Nanhe vs State Of U.P.

And Another on 31 March, 2023

Allahabad High Court

Nanhe vs State Of U.P. And Another on 31 March, 2023
Bench: Nalin Kumar Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 84

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3123 of 2023

Applicant :- Nanhe

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Krishna Kant Yadav

Counsel for Opposite Party :- G.A.

Hon'ble Nalin Kumar Srivastava,J.

Heard learned counsel for the applicant as well as the learned AGA and perused the material
available on record.

Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the
applicant Nanhe in Case Crime No. 820 of 2017, under Section 174-A IPC, Police Station- Shahabad,
District Rampur.

It is submitted by the learned counsel for the applicant that the applicant is innocent and has no
concern with the present matter. Allegations levelled against the applicant are false. It is further
submitted that charge-sheet has been submitted in the matter. Applicant's case is squarely covered
under Section 438 Cr.P.C. It is further submitted that if the applicant is enlarged on bail, he will not
misuse the liberty. The applicant has apprehension of his arrest any time.

Learned A.G.A. opposed the prayer.

I have considered the rival submissions made by the learned counsel for the parties and have gone
through the entire record carefully.

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 Nanhe vs State Of U.P. And Another on 31 March, 2023

It appears from perusal of record that the present accused-applicant was proclaimed offender in
case crime no. 432 of 2017, under section 304 IPC, police station Shahabad District Rampur and
that is why an F.I.R. as case crime no. 820 of 2017, under section 174-A IPC was lodged against the
accused-applicant. It is also reveals from perusal of record that in case crime no. 432 of 2017, bail
was granted to the accused-applicant by this Court in Criminal Misc. Bail Application No. 19252 of
2018 vide order dated 17.04.2019. It reveals from perusal of record that in trial of case crime no. 432
of 2017 accused-applicant is appearing regularly before the Court and cooperating with the trial.

In this matter, as is evident from the record, offence levelled against the applicant is of section 174-A
IPC, which is punishable with the imprisonment upto seven years. The applicant has accorded his
co-operation in the investigation. In Sushila Aggarwal and others vs. State (NCT of Delhi) and
another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the
anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto
conclusion of trial.

It has been further held therein that anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet till end of trial.

It has been further held by the Hon'ble Apex Court that while considering an application for grant of
anticipatory bail, the court has to consider the nature of the offence, the role of the person, the
likelihood of his influencing the course of investigation, or tampering with evidence including
intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further
been held that Courts ought to be generally guided by considerations such as the nature and gravity
of the offences, the role attributed to the applicant, and the facts of the case, while considering
whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

Hence, considering the settled principles of law regarding anticipatory bail, submissions of the
learned counsel for the parties, nature of accusation, role of applicant and all attending facts and
circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is
not a fit case for anticipatory bail to the applicant till the end of the trial.

However, it is observed that the bail application of the applicant, if moved, shall be considered and
decided by the Court concerned in terms of the law laid down by the Hon'ble Apex Court in Satender
Kumar Antil vs. Central Bureau of Investigation and another, 2022 SCC OnLine SC 825.

On the basis of request of the learned counsel for the applicant, it is further directed that the Court
concerned while considering the bail application of the applicant in the light of Satender Kumar
Antil case (supra), shall pass an order strictly in compliance of the directions given in the aforesaid
judgement by the Hon'ble Supreme Court, in letter and spirit, particularly complying with the order
dated 21.3.2023 of the Hon'ble Apex Court in the aforesaid matter.

The application stands disposed of accordingly.

Order Date :- 31.3.2023 Vikram

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 Nirma University
Institute of Law

Semester Third, B.A. LL. B

LEGAL RESEARCH AND WRITING
CASE COMMENT
as a part of
CE-II
for the Academic year (2023-24)
Prepared and Submitted By
SANGINI SINGH (22BAL117)
NANHE VS. STATE OF U.P. (2023)

