even
held the frame of the door of the house very firmly to avoid being dragged into the house but
failed when the assaulters hit him with the lathis on his hands to loosen his grip . One of the
neighbors ( Mooda) alarmed by these cries, came to save the victim but was beaten off.

After getting beaten to a pulp, Behrun is admitted to the hospital and is examined by Mr. C.L.
Sablok. He examined Behrun’s wound while he was barely alive on his arrival at the hospital
but more accurately examined his body in the autopsy after Behrun was dead.

The details of the report encompassed the various injuries that were inflicted onto the body of
Behrun and his cause of death. There were a total of 30 wounds and injuries on the body of
the deceased. after preparing grow drops report the doctor determined the cause of the death
which was “that in his opinion was caused by shock and syncope due to multiple bruises and
injuries. Which individually weren't sufficient to cause such death but their collective effect
was sufficient to cause death in the ordinary course of nature.”
ISSUES
According to the bench the invocation of section 34 wasn't of the question but the issue
formulated was-

was this a case of culpable homicide not amounting to murder or murder?

Hence the issue thus formulated was on a mixed question of fact and law.

CONTENTIONS

APPELLANT -

The first contention by the appellant was on the granting of the leave petition, which
according to the appellants entitled them to argue that the offense committed by all the
accused didn't come under section 302 of IPC

Secondly, they submitted that the offense committed was of culpable homicide not
amounting to murder under section 299, and not of murder defined under section 302 of IPC.

RESPONDENT-

The respondents claimed that the petition had only been granted to elucidate whether section
34 was properly invoked or not. Further they also claimed that the offense committed by the
accused was of murder under section 300 (1) and (3) of the IPC and not section 299.
PROVISIONS OF STATUE CITED

The current case cited many provisions from the IPC dealing with joint liability and
homicide.

 Section 34(4): Acts done by several persons in furtherance of common intention

 Section 35(5): when such an act is criminal by reason of it being done with the
criminal knowledge or intention.

 Section 38(6): persons concerned in criminal act may be guilty of different offenses

 section 149(7): every member of an unlawful assembly guilty of offense committed in

the pursuance of common object

 Section 299(8): culpable homicide

 section 300(9): murder

 section 302: punishment for murder

 section 304(11): punishment for culpable homicide not amounting to murder

PRECEDENTS CITED
The judgment cited 3 cases that were relevant to the case at hand-

 Oswal Danji Tejsi v. State

Here the accused was convicted under section 325 read with section 34 of IPC by the trial
court when they appealed in the hon’ble Gujarat High Court. In this case the victim was
beaten up by three assailants by the virtue of which he sustained 21 injuries out of which only
two were fatal and were caused by an iron-ringed stick. Thus, according to the bench it was
neither a murder nor a culpable homicide but only a grievous hurt. And convicted the accused
under section 326 read with section 34.

 Brij Bhukhan v. State of Uttar Pradesh

Have the appellant had come in against an order of the elaborate High Court which had
sentence to him to death and the other accused two transportation for life. The victim here
was assaulted on his way home and was beaten by the appellant and other accused. Owing to
these injuries, victim Ram prasad died very shortly after these assailants went away. The
medical report suggested that not one injury was such to cause death in ordinary course of
nature. But according to the bench, the intention by which such injuries were inflicted was to
cause death of the victim and such injuries were cumulatively sufficient to cause death of the
victim. And thus, the appeal was dismissed and conviction as well as death penalty was
upheld
  Chandgi v. State of Punjab

One serious injury was inflicted on the victim that was by a gandasi which had almost
severed the arm of the victim. The court did not hold the accused guilty under section 302/34,
it observed that ‘The injury itself was not proved to be sufficient enough of causing death of
the victim in ordinary course of nature, and this according to the bench of the current case it
was a distinguished judgment.’
JUDGEMENT

 In Personam (CONCRETE JUDGEMENT)

The appeal was dismissed and the order of the high court appeared. All the four accused were
convicted of murder under section 302 read with section 34 of IPC.