Facts of the cases

In the matter at hand, an incident that happened in a market area on May 30, 2007, at
approximately 3:30 p.m. The principal parties concerned were Mahendra, who was hurt, and
Saddam Hussain, who was the informant Mohd Ali's son and who was killed in the process.
Nanhe was charged in two different cases: one under the Arms Act of 1959's Section 25 and
the other under Sections 304 and 308 of the Indian Penal Code. After being combined, the
two cases were tried as Sessions Trial Nos. 1097 and 1212 of 2007.
On May 14, 2010, the trial court convicted Nanhe guilty of violating Section 302 IPC and
imposed a life sentence and punishment. In addition, he was found guilty in accordance with
Section 25 of the Arms Act, and he was sentenced to two years of hard labor in jail as well as
a fine. On January 31, 2019, the High Court upheld this conviction based on a single appeal
that Nanhe had submitted.
The ruling and order of the High Court are contested in the current appeal. The attorney for
Nanhe contends that Saddam Hussain's death was an accident and that no plan was made to
murder him. It is argued that Nanhe was so drunk at the time of the occurrence that he didn't
realize what he was doing. The attorney claims that rather than being under Section 302 IPC,
the case should be under Part II of Section 304 IPC.
The informant, Mohd. Ali, filed a formal First Information Report (FIR), claiming that he and
Saddam Hussain saw Mahendra and Nanhe fight as they were leaving a store. Sant Ram
intervened, and Nanhe left the area before coming back and firing a weapon made in his own
nation. The bullet struck Mahendra in the head after striking Saddam in the neck. After being
brought to the district hospital, Saddam passed away from his wounds.
Crucially, with the gun and cartridges found on Nanhe, there is no question that Saddam was
killed by a gunshot fired from his possession. Based on the testimonies of witnesses, both the
trial court and the High Court found Nanhe guilty under Section 302 IPC.
The appellate court considers whether Section 304 IPC should be applied to reduce the
offense to culpable homicide that does not constitute murder. Invoking the 'Doctrine of
Transfer of Malice,' which states that the intent to kill one person can be transmitted to
another, Section 301 IPC is applied. The court highlights the application of this theory by citing
prior rulings.
The court uses Section 86 IPC to explore the consequences of Nanhe's inebriation. If given
against their will, this clause absolves the offender of any offense committed while
intoxicated. It is stressed, therefore, that the accused's incompetence to comprehend the
crime and involuntary intoxication are requirements to its application.
Despite his inebriation, the court finds that Nanhe was not so impaired as to be incapable of
understanding what he was doing. It rejects the appeal, maintains the conviction under
Section 302 IPC, and gives Nanhe the freedom to request remission in line with state
regulations.

ISSUES
A) Whether the said offence is liable to be reduced to culpable homicide not amounting to
murder falling under second part of Section 304 IPC (Punishment for culpable homicide not
amounting to murder) in view of the fact that the Appellant had no intention to kill the
deceased.
B) Whether due to intoxication, the Appellant was incapacitated to understand the
consequences and nature of the act.
C) Whether the ‘Doctrine of Transfer of Malice’ or ‘Transmigration of Motive’ will be applicable
in the present case as stated in Section 301 IPC (Culpable homicide by causing death of person
other than person whose death was intended).

JUDGEMENT
The accused, Nanhe, filed an appeal contesting his conviction under Section 25 of the Arms
Act and Section 302 of the IPC, however the ultimate ruling in this case dismissed the appeal.
After giving it some thought, the court declares that there was no plan to assassinate Saddam
Hussain, rejecting Nanhe's claim that his death was an accident. Nanhe's attorney had argued
that the charge under Part II of Section 304 IPC should be lowered due to his extreme
intoxication during the occurrence.
Nonetheless, the court highlights the application of Section 301 IPC, citing the "Transmigration
of Motive or Doctrine of Transfer of Malice." According to this theory, the intention is linked
to the actual act if someone means to kill one person but unintentionally kills another.
In addition, the ruling examines the consequences of Nanhe's inebriation, making reference
to Section 86 IPC. The court makes it clear that in order for this clause to be applicable, the
accused must be rendered incapable of understanding the nature of the act due to involuntary
intoxication that reaches a certain level.
In the end, the court determines that Nanhe was not so inebriated as to be incapable of
understanding what he was doing. As a result, the appeal is rejected as having no merit, and
the Section 302 IPC conviction is maintained. Nanhe is free to submit an application for
remission in accordance with state policy. The ruling lays out a thorough legal examination
and comes to the conclusion that the accused's inebriation did not release him from the
criminal responsibility related to the deliberate act that caused Saddam Hussain's death.
COMMENTARY

Doctrine of Transfer of Malice or Transmigration of Motive (Section 301 IPC)

Section 301 of the Indian Penal Code (IPC) contains the Doctrine of Transfer of Malice, which
is a legal doctrine that imposes criminal accountability on an offender even if the harm they
do is not meant for them. This doctrine states that the law transfers the criminal intent to the
actual consequence when someone intentionally causes harm or death to another person
with the intent to commit an offense or cause the death of a specific person. To put it another
way, the unintentional victim is considered to share the offender's mens rea, or guilty thought.
The court analyzed Section 301 IPC, also known as the Doctrine of Transfer of Malice, which
attributes criminal liability to an offender even if the person harmed was not the intended
target. The court cited precedents, emphasizing that if a person intends to commit an offense
or cause the death of any person but ends up causing the death of another, they would still
be held guilty of causing death.
The Doctrine of Transfer of Malice was employed by the court in the matter of Nanhe v. State
of Uttar Pradesh to determine criminal responsibility. With the intention of killing Mahendra,
Nanhe fired a shot, but it killed Saddam Hussain instead. The court upheld Nanhe's liability
for the unanticipated consequence, citing Section 301 IPC and highlighting the fact that the
transfer of criminal intent entails liability for the harm produced, regardless of whether the
harm is directed towards a different target. In situations where the intended victim is not the
one who suffers harm or dies, this notion is essential in making sure that the perpetrator is
held responsible for the results of their actions.
The court correctly applied the Doctrine of Transfer of Malice to establish Nanhe's criminal
liability for the death of Saddam Hussain. The intention to harm Mahendra was transferred to
Saddam Hussain, leading to Nanhe being held responsible for the unintended consequence of
his actions. The court's reliance on previous judgments, including Shankarlal Kacharabhai v.
The State of Gujarat and Rajbir Singh v. State of U.P., reinforced the application of this legal
principle.