 In Rem(RATIO DECIDENDI)

“No case can, of course, be an authority on facts. In the last case inference was drawn from
facts which were different. It is always a question of fact as to whether the accused shared a
particular knowledge what indent. One must look for the common intention, that is to say,
some prior concert and what that intention is. It is not necessary that there should be an
appreciable passage of time between the formation of the intent and the act for common
intention may be formed at any time. Next one must look for the requisite ingredient that the
injuries which were intended to be caused were sufficient to cause death in the ordinary
course of nature. Next, we must see if the accused possessed the knowledge that the injuries,
that were intended to cause were sufficient in the ordinary course of nature to cause death.
When these circumstances are found and death is, in fact, caused by injuries which are
intended to be caused and which are, sufficient in the ordinary course of nature to cause death
the resulting offense of each participant is murder.”
Thus, ratio defines a criterion on how to decide whether a death caused by multiple assailants
under circumstances like that of the case itself is murder or not and that section 34 is
applicable only on case to case basis.
REASONING

The court even before initiating the appeal made it clear that the Leave was not granted to
look into whether section 34 applied, but whether it was a murder or culpable homicide not
amounting to murder. Because section 34 was very easily applicable as in the present case the
accused was obviously present at the spot by previous arrangement. The time and the place
and the errand on which Behrun was engaged clearly show that they intended to waylay and
beat Behrun. This intent was obviously shared and was the result of prior arrangements.

Moving Onto the question of section 302 or 304.

“The injuries were not on a vital part of the body and no weapon was used which can be
described as especially dangerous. Only lathis were used. It cannot, therefore, be said safely
that there was an intention to cause the death of Behrun 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 show that everyone joined in
beating him. It is also quite clear that the assailants aimed at drinking his arms and legs.
Looking at the injuries caused to Behrun of the common intention of all, it is clear that the
injuries intended to be caused were sufficient to cause his 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.” Thus, according to the court it was a case of murder under
three of section 300 where the nature of the injuries is such that they were sufficient in the
ordinary course of nature to cause death.
CRITICAL ANALYSIS AND CONCLUSION

The case at hand is a very old one and an initial case in the everlasting debate of culpable
homicide and murder. Even though the initial paragraphs of the judgment suggests the setting
up of a comprehensive debate on both the sides when a homicide amounts to murder and
when it does not. But on the thorough reading of the entire judgment it is clear that it was a
very narrow judgment and only addressed the factual scenario setting up a precedent but only
for very specific instances like that of the case itself the judgment very comprehensively like
a commentary on the Indian Penal Code explains the nature and scope of sections 299 and
300. It goes into quite details of the legislation and explains from the perspective of a
Supreme Court judge what the provision means and entails. The judgment also shows that
medical reports are of at most concern in a criminal case, it goes into gruesome details of the
report only to unearth the truth and to get the victim the justice he deserves. finally, the bench
quite simply applies the law to the facts and comes to the decision that the cumulative injuries
caused by the assailants on the victim are in furtherance of a common intention, which
according to the bench, in this case, was to cause the death of the victim which made them
liable. Another disconnect from law observation of the researcher is that, in the case at hand
and other older cases that were cited; lesser substances cited. What it means is, the modern
day judgments have lot of precedents, books and even articles cited as authorities to give way
to the contentions and to prove their point unequivocally, but in turn making the judgment
quiet garrulous, hard to understand and interpret. In the older judgments, from the newly
independent India era, the judgments have little to no cited authorities to rely upon. The
judgments were mostly based on pure application of law to the facts without an excessive
discussion on the precedents and literary sources. This made the judgments very lucid, brief
and to the point, which were easy to get a grasp of and appreciate.

Going back to the legal part of the analysis, the most important aspect in distinguishing a case
between culpable homicide amounting and not amounting to murder is solely the nature and
amount of intention involved in the offense if the intention was the cause of death without
any doubt of the victim it is very difficult to prove that such an offence was not murder for
example: ‘A’ waits for a week before killing them paramour he would in most certainty be
liable for the murder of the man and be punishable under section 302 and not section 304.
This is not the only case to distinguish between the very perplexing provisions of homicide
and IPC. Many other judgments have come in the aftermath of this judgment which have yet
again defined the criteria. The most pertinent being Reg v. Govinda. Thus, it is an old
discursive decision of one of the most disputed provisions of IPC which still holds good.
Even though till this day there are no monochromatic distinctions between the murder and
culpable homicide not amounting to murder besides the amount and nature of intention
involved.