Impact of Intoxication (Section 86 IPC)

The Indian Penal Code (IPC) Section 86 discusses how drunkenness affects one's ability to
commit crimes. According to this clause, if someone violates a law while intoxicated and
undertakes an act that would be illegal under regular circumstances, they will be held
accountable unless two requirements are satisfied. First and foremost, the intoxication must
be forced upon the subject against their will or knowledge. Second, the person must be so
drunk that they are unable to comprehend the nature of what they are doing.
The effect of alcohol on Nanhe's criminal responsibility was taken into consideration by the
court in the Nanhe v. State of Uttar Pradesh case. Because of her impaired capacity, the
defense contended that Nanhe, who was drunk at the time of the occurrence, should be held
less accountable. After carefully examining the evidence, the court determined that Nanhe's
level of intoxication fell short of what was required by Section 86 IPC. The court emphasized
that deliberate intoxication on its own is insufficient; it must escalate to the point where the
person is unable to understand the ramifications of their behavior.
In Nanhe's case, the court's reasoning highlights the strict standards set forth in Section 86. It
highlights that a person's intoxication alone does not release them from criminal
responsibility; rather, there must to be proof of a demonstrable inability to comprehend the
nature of the crime. This methodology guarantees the prudent application of the legal defense
of intoxication in situations when the accused actually lacked the mental capacity to recognize
the illegality of their conduct.
The court meticulously examined Section 86 IPC concerning offenses committed under
intoxication. It emphasized that not only must the accused be intoxicated, but the level of
intoxication should render them incapable of understanding the nature of their actions. The
court referred to The King v. Meade, emphasizing that the evidence of intoxication should be
considered in conjunction with surrounding facts to determine the accused's intention.
The court assessed the evidence of Nanhe's intoxication, noting that he was able to walk
properly and had moved away from the incident site before returning to fire. The inability to
speak when examined by the police was deemed insufficient to prove a high level of
intoxication that would render Nanhe incapable of understanding the consequences of his
actions.
Conclusion:
The court, after a comprehensive analysis, upheld Nanhe's conviction under Section 302 IPC.
It correctly applied the Doctrine of Transfer of Malice, emphasizing that the unintentional
killing of Saddam Hussain was still attributable to Nanhe due to his intent to harm Mahendra.
The court also scrutinized the impact of intoxication, concluding that there was no evidence
to establish Nanhe's incapacity to understand the nature of his actions.

Significance of the Decision:

Legal Clarity on Transfer of Malice
The court's reaffirmation of the Doctrine of Transfer of Malice provides legal clarity on the
attribution of criminal liability when the intended victim differs from the actual victim. It
underscores that the offender remains culpable for the unintended consequences of their
actions.
Stringent Standard for Intoxication Defense
The court's stringent interpretation of Section 86 IPC sets a high standard for invoking
intoxication as a defense. It emphasizes the need for clear evidence demonstrating both
involuntary intoxication and the accused's incapacity to understand the nature of their
actions.

Critique
Inadequate Exploration of Intent and Intoxication
While the court correctly applied legal principles, a more nuanced exploration of Nanhe's state
of mind and intoxication could have added depth to the analysis. The court primarily focused
on Nanhe's ability to walk and return to the scene but could have delved further into the nexus
between intent, intoxication, and the specific circumstances of the case.
Consideration of Mitigating Factors
The court could have considered factors such as Nanhe's state of intoxication as a mitigating
circumstance during sentencing. While the absence of involuntary intoxication was rightly
emphasized, acknowledging the role of intoxication in influencing Nanhe's actions might have
warranted a more nuanced sentencing discussion.

Conclusion
The Nanhe v. State of Uttar Pradesh case serves as a significant legal precedent in clarifying
the application of the Doctrine of Transfer of Malice and the standard for invoking intoxication
as a defense. The court's meticulous analysis of the legal issues involved, coupled with its
reliance on relevant precedents, contributes to the jurisprudence surrounding criminal
liability in cases of unintended consequences and offenses committed under the influence of
intoxicants